Treatments are reasonable and necessary 17-004394/AABS v Aviva Insurance Company, 2018 CanLII 13177 (ON LAT)

June 07, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Aviva Insurance Company, 2018 CanLII 13177 LAT 17-004394
Date of Decision: March 6, 2018
Heard Before: Adjudicator Craig Mazerolle

MEDICAL BENEFITS: applicant provides information and reviewed information; applicant’s physician either makes errors in his report or records details of applicant having a subsequent accident; applicant may have been in second accident; applicant has need for requested therapies which are reasonable and necessary

The applicant was injured in a CAR accident on November 22, 2013 and applied for SABs which Aviva denied. The applicant applied to the LAT.

Issues:

1. Is the applicant entitled to receive the following medical benefits:
   1. a        $4,268.22 for a physiotherapy treatment plan, submitted February 6, 2016;
   2. b        $1,238.24 for an acupuncture treatment plan, submitted February 17, 2016;
   3. c        $2,363.95 for an orthotics assessment, as recommended in a treatment plan submitted March 7, 2016; and,
   4. d        $2,139.34 (less $1,396.88 already approved) for a psychological assessment, as recommended in a treatment plan submitted March 7, 2016?

1. Is the applicant entitled to receive a medical benefit in the amount of $1,000.00 for chiropractic services submitted September 12, 2016?
2. Is the applicant entitled to interest on any overdue payment of benefits?

Results:

1. The applicant has demonstrated that the medical benefits for physiotherapy and chiropractic services are reasonable and necessary.
2. The application for the remaining amount in dispute for the psychological assessment is approved.
3.  In accordance with s. 51 of the Schedule, the applicant is entitled to interest for the overdue payment of benefits.

Entitlement to medical benefits is determined under the Schedule. The applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident.

The Adjudicator reviewed the submitted treatment plans and evidence.

The applicant submits that the denied treatment plans are reasonable and necessary to address the pain that was caused by the November 2013 accident. Specifically, the proposed treatments will allow her to resume “pre-accident physicality and normal activities of daily living.”

Aviva submits that the applicant has not demonstrated that her current injuries were caused by the November 2013 accident. Since physical abnormalities noted in an MRI from January 2016 did not appear in an x-ray from August 2015, another accident must have taken place between August 2015 and January 2016. The applicant replied to this record with an affidavit in her Reply Submissions (sworn November 14, 2017): “I have reviewed the clinical note and verily believe this was a mistake. I was not involved in a car accident on November 23, 2015.”

The Adjudicator noted that Aviva submits that the applicant should not be allowed to submit new evidence with her Reply Submissions. However, considering the affidavit is highly relevant to the issues before me, I would allow the admission of the applicant’s affidavit. The Adjudicator placed little weight on it.

First, if the accident described by Dr. Iskandir was similar in nature to the November 22, 2013 accident, one could assume that the reference to “November 22, 2015” was a typo. That is, the physician incorrectly typed “2015”, instead of “2013”. Yet, the accident in 2013 involved a vehicle making contact with the passenger’s side of the applicant’s vehicle. In the account from Dr. Iskandir, the 2015 accident involved a vehicle hitting “her car from the back”. Furthermore, the physician made a number of observations that would seem unnecessary if the accident took place several years ago. That is, the physician observed that: “No lacerations or bruises noticed… No bleeding from nose or ears.” Finally, according to the applicant’s Reply Submissions, she has been a client of Dr. Iskandir since 2007. It is, therefore, improbable that she would not mention the November 22, 2013 accident to this physician until November 23, 2015. Taken together, the Adjudicator concluded that the applicant visited Dr. Iskandir on November 23, 2015 to complain about a motor vehicle accident that took place the day before.

In her Reply Submissions, the applicant contends that she complained about back pain a number of times following the November 2013 accident. A review of the medical notes included with her original Submissions supports this claim. The applicant met with her family physician on August 12 and November 18, 2015 to discuss back pain. No abnormalities were discovered in the spine, and there was a normal range of motion. However, the physician noted that there was persistent tenderness with these movements. Tenderness was also noted when touching either the lumbar or the thoracic regions.

Then, during the November 18 visit, the physician referred the applicant to a pain clinic. She was also told to continue with physiotherapy and massage therapy. If there was no improvement with the physiotherapy, the duration of her symptoms would require x-rays and an MRI of the lumbar area. This MRI took place on January 5, 2016.

Aviva also points to a 2005 motor vehicle accident as another, possible source of this long-standing pain. According to Aviva: “The Applicant has failed to provide any documentation which indicates her back pain is somehow different than what was experienced prior to the accident… [Aviva] submits ongoing pain relates to her pre-existing diagnosis of chronic pain.”

In response, the applicant contends that her OHIP Summary (from November 22, 2007 to September 17, 2014) does not show any “complaints of lumbar pain until after her accident.” Once again, there is a question as to whether these new records can be admitted as evidence with her Reply Submissions. However, Aviva’s Submissions include a copy of the applicant’s OHIP Summary from April 4, 2011 until August 30, 2016.

On a balance of probabilities, the Adjudicator concluded that the applicant continues to experience injuries that are caused by the November 22, 2013 motor vehicle accident. Both the timing of the discussions with her family physician (where she detailed ongoing back pain and tenderness), as well as the findings of doctors allow the Adjudicator to conclude that there are lasting, physical effects from the 2013 accident, and that these effects manifested themselves before the 2015 accident.

The Adjudicator finds that the applicant has met her onus of demonstrating, on a balance of probabilities, that certain medical benefits for physiotherapy are 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.