Costs not incurred, treamtent plans not reasonable or necessary, collateral beneftis exists; application denied - Applicant v Aviva LAT 17-002313

January 22, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-002313 v Aviva Insurance Canada, 2017 CanLII 81573 (ON LAT)

Decision Date: December 1, 2017
Heard Before: Adjudicator Chris Sewrattan

ENTITLEMENT TO BENEFITS: applicant fails to mention that she may have collateral benefits; applicant fails to show treatment is reasonable and necessary; applicant fails to incur cost of treatment claimed

The applicant was involved in a car accident on May 30, 2014, and sought a number of benefits from Aviva. When they were denied she applied to the LAT.

Issues :

1. Is the applicant entitled to a $3,500.00 medical benefit for pharmacotherapy services, recommended in a Treatment Plan dated April 9, 2015?
2. Is the applicant entitled to a $2,269.00 medical benefit for physiotherapy services, recommended in a Treatment Plan dated April 7, 2015?
3. Is the applicant entitled to a $1,755.43 in-home assessment, recommended in a Treatment Plan dated August 28, 2014?
4. Is the applicant entitled to a $2,663.40 chronic pain assessment, recommended in a Treatment Plan dated October 27, 2015?
5. Is the applicant entitled to interest on any overdue payment of benefits?

Result:

1. The applicant’s claims are dismissed. The applicant is not entitled to payment for the pharmacology or physiotherapy expenses for three reasons. First, the expenses were not incurred.
2. Second, the potential existence of collateral benefits prevents the Arbitrator from concluding that the expenses are necessary. Third, the applicant has generally failed to prove that the expenses are reasonable and necessary.
3. The applicant is barred from bringing her claim for the cost of the in-home assessment. The claim is outside of the two-year limitation period.
4. The applicant is not entitled to the remaining amount of money in dispute for the chronic pain assessment because she did not prove that this portion of money was put toward an authorized transportation expense.

Issues 1 and 2: Is the applicant entitled to a $3,500.00 medical benefit for pharmacotherapy services and a $2,269.00 medical benefit for physiotherapy services?

The applicant is not entitled to a $3,500.00 medical benefit for pharmacotherapy services or a $2,269.00 medical benefit for physiotherapy services. The pharmacotherapy services consist of Botox and other injections to treat migraines. The physiotherapy services consist of acupuncture, exercise, and a number of simulation and mobilization exercises. There are three reasons that the applicant is not entitled to these benefits, each of which independently disentitles the applicant:

1. The applicant did not incur the expenses
2. The applicant may have collateral benefits to pay for the expenses
3. The applicant has not proven that the expenses are reasonable and necessary

Issue 3: Is the applicant entitled to a $1,755.43 in-home assessment?

The applicant is not entitled to the in-home assessment because her claim is outside of the limitation period. Under section 56 of the Schedule, an insured person has two years after an insurer’s refusal to pay an amount claimed for a benefit in which to apply to the Tribunal. Aviva denied the applicant’s claim for an in-home assessment on October 28, 2014, making the last date on which to apply to the Tribunal October 28, 2016. The applicant applied to the Tribunal after this date, on April 11, 2017.

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.