Arbitrator prefers applicant's medical evidence over IE - Applicant v Royal Sun LAT 17-000117 2017 CanLII 81608 (ON LAT)

January 25, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Royal Sun LAT 17-000117  2017 CanLII 81608 (ON LAT)

Decision Date: November 16, 2017
Heard Before:  Adjudicator Christopher A. Ferguson

PAYMENTS FOR ASSESSMENTS AND TREATMENTS: applicant provides more detailed assessment of injuries; IE contains some factual errors and are not completed by specialists; Arbitrator prefers applicant’s evidence

The Applicant was in a car accident on April 30, 2015, and sought benefits pursuant to the SABS. When benefits were denied, and mediation failed, the Applicant applied for dispute resolution services to the LAT.

Issues

1. Is the applicant entitled to payment for the cost of a physiatry assessment as detailed in a treatment plan dated January 3, 2017?
2. Is the applicant entitled to payments for the cost of examinations in the amount of $763.25 for an occupational therapy in a treatment plan dated January 3, 2017?
3. Is the applicant entitled to receive a medical benefit in the amount of $3,100.21 for acupuncture services detailed in a treatment plan dated April 3, 2017?
4. Is the applicant entitled to receive a medical benefit in the amount of $315.00 for pharmacotherapy services detailed in a treatment plan dated April 3, 2017?
5. Is the applicant entitled to interest for the overdue payment of benefits?
6. Is Royal Sun liable to pay an award under Regulation because it unreasonably withheld or delayed payments to the Applicant?

Findings

1. The applicant is entitled to payments for the cost of examinations set out as issues 1 and 2 respectively.
2. The applicant is entitled to receive medical benefits set out above in paragraph 3 and 4 respectively.
3. The applicant’s claim for a special award is dismissed.
4. Interest on overdue payments is owed on all overdue accrued amounts.

Reasons

The applicant must show the treatment plans are reasonable and necessary. To meet her burden of proof, the applicant relies on a number of reports and recommendations from an array of physicians including medical specialists.  Her case for ongoing pain issues, concussion and post-concussive syndrome is based on reports from a variety of doctors, chiropractors, psychiatrists, psychologists, and an optometrist.

In denying the applicant’s claims, Royal Sun relies on two insurer’s examinations.  Both reports included a review of the applicant’s medical documentation. Both reports indicate no diagnosis of concussion or post-concussive disorder, or chronic pain. Both reports conclude that the treatment and assessment plans proposed by the applicant are not reasonable and necessary for the applicant’s Whiplash Associated Disorders and lumbosacral strain injuries – the only physical injuries endorsed in the reports.

The applicant contends that her evidence outweighs that of IEs since her reports were from specialists, the IE reports contained factual errors, no reasons were given in the reports as to why treatment should be refused for OT and physiatry.

Royal Sun notes that the applicant’s reports include a range of diagnoses that include psychological injuries, and contends that this generates doubt as to whether the proposed assessment and treatments, which are largely “physical modalities”, are necessary. 

Upon review of the medical evidence the Arbitrator determined that on balance the applicant’s evidence outweighs Royal Sun’s IE evidence with respect to a diagnosis of concussion, post-concussive disorder and chronic pain, and that on a balance of probabilities, the applicant’s proposed treatment and assessment plans are reasonable and necessary, and ought to be paid.

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.