C.S. vs. Aviva Insurance Canada, 2020 ONLAT 18-007039/AABS
Released Date: 02/14/2020
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:
C.S.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Brent McQuestion, Counsel
For the Respondent:
David Koots, Counsel
HEARD: In Writing
May 13, 2019
OVERVIEW
1The applicant (“C.S.”) was involved in an automobile accident on June 21, 2011 (“the accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). This dispute focuses the respondent’s (“Aviva”) denial of C.S.’s entitlement to rehabilitative treatment.
2C.S. submits that, as a result of injuries she sustained in the accident, the treatment she seeks is reasonable and necessary.
3Aviva argues that C.S. has not established that the treatment plan is reasonable and necessary.
ISSUES
4The issues I must determine are as follows:
i. Is the rehabilitation benefit in the amount of $7,545.00 for personal training and a gym membership recommended by Quattro Health and Performance Inc. in a treatment plan (OCF-18) dated October 24, 2017, and denied on November 7, 2017, reasonable and necessary?
ii. Is C.S. entitled to interest on any overdue payment of benefits?
FINDING
5Based on a review of the evidence, I find the following:
i. C.S. is not entitled to the treatment plan in dispute; and
ii. C.S. is not entitled to interest.
ANALYSIS
Is C.S. entitled to the rehabilitation treatment plan?
6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.1
7For the reasons that follow, I find that the treatment plan is not reasonable and necessary. C.S. submitted as evidence a treatment plan completed by Peter Theodospoulos, Physiotherapist. Part 8 of the treatment plan details C.S.’s Activity Limitations. Part 9 (a) sets out the treatment goals. Part 9 also lists the possible barriers to recovery as "chronic persistent pain, prolonged sitting postures in school". Part 12 lists the proposed service, frequency and costs therein.
8A treating physician’s mention of a chronic pain condition, be it ‘syndrome’ or specific use of the term ‘chronic pain’ is not enough to establish the necessity of a treatment plan. More importantly, C.S. has failed to establish that due to ‘chronic pain’, the treatment is reasonable and necessary.
Dr. Kleinman’s Report
9C.S. directed me to the report2 of Dr. Max Kleinman. Dr. Kleinman diagnosed C.S. with WAD II injury, biomechanical disorder of the lumbosacral spine and post-traumatic headaches. Dr. Kleinman opined that C.S. appears to have psycho-emotional factors that may be contributing to her current pain factors. Dr. Kleinman went on to note that C.S. has reached maximum medical improvement (“MMI”). Dr. Kleinman states in his report on C.S.’s MMI, “further recovery of function on a pain-free basis can no longer be anticipated to a reasonable degree of medical certainty and her condition should be considered permanent and static”.
10Dr. Kleinman makes the following recommendation based on his assessment of C.S.’s accident-related injuries, “I believe that C.S. should be allowed ongoing access to supportive care in the form of physiotherapy, chiropractic, massage, and other supportive services that continue to assist her with her function”. Dr. Kleinman also opined that infrequent treatment may also be beneficial to C.S., stating, “I would caution and suggest that she attempts to increase the interval between treatment sessions so as to avoid dependency and to only use these types of treatments when there are acute flare-ups for which I believe she will continue to be susceptible”.
11Dr. Kleinman does not specify what he means by “other supportive services that continue to assist her with her function”. C.S. contends that this is a recommendation that supports the disputed treatment plan. I disagree. An absence of a recommendation for a specific type of rehabilitation treatment, does not automatically entitle an insured to any or all rehabilitation treatment. C.S. does not provide any evidence to establish that Dr. Kleinman’s generalized statement is in support of the specifically outlined treatment plan for an exercise program and personal trainer.
12Dr. Kleinman went on to note that he does not believe there is any other need for physical intervention at this time. Dr. Kleinman was of the opinion that “further supportive services in the form of a psychological counseling would likely be of benefit and I would suggest that an up to date psychological evaluation be completed in order to determine whether there are any barriers from this perspective and for the introduction of coping strategies”.
13Aviva conducted its own assessment and relied on its assessor’s report3 in denying the treatment plan. C.S. reported to Dr. Kopyto she receives physiotherapy and psychological treatment as well as massage therapy. In addition, C.S. reports that she has been provided with education about various types of stretching and strengthening exercises. In her self-reporting to Dr. Kopyto, C.S. stated, “her treatment results in her experiencing a bit of short-term relief, but as noted above, her overall condition is substantively unchanged when compared to a few years ago”.
14Both Drs. Kleinman and Kopyto diagnose C.S. with strain and sprain types of injuries. Both doctors opined that C.S. has reached MMI. I am not persuaded by the opinion and recommendation of Dr. Kleinman (or lack thereof in Dr. Kopyto’s report) that the treatment plan is reasonable and necessary. Dr. Kleinman does not specifically endorse an exercise program, and C.S. is currently receiving the treatment he recommended. Dr. Kopyto’s report notes that C.S. self-reported she has already received education about stretching and strengthening.
15The treatment plan is contradicted by C.S.’s self-reporting, and Dr. Kleinman’s report on the extent of C.S.’s injuries and the recommended treatment. C.S. has provided a treatment plan, and no other recommendations for the exercise program. This is not enough to establish entitlement to the disputed treatment plan.
16As a result, I find C.S. has not met her onus in showing how this treatment plan meets the test of being reasonable and necessary. Consequently, I do not find the treatment plan to be reasonable and necessary.
CONCLUSION
17C.S. has not met the onus on her to persuade me that the treatment plan is reasonable and necessary. She is therefore not entitled to a rehabilitation benefit for personal training and a gym membership.
18No interest is owing as there is no overdue payment of benefits.
19C.S.’s claim is dismissed.
Released: February 14, 2020
Derek Grant
Adjudicator
Footnotes
- Scarlett v. Belair, 2015 ONSC 3635.
- Physiatry Report of Dr. Max Kleinman, dated August 17, 2018
- Medical Physician Assessment, prepared by Dr. A. Kopyto (Physician), at CanAssess, dated January 9, 2018