October 25, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
CF and Aviva 16-002373 v Aviva Insurance Canada, 2017 CanLII 59512 (ON LAT)
Date of Decision: September 11, 2017
Heard Before: Adjudicator Avvy Go
MIG: applicant fails to prove injuries fall outside of MIG; applicant fails to prove pre-existing injuries worsened; applicant makes application for benefits beyone two-year timeline
C.F. was injured in a car accident on January 3, 2014, and applied to LAT seeking benefits denied by Aviva. Aviva approved C.F.’s claim for physiotherapy treatment but did not pay C.F. on the basis that collateral benefits were received or available to C.F. through an extended health provider’s program provided by his wife’s former employer. Aviva denied C.F.’s claim for all other benefits on the basis that the claimant’s injures fell within the Minor Injury Guideline (“MIG”).
- Are C.F.’s injuries within the MIG as defined in the Schedule, subject to a treatment cap of $3,500.00?
- Is C.F. entitled to receive a medical benefit in the amount of $1,165.00 for physiotherapy services in a treatment plan dated February 18, 2014?
- Is C.F. entitled to interest on any overdue payment of benefits?
- That C.F. suffered predominantly minor injuries; and
- C.F.’s claim for the $1,165.00 for physiotherapy services is dismissed as it was brought after the expiration of the limitation period set out in the Schedule.
The MIG is clearly defined in the Schedule which 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 MIG. 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 reviewed the evidence and noted C.F. has the burden of proving that his injuries fall outside of the minor injuries guideline. Specifically, C.F. has the burden of showing that the injuries are not what are commonly known as “soft tissue injuries”. While the medical reports provided by C.F. list a number of conditions and symptoms that C.F. appears to have, the Arbitrator found that there is no medical evidence that either ties any specific condition to the accident, or indicates that any specific condition or symptom 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 C.F.’s injuries as indicated in the medical reports are predominantly minor injuries.
C.F. submitted that his pre-existing injuries were worsened by the accident. He submitted that three to four years prior to the accident, he sustained a workplace injury which resulted in lower back pain, for which he received chiropractic and massage treatment for several months.
Aviva submitted that no health practitioner has provided any compelling, documented evidence that C.F. had any pre-existing condition before the accident and that such condition would prevent him from achieving medical recovery from the minor injury. The Arbitrator agreed. Other than a written statement provided by C.F., there was no documented medical evidence to substantiate C.F.’s claim about his prior condition or its impact on his post-accident recovery.
C.F. has not provided compelling evidence of the presence of any pre-existing condition that will take him out of the minor injuries guideline.
Finally, C.F. submitted that Aviva had failed to advise C.F. of any additional medical information which they required in order to reconsider their initial denial, and failed to require C.F. to undergo an examination under s.44 of the Schedule. C.F. relied on case law to suggest that while the ultimate legal burden of proof remains on the insured person, the secondary, tactical or evidentiary burden can shift between the parties depending on the proposition to be proven.
The Arbitrator was not persuaded by C.F.’s argument in this respect nor do he find the case law or the statute supports his position. As noted above, case law has confirmed that the onus to establish entitlement to a higher level of coverage than the $3,500.00 limit falls on C.F.. Further, the statute does not mandate the insurance company to require an insured person to undergo an examination before denying benefits based on MIG.
By a letter dated February 24, 2014, Aviva agreed to pay pre-approved treatment for up to $2,200.00 in treatment from Ajax Rehabilitation Centre. Aviva did not pay C.F. the said amount for the physiotherapy services because at the time the services were rendered C.F. was covered by his wife’s workplace extended health benefits program under Sunlife. The Centre confirmed in an email dated February 7, 2017 to Aviva that there is an outstanding balance of $1,165.00 with respect to C.F.’s treatment. Aviva submitted that they are not liable to pay for this because of C.F.’s continual failure to provide salient information, namely, information from Sunlife. As such, Aviva submitted that the denial to pay the $1,165.00 is justified by s.33(1)1 and 33(6) of the Schedule and that the issue is statute-barred pursuant to s.55 of the Schedule. Aviva further submitted that the time period to dispute the sum of $1,165.00 for any unincurred physiotherapy treatment has expired
On this basis the Arbitrator found C.F. has filed his claim after the expiration of the limitation period.