Treatments Are Not Shown Proven Reasonable or Necessary - SS v RBC - 17-000782 v RBC Insurance Company, 2017 CanLII 59500 (ON LAT)

October 20, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

SS v RBC - 17-000782 v RBC Insurance Company, 2017 CanLII 59500 (ON LAT)

Date of Decision: September 1, 2017
Heard Before: Adjudicator Thérèse Reilly

ENTITLEMENT TO TREATMENT: Applicant fails to prove the treatment plan is reasonable and necessary.

SS was injured in a car accident on February 27, 2016. He submitted a treatment plan for physiotherapy treatment which was denied by RBC as not reasonable and necessary. SS appealed to the LAT.

SS’s position is that the recommended treatment plan for physiotherapy is reasonable and necessary. He relies on medical evidence that, he submits, supports his position that he requires continued facility based treatment in the form of physiotherapy to achieve maximum recovery.

RBC’s denial is based on its position that SS’s physical injuries are minor and subject to the restrictions on recovery of $3,500 as specified in the MIG. Although RBC removed SS from the MIG due to SS’s psychological impairment, SS has not proven the treatment plan is reasonable and necessary. It also maintains there is no connection between the psychological impairment and the physical ailments and that one impacts the other. RBC submits that SS is therefore not entitled to payment for the disputed treatment plan.

Issues:

Is SS entitled to receive a payment for a medical benefit for a treatment plan for physiotherapy dated September 17, 2016 in the amount of $1,591.56 on November 15, 2016?

1. Is SS entitled to an award pursuant to section 10 of Regulation 664?
2. Is SS entitled to interest on the overdue payment of benefits?

Result:

1. SS is not entitled to payment for a medical benefit for a recommended treatment plan for physiotherapy dated September 17, 2016.
2. SS is not entitled to an award pursuant to section10 of Regulation 664.
3. As there are no overdue payments, SS is not entitled to interest.

SS submits that immediately after the February 27, 2016 accident, emergency services took him to the hospital with complaints of pain to his neck, left side of his head and lower back. An ultrasound taken at the hospital reported that the “chest muscle over the heart was pushed but nothing was broken.” He was discharged from the hospital and prescribed pain medication.  SS attended physiotherapy treatment.

In support of his position that the treatment plan in dispute is reasonable and necessary, SS relies on the medical evidence of his treating chiropractor, consisting of a Disability Certificate (“OCF- 3”) dated September 17, 2016 and a Minor Injury Discharge Report (“OCF- 24”) dated August 8, 2016.

His Family doctor’s notes were also submitted in support of his claim. SS saw his family doctor for numerous visits between March 2016 and April 2017.  Most of these were for issues not related to the accident. The only Notes that refer to the accident are the Notes of March 25, 2016. Further, only the Notes of April 26, 2017 refer to pain complaints to the lower back, head or neck. The April 26, 2017 Notes indicate SS’s back pain does not radiate but worsens with bending. On this day, his family doctor recommended physiotherapy and massage. On March 25, 2016 and April 26, 2017, the family doctor states SS “appears well in general.”

RBC refers to the Notes of April 26, 2017 and notation that SS suffers from “acute back pain”. From its perspective, the word “acute” refers to a new pain complaint and therefore raises a causation issue on whether the “acute” back pain is related to the accident. RBC maintains it is not.

RBC relied on an IE to support its position that the treatment plan is not reasonable and necessary. The IE completed by an orthopaedic surgeon concluded that the treatment plan was not reasonable and necessary. The report concludes that SS’s only reported symptom at the time of the examination was a headache. The clinical examination of his neck and head was unremarkable. The examination revealed full range of motion with no muscle tension or end range stiffness in the head and neck or lumbar spine. There were "no substantive musculoligamentous, osseous or neurologic impairments on clinical testing."  The report concluded, “There is no compelling  clinical  evidence  that  supports  the need  for  the  OCF-18  in dispute requesting $1,546.02 in treatment modalities and associate administration.”

A further reason SS is seeking payment of the disputed treatment plan is his assertion that his physical pain is having a direct impact on his psychological progress and that these two conditions are intertwined. He relies on the assessment report completed following a psychological assessment commissioned to assess any psychological impairment of SS because of the accident. The assessment was completed on August 2, 2016.  SS was diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder.  Although the purpose of the report was to investigate psychological impairments, SS asserts importance to the fact that the “issue of pain was a constant theme in the report.” It recommended SS be referred for a chronic pain management programme.

The report also notes SS had no prior psychological issues prior to the accident.  This is a key point as the Arbitrator found from the Notes of the family doctor that SS had prior psychological issues.

RBC submits that although SS was taken out of the MIG and approved for treatment out of the MIG, that decision was based solely on SS’s need for psychological treatment and not for further physical intervention. RBC maintains SS provided no evidence that the physical injuries are other than minor.

The Arbitrator reviewed the evidence and the law and concluded that even if SS establishes that MIG does not apply, SS must still prove on a balance of probability that the medical benefit beyond the $3,500 limit is reasonable and necessary.

The Arbitrator found that RBC removed SS from the MIG based on the extent of his psychological impairment. As such, the issue of MIG is not relevant. SS did not prove the treatment plan is 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.