March 25, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
KP v Aviva Canada Inc – MIG; are injuries within the MIG; Onus on insured to prove injuries fall outside MIG; access to increased medical benefits denied
KP v Aviva Canada Inc, 16-000046
Date: September 1, 2016
Order made by: D. Gregory Flude, Vice-Chair
REASONS FOR DECISION
KP was injured in a car accident on March 19, 2015. She applied for and received medical and rehabilitation benefits under the Schedule. Aviva denied KP’s claim for medical benefits for physiotherapy and chiropractic treatment. The dispute over the medical benefit centres on the nature and extent of her injuries. KP submits that her injuries are extensive and that she is entitled to access a maximum of $50,000 of medical and rehabilitation benefits pursuant to s. 18(3) of the Schedule. Aviva takes the position that her injuries are predominately minor and that s. 18(1) caps medical and rehabilitation benefits at $3,500 for predominantly minor injuries. The $3,500 having been exhausted, Aviva takes the position that it has no further liability to KP. The resolution of this matter depends on the sufficiency of the medical evidence put forward by KP in support of her position.
- Did KP suffer predominantly minor injuries in the March 19, 2015 motor vehicle accident?
- If the answer to the above question is no, is Aviva liable to pay $249.95.
- KP suffered predominantly minor injuries, and
- KP is not entitled to the payment of the balance of $249.95.
Minor Injury Guideline:
The term “minor injury” is clearly defined in s. 3 of the and the Arbitrator referred to these terms collectively as “soft tissue injuries.” S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the Minor Injury Guideline (MIG). Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.
The Arbitrator noted that recent decisions have established that the onus of proving on a balance of probabilities that the minor injury provisions do not apply to her rest on KP. If the provisions are exclusionary, then Aviva would carry the onus of proving that the minor injury provisions applied. The Court held that the provisions were a limit of liability not an exclusion. Accordingly, KP carries the onus of establishing her entitlement to a higher level of coverage than the $3,500 for minor injuries.
Evidence and Analysis:
KP submitted the documents she relied on together with written submissions. No witness affidavits were submitted. The Insurance Company submitted only written submissions directed at the onus of proof carried by KP and the sufficiency of the evidence in meeting that onus.
The Arbitrator reviewed the medical evidence submitted and determined that there is no medical evidence that either ties any specific condition to the accident, or that indicates that any specific condition or symptom which KP listed is anything more than a soft tissue injury or a condition arising out of a normal lifestyle that arose independent of the accident.
The Arbitrator found no support for KP’s assertion for some medical conditions and nothing linking the others to the accident.
There is evidence that KP sustained an injury to her left shoulder several years prior to the accident while snowboarding and dislocated her left shoulder and suffered an undisplaced fracture. The existence of this prior injury was identified by KP’s treating physiotherapist when she submitted the first Treatment Confirmation Form dated April 13, 2015. Notwithstanding identifying this issue, the physiotherapist asserted that KP’s injuries fall within the MIG. KP submits that the information contained in this treatment plan is the requisite proof that her pre-existing condition is acting as a barrier to recovery.
The Arbitrator concluded that KP failed to prove on a balance of probabilities that the minor injury provisions do not apply to her.