Presenting Your Case to Show a Treatment Plan is Reasonable and Necessary
May 04, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Fred Sampliner
Decision date: April 20, 2007
Mr. Siddiqui sustained soft tissue injuries while he was a passenger on a TTC bus on December 5, 2005. He applied for and received accident benefits through TTC Insurance Company. He received treatment from a chiropractor over a 10 month period and he brought a claim for payment of those treatments by the TTC. The TTC disputed payment.
The issue to be decided was whether, on a balance of probabilities, Mr. Siddiqui could establish that the treatment he received was reasonable and necessary. Mr. Siddiqui did not testify but relied on the evidence of the treating chiropractor. The arbitrator raised a number of concerns about the chiropractor´s evidence. The chiropractor had rated Mr. Siddiqui´s soft tissue injuries as a WAD III. The chiropractor also reported that Mr. Siddiqui had a permanent work disability and that he was unable to perform normal daily pre-accident activities. The chiropractor´s clinical notes and records only contained treatment plans and a record of manipulations. There was nothing noting symptoms or reported progress from treatment. The arbitrator determined the lack of clinical records weakened the chiropractor´s opinion. There was little supporting evidence that Mr. Siddiqui suffered severe permanent injuries. The chiropractor was unable to provide any reasonable excuse for the absence or inadequate basis for his opinion that Mr. Siddiqui suffered severe and permanent injuries. There was also evidence from the chiropractor that he ignored surveillance video which showed Mr. Siddiqui not disabled. This lack of commentary also undermines the chiropractor´s ability to provide an independent evaluation.
The TTC had arranged for an assessment with an orthopaedic surgeon, neurologist and psychologist. Their assessment was of WAD II soft tissue injuries. They did not find a substantial impairment that would prevent Mr. Siddiqui from performing any activities. The TTC also arranged for an occupational therapy assessment. Mr. Siddiqui also attended at a DAC. The DAC was conducted by a chiropractor and a massage therapist. The DAC report suggested an additional 2 weeks of treatments.
The arbitrator noted that there was no reliable evidence disputing the video surveillance. The surveillance showed Mr. Siddiqui briskly walking, jogging, crossing a street and working at an electronics store. The arbitrator therefore inferred from the video that Mr. Siddiqui had fully recovered. Again, it´s important to note that Mr. Siddiqui did not testify. Also, it was noted that when Mr. Siddiqui was assessed by the orthopaedic surgeon, he had severe complaints, was using a cane to support himself and denied having worked since the accident. The arbitrator found that Mr. Siddiqui had significantly exaggerated about his injuries.
It seems that there were a number of red flags that were raised in this case. The fact that the injured party failed to testify is particularly damaging to a case that requires the injured party to establish that the proposed treatment is reasonable and necessary on a balance of probabilities. The chiropractor´s evidence was also found not to be reliable and there was no other reliable health opinion provided. There were a number of significant evidentiary issues for Mr. Siddiqui. Clearly, the evidence presented has to be thorough, detailed and reliable if a claim for a treatment plan is going to be successful at arbitration.
|Posted under Accident Benefit News, Automobile Accident Benefits, Disability Insurance, Treatment
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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 toll-free at 1-866-414-4878.
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.