Notwithstanding Pre-existing Injuries and Ongoing Pain Applicant Fails to Show Treatment is Reasonable and Necessary - Applicant and Allstate Canada, 2018 CanLII 39464 (ON LAT 16-004348)

June 26, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Allstate Canada, 2018 CanLII 39464 (ON LAT 16-004348)

Date of Decision: March 16, 2018
Heard Before: Adjudicator Eleanor White

MEDICAL BENEFITS: all parties agree applicant has ongoing pain after several accidents and pre-existing conditions; applicant fails to make case that treatment plans are reasonable and necessary.

The applicant was involved in a motor vehicle accident March 10, 2014 and applied for a number of benefits pursuant to the Schedule which Allstate Canada denied.  The applicant has appealed to the LAT for arbitration. It is undisputed that the applicant has ongoing pain.

Issues:

1. Is the applicant entitled to a medical benefit in the amount of $3,276.55 for chiropractic and other services denied on July 15, 2015?
2. Is the applicant entitled to a medical benefit in the amount of $5,128.30 for chiropractic and other services denied on July 15, 2015?

RESULT

1. The applicant did not meet her onus in establishing the reasonableness or necessity of the treatment plans in dispute and is thus not entitled to the proposed recommendations.

The applicant has been involved in previous accidents most recently on July 20, 2013 and has sought medical benefits for treatment of injuries sustained in that accident.  She was still under care when she was again injured in this accident.  Treatment for the July 2013 accident continued concurrently with treatment for the March 2014 accident.  This last accident involved two impacts, one from the front as she collided with the vehicle in front of her and the second, when she was side-swiped whilst waiting for the emergency services in her vehicle. The applicant had a pre-accident history of neck, shoulder and back complaints documented prior to the July 20, 2013 accident.

The treatment plans in dispute were denied on the basis they were found to be not reasonable and necessary.

Under section 14 and 15 of the Schedule, the insurer is liable to pay for medical benefits that are reasonable and necessary and to or on behalf of an insured person who sustains an impairment as a result of an accident.   The applicant bears the onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.

The Adjudicator reviewed the medical evidence submitted and noted that the recommendations for care do not include an evaluation of the previous year of care provided by the physiotherapist and the massage therapist.  There is no discussion of the improvement made over the course of care and what residual problems exist, nor the relevance of his recommended care to the current status of his patient.  Naturopathy is recommended therapy but there is no indication of why this is reasonable or necessary for the applicant.  There are no directly contemporaneous clinical notes from other providers but within the time from the accident to the hearing, we have various opinions, assessments, affidavits as well as reports that collectively opine that the applicant has had consistent and quite frequent care, whether continuing care from the indexed accident or the accident preceding it.

The applicant has expressed her lack of improvement quite consistently, and admitted to the IE assessor that she found she found very little help from all of the care she had undergone up to that time.  She agreed that she may have to deal with this ongoing pain for quite some time.

Allstate’s position is supported by the IE report of an orthopaedic surgeon.  Allstate does not find either treatment plan reasonable and necessary based on his findings.  He found that the applicant had reached maximal medical recovery with respect to her injuries arising from the accident. The question before me is whether this treatment plan can address her ongoing complaints of pain in a helpful manner, thus rendering the plan reasonable and necessary.

In light of all these reports the Arbitrator did not find the continuation of passive, facility based care as represented in this treatment plan to be reasonable and necessary.

In October 2015 the applicant was assessed by another chiropractor and the recommendations for treatment, totalling $5,128.30 include the services of physiotherapist for exercise, an acupuncturist, massage therapist and his own chiropractic services.  This is not described as a chronic pain program.

The Adjudicator did not find any evidence that the applicant has benefitted substantially from the many months of treatment.  She has returned to work, albeit with modifications, she has admitted chronic pain and has presented a self-report of relatively unchanged symptoms throughout her care. The Adjudicator was not persuaded that this course of facility based, largely passive treatment is reasonable and necessary.

The applicant has not met her onus in this matter and has not persuaded me to find either of the two treatment plans in dispute to be reasonable and necessary for the applicant as a result of injuries sustained in the March 11, 2014 accident.

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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.