L.S. v. Royal & Sun Alliance Insurance Company of Canada, 2017 CanLII 39566

Licence Appeal Tribunal

Date: 2017-06-15

Tribunal File Number: 16-002381/AABS

Case Name: 16-002381 v Royal & Sun Alliance Insurance Company of Canada

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits

Between:

L.S.

Applicant

and

Royal & Sun Alliance Insurance Company of Canada

Respondent

DECISION

Adjudicator: Anna Truong

Appearances: Melinda Raymond, Paralegal for the Applicant Danielle Nicole Lecours, Counsel for the Respondent

Heard in writing on: April 13, 2017

OVERVIEW

1L.S. (the "applicant") was involved in an automobile accident on September 16, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule").

2The applicant applied for medical and rehabilitation benefits, but was denied by the respondent. The applicant disagreed with the respondent's decision and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal"). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues in dispute.

ISSUE TO BE DECIDED

3The following is the issue to be decided:

1. Is the applicant entitled to a medical benefit outlined in the Treatment and Assessment Plan (OCF-18) dated April 13, 2015 (the "treatment plan"), for physiotherapy and massage therapy submitted by Carol Belchamber, physiotherapist, of Physiofit Orthopedic & Sports Centre in the amount of $1,849.55?

RESULT

4Based on the totality of the evidence before me, I find that the applicant is not entitled to the proposed treatment plan.

ANALYSIS

5The only evidence submitted by the parties is documentary evidence. I have considered all of the documents submitted and summarized the ones that I find relevant to my determination below.

6Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary. The applicant bears the onus of proving on a balance of probabilities that the treatment plan is reasonable and necessary.

7While the Case Conference adjudicator's Order dated December 20, 2016 (the "Order"), clearly sets out the issue for the hearing as I have outlined above, the applicant has added her own issue: whether or not she is entitled to "receive a lump sum payment of $35,000 for the equivalent of 5 additional years of physio and massotherapies' treatment". Adding an issue without the consent of the Tribunal and the respondent is not appropriate and I cannot consider it. Parties cannot unilaterally add their own issues to a hearing. The only issue in dispute in the Order is the treatment plan and that will be the only issue I will decide in this hearing.

8The applicant did not submit any contemporaneous medical evidence to support her entitlement to the treatment plan. The most recent treating record submitted was the Action Physiotherapy MVA Report dated March 29, 2012, which is more than three years before the date of the treatment plan. The applicant has not adduced any medical evidence to show what her condition was at the time the treatment plan was proposed. The only evidence before me that deals with the applicant's condition in 2015 is the treatment plan itself and the Insurer's Physiatry Examination Report of Dr. Vidya Sreenivasan dated June 25, 2015.

9The treatment plan lists the applicant's injuries as whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs, concussion with moderate loss of consciousness, fracture of shaft of clavicle, closed, and fracture of patella. The treatment plan proposes funding for direct exercise, mobilization therapy, massage therapy and documentation support activity. The treatment plan notes that the goals of treatment is to reduce pain, increase range of motion and return the applicant to her activities of normal living.

10Dr. Sreenivasan opined in her report that aside from the isolated impairment in cervical spine lateral flexion, the applicant had no objective musculoskeletal impairment that required further facility-based therapy. She further opined that given the amount of time that has elapsed since the accident, the applicant has reached maximum therapeutic benefit with respect to facility-based therapies and should be encouraged to continue with her home-maintenance program. She concludes that the treatment plan is not reasonable or necessary.

11Given that there are two conflicting medical opinions, one in favour of the applicant and one against, I must look for corroboration in the rest of the applicant's medical evidence. None is available. There is simply too much information missing with respect to the applicant's condition at the time the treatment plan was proposed to conduct a meaningful analysis of the goals, the efficacy and cost of the proposed treatment, and whether there are other treatments available.

12A treatment plan by itself is not enough to prove that the proposed treatment is reasonable and necessary. There must be corroborating objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment. The applicant has not adduced this evidence. The only medical opinion with respect to the treatment plan is that of Dr. Sreenivasan and she did not find the treatment plan reasonable or necessary.

13Based on the evidence before me, I find that the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary. Therefore, the treatment plan is not payable.

CONCLUSION

14For the reasons outlined above, I find that the applicant is not entitled to the proposed treatment plan.