March 29, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant v Certas Direct Insurance Company, LAT 16-004675 2018 CanLII 2305
Date of Decision: January 8, 2018
Heard Before: Adjudicator Chris Sewrattan
MIG: the applicant does not establish that her injuries fall outside the MIG; insurer has no need to consider whether psychological issues fall outside of MIG as there are not psychological issues diagnosed.
The applicant was involved in a car accident on April 18, 2015. She applied for accident benefits pursuant to the SABs but when Certas denied benefits the applicant applied to the LAT for arbitration.
- Did the applicant sustain injuries that fall within the and are subject to a $3,500.00 cap on treatment?
- Is the applicant entitled to a $2,825.00 cost of examination for a general practitioner’s assessment, recommended in a Treatment Plan dated November 23, 2015?
- Is the applicant entitled to receive a $2,932.71 medical benefit for psychological services, recommended in a Treatment Plan dated November 23, 2015?
- The injuries sustained as a result of the accident fall within the MIG. The applicant is not entitled to payment for the general practitioner’s assessment or psychological services. The benefits are not reasonable and necessary, nor are they automatically payable as a function of the Schedule.
The term ‘minor injury’ is well defined in the schedule. The onus is on the applicant to prove their injuries fall outside the definition. The applicant submits that the MIG does not apply because she suffers from an injury that is not predominantly minor. She submits that she suffers from (1) a psychological impairment and (2) chronic pain syndrome, either of which are in her opinion considered more than a predominantly minor injury.
The applicant’s claim of a psychological impairment is based on a psychological assessment conducted on September 22, 2015, almost five months after the accident. The assessment fails to demonstrate that the applicant suffers from a psychological impairment of any sort. All that the assessment tells is that as a result of the accident, the applicant reports suffering from accident related psychological symptoms. The assessor did not conduct any psychometric tests, nor did she provide a cogent analysis of the applicant’s self-reported difficulties.
Certas commissioned a psychological assessment on December 22, 2015 in which the doctor conducted a number of psychometric tests, among other methods of analysis. In a report dated January 20, 2016, Dr. Goodman concluded that the applicant does not suffer from a psychological impairment as a result of the motor vehicle accident.
The applicant challenges the soundness of this analysis because the doctor did not consider whether the applicant suffers from a psychological impairment that falls within the MIG. The challenge is misplaced. There was no need to consider this issue because there was no finding that the applicant suffers from a psychological impairment as a result of the accident.
The applicant claims that she suffers from chronic pain syndrome, which according to her is not a predominantly minor injury. She bases her claim on several medical reports. The first report by a family doctor concluded that the applicant appears to be “developing features of chronic pain” and recommended her removal from the MIG and referred her to a chronic pain management physician. The chronic pain doctor provided a medical note dated March 22, 2017 further recommending physiotherapy, chiropractic treatment, acupuncture, massage therapy, and participation in a chronic pain rehabilitation program.
The Adjudicator noted that the documents created are not sufficient proof of chronic pain syndrome. None of them provide a diagnosis of chronic pain syndrome. The law requires the applicant to prove that she suffers from chronic pain syndrome on a balance of probabilities.
On this basis the Adjudicator is satisfied the applicant suffers from a psychological impairment or a physical injury that is not predominantly minor. The applicant also failed to show that the request treatment plans are either reasonable or necessary. Those are denied as well.