The Licence Appeal Tribunal recently released three decisions dealing with disputes over the applicability of the Minor Injury Guideline. All three decisions upheld the denial of treatment above the Minor Injury Guideline monetary limits of $3500 based on the fact that the Insured person had failed to produce compelling medical evidence that they had sustained injuries that fell outside of the SABS definition of a Minor Injury.
All three decisions from the LAT confirm that there is a strict expectation that the Applicant will furnish compelling medical evidence that their injuries or pre-existing conditions qualify them for treatment above the MIG limits. In the first two decisions in particular, the Applicants produced evidence of conditions not clearly captured by the MIG definition, but the Adjudicator did not find this sufficient to meet the burden of proof. For each decision, Vice Chair Flude opined that the accident-related condition must be clearly defined and cannot be “equivocal.” Of note, references to the chronic experience of pain is not substitute for an actual diagnosis of chronic pain or Chronic Pain Syndrome. Additionally, when it comes to pre-existing conditions, the existence of a prior injury/condition is insufficient. There is an expectation that the Applicant must produce a clear medical opinion that the pre-existing condition impacts the ability of the Applicant to recover.
All three decisions should bolster the confidence of Insurers to maintain the MIG position when the Applicant has failed to meet his or her burden.
A. P. and Aviva Canada Inc. (Tribunal File Number 16-000045, September 1, 2016)
In this decision, Vice-Chair Flude referenced the decision of Scarlett v Belair Insurance, 2015 ONSC 3635 (CanLII). He confirmed that the provisions of the Minor Injury Guideline were a limit on liability, not an exclusion, and the claimant carries the onus of proving her entitlement to a higher level of coverage.
In review of the medical evidence, the Applicant produced an OCF-3 Disability Certificate listing soft tissue injuries, an OCF-23, diagnostic imaging confirming no fractures, and consultation from the family GP, Dr. McKee, indicating that the Claimant had “evidence of cervical facet joint involvement which has been established as a common contributor to chronic pain symptoms…”. Vice-Chair Flude noted that no definition was provided for “cervical facet joint involvement” and, therefore, he had no evidence that the Applicant’s injuries were more than soft tissue injuries that fall within the MIG. Indeed, Dr. McKee opined that these “should never have been included in the Minor Injury Guideline…”, suggesting that Dr. McKee recognized that A. P.’s injuries fall within the MIG but believed, as a matter of policy, that they should not.
Vice-Chair Flude also reviewed evidence that A. P. had sustained similar injuries from a prior MVA. There was no report commenting on the impact of the pre-existing condition on A. P.’s ability to recover, and Vice-Chair Flude concluded that A. P. had failed to satisfy her onus to show there was compelling evidence that she could not achieve maximal recovery within the MIG because of a pre-existing medical condition.
Lastly, Vice-Chair Flude noted that Dr. McKee used the term “chronic pain” in his report, but nowhere in his report does he state that A. P. suffers from chronic pain nor does he diagnose A. P. as having Chronic Pain Syndrome.
Having failed to meet her burden, A. P.’s appeal was dismissed.
K. P. and Aviva Canada Inc. (Tribunal File Number: 16-000046, September 1, 2016)
In this decision, Vice-Chair Flude noted that while there were a number of conditions listed in the Applicant’s submissions, there was no medical evidence that either tied any specific condition to the accident, or that indicated that any specific condition or symptom was anything more than a soft tissue injury or a condition arising out of a normal lifestyle that arose independent of the accident. A note from the family doctor, Dr. Barnes, indicated that the findings on examination were “equivocal for radiculopathy,” The Applicant suggested that this was definitive diagnosis of radiculopathy, but this was not accepted by the Tribunal. Additionally, the applicant did not provide evidence to support that she had “neurological signs” in association with her WAD II which were out of the spectrum of soft tissue injuries contemplated by the MIG.
With respect to the Applicant’s pre-existing health, although it was noted that the Applicant had sustained a dislocation to her left shoulder in 2012 while snowboarding, the Applicant’s treating physiotherapist, Ms. Smalridge, had noted this injury and had nevertheless submitted for treatment under the Minor Injury Guideline, via an OCF-23 Treatment Confirmation Form. It was only in a later OCF-18 that Ms. Smalridge noted that calcific tendinosis of the rotator cuff had developed since the accident (not prior to it). Vice-Chair Flude found that Ms. Smalridge had not provided a clear medical opinion (which we pause to note that a physiotherapist is not qualified to provide in any event) regarding whether the Minor Injury Monetary limits, in light of her pre-loss health, were insufficient to achieve the goals of the treatment plan.
Vice-Chair Flude opined that, at best, the evidence relied on by the Applicant was equivocal. He concluded that the evidence fell far short of compelling. K. P.’s Appeal was dismissed.
M. S. and Primmum Insurance Company (Tribunal File Number: 16-000546, October 14, 2016)
In this decision by Adjudicator Sewrattan, although the issues in dispute pertained to the applicability of the Minor Injury Guideline, and the Applicant’s entitlement to Medical Benefits, the Applicant’s submissions inexplicably did not address the Minor Injury Guideline, entitlement to the disputed treatment plan, or interest. The Applicant’s submissions only addressed entitlement to an administrative fee. In this case too the Applicant also failed to produce the exhibits upon which he claimed to rely. The Applicant failed to raise any argument against Primmum’s submission that the Applicant had not met his burden of proof. In short, there were no materials or submissions upon which the Applicant could rely to support his Appeal.
The Applicant was provided an opportunity by the Adjudicator to correct this perceived oversight. Adjudicator Sewrattan invited the Applicant to make written submissions in support of allowing the missing exhibits to be submitted after the deadline, given that he was hesitant to dismiss an Applicant’s appeal solely on the basis of what could have been an innocent omission by his counsel. The Applicant failed to provide any such submissions.
Adjudictor Sewrattan confirmed the principle of Scarlett that the Applicant bears the onus of proof, and had produced no evidence to meet than burden. M. S.’s Appeal was dismissed.
All three of these decisions provide clear evidence of how the LAT will conduct itself in these matters. It is beyond unwise, and arguably negligent to commence a proceeding at the LAT before gathering the evidence necessary to prove a claim. Unlike at FSCO, where the habit was to worry about gathering evidence in the many months after filing for arbitration, the LAT will decide quickly. So, without evidence at the time of filing, the case will likely be lost. Moreover, where there was some concern that the LAT would be ignoring longstanding precedent from FSCO on interpreting the SABS, it would appear that hallmark decisions upheld by the Divisional Court such as Belair and Scarlett will be followed.
If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222 or our License Appeal Tribunal Practice Group.
