Category: Minor Injury Guideline

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

Post author By tgp-admin
Post date March 6, 2018
No Comments on 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)

Post author By tgp-admin
Post date March 6, 2018
No Comments on 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)

Post author By tgp-admin
Post date March 2, 2018
No Comments on 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)

Post author By tgp-admin
Post date February 22, 2018
No Comments on 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)

Post author By tgp-admin
Post date February 16, 2018
No Comments on 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.

Applicant v. Certas Direct Insurance Company (17-003571)

Post author By tgp-admin
Post date February 14, 2018
No Comments on Applicant v. Certas Direct Insurance Company (17-003571)

The claimant sought entitlement to treatment outside of the MIG and to three treatment plans. Adjudicator Johal dismissed the claimant’s claim finding that her injuries fell within the MIG. As Adjudicator Johal concluded that the MIG applied, he held that he did not need to address whether the proposed treatment plans were reasonable and necessary.

Applicant v. Co-operators General Insurance Company (16-003821)

Post author By tgp-admin
Post date February 14, 2018
No Comments on Applicant v. Co-operators General Insurance Company (16-003821)

The claimant sought removal from the MIG and entitlement to four medical benefits. Adjudicator Makhamra accepted that the claimant suffered from a compression fracture caused by the accident, and from psychological impairments; the claimant was removed from the MIG. The adjudicator awarded all of the claimed medical benefits, as being reasonable and necessary.

Applicant v. TD Insurance Meloche Monnex (17-000640)

Post author By tgp-admin
Post date February 14, 2018
No Comments on Applicant v. TD Insurance Meloche Monnex (17-000640)

The claimant sought entitlement to NEBs, removal from the MIG, and two treatment plans. Adjudicator Neilsen first exclude one report submitted by the claimant because it was given to the insurer 10 days prior to the hearing. In terms of the benefits in dispute, the adjudicator concluded that the claimant failed to adduce sufficient evidence supporting a pre-existing condition, psychological impairments, or chronic pain. She noted that chronic pain was not the same as chronic pain syndrome, and that pain does not take a person out of the MIG unless it is functionally disabling. The adjudicator also concluded that the claimant did not suffer a complete inability to live a normal life.

Applicant v. Wawanesa Mutual Insurance Company (16-002633)

Post author By tgp-admin
Post date February 14, 2018
No Comments on Applicant v. Wawanesa Mutual Insurance Company (16-002633)

The claimant sought removal from the MIG and two medical benefits. The insurer argued that the claim was time barred. Adjudicator Maedel held that the claimant had applied to the LAT within 90 days of receipt of the FSCO Report of Mediator, and was therefore within the limitation period. He concluded that the claimant’s injuries were minor in nature and that the claimant’s evidence did not support removal from the MIG.

M.K. v. Aviva Insurance Company (17-003608)

Post author By tgp-admin
Post date February 13, 2018
No Comments on M.K. v. Aviva Insurance Company (17-003608)

The claimant sought entitlement to NEBs, removal from the MIG, and one treatment plan. The insurer argued that the claimant failed to attend an IE. Adjudicator Watt agreed that the claimant failed to attend a scheduled IE, and he therefore could not dispute his entitlement to the denied treatment plan. In terms of NEBs, the adjudicator held that the claimant failed to submit sufficient evidence supporting his claim (the claimant had returned to work, and made very few complaints to his family doctor). The claimant’s injuries were found to fall within the MIG.

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