Released Date: 11/25/2020
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:
Louise Bouckaert
Applicant
and
Allstate Canada
Respondent
AMENDED DECISION
ADJUDICATOR:
Shannon Braun
APPEARANCES:
For the Applicant:
Louise Bouckaert, Applicant
Kimberely Munro, Counsel
For the Respondent:
Allstate Canada,
Heather Kawaguchi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1L.B. (“the applicant”) was injured in an automobile accident on March 21, 2016 and sought benefits from the respondent, Allstate Canada, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute when her claims for benefits were denied by the respondent.
ISSUE IN DISPUTE
2The sole issue in dispute is outlined in the May 4, 2020 Case Conference Report and Order as follows:
(i) Is the applicant entitled to a medical benefit in the amount of $2,961.72 for exercise of multiple body sites recommended by Fleming Fitness Inc. in a treatment plan (OCF-18) submitted on July 31, 2019 and denied on November 8, 2019?
RESULT
3I find the applicant has established on a balance of probabilities that the treatment plan at issue is reasonable and necessary.
ANALYSIS
4Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical benefits which are reasonable and necessary and have been incurred as a result of the accident. The onus is on the applicant to prove the foregoing on a balance of probabilities.
Background
5The applicant is currently 48 years old. On March 21, 2016, she was struck by a motor vehicle while walking. As a result of the accident, she sustained various injuries which have resulted in persistent neck, shoulder and low back pain.
6Prior to the accident, she enjoyed an active lifestyle, which included regular participation in various fitness activities such as long-distance running, kickboxing, karate, yoga and weightlifting. As a result of her accident related injuries, she has been unable to return to such activities.
Positions of the parties
7The applicant argues the treatment plan at issue is reasonable and necessary, as she requires kinesiologist supervision in order to avoid aggravation of her impairments in the course of engaging in physician-recommended exercise. She submits that, in the past, she has experienced increased pain and over-exertion causing setbacks when performing exercises on her own. She notes the plan is supported by her kinesiologist, family physician and her physiatrist and further notes her healthcare providers consistently emphasize a close correlation between her physical state and her psychological well-being.
8The respondent notes the treatment claimed is similar to previously approved and completed treatment. It is submitted that this subsequent treatment plan is not reasonable and necessary because there is consensus between three physiatrists (including the applicant’s own assessors) that further treatment is unlikely to provide the applicant with any substantial benefit and she can continue an exercise plan independently.
Reasons for decision
9I find the treatment plan is reasonable and necessary. The applicant, whose pre-accident life included regular participation in various fitness-related activities, wishes to return to same. To that end, she has participated in a variety of treatments and consistently worked toward the goal of regaining her pre-accident level of functioning.
10The treatment plan at issue is a kinesiologist-supervised exercise program with goals of reducing pain; increasing strength and range of motion; improving function, exercise endurance and overall physical activity tolerance; returning to activities of normal living and pain management. It is noted that low mood, anxiety and depression are barriers to recovery and exercise is recommended to overcome these, as exercise boosts mood and combats anxiety and depression.
11When reviewing the OCF-18, I was particularly compelled by the Additional Comments section, which includes a Kinesiology Progress Report dated July 24, 2019. The report indicates the applicant has difficulty lifting her arm above shoulder, has a labral tear and suffers from back pain. For these reasons, “her exercise regime needs to be monitored carefully and appropriately progressed in order to avoid further aggravation” and it is recommended she “continue to engage in guided kinesiology sessions to progress her exercise program safely and effectively”.
12The January 2019 report of Dr. F. (physiatrist) indicates she ‘has a lot of expectations for herself’ and was ‘trying to figure out how much [she] can do and not do’. This characterization of the applicant is supported by kinesiology progress notes (April-Sept. 2019) indicating she ‘pushed herself to (sic) hard on her HEP2’, consistently struggled with shoulder and back pain and required monitoring and modification of exercises due to her pain and the eventual diagnosis of a labral tear.
13In a further report dated February 11, 2020, Dr. F. (physiatrist) opined the treatment plan claimed was reasonable and necessary. Although he had discharged the applicant from care in January 2019 and did not re-examine her in 2020, his opinion was based on a review of his previous notes, updated diagnostic imaging and physiatry assessments (including the Insurer’s Examination assessment of Dr. K.) a well as the OCF-18, which includes the Kinesiology Progress Report.
14I preferred the February 2020 report of Dr. F. to the October 24, 2019 report of Dr. K (IE physiatrist) relied upon by the respondent, wherein Dr. K. opines that, from a physical perspective, the applicant has achieved maximum medical recovery and the treatment plan is not reasonable and necessary because the applicant has received active rehabilitation sessions since May 2019 and should be able to perform exercises on an independent basis.
15While Dr. K. states that the applicant should (emphasis added) be able to perform exercises independently, he offers no reason for this opinion beyond her having received past instruction on strengthening exercises. With respect, past instruction does not presuppose the applicant will, on her own in the future, be able to recognize various situations requiring exercise modification and/or choose an appropriate movement or modification to ensure safe and effective exercise participation.
16Moreover, Dr. K. fails to address the kinesiologist’s opinion that the applicant requires supervision, appropriate modification(s) and further instruction (emphasis added) on safe and effective exercise. It also does not appear from the Documentation List that Dr. K. reviewed the kinesiologist’s progress notes (April 29 – September 6, 2019), which specifically discuss issues of pain/stiffness during her previous exercise plan and the need to monitor and make appropriate modifications to exercises and her overall routine as a result of injuries and pain.
17I do not accept the respondent’s argument that the conclusion of one of the applicant’s own assessors, Dr. D. (physiatrist), supports a finding that the treatment plan is not reasonable and necessary. Dr. D. opined that an anterior glenoid labral tear was sustained in the accident which would be permanently problematic to some degree and “further physical therapy measures will not alter this except for temporary pain control and maintenance of strength”.
18Despite Dr. D’s opinion that treatment is unlikely to alter the relative permanence of the applicant’s shoulder impairment, she does not comment upon the applicant’s back pain and whether further treatment may be of benefit in that regard. Also, in my view, temporary pain relief and maintenance of strength are benefits which might assist the applicant in achieving some of the stated goals of the treatment plan (improve function, exercise endurance and overall physical activity tolerance, pain management).
19The respondent also argued, with reference to September 21, 2018 and January 2019 reports, that the applicant’s own physiatrist (Dr. F.) is of the opinion that no further treatment is necessary. It is noted that he discharged her from his care, recommended she continue with current exercises, suggesting participation in a low-cost online exercise program and made the following observations: “we cannot expect much better results than today’s findings” and “she does not have to do more than she is currently doing”.
20While Dr. F.’s statements are acknowledged, these were made prior to his review of updated information, including but not limited to: the MRI showing the labral tear and the Kinesiology Progress Report. His subsequent February 2020 report clearly indicates support for the applicant’s participation in further treatment and his opinion that the plan is reasonable and necessary. As such, I respectfully reject the respondent’s assertion that Dr. F. is of the opinion that no further treatment is necessary.
21The respondent argued the applicant is capable of following an exercise program independently because she had previously engaged in exercises on her own and the kinesiologist’s initial report of April 29, 2019 discusses her familiarity with the exercises. Familiarity with exercises, in my view, does not presuppose the applicant is knowledgeable enough to make appropriate modifications or that supervision of exercise form to guard against aggravating her impairments is unnecessary. In fact, the kinesiologist states: “has a good base of knowledge surrounding exercise having participated in pilates, yoga and martial arts. However, she requires guidance for rehabilitation” (emphasis added).
22The respondent also argued the treatment plan at issue is not reasonable and necessary because the previously approved (same) treatment, had not resulted in improvement, directing me to instances of the applicant’s own reporting in that regard. For instance, the respondent noted when the applicant was assessed by Dr. D., she reported no significant lasting benefit with treatments such as physiotherapy, pilates, yoga, acupuncture and active release treatment with a chiropractor and did not report the supervised kinesiology treatment to be a relieving factor. This is somewhat misleading, given that when applicant made these statements to Dr. D., she had not yet begun the supervised kinesiology treatment plan3. As such, she could not have offered any opinion on the efficacy thereof.
23It was further noted that, when assessed by Dr. K. (the IE assessor), the applicant could not quantify her level of recovery at that time. However, the report of Dr. K. indicates the applicant did, in fact, report some improvement. In my view, the applicant’s inability to quantify a level of recovery does not negate her statement that she had experienced some improvement.
24I note that a July 3, 2019 report of the applicant’s treating psychologist, Dr. M, indicates she reported “kinesiology has been helpful” and Dr. M. opines the applicant would benefit from continued kinesiology involvement and other helpful rehabilitation. This report was authored at a time when the applicant was undergoing the specified treatment.
25Finally, the respondent called attention to the following notes of the applicant’s kinesiologist “1 more session next week until the exercise plan is exhausted. Make sure [the applicant] has the knowledge to complete her own HEP”4 and “[the applicant] is finished her routine and is satisfied with the results of the exercise program”5.
26I am not convinced the foregoing is determinative of the issue of whether further treatment is reasonable and necessary, especially in light of the kinesiologist’s opinion in the progress report of July 24, 2019 that the applicant required further treatment and instruction/supervision and the concurring opinions of her family physician and Dr. F. (physiatrist).
CONCLUSION
27There is consistent evidence that, prior to the accident, the applicant regularly engaged in physical fitness activities. Her kinesiologist indicates “exercise was a big part of her life pre-MVA”, her family physician indicates she used to be active doing ½ marathons, kickboxing, etc. noting she lacks strength and endurance and needs help with her active rehab program”.
28I am mindful of the barriers to recovery noted in the OCF-18 and the family physician’s notation that the applicant’s anxiety and depression seems exacerbated since her accident, as she can’t do activities she used to. In addition, both Dr. F. (physiatrist) and the kinesiologist consistently indicate her psychological well-being is intertwined with her ability to be physically active
29The reality is, this is an applicant who is driven to return to her previous activities and level of physical fitness and would, in all likelihood, pursue an exercise program without the benefit of the supervision recommended by her healthcare providers. However, without such supervision, she may very well aggravate her impairments, leading to setbacks in her progress.
30Given the opinions of her healthcare providers as outlined above, it is reasonable to assume that any physical setbacks resulting from performing an exercise incorrectly, not making proper exercise modifications, pushing herself too hard, etc. could also result in negative psychological impact.
31Although my finding that the treatment plan is reasonable and necessary is not based upon cost, it is worth mentioning that the cost of the treatment plan itself does not seem excessive6 in view of the potential range of benefits to the applicant. If, through a guided exercise program, she can safely achieve stated physical goals of increasing strength, endurance and returning to normal activities, she may also experience psychological benefits.
32I find the applicant has established, on a balance of probabilities, that the treatment plan is reasonable and necessary and is therefore entitled to the benefit claimed.
ORDER
33The applicant is entitled to $2,961.72 for exercise of multiple body sites recommended by Fleming Fitness Inc. in a treatment plan (OCF-18) submitted on July 31, 2019.
Released: November 25, 2020
________________________
Shannon Braun
Adjudicator
Footnotes
- O. Reg. 34/10.
- Home Exercise Program
- The applicant was assessed by Dr. D. on April 22, 2019 and did not begin the first supervised kinesiology treatment plan until April 29, 2019.
- August 29, 2019.
- September 6, 2019.
- $2,961.72 for 20 sessions of exercise supervised by a kinesiologist.