Arbitrator prefers more thorough assessment of applicant's experts - ND v Aviva LAT 16-002568

February 11, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

ND v Aviva LAT 16

Decision Date: November 24, 2017
Heard Before:  Adjudicator Rupinder Hans

ENTITLEMENT TO BENEFITS: The applicant provided evidence that her treatment plans are reasonable and necessary; the IE reports also concluded the applicant suffered injury

On September 22, 2015 ND was a driver of a car was struck while attempting to make a left turn.  ND applied for and received benefits under the SABs. Aviva initially paid for medical benefits. ND received heat/TENS, massage, physiotherapy, acupuncture, and chiropractic care.  ND asserts that she continues to experience the effect of the sustained injuries, and her medical providers have recommended a chronic pain management program.  Aviva has denied payment for the chronic pain program, and also the cost of examination for an orthopaedic assessment.  The denials were based upon Aviva’s position that the treatment plans were not reasonable or necessary. ND appeals to the LAT.

Issues:

1. Is ND entitled to receive a medical benefit in the amount of $13,325.56 for a chronic pain program in a treatment plan dated July 12, 2016?
2. Is ND entitled to payments for cost of examination benefits in the amount of $2,460.00 for an orthopaedic assessment in a treatment plan dated May 10, 2016?
3. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to ND?
4. Is ND entitled to interest for any overdue payment regarding the claimed benefits?

RESULT

1. ND is entitled to the medical benefits as set out in the treatment plan for the chronic pain program, and the cost of examination for an orthopaedic assessment. 
2. ND is also entitled to interest on any amounts incurred
3. ND is not entitled to an award under Regulation 664.

The Arbitrator reviewed all the medical evidence. In evaluating the evidence, I prefer the expert reports of ND over those of Aviva for several reasons.  Specifically, the reports of the applicant’s assessors are thorough in their analysis and recommendations.  The Arbitrator noted that Aviva’s experts found that ND sustained injuries, and continues to experience symptoms as a result of the accident.  There is no ambiguity in this regard.  On this basis the Arbitrator is satisfied  that on a balance of probabilities that the treatment plan for chronic pain management program 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.