Insurer's IE lacking in detail and Adjudicator prefers applicant's multidisciplinary assessment - 17-001981 JV v. RBC General Insurance Company, 2019 CanLII 18326 (ON LAT)

May 22, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-001981 JV v. RBC General Insurance Company, 2019 CanLII 18326 (ON LAT)

Date: February 7, 2019
Heard Before: Adjudicator Anita John

ENTITLEMENT TO BENEFITS: assessment of ACBs; assessment of reports; medical benefits awarded on the basis of applicant's condition and comprehensive medical reports

JV was injured in an automobile accident on August 22, 2014 and sought benefits from RBC pursuant to the SABs. JV was involved in a prior motor vehicle accident on August 1, 2014.  This decision is based on evidence in relation to the second accident which took place on August 22, 2014. JV applied to the LAT for resolution of this dispute.

ISSUES

1. Is JV entitled to payment for the cost of an examination in the amount of $1,050.00 for an assessment of attendant care needs?
2. Is JV entitled to receive a medical benefit in the amount of $4,189.92 for psychological services?
3. Is JV entitled to receive a medical benefit in the amount of $3,146.48 for chiropractic services?
4. Is JV entitled to receive a medical benefit in the amount of $2,031.70 for physiotherapy services?
5. Is JV entitled to payments for the cost of an examination in the amount of $17,063.93 for a multidisciplinary assessment?
6. Is JV entitled to interest on any overdue payment of benefits?

RESULTS

1. JV is entitled to an assessment of attendant care benefits.
2. JV is entitled to payment for the psychological services requested because it is a reasonable and necessary expense.
3. JV is entitled to payment for the chiropractic services.
4. JV is entitled to payment for the physiotherapy services requested.
5. JV is entitled to payment for the cost of a multidisciplinary assessment.
6. Interest on overdue payments is owed on all overdue accrued accounts.

ANALYSIS

Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. JV bears the onus of proving on a balance of probabilities that any claimed treatment plan and costs of assessment are reasonable and necessary.

Assessment of attendant care needs - is the treatment plan (OCF-18dated March 17, 2015 is reasonable and necessary?

On the basis of the evidence the Adjudicator determined that that JV has some difficulties with activities of daily life and that the chronicity of JV’s injuries is a barrier to her recovery. On this basis the Adjudicator determined the treatment plan is reasonable and necessary as an assessment of attendant care needs would identify JV’s functional impairments and allow her to return to the activities of normal living.

Issue (b) Psychological Services

On the Basis of the evidence the Adjudicator determined the psychological services requested in a treatment plan dated November 11, 2015 to be reasonable and necessary, and that JV has met her onus and accept that she would benefit from a comprehensive psychological treatment, even if re-testing was conducted. As a result, JV is entitled to the full payment for this treatment plan.

Issues (c)-(d) – Chiropractic & Physiotherapy Services

In denying JV’s claims, RBC relies on an insurer examination conducted by orthopedic surgeon who examined JV and reviewed an orthopaedic surgery assessment completed by a previous IE assessor, orthopedic surgeon.

The Adjudicator found the treatment goals set out in the OCF-18s to be reasonable. The Adjudicator did not find IE report to be persuasive and rejects the conclusion that JV has reached maximum medical recovery because she still requires treatment. The IE report fails to address the medical evidence amassed in the CNRs and reports by JV’s various medical assessors. These other reports and CNRs clearly support the position that JV has not reached maximum medical recovery and that she still requires treatment.

The Adjudicator determined that JV was consistently complaining of pain and rejects the finding that JV reached maximum medical recovery.  The medical records of [The Health Group] indicate that JV complained of neck, shoulder

RBC submits that video and photographic surveillance obtained on July 20, 21, 26-29, 2017 is wholly incongruent with JV’s claim for impairment.  JV asserts that she has never claimed that she could not drive, walk up and down stairs, sweep and carry groceries.The Adjudicator agreed with the finding that the fact that JV was able to carry on certain normal activities does not materially conflict with the medical evidence indicating that she suffered pain, discomfort and restricted range of movement.The Adjudicator attached little weight to the surveillance as it fails to substantiate JV’s lack of impairment.

RBC submits that JV is barred from advancing the current application pursuant to an executed settlement disclosure notice and partial release, dated May 29, 2017 before FSCO.  JV submits that the partial release and settlement disclosure notice was not a full and final release. The Adjudicator found that the release is ambiguous and unclear as to whether JV waived her right to dispute any treatment plan not at issue in the FSCO matter. Ambiguity will generally be resolved in the insured’s favour.  On this basis the Adjudicator found that the application is not barred by the FSCO partial release on the grounds of ambiguity and as a result of the foregoing findings, both chiropractic and physiotherapy treatment plans are reasonable and necessary.

Issue (e) - the cost of multidisciplinary assessment examination $17,063.93 for a multidisciplinary assessment

To establish her entitlement for the cost of the multidisciplinary assessment examination, JV relies on a Medical and Legal Assessment and Post-104 IRB Determination Report.

RBC relies on its IE which concluded that JV has a normal range of motion and no impairments from a musculoskeletal or neurological nature. It acknowledges that the injuries from her first accident were then aggravated by the second accident.

The Adjudicator agreed with JV, and was not persuaded by the opinions of offered by Dr. F.L. and Dr. L.K.:

1. The duration of the IE interview was 35 minutes compared to the five days that JV was assessed in the determination report.
2. The IE joint report fails to recognize and address JV’s physical, emotional and pain related limitations.
3. The determination report provides concrete recommendations to improve JV’s stamina and tolerance and thereby work/life balance.  Such recommendations included supervised physiotherapy leading to a home based and gym exercise program when it is determined that they can be maintained independently. A psychosocial component might include a community based PGAP programme with a focus on pain management and further developing copies strategies as well as time-management strategies.

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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.