Applicant v Wawanesa LAT 16-001539, 2017 CanLII 82039 (ON LAT)

January 16, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Wawanesa LAT 16-001539, 2017 CanLII 82039 (ON LAT)

Decision Date: November 15, 2017
Heard Before: Adjudicator Paul Gosio

ENTITLEMENT TO BENEFITS: applicant fails to show that treatment plans are reasonable and necessary

The applicant was injured in a car accident on December 11, 2014 when the car she was in was struck from behind at a stop sign.  As a result of the accident, she suffered physical and psychological impairments including pain in her neck, shoulder and lower back, headaches and left knee and left toe pain, along with depressive and anxious symptomology relating to her ongoing pain as well as anxiety with respect to travelling in a vehicle. She sought benefits pursuant to the Schedule and to date Wawnesa has approved and paid for benefits in the amount of $10, 806.74.

The applicant submitted additional treatment plans which the insurer denied on the basis that the further treatment is not reasonable and necessary. The applicant’s challenge to those denials forms the basis of this application.

Issues in Dispute:

The parties are in agreement that the applicant sustained an impairment within the meaning of the Schedule as a result of the accident, and that the applicant’s injuries do not fall within the Minor Injury Guideline. The insurer’s own psychological assessment concludes that the applicant has significant psychological symptoms and that “her diagnostic conditions are not subsumed under the Minor Injury Guideline definition as defined by the [Schedule].” Furthermore, to date, the insurer has approved and paid for benefits in the amount of $10,806.74, well above the Minor Injury Guideline limits on medical and rehabilitation benefits.

Given those agreements, the remaining issues in dispute that must be decided are:

1. Is the applicant entitled to receive a medical benefit in the amount of $3,658.50 for an orthopaedic assessment, recommended in a Treatment and Assessment Plan (OCF-18) dated July 2, 2015, and denied by the respondent on July 20, 2015?
2. Is the applicant entitled to receive a medical benefit in the amount of $1,672.11 for a functional abilities evaluation, recommended in a Treatment and Assessment Plan (OCF-18) dated May 21, 2015, and denied by the respondent on June 5, 2015?
3. Is the applicant entitled to receive a medical benefit in the amount of $2,152.00 for a functional abilities evaluation, recommended in a Treatment and Assessment Plan (OCF-18) dated June 10, 2015, and denied by the respondent on June 30, 2015?
4. Is the applicant entitled to receive a medical benefit in the amount of $5,450.00 for in-home sessions of exercise and mobilization and manipulation provided by a physiotherapist, recommended in a Treatment and Assessment Plan (OCF-18) dated March 24, 2016, and denied by the respondent on June 9, 2016?
5. Is the applicant entitled to receive a medical benefit in the amount of $2,347.27 for various assistive devices, recommended in a Treatment and Assessment Plan (OCF-18) dated June 15, 2015, and denied by the respondent on June 30, 2015?
6. Is the applicant entitled to receive a medical benefit in the amount of $5,450.00 for in-home sessions of exercise and mobilization and manipulation, recommended in a Treatment and Assessment Plan (OCF-18) dated October 29, 2015, and denied by the respondent on November 4, 2015?
7. Is the applicant entitled to receive a medical benefit in the amount of $4,706.23 for psychological services, recommended in a Treatment and Assessment Plan (OCF-18) dated April 8, 2016, and denied by the respondent on June 9, 2016?
8. Is the applicant entitled to receive a medical benefit in the amount of $3,183.60 for exercise acupuncture and massage therapy sessions, recommended in a Treatment and Assessment Plan (OCF-18) dated October 15, 2015, and denied by the respondent on December 31, 2015?
9. Is the applicant entitled to interest on any overdue payment of benefits?

Result:

1. The applicant has not met her onus of establishing on a balance of probabilities that the treatment plans in dispute are reasonable and necessary, and as a result, no interest is payable.

Discussion:

Are the disputed treatment plans reasonable and necessary?

Approval of each of the treatment plans in dispute turn on whether the particular treatment plan is reasonable and necessary considering the evidentiary record. It is the applicant who bears the onus to establish, on a balance of probabilities, that the treatments plans in dispute are reasonable and necessary. The applicant failed to provide a persuasive analysis as to why each individual treatment plan was reasonable and necessary. The applicant, in its submissions, merely reproduced the particulars of the treatment plan in question and the identified goals. It then submitted that the applicant should be entitled to the medical benefit on the basis that it is “reasonable and necessary to the circumstances of the claimant” and that the medical evidence is demonstrative of this without directing me to any additional supporting evidence beyond the subject treatment plan itself.

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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.