Insufficient Evidence Provided to Warrant Benefits - SU v Wawanesa - 16-003333 v Wawanesa 2017 CanLII 59508 (ON LAT)

October 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

SU v Wawnesa - 16-003333 v Wawanesa 2017 CanLII 59508 (ON LAT)

Date of Decision: August 1, 2017
Heard Before:  Adjudicator Christopher A. Ferguson

ENTITLEMENT TO TREATMENT: did applicant produce documents? Yes, and respondent is required to pay benefits if reasonable and necessary; treatment not reasonable or necessary

SU was involved in car accident on July 21, 2009, and sought benefits pursuant to the SABs. SU seeks payment of two treatment plans, but before those plans were considered, the Adjudicator considered Wawanesa’s submission that it is not liable to pay the disputed benefits because SU failed to meet Wawanesa’s requests for production of documents as required by s. 33(1)1 of the Schedule.

On review of the evidence and the law, the Adjudicator found that s.33 of the Schedule is inapplicable to the facts of this case, and therefore, Wawanesa is liable to pay the benefits in dispute if they are determined to be reasonable and necessary.

Issues:

1. Is SU entitled to a medical benefit outlined in a chiropractic treatment plan recommended on March 22, 2016 in the amount of $2,216.18, denied by Wawanesa on April 4, 2016?
2. Is SU entitled to the cost of a psychological assessment recommended on June 24, 2016 in the amount of $2,144.94, denied by Wawanesa on July 16, 2016?

Results:

1. The medical benefit for chiropractic treatment is not reasonable and necessary.
2. The medical benefit for psychological assessment is not reasonable and necessary.

Wawanesa’s submission is that the clinical evidence contradicts SU’s claim of necessity for the chiropractic treatment plan. Extensive evidence from SU’s own submissions in the form of medical notes and reports during the first year after the MVA indicating that notwithstanding some continuing issues, SU required no further. A chiropractic IE report dated June 18, 2010, notes that maximum therapeutic benefit had been obtained from a six-month course of various treatments including massage, spinal manipulation and electromagnetic therapies. Another IE report dated May 26, 2016 states that there is no evidence of impairment or need for further facility-based treatment. Wawanesa also contends that the lengthy dormant period on claims from SU, from 2010-2016, undermines SU’s case that further treatment is required for MVA-related problems.

SU did not offer any clinical evidence beyond the treatment plan to demonstrate the necessity or efficacy of the proposed treatments. She cites affordability as a reason for not actively engaging in treatments, but offers no evidence of having sought and been denied coverage by Wawanesa after 2010.

On the basis of the evidence the Adjudicator found that SU has not met her onus of proof. On the balance of probabilities, the preponderance of evidence is that the treatment plan for chiropractic treatment is not reasonable and necessary.

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.