Category: Minor Injury Guideline

Marsh v. Allstate Insurance Company of Canada (20-002936)

The claimant sought removal from the MIG and entitlement to various treatment plans. The insurer argued that the claimant was barred from claiming accident benefits due to section 61 of the SABS. The claimant was employed as a personal support worker at the time of the accident, and was driving from one client to another client when the accident occurred. The claimant filed a Form 7 with the WSIB stating that she intended on making a claim through her auto insurance. The claimant submitted an OCF1 to the insurer, and did not complete a WSIB election form. Counsel for the claimant wrote to WSIB six months after the accident stating that she intended on suing the at-fault driver. A statement of claim was issued five months after that. The insurer argued that the claimant was claiming accident benefits without the primary intention of seeking damages from the third party. Adjudicator Hines rejected the insurer’s arguments, and found that the claimant did intend on pursuing a court action against the third party, and the insurer could not show that the tort claim was frivolous or invalid. Adjudicator Hines did not find the timing of the claimant’s statement of claim issuance to be suspect, as it was commenced within one year of the accident. As to the benefits in dispute, Adjudicator Hines concluded that the claimant suffered a predominantly minor injury, and dismissed the claimed medical benefits.

Abadicio v. Economical Insurance Company (20-000099)

The claimant sought removal from the MIG and entitlement to three assessments. The insurer sought repayment of $7,120 in IRBs. Adjudicator Farlam held that the claimant failed to prove that she did not suffer a minor injury. She also concluded that the insurer was entitled to repayment of IRBs. The claimant had returned to work October 25, 2017 (one month after the accident) but did not notify the insurer until early 2018. There was no evidence that the claimant communicated the return to work at an earlier date, despite having a clear duty to advise the insurer. Adjudicator Farlam concluded that the claimant willfully misrepresented his work status while continuing to collect IRBs even though he no longer met the disability test. The insurer’s notice complied with section 52 even though the initial quantum of repayment increased later as more information became available. Additionally, the one year limitation on repayment did not apply, as the claimant made a willful misrepresentation regarding work status.

Shpati v. Travelers Canada (19-008988)

The claimant disputed the insurer’s determination that her injuries fell within the MIG, as well as her entitlement to various medical/rehabilitation benefits. The claimant made no submissions and made no reference to any evidence of a non-MIG injury, but rather made a broad claim that all of the insurer’s denials failed to comply with section 38 of the SABS. Adjudicator Norris dismissed the application, as the claimant failed to make a direct reference to any specific denial or document to support her position. He went on to note that in any event, the claimant had not proven that she incurred the goods and services in dispute, which she was required to do if she wished to claim entitlement due to the insurer’s failure to comply with section 38.

Abou Hussini v. Travelers Insurance (19-002005)

The claimant sought entitlement to IRBs, removal from the MIG, and various medical benefits. Adjudicator Reilly dismissed all the claims. She held the claimant failed to prove that his accident-related injuries were non-minor, or that she suffered a pre-existing condition that would prevent maximal recovery under the MIG. She found that the allegations of chronic pain, concussion, and psychological impairment were not proven. Similarly, Adjudicator Reilly held that the claimant did not suffer a substantial inability to complete the tasks of his pre-accident employment. The claimant continued to work as an Uber driver for almost one year after the accident. He also started a new business during COVID.

Nelson v. Travelers Insurance Company of Canada (19-012673)

The claimant sought entitlement to ongoing IRBs, removal from the MIG, and four treatment plans for physiotherapy and two assessments. Vice Chair McGee dismissed the claims. She held that the claimant failed to prove that she suffered from a non-minor injury. Her alleged chronic pain was not serious enough to qualify as non-minor. The claimant did not use medications, she returned to college within a few months of the accident, and she was largely independent with personal tasks and chores. The claimant also did not meet the IRB disability test. She returned to college shortly after the accident after quitting her job so that she could upgrade her credentials. She planned on returning to college before the accident occurred. The claimant did not look for a job while in college because she did not believe she could handle both a job and her studies. After graduating from college, the claimant’s inability to find employment was due to COVID rather than any physical impairment. Finally, Vice Chair McGee held that even if the claimant met the IRB disability test, she would not be entitled to claim IRBs until her completed election was submitted, as the OCF-3 supported both IRB and NEB.

F.C. v. Aviva General Insurance (19-003936)

The claimant disputed her MIG determination and her entitlement to medical benefits. In regard to the MIG, Adjudicator Moten found the claimant’s prior injury to her coccygeal region prevented maximal recovery if she were limited to the $3,500 minor injury limits. Adjudicator Moten also found there was compelling evidence in the claimant’s health practitioners’ medical records to support that her pre-existing injury prevented from reaching maximum recovery under the MIG even though none of the evidence explicitly stated that conclusion. In regard to the disputed treatment plans for chiropractic treatment, Adjudicator Moten determined the claimant had satisfied her onus the proposed treatment was reasonable and necessary and she was entitled to payment of those treatment plans along with interest. However, Adjudicator Moten found the claimant had not shown the treatment plan for a psychological assessment was reasonable and necessary.

C.P. v Aviva Insurance Canada (18-004460)

The claimant applied to the LAT seeking a determination that his accident-related impairments were outside of the MIG and entitlement to two treatment plans for medical benefits. A hearing was held in August 2019. Several months later, the LAT was informed that the claimant had passed away. At a subsequent teleconference hearing, the insurer argued that the claimant’s passing rendered the LAT proceeding moot. The deceased claimant’s estate argued that it required a decision on the interest in dispute, and that a decision from the LAT would assist the claimant’s estate in pursuing a tort claim. Adjudicator Mazerolle found that the question of MIG determination was not moot as it was possible that the LAT could find that benefits in dispute were deemed incurred pursuant to s. 3(8) of the SABS. Adjudicator Mazerolle then found that the claimant was within the MIG, and the benefits in dispute were not deemed incurred. The interest in dispute was found not payable, as there was no OCF-21 detailing incurred services and no other evidence that a payable amount was overdue.

Thomas v. Coseco Insurance Company (20-001397)

The claimant applied to the LAT seeking a determination that her accident-related impairments were outside of the MIG and entitlement to psychological and chronic pain assessments. The insurer argued the claimant was barred from proceeding with the application for MIG determination as the issue had already been adjudicated and decided by the LAT in a previous application. Adjudicator Lake found that the doctrine of res judicata applied, and the claimant was barred from seeking a determination on whether her impairments were outside of the MIG. The application was dismissed.

Jeevakumaran v. Unifund (20-001025)

The claimant sought to be removed from the MIG and entitlement to medical benefits. Adjudicator Mazerolle concluded that the claimant established that he suffered from an accident-related psychological impairment. As such, he was no longer held to the funding and treatment limits of the MIG and s. 18(1) of the Schedule. Adjudicator Mazerolle found that the totality of the records established that psychological symptomology had affected some aspects of the claimant’s daily life. The medical benefits at issue were a psychological assessment, psychological services, and physical therapy. While Adjudicator Mazerolle accepted that the claimant suffered from a psychological impairment, he did not find that the proposed psychological services were payable, due to s. 47(2) of the Schedule. Once the insurer introduced the possibility of the claimant accessing publicly funded therapy through OHIP, the onus shifted to the claimant to rebut this proposition. What is more, the insurer supported this assertion by filing an information sheet from the Centre for Addiction and Mental Health (CAMH) that listed a number of publicly funded clinics and service providers—evidence that this treatment was (in the words of s. 47(2)) “reasonably available to the insured person”. However, Adjudicator Mazerolle could not draw the same conclusion about s. 47(2) for the psychological assessment, as there is no indication whether a similar service was “reasonably available” to be paid through OHIP. Therefore, Adjudicator Mazerolle found the psychological assessment to be payable by the insurer. Finally, Adjudicator Mazerolle was not satisfied that the physical therapy services were necessary for the claimant’s recovery as there was evidence that physical therapy was no longer assisting the claimant with his accident-related impairments.

Ramlal v. Aviva General Insurance (19-011325)

The claimant sought to be removed from the MIG and sought entitlement to three treatment plans and the cost of an orthopaedic assessment. Adjudicator Hines concluded that the claimant sustained a minor injury, but was entitled to payment for the disputed treatment plans if they had been incurred prior to receiving proper notice from the insurer denying the benefits. Adjudicator Hines found that the insurer failed to provide adequate medical and other reasons for denying the treatment plans because the insurer’s denial of the treatment plans failed to refer to the claimant’s medical condition. Further, the notices did not state that the MIG applied, which is mandatory under section 38(9). In addition, the insurer failed to reference any medical records that it had received or to request additional medical records. Finally, Adjudicator Hines agreed with the arbitrator’s interpretation in Ferawana v. State Farm, that whether the treatment plans are reasonable and necessary is irrelevant to whether the mandatory payment consequence of section 38(11)(2) applies. Adjudicator Hines also agreed that nothing in the Schedule relieves an insurer of its liability from the mandatory payment provision on the basis that a treatment plan is not reasonable and necessary.