Were injuries caused by this accident? Applicant and TD LAT 17-003356 2018 CanLII 8082

April 19, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and TD LAT 17-003356 2018 CanLII 8082

Date of Decision: January 26, 2018
Heard Before: Adjudicator Christopher A. Ferguson

ENTITLEMENT TO BENEFITS: applicant argues that by approving initial treatment plans TD acknowledges the accident caused medical issues; insurer argues the medical conditions were caused by previous accidents;

The applicant was involved in car accident on March 25, 2016 and sought accident benefits from TD. When TD denied benefits the applicant applied to the LAT for arbitration.

Issues:

1. Is the applicant entitled to payment of medical benefits covering the seven specified medication expenses?
2. Is the applicant entitled to receive a medical benefit in the amount of $1,759.99 for a facility-based exercise program recommended in a treatment plan dated December 17, 2016?

FINDINGS

1. The applicant is entitled to the disputed benefits for medications, and his appeal on that issue is allowed.
2. The applicant has not met his onus to prove that the disputed treatment plan is reasonable and necessary, and his appeal on that issue is denied.

The Schedule provides that an insurer is liable to pay all reasonable and necessary medical expenses incurred by the insured person as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

TD has raised the issue of causation: it denies the applicant’s claim based on its contention that the conditions for which the applicant seeks benefits were not caused by the accident, but rather existed before the accident. The parties agreed that the applicant has a significant pre-accident medical history for which he has received medical treatment, which include lower lumbar and cervical spinal injuries, headaches or migraines, erectile dysfunction, sleep disruption and psychological issues, including depression and anxiety, and that the applicant has been involved in at least two previous MVAs in 2013 and 2015, in which he sustained injuries. TD also cited another previous car accident and two workplace accidents.

The applicant contends that he is entitled to benefits because the noted existing conditions were aggravated and exacerbated by the accident. He provided medical evidence to that effect. The applicant also argues that by approving treatment plans TD has already accepted that the accident caused his current medical issues. Denying further benefits would be inconsistent.

TD contends that the applicant’s injuries, as described above in paragraphs, arose from other MVAs and workplace accidents, and indicates that they are the cause of the applicant’s current medical conditions, and that its evidence shows that the applicant was in essentially the same condition before the accident as after. As a result, the applicant sustained no impairment and incurred no medical expenses as a result of the accident. It submitted CNRs from treating doctors showing there were no new complaints.

TD submits that the applicant's medical record demonstrates that on the balance of probabilities the applicant would have required all medications (the costs of which are claimed in this proceeding) even if the subject accident had not occurred.

On reviewing the evidence, the Adjudicator found that on a balance of probabilities, the applicant’s injuries were caused by the accident and that the applicant has established causation.

The applicant’s appeal of TD’s denial of medical expenses is granted, because his need for the claimed medications is uncontested by TD and is well-document by his attending physician and others. They are reasonable and necessary.

The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary. Approval of multiple treatment plans is not an “all or nothing” proposition. The applicant does not make a strong argument for the necessity of the disputed treatment plan, which consists of a gym membership and personal trainer (facility-based exercise program). The applicant’s evidence did not persuade the Adjudicator that the claimed treatment plan is reasonable and necessary.

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.