Category: Minor Injury Guideline

S.P. v Aviva General Insurance Company (18-008876)

The claimant disputed her MIG determination, as well as entitlement to various medical benefits and IRBs. Adjudicator Helt found that the clamant did not suffer from chronic pain so as to remove her from the MIG, noting that the medical records failed to establish that she claimant complained of persistent chronic pain issues causing functional impairment or disability over the course of several appointments. Adjudicator Helt further found that the claimant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident, given that the claimant returned to work immediately after the accident for a period of five weeks and provided conflicting statements and information to doctors regarding her post-accident level of functioning (contradicted by way of surveillance evidence) and her work status.

P.S. v. Aviva General Insurance Company (19-000891)

The claimant sought removal from the MIG and entitlement to various medical benefits, and argued that the insurer failed to comply with section 38. Adjudicator Maleki-Yazdi held that the claimant’s injuries fell in the MIG. However, one of the disputed treatment plans was awarded because no denial was ever provided by the insurer. An OCF-23 that was submitted by the treatment provider at the request of the insurer did not “supersede” the treatment plan; the insurer was still required to either approve or deny the treatment plan within 10 days.

C.C. v Aviva Insurance Canada (19-003244)

This preliminary issue hearing was brought to determine whether the claimant was barred from seeking a determination that the injuries sustained in the accident were not subject to the MIG, as that issue had already been determined by the FSCO. Adjudicator Watt found that the claimant was barred from seeking a determination that her injuries fell outside the MIG, as there was no reason why the fresh evidence raised by the claimant at the hearing was not available to the Arbitrator at the FSCO hearing. Further, the “new evidence” mirrored the same complaints at the time of the FSCO hearing and did not conclusively impeach the original results. Adjudicator Watt found that res judicata applied to the current hearing and therefore the claimant could not proceed.

C.Z. v Security National Insurance Company (18-012296)

The claimant sought entitlement to IRBs, removal from the MIG, and entitlement to a psychological assessment. Adjudicator Johal concluded that the claimant was not entitled to either IRBs or removal from the MIG. The claimant failed to provided any evidence to support his submissions that he suffers a substantial inability to perform the essential tasks of his employment, and had chosen to pursue a degree in University in the Fall of 2016.

J.J.X. v. Aviva General Insurance (19-002558)

The claimant sought a determination that his injuries were outside of the MIG, and entitlement to medical benefits proposed in three physiotherapy treatment plans, a chiropractic treatment plan, and a psychological assessment. The claimant also sought entitlement to non-earner benefits. Adjudicator Grant found that the claimant’s injuries were predominantly minor and fell within the MIG. He found there were no records from any family physician to support the physical injury claims made by the claimant, and the medical evidence that was submitted confirmed that the claimant’s injuries were minor. As the MIG limit of $3,500 in medical and rehabilitation benefits had already been exhausted, it was unnecessary to determine whether the treatment plans in dispute were reasonable and necessary. Adjudicator Grant also found that the claimant had not met his onus of establishing that he suffered a complete inability to carry on a normal life and was therefore not entitled to non-earner benefits. He noted the medical evidence produced showed that the claimant returned to substantially all of his pre-accident activities, including attending the gym twice per week, cooking, and returning to school within a few days of the accident.

M.A. v Aviva General Insurance Company (18-011678)

The claimant sought entitlement to IRBs, removal from the MIG, and entitlement to various medical benefits. Adjudicator Grant found that the claimant’s injuries were predominately minor in nature and there was no evidence before the Tribunal to support the claimant’s submission that his psychological impairments remove him from the MIG. Adjudicator Grant also noted that the claimant had not satisfied at least three of the criteria set out by the American Medical Association Guidelines, so the claimant could not be found to suffer from chronic pain. In terms of entitlement to IRBs, Adjudicator Grant found that claimant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

W.E. v Aviva Insurance Company (18-011102)

The claimant sought removal from the MIG and entitlement to various medical benefits. Adjudicator Conway concluded that pursuant to section 38(11)(1), the insurer failed to comply with section 38(8) in its denial, and was barred from applying the MIG to the disputed benefits. While the adjudicator ultimately concluded that the disputed medical benefit was not reasonable and necessary, the insurer was required to pay for amounts incurred by the claimant.

G.K. v Coseco Insurance (18-007434)

The claimant disputed her MIG determination and sought entitlement to various medical/rehabilitation benefits and income replacement benefits. Adjudicator Hans concluded that the claimant’s injuries did not fall within the MIG, as the medical evidence established that she suffered from chronic pain syndrome that was not merely a sequelae of the soft tissue injuries sustained in the accident, and which caused functional limitations and impacted the claimant’s activities of daily living. Adjudicator Hans further concluded that the claimant met the eligibility test for income replacement benefits. He noted that the claimant provided convincing evidence regarding how her impairments specifically affected her functionality and her ability to perform the essential tasks of her employment, while the insurer’s IE assessor did not undertake a sufficient analysis of the essential tasks of her employment before coming to a conclusion.

M.Y. v Wawanesa Mutual Insurance Company (19-003973)

The insurer brought this preliminary issue hearing arguing that the claimant was barred from disputing her entitlement to medical/rehabilitation benefits beyond the MIG and attendant care benefits on the grounds that she failed to attend two section 44 IEs. The claimant took the position that she was not required to attend the IEs because the first IE was for the purposes of determining the applicability of the MIG, which is not permitted, and the second IE was scheduled as a substitute for the submitted Form 1. With respect to the first IE, Vice Chair Farlam held that scheduling an IE to address doubt about whether the claimant’s injuries fall outside the MIG does not violate the SABS. With respect to the second IE, Vice Chair Farlam found that the insurer was merely exercising its right under the SABS to assess the claimant as part of determining whether the claimant was entitled to attendant care benefits. As such, Vice Chair Farlam concluded that the claimant was barred from proceeding with her application, noting that counsel’s position that the claimant was not obligated to attend either IE was incorrect and that an erroneous legal position was not a reasonable explanation for non-attendance at IEs.

S.K. v. Aviva Insurance Canada (19-003326)

The claimant sought entitlement to IRBs, removal from the MIG, and three treatment plans for chiropractic therapy. Adjudicator Conway concluded that the claimant suffered soft tissue injuries, which fell within the MIG. She also denied the claim for IRBs due to insufficient evidence regarding the claimant’s inabilities.