Worsening of pre-existing conditions results in approval of treatment plans - LD v Aviva Insurance Canada LAT 16-003010

September 27, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

LD v Aviva Insurance Canada LAT 16-003010

Date of Decision: July 5, 2017
Heard Before: Adjudicator Rebecca Hines

ENTITLEMENT TO TREATMENT PLANS: insured suffered from pre-existing conditions that were worsened by the latest accident; treatments were approved as found reasonable and necessary

LD was injured in a car accident on July 24, 2014 and she applied for accident benefits from Aviva who denied her claims for a non-earner benefit and several treatment plans for medical treatment and examination expenses. LD applied to the LAT for resolution of the dispute.  

ISSUES

1. Is LD entitled to the following medical benefits and examination expenses, recommended in treatment plans:
   1. $2,975.00 for chiropractic services denied on October 6, 2014;
   2. $450.00 for transportation services denied on February 26, 2015;
   3. $45.00 for ambulance services denied on February 25, 2015;
   4. $2,144.93 for psychological services denied on May 12, 2016;
   5. $2,200.00 for aquatic therapy services denied on June 24, 2016;
   6. $2,817.00 for chiropractic services denied on August 4, 2016;
   7. $2,200.00 for a chronic pain assessment denied on June 24, 2015;
   8. $2,200.00 for an updated chronic pain assessment denied on June 24, 2016;
   9. $2,200.00 for an orthopaedic assessment denied on June 24, 2016;
   10. $2,200.00 for a physiatry assessment denied on July 12, 2016; and
   11. $2,200.00 for a neurology assessment denied on July 12, 2016.
2. Is LD entitled to receive payment of a non-earner benefit in the amount of $185.00 per week, from January 20, 2015 to date and on-going?
3. Is LD entitled to interest for the overdue payment of benefits?

RESULT:

1. LD is entitled to payment for the following treatment plans for medical benefits and assessments:
   1. $2,144.93 for psychological services denied on May 12, 2016;
   2. $2,200.00 for a chronic pain assessment denied on June 24, 2015;
   3. $2,200.00 for an updated chronic pain assessment denied on June 24, 2016;
   4. $2,200.00 for aquatic therapy services denied on June 26, 2016;
   5. $45.00 for ambulance services denied on February 25, 2015; and
   6. LD is entitled to interest on these treatment plans.
2. b)   LD is not entitled to payment for the following treatment plans:
   1. $2,975.00 for chiropractic services denied on October 6, 2014;
   2. $450.00 for transportation services denied on February 26, 2015;
   3. $2,817.00 for chiropractic services denied on August 4, 2016;
   4. $2,200.00 for an orthopaedic assessment denied on June 24, 2016;
   5. $2,200.00 for a physiatry assessment denied on July 12, 2016; and
   6. $2,200.00 for a neurology assessment denied on July 12, 2016.
3. c)   LD is not entitled to payment of a non-earner benefit.

LD was involved in two previous motor vehicle accidents in 2005 and 2007, which resulted in serious injuries.  As a result of the 2005 and 2007 accidents, she was diagnosed with the following issues: myofascial strain injuries to face, neck, shoulder and knee secondary to motor vehicle accident, temporomandibular joint (“TMJ”) syndrome, post-traumatic stress disorder, arthritis, joint and ligament pain, urinary incontinence, migraines and depression.  She was also diagnosed with fibromyalgia and carpel tunnel syndrome but it was not clear if these issues were related to the accident.

As a result of the 2005 and 2007 accidents, LD became disabled and has been a recipient of Ontario Disability Support Program since 2010.  She was diagnosed with chronic pain adjustment disorder with anxiety and depression, and chronic pain associated with both psychological factors resulting from these accidents.

On July 24, 2014, LD was involved in the subject accident in which her vehicle was struck and her face and knees hit the dash board and her vehicle was written off.  She sustained injuries to the neck, left wrist, hand, shoulders, chest, upper back and both knees and sustained a new injury to her left wrist and hand.

The Arbitrator reviewed the law and the evidence and found the psychological assessment denied by Aviva on May 12, 2016 to be reasonable and necessary. The IEs were inconsistent and contradictory regarding LDs overall condition.

With regard to the chronic pain assessments the Arbitrator again reviewed the evidence and the law and determined that LD suffered from chronic pain issues prior to the July 2014 accident as a result of the two prior motor vehicle accidents.  As recent as 2013, LD was referred by her family doctor to Dr. Doran, a chronic pain specialist who recommended she take part in a chronic pain program.

Aviva argues that the chronic pain assessments are not reasonable or necessary as they would  not yield any additional objective benefit and sustainable therapeutic relief.  Further, LD has failed to adduce any evidence that her chronic pain was caused by the subject accident or the accident contributed to the diagnosis.

The Arbitrator found the chronic pain assessment and updated chronic pain assessments to be reasonable and necessary in order to update the treatment plan for the worsened conditions caused by the latest accident.

The Arbitrator found the aquatic therapy program reasonable and necessary as well.

With regard to the rest of the claims the Arbitrator noted that insufficient submissions and evidence were submitted to support the claims as 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.