Category: Minor Injury Guideline

Applicant v. TD General Insurance Company (16-000134 and 16-000646)

Executive Chair Lamoureux was asked to reconsider two decisions in which the claimant was found MIG and found not entitled to NEBs. The applicant argued that “the entirety” of his evidence was “not considered at all.” Similarly, in his request for reconsideration of NEBs the applicant argued that his “evidence was not considered at all or put before the [Tribunal].” Executive Chair Lamoureux rejected both requests for reconsideration, noting that the adjudicator had considered evidence submitted by both parties, and that there was no requirement that the adjudicator mention each record or documents put before the Tribunal.

M.K. v. Dumfries Mutual Insurance Company (16-000501)

The claimant sought IRBs and removal from the MIG. Adjudicator Theoharis rejected the claimant’s case. She held that the claimant did not suffer impairments that would entitle her to IRBs or removal from the MIG. In particular, Adjudicator Theoharis relied upon surveillance showing the claimant engaging in multiple activities she said she could not do. Adjudicator Theoharis placed no weight on the s. 25 psychological report, as it took the claimant’s self-reporting at her own word. There was also no mention of psychological difficulties in the claimant’s family doctor’s notes.

L.C. v. Aviva Insurance Company of Canada (16-001387)

The claimant sought removal from the MIG and entitlement to a series of treatment plans.  Adjudicator Flude concluded that the applicant had suffered a predominantly minor injury. A post-accident MRI identified degenerative changes and nerve root compression. The applicant argued that the condition was pre-existing and entitled him to removal from the MIG. Adjudicator Flude disagreed and noted that the diagnosis was not made until 3 years after the accident and failed the requirement to be identified prior to the accident.

Applicant v. Aviva Insurance Canada (16-000098)

This was a reconsideration request by the insurer following a decision that the claimant sustained psychological injuries that fell outside of the MIG. Executive Chair Lamoureux held that the adjudicator had weighed all of the evidence and made clear findings. There was therefore no basis to overturn the initial decision.

H.C. v. Certas Direct Insurance Company (16-001285)

The claimant sought entitlement to income replacement benefits along with two treatment plans, costs, and a special award. Adjudicator Bass reviewed the medical evidence, along with surveillance submitted by the insurer. It was found that the claimant’s reports were “overly pessimistic in light of the surveillance evidence from only a few months later.” As a result, it was concluded that the claimant did not sustain a substantial inability to perform the essential tasks of his employment. The treatment plans claimed were also denied as Adjudicator Bass found the claimant’s injuries to be minor.

J.S. v. RBC Insurance Company (16-000576)

The claimant sought entitlement to eight treatment plans. The insurer maintained a MIG position. Adjudicator Makhamra found the claimant failed to meet the burden of proof to warrant removal from the MIG. The claimant holds the onus to prove removal from the MIG is justified. In doing so, Adjudicator Makhamra distilled the analysis to three questions: i. Are the claimant’s injuries predominantly minor? ii. Does the claimant suffer from a pre-existing medical condition that prevents him from reaching maximal recovery if he is subject to the $3500 cap in the Minor Injury Guideline? and, iii. Are the treatment plans necessary and reasonable for the claimant’s treatment? Adjudicator Makhamra was satisfied with the notice letters and said the insurer “explained that the applicant’s injuries were within the MIG; it described the diagnosis, and advised of its intention to schedule an insurer’s examination where applicable.” The treatment plans were found not payable.

S.C.W.H. v. The Dominion of Canada General Insurance Company (16-000677)

The claimant sought entitlement to two chiropractic treatment plans and removal from the MIG. Adjudicator Makhamra concluded the claimant’s injuries fell within the MIG and therefore the treatment plans were not payable. The claimant did not submit medical evidence in support of the non-MIG injuries. It was noted that the pre-existing medical condition to warrant removal from the MIG must be supported by “compelling evidence.”

R.H. v. TD Insurance Meloche Monnex

The claimant sought entitlement to medical benefits and removal from the MIG. Adjudicator Leslie concluded that the insurer had not complied with section 38 of the SABS in the denial timeline, and that the insurer was therefore prohibited from taking the position that the MIG applied. One of the claimed treatment plans was awarded.

V.S. v. The Dominion of Canada General Insurance Company (17-001670)

The claimant sought entitlement to a number of medical treatment plans. The insurer asserted the claimant was governed by the MIG. The claimant raised an objection to the insurer’s notice letters. However, Adjudicator S.F. Mather determined the correspondence was compliant and that a medical reason was provided. On review of the medical evidence, Adjudicator Mather further concluded the MIG applied to the claimant and therefore the treatment plans sought were not payable as the MIG limits were exhausted.

Applicant v. Co-operators General Insurance Company (16-000714)

The claimant sought NEBs, medical benefits, and removal from the MIG. The adjudicator found that the claimant did not satisfy the burden of being removed from the MIG. There was a causation issue as the claimant was involved in two separate accidents and the alleged injuries from each accident were similar. NEBs were denied on credibility issues and the failure to provide sufficient evidence of the details of the claimant’s pre-accident lifestyle.