Escaping the MIG – Reasonable and Necessary – Two Recent Cases

Exploring some examples involving the reasonable and necessary requirement

Section 3 of the Statutory Accident Benefits Schedule (“SABS”) defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”.[1]

Subsection 18(1) of SABS provides that the sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500.[2]

However, subsection 18(2) provides that, despite subsection 18(1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit.[3]

Sections 15 and 16 provide that medical and rehabilitation benefits only cover reasonable and necessary expenses incurred.[4]

Thus, to remove one’s case from the MIG limit, one has the onus of proof of proving on a balance of probabilities that an exception applies and on a balance of probabilities that the treatment plan one is proposing is reasonable and necessary.

In Koufis v. Intact Insurance Company[5], the applicant was involved in a motor vehicle accident on April 21, 2017. She applied for, but was denied, statutory accident benefits, and she took the dispute with the respondent insurer to the Ontario License Appeal Tribunal (LAT). The issues were whether her injuries were predominantly minor, and therefore subject to treatment within the $3,500 limit in the Minor Injury Guideline (“MIG”), and whether she was entitled to the costs of her treatment plan (which included physiotherapeutic and psychological services). The Tribunal decided that the applicant’s physical injuries fell outside of the MIG because of her pre-accident medical history; that she is entitled to be reimbursed for the costs of the physiotherapeutic services in her treatment plan because they were reasonable and necessary; but that she is not entitled to be reimbursed for the costs of the psychological services in her treatment plan because they were not reasonable and necessary. The MVA occurred when she had stopped her vehicle to make a left-hand turn and was rear-ended by the vehicle behind her. She did not lose consciousness and her airbag did not deploy. She was examined by her family physician and prescribed pain medication and referred for physiotherapy. She experienced lower back pain, right shoulder pain and headaches, as well as difficulty sleeping, daytime fatigue, loss of appetite and flashbacks. A chiropractor diagnosed her injury as a whiplash associated disorder and determined that the recovery time would be 6-12 weeks. The Tribunal concluded that her injury was indeed a minor injury which is defined in the legislation as including a whiplash associated disorder. The Tribunal was satisfied that the applicant had proven on a balance of probabilities that she had a preexisting medical condition that prevented her from achieving maximum recovery from the minor injuries under the MIG treatment maximum of $3,500, because: the clinical notes and records from May 2013 to December 2017 indicated she reported pain in her neck, back, right arm and right shoulder; that an ultra sound from that time period indicated a spur in her right shoulder; that the records from that time period indicated a decrease in bone density in her spine; that she had been using prescribed medication to manage the pain; and that her symptoms and treatment continued well after the predicted recovery time. However, although she had been diagnosed with depression, sleeplessness and anxiety in 2016 and 2017, her psychological complaints after the MVA were considered to be workplace-related based on all the evidence. Therefore, in the result, she was given the costs only for the physiotherapeutic services, and not the psychological services, in her treatment plan.

In Gharibo v. Aviva Insurance Company[6], the applicant was injured in a MVA on January 15, 2018. She applied for statutory accident benefits and the respondent insurer took the position that her injuries fell under the MIG. She challenged this position before the LAT. The issues were whether the injuries were predominantly minor, whether she was entitled to the costs of her treatment plan (which included chiropractic, physiotherapeutic and massage therapies and various assistive devices), and whether she was entitled to the nonearner benefit (NEB). The Tribunal decided that the applicant’s injuries required treatment beyond the MIG on the basis of a psychological impairment, but that she was not entitled to be reimbursed for the costs of any part of her treatment plan because no part of it was reasonable and necessary. In determining the first issue, the Tribunal compared the applicant’s and the respondent’s evidence and favored the former. The applicant’s evidence included an opinion from a doctor that she suffered from Major Depressive Disorder (Moderate), PTSD with driving anxiety and Somatic Symptom Disorder with predominant pain. This opinion was consistent with the applicant family doctor’s observations and with the applicant’s reports to her other treatment providers. On the contrary, the respondent’s doctor’s opinion, which found that the applicant did not suffer from an accident-related psychological condition or impairment, was inconsistent with his own testing scores and made conclusions that were overbroad compared to what tests he administered (for example, he found that there were no depressive episodes but did not apply the questionnaires to specifically address depression). Although the applicant escaped the MIG, the Tribunal found that the costs of the treatment plan were not reasonable and necessary because the clinical notes and records from the physio and rehab facility showed that she was not gaining any benefit from the treatment – for instance, there was a 0% improvement since her last treatment plan. Further, the Tribunal held that she was not entitled to the NEB because she did not meet the test – the evidence did not show that she was completely unable to participate in most of her pre-accident activities.

If you have a minor injury from a MVA, legal assistance can be advantageous to help you organize and present the required evidence. We would be pleased to meet with you to discuss your case.

[1] SABS, s 3

[2] Ibid, s 18(1)

[3] Ibid, s 18(2)

[4] Ibid, ss. 15 and 16

[5] 2021 ONLAT 20-002237/AABS (“Koufis”)

[6] 2021 ONLAT 19-008841/AABS (“Gharibo”)

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