Applicant shows treatments are reasonable and necessary - FP and Aviva 16-002861 v Aviva Insurance Company, 2017 CanLII 62160 (ON LAT)

October 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

FP and Aviva 16-002861 v Aviva Insurance Company, 2017 CanLII 62160 (ON LAT)

Date of Decision: September 8, 2017
Heard Before: Adjudicator Nicole Treksler

ENTITLEMENT TO BENEFITS: Applicant shows that treatments are reasonable and necessary

FP was injured in car accident on September 18, 2006, and FP made medical claims for physiotherapy treatments and orthopaedic and psychiatric assessments. Aviva denied the physiotherapy treatment plan based on the conclusions that the treatment plan was not reasonable and necessary because FP had already received extensive facility based treatment and home exercise programs. Aviva denied orthopaedic and psychiatric claims based on paper review IE from an orthopaedic surgeon, and a, psychologist who concluded that the assessments were not reasonable and necessary.

FP claims that he continues to suffer from a chronic pain disorder, the same disorder that was diagnosed by an orthopaedic surgeon, and a psychiatrist, and documented in their respective reports dated July 14, 2012 and July 9, 2012. The onus is on FP to prove on a balance of probabilities that the expenses for the treatments claimed are reasonable and necessary, and that the fees for the assessments claimed are reasonable.

Issues

1. Is FP entitled to a medical benefit for physiotherapy services in the amount of $1,877.80, treatment plan denied on September 25, 2014?
2. Is FP entitled to a medical benefit for physiotherapy services in the amount of $998, treatment plan denied on November 15, 2015?
3. Is FP entitled to the cost of an orthopaedic assessment in the amount of $2,486, treatment plan denied on March 15, 2016?
4. Is FP entitled to the cost of a psychiatric assessment in the amount of $2,486, treatment plan denied on March 15, 2016?
5. Is FP entitled to an award because Aviva unreasonably withheld or delayed payments of benefits?
6. Is FP entitled to interest on any overdue payment of benefits?

Result

1. FP is entitled to a medical benefit for physiotherapy services in the amount $1,877.80 and $998, as these expenses for the treatment are reasonable and necessary because the services will assist FP in managing his pain.
2. The expenses for the orthopaedic and psychiatric assessments are reasonable to determine and assess whether FP requires more treatment.
3. FP is entitled to an award and interest.

The Arbitrator reviewed the law and noted that under section 14 of the Schedule, the test to determine entitlement to medical benefits is whether the expenses for the proposed treatment are reasonable and necessary.

The Arbitrator reviewed the medical evidence. He noted that the paper review IE was not complete as some evidence was not submitted to the evaluators.

Both parties agree that FP suffers from chronic pain, and two evaluators indicated that FP’s pain would persist.  FP cannot expect to make a full recovery.  Understanding the nature of chronic pain, the Arbitrator noted that treatment that reduces or manages FP’s pain is a practical objective. The Arbitrator also considered FP’s work.  At the time of the accident, he owned his own home renovation/construction company. According to FP’s affidavit, he now works part-time at his company and does mostly administrative work.  FP indicated that the physiotherapy helped him to manage his pain and get through his work week.

On this basis the Arbitrator noted that the expenses for treatment plan are reasonable and necessary. The Arbitrator reviewed the fees claimed for assessments and noted that Aviva is required to pay for reasonable fees for assessments and examinations.

Is FP entitled to an award because Aviva unreasonably withheld or delayed payments?

FP submitted that Aviva unreasonably withheld or delayed payment regarding the medical benefits for physiotherapy services and the cost of psychiatric and orthopaedic assessments.  The Arbitrator found that the payment for physiotherapy services and the psychiatric and orthopaedic assessments were unreasonably withheld.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.