I have previously blogged about the case of Arruda and Western Assurance Company wherein the arbitrator’s decision was that a diagnosis of chronic pain syndrome is a reason to remove an insured from the MIG. In the September 1, 2016 LAT decision of 16-000045 v. Aviva Canada (formerly A.P. v. Aviva), the Applicant wanted to rely on this same diagnosis to be removed from the MIG but the medical report was missing the actual diagnosis.
The IRB was terminated with Aviva taking the position that Applicant did not meet the test for entitlement. Aviva also denied the Applicant’s claim for medical benefits for physiotherapy and chiropractic treatment. Aviva takes the position that the Applicant’s injuries are predominately minor and that s. 18(1) caps medical and rehabilitation benefits at $3,500 for predominantly minor injuries. The Applicant claims her injuries fall outside of the MIG and relies on an expert medical report. The resolution of this matter depends on the sufficiency of the medical evidence put forward by the Applicant in support of her position.
The expert medical report notes the Applicant has cervical facet joint involvement and that this is a common contributor to chronic pain symptoms. The report does not define the diagnosis and does not explain why it does not fall within the MIG. The report goes on to recommend intramuscular stimulation physiotherapy. An OCF-23 was initially submitted and then an OCF-18 was submitted but there was nothing showing the medical diagnosis had changed. The OCF-3 that was submitted noted the Applicant could not work but did not note a diagnosis of chronic pain syndrome. The report noted the term “chronic pain” but it did not say that the Applicant suffers from chronic pain nor did it include a diagnosis of chronic pain syndrome.
The adjudicator found that the evidence overwhelmingly favoured Aviva’s position as the insurer’s examination reports were more detailed and went unchallenged by the Applicant. The adjudicator noted there are FSCO decisions supporting that the diagnosis of chronic pain syndrome falls outside of the MIG. At the same time, the adjudicator also noted that FSCO decisions are not in any way binding on the LAT. Since the report the Applicant was relying upon did not diagnose chronic pain syndrome, the adjudicator did not need to look at any of the FSCO cases and found there was insufficient evidence of a chronic pain syndrome diagnosis and did not consider the issue of whether a chronic pain syndrome diagnosis is sufficient to remove the Applicant from the MIG.
Nicholson Gluckstein Lawyers