Insured provides no medical evidence to establish entitlement to benefits - Applicant v Aviva Insurance, LAT 17-000760

December 21, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Aviva Insurance, LAT 17-000760 2017 CanLII 76916 (ON LAT)

Decision Date:   October 26, 2017
Heard Before: Adjudicator Ian Maedel

ENTITLEMENT TO BENEFITS: lack of medical evidence provided by insured; medical evidence provided by insurer; treatments not shown to be reasonable or necessary

On June 4, 2015, the applicant was injured in a car accident when she was struck from behind by another vehicle. She sustained a number of injuries including WAD2, neck pain, lower back pain, shoulder pain, hip pain and anxiety. The applicant applied to the LAT on February 10, 2017 after Aviva denied claims, and mediation failed.

Issues:

1. Is the Applicant entitled to receive $1,645.00 for an attendant care needs assessment in a treatment plan dated October 4, 2016?
2. Is the Applicant entitled to $1,618.95 for chiropractic and massage services in a treatment plan dated October 4, 2016?
3. Is the Applicant entitled to $2,348.20 for chiropractic, physiotherapy and massage services, in a treatment plan dated March 21, 2016?
4. Is the Applicant entitled to receive $2,034.08 for a chronic pain assessment in a treatment plan dated March 21, 2016?
5. Is the Applicant entitled to $2,546.55 for chiropractic, physiotherapy and massage services, recommended in a treatment plan dated December 2, 2015?
6. Is the Applicant entitled to $990.00 for an invoice, denied by the Respondent on June 29, 2015?

RESULT:

1. The applicant is not entitled to payment for any of the claimed benefits as they are not reasonable and necessary.
2. The applicant’s appeal for benefits is hereby dismissed.

The test for medical benefits is laid out in the Schedule. An applicant must establish the treatment plans are reasonable and necessary. The burden of proof rests on the applicant. The applicant has provided very little evidence to support her position.

A Disability Certificate (OCF-3) is appended to the applicant’s submissions completed on June 18, 2015 by a physiotherapist. It indicates that the applicant suffers a complete inability to carry on a normal life and a substantial inability to engage in caregiving activities and housekeeping and home maintenance services. The Disability Certificate (OCF-3) indicates that the duration of the applicant’s disability will be nine to twelve weeks. There is no other documentary evidence. This lack of documentary evidence is a fundamental flaw in the strength of the applicant’s case. Without such evidence, whether by way of medical opinions or other medical evidence, the applicant has failed to discharge her persuasive burden on a balance of probabilities.

The Arbitrator reviewed all of the treatment plans, Aviva’s evidence, and the determined that given the lack of evidence provided by the applicant and the evidence provided by the respondent, the applicant has not met the test pursuant to section 15 of the Schedule. The treatments plan are not 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.