16-004479 v Wawanesa Mutual Insurance Company, 2017 CanLII 46356

Jul 06, 2017

Adjudicator: Chris Sewrattan

The Applicant was injured in a motor vehicle accident on January 30, 2015, and applied for accident benefits. The Respondent denied two treatment plans, claiming the payment limit had been reached under the Minor Injury Guideline.

Issue: Is the Applicant entitled to payment of the two treatment plans for physiotherapy?

The Applicant had two claims why the Guideline should not apply:

  1. She suffered from a pre-existing medical condition that prevents maximal recovery; and
  2. Her injury, following the automobile accident, was not predominantly minor.

The Adjudicator found:

  1. The Applicant was involved in a motor vehicle accident in 2007 and subsequently suffered from back pain, the same kind of back pain suffered from after the 2015 accident. The Applicant claimed this was a pre-existing condition, with medical evidence documenting back spasms and back pain 5-6 years after the 2007 accident. The Applicant suggested that an inference be made from the evidence that a pre-existing condition was present which would prevent maximal recovery. The Applicant failed to prove this fact on a balance of probabilities. To further compound this conclusion, the Respondent commissioned an independent medical examination that concluded the Applicant did not present a condition that would exclude her treatment from the Guideline.
  2. The Applicant claimed she suffered from chronic pain and submitted medical evidence from her family doctor, which was seen to be unclear and unreliable, and an orthopaedic surgeon, whose report was vague. In light of the independent medical examination’s findings that did not find the Applicant suffered from chronic pain, the Applicants claims were unpersuasive. As a result, it had not been proven that the Applicant suffered from an injury that was not predominantly minor.

Result: The Applicant is not entitled to payment of either of the two treatment plans.