Applicant fails to provide current medical assessment of condition for claims based on accident 7 years earlier - claims denied - Applicant v Aviva LAT 17-000612

January 30, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Aviva Insurance LAT 17-000612, 2017 CanLII 81576 (ON LAT)

Decision Date: November 21, 2017
Heard Before:  Adjudicator Derek Grant

ENTITLEMENT TO TREATMENT: without current medical assessment of accident injuries from 7 years ago the Arbitrator is left to use most current IE; applicant fails to show that treatment is reasonable and necessary

The applicant was a seat-belted passenger when the car was T-boned on December 6, 2007. At the time of the accident, she was employed full-time as a financial planner. She returned to work about two months after the accident.  Two years post-accident, she went on disability and has not returned to work to date.  As a result of her injuries, she sought and received some insurance benefits from Aviva however, when Aviva denied funding for physical therapy the applicant appealed to the LAT.

Issue:

1. Is the applicant entitled to receive a medical benefit in the amount of $4,344.40 for physical therapy, recommended in a treatment plan dated November 14, 2014?

Result:

1. Based on a review of the evidence presented the proposed treatment plan is not reasonable and necessary, and as such, the applicant is not entitled to this treatment plan.

In her submissions, the applicant states that she suffered numerous injuries as a direct result of the accident, including a compound fracture of the L2 vertebrae and fractures of the pubic rami.  She seeks payment for physical therapy treatment recommended on November 14, 2014, approximately 7 years post-accident. From the medical evidence presented in this case, the primary goal of the disputed treatment plan is pain relief and management and maintaining current level of functioning.

On May 3, 2016, the Respondent denied the treatment plan, based on a January 29, 2015 IE report authored by Dr. LM, general physician.

The Arbitrator reviewed the law and noted that  Section 15 of the Schedule provides that the insurer shall pay for medical benefits to or on behalf of an applicant so long as the medical benefit is “a reasonable and necessary expense” incurred by the applicant “as a result of the accident.”

A physiatrist at The Rehab Centre completed the treatment plan in dispute and noted that the applicant sustained the following injuries as a direct result of the accident: nerve root and plexus disorders, sacroiliitis, other cervical disc generation, radiculopathy, lumbosacral region, low back pain and other chronic pain.  The goals of the treatment are “pain reduction, increase in strength, and increased range of motion.”  He also indicates that the treatment seeks to achieve “a return to activities of normal living and a return to pre-accident work activities.”

The applicant submits the relief of pain is a proper goal of treatment, even if the pain relief is not designed to promote recovery or lead to lasting improvement.  While the Arbitrator agrees that in many situations this may be true, the proposed treatment must still be “reasonable and necessary.”

The applicant relied on reports authored from a psychologist, dated December 7, 2011 and a chronic pain specialist, dated April 24, 2012.   No additional or more recent evidence to support the need for further facility-based physical treatment or an indication on how it will improve her condition.  Beyond these reports, the applicant has not provided any other evidence to support the entitlement to the treatment plan. The reports do not speak to the condition of the applicant when the 2014 treatment plan was proposed.

The applicant also submits that she continued to her family physician for pain complaints, however the note was not submitted by the applicant in her materials to the Tribunal, and as such, the Arbitrator was unable to place any weight on any reference to any reports from her doctor.

Aviva’s position is that the treatment plan is not reasonable and necessary because the applicant’s physical injuries are not severe enough to require further treatment. Aviva relies on the most recent IE by Dr. LM which the Arbitrator found to be the most reliable as to the applicant’s current condition.

On the basis of the evidence provided the Arbitrator ruled that the applicant has not shown the treatment to be reasonable or necessary and therefore denies the application for benefits.

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.