Category: Minor Injury Guideline

C.E. v. Aviva General Insurance Company (18-002591)

This is a reconsideration decision. The hearing decision found that the claimant sustained minor injuries and was subject to the MIG. The claimant requested reconsideration of the hearing decision based on new evidence that was not before the Tribunal at the time of the written hearing and which, he submitted, would likely have affected the result. The claimant also submitted that the LAT erred in law by failing to request the claimant’s medical records from his treating psychiatrist. The request for reconsideration was dismissed. The claimant did not file the “new” evidence with the request for reconsideration (the records had been requested but not received by the claimant). In addition to noting the new evidence had not been filed and was therefore not available for consideration by the LAT, Adjudicator Neilson found that the claimant did not satisfy his onus to show that the psychiatrist’s records could not have reasonably been obtained before the hearing. Adjudicator Neilson found that applicants to the Tribunal are obligated to make their own case, and the Tribunal did not make an error in law by not requesting the psychiatrist’s records prior to making a hearing decision. Adjudicator Neilson held that a reconsideration is not an opportunity to re-argue a case.

Namasivayam v. Certas Direct Insurance Company (19-010862)

This was the claimant’s second LAT dispute. The claimant sought entitlement to NEBs, removal from the MIG, and various medical benefits. The insurer argued that the claimant could not re-litigate the applicability of the MIG. Adjudicator Farlam agreed with the insurer that the applicability of the MIG was res judicata and that the claimant could not seek the same relief that had been denied in the first hearing. Most of the claimant’s arguments were an attempt to re-litigate the same claim on the same facts. The claimant did not seek reconsideration or judicial review of the earlier decision, so it was a final judgment. This second LAT dispute was not to be used as a reconsideration or judicial review. All of the submissions that the claimant made in this dispute had already been considered in the earlier dispute. Because the MIG could not be re-litigated, the disputed treatment plans were also dismissed. Adjudicator Farlam denied the claim for NEBs. She held that the evidence showed the claimant remained able to complete housekeeping chores, was independent in personal care, and cared for her young child on her own. The claimant failed to put forward reliable medical evidence that she was prevented from carrying on a normal life.

Khashi v. Travelers Insurance Company of Canada (19-005457)

The claimant disputed his MIG determination and entitlement to non-earner benefits. With respect to the MIG, Adjudicator Norris found that the claimant’s psychological symptoms were sequelae of minor injuries and did not meet the threshold to warrant removal from the MIG. He noted that the psychological IE assessor’s conclusions aligned with the family doctor records, and found the section 25 pre-screening report unpersuasive, as it relied entirely on the claimant’s self-reported symptoms. With respect to NEBs, Adjudicator Norris determined that the insurer provided a valid denial, despite the reason being legally incorrect, because the denial was clear and unequivocal, included reference to the claimant’s right to dispute, and was made within the timelines prescribed by the SABS. He went on to conclude that the medical evidence failed to demonstrate that the claimant was continuously prevented from engaging in substantially all of his pre-accident activities, emphasizing the fact that the claimant missed no time off from his multiple jobs following the accident.

A.M. v. Aviva Insurance Company of Canada (18-008059)

The claimant requested reconsideration of the Tribunal’s decision denying NEBs and holding the claimant in the MIG. Adjudicator Norris denied the reconsideration. The claimant argued the insurer gave no evidence to subject the claimant to the MIG and the insurer’s reports did not provide an opinion on the application of the MIG. The insurer submitted there was no evidence of any failure to impartially assess the evidence. Adjudicator Norris indicated there was no onus on the insurer to prove the claimant suffered a minor injury; the claimant had the burden of proving his case. Adjudicator Norris reviewed the evidence including the medical records of the claimant’s treating physicians, which he determined did not show any compelling evidence that the claimant should be removed from the MIG. In regard to the NEBs claim, the claimant argued that Adjudicator Norris had wrongly found that the claimant had failed to submit a disability certificate and there was evidence in the insurer’s materials it had been submitted. The disability certificate in question that was submitted entitled the claimant to NEBs. The claimant further argued that Adjudicator Norris had wrongfully found the insurer did not pay the benefit because it did not know when the disability certificate was submitted. The insurer argued that the NEB claim was considered and the evidence was weighed in its decision. Adjudicator Norris was unable to consider the disability certificate in the initial hearing as the claimant did not submit the disability certificate as evidence. The claimant’s reconsideration submissions confirmed that the disability certificate in question was completed by a different healthcare provider than his family physician contrary to the claimant’s claims in the initial hearing. The claimant failed to provide any information on when the second disability certificate was submitted, which would trigger the insurer’s obligations under s.36(4). In the initial hearing, Adjudicator Norris found the insurer did not have to pay NEBs immediately on receipt of the disability certificate and the insurer could request an IE. It appeared the insurer did request an IE. The claimant attended the IEs and the insurer relied upon those reports when it denied NEBs entitlement. The claimant submitted three documents to support his position that his injuries were outside of the MIG. Adjudicator Norris indicated none of those documents provided any compelling evidence that his injuries were minor. The claimant’s self-reported statements were discounted due to inconsistencies.

P.W. v. Wawanesa Mutual Insurance Company (18-007187)

The claimant sought reconsideration of the Tribunal’s decision which found that her injuries fell within the Minor Injury Guideline. The claimant argued that the Tribunal erred in law by creating and applying an incorrect test to decide the issues in dispute. Specifically, the claimant stated that she was not taken out of the MIG despite the presence of medical evidence supporting her claims. Adjudicator Manigat stated that the simple fact of providing medical evidence was not enough to take the claimant out of the MIG. Further, after reviewing the medical evidence, the claimant’s injuries were found to be predominately minor and her pre-existing injuries would not prevent her from achieving maximal medical recovery if she were confined to the MIG. The claimant also argued that the presence of pre-existing injuries, the fact that all disputed chiropractic treatment plans had been fully incurred, and the fact that the cost of examinations for psychological assessment had been incurred were indicative that her injuries should not be confined within the MIG. Adjudicator Manigat found that these facts did not require the conclusion that the MI did not apply nor prove that the treatment plans were reasonable and necessary. The claimant failed to establish any significant error of law or fact by the Tribunal and her request for reconsideration was dismissed.

Gordon v. Royal & Sun Alliance (19-012000)

The claimant sought removal from the MIG and entitlement to various medical benefits. The insurer scheduled IEs, which the claimant refused to attend, arguing that the insurer should conduct a paper review. Vice Chair McGee rejected the claimant’s argument that section 44(3)(a) bars the insurer from requesting an in-person IE for a MIG determination. Moreover, the benefits in dispute were not payable within the MIG as they would have exceeded the funding available for minor injuries. Vice Chair McGee found that the Notices of Examination satisfied the requirements of section 44(5) as they clearly stated the medical and other reasons for the examination. The claimant had not provided a valid explanation for his non-attendance and in the circumstances, it would be inappropriate to permit his application to proceed. The claimant was barred from proceeding with the LAT dispute.

P.M. v. Aviva General Insurance (19-002717)

The claimant sought removal from the MIG and entitlement to medical benefits for physiotherapy, massage therapy as well as the cost of psychological and physiatry assessments, and completion of an OCF-3. The claimant also sought a special award. Adjudicator Lake found the claimant’s injuries were outside of the MIG due to her chronic pain, but held she was only entitled to medical benefits for physical treatment and the cost of the psychology assessment. Adjudicator Lake also considered the claimant’s section 38 denials of benefits, and held that there were deficiencies. The insurer referred to the $3,500 funding limit under the MIG and enclosed portions of the SABS relating to the MIG, but did not advise the claimant that the MIG applied to her accident related impairments. Further, the insurer never cured the deficient notices, so benefits were payable if incurred more than 10 business days after submission. She also rejected the argument that benefits had to be incurred to be payable under section 38(11), as the section only said that benefits had to “related to” the period of non-compliance, not that they needed to be incurred. Adjudicator Lake rejected the special award claim, reasoning that the insurer’s failure to comply with its obligations under section 38 of the SABS did not amount to an unreasonable withholding or delay in payment of benefits.

S.S. v. The Personal Insurance Company (19-004026)

The claimant sought entitlement to IRBs and removal from the MIG. Adjudicator Lake concluded that the claimant was not entitled to IRBs, but that his injuries fell outside of the MIG. With regard to IRBs, the claimant failed to prove that he was substantially unable to perform the essential tasks of his pre-accident employment. A note from the claimant’s family physician was not persuasive because the claimant had not attended the physician to get the note nor had he attended for six months. The claimant also was not attending for any physical treatment for his symptoms. Regarding the MIG, Adjudicator Lake accepted that the claimant suffered from psychological symptoms including anxiety.

B.S. v. Aviva Insurance Canada (19-001828)

The claimant sought removal from the MIG and entitlement to physiotherapy and two assessments. Adjudicator Maleki-Yazdi found that the claimant’s injuries fell outside of the MIG and that the claimant was entitled to all three treatment plans. Additionally, she concluded that the insurer’s section 38 notices were deficient. All three denials were similarly worded and simply stated that there was no “compelling evidence that shows that your injuries do not fall within the Minor Injury Guideline.” No further details regarding the “compelling evidence” was provided. The adjudicator held that the denials were vague and did not provide the claimant with meaningful explanation for the denials to allow her to make an informed decision about whether to accept or dispute the decision. Subsequent denials following the IEs did provide meaningful explanation, but the insurer would have been required to pay for all incurred treatment up to the date of the proper denial.

J.T. v. Primmum Insurance Company (18-009043)

The self-represented claimant argued that he suffered a catastrophic impairment following a collision in a parking lot. The insurer’s position was that the claimant suffered a minor injury. Adjudicator Manigat concluded that the claimant suffered a minor injury and dismissed the catastrophic impairment determination. No medical evidence was provided by the claimant in support of his position, nor was an expert opinion provided. While an OCF-19 was completed by the family physician, no referral was ever made for further investigation. The IE reports found that the claimant suffered soft tissue injuries and the claimant did not provide any evidence of a pre-existing condition.