N.E. v. Aviva General Insurance, 2020 CanLII 47487

N.E. vs. Aviva General Insurance

Citation: N.E. vs. Aviva General Insurance, 2020 ONLAT 19-002894/AABS Released Date: 07/14/2020

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:

N.E.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Melody Maleki-Yazdi

APPEARANCES:

For the Applicant: W. Ryan Moriarty, Counsel

For the Respondent: Andrea L. Bandow, Counsel

HEARD: By way of written submissions

OVERVIEW

1N.E. (“the applicant”) was injured in an accident (“the accident”) on December 30, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when her claims for medical benefits and a cost of examination were denied by the respondent.

ISSUES

3The following issues are in dispute for this hearing:

(i) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,394.00 for physiotherapy treatment, recommended by Cornerstone Physiotherapy in a treatment plan (OCF-18) submitted on December 16, 2016, and denied on March 13, 2017?

(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,686.54 for physiotherapy treatment, recommended by Cornerstone Physiotherapy in a treatment plan (OCF-18) submitted on September 7, 2017, and denied on September 20, 2017?

(iii) Is the applicant entitled to payments for the cost of examinations in the amount of $2,030.07 for an occupational therapy assessment, recommended by Mr. Remik Zakrzewski in a treatment plan dated May 10, 2018, and denied on June 1, 2018?

(iv) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is entitled to the treatment plan for physiotherapy in the amount of $2,394.00. The applicant is also entitled to the treatment plan for physiotherapy in the amount of $1,686.54, less any amount that is available under her collateral benefits coverage. The amounts of these treatment plans should be adjusted to reflect that a Pilates instructor’s hourly rate is $58.19. The applicant is entitled to interest on any overdue payments of benefits.

5The applicant is not entitled to the treatment plan for an occupational therapy assessment in the amount of $2,030.07.

ANALYSIS

Issues that have been previously withdrawn

Orthopaedic assessment in the amount of $2,259.78

6The applicant’s submissions refer to a treatment plan for an orthopaedic assessment in the amount of $2,259.78. I have not considered this treatment plan to be an issue in dispute because the Order from the case conference dated September 9, 2019, indicates that the respondent approved this treatment plan and that the issue would not proceed to a hearing. Furthermore, the respondent’s counsel submitted evidence of an email dated October 23, 2019, where a legal assistant from the applicant’s law firm withdrew this issue. The applicant did not file reply submissions.

7The applicant submits that at the case conference, the respondent agreed that the orthopaedic assessment was reasonably required and agreed to fund the cost; however, to date, the assessment has not been paid. The applicant submits that the respondent requires billing to be completed via the Health Claims for Auto Insurance (“HCAI”) electronic system, but that given the applicant has incurred this cost and paid out of pocket directly to the service provider, billing through HCAI may not be possible. The applicant is seeking a declaration from the Tribunal that the cost of the assessment be paid by the respondent directly to the applicant. The applicant did not direct me to any authority or provision of the Schedule or Insurance Act that would allow me to make such an order. Accordingly, I decline to order that the respondent pay the cost of the assessment directly to the applicant.

Physiotherapy treatment in the amount of $2,418.44

8The applicant’s submissions also refer to a treatment plan for physiotherapy treatment in the amount of $2,418.44. I have not considered this treatment plan to be an issue in dispute because the respondent’s counsel submitted evidence of the same email dated October 23, 2019, where a legal assistant from the applicant’s law firm withdrew this issue. As noted above, the applicant did not file reply submissions.

Are the two treatment plans for physiotherapy treatment reasonable and necessary?

9Sections 14-16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that a treatment and assessment plan is reasonable and necessary.

10The two treatment plans are listed as for physiotherapy treatment, although these treatment plans are for Pilates and/or massage therapy treatment. The first treatment plan was recommended by Aaron Stewart (physiotherapist) and proposes Pilates sessions. It is in the amount of $2,394.00 and is dated December 16, 2016. The second treatment plan was recommended by Jennifer Hay (massage therapist) and proposes Pilates sessions and massage therapy treatment. It is in the amount of $1,686.54 and is dated September 7, 2017.

11The respondent submits that these treatment plans are not reasonable and necessary. It relies on the opinion of its insurer’s examination (“IE”) assessor, Dr. Manoj Bhargava (orthopaedic surgeon). The respondent also submits that in the event that the treatment plans are found to be reasonable and necessary, the Pilates instructor’s hourly rate is a higher amount than the hourly rate set for unregulated providers under the Professional Services Guideline.² Furthermore, the respondent submits that the applicant has access to a collateral benefits policy.

12Dr. Bhargava conducted an IE assessment on January 30, 2017. In his report dated February 13, 2017, Dr. Bhargava opined that Pilates was not a reasonable and necessary treatment for the applicant's impairment to her right knee. The respondent submits that Dr. Bhargava recommended that the applicant continue with the self-guided exercises that she had advised she was taught at physiotherapy. The respondent submits that, of note, Dr. Bhargava did not recommend massage therapy treatment.

13The respondent submits that Pilates engages the applicant in the type of high impact activities and repetitive movements that specialists have advised against and that directly contradicts the medical advice of multiple medical professionals. The respondent submits that the applicant told her family physician, Dr. Nicole Alcolado, on May 10, 2017 that she was engaging in the following activities: weight bearing (i.e., lunges, squats, leg lifts, core work, jumping/hopping). The applicant also told Dr. Bhargava that she was taught mechanisms to slowly reintroduce her to running.

14I find that both treatment plans are reasonable and necessary.

15As a result of the accident, the applicant suffered a fractured right knee that required open reduction and internal fixation with bone grafting. On December 9, 2016, the applicant was assessed by Dr. Sara Ward (orthopaedic surgeon). Dr. Ward’s clinical notes indicate that the applicant reported considerable improvement with physiotherapy. Dr. Ward notes that the applicant is aware that she is at a higher risk of developing post-traumatic arthritis due to her injuries as a result of the accident and that she will continue to do her strengthening exercises for her leg and avoid high impact activities.

16The applicant saw her family physician, Dr. Alcolado, on May 10, 2017. Dr. Alcolado’s clinical notes indicate that the applicant performs exercises from what she has learned from her Pilates instructor. On November 3, 2017, the applicant reported to Dr. Alcolado that she found massage therapy treatment and Pilates to be helpful. Dr. Alcolado recommended physiotherapy, massage therapy, Pilates and chiropractic treatment for continued strengthening, maintenance and prevention of progression of knee osteoarthritis for pain/swelling/numbness in the right knee, swelling in the foot and ankle and back irritation post tibial plateau fracture.

17On June 5, 2018 and August 10, 2018, the applicant saw Dr. Alcolado, who indicated that the applicant has ongoing issues with her knees and needs medical prescription notes for Pilates, physiotherapy, chiropractic and massage therapy treatment.

18The information contained within the various assessments provides more insight into whether the applicant would benefit from Pilates and massage therapy treatment. In the IE assessment dated February 13, 2017, the applicant told Dr. Bhargava that she found Pilates the most beneficial of any treatment she had been provided thus far; however, she noted that massage is effective at reducing her pain.

19Dr. Bhargava opined that the applicant had not reached maximal medical recovery. He indicated that the applicant was encouraged to continue with her self-guided exercises, seek further evaluation of her right knee through her family physician and possibly see an orthopaedic surgeon for further evaluation of her right knee. He also indicated that the applicant was impaired in the performance of tasks requiring twisting and pivoting motions of the right knee, as well as squatting. I find that Dr. Bhargava acknowledged that the applicant’s condition had not reached maximal medical recovery, and I agree with his finding.

20The applicant’s assessor, Dr. David Huang (chiropractor), conducted a functional capacity evaluation on April 10, 2018. In his report, Dr. Huang recommended that the applicant should continue her participation in an appropriate rehabilitation program to address her ongoing injuries, which he characterized as chronic in nature. The applicant reported to Dr. Huang that she had not attended any rehabilitation therapy in two to three months and that her symptoms had worsened since her last appointment.

21The applicant’s assessor, Dr. Michael West (orthopaedic surgeon) assessed her on June 28, 2018 and authored a report dated June 30, 2018. Dr. West indicated that the applicant’s right knee injury had potential for long-term detriment in terms of osteoarthritis. Dr. West recommended physical therapy that would include treatment for the applicant’s lumbar spine as well as her right knee with muscle strengthening, deep heat and ultrasound therapy. Dr. West opined that the applicant’s symptoms will persist indefinitely and that she has developed chronic pain syndrome.

22I find that the applicant has provided evidence that numerous medical professionals who assessed her, including Dr. Ward, Dr. Alcolado, Dr. Huang and Dr. West, opined that she should receive physical therapy treatments.

23I find that the applicant is entitled to the treatment plans because these treatments will help alleviate her pain. As noted above, the applicant told Dr. Bhargava that she found Pilates to be the most beneficial of any treatment she had been provided, although she noted that massage therapy is effective at reducing her pain.

24The treatment plan in the amount of $2,394.00 would be beneficial in reducing the applicant’s pain, increasing strength, improving function and returning her to normal physical activity. Section 9(b)(ii) of the treatment plan indicates that the applicant continues to improve with strength and exercise tolerance.

25The treatment plan in the amount of $1,686.54 would be beneficial in increasing strength, pain management and returning her to all physical activity. Section 9(b)(ii) of the treatment plan indicates that the applicant has continued to improve her strength and has increased all exercises for her knee.

Pilates instructor’s hourly rate

26The respondent submits that the rates for the Pilates sessions listed in the two treatment plans are excessive. In the treatment plan in the amount of $2,394.00, the cost of the proposed Pilates sessions is $99.75 per hour. In the treatment plan in the amount of $1,686.54, the cost of the proposed Pilates sessions is $85.00 per hour.

27The respondent submits that the cost of the treatment plans should be adjusted to reflect the fact that a Pilates instructor is an unregulated provider at a cost of $58.19 per hour. The respondent submits that although there is no reference in the Professional Services Guideline to fees that apply to a Pilates instructor, it is an unregulated profession as there is no regulatory organization overseeing the qualification and practice of Pilates instructors. Furthermore, there is no evidence of the Pilates instructor’s education, training, experience or other credentials to justify the hourly rates set out in the treatment plans.

28The applicant did not make submissions regarding the rates for the Pilates sessions.

29I find that the cost of the treatment plans should be adjusted. I find that the Pilates instructor is an unregulated provider according to the Guideline because the Guideline does not provide an hourly fee amount for Pilates instructors. Therefore, the cost of the treatment plans should be adjusted to reflect that a Pilates instructor’s hourly rate is $58.19.

Applicant’s access to a collateral benefits policy

30The respondent submits that the applicant has access to a collateral benefits policy which includes an allocation of $500.00 annually for massage therapy treatment. The respondent submits that the applicant has not provided evidence that the disputed treatment for massage therapy would not be covered under her collateral benefits policy, which stands in higher priority than the respondent’s accident benefits policy. The applicant did not file reply submissions and so there is no evidence of whether the collateral benefits coverage has been exhausted.

31The respondent submits that pursuant to s. 47(2) of the Schedule, it is not required to pay for any portion of the disputed treatment plans for which payment under a collateral benefits policy is reasonably available.

32Although the respondent’s submissions indicate that $500.00 is available for massage therapy treatment under the applicant’s collateral benefits policy, the applicant has not provided evidence of whether this amount of massage therapy treatment is reasonably available. Therefore, I am unable to determine whether the massage therapy portion of the treatment plan in the amount of $1,686.54 was available to the applicant from a collateral provider. I conclude that the applicant is entitled to the treatment plan in the amount of $1,686.54, less any amount that is available under her collateral benefits coverage.

Is the occupational therapy assessment reasonable and necessary?

33The applicant seeks funding for an occupational therapy assessment and the completion of a retroactive Assessment of Attendant Care Needs (Form 1) recommended by Remik Zakrzewski (occupational therapist). The applicant submits that she is seeking an opportunity to quantify her entitlement to attendant care benefits within the period of entitlement.

34The applicant submits that this treatment plan is reasonable and necessary because immediately following the accident and her subsequent surgery, she was non-weight bearing and required attendant care assistance, which she received from her mother and partner.

35The respondent submits that pursuant to s. 42(5) of the Schedule, an insurer is not required to pay an expense incurred before a Form 1 is submitted to the insurer. The respondent submits that this treatment plan was submitted on May 10, 2018, which was 123 weeks after the date of loss. The respondent submits that the applicant has not provided any authority for the proposition that she should be afforded the opportunity to quantify attendant care services that were rendered to her within 104-weeks of the accident by an assessment that was conducted after this time period had concluded. The respondent further submits that the applicant has not provided a reasonable explanation for her delay in preparing the Form 1.

36I find that the occupational therapy assessment, including the completion of a retroactive Form 1, is not reasonable and necessary. The applicant is not entitled to this treatment plan because I am not convinced that she requires an assessment to assist in the development of the appropriate rehabilitation plan and return to work/pre-accident activities, as listed in Part 9(b)(i) of the treatment plan. Regarding the retroactive Form 1 in particular, the applicant has not provided submissions about why she did not comply with s. 42(5) of the Schedule.

37The applicant told Dr. Bhargava on January 30, 2017, that she performs her self-care tasks without difficulty and that she has returned to her pre-accident cleaning activities, although she is more cautious when using a step stool at home during cleaning. On April 10, 2018, the applicant’s assessor, Dr. Huang, evaluated her functional capacity and concluded that she demonstrated the ability to function at a light to medium level. He opined that she may attempt to resume some of her light housekeeping duties as tolerated, however she should have continued assistance particularly with heavier tasks and ones involving repetitive knee flexion and prolonged standing and walking. On June 28, 2018, Dr. West opined that the applicant would benefit from assistance with respect to day-to-day housekeeping and home maintenance activities.

38I do not find that the applicant’s limitations with her right knee warrant an occupational therapy assessment. Although Dr. West opined that the applicant would benefit from assistance with respect to her housekeeping and home maintenance activities, Dr. Huang, the applicant’s assessor, conducted a comprehensive functional capacity evaluation approximately two months prior to Dr. West’s assessment and opined that the applicant may attempt to resume some of her light housekeeping duties as tolerated. I place greater weight on Dr. Huang’s assessment of the applicant’s functional abilities because his assessment involved many reports, including the following: static strength; dynamic lifting capacity; grip strength; pinch strength; spinal range of motion inclinometer; and extremity range of motion goniometer. As determined above, in order to aid the applicant’s rehabilitation of her knee, I found that the applicant is entitled to the two treatment plans for Pilates and/or massage therapy treatment.

CONCLUSION

39The applicant is entitled to the treatment plan for physiotherapy in the amount of $2,394.00. The applicant is also entitled to the treatment plan for physiotherapy in the amount of $1,686.54, less any amount that is available under her collateral benefits coverage. The amounts of these treatment plans should be adjusted to reflect that a Pilates instructor’s hourly rate is $58.19. The applicant is entitled to interest on any overdue payments of benefits.

40The applicant is not entitled to the treatment plan for an occupational therapy assessment in the amount of $2,030.07.

Footnotes

1. 1O. Reg. 34/10.
2. 2Professional Services Guideline, Superintendent’s Guideline No. 03/14.