Applicant Fails to Show Treatment Plan Necessary and Reasonable - CR and Scottish & York LAT 16-0020772018 CanLII 2304

April 02, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

CR and Scottish & York LAT 16-0020772018 CanLII 2304

Date of Decision: January 9, 2018
Heard Before: Adjudicator Khizer Anwar

MIG: applicant does not provide CNRs of pre-existing conditions; assessors thoroughly document pre-existing conditions; applicant fails to show treatment plan reasonable and necessary; injuries fall outside of MIG

CR was injured in car accident on June 24, 2015 Scottish & York pursuant to the SABs. When a treatment plan was submitted and denied CR applied to the LAT for Arbitration.

Issues:

1. Do CR’s injuries fall under the MIG?
2. Is CR entitled to a medical benefit in the amount of $4,273.00 for chiropractic services, as outlined in the Treatment and Assessment plan (OCF-18) dated August 24, 2015?
3. Is CR entitled to interest on overdue payment of benefits?

Result

1. CR’s injuries do not fall under the MIG.
2. The Treatment and Assessment plan in dispute is not reasonable and necessary.
3. CR conceded in her submissions that since the costs of treatment have not been incurred, interest is not payable.

The Adjudicator noted that CR chose not make reply submissions at the written hearing, and the only evidence before the LAT is documentary evidence. The issues in dispute in this matter ultimately turned on the evidence before me with respect to CR’s pre-existing injuries and the chronic pain syndrome diagnosis by one of the assessors. The Adjudicator noted that while CR’s evidence was not perfect and Scottish & York made strong submissions to support its position, that CR provided sufficient and satisfactory evidence to prove on a balance of probabilities that she is r entitled to treatment beyond the $3,500 limit under the MIG.

The Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the Cap. This is possible where an injured person’s healthcare provider determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and would prevent the injured person from achieving maximal recovery from the minor injury if benefits are limited to the Cap. The pre-existing medical condition must also prevent maximal recovery under the Cap.

CR contends that her injuries do not fall within the MIG, as they would be a barrier to her maximal recovery under the Cap. She relies on several medical reports to support her position.  Based on the reports the Adjudicator was satisfied that the 2015 accident, coupled with a 2012 accident, materially contributed to the development of the chronic pain syndrome in CR. Both the reports also identify that the 2015 accident aggravated CR’s pre-existing injuries sustained in the 2012 accident.

Pre-existing Injuries

The information on CR’s pre-existing injuries comes from: a) CR’s submissions; and b) the expert reports of the assessors who examined CR. CR did not provide clinical notes and records (“CNRs”) of a treating health practitioner or her family doctor. Hence, there is no evidence before the Tribuanal that outlines CR’s pre-existing injuries, documented prior to the 2015 accident. CR also does not specifically make submissions on whether the pre-existing injuries would prevent her maximal recovery under the MIG. As a result, Scottish & York has invited me to draw an adverse inference from CR’s failure to do so. CR seemed content in relying on the expert reports of the assessors to establish that both her current and pre-existing injuries are a barrier to her maximal recovery under the MIG.

On the strength of CR’s current assessments the Adjudicator decided not to draw an adverse inference about the pre-existing injuries as requested by Scottish & York. It has already been established above that the burden of proof rests with CR in this matter. However, it is noteworthy that this onus does not absolve Scottish & York of its responsibility to seek and obtain information it deems necessary to continually adjust CR’s file or to support its own position. In this matter, Scottish & York failed to provide any evidence of any steps taken by it to obtain the treating practitioner’s CNRs (or other information such as the previous accident benefits file), absence of which it claims was prejudicial to its position.

Based on the medical evidence provided by the assessors, which was consistent in its findings, the Adjudicator found that it is an undisputed fact that CR did sustain injuries in the 2012 accident. It is the nature and extent of aggravation of these pre-existing injuries as a result of the 2015 accident that is the bone of contention. On the basis of the evidence the Adjudicator found that the 2015 accident did cause CR’s impairment and materially contribute to the development of the chronic pain syndrome.

CR did not show that the treatment plan proposed was reasonable and necessary and on that basis the adjudicator denied it.

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