May 30, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
ZA and v Certas 2018 CanLII 39451 (ON LAT 17-003297)
Heard Before: Adjudicator Avvy Go
NEBs and MEDICAL BENEFITS: applicant fails to make case for NEBs; applicant shows that treatment plans are reasonable and necessary; applicant shows medical benefits for treadmill, and medical marijuana reasonable and necessary.
ZA was hurt in a car accident while driving on September 3, 2016. He was rear-ended while stopped at a red light. He exited his vehicle and exchanged information with the other driver. He applied Certas for SABs. ZA was involved in a previous motor vehicle accident on August 29, 2010. ZA was deemed to be catastrophically impaired as a result of his previous accident and his accident benefit claim was settled.
As of March 21, 2017, ZA has received $5,159.55 for medical, rehabilitation and attendant care benefits, with $59,850.45 remaining under the policy for the accident in question. In particular, Certas approved and ZA received physiotherapy treatments, osteopathy treatments and medical marijuana (classified as medical goods). Certas denied other benefits claimed by ZA, and ZA submitted an LAT.
- Is ZA entitled to receive a non-earner benefit in the amount of $185.00 per week for the period from March 3, 2017 to date and ongoing?
- Is ZA entitled to receive a medical benefit in the amount of $2,288.25 for medical cannabis recommended in a treatment plan submitted on December 15, 2016?
- Is ZA entitled to receive a medical benefit in the amount of $3,253.20 for osteopathy in a treatment plan submitted on January 17, 2017?
- Is ZA entitled to interest on any overdue payment of benefits?
- ZA is not entitled to the non-earner benefit.
- ZA is entitled to the medical benefits claimed, and the interest on any overdue payment of benefits.
To be eligible for non-earner benefits, the person must suffer from an impairment as a result of the accident that continuously prevents the person from engaging in substantially all the activities in which the person ordinarily engaged before the accident.
Upon reviewing the medical evidence, the Arbitrator accepted that ZA’s abilities to carry out his daily living have undoubtedly been affected by the September 3, 2016 accident, based on the insurer examination reports, that ZA is able to perform a number of self-care activities and daily living activities, including preparing simple meals, doing laundry and washing dishes with a counter top dishwasher. He was observed retrieving light objects from the top shelves of the refrigerator. He has learned modified methods and had modified setup/appliances to accommodate for his limitations related to the previous accident, and he continues to use these modified setup/appliances. Also, ZA still pursues activities outside of his home, such as going to the racetrack, albeit less frequently and for a more limited time period. ZA has not provided other documentation or functional assessment reports to support his claim that he is “simply going through motions” when he carries out his daily activities. Given the lack of sufficient evidence to support his claim ZA is not eligible to receive a non-earner benefit.
Subsection 15(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. ZA’s family physician prescribed medical marijuana to ZA. Certas approved and paid a claim of $717.55, but denied the rest of the claims.
ZA was using a number of pain medications for his previous motor vehicle accident on August 29, 2010. He had also used medical marijuana in the past to assist with his previous injuries. According to ZA, his conditions had improved over time prior to the September 3, 2016 accident, and he was able to stop the use of all medications prior to that date. Since the accident ZA is using Oxycocet and medical marijuana. ZA reported during the insurer’s examination that many of the symptoms he had experienced related to the previous accident, which later resolved, and were re-aggravated by the 2016 accident.
Certas relied a paper review of the treatment plan and stating that there is no residual impairment and no medication required, and pointed out that ZA did not provide any notes and records supporting the claim for medical marijuana, despite having stated his intention to do so during the case conference hearing.
While the evidence in support of this claim is limited, the Adjudicator found that ZA’s claim for medical marijuana is both reasonable and necessary in light of his ongoing pain as a result of the 2016 accident.
Is ZA entitled to receive a medical benefit in the amount of $3253.20 for osteopathy?
ZA was seen at East Toronto Osteopathy. In a treatment plan dated January 23, 2017 with various complaints. In the same treatment plan goals that the treatment plan seeks to achieve, including pain reduction, increase in strength, increased range of motion, and the functional goal of returning to activities of normal living were identified. The need for a treadmill was identified.
With respect to the vaporizer, ZA relied on a letter dated January 10, 2017 from a treating physician which noted that a “vaporizer required for health reasons”. The Adjudicator found the treatments and equipment were reasonable and necessary.