Applicant Bears Onus to Prove Treatments are Reasonable and Necessary - RB v Aviva Insurance Canada, LAT 17-001238 2017

December 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

RB v Aviva Insurance Canada, LAT 17-001238 2017 CanLII 76926 (ON LAT)

Date: November 2, 2017
Heard Before: Adjudicator Billeh Hamud

ENTITLEMENT TO BENEFITS: treatment plans must be reasonable and necessary; applicant bears onus to prove so

RB was injured in a car accident on August 14, 2015 and sought benefits pursuant to SABS but when Aviva denied four treatment plans for various medical benefits and an examination, and mediation failed, RB applied for arbitration at the LAT.

Issues:

1. Is RB entitled to payments for the cost of examinations in the amount of $1,994.72 for orthopaedic assessment in a treatment plan dated November 25, 2015?
2. Is RB entitled to receive a medical benefit in the amount of $1.296.99 for chiropractic services in a treatment plan dated November 30, 2015?
3. Is RB entitled to receive a medical benefit in the amount of $4,617.27 for chiropractic services in a treatment plan dated January 24, 2016?
4. Is RB entitled to receive a medical benefit in the amount of $4,268.24 for chiropractic services in a treatment plan dated March 27, 2016?
5. Is Aviva liable to pay an award under s.10 of Regulation 664 because it unreasonably withheld or delayed payments to RB?
6. Is RB entitled to interest on any overdue payment of benefits?

RESULT:

1. RB is not entitled to payment for the cost of an examination for an orthopedic assessment.
2. The treatment and assessment plans dated November 30, 2015 and January 24, 2015 are reasonable and necessary.
3. The treatment and assessment plan dated March 27, 2016 is not reasonable and necessary.
4. Aviva is not liable to pay an award under s.10 of Regulation 664 because it did not unreasonably withhold payment of any benefit.
5. RB is entitled to interest in accordance with the Schedule.

On November 25, 2015, Dr. Frederic Langer, RB’s Orthopaedic Surgeon, completed the OCF-18 noting injuries and recommending an orthopaedic assessment based on the reported injuries of RB which suggested musculoskeletal/ligamentous injuries. Aviva denied treatment and assessment plan and stated that they were unable to determine whether the recommendations were reasonably required based on the injuries sustained in the accident. Aviva also noted that the type of treatment did not appear consistent with the patient’s diagnosis and that treatment appeared to focus on passive care without an active rehabilitation phase. Aviva also provided notice to RB for a s.44 examination. In their submissions, Aviva concedes that the denial of Dr. Langer’s OCF-18 was made in error because it made reference to chiropractic and massage therapy rather than his recommended orthopaedic assessment.

RB bears the onus of providing sufficient evidence to prove the given treatment and assessment plan is reasonable and necessary. The Adjudicator found RB is not entitled to the cost of an orthopaedic assessment because he failed to provide sufficient evidence to demonstrate that an orthopaedic assessment is reasonable and necessary based on the injuries.

The Adjudicator found that on the basis of the evidence that RB is entitled to a medical benefit for two out of the three treatment plans as the medical expenses are reasonable and necessary as a result of the accident. The treatment’s goal of pain reduction, increasing strength and increasing range of motion to be reasonable and necessary.

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.