Tribunal File Number: 16-001097/AABS
Case Name: 16-001097 v Aviva Canada Inc.
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
P. W.
Applicant
and
Aviva Canada Inc.
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Peter Kazdan, Counsel
For the Respondent: Gina Nardella and Alexander Hartwig, Counsel
HEARD: In writing on December 6, 2016
OVERVIEW
1The applicant was injured in an automobile accident on January 31, 2014 and sought benefits from the respondent pursuant to O. Reg 34/10 Statutory Accident Benefits Schedule (the “Schedule”)
2The applicant’s physiotherapist, Anna Staruszkiewicz, completed a Treatment and Assessment Plan (“the treatment plan”) dated July 29, 2015, recommending physiotherapy in the amount of $1,596.00 and exercise equipment in the amount of $475.00. The respondent approved the purchase of the equipment and denied the physiotherapy treatment.
3After a failed attempt to resolve the dispute an application was submitted for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
4The following issues are before me:
a. Is the applicant entitled to payment of a medical benefit in the amount of $1,596.00, for a treatment plan for physiotherapy dated July 29, 2015 recommended by Anna Staruszkiewicz?
b. Is the applicant entitled to interest on any overdue payments?
c. Is the respondent entitled to costs of the proceeding?
RESULT
5I find that the treatment plan for physiotherapy is reasonable and necessary and that the applicant is entitled to the balance of $1,596.00. The applicant is entitled to all applicable interest. Neither party is entitled to costs of the proceeding.
FACTS
6The applicant was struck as a pedestrian on January 31, 2014 and his injuries included a torn left anterior cruciate ligament (ACL) and medial collateral ligament (MCL), fracture of the left fibula head and neck, compound fracture of the right hand, and a possible concussion. He was hospitalized for 3 days following the accident and continued to see doctors as an outpatient after he was discharged.
7On July 31, 2014, the applicant had reconstructive surgery on his left ACL. The applicant participated in physiotherapy prior to and following the surgery. The applicant did not participate in physiotherapy from September 2014 to January 2015.
8The applicant then received treatment from January 2015 until July 2015, the time which is the subject of this appeal.
9The applicant attended a physiotherapy insurer examination on October 26, 2015 at the request of the respondent. Based on the findings of the assessment, the respondent advised the applicant that it would approve funding in the amount of $475.00 for exercise equipment, but the 16 sessions of physiotherapy were neither reasonable nor necessary.
THE LAW
10Pursuant to section 14 of the Schedule, an insurer is liable to pay for medical benefits as outlined in section 15. Section 15 advises that medical benefits must be reasonable and necessary and be required as a result of the accident.
11Section 15 also outlines the specific exceptions where an insurer is not liable to pay for medical benefits. These exceptions include payment for goods or services that are experimental in nature, expenses that exceed the maximum rate under the Guidelines, and for transportation expenses other than authorized transportation expenses.
ANALYSIS
12The only question before me is whether the balance of the disputed treatment plan is reasonable and necessary. There are no submissions and no evidence before the Tribunal to suggest that the respondent is relying on any other Section 15 exceptions as grounds for denial.
THE APPLICANT’S POSITION
13The treatment plan has goals of reducing pain and increasing strength in the left knee. It also states a functional goal of returning the applicant to activities of normal living.
14The evidence relied on by the applicant includes the following;
a. The affidavit of the applicant;
b. A discharge summary by Dr. Rioli;
c. A disability certificate completed by Dr. Whelan;
d. The clinical notes and records of St. Michael’s Physiotherapy Outpatient Clinic;
e. An occupational therapy and attendant care needs report of G. Hirano;
f. A psychological report of Dr. Rockman;
g. A post-surgical attendant care assessment report of G. Hirano; and
h. The Clinical notes and records of Cornerstone Physiotherapy.
15The applicant asserts that since the accident he has benefited from physiotherapy treatment. He states that he has experienced a reduction in pain and improved functionality and wishes to continue with physiotherapy as he has not fully recovered from the injuries. This position is reflected throughout the various supporting documents provided by the applicant. Most importantly, this position is reflected in the most recent medical records provided by the applicant and the records, the Affidavit of the Applicant and the clinical notes and records of Cornerstone Physiotherapy.
16I do not see any inconsistency or contradiction between the applicant’s position and the supporting evidence.
THE RESPONDENT’S POSITION
17The evidence relied on by the respondent includes the following;
a. An orthopaedic surgery assessment by Dr. Tansey;
b. A psychological assessment by Dr. Biswas;
c. A functional capacity evaluation by Ms. Yee and Mr. Troi;
d. An occupational therapy in-home assessment by Mr. Pritchett; and
e. A physiotherapy assessment report by Mr. Yip.
18Based on the evidence listed above, the respondent states that further treatment is not reasonable and necessary because the applicant has returned to a state of functional mobility. This position is referenced throughout the submissions and supported by the statements of the assessors whose reports were submitted as evidence.
REASONING
19I find the proposed goals of the treatment plan; increasing strength, reducing pain, and increasing range of motion are reasonable considering the severity of the injuries and the state of the applicant’s recovery. I am convinced that, at the time of this treatment plan, the applicant had not fully recovered from the injuries but had seen improvement from physiotherapy. I find that the treatment proposed is a necessary component to achieving the goals of the treatment plan.
20I prefer the applicant’s submissions and evidence over that of the respondent. Specifically, I find the clinical notes and records of Cornerstone Physiotherapy and the affidavit of the applicant to be compelling pieces of evidence. The submissions from the respondent focussed almost entirely on the applicant’s functional range of motion which is only one of the three stated goals of the treatment plan. Of the reports submitted by the respondent, I give the most weight to the physiotherapy assessment report of Mr. Yip. This is the only report submitted by the respondent which specifically addresses the goals of the treatment plan in dispute. The Yip report, although the conclusion rejects facility-based treatment, it is consistent with the applicant’s complaints of pain and decreased strength - the other two goals of the treatment plan.
CREDIBILITY
21The respondent has submitted that the applicant is not credible. They submit that, in the Pritchett report, the respondent disclosed a medical history which included a concussion and broken bones in the extremities and that he did not disclose the same in another assessment (the Yip Report).
22The respondent relies on a section in the Pritchett report which states that the applicant “reports a history of concussions, facial lacerations, and broken bones in the extremities”. The respondent submits the applicant failed to disclose this information for the Yip report.
23I have reviewed the Pritchett and Yip reports and am not persuaded by the respondent’s submissions that the conflicting self-reporting leads to a complete discounting of the applicant’s evidence with respect to the treatment plan.
24The Pritchett report alone is unclear and contradictory in and of itself. This is clear in the self-reporting portion of the report which reads as follows:
[The Applicant] reported no pre-accident serious illness/injuries and was not previously involved in any motor vehicle accidents or work-related accidents.
- He reports a history of concussions, facial lacerations, and broken bones in the extremities. These are all sports related. He reports no previous surgeries.
25There is a clear contradiction between the two above-referenced statements in the report. Given the significant contradiction, I am unable to determine which statement in the Pritchett report is accurate and I am unable to determine if the applicant failed to disclose previous injuries or not. I am therefore not persuaded by the respondent’s submissions that that on this basis the applicant is not credible.
CONCLUSION
26For the reasons above, I find the treatment plan reasonable and necessary and order the respondent to fund the balance of the treatment plan in the amount of $1,596.00. The applicant is also entitled to any interest accrued in accordance with the Schedule.
27No party is entitled to costs. Costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, or in bad faith. Neither party has established that the other party has behaved in this manner in the proceeding.
Released: June 13, 2017
Brian Norris, Adjudicator