Volume. 8 Issue. 35 – October 2, 2024
This week we review a case wherein the Applicant had not been removed from the MIG until 4.5 years post accident following which they submitted 3 new treatment plans which were denied due to a “gap” in submissions and that they were outside of the five year window for benefits. Ultimately, the positioning of the Respondent was found sufficiently stubborn and inflexible so as to justify an Award, as well as a finding that the three items in dispute were deemed incurred.
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All Items in Dispute Deemed Incurred
Deemed Incurred + Award – Injured in a June 2017 MVA, the Applicant Siddiqui sought entitlement to three treatment plans, two dated June 3, 2022 for physiotherapy and psychological therapy and a 3rd dated May 10, 2022 for a chronic pain assessment. Siddiqui also sought an award based upon having experienced a significant delay in approval and payment of treatment essential for medical recovery and abstained from receiving necessary treatment for an extended period due to the recurring issues of non-approval and non-payment of incurred expenses.
Of particular note, Siddiqui, in 22-006538 v Aviva, was only removed from the MIG by Aviva September 17, 2021 (4.5 years after the accident) when a prior application under file no. 20-009861/AABS was settled on the basis that the applicant was removed from the MIG and incurred treatment plans were paid.
Aviva took the position that “all three plans at issue are not reasonable and necessary on the basis that there are insufficient clinical notes and records to support the approval of the plan and the plan was submitted between May 10, 2022 to June 3, 2022, nearly 5 years post-accident, and therefore the plan cannot be accepted at face value without additional supporting medical evidence. With respect to the chiropractic services plan, the respondent submits that there is no evidence that the plan is reasonable and necessary and notes that the applicant did not receive any physiotherapy in the 4.5 years prior to submission of the plan.”
The Tribunal however noted that “In light of the applicant only being removed from the MIG on September 17, 2021 as a result of the settlement of the applicant’s prior appeal to the Tribunal and having significant amounts owing under the treatment plans until the settlement of the prior application, I am not prepared to make the adverse inference suggested by the respondent that the applicant not seeking physiotherapy treatment in the 4.5 years means that the plan is not reasonable and necessary.” It was further noted that Siddiqui had “submitted CNRs of (his) doctor in addition to the plans at issue to support the claim for accident benefits. I find that the applicant is suffering from ongoing back and joint pain as a result of the accident. I note that there are CNRs which provide evidence in respect of ongoing knee and back pain complaints and a desire to obtain medical rehabilitation in respect of this pain.” Accordingly, the Tribunal found that the OCF18 for chiropractic services proposed in the plan was reasonable and necessary.
Turning next to the plan for psychological services, it was the position of Aviva that neither the 2017 report relied upon nor the more recent one from 2021 can be considered contemporaneous medical evidence in support of the June 2022 plan. Aviva further submitted that the two referenced reports “represent the entirety of the applicant’s psychological complaints post-2017.” Ultimately, the Tribunal accepted the evidence proffered by Siddiqui and found this plan also to be reasonable and necessary.
Finally, with respect to the OCF18 for a chronic pain assessment Aviva submitted that “there is no evidence that the applicant’s medical condition or behaviour meets any of the criteria in the six criteria set out by the by the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (“the AMA Guides”) on which the Tribunal has relied in evaluating chronic pain.” The Tribunal however countered that “To be entitled to a claim for a chronic pain assessment, the applicant need not establish that he meets the criteria for a chronic pain syndrome diagnosis. The purpose of a chronic pain assessment is to assess whether the applicant suffers from chronic pain and/or chronic pain syndrome and to formulate recommendations to assist in alleviation of symptoms and return to normal activities of daily living.”
Aviva relied upon a June 13, 2022 denial, that included the following “We also note the last treatment provided and incurred with regard to the accident was on December 6, 2017. We are uncertain as to why there has been such a gap in requesting treatment and why these plans were submitted the end of your 5-year limit… As your injuries are not deemed to be catastrophic, the 5-year period for you to claim medical and rehabilitation benefits expires on June 13, 2022; therefore, we cannot consider any further medical, rehabilitation benefits after this date. We may consider payment of costs associated with the treatment and assessment plans listed above incurred from May 10, 2022 to June 13, 2022.”
Siddiqui submitted that it “would have been apparent to the respondent that the applicant had been confined to the MIG for approximately 4.5 years and had abstained from receiving further necessary treatment for an extended period due to the recurring issues of non-approval and non-payment of incurred expenses. After the applicant was removed from the MIG, the applicant again sought reasonable and necessary treatment, and the respondent failed to adjust his claim in good faith.” Aviva’s denial rationale simply indicated that “the clinical notes and records … do not support ongoing treatment from [the applicant’s] accident-related injuries.” They submitted that “on a holistic review of the applicant’s medical file, it is reasonable to conclude that any accident-related impairments had fully resolved by May 2022.”
The Tribunal found that Aviva ‘behaved in a manner that was stubborn and inflexible in failing to adjust the claims in good faith after the applicant was removed from the MIG, and delaying and then ultimately not proceeding to conduct an IE in respect of its MIG position in 2017 and 2018.” Aviva “failed to consider the commonsense reason that the applicant did not seek treatment while his claim was subject to the MIG limits and while he had outstanding incurred treatment amounts owing from his 2017 denied treatment plans. Further given that the prior LAT application also addressed the significant outstanding balance for treatment that the applicant was facing, it is disingenuous for the respondent to set up the applicant not seeking further treatment as a reason for any further treatment being denied. The redacted adjuster log notes provide no notes with respect to any consideration that the applicant was removed from the MIG in October 2021 and of the plans at issue, and there are no notes of the reason for the applicant being removed from the MIG.”
Concluding, “I find that it appropriate that the respondent pay an award of the lump sum of $2,500 plus interest, which amounts to approximately 25% of the amount of the benefits to which an insured person is entitled.” Siddiqui contended as well that it would be “against the consumer protection nature of the Schedule to require accident victims to incur treatment and/or assessment expenses before a decision of the Tribunal in cases where the respondent has unreasonably denied treatment plans for such a long period as to force the applicant up against the 5-year time limit for accident benefit claims.” The Tribunal opted to resolve this potential dilemma by confirming that the expenses were not incurred because the respondent unreasonably withheld or delayed the payment of the plans at issue. As a result, pursuant to s. 3(8) of the Schedule, I deem the expenses with respect to the plans at issue to have been incurred.”
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