16-003010 v Aviva Insurance Canada, 2017 CanLII 46346
Jul 05, 2017
Adjudicator: Rebecca Hines
Issue: Is the Applicant entitled to eleven claims for medical benefits dated between October, 2014 and July, 2016, and to a non-earner benefit?
The Applicant was injured in a motor vehicle accident on July 24, 2014. The Respondent denied her claims for the benefits in dispute.
The Applicant was involved in two previous motor vehicle accidents in 2005 and 2007, which resulted in serious physical and psychological injuries.
- Psychological assessment: The assessment submitted by the Applicant to evaluate the emotional and psychological impact of the accident is considered reasonable and necessary because the Applicant’s psychological impairment as a result of the prior two accidents had not been resolved, and the insurer’s evaluations had been inconsistent and contradictory.
- Chronic pain assessments: The assessment was reasonable and necessary because the Applicant’s submitted assessment concluded that the 2014 accident aggravated her pre-existing injuries. As a result, a chronic pain management programme would have improved the Applicant’s functional ability and quality of life, necessitating ongoing chronic pain assessments.
- Aquatic therapy programme: The therapy programme was reasonable and necessary because, in accordance with the chiropractor’s recommendations, it would have helped improve range of motion, circulation, and strength in a pain-free medium.
- Ambulance expense: The Applicant complained of chest pain in January, 2015 and the family doctor advised her to go to the hospital as the Applicant injured her chest in the 2014 accident. The expense was therefore reasonable and necessary.
- Chiropractic treatment: The Respondent’s expert claimed this treatment was not reasonable nor necessary, and there was insufficient evidence provided by the Applicant to refute this. The claim was therefore denied.
- Transportation expenses: There was not evidence submitted to support this claim. It was therefore denied.
- Orthopaedic, Neurological and Physiatry Assessments: There was not evidence submitted to explain why these assessments were reasonable or necessary.
- Non-earner benefit: The Applicant simply submitted evidence demonstrating that she sustained injuries, suffers from pain, and that she aggravated her prior injuries as a result of the 2014 accident. She failed to provide a “thorough analysis with respect to the activities the Applicant could do before the accident compared to those she cannot do post-accident” . The Applicant must prove the injuries and pain (importantly, as a result of the July 2014 accident) have significantly interfered with almost all of her pre-accident daily activities As a result the burden for proving non-earner benefits was not met.
Result: (1) The Applicant is entitled to five claims for benefits, including interest, dated between 2015 and 2016 including psychological services, pain assessments, aquatic therapy, and ambulance services. (2) The Applicant is not entitled to receive six claims for benefits dated between 2014 and 2016 including chiropractic services, transportation services, and orthopaedic, physiatry and neurology assessments. (3) The Applicant is not entitled to non-earner benefits.