Applicant and Aviva Insurance Canada, 2018 CanLII 13149 ON LAT 17-001040

May 01, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Aviva Insurance Canada, 2018 CanLII 13149 ON LAT 17-001040

Date of Decision: January 29, 2018
Heard Before: Adjudicator Eleanor White

MEDICAL TREATMENT: applicant shows that some treatment plans are reasonable and necessary; some teatment plans are denied as they are not necessary

The applicant was in a car accident on June 25, 2014 and sought benefits pursuant SABs. The applicant was initially found to sustain only minor injuries but was eventually excluded from the limitation of coverage under the MIG. After the applicant incurred multiple treatment plans for therapeutic services, Aviva denied further treatment plans. The applicant attended various IEs and subsequently, Aviva maintained its denial of the benefits. As a result, the applicant appealed the denial to the LAT.

Aviva found that the Treatment Plans submitted were not consistent with the recommendations made in its assessor’s reports for greater emphasis on independent exercise rather than facility-based passive treatment and found insufficient evidence to support the recommendation for both the chronic pain and the neurological assessments.

1. Is the applicant entitled to receive the following medical benefits:
   1. Chiropractic and massage services in the amount of $753.76 submitted on January 23, 2015
   2. Chiropractic services in the amount of $1,868.74 submitted on February 18, 2015
   3. Chiropractic services in the amount of $1,716.58 submitted on June 8, 2015
   4. Chiropractic, massage and active therapy services in the amount of $1,613.63 submitted on August 5, 2015
2. Is the applicant entitled to the cost of an examination for a neurological assessment in the amount of $1,980.00, submitted March 10, 2016 Is the applicant entitled to the cost of an examination for a chronic pain assessment in the amount of $1.950.80, submitted March 18, 2016
3. Is the applicant entitled to interest on overdue benefits under section 51 of the Schedule?

RESULTS

1. The applicant is entitled to the two treatment plans listed above as   Issue 1 (a) and 1 (b), dated as submitted on January 23, 2015 and February 18, 2015, respectively
2. The applicant is not entitled to the remaining treatment plans listed above as Issues 1 (c) and 1 (d), dated as submitted on June 8, 2015 and September 24, 2015, respectively.
3. The applicant is entitled to the cost of examination for chronic pain, submitted on March 8, 2016.
4. The applicant is not entitled to the cost of examination for a neurological assessment.
5. The payment of interest for incurred and ordered treatment plans is payable under section 51 of the Schedule.

An insurer is liable to pay the medical and rehabilitation benefits on behalf of an insured person who sustains impairment as a result of an accident in accordance with the Schedule. The medical benefits must be reasonable and necessary expenses incurred as a result of the accident. The onus is on the insured to show they are necessary.

The Adjudicator reviewed the medical evidence and found that the provision of ongoing facility-based passive care, as recommended in issues 1(a) and 1(b) is reasonable and necessary because it is supported by the ongoing pain, self-reported by the applicant and her request to resume care from the service provider of her choice. However, the course of care is not providing continued improvement; again, self-reported by the applicant. The IE assessors acknowledge the applicant’s report of pain and agree that continued passive care is not recommended, instead suggesting remedies that concentrate more on fitness and coping skills for pain management. Because of this, the two treatment plans for continued passive and facility-based care disputed in issues 1(c) and 1(d) to be reasonable and necessary.

The proposal for a chronic pain assessment is reasonable and necessary, precisely because of the arguments in the paragraph above. The applicant’s problem is one of continued pain, not demonstrable loss of function. It is reasonable to assess the applicant for chronic pain, in order to find alternative expedient remedies or coping skills to diminish the limitations of pain.

The proposal for a neurological assessment is not reasonable and necessary as neither the treating providers, the applicant nor the IE assessors report the presence of neurological signs or deficits. The IE neurological assessor does note the presence of headaches since the accident and suggests that due to their chronicity the family doctor may wish to order some imaging and if positive, make a referral to a treating neurologist.  Review of the family doctors’ clinical notes and records reveal reports of pre- and post-accident headaches. The applicant also reported to an IE assessor, Dr. Tansey, that her headaches were diminishing and that she took no medication for them.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.