Pre-existing injury removes applicant from MIG - Applicant v Wawanesa LAT 16-001732 2017 CanLII 81594 (ON LAT)

January 30, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Wawanesa LAT 16-001732 2017 CanLII 81594 (ON LAT)

Decision Date: November 21, 2017
Heard Before: Adjudicator Robert Markovits

MIG: evidence clearly shows applicant had a pre-existing injury; treatment beyond the MIG to achieve maximal recovery; applicant shows treatment plans are reasonable and necessary

The applicant was injured in a car accident on December 22, 2015. He applied for SABs to Wawanesa, however when they denied a claim for a medical benefit the applicant submitted an application to the LAT.

The dispute over the medical benefit centres on the nature and extent of the applicant’s injuries. The applicant submits that his injuries are extensive and that he is entitled to access a maximum of $50,000 of medical and rehabilitation benefits pursuant to the Schedule. Wawanesa takes the position that his injuries are predominately minor. According to Wawanesa, the applicant has exhausted the $3,500 and it has no further liability to the applicant. The persuasiveness of the applicant’s evidence to support his position is what will determine the resolution of this matter.

Issues in dispute

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, and if so, is there compelling evidence of a pre-existing condition that would limit his ability to recover if subject to the monetary limit for minor injuries?
2. If the injuries are found not to be minor or if there is compelling evidence that a pre-existing condition would limit his recovery if subject to the MIG, is Wawanesa liable to pay the following medical benefits:

i.        Is the applicant entitled to receive a medical benefit in the amount of $1,298.46 for chiropractic services in a treatment plan dated March 14, 2016?

ii.      Is the applicant entitled to receive a medical benefit in the amount of $1,197.00 for physiotherapy services in a treatment plan dated March 1, 2016?

iii.     Is the applicant entitled to receive a medical benefit in the amount of $3,473.60 for chiropractic services in a treatment plan dated April 4, 2016?

iv.     Is the applicant entitled to payments for the cost of examination, in the amount of $2,200.00 for psychological assessment in a treatment plan dated July 12, 2016?

v.      Is the applicant entitled to medical services in the amount of $2,188.88 in a treatment plan dated July 21, 2016?

vi.     Is the applicant entitled to interest in the amount of $210.00 on all overdue payments?

Result

The Arbitrator found on all of the evidence that:

1. There is compelling evidence of a pre-existing medical condition preventing the applicant from recovering within the minor injury treatment cost limits.
2. The treatment plans in dispute are reasonable and necessary. The psychological assessment is capped at $2,000.00.
3. The applicant is entitled to interest on all incurred overdue payments.

Analysis

It is the applicant’s view that the injuries he suffered are so significant that they fall outside of the MIG. He argues that his impairments remove him from the MIG for three reasons:

1. He had a pre-existing medical condition to his left elbow that was exacerbated by the accident.
2. As a result of the accident and the injuries sustained, he has developed features of chronic pain syndrome.
3. Because of the accident, he has developed psychological impairments. These impairments are not captured within the definition of the MIG and therefore are not considered minor.

Wawanesa’s view is that the applicant has failed to demonstrate with compelling evidence that the treatments available to him within the MIG have prevented him from achieving maximal recovery. Wawanesa maintains that:

1. The applicant’s impairments are soft tissue injuries and his pre-existing condition was not worsened by the accident.
2. The insurer’s orthopaedic and psychological examinations concluded that the applicant’s pre-existing elbow impairment would not prevent him from reaching maximum medical recovery if treated with the monetary limit benefits allowed in the MIG.

The first question that must be answered is whether the impairments sustained are minor injuries subject to treatment within the MIG. If they are within the MIG then all the other issues in dispute need not be dealt with.

The Arbitrator reviewed the law and the definition of Minor Injury. He noted that notwithstanding that the injuries are minor, treatment may not fall within the MIG if:

i.        The insured person has a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii.      The pre-existing condition will prevent the insured person from achieving maximal recovery from the minor injury if subjected to the MIG limit.

A health care professional must provide compelling evidence to demonstrate the two criteria mentioned.

The Arbitrator considered all the documents and arguments made by both parties. There is no dispute that the applicant had a pre-existing medical impairment to his left elbow. The applicant is left handed. There is no dispute that prior to the accident, the applicant had limitations to his elbow but managed to cope with the impairment and found ways to compensate for it.

On the basis of the medical evidence he concluded that the applicant is outside of the MIG limitations because of his pre-existing condition, and that there is no need for to separately evaluate if his impairments take him out of the MIG because he is suffering from chronic pain syndrome or for psychological impairments.

The Arbitrator then reviewed whether the treatments were reasonable and necessary. Based on the evidence provided the Arbitrator determined that the treatment and assessment plans are reasonable and necessary, and the applicant is entitled to the benefits in dispute.

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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 at 1-519-742-7774.

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.