Applicant Shows that the Treatment Plans are Reasonable and Necessary - MHE and Aviva Insurance Canada, 2018 CanLII 13183 ON LAT 17-002624

May 25, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

MHE and Aviva Insurance Canada, 2018 CanLII 13183 ON LAT 17-002624

Date of Decision: February 9, 2018
Heard Before: Adjudicator S. F. Mather

MIG and CHRONIC PAIN: applicant has pre-existing medical injuries; applicant has shown some of the treatment plans are reasonable and necessary

MHE was involved in a car accident on March 23, 2016 and sought various benefits pursuant to the SABs from Aviva.  Aviva denied the claims for medical benefits and the cost of the assessments on the basis that MHE’s injuries are predominantly minor as defined in the Schedule.  Payment of the benefits claimed by MHE will result in treatment costs beyond the $3,500 limit.

MHE argues that the Guideline does not apply to her because she suffers from chronic pain. MHE also argues that the lower back injury she sustained while moving a refrigerator shortly before the accident is a pre-existing medical condition that will prevent her from achieving maximal recovery if she is subject to the $3,500 limit.

Aviva argues that if that the Guideline does not apply to MHE the Adjudicator must deny the proposed treatment plans because they are not reasonable and necessary.

Issues

1. Do the injuries sustained by MHE fall within the Guideline?
2. If the answer to issue one is no:
   1. Is MHE entitled to receive a medical benefit of $3,492.70 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on July 9, 2016 and denied on July 22, 2016?
   2. Is MHE entitled to receive a medical benefit of $1,886.29 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on August 27, 2016 and denied on September 12, 2016?
   3. Is MHE entitled to receive a medical benefit of $1,300 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on September 1, 2016 and denied on September 23, 2016?
   4. Is MHE entitled to receive a medical benefit of $1,467.98 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on October 24, 2016 and denied on November 12, 2016?
   5. Is MHE entitled to receive a medical benefit of $1,182.36 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on December 5, 2016 and denied on January 6, 2017?
   6. Is MHE entitled to receive a medical benefit of $2,486.00 for physiatry examination recommended by Dr. Yen Fu Chen in a treatment plan submitted on November 16, 2016 and denied on November 28, 2016?
3. Is MHE entitled to interest for the overdue payment of benefits?
4. Is MHE entitled to costs?
5. Is Aviva entitled to costs?

Result

1. MHE’s injuries do not fall within the Guideline.
2. MHE is entitled to:
   1. a medical benefit of $3,492.70 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on July 9, 2016 and denied on July 22, 2016.
   2. a medical benefit of $1,886.29 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on August 27, 2016 and denied on September 12, 2016
   3. a medical benefit of $1,467.98 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on October 24, 2016 and denied on November 12, 2016.
   4. a medical benefit of $2,486.00 for a physiatry examination recommended by Dr. Yen Fu Chen in a treatment plan submitted on November 16, 2016 and denied on November 28,  2016.
3. MHE is not entitled to:
   1. a medical benefit of $1,300 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on September 1, 2016 and denied on September 23, 2016.
   2. a medical benefit of $1,182.36 for chiropractic services recommended by North Toronto Rehabilitation in a treatment plan submitted on December 5, 2016 and denied on January 6, 2017.
4. MHE is entitled to interest on any overdue payment of the cost of the treatments and the physiatrist’s assessment in accordance with the Schedule.
5. Neither party is entitled to costs.

APPLICABILITY OF THE MINOR INJURY GUIDELINE

The Guideline establishes a framework for MIG claims and limits recovery for medical and rehabilitation benefits for minor injuries to $3,500, minus any amounts paid in respect of an insured person under the Guideline. The Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the insured person’s healthcare provider is required to determine and provide compelling evidence that the person has a pre-existing medical condition that was documented prior to the accident and which will prevent the insured person from achieving maximal recovery if benefits are limited to the Guideline cap.

The 37-year-old applicant was the driver of a vehicle that was “T-boned” by another vehicle that entered the roadway from a private driveway. She did not lose consciousness in the accident but was unable to move and was taken by ambulance to Sunnybrook Health Sciences Centre, where she was admitted with full spinal precautions. She improved significantly by the second day and discharged herself from hospital on March 25, 2016, as she was concerned about getting home to her four children who were ages 4, 8, 11 and 13.

MHE attended at her family doctor on March 26, 2015, reporting weak legs, neck, back, and bilateral shoulder pain and headaches. She had decreased range of motion in her neck, back and both shoulders and bruising of her left knee. Her family doctor prescribed Robaxacet, neck and back exercises and referred her to physiotherapy. She did not visit her family doctor again until June 6, 2015, at which time she reported that her shoulder, neck and back pain and right shoulder pain were worse and that she was having difficulty sleeping from the pain. Her family doctor assessed her as having acute on chronic myofascial pain in her neck and back. He again prescribed Robaxacet and neck/back exercises and referred her for physiotherapy.

She began physiotherapy on June 6, 2015 and attended regularly for physiotherapy, physical rehabilitation and massage therapy until early February. MHE testified that she stopped going to therapy because Aviva refused to pay for the treatment and she could not afford to pay for it.  As of August 31, 2017, she owed $6, 596.02 for rehab.

At the time of the accident, MHE was receiving Employment Sickness Benefits as a result of a lumbar strain injury to her back that occurred as she was moving a refrigerator on March 8, 2016. She had not worked since September 30, 2015, when she was laid off from her job as a dispatcher for a transport company due to a shortage of work. Employment Insurance agreed to convert her regular benefits to sick benefits as a result of her back injury.

MHE has not returned to work since the accident. She tried working as a grocery store cashier but was unable to tolerate being on her feet.  She has not returned to doing all of the household chores she was responsible for before the accident and is unable to participate in the same recreational activities with her children. Her boyfriend and children assist with the household chores and her boyfriend now assists her with driving the children to their activities.

Impairments

MHE has satisfied the Adjudicator on the balance of probabilities that, as a result of the accident, she suffered more than predominantly minor injuries and is entitled to receive medical benefits in excess of the Guideline limit.

 Aviva questions the credibility of MHE and in its supplementary written submissions points out inconsistencies in MHE’s story. Having heard oral testimony from MHE that was tested by cross-examination, the adjudicator found MHE to be a credible witness. English is not the first language of MHE and while she is able to communicate in English it became clear during her testimony that she has difficulty phrasing her answers in a way that is easily understood. MHE acknowledged in her testimony that any inconsistencies between the medical reports and her evidence may be as a result of her misunderstanding the questions she was asked.

The Schedule obligates Aviva to pay for all reasonable and necessary medical expenses incurred by MHE for specified services including medical, chiropractic, and physiotherapy services. The evidence of MHE is that the treatments she received were reasonable and necessary because they provided short-term pain relief and increased her ability to participate in activities of daily living.

The Adjudicator reviewed the medical evidence and the individual treatment plans and approved those he found reasonable and necessary.

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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.