January 26, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
D.J. v Aviva Insurance Canada – Do injuries fall outside the MIG; burden of proof on insured to show injuries fall outside of MIG; burden of proof on insured to show treatment is reasonable and necessary; Insured’s injuries fall outside MIG but cost of treatments are not reasonable and necessary; cost of disability certificate denied
D.J. v Aviva Insurance Canada
Date of Decision: November 29, 2016-11-29
Heard Before: Adjudicator Jeanie Theoharis
DECISION AND ORDER
D.J. was hurt in a car accident on October 26, 2013. D.J. suffered both physical and psychological impairments. Her physical impairments were primarily to her neck, shoulders, back and ankle. However, following the accident, D.J. did exhibit psychological impairments including depression, isolation, and anxiety. D.J. attended and was treated at the Pain Rehabilitation Clinic Inc. She currently has eight outstanding invoices with the Clinic. Aviva denied the treatment plans and has not paid any of the invoices. D.J. applied for dispute resolution services to the LAT pursuant the Schedule.
D.J. submits that the treatment plans, and disability certificates should be approved because her injuries fall outside the MIG and the treatment sought is reasonable and necessary.
Aviva submits that the injuries are minor and fall under the MIG, and the treatment plans are not reasonable or necessary.
The Arbitrator noted that pursuant to the law D.J. bears the onus to establish on a balance of probabilities that her injuries fall outside the MIG. The MIG establishes a framework for the treatment of minor injuries. The objectives of the MIG are to provide individuals with faster access to rehabilitation, improve health care resources, provide certainty around cost and payment to the parties, and be more inclusive in providing treatment for those who have minor injuries. The focus is on the application of a functional restoration approach. The term “minor injury” is defined in the.
Aviva submits that the burden of proof is with D.J. to establish entitlement to the appropriate level of benefits.
The Arbitrator found that D.J. has the burden of proof to establish that her injuries fall outside of the MIG, to show her accident-related injuries are not predominantly minor, and as such fall outside of the MIG.
The Arbitrator reviewed the evidence and the law and determined that D.J. has established her injuries fall outside the MIG.
The Arbitrator then reviewed the treatment plans and medical evidence presented and found that none of the treatment plans were reasonable or necessary.
The Arbitrator then reviewed the cost of assessments and disability certificate and determined that one assessment was required but the cost was capped in the regulation. The Arbitrator ordered the insurer pay the maximum of $2000 allowed per assessment. The Arbitrator did not find that D.J. established an entitlement to a disability certificate.