Category: Minor Injury Guideline

Applicant v. Aviva Insurance Company of Canada (17-004147)

The claimant sought removal from the MIG and entitlement to IRBs and various medical benefits. The insurer argued that the claimant failed to attend an IE, which barred payment of further IRBs. Adjudicator Norris concluded that the claimant did not suffer pre-existing conditions that would prevent recovery under the MIG and that the claimant did not suffer psychological injuries in the accident. He also held that the claimant was not entitled to further IRBs, and that the claimant’s non-attendance at an IE without reasonable explanation barred payment of IRBs for the period of non-compliance.

I.K. v. Coseco Insurance Company (17-004897)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to medical benefits proposed in five treatment plans. The claimant argued that he should be removed from the MIG due to psychological impairments, chronic pain, and pre-existing migraines and left wrist/arm pain. Adjudicator Boyce found that pursuant to s. 55(1)2 of the SABS the claimant was statute barred from claiming entitlement to a s. 25 psychological assessment for failure to attend an IE assessment. Adjudicator Boyce found that claimant’s impairments were within the MIG and dismissed the application.

Applicant v. Wawanesa Mutual Insurance (17-002589)

The claimant sought entitlement to various medical benefits outside of the MIG. Adjudicator Sohal found that the claimant was outside of the MIG due to a pre-existing back injury that would prevent her from achieving maximal recovery if she were subjected to the MIG limits. The claimant had had three back surgeries prior to the accident. The claimant was found entitled to all of the medical benefits in dispute.

Applicant v. Aviva Insurance Canada (17-005667)

The insurer denied a number of treatment plans and costs of three assessments based on its finding that the claimant’s injuries fell within the MIG. Adjudicator Boyce found that the claimant suffered from chronic pain which entitled him to treatment beyond the MIG. All of the medical benefits for physiotherapy were found reasonable and necessary. The claimant’s evidence showed that his chronic pain caused functional impairment based on its severity and persistence, which affected his daily and work life over two years post-accident. Adjudicator Boyce went on to hold that the claimant was entitled to the cost of an impairment assessment but not the costs of examinations for in-home assessments or psychological assessments as they were not reasonable or necessary.

Applicant v. Aviva Insurance Company of Canada (17-005179)

The insurer denied medical benefits for physiotherapy, the cost of an orthopedic assessment, and the cost of a chronic pain assessment based on its finding that the claimant’s injuries fell within the MIG. The insurer also terminated the claimant’s income replacement benefit approximately nine months after the accident on the recommendations made in three IE reports. The claimant disputed the termination. Adjudicator Norris held that the claimant sustained a minor injury and therefore was not entitled to the medical benefits in dispute. He also found that claimant was not entitled to any additional income replacement benefits. Adjudicator Norris was compelled by the insurer’s expert evidence, which was more recent than the applicant’s evidence, and found that the insurer’s evidence outweighed the claimant’s evidence because the claimant had not provided any expert evidence or evidence from a family physician.

S.S. v. Aviva Insurance Canada (17-005998)

The insurer denied the claimant’s entitlement to medical benefits for chiropractic treatment based on its finding that her injuries fell within the MIG. Arbitrator Grant held that the claimant’s injuries fell within the MIG. As such, the claimant was not entitled to the medical benefits in dispute. Arbitrator Grant noted that while the clinical notes of the claimant’s family physician stated that she suffered from ongoing chronic pain, there was no indication that any objective testing was performed to inform the doctor’s opinion. There must be clear, objective evidence, obtained through diagnostic testing that concludes a person suffers from chronic pain and no such objective evidence was advanced by the claimant in this matter.

Applicant v. Aviva Insurance Canada (17-005672)

The insurer denied entitlement to medical benefits for chiropractic services and the cost of a psychological assessment based on its finding that the claimant’s injuries fell within the MIG. Adjudicator Kepman held that the claimant’s injuries fell within the MIG and therefore the treatment plans at issue were not payable. The claimant argued that a knee injury excluded her from the MIG; however Adjudicator Kepman found there was no evidence of that injury in the medical records until two years after the accident and therefore no causal connection could be found between the accident and the injury.

Applicant v Aviva Insurance Canada (17-004824)

The claimant argued that she was diagnosed with a psychological impairment and chronic pain syndrome which did not fall within the MIG and appealed the insurer’s denial of physiotherapy treatment, costs of examinations, out of pocket expenses, and interest on overdue amounts. Adjudicator Létourneau held that the claimant had chronic neck pain which fell within the MIG as soft tissue sprains, strains or other minor injuries, which limited the insurer’s liability to $3,500. Adjudicator Létourneau held that the claimant’s evidence did not show a psychological impairment caused by the accident. The evidence showed that PTSD had been ruled out and the claimant’s anxiety had often been caused by school, her family, and situational causes. With regard to chronic pain, Adjudicator Létourneau held that the evidence only referenced sequelae of soft tissue strains, sprains or whiplash, and there was no diagnosis of or reference to chronic pain syndrome.

N.F. v. Aviva Insurance Canada (17-000456)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s failure to include a police report was not fatal to his application to the Motor Vehicle Accident Claims Fund. Executive Chair Lamoureux upheld the Tribunal’s decision. Despite an application being incomplete, section 32 triggered the insurer’s responsibility to determine whether a benefit was payable. Executive Chair Lamoureux referred to legislation and jurisprudence regarding priority disputes when concluding that applications could be considered complete if they were functionally adequate for their legislated purpose. Executive Chair Lamoureux further held that the insurer was precluded from taking the position that the MIG applied and that the disputed treatment plans were automatically payable. However, the claimant’s application for NEBs was dismissed for a lack of evidence establishing entitlement.

Applicant v. Unifund Assurance Company (17-004690)

The claimant first applied for accident benefits five and a half years after the accident. The insurer did not indicate that the claim was being denied due to its lateness. Once a LAT application was filed, the insurer argued that the claimant was not entitled to claim accident benefits because of the delay in application. Adjudicator Kershaw held that the insurer could not rely upon the late application argument because it had not communicated that position to the claimant from the time she first applied. In terms of the benefits in dispute, the claimant was removed from the MIG due to non-compliance with section 38, and a physio treatment plan was awarded. A psychological treatment plan was denied because the claimant provided no evidence of ongoing psychological injury.

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