Applicant Fails to Support Treatment Plans With Medical Evidence Showing They Are Reasonable and Necessary - Applicant v Aviva Insurance Canada, LAT 17-002689 2018 CanLII 2311

March 30, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Aviva Insurance Canada, LAT 17-002689 2018 CanLII 2311

Date of Decision: January 8, 2018
Heard Before:  Adjudicator Derek Grant

ENTITLEMENT TO TREATMENT: applicant claims previous accident injuries worsened by new car accident; applicant fails to provide medical evidence that proposed treatment plans are reasonable and necessary

The applicant was injured in car accident on May 29, 2014 and sought benefits pursuant to the SABs, however when Aviva denied treatment the applicant applied for arbitration at the LAT.

The applicant sustained injuries to her neck, left shoulder/arm, left hip/leg and full back. These were similar to injuries she sustained when she was struck by a car as a pedestrian on January 10, 2013, ten months previously. She submits she still requires chiropractic treatment for her more recent accident injuries because her recovery from these injuries has been prolonged by her pre-existing injuries. She also claims she has chronic pain syndrome from the January 10, 2013 accident, which was exacerbated by this car accident.

The onus is on the applicant to prove, based on a balance of probabilities, that she is entitled to the benefit in dispute on the basis that the treatment is reasonable and necessary as a result of the accident. The Adjudicator reviewed the evidence and found that the applicant has not provided persuasive evidence to support her position that the medical treatment she claims in this application is reasonable and necessary.

Issues:

1. Is the applicant entitled to receive a medical benefit in the amount $4,124.88 for chiropractic services, recommended in a treatment plan dated March 19, 2015?
2. Is the applicant entitled to interest on any overdue payment of benefits?
3. Is the applicant] entitled to costs due to unreasonable, frivolous, vexatious or bad faith actions on the part of Aviva?

Result

1. The applicant is not entitled to the treatment plan in dispute.
2. The applicant is not entitled to interest.
3. The applicant is not entitled to costs.

The Adjudicator reviewed the facts and noted that the applicant’s injuries are not predominanatly minor and thus she is eligible for treatment up to $50,000.00 in medical and rehabilitation benefits.  She must show that the treatments are reasonable and necessary due to injuries she sustained in a previous accident and chronic pain.

Aviva submits the treatment plan is not reasonable and necessary because, in the opinion of its medical assessor, the applicant has reached maximum medical recovery for her accident-related injuries and any further facility-based treatment for chiropractic treatment will not improve her condition. Aviva further submits that “the applicant has not identified a single recommendation from any health practitioner to suggest that additional chiropractic treatment is warranted.”

On review of the medical evidence the Adjudicator found that the applicant has not met her onus in explaining how this treatment plan meets the test of being reasonable and necessary. Consequently, the treatment plan is not 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.