Applicant Contradicts Own Evidence - Chronic Pain Treatment Plan Denied - Applicant v The Personal LAT 17-002301

December 24, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v The Personal Insurance Company LAT 17-002301 2017 CanLII 77345 (ON LAT)

Decision Date: November 7, 2017
Heard Before: Adjudicator Christopher A. Ferguson

ENTITLEMENT TO BENEFITS: entitlement to chronic pain program; is the treatment reasonable and necessary; onus on applicant to show treatment is reasonable and necessary; applicant provides evidence at IE that activity levels are up from before the accident; applicant says pain has improved significantly; applicant has failed to follow up on approved treatment plans.

The applicant was injured in a car accident on August 7, 2014, and sought SABs. Some benefits were approved by Personal, but when chronic pain assessment was denied and mediation failed, the applicant applied for arbitration to the LAT.

Issue:

1. Is the applicant entitled to the cost of a chronic pain assessment in the amount of $2,000.00 recommended in an OCF 18 dated February 5, 2016?
2. Is the applicant entitled to the cost of the disputed CPA because she has proven that it is reasonable and necessary?
3. Is the applicant entitled to interest on any overdue payments from The Personal?
4. Is the applicant entitled to costs?

Result:

1. The Personal’s EOBs complied with the requirements of the Schedule; it is not liable to pay the applicant’s claim under s.38(11).
2. The applicant has not proven that the disputed CPA is reasonable and necessary.
3. The applicant is not entitled to interest on overdue payments from The Personal.
4. There is no basis on which to award costs in this matter.
5. Request denied.

Section 38 of the Schedule prescribes the steps that an insurer must take to notify an insured person of its decision whether or not to pay for treatment and assessment plans.  It sets out the required contents of such notices and the timelines for providing them to the insured person.

The applicant submits that the Tribunal should set aside The Personal’s denials of her claim for a chronic pain assessment as insufficient, because its EOBs did not meet the requirements of s.38 of the Schedule. 

The Personal submitted to the Adjudicator to ignore the applicant’s arguments about the sufficiency of its EOBs or compliance with s.38 of the Schedule.  It contends that the applicant seeks to add a “new” issue to the dispute, and that it was obliged to raise these concerns at the case conference stage of these proceedings.

The Adjudicator reviewed the Tribunal’s Order of July 5, 2017 and determined that the description of the issue in the Order is wide enough to allow the applicant to establish her entitlement to the disputed benefit on any basis consistent with the criteria set out in the Schedule, and s.38(11) is one such criterion, and the applicant may raise the issue of compliance or sufficiency of denial. 

The Personal also contends that, even if its EOBs are found to be insufficient, the applicant must still prove that the treatment plans submitted are reasonable and necessary.  The Adjudicator rejected that contention, because up review of the Act and Schedule the Adjudicator can find no authority to relieve The Personal from its liability under s.38 (11) on the basis that the disputed assessment plan isn’t reasonable and necessary.

Initial EOB

The applicant argues that when The Personal denied her claim for a CPA they did not comply with s. 38 of the Schedule. In support of this argument the applicant submits that in some cases it failed to include reasons for the refusal to pay thereby effectively denying the right to challenge the refusal. The applicant also claims that The Personal failed to provide the required copy of its IE reports and associated EOB within the ten business days prescribed by s.38(13,14) of the Schedule, which she argues entitles her to payment of the disputed benefit.

The applicant argues that the above-noted non-compliance is not merely technical, but in fact is material and denies her right to a fair understanding of the reasons for denial and to the information she needs to decide whether or not to challenge the denial. 

The Adjudicator reviewed the first EOB, the other evidence and the law and determined that  The Personal’s initial denial was compliant with s.38 of the Schedule, because:

• The Schedule does not require the detailed information suggested by the applicant, namely “supporting reports” and an explanation of how conclusions were reached.
• The Adjudicator did not find it plausible that the Schedule can be interpreted to require the insurer to provide more information than it has at the time of denial.

The second EOB provides more detailed information, naturally, than the first, setting out the opinions of each IE practitioner and relating them to the determinations made by The Personal, and also includes both IE reports. The Personal submitted evidence in the form of a fax transmittal certificate dated August 2, 2016 to prove its compliance with s.38(13) of the Schedule. The certificate is uncontroverted by the applicant and therefore the Adjudicator found the question of notice in favour of The Personal.

The applicant argues that the psychological report upon which The Personal relied in its denial was irrelevant to the issue of chronic pain and that as a result it provided no basis on which the applicant could challenge the denial.  The Adjudicator found the applicant’s argument unpersuasive with respect to the sufficiency of denial and compliance with s.38. The second EOB was compliant with the Schedule.  Payment of the disputed benefit is denied.

Is the Chronic Pain Assessment Reasonable & Necessary?

The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

The applicant relies on her series of treatment and assessment plans as evidence of the “ongoing nature” of her injuries and “persistent pain even after treatment” that indicate “at least that she should have the opportunity to be assessed by a chronic pain specialist”.  No other evidence is submitted with respect to chronic pain. The applicant points to the weakness of The Personal’s IEs in not addressing directly the issue of chronic pain. 

1. The Personal argues that the applicant has not met her onus to prove that the disputed assessment plan is reasonable and necessary.  In support of its position, it offers evidence to rebut the applicant’s position that she suffers from persistent and intractable pain that warrants a full chronic pain assessment.  This evidence includes:
   1. The applicant’s statements to IE examiners that:
      1. she plays elite soccer 5-6 times per week – more often than she did before the accident, earning extra gym credit at school for her play;
      2. she missed no school (with the exception of gym class for 5 months in 2014-15 school year) as the result of the accident and continues to earn excellent academic grades;
      3. her pain “was not nearly as bad as it was” and that it was “75% improved”;
      4. lower back pain was intermittent, associated with prolonged sitting and relieved by physiotherapy, stretching and activity such as playing soccer.

1. The applicant’s apparent failure to pursue treatment under a number of approved treatment plans since being removed from the MIG, including a recent treatment plan for chiropractic treatments.
2. Various medical documents indicating that the applicant’s pain symptoms have steadily abated since the accident.

On this basis the Adjudicator found that, on balance, the evidence against the need for a chronic pain assessment outweighs the applicant’s evidence.

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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.