Applicant Entitled to Some Treatment Plans and Medical Expenses But Fails to Make Case for Rest - KA and Aviva LAT 17-002023 2018 CanLII 8086

April 18, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

KA and Aviva LAT 17-002023 2018 CanLII 8086

Date of Decision: January 25, 2018
Heard Before: Adjudicator Avvy Go

ENTITLEMENT TO BENEFITS: adjudicator prefers some evidence over other; applicant makes case for some treatment plans; fails to provide evidence for others

KA was injured in a car accident on March 20, 2015 and sustained a number of injuries as a result. She applied to Aviva pursuant to the Schedule. KA initially sought to receive a number of benefits including IRBs, ACBs and several medical benefits.

Issues:

1. Is KA entitled to receive a medical benefit in the amount of $220 for other goods and services of a medical nature (cast and crutches), recommended in a treatment plan submitted on June 1, 2015, denied by Aviva on June 22, 2015?
2. Is KA entitled to receive a medical benefit in the amount of $1,070 for other assistive devices (body pillow and compression stockings), recommended in a treatment plan submitted on May 2, 2016, denied by Aviva on May 24, 2016?
3. Is KA entitled to receive a medical benefit in the amount of $2,706.20 for chiropractic services, recommended in a treatment plan submitted on May 18, 2016, denied by Aviva on May 20, 2016?
4. Is KA entitled to interest for any overdue payment of benefits?

Result:

1. KA is entitled to receive a medical benefit in the amount of $1,070 for assistive devices and interest for the overdue payment of this benefit; and
2. KA is not entitled to receive the amount of $220 for goods and services of a medical nature and the medical benefit in the amount of $2,706.20 for chiropractic services.

KA was taken to the hospital by ambulance after striking the centre median to avoid hitting a car. While at the hospital, she was diagnosed with an open calcaneus fracture, and underwent emergency surgery on her left foot with screws and a plate inserted. KA was discharged with her foot being placed in a cast and she was given crutches.  KA had follow up visits with the hospital to be fitted with another cast which she wore for approximately seven weeks. She was then placed in a removable boot. KA received a variety of treatments from multiple healthcare professionals. Aviva approved a number of treatment plans submitted by KA. KA has not exhausted all of the approved treatment plans.

The Schedule makes an insurer liable to pay medical and rehabilitation benefits for an insured person who sustains an impairment as a result of an accident, and section 15 which states that medical benefits shall pay for all reasonable and necessary expenses incurred including chiropractic and physiotherapy services, as well as assistive devices as incurred by the insured person as a result of the accident. The burden rests with an insured person to establish that the benefits sought are reasonable and necessary.

The Adjudicator reviewed the medical evidence and the claims. He noted that the evidence shows that the claim for $220 arose from KA’s hospital, and includes the ambulance service ($45.00) and crutches ($35.00) totalling $80.00, and a $140 foam walker cast. Aviva submitted that KA’s Extended Health Care Benefit provider had paid the $80 claim, and there is nothing to suggest that KA had invoiced her provider for the $140.00 cast. Aviva submitted that KA must provide proof that these claims were submitted to and rejected by her provider before Aviva could consider payment for such expenses.

As KA has not made any submissions with respect to the $220 claim and in fact did not include this as one of the issues in her submissions, KA’s failure to address this issue can be construed as an abandonment of her claim

Is KA entitled to receive a medical benefit in the amount of $1,070 for other assistive devices (body pillow and compression stockings)?

The Adjudicator reviewed the medical evidence and noted that the benefits claimed are reasonable and necessary.

Is KA entitled to receive a medical benefit in the amount of $2,706.20 for chiropractic services?

The Adjudicator again reviewed the evidence, noting that KA had not yet exhausted all of the approved treatment plans, and concluded that KA failed to establish that the treatment plan is reasonable and necessary.

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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.