September 29, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
JH v The Personal Insurance Company- LAT 17-000208
Date of Decision: July 13, 2017
Heard Before: Adjudicator: Rebecca Hines
ENTITLED TO TREATMENT: insured argues recovery not complete; insurer makes case that insured’s treatment plans are out of date and contradictory; IE shows recovery is attained and normal daily routine has been resumed
JH was injured in a car accident on July 22, 2011 and she applied for accident benefits to Personal pursuant to the SABS. Personal denied a claim for a medical benefit on the basis that it found that JH had reached maximum medical recovery and the treatment plan was not reasonable or necessary. JH applied to the LAT for dispute resolution.
JH’s accident related injuries were not placed in the Minor Injury Guideline which caps medical treatment at $3,500.00. Therefore, her entitlement to medical benefits increased up to a maximum of $50,000.00. To date, JH has incurred $14,156.88 in medical and rehabilitation benefits. JH submits that she continues to suffer physical impairments as a result of the accident and given the purposeful and remedial approach of the Schedule, the treatment plan is reasonable and necessary.
Personal contends that JH no longer suffers from a physical impairment as a result of the accident but has reached maximum medical recovery from her physiological conditions.
Personal submits that the Tribunal should not accept JH’s submissions and evidence as they were not served within the deadline provided in the case conference adjudicator’s order dated March 15, 2017. According to the order, JH’s submissions were due on April 13, 2017, and Personal did not receive them until April 17, 2017. Personal submitted a courier receipt to show JH sent her submissions by overnight courier on April 13, 2017.
The Arbitrator noted that excluding JH’s submissions and evidence would result in her being precluded from participating in this proceeding. The Arbitrator acknowledged the importance of complying with the Tribunal’s orders, however, JH’s delay in serving her submissions on Personal was a small infraction when compared to the remedy Personal is seeking. Further, Personal has failed to demonstrate how they were prejudiced in their
Therefore the Arbitrator allowed the admission of JH’s submissions and evidence.
- Is JH entitled to a medical benefit in the amount of $1,836.00 for a treatment plan (“OCF-18”) for physiotherapy recommended by Absolute Rehab Centre submitted on September 20, 2016?
- The Arbitrator found that the treatment plan for physiotherapy is neither reasonable nor necessary.
The Arbitrator reviewed the evidence and the law, noting sections 14 and 15 of the Schedule provide that an insurer shall pay for medical benefits to or on behalf of an applicant so long as JH sustains impairment as a result of the accident and that the medical benefit is a reasonable and necessary expense incurred as a result of an accident.
JH must show adequate medical reasons supporting the plan and the effectiveness of the treatment. JH relied on two reports to support her ongoing need for Physiotherapy. JH argues that these medical reports constitute objective clinical findings of ongoing accident related impairments. JH contends that it is well established that insurance coverage provisions are to be interpreted broadly while coverage exclusions or restrictions are to be construed narrowly.
Personal relied on the IE which found that JH has reached maximum medical recovery with respect to her physiological injuries caused by the accident. Personal argues that the reports relied on by JH are outdated as they are over four years old, and that the diagnoses listed in the OCF-18 in dispute list soft tissue injuries and that the goals of the OCF-18 are contradictory.
Personal maintains that the evidence supports that JH has gone back to her activities of normal living and employment tasks can be found in JH’s testing and clinical interview which found no objective clinical findings of any physical impairment and opined that her soft tissue injuries have healed as it has been five years since the accident and she has reached maximum medical recovery from a physiological perspective.
On the basis of the evidence the Arbitrator did not find that the treatment plan for physiotherapy is reasonable and necessary.