Category: Minor Injury Guideline

Applicant v. Royal and Sun Alliance (17-003732)

The minor claimant sought entitlement to NEBs, and four treatment plans. The insurer argued that the claim for NEBs was time barred, and that the claimant’s injuries fell within the MIG. Adjudicator Hines held that the two year limitation period did not apply to the minor claimant until she hit the age of majority. She also held that the claimant’s mother was not deemed a litigation guardian by virtue of filling out SABS forms for the claimant. In terms of NEB entitlement, Adjudicator Hines held that the claimant failed to prove a substantial change in her life following the accident, and raised concerns about many inconsistencies in the claimant’s reporting. In terms of the medical benefits, Adjudicator Hines concluded that the claimant’s injuries were minor in nature, and that the treatment plans were therefore not payable.

Applicant v. Aviva Insurance Canada (17-002957)

The claimant sought entitlement to treatment outside of the MIG, attendant care benefits, medical benefits, the costs of three examinations, and a special award. After a review of the medical evidence, Adjudicator Anwar preferred the reports of the claimant’s specialists and held that the claimant’s injuries warranted treatment outside of the MIG. Adjudicator Anwar further concluded that the claimant was entitled to the medical benefits sought, as they were reasonable and necessary, but that attendant care benefits were not warranted nor were any expenses incurred.  Moreover, Adjudicator Anwar held that the insurer did not unreasonably withhold payments from the claimant to necessitate a special award.

V.A. v. Wawanesa Mutual Insurance Company (17-002948)

The claimant disputed his MIG status; entitlement to payment for treatment; entitlement to payment for examinations and completion of OCF-3s; and entitlement to IRBs. Adjudicator Sewrattan denied all of the claims. The claimant, allegedly suffering from chronic pain, failed to prove that he suffered from an injury not predominantly minor in nature. The expert reports relied upon by the claimant were scant in their descriptions of methodologies used to reach the diagnoses made. The claimant was self-employed at the material time and failed to provide an intelligible basis upon which IRB could be calculated. Although he may be entitled to an IRB, he failed to prove what the weekly rate of the benefit should be. As a result, Adjudicator Sewrattan held his IRB entitlement to be $0 per week.

F.H. v. Certas Direct Insurance Company (17-003735)

The claimant sought entitlement to treatment outside of the MIG, five treatment plans, and a special award. Adjudicator Sewrattan found that the claimant suffered from Chronic Post Traumatic Pain Syndrome and was entitled to treatment outside of the MIG. Adjudicator Sewrattan preferred the claimant’s expert report over the insurer’s, as the insurer’s report failed to address the claimant’s pre-existing carpal tunnel syndrome and the issue of chronic pain.  Adjudicator Sewrattan found that all of the treatment plans in dispute were reasonable and necessary. Adjudicator Sewrattan held that the claimant was not entitled to a special award as the insurer had not acted unreasonably.

Applicant v. Certas Home and Auto Insurance Company (17-005008)

The claimant sought removal from the MIG and one treatment plan. Adjudicator Kepman concluded that the claimant’s back spasm were clinically associated sequelae to a soft tissue injury, and that the claimant was therefore restricted to MIG-level benefits.

Tsalikis v. Wawanesa Mutual Insurance Company (2018 ONSC 1581)

The claimant had been denied benefits above the MIG limits and further IRBs. The Tribunal dismissed her application based on the medical evidence and based on a two day teleconference hearing. The claimant argued that a teleconference hearing was a breach of procedural fairness; that she was not aware the MIG would be addressed in the hearing; that the Tribunal failed to evaluate the medical evidence properly; and that the Tribunal violated the rule in Browne v. Dunn regarding the credibility of one of the claimant’s assessors. The Court declined to overturn the Tribunal’s decision and dismissed all of the grounds referred to by the claimant. The Court held that the claimant failed to request an audio recording of the hearing (which is required within 14 days of the hearing), and that without such evidence, the Court could not determine what transpired at the hearing. The Court held that the claimant should have known the MIG was in dispute by reason of her arguments seeking benefits above the MIG limits. The Court held that the Tribunal was entitled to rely upon the medical evidence it had before it, and to assign weight to different opinions as it saw fit. Finally, the Court noted that the rule in Browne v. Dunn did not apply to the Tribunal, and that even if it did, the parties could have addressed the issues with one doctor’s credibility in their written submissions.

N.M. v. Certas Home and Auto Insurance (17-002605)

The claimant sought removal from the MIG and entitlement to various treatment plans. Adjudicator Goela found that the claimant was subject to the $3,500 limit under the MIG. The Adjudicator found that the claimant did not provide evidence of a pre-existing injury that would prevent her from a full recovery if limited by the MIG. The Adjudicator elaborated on many factors that indicated that the claimant’s injuries were minor. She explained that the diagnostic imaging reports did not provide any data that could point to a physical cause for the claimant’s pain. Also, while the claimant had self-reported to her chiropractor that he was in sharp and constant pain, this self reporting could not be reconciled with other data that consistently noted that the claimant had a normal range of motion. Next, while a chronic pain specialist believed that the claimant suffered depression and PTSD, this specialist was not a psychologist, and so his opinion on the claimant’s psychological impairments was outside his scope of expertise. The Adjudicator found that the claimant’s injuries were minor because the claimant could continue her current employment, with tasks adapted at her own discretion. Finally, the Adjudicator found that claimant did not have a pre-existing injury that entitled her to benefits beyond the MIG limit, because she did not provide evidence of a pre-existing injury that would prevent her from a full recovery if limited by the MIG.

Y.M.Y. v. Certas Home and Auto Insurance Company (17-004982)

The claimant sought entitlement to a number of medical treatment plans and income replacement benefits. The insurer asserted the claimant failed to meet the disability test for IRBs and also asserted a MIG designation. Adjudicator Ian Maedel, on review of the medical evidence, concluded the claimant sustained predominately minor injuries. The claims for medical treatment plans were denied. Adjudicator Maedel also held that the claimant failed to provide meaningful medical evidence to justify the payment of income replacement benefits. All of the claims were dismissed. Of note, the claimant failed to arrive on one of the hearing dates to be examined and cross-examined. The failure to do so resulted in the insurer incurring court reporter fees. Accordingly, costs were awarded to the insurer in the amount of $250.00.

Applicant v. Aviva Insurance Canada (17-001414)

The claimant sought entitlement to NEBs, treatment outside the MIG and entitlement to seven treatment plans. Adjudicator Watt dismissed the claimant’s claim for NEBs and concluded that the claimant’s injuries fell within the MIG. As the claimant’s injuries were found within the MIG, Adjudicator Watt found that the disputed treatment plans were not payable. With respect to the claim for NEBs, Adjudicator Watt relied on the surveillance report, the claimant’s testimony and the medical reports filed to conclude that she did not meet the NEBs disability test. With respect to the MIG, Adjudicator Watt concluded that the claimant failed to submit any evidence that she had a pre-existing medical condition to prevent her from reaching maximum recovery under the MIG and concluded that her injuries fell within the MIG definition.

Applicant v. Aviva General Insurance (17-003539)

The claimant sought removal from the MIG and three medical benefits. Adjudicator Norris held that the claimant’s partial rotator cuff tear was an injury that fell within the MIG, and that the claimant’s pre-accident reports of back pain did not constitute pre-existing injuries that would prevent recovery under the MIG. He also concluded that the claimant had failed to prove that he suffered from chronic pain syndrome or psychological impairments as a result of the accident. All claims were dismissed.