Applicant Fails to Present Medical Evidence of Pre-existing Neuropsychological Condition - Applicant and Certas LAT 17-001228 2018 CanLII 8098

April 20, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Certas LAT 17-001228 2018 CanLII 8098

Date of Decision: January 26, 2018
Heard Before: Adjudicator Eleanor White

ENTITLEMENT TO BENEFITS: applicant shows that treatment plans are reasonable and necessary; applicant fails to show evidence of a pre-existing condition be worsened by accident; applicant fails to show that blow to head occurred during accident

The applicant was involved in car accident on November 30, 2012, when he rear ended a car. His vehicle was damaged beyond repair, and at the hospital he was diagnosed with soft tissue injuries and released same day. The applicant sought and received medical and other benefits from Certas however, when Certas refused to pay for further medical benefits the applicant applied to the LAT for arbitration.

Issues:

1. Is the applicant entitled to receive a medical benefit in the amount of $1,265.00 for chiropractic services recommended in a treatment plan dated May 9, 2016?
2. Is the applicant entitled to receive a medical benefit in the amount of $1,857.77 for a gym membership and assistive devices recommended in a treatment plan dated May 17, 2016?
3. Is the applicant entitled to recover the cost of a psychological assessment in the amount of $2,000.00 in a treatment plan dated December 6, 2016?
4. Is the applicant entitled to recover the cost of a psychoneurological assessment in the amount of $2200.00 completed in a treatment plan dated December 6, 2016?
5. Is the applicant entitled to interest for the overdue payment of benefits under s. 51 of the Schedule?

Results:

1. The applicant is entitled to expenses of $1,265 for chiropractic services because they are reasonable and necessary as a result of the accident.
2. The medical benefit of a gym membership and assistive devices submitted in a treatment plan in the amount of $1,857.77 is partially reasonable and necessary, allowing the gym membership for one year in the amount of $933.00.
3. The applicant is not entitled to $2,200 for the cost of a neuropsychological examination because he failed to present any medical evidence to show that he sustained any type of head trauma or brain injury as a result of the accident. Similarly, he also failed to produce any medical evidence to show that a pre-existing neuropsychological condition was exacerbated by the accident.
4. The applicant is entitled to $2,000 for the cost of a psychological assessment because of the diagnoses in the psychological evaluation of the applicant. The findings of 3 DSM-5 conditions; Persistent Depressive Disorder, Somatic Symptom Disorder and Specific Phobia (motor vehicle). The report was persuasive in its support of the applicant’s development of a chronic pain disorder. The treatment plan for a psychological assessment to be reasonable and necessary.
5. The applicant is entitled to interest for any payments overdue under s. 51 of the Schedule.

The applicant was 19 years old at the time of the accident. Prior to the accident, he had attended and finished high school, complicated by an early diagnosis of a Minimal Mental Disability, with associated behavioural issues, for which he received support from the Ontario Disability Support Program. The applicant had been working part-time at a pizza store since he was 16. He was registered in Algonquin College, studying electrical engineering. On his own report, he had a social life including some sports activities with his friends.

The parties agree that the applicant had developed symptoms of chronic pain syndrome as a result of his accident injuries. The applicant’s position is that the chiropractic treatment, gym membership and assistive devices he is claiming are reasonable and necessary because they provide pain relief and will improve his functional abilities. He submits that the neuropsychological assessment is necessary because of possible brain injury caused by the accident. He submits the psychological assessment is necessary because of Dr Payne’s diagnoses listed above and because the assessment will allow the doctor to determine a course of treatment or medication to help him.

Underlying Certas’s refusal to pay for the items claimed is the lack of objective evidence of examination findings, whether by imaging or by physical testing, that would support the service providers’ proposals for continued treatment. In support of its position, Certas relies on insurer’s examinations.

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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.