Applicant provides inconsistent testimony to a wide range of assessors and fails to prove treatment is reasonable and necessary - MTR v Aviva LAT 17-001721

February 09, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

MTR  v Aviva LAT 17-001721

Decision Date:  November 23, 2017
Heard Before: Adjudicator Christopher A. Ferguson

ENTITLEMENT TO BENEFITS: applicant provides very inconsistent and conflicting self assessments to all healthcare assessors; applicant fails to make case that treatments are reasonable or necessary

MTR was in a car accident on December 12, 2015, and sought benefits pursuant to SABS. When benefits were denied MTR applied to the LAT.

Issues:

1. Is MTR entitled to a non-earner benefit in the amount of $185.00 per week from July 20, 2016 to date and ongoing?
2. Is MTR entitled to the cost of a psychological assessment in the amount of $2,200.00 recommended in an assessment plan submitted April 7, 2016?
3. Is MTR entitled to a medical benefit in the amount of $3,129.48 for psychological services in a treatment plan submitted on June 16, 2016?
4. Is MTR entitled to a medical benefit in the amount of $11,229.56 ($13,025.06 less $1,795.50 partially approved) for a multi-disciplinary chronic pain treatment program submitted on September 28, 2016?
5. Is MTR entitled to a medical benefit in the amount of $2,569.40 for physiotherapy services recommended in a treatment plan submitted on January 3, 2017?
6. Is MTR entitled to the cost of an orthopedic assessment in the amount of $2,520.00 recommended in an assessment plan submitted viva on August 4, 2016?
7. Is MTR entitled to interest on any overdue payments from Aviva?
8. Is Aviva liable to pay an award under because it unreasonably withheld or delayed payments to MTR?

FINDINGS

1. MTR has not proven her entitlement to the benefits she seeks: her application is denied.
2. The findings on issue 4 do not affect the portion of the plan already approved by Aviva: $1,795.50 is payable, with interest, by Aviva.
3. Aviva is not liable to pay an award under the Regulation.

Non-Earner Benefits

The Arbitrator noted that the Schedule provides that an insurer must pay a NEB to an insured person who does not qualify for an income replacement benefit and who suffers a complete inability to carry on a normal life as the result of an impairment sustained in an accident.  The compensable impairment must arise within 104 weeks after the accident.

The parties agree that MTR’s pre-accident activities included housekeeping, grocery shopping (including walking to and from shops), cooking family dinners, socializing with friends and attending church services.  MTR is retired.

The Arbitrator reviewed the extensive testimony and medical records submitted by MTR, also with the IEs from a range of medical practitioners. The reports of either side contradict one another. The Arbitrator noted that all of the conclusions rely heavily on MTR’s self reporting.

MTR makes no explanation for the discrepancies in self-reporting in the different examinations.  Her arguments about methodological flaws in Aviva’s IE reports focus on other issues altogether.  She does not attack the IE reports for misquoting her own statements.  Accordingly, the Arbitrator is confident in giving the IE reports substantial weight in determining how MTR’s self-reporting speaks to her claims of complete inability to carry out pre-accident activities.

On the basis of the evidence presented the Arbitrator found that MTR has not met the onus on her to prove that she is entitled to NEBs.  MTR has not met the onus to prove she is entitled to psychological services. MTR has failed to prove she is entitled to Chronic Pain Treatment.

As to the partially paid treatment plan, the amount recommended for the pain treatment was approved by Aviva and is payable by it.  If the amount has not yet been paid, it is overdue, and interest is payable on it.

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.