Applicant fails to prove some treatments are reasonable and necessary - Applicant and Certas Home and Auto Insurance, 2018 CanLII 13412 ON LAT 17-004509

June 02, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant and Certas Home and Auto Insurance, 2018 CanLII 13412 ON LAT 17-004509

Date of Decision: March 7, 2018
Heard Before: Adjudicator Amanda Fricot

PAYMENT FOR MEDICAL ASSESSMENTS: amount of medical assessments is capped; are assessments reasonable and necessary; onus on applicant to prove entitlement

The applicant was involved in a motorcycle accident on April 27, 2014 and sought accident benefits from Certas, however when they denied the applicant’s claim for payment of three treatment and assessment plans for examination expenses on the basis that they were not reasonable and necessary the applicant applied to the LAT..

The applicant submits that he continues to suffer from impairments as a result of the accident and that the neurological, orthopaedic and chronic pain treatment and assessment plans sought are reasonable and necessary.

Certas does not dispute that the applicant sustained a number of injuries as a result of the accident, but submits that the applicant has recovered from his injuries and that none of the proposed treatment and assessment plans are reasonable and necessary.

Issues:

1. Is the applicant entitled to payment for a cost of examination expense in the amount of $2,460.00 for a neurological assessment proposed in a treatment and assessment plan dated November 25, 2016?
2. Is the applicant entitled to payment for a cost of examination expense in the amount of $2,460.00 for a chronic pain assessment proposed in a treatment and assessment plan dated November 25, 2016?
3. Is the applicant entitled to payment for a cost of examination expense in the amount of $2,460.00 for an orthopaedic assessment proposed in a treatment and assessment plan dated November 25, 2016?
4. Is the applicant entitled to interest for the overdue payment of benefits?
5. Is the applicant entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal’s Rules of Practice and Procedure?

RESULT:

1. The neurological and orthopaedic assessments proposed in the treatment and assessment plans dated November 25, 2016 are not reasonable and necessary.
2. The chronic pain assessment proposed in the treatment and assessment plan dated November 25, 2016 is reasonable and necessary.
3. The applicant is not entitled to interest in respect of the amount claimed for the chronic pain assessment as no cost has been incurred.
4. The applicant is not entitled to any costs.

The applicant was injured when the motorcycle he was driving struck a parked vehicle and he was thrown from his motorcycle over the vehicle and struck the ground landing on his head. A witness advised police that the applicant had been unconscious for 2-3 minutes. The applicant was taken to Hospital by ambulance and later that night he was transferred to the Neurosurgical Unit at Toronto Western where he remained until he was discharged on May 7, 2014. The records from the hospital indicate that the applicant sustained numerous injuries, including multiple bilateral rib fractures, cervical and thoracic spine fractures, abrasions, a lip laceration, broken teeth and a right chin laceration. Those records also indicate that the applicant did not have any intracranial or intra-abdominal injuries.

When the applicant was discharged from Toronto Western Hospital on May 7, 2014, it was noted that during his hospitalization he had remained neurologically intact, that he was on bed rest for a few days and had gradually began ambulating with assistance, and that his back pain had decreased with mobilization. The discharge summary indicates that the applicant was discharged home in good condition and that he was to return in 6-8 weeks for follow up.

Following his release from hospital the applicant was seen by his family doctor, and a walk-in clinic doctor. In late May 2015 he was referred to a physiatrist. The reason for the referral was stated to be “neck and upper back stiff, tingles and cracking since motorcycle accident”. Other than annual appointments with his family doctor there is no evidence that the applicant has sought or received any treatment for accident related impairments after 2015.

The Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose limited to $2,000.00 per assessment. The applicant bears the onus of proving, on a balance of probabilities, that each of the treatment and assessment plans sought is reasonable and necessary.

The applicant submits that the evidence, legislation and jurisprudence support the three assessments sought are reasonable and necessary as Certas has neither produced evidence to contradict the medical evidence filed nor conducted a single assessment upon which to base its denials, that the applicant is entitled to the assessments sought.

The onus remains on the applicant to prove, on a balance of probabilities, that the treatment and assessment plans sought are reasonable and necessary, whether or not a Section 44 examination is conducted.

The Adjudicator reviewed the evidence and found that the applicant is not entitled to payment for a neurological assessment for the following reasons.

1. He has numbness around his mouth, delayed verbal response time, extremely slow word recall, worsened memory, a diminished ability to focus and concentrate and headaches. I do not find the applicant’s evidence relating to these symptoms credible for the following reasons.

The Adjudicator noted there is insufficient evidence that the applicant complained to or sought treatment from any medical professional for these issues. The clinical notes and records and reports of the applicant’s physicians contradict some of this evidence and confirm that the applicant advised his physicians in 2015, 2016 and 2017 that he did not suffer from headaches. Additionally, the applicant returned to work in May 2015 to the position of a truck driver.

Based on a review of all of the evidence, the applicant has not proven, on the balance of probabilities, that the neurological assessment sought is reasonable and necessary.

Based on the evidence the Adjudicator found that the chronic pain assessment is reasonable and necessary.

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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.