K. W. D. v. Progressive American Insurance Company, 2018 CanLII 39450

Licence Appeal Tribunal

Date: 2018-03-07

Tribunal File Number: 17-003705/AABS

Case Name: 17-003705 v Progressive American Insurance Company

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:

K. W. D.

Applicant

and

Progressive American Insurance Company

Respondent

DECISION

ADJUDICATOR: Anita Goela

APPEARANCES:

For the Applicant: Christopher Collins, Counsel

For the Respondent: Pamela Brownlee, Counsel

Written Hearing: November 22, 2017

OVERVIEW

1The applicant was injured in a motor vehicle accident on October 10, 2015. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule"). The respondent denied the applicant's claim for various benefits on the basis that the benefits were not reasonable and necessary.

2The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Services (the "Tribunal") for resolution. A case conference was held on August 16, 2017 but the parties were unable to resolve the issues in dispute.

ISSUES

3Is the applicant entitled to a medical benefit for physiotherapy services recommended by Alysia Van Hemmen of Neuphysio in a treatment plan dated January 31, 2017 in the amount of $3,003.85?

4Is the applicant entitled to interest for the overdue payment of benefits?

RESULT

5The applicant is entitled to the treatment plan in dispute. Because I find that the benefit is owing, interest is payable for any incurred services.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that the treatment plan is reasonable and necessary.

7The applicant was a passenger on a motorcycle driven by her husband when it was rear-ended by a car. The applicant was thrown off the motorcycle and her head broke the car's windshield. Her helmet came off due to the impact of the accident.

8The applicant's injuries and symptoms include concussion, post-concussion syndrome, headache, vision problems, neck, back, leg and hip pain. The applicant also experiences psychological issues, including those related to memory, since the accident.

9Overall, I found the medical evidence produced by the applicant and respondent consistent. The applicant's injuries appear to be improving and the applicant continues to make progress. However, the parties disagreed whether ongoing physiotherapy treatment was reasonable and necessary.

10The goals stated in the disputed treatment plan are pain reduction, increase in strength, increased range of motion, improved activity tolerance, improved vestibular and oculomotor function. The applicant submits that physiotherapy treatment will continue to address her post-concussion syndrome, low back and neck pain. I agree with the applicant that these are valid goals and that pain relief is a legitimate treatment goal in and of itself. I find that the goals are reasonable and necessary given the injuries sustained by the applicant from the accident.

11The respondent's position is that "the physiotherapy treatment is unlikely to render any additional significant benefits."² Essentially, the respondent submits that physiotherapy treatment is no longer reasonable and necessary because of the applicant's improvement and progress.

12The respondent relied on the report of Dr. Mazer dated March 31, 2017 to deny the treatment plan. I note that in that report, Dr. Mazer acknowledges that the applicant will still require daily treatment consisting of stretching and range of motion exercises. I find this acknowledgement to be significant and further support that this treatment plan is in fact reasonable and necessary.

13I am not persuaded by the respondent's submission that the applicant should not benefit from continued physiotherapy because she is capable of stretching and performing the range of motion exercises herself. Having considered the nature of the accident, I find that the services outlined in the disputed treatment plan are still appropriate and effective.

14On balance, I find that the applicant has met her onus that the disputed treatment plan is reasonable and necessary.

ORDER

15For the reasons above, the applicant is entitled to a medical benefit for physiotherapy services recommended by Alysia Van Hemmen of Neuphysio in a treatment plan dated January 31, 2017 in the amount of $3,003.85. Having found that a benefit is payable, I also find that the applicant is entitled to interest pursuant to s. 51 of the Schedule for any incurred expenses related to the treatment plan in dispute.

Footnotes

1. 1O. Reg. 34/10.
2. 2Paragraph 20 of the respondent's submissions.