No Treatment Plan Submitted to Support Application for Benefits - SY and Aviva - 6-004549 v Aviva General Insurance Company, 2017 CanLII 63623 (ON LAT)

October 16, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

SY and Aviva -  6-004549 v Aviva General Insurance Company, 2017 CanLII 63623 (ON LAT)

Date of Decision: September 25, 2017
Heard Before: Adjudicator Anna Truong

ENTITLEMENT TO BENEFITS: Applicant fails to provide treatment plans; applicant fails to support requests with information; benefits denied.

S.Y. was involved in a car accident on July 14, 2014, and sought benefits pursuant to the SABS which were denied by Aviva.  SY appealed her case to the LAT.

Issues:

1. Is SY entitled to receive the following medical benefits:
   1. Treatment plan dated July 18, 2014, in the amount of $2,796.18?
   2. Treatment plan dated May 4, 2015, in the amount of $1,491.01?
   3. Treatment plan dated February 22, 2016, in the amount of $1,331.67?
   4. Treatment plan dated September 23, 2015, in the amount of $1,389.86?
2. Is SY entitled the cost of a psychological assessment in the amount of $304.90 ($2,000.00 claimed less $1,696.10 approved), recommended in a treatment plan dated July 9, 2015?
3. Is SY entitled to interest on any overdue payment of benefits?

In her submissions on May 24, 2017, SY did not include issues two and three, did she not make any arguments with respect to them. However, she does request interest be paid.

RESULT

1. SY is entitled to receive a medical benefit outlined in the treatment plans dated December 15, 2014, and October 5, 2016. SY is not entitled to the rest of the treatment plans in dispute.
2. SY is entitled to any applicable interest.

ANALYSIS

The Arbitrator noted that the Schedule provides an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. SY bears the onus of proving on a balance of probabilities the treatment plan is reasonable and necessary.

Treatment Plan Dated July 18, 2014

Aviva raised a preliminary issue in its submissions with respect to the treatment plan dated July 18, 2014. Aviva submits the treatment plan is statute-barred and not payable, because SY brought an Application to the Tribunal more than two years after the date of denial contrary to section 56(1) of the Schedule.  SY made no submissions with respect to the limitation period. Having no evidence to the contrary, the Arbitrator found the DOD of this treatment plan is August 13, 2014 and the DOA is December 19, 2016, which is approximately four months over the two-year limitation period. The treatment plan dated July 18, 2014 is not payable, because it is statute-barred.

Treatment Plan Dated May 4, 2015

SY did not submit this treatment plan as part of the hearing record. From the file the Arbitrator determined this treatment plan consists of massage, transcutaneous electrical nerve stimulation (TENS), and chiropractic therapy. The Arbitrator noted that none of the medical records SY submitted support her ongoing need for physical treatment. Furthermore, SY has returned to work as a dietary aide, which is a physically demanding job. Therefore, based on the evidence before me, SY has not met her onus of proving this treatment plan is reasonable and necessary.

Treatment Plan Dated February 22, 2016, and September 23, 2015

SY did not submit any contemporaneous medical evidence to support her entitlement to these treatment plans, nor any medical evidence to show what her condition was at the time the treatment plans were proposed. There is no evidence before that deals with SY’s condition at the time the treatment plans were proposed, except for the treatment plans themselves. A treatment plan alone is not enough to prove the proposed treatment is reasonable and necessary. There must be corroborating contemporaneous objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment. SY has not adduced this evidence. The Arbitrator found these treatment plans are not reasonable and necessary.

Psychological Assessment Plan Dated July 9, 2015

SY claims for a psychological assessment. As mentioned above, SY did not include this assessment as an issue in dispute in her submissions. SY made no submissions with respect to this assessment and did not include a copy of the assessment plan. In the absence of submissions from SY as to why the excess of $304.90 is payable, the Arbitrator did not find in her favour.

Interest

Since only the two approved treatment plans are payable, interest is only applicable if there is any overdue payment of benefits. Neither party made any submissions with respect to whether or not these treatment plans have been incurred. Interest will only be payable if any part of the two approved treatment plans have been incurred and not paid. Therefore, it is left to the parties to sort out any applicable interest.

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.