Arbitrator Prefers Evidence of Applicant's Physicians - Applicant v Unifund - LAT 16-002818

August 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Unifund - LAT 16-002818

Date of Decision: June 12, 2017
Heard Before: Adjudicator Chris Sewrattan

MIG: Is the applicant entitled to benefits? Applicant has met burden of proof for psychological benefits. Arbitrator prefers evidence and testing methods of applicant's physicians over those of IE.

The applicant was injured in a car accident on October 9, 2014. She sought benefits under the SABS from Unifund, and has applied to the LAT to determine that her injuries are outside the scope of the Guideline and entitled to payment for a number of treatment plans and assessments.

Issue:

1. Did the applicant suffer predominantly minor injuries as defined under the Schedule?
2. Is the applicant entitled to a $3,085.89 medical benefit for physiotherapy services in a treatment plan dated November 7, 2014?
3. Is the applicant entitled to a $2,388.50 medical benefit for physiotherapy services in a treatment plan dated January 19, 2016?
4. Is the applicant entitled to the cost of an examination ($2,000) for a psychological assessment, which is recommended on January 26, 2016?
5. Is the applicant entitled to the cost of an examination ($2,000) for a chronic pain assessment submitted to Unifund on February 10, 2016?
6. Is the applicant entitled to interest on any overdue payment of benefits?
7. Is the applicant entitled to costs under Rule 19.1?

Result:

1. The psychological injury sustained as a result of the motor vehicle accident is not predominantly minor and, as a result, the applicant’s treatment is not subject to the Guideline.
2. The applicant is entitled to the cost of examination for the psychological and chronic pain assessment, respectively. She is entitled to interest on these payments in accordance with s. 51 of the Schedule.
3. The applicant is not entitled to either of the treatment plans for physiotherapy services as the treatment plans do not have reasonable and necessary goals and methods for treating her injuries.
4. The applicant is not entitled to costs under Rule 19.1 of the LAT Rules because the conduct about which she complains, even if true, occurred outside of the Tribunal’s proceeding.

The Arbitrator reviewed the medical evidence and the law and determined that the evidence shows the applicant’s psychological and physical impairments render her not subject to the Guideline. On the basis of the evidence the Arbitrator ruled that the applicant suffers from Adjustment Disorder with Mixed Anxiety and Depressed Mood, and a Specific Phobia relating to travelling in and around a vehicle.

The Arbitrator did not prefer Unifund’s IE, describing it as unconvincing in light of two tests administered by the applicant’s physicians. The Miller Forensic Assessment of Symptoms Test and Personality Assessment Inventory cause me to prefer the conclusions drawn by the applicant’s physicians.

The Arbitrator was not persuaded that the physiotherapy treatment plans are reasonable or necessary. While the applicant has provided evidence of her impairment she has shown me each treatment plan’s goal and the method of achieving it, she has not shown whether the treatment plans have reasonable and necessary goals and methods for treating her injuries.

Regarding the psychological assessment the applicant claims entitlement to $2,000 for the cost of an examination for a psychological assessment. Considering factual findings about the applicant’s psychological impairment the cost of the examination for a psychological assessment is a reasonable and necessary expense.  Unifund submits that the expense is not reasonable or necessary because the applicant was referred to an OHIP-funded program and has not attended. In Unifund’s view, the applicant has an obligation to use OHIP-funded treatment prior to seeking accident benefits. The Arbitrator noted that applicant does not have to defer to OHIP-funded treatment. The OHIP-funded treatment in question and the accident benefit are different programs. The applicant is entitled to avail herself of the accident benefit that is reasonable and necessary. Based on the facts of this case, the applicant is not required to defer to a different program funded by OHIP.

The Arbitrator reviewed the chronic pain assessment claim and noted that the applicant has proven entitlement to the cost of an examination for a chronic pain assessment.

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