Arbitrator Awards Benefits to Pedestrian Injured in Car Accident - P.W. and Aviva Canada LAT 16-001097

August 07, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

P.W. and Aviva Canada LAT 16-001097

Date of Decision: June13, 2017
Heard Before: Adjudicator Brian Norris

Medical treatment: Applicant proves the treatment is reasonable and necessary

PW was injured in a car accident on January 31, 2014 and sought benefits from Aviva pursuant Schedule. PW’s physiotherapist completed a Treatment and Assessment Plan  dated July 29, 2015, recommending physiotherapy in the amount of $1,596.00 and exercise equipment in the amount of $475.00.  Aviva approved the purchase of the equipment and denied the physiotherapy treatment. After a failed attempt to resolve the dispute an application was submitted for dispute resolution services to the LAT.

ISSUES

1. Is PW entitled to payment of a medical benefit in the amount of $1,596.00, for a treatment plan for physiotherapy?
2. Is PW entitled to interest on any overdue payments?
3. Is Aviva entitled to costs of the proceeding?

RESULT

1. The treatment plan for physiotherapy is reasonable and necessary and that PW is entitled to the balance of $1,596.00.
2. PW is entitled to all applicable interest. 
3. Neither party is entitled to costs of the proceeding.

PW was struck as a pedestrian and his injuries included a torn left anterior cruciate ligament (ACL) and medial collateral ligament (MCL), fracture of the left fibula head and neck, compound fracture of the right hand, and a possible concussion. He was hospitalized for 3 days following the accident and continued to see doctors as an outpatient after he was discharged.

On July 31, 2014, PW had reconstructive surgery on his left ACL. PW participated in physiotherapy prior to and following the surgery. PW did not participate in physiotherapy from September 2014 to January 2015. PW then received treatment from January 2015 until July 2015, the time which is the subject of this appeal.

PW attended a physiotherapy IE on October 26, 2015 at the request of Aviva.  Based on the findings of the assessment, Aviva advised PW that it would approve funding in the amount of $475.00 for exercise equipment, but the 16 sessions of physiotherapy were neither reasonable nor necessary.

The Arbitrator reviewed the law and the evidence. He noted that pursuant to the Schedule, “an insurer is liable to pay for medical benefits” as outlined in section 15.  Section 15 advises that medical benefits must be reasonable and necessary and be required as a result of the accident.

The only question is whether the balance of the disputed treatment plan is reasonable and necessary.  There are no submissions and no evidence before the Tribunal to suggest that Aviva is relying on any other Section 15 exceptions as grounds for denial.

 PW took the position that the treatment plan has goals of reducing pain and increasing strength in the left knee. It also states a functional goal of returning PW to activities of normal living. He submitted detailed medical evidence and an affidavit in support his position. PW asserts that since the accident he has benefited from physiotherapy treatment. This position is reflected throughout the various supporting documents provided by PW. Most importantly, this position is reflected in the most recent medical records provided by PW and the records, the Affidavit of PW and the clinical notes and records of Cornerstone Physiotherapy.

The evidence relied on by Aviva includes medical evidence and their IE. Aviva states that further treatment is not reasonable and necessary because PW has returned to a state of functional mobility. This position is referenced throughout the submissions and supported by the statements of the assessors whose reports were submitted as evidence.

The Arbitrator found the proposed goals of the treatment plan; increasing strength, reducing pain, and increasing range of motion are reasonable considering the severity of the injuries and the state of PW’s recovery.  The Arbitrator was convinced that, at the time of this treatment plan, PW had not fully recovered from the injuries but had seen improvement from physiotherapy. On this basis, the Arbitrator found that the treatment proposed is a necessary component to achieving the goals of the treatment plan.

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.