Category: Minor Injury Guideline

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.

A.V. v. Certas Home and Auto Insurance Company (18-007875)

The claimant sought entitlement for weekly non-earner benefits and entitlement to one treatment plan for a psychological assessment. Adjudicator Lake found that the claimant was not entitled to the benefits in dispute. Adjudicator Lake noted that the claimant failed to prove on a balance of probabilities that she suffered from a psychological impairment or from chronic pain syndrome which would take her outside of the MIG. Adjudicator Lake found that the treatment plan was not reasonable and necessary as a result of the accident. In determining whether the claimant was entitled to ongoing non-earner benefits, Adjudicator Lake compared her pre- and post-accident activities of daily living. Adjudicator Lake concluded that the claimant did not identify what period of time she engaged in her pre-accident activities or what pre-accident activities were important to her. In cross-examination, the claimant also confirmed that at least seven months post-accident she was able to grocery shop, cook and sweep, and she was able to drive for five months post-accident. Adjudicator Lake concluded that the claimant had not met her onus of establishing that she suffered a complete inability to carry on a normal life.

S.L. v. Aviva Insurance Company (19-00278)

The claimant sought entitlement to IRBs, removal from the MIG, and entitlement to medical benefits proposed in eight treatment plans. Adjudicator Lester found that the claimant’s injuries fell with the MIG and that none of the treatment plans in dispute were payable as the MIG limits had been exhausted. However, the claimant was deemed entitled to IRBs up to when he returned to work, with interest. The claimant argued that he was suffered from a chronic pain disorder. However, the adjudicator noted that the claimant did not prove that he was experiencing a “significant and reliable impairment of functional status or that he showed a severe debilitating condition of ongoing pain”. With that said, Adjudicator Lester noted that on the balance of probabilities, it was reasonable to conclude that someone who was diagnosed with strains and sprains would need some time off from a very heavy physically demanding job in order to heal the injuries.

A.V. v. Certas Direct Insurance Company (18-007875)

The claimant sought entitlement to NEBs, a determination that her impairments were outside of the MIG, and the cost of psychological assessment. Adjudicator Lake found that the claimant failed to prove on a balance of probabilities that she suffered from psychological issues or chronic pain arising from the accident and, as a result, her injuries did not fall outside of the MIG. Adjudicator Lake also denied entitlement to NEBs, as the claimant failed to prove on a balance of probabilities that she suffered a complete inability to carry on a normal life as a result of the accident. Lastly, Adjudicator Lake also found that the claimant was not entitled to the proposed psychological assessment, as she failed to prove that it was reasonable and necessary on a balance of probabilities. Of note, Adjudicator Lake indicated that the existence of psychological symptoms alone did not warrant a removal from the MIG, as precedent cases have noted that “psychosocial symptoms” can be considered a minor injury treatable within the MIG.

W.C.P. v. Certas Home and Auto Insurance Company (18-010692)

The claimant sought determination that his impairments were outside of the MIG and sought entitlement to the costs of an examination for an in-home attendant care assessment. Adjudicator Reilly found that there was no evidence before the Tribunal that would take the claimant outside of the MIG, therefore, the claimant was subject to the MIG limits. Adjudicator Reilly found that since the claimant’s injuries were minor in nature it was not necessary to determine whether the claimant was entitled to the cost of the in-home assessment. Adjudicator Reilly noted that the claimant did not present compelling evidence or sufficient medical information to prove he had a pre-existing condition, chronic pain syndrome, or a concussion which would prevent maximal recovery under the MIG.

S.S. v. Unifund Assurance Company (18-010682)

The claimant sought a determination that her impairments were outside of the MIG, entitlement to medical benefits proposed in two physiotherapy treatment plans that had been partially approved, entitlement to IRBs which had been suspended for non-attendance of IEs, and a special award. Adjudicator Lester rejected the claims. She agreed with the insurer that the claimant’s injuries from a previous car accident had resolved prior to the subject accident and that the claimant had not exacerbated a previous condition to warrant removal from the MIG. Adjudicator Lester also found that the insurer’s notices of the IEs were compliant with the Schedule, and the claimant’s non-attendance of IEs disentitled her to IRBs.

M.D. v. Certas Home and Auto Insurance Company (18-011652)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to medical benefits proposed in two treatment and assessment plans for physiotherapy services and a chronic pain assessment. Adjudicator Grant found that the claimant’s chronic pain took him outside of the MIG, based on the chronic pain assessment report of Dr. Karmy, a chronic pain specialist. Based on the length and history of the claimant’s pain complaints and the goal of achieving pain relief, Adjudicator Grant found the chronic pain assessment and physiotherapy treatment plan to be reasonable and necessary.

D.P.V. The Co-operators (19-000079)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to medical benefits for two chiropractic treatment plans. The claimant argued that he suffered from pre-existing lower back pain which was exacerbated as a result of the accident and would prevent him from reaching maximum recovery if his benefits were limited to the MIG. He also argued that his accident-related injuries were not predominantly minor injuries. Adjudicator Maleki-Yazdi found that the claimant sustained predominantly minor injuries and his pre-existing injuries did not prevent maximal medical recovery to remove him from the MIG.

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