Neutral Citation: 2003 ONFSCDRS 44
FSCO A02-000844
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
TINA SUCHAN
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Janice Sandomirsky
Heard: February 3, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Charlia D. von Buchwald for Ms. Suchan
Rob Bowman for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Tina Suchan, was injured in a motor vehicle accident on August 13, 2000. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm denied entitlement to medical benefits for massage therapy treatments and a physiotherapy program. The parties were unable to resolve their disputes through mediation, and Ms. Suchan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Ms. Suchan entitled to a medical benefit of $910 for massage therapy pursuant to section 14 of the Schedule?
Is Ms. Suchan entitled to a medical benefit of $1,095 for a physiotherapy program pursuant to section 14 of the Schedule?
Ms. Suchan also claims interest on any overdue payments, pursuant to section 46 of the Schedule.
Result:
State Farm shall pay $910 plus interest for massage therapy, pursuant to section 14 of the Schedule.
State Farm shall pay $1,095 plus interest for a physiotherapist to monitor Ms. Suchan's gym program for an additional six-month period, pursuant to section 14 of the Schedule.
EVIDENCE AND ANALYSIS:
1. Case history
On August 13, 2000, Ms. Suchan was on the way to Wonderland with friends when the car they were travelling in was struck by another vehicle. At the time of the accident she was 24 years old.
Ms. Suchan sustained a number of serious injuries, including a closed head injury, severe liver lacerations, and a fractured cervical disc, sacrum and left pelvis. She underwent surgery for her liver lacerations and was in the hospital until September 1, 2000. The cervical fracture required immobilization in a rigid cervical collar for two months after the accident.
Ms. Suchan underwent many months of physiotherapy treatment at home and continued with a gym program that was monitored by a physiotherapist. State Farm refused to pay for a treatment plan from Inter-Action Rehabilitation ("Inter-Action"), dated June 12, 2002, that recommended monitoring of her gym program for an additional six months.
Ms. Suchan was also treated with massage therapy for many months. State Farm paid for the massage sessions up to February 12, 2002, when it denied the treatment plan from Ms. Suchan's family physician, Dr. Joel Freedman, recommending additional massage treatment.
Ms. Suchan requested an assessment from a Designated Assessment Centre ("DAC"). A report from West Park Healthcare Centre ("West Park") concluded that these treatments were not reasonable or necessary. Ms. Suchan disputed this finding, and filed for mediation and arbitration of the dispute.
Section 14 of the Schedule provides that an insured person is entitled to a medical benefit for all "reasonable and necessary expenses." The issue, therefore, is whether the physiotherapy program and massage therapy treatments requested in this case are reasonable and necessary forms of treatment, given for Ms. Suchan's condition approximately one and a half years after her accident.
2. The physiotherapy claim
Ms. Suchan underwent physiotherapy treatment at home two times a week for many months after the accident. While recovering at home, she developed a severe infection in the incisions in her abdomen. The infection was treated, but she continued to experience stomach pain for a number of months, which required further surgical treatment in April 2001. Ms. Suchan's progress was slower than expected due to the complications with the abdominal incision.
When Ms. Suchan was mobile enough to go out, she joined a gym and began an exercise program. State Farm denied a physiotherapy treatment plan submitted by Physiologic, dated April 30, 2001, which recommended further physiotherapy treatment at home two times a week for three months. Ms. Suchan requested a DAC assessment. A DAC report from West Park in June 2001 concluded that the treatment plan was not reasonable and necessary given that Ms. Suchan was attending a gym at that time. The DAC report recommended that Ms. Suchan would benefit from a personal trainer or kinesiologist to assist with her gym program every three or four weeks over the next four to six months.
Subsequent to this DAC report, State Farm approved a treatment plan in October 2001 for a physiotherapist from Inter-Action to work with and monitor Ms. Suchan's gym program for six months.
Debi Chemello, the physiotherapist from Inter-Action who monitored Ms. Suchan's fitness program, wrote a report dated October 24, 2001. She noted that her assessments demonstrated that Ms. Suchan had postural imbalances that affected her entire spine, scapulae and pelvis. This contributed to her pain, decreased her mobility and affected her overall strength, fitness and tolerance to activity.
The June 12, 2002, treatment plan in issue recommended ongoing monitoring of Ms. Suchan's gym program three times over the following six months to help increase her overall strength and general fitness level, and help reduce the pain and fatigue.
In a report dated June 18, 2002, Ms. Chemello outlined Ms. Suchan's progress over the prior six months. She noted that there was an increase in her overall fitness level and that she was generally stronger, although not at a level expected for her age. According to this report, Ms. Suchan was attending the gym three to four times a week, but continued to experience pain across her low back, right hip, upper back and neck, and headaches and fatigue. Despite Ms. Suchan's increased physical activity level at the gym, Ms. Chemello recommended that she continue to be monitored at the fitness facility to help with her progress as needed.
In a letter dated June 25, 2002, State Farm denied the treatment plan. The denial