Category: Minor Injury Guideline

Applicant v. Aviva General Insurance (17-006537)

The claimant sought entitlement to various treatment plans, IRBs and dental treatment. The insurer raised section 33 and 55 defences due to the claimant’s failure to provide requested information and attend IEs. Adjudicator Ferguson held that the claimant was barred from seeking IRBs and dental treatment for failing to provide dental records, invoices, an OCF-10, income tax returns, and post-accident income information requested per section 33. The adjudicator held that there was no legal basis for the claimant’s argument that as long as best efforts are made under s. 33, the claim moves forward. The adjudicator also held that the claimant’s appeal for other goods and services of a medical nature was barred per section 55. The claimant’s reason for non-attendance was that her psychological and pain-related impairments prevented her from leaving her house, which was not supported with any evidence and the insurer had surveillance showing her participating in various ADLs outside of her house. The adjudicator denied various treatment plans due to lack of medical evidence, but found the balance of a chiropractic treatment plan payable as the insurer only denied the treatment plan based on the MIG, and was not allowed to rely on the MIG position after covering psychological treatment.

S.T. v. Certas Direct Insurance Company (17-005871)

The claimant applied to the LAT seeking a finding that his injuries fell outside the MIG, and seeking entitlement to physiotherapy and a chronic pain assessment. Adjudicator Kepman held that the claimant’s diagnosis of chronic pain fell outside of the MIG. The claimant suffered from pre-existing shoulder pain 2 months pre-accident, which was exacerbated by the accident. While the insurer’s IE assessor found that the claimant’s injuries were within the MIG, the adjudicator focused on the assessor’s findings that the claimant continued to experience pain 2.5 years post-accident and was participating in various treatment to address the complaints, including steroid injections and physiotherapy. The adjudicator found the proposed chronic pain assessment reasonable and necessary but did not find the proposed physiotherapy reasonable and necessary as the claimant had received similar treatment in the past which was noted as not being helpful.

Applicant v. The Personal Insurance Company (17-007961)

The claimant applied to the LAT seeking a finding that his injuries fell outside the MIG, and seeking entitlement to various treatment plans. Adjudicator Driesel held that the claimant’s injuries fell within the MIG and he was therefore not entitled to the various treatment plans. The claimant sustained soft-tissue injuries to his back, shoulders, and knee. The adjudicator held that the claimant did not have a pre-existing condition that would take him outside the MIG. Despite the claimant having pre-existing right shoulder tendinopathy and possibly a skull hairline fracture, the adjudicator held that there was no medical opinion that explained how the pre-existing conditions were impacted by the MVA nor how the pre-existing conditions would prevent maximal recovery under the MIG. The adjudicator also held that the claimant did not have a psychological impairment, due to a lack of evidence. The claimant argued that the insurer was estopped from a MIG argument as it approved treatment beyond $3,500. The adjudicator held that treatment had not been approved beyond the MIG limit, as a previously approved treatment plan was transferred to a new clinic before the approved amount had been fully incurred.

Applicant v. TD Home & Auto Insurance Company (17-006571)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to benefits proposed in 12 treatment plans. The claimant relied on a chiropractor’s diagnosis of depressive symptoms, PTSD, and a chronic pain condition. Adjudicator Grant placed very little weight on the chiropractor’s findings as the psychological diagnosis was beyond the chiropractor’s area of expertise and the chiropractor did not provide guidance on how the chronic pain “condition” (as opposed to chronic pain “syndrome”) lifted the claimant outside of the MIG. Adjudicator Grant found that the claimant did not provide compelling evidence that his pre-existing degenerative changes in the lumbar spine were worsened by the accident or that his recovery was impeded by the pre-existing condition. Adjudicator Grant found that the claimant’s injuries fell within the MIG and that the treatment plans in dispute were not payable as the MIG limits had been exhausted.

A.H. v. Aviva Insurance Canada (17-006373)

The claimant sought a determination that her impairments were outside of the MIG and entitlement to benefits proposed in one treatment plan. The respondent submitted that the claimant failed to provide any evidence to support her allegations of chronic pain and failed to comply with a case conference order to produce medical documents. The claimant submitted that a lack of financial resources prevented her from seeking treatment for her condition. Adjudicator Driesel found that there was no evidence the claimant went to her family doctor about chronic pain. Adjudicator Driesel found that the claimant’s injuries fell within the MIG and that the treatment plan in dispute was not payable as the MIG limits had been exhausted.

Applicant v. Certas Home and Auto Insurance Company (17-006892)

The claimant sought a determination that her impairments were outside of the MIG and entitlement to benefits proposed in one treatment plan. Adjudicator Mazerolle found that the claimant’s injuries fell within the MIG and that the treatment plan in dispute was not payable as the MIG limits had been exhausted.

Applicant v. Certas Home and Auto Insurance Company (17-000513)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to benefits proposed in two treatment plans. Adjudicator Punyarthi found that the claimant’s injuries fell within the MIG and that the treatment plans in dispute were not payable as the MIG limits had been exhausted. Adjudicator Punyarthi decided not to consider the issue of the timing of the insurer’s denial letters as this issue was raised for the first time in the claimant’s reply submissions, and the respondent did not have an opportunity to reply to the submissions.

Applicant v. Aviva General Insurance Company (17-006163)

The claimant sought removal from the MIG and entitlement to four treatment plans. Adjudicator Johal concluded that the claimant sustained a predominantly minor injury, and that the claimant did not provide sufficient evidence of a pre-existing condition that would prevent maximal recovery under the MIG.

Zheng v. Aviva Insurance Company of Canada (2018 ONSC 5707)

The insurer applied for judicial review of the Tribunal’s decision that a denial of medical benefits that did not comply with section 38 resulted in the treatment plan being payable and barring the insurer from relying on the MIG. The court found the Tribunal’s decision to be reasonable and concluded that the treatment plans were deemed payable until a proper denial was issued by the insurer. However, the court wrote that its decision was limited to the treatment plans at issue and that section 38(11) did not impose a permanent prohibition on the insurer with respect to whether the claimant’s impairment was covered by the MIG or subject to the $3,500 limit.

Applicant v. Unifund Assurance Company (17-006328)

The claimant sought removal from the MIG and two medical benefits. Adjudicator Ferguson held that the claimant suffered from a chronic pain condition which removed him from the MIG. He relied upon the claimant’s ongoing functional impairments, and the claimant’s ongoing pain complaints. He also awarded the claim for further physical therapy, but denied the claim for psychological treatment.