K F v. Aviva Insurance Canada, 2018 CanLII 95557

Licence Appeal Tribunal

Date: 2018-07-16

Tribunal File Number: 17-006470/AABS

Case Name: 17-006470 v Aviva Insurance Canada

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 F

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

Counsel for the Applicant: Louis DelSignore Jr.

Counsel for the Respondent: Leanne Zabudsky

HEARD In Writing: June 12, 2018

OVERVIEW

1KF was involved in an automobile accident on January 9, 2017 and sought accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal (the “Tribunal”) when her claim was denied by Aviva.

2KF claims entitlement to payment for a massage therapy chair. A massage therapy chair is a medical device that features robotic rollers used to simulate massage touch and pressure. The rollers are programmed to simulate the techniques and hand movements of massage: kneading, rolling, compression and percussion. The chair can target upper (back and shoulders), lower and entire back. Some of them include calf and foot massage features. Most of them recline to various angles. They are heavily padded for comfort.

3The parties agree that KF has medical history of severe pain caused by non-accident medical events and conditions. This includes development of, and recovery from, dependence on substances initially prescribed for pain.

ISSUES

4The issues before me are:

1. Is KF entitled to a medical and rehabilitation benefit in the amount of $6,177.64 for a massage therapy chair and associated warranty and delivery costs, recommended by Cheryl Fountain-Gore, occupational therapist (OT) of DMA Rehability, in a treatment plan (OCF-18) dated June 12, 2017, and denied on October 26, 2017?

2. Is KF entitled to interest on any overdue payment of benefits?

FINDINGS

5I find that KF has shown her entitlement to the benefit claimed. Her application is allowed.

6There is interest on overdue payment of benefits due.

REASONS

7Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses – including medical and therapeutic devices – that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan, and the associated costs, are reasonable and necessary.²

8To support her claim for the massage therapy chair, KF submitted the following evidence:

i. KF’s treatment plan from Cheryl Fountain-Gore, OT which notes her constant and severe pain, bed-ridden condition and which recommends a massage chair in order to facilitate her interaction with family and to encourage more physical activity by providing her a “place of comfort to go to” and pain relief after such activity; and

ii. KF’s physiatry report dated November 8, 2017 by Dr. Patrick Potter, physiatrist, endorsing KF’s use of a massage chair – recommending that one “be provided as a pain management strategy.”

9To rebut KF’s claim, Aviva submits the following evidence:

i. a letter dated March 29, 2017 from Adam Ly, OT, who provided treatment to KF in February-March 2017 informing her that he did not recommend a massage chair. He recommended a number of other treatment methods instead;

ii. a report by Dr. Saad Naaman, physiatrist dated October 16, 2017, in which the physician opined that the massage chair was not necessary to restore KF to her pre-accident condition, instead recommending other approaches including home exercise and stretching.

10On balance, I find that KF has met the onus on her to show that the claimed massage chair is reasonable and necessary.

i. The opinion from Adam Ly – that a massage chair is not recommended – is outweighed by the opinions of Dr. Potter and Ms. Fountain-Gore: this is especially so since Mr. Ly provides no reason for his opinion.

ii. Aviva asserted that Dr. Potter stated that the massage chair was unlikely to affect her [i.e. KF’s] outcome – but I could find no such statement in the two reports from Dr. Potter that I read in KF’s submissions.

iii. Aviva’s assertion that the efficacy of the massage chair cannot be determined through a brief test by KF is unpersuasive in the absence of any suggestion of what would be an appropriate test or trial and because Dr. Potter obviously was convinced that it would help. The applicant’s assertion that the chair provides optimal pain relief is persuasive to me.

iv. Aviva acknowledges pain relief as a valid goal of treatment (and by extension medical or therapeutic devices). It is uncontested that KF suffers from severe, debilitating pain and Aviva does not suggest that the massage chair fails to deliver pain relief.

v. Aviva also argues that pain relief measures should not encourage an inappropriate or indefinite dependency or interfere with other aspects of rehabilitation but offers no evidence that the massage chair would do any such thing. Aviva’s suggestion that a five-year warranty on the massage chair represents some kind of indication of risk for dependency is, in my view, absurd.

vi. Given KF’s history of prescription medication addiction and other dependency problems, I find that the relief offered by the massage chair may in fact help reduce the risk of a relapse into substance dependency, as suggested by her treatment plan.

vii. I note also that the treatment plan recommending the chair addresses the support of other activity and movement – recommended by all of the medical practitioners cited by both parties – as a key benefit of the massage chair.

11Aviva argues that KF’s medical history of serious pain complaints unrelated to the accident raises issues of causation and in turn means that they need only pay for treatments that would return KF to her pre-accident functional level or, as Dr. Naaman expressed it her pre-accident level of “a high level of pain”. I did not find this line of argument at all persuasive because:

i. All of the medical evidence acknowledges KF’s non-accident medical issues but none of them question that she suffers pain as the result of the accident.

ii. Dr. Naaman’s opinion that the accident was not the leading or primary cause of KF’s pain is legally irrelevant. In addition, the report is unpersuasive because it does not address the possibility that some of KF’s existing complaints might have been aggravated by the accident or inhibited her recovery from it.

iii. I find that KF’s evidence from Ms. Fountain-Gore that the chair would support an increase in her physical activity and would improve interaction with her family gives me adequate reason to believe it will restore KF to pre-accident functionality. Aviva’s submissions did not address pre- and post-levels of well-being or functionality, except for pain.

12Aviva asserts that the cost of the massage chair claimed was unreasonable. I reject this because:

i. Aviva makes no case that cheaper models are as effective nor does it offer support for its implied position that the applicant must choose the cheapest available alternative.

ii. The applicant showed that the chair selected was in the mid-range of prices for similar chairs. She did not claim the most expensive model available.

13As a result of the foregoing analysis, I conclude that Aviva must pay for the massage chair claimed by KF, including the warranty on it.

Request for Interest

14Section 51 of the Schedule prescribes the criteria for assessing and awarding interest on overdue payments.

15KF is entitled to interest on the overdue payment for the massage chair, at the prescribed rate.

CONCLUSIONS

16KF has proven her entitlement to the benefit claimed.

17Interest is due on overdue payments at the prescribed rate.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635