December 08, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant v Aviva Insurance Company LAT 17-001922, 2017 CanLII 77347 (ON LAT)
Decision Date: November 10, 2017
Heard Before: Thérèse Reilly
ENTITLEMENT TO BENEFITS: applicant fails to show on all ounts that the benefits applied for are reasonable or necessary
The applicant was in a car accident on July 11, 2015 she sustained a number of physical and psychological injuries. She sought SABs from Aviva, and is now appealing Aviva’s denial of her request for two treatment plans for psychological and chiropractic services, and for the cost of three assessments.
- Is the applicant entitled to receive $897.72 for psychological services recommended December 6, 2015?
- Is the applicant entitled to receive $3,047.50 for chiropractic services dated May 18, 2016?
- Is the applicant entitled to receive $2,048.68 for an ACB recommended October 27, 2015?
- Is the applicant entitled to $2,000.00 for an orthopaedic assessment recommended January 2?
- Is the applicant entitled to payments for $600.00 for a naturopathic assessment recommended May 18, 2016?
- Is the applicant entitled to interest for any overdue payment of benefits?
- The applicant is not entitled to any of the claimed amounts.
- No interest is payable as there are no overdue payments.
The treatment plan for psychological services dated December 8, 2015 was partially approved by Aviva, amount in dispute is the remaining balance on the plan. The applicant applied the rate of $225 per hour based on the 2015 Ontario Psychological Association Guideline. Aviva claims the correct rate is $149.61, based on FSCO’s Professional Services Guideline.
The FSCO Guidelines states that insurers are not liable to pay expenses for professional services that exceed the maximum hourly rates set out in the FSCO Guidelines. The applicant did not provide any evidence of why the Psychological Association Guideline takes precedence over the FSCO Guidelines which specifically apply to motor vehicle accidents.
On May 18, 2016, the applicant submitted a treatment plan for chiropractic services. The applicant claims Aviva’s IE assessor did not look at the updated clinical notes and records of her family doctor in denying the proposed treatment although the applicant had sent these notes to Aviva. The applicant also argues that chiropractic treatment is required to treat the foot pain suffered by the applicant
Aviva relies on the IE assessment which found that the applicant had ongoing non-specific low back pain, left foot pain and neck pain which has mostly resolved. He found these to be mostly soft tissue injuries and not a functional impairment. As such, the recommended treatment was not reasonable and necessary. As for the left foot pain, Aviva maintains that there is no reference to left foot pain in the family doctor notes until Nov 24, 2016, despite repeated visits. Notes from a chiropodist were not produced. As such, it submits that an adverse inference must be drawn from the failure to produce these documents. Further, the treatment plan is not warranted as there is no objective evidence of an orthopaedic injury.
The Adjudicator found that the treatment plan is not reasonable and necessary.
The applicant claims an attendant care assessment recommended. This assessment cost was denied by Aviva based on its IE assessor found that during the October 2015 assessment, the applicant demonstrated the capability to perform all of her personal self-care. The applicant maintains that Aviva should have approved the cost of the assessment in November 2015 the IE had noted that the applicant required modifications to some of her self-care activities. The applicant submits this would show that by March 2016 the recommended assessment was reasonable and necessary.
The Adjudicator found that the applicant has not provided the evidence to show the treatment was reasonable or necessary.
The applicant submitted a treatment plan for $2000 dated January 25, 2015 for an orthopaedic assessment which Aviva denied. Their IE found that the applicant had not sustained an orthopaedic injury from the accident, and that the treatment was not reasonable or necessary.
The Adjudicator found that the treatment plan is not reasonable or necessary.
The applicant submitted a treatment plan for a naturopathic assessment for $600 which would assist the with her physical and psychological issues. The treatment plan refers to chronic pain and issues involving medications and the applicant’s concerns with their side effects. Aviva disputes that the treatment is reasonable and necessary on the basis that the applicant is already receiving psychological therapy and thus a naturopathic assessment to address psychological issues is not warranted. Aviva claims there is no evidence that the applicant was receiving pharmacological care for which alternatives are necessary.
The Adjudicator found that the applicant has not met its burden to present evidence on why the treatment plan is reasonable and necessary.