16-000863 v Aviva Insurance, 2017 CanLII 43843

Jun 28, 2017

Adjudicator: Catherine Bickley

Preliminary Procedural Issues: Is the Applicant Entitled to add the Issues of an Award Under Section 10 of Regulation 664 and Interest to the Hearing?

The Adjudicator held that the issue of an award was not raised at the case conference and therefore cannot be added.  She further stated that the Applicant simply made a request and made no submission on same.

The Applicant is, however, entitled to add the issue of interest since section 51 of the Schedule is clear that interest is payable on overdue benefits and since there is no necessity for particulars, unlike with the issue of an award.

Issue #1: Is the Applicant Entitled to Treatment Plans for Physiotherapy, and Chiropractic and Massage Therapy

The Respondent conceded that the Applicant’s injuries fall outside of the MIG, however they argued that her injuries are soft tissue sprains and strains.  The Adjudicator held that the Applicant’s submissions focused on why she should be removed from the MIG and not on why the treatment plans are reasonable and necessary.  Therefore, the onus of establishing entitlement was not met.

Issue #2: Is the Applicant Entitled to the Balance of a Physiotherapy Treatment Plan Partially Approved?

The Applicant was entitled to remaining balance of the treatment plan. The Respondent conceded that the MIG limits no longer apply. Since the treatment plan had been previously approved the Respondent could not argue that it no longer was reasonable and necessary.

Issue #3: Is the Applicant Entitled to the Costs of an Orthopaedic Assessment?

The Applicant was not awarded costs of the assessment.  The Adjudicator shortly held that there was no objective evidence of an orthopaedic injury and the Applicant only made submissions regarding the above treatment plans and did not provide specific reasons as to why the assessment was reasonable and necessary.

Costs

The Respondent argued that costs should be awarded for the Applicant’s attempt to add issues not identified at the case conference.  The Adjudicator held that costs are not appropriate since she partially granted the Applicant’s request to add issues by allowing the issue of interest to be added.