Onus on insured to show that injuries outside the MIG.
August 02, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Arbitrator Barry S. Arbus, Q.C.
Date of Decision: May 14, 2014
Julia Lo-Papa was injured in a car accident on October 10, 2010. She was a passenger in the car wearing her seatbelt. She suffered pain to her spine and her head, and currently suffers from headaches, lower back pain, leg pain, and is moody, anxious, and depressed.
She applied for and received statutory accident benefits from Certas payable under the Schedule. The Insurer paid benefits up to the limits of the Minor Injury Guideline (MIG) Cap of $3,500, and then refused additional funding for further treatment plans and. Ms. Papa claims that her injuries fall outside the Minor Injury Guideline Cap of $3,500 and that she is entitled to further benefits.
The issues in this Hearing are:
Is Ms. Lo-Papa subject to the Minor Injury Guideline Cap of $3,500?
If she is entitled to further benefits, is she entitled to funding for the treatment plans and assessments in dispute?
Ms. Lo-Papa, is subject to the Minor Injury Guideline Cap of $3,500
Ms. Lo-Papa is not entitled to funding for the treatment plans and assessments in dispute.
The parties delivered an Agreed Statement of Facts and a Joint Document Brief. Both parties relied on their own medical expert evidence. The onus of proof fell upon Ms. Lo-Papa to establish her injuries fall outside the MIG, and that she is therefore entitled to further benefits.
Arbitrator Arbus reviewed Director’s Delegate Evans statements which succinctly reviewed the law. It is clear in establishing the guidelines for determination of minor injury and the benefit limits. When Arbitrator Arbus reviewed Ms. Lo-Papa’s medical reports it was clear that the physician did not opine whether her anxiety and depression were sufficient to remove her injuries from the Minor Injury Guideline.
Arbitrator Arbus reiterated that Section 38 of the Schedule states that in order to show that the MIG does not apply, the Insured must provide a treatment and assessment plan completed and signed by a regulated health professional stating that the Insured Person’s impairment is not predominantly a minor injury. As Ms. Lo-Papa failed to satisfy the test of removing the injuries from the MIG, she has not met the burden of proof required and thus is subject to the Minor Injury Guideline Cap of $3,500.
|Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Fractures, Minor Injury Guidelines, Pain and Suffering, Paraplegia, Slip and Fall Injury, Treatment
View All Posts
About Deutschmann Law
Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.
It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.