Reasonable and Necessary? A Closer Look at 17-006160 v Aviva Canada by Chantalle Youkhana
Oct 04, 2018
What is reasonable and necessary is the ultimate analysis in determining an individual’s ability to claim medical and rehabilitation benefits under the Statutory Accident Benefits Schedule (“the Schedule”). As per sections 14 and 15 of the Schedule, it is incumbent on the applicant to demonstrate, on a balance of probabilities, that as a result of injuries caused by the automobile accident, the medical and/or rehabilitation expenses listed in a treatment plan are reasonable and necessary.
In the recent decision of 17-006160 v Aviva Insurance Canada, 2018 CanLII 81952 (ON LAT), Adjudicator Craig Mazerolle of the Ontario Licence Appeal Tribunal was asked to determine whether the proposed treatment plans for ongoing physical therapy modalities (e.g. chiropractic care, massage therapy and physiotherapy) were reasonable and necessary. All five disputed treatment plans listed pain reduction as the goal for the applicant’s alleged headaches, temporomandibular joint disorders and sprains/strains.
To determine entitlement, the applicant submitted as evidence the contemporaneous medical records of her family physician and Dr. Judith Pilowsky, her psychotherapist. Each set of records indicated that the applicant’s primary physical impairments improved during the period while she received physical therapy, and intensification after treatment ended. The psychological assessments reported on the applicant’s physical and psychological progress. The adjudicator found that the psychological assessments were a convincing account of the applicant’s physical recovery. From these records the adjudicator determined that the applicant’s claim for further treatment was reasonable and necessary, maintaining that the applicant had discharged her burden.
This finding presents a number of issues. For instance, neither the family physician nor the psychotherapist had treated or assessed the applicant’s physical ailments resulting from the automobile accident. The treatment claimed to have been reasonable and necessary was not provided by either the family physician or the psychotherapist. Their records were not based on objective testing and were nothing more than an accounting of the applicant’s subjective view towards her impairments. It may be argued that determining what is reasonable and necessary should not only be a subjective analysis.
The applicant challenged the findings of the insurer’s examination reports, questioning the diagnostic methods used by the examiners. In contrast, the insurer contended that the applicant had not discharged her evidentiary burden because the psychological assessments of Dr. Pilowsky are not germane to the analysis as they do not relate to physical therapy. The insurer submitted that its’ examiners’ reports demonstrated that physical treatment was not necessary to address her accident related injuries. In light of the fact that the insurer’s examiners actually assessed the applicant, their findings should carry more clout.
By relying on these types of records, it would seem that the Applicant’s views on the efficacy of treatment as recorded by her family doctor and psychologist became the primary determinant of whether the treatment was “reasonable and necessary”. The adjudicator did not address the propriety of continuous active treatment and therapies for sprains and strains, which will ordinarily resolve without complication, when applying the “reasonable and necessary” lens. Limiting access to this type of treatment is precisely the theory behind the Minor Injury Guideline that often gets forgotten.
By broadening what is sufficient evidence to prove a treatment plan reasonable and necessary, the adjudicator also invites opportunity for subjective exaggerations, seemingly supported by unsubstantiated records and evidence.
Taking a stricter approach in adducing relevant evidence will prevent a purely subjective means of determining what is reasonable and necessary which is necessary to prevent an erosion of the Minor Injury Guideline.