Category: Minor Injury Guideline

F.S. v. The Dominion of Canada General Insurance Company (19-007563)

The claimant sought removal from the MIG and entitlement to four medical benefits. Adjudicator Johal found that three of the four medical benefits were barred by the limitation period. The denials were clear and unequivocal. Section 7 of the LAT Act did not apply because the claimant failed to show a bona fide intention to dispute entitlement within the limitation period or an explanation for the delay. Regarding the remaining disputes, Adjudicator Johal concluded that the claimant’s injuries fell within the MIG.

B.N. v. The Co-Operators Insurance Company (19-006455)

The claimant sought removal from the MIG and entitlement to three treatment plans for psychology services and chiropractic treatment. This case also raised the issue of whether an insurer can properly deny medical benefits for a psychological assessment and psychological treatment without requiring the claimant to attend an in-person IE for a psychological assessment. With respect to the MIG, the claimant did not provide the required evidence from his health care providers to support that he had pre-existing conditions that would prevent him from achieving maximum recovery. In addition, the treatment plans and psychological report lacked credibility and the claimant’s psychological complaints were not medically supported. The adjudicator ruled that the claimant did not sustain more than predominately minor injuries. For this reason, the treatment plans were not reasonable or necessary. In determining whether the insurer provided proper medical reasons for denying the disputed treatment plans, Adjudicator Mather was satisfied that the insurer had made it clear to the claimant what medical evidence it was looking for to substantiate the claim. Adjudicator Mather held that the insurer provided a valid medical reason for denying the benefits for the psychological assessment and psychological treatment.

C.W. v. Aviva Insurance Company (19-002426)

The claimant sought removal from the MIG and entitlement to various medical benefits. Adjudicator Farlam found that the claimant sustained minor injuries in the accident. While the disability certificate noted COPD, mild stroke, right sciatica, low back pain, they appeared to be self-reported by the claimant, and there was no pre-accident medical records documenting the alleged pre-existing medical conditions. Adjudicator Farlam also considered the claimant’s arguments that section 38 of the SABS entitled him to payment of incurred medical benefits. The adjudicator accepted that one of the disputed treatment plans was responded to 10 days late. However, the claimant had not incurred any of the proposed treatment during that time frame, so the insurer was not liable to pay anything.

Z.X.C. v Belair Insurance Company (19-000314)

The claimant disputed her MIG determination, as well as entitlement to various medical benefits and IRBs. Adjudicator Shapiro concluded that based on the medical evidence, the claimant suffered predominantly minor physical injuries – strains and sprains – as a result of the accident, and her injuries thus fell within the MIG. Adjudicator Shapiro also determined that the claimant was not entitled to IRBs as she had not proven the rate of the benefit, nor had she proven her basic entitlement to IRBs after March 24, 2017. While the claimant submitted that she provided ample documentation to calculate the rate of IRBs, Adjudicator Shapiro found that the claimant’s records conflict as to what her employment earnings were, and when she earned it, and that her hearing testimony lacked credibility to fill in the gaps. He also felt that the claimant sustained minor strains and sprains, as above, which did not cause her a substantial inability to perform her pre-accident position in any event.

R.E. v Aviva Insurance Company (19-000303)

The claimant disputed his MIG determination, as well as entitlement to various medical benefits and IRBs. Adjudicator Boyce concluded that the claimant sustained predominantly minor injuries as defined by the SABS that were properly treated within the MIG, noting that the medical evidence relied upon was “incredibly underwhelming”. Adjudicator Boyce further concluded that the claimant was not entitled to IRBs, as he had not demonstrated a substantial inability to perform the essential tasks of his pre-accident employment and had not furnished evidence that his income qualifies under section 4(5) of the SABS. The claimant made no reference to any medical evidence confirming that he was incapable of performing the essential tasks of his pre-accident work, aside from the insurer’s IE reports, which were unhelpful to him as they determined that he did not meet the IRB test. More problematically, the claimant did not produce any financial documentation or even identify for the Tribunal what his pre-accident employment constituted, how many hours he worked per week, or what his tasks were.

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.