Dr. John Crescenzi

The applicant sought statutory accident benefits following a motor vehicle accident, disputing the respondent's denial of non-earner benefits and four treatment plans.

The adjudicator found that the applicant's claim for non-earner benefits was time-barred under section 56(1) of the Schedule, as the application was filed more than five years after the respondent's clear refusal to pay.

Regarding the treatment plans, the adjudicator concluded that the applicant failed to prove his physical or psychological injuries fell outside the Minor Injury Guideline (MIG).

The adjudicator placed little weight on the applicant's psychological assessment conducted nearly five years post-accident, noting a lack of contemporaneous complaints to his family physician.

As the applicant had exhausted the $3,500 MIG cap, the disputed treatment plans were denied.

The respondent's request for costs was also dismissed.

The insurer appealed an arbitrator's preliminary decision that the insured's medical and rehabilitation claim was not subject to the $3,500 limit under the Minor Injury Guideline (MIG).

The Director's Delegate allowed the appeal, finding that the arbitrator erred by failing to apply the correct test of whether the impairment was predominantly a minor injury, improperly shifting the burden of proof to the insurer, and incorrectly concluding that the MIG was non-binding.

Furthermore, the arbitrator breached procedural fairness by conducting independent research and relying on legal arguments without giving the parties an opportunity to respond.

The decision was rescinded and the matter remitted for a full hearing before a different arbitrator.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer took the position that the applicant's injuries were restricted by the Minor Injury Guideline (MIG), limiting his benefits to $3,500.

The applicant argued that he suffered from pre-existing conditions and subsequent psychological disabilities, including chronic pain, PTSD, and TMJ syndrome, which took him outside the MIG.

The arbitrator found that the insurer bears the burden of proving that an insured falls within an exception to coverage, such as the MIG.

The arbitrator concluded that the applicant's TMJ, chronic pain, and psychological impairments were separate and distinct from his soft tissue injuries and were supported by credible evidence.

Therefore, the applicant was not precluded from claiming benefits beyond the $3,500 limit.