December 06, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
JS v Aviva General Insurance Company, LAT 16-002529 2017 CanLII 76913 (ON LAT)
Decision Date: November 6, 2017
Heard Before: Sandeep Johal
ENITLEMENT TO BENEFITS: The applicant failed to meet his burden of proof that treatments were reasonable and necessary; Aviva IE shows that the treatment plan is not reasonable or necessary; treatment plan does not support the injuries listed
JS was injured in a car accident on December 11, 2015 and sought benefits from Aviva. When the benefits were denied, and mediation failed JS applied for arbitration at the LAT.
- Is JS entitled to receive a medical benefit in the amount of $2,920.62 for physical therapy as detailed in a treatment and assessment plan dated August 4, 2016?
- JS is not entitled to payment for the physical therapy services requested in the treatment plan dated August 4, 2016.
The onus is on JS to prove on a balance of probabilities that the treatment plan being requested is reasonable and necessary. JS relies on the evidence provided by his own in-person testimony and from the evidence provided by his occupational therapist. Aviva relies on the evidence of the insurer examination doctor, an orthopedic surgeon.
JS submitted the testimony of her OTt who she first met in clinic around February or March of 2016 to help with his ankle and back pain. She was also helping him emotionally as he was overwhelmed with his recovery. On August 4, 2016 the treatment and assessment plan in dispute for this hearing was submitted to Aviva. The OT testified that the plan was to help manage JS’s ankle pain and also his feelings of anxiety in leaving his house. The services to be provided to JS under the treatment and assessment plan was to go with him into the community, such as to a coffee shop or to mini-golf in order to help him with his difficult situations of being in public. This was to be done for one and half hours at a time, twice a week. In her report, she notes that she provided support to JS in completing his Ontario Disability Support Program form as he would become overwhelmed trying to navigate the process.
The report noted that JS continues to suffer physical and emotional difficulties and he has difficulty completing higher level cognitive tasks. As a result, she recommends participation in occupational therapy sessions to increase his functional tolerance for community based activities and continuing to implement a consistent routine. She does not provide any recommendations about his physical pain and how it can be treated. The OT testified that of injuries shown in the report is only a list not a proposal for treatment. The proposed treatment is listed in part 12 of the treatment and assessment plan and the recommendation is for “exercise of multiple body sites”, the rest is seeking reimbursement for travel and document preparation. The OT testified that she is aware that if she submitted the treatment and assessment plan for psychological injuries, there would have to be psychological codes entered into the form in part 12 and that she is also aware that the form only lists “exercising body sites” and that it is not a form of treatment for JS’s psychological issues.
The Adjudicator did not find the evidence of Ms. O’Neill to be compelling or persuasive evidence in support of the treatment and assessment plan for physical therapy. Her assessment of JS is that he suffers from anxiety and her recommendations are to help him reintegrate into the community. The treatment and assessment plan does note that one of the goals is to help JS from an emotional perspective, however, the actual treatment being recommended does not support anything other than physical rehabilitation.
JS testified about the injuries he suffered as a result of the accident and that he was unable to do any daily activities on his own after the accident. He gave details of the accident and that he broke a bone in his foot and was told by his treatment providers that there is more to healing that just the bone, there are ligaments and muscles that require treatment. JS testified that his foot was in a cast for approximately five weeks and he still feels he has limitations on how long he can be on his feet since the accident. He does not feel fully recovered from his injuries and he still has ankle pain, back pain and continues to suffer from nightmares. He notes that he does not have any swelling in his ankle but he does feel pain and sometimes it is a sharp and dull pain and his sessions with his occupational therapist have helped him. Once the treatments were stopped by Aviva, JS feels his condition has worsened. JS states that he has been trying to do treatments on his own in the gym since Aviva stopped paying for the treatments, however, he does not know what he should or should not be doing and whether the exercises he is doing would help him or hurt him even more.
JS testified that he does recall visiting the orthopaedic surgeon at the request of Aviva and that he felt scared going there and was not sure why he had to attend. He testified that he explained his current symptoms and his psychological problems. He notes that the doctor completed a physical examination of him including his foot. JS stated he was diagnosed with psychological issues before the accident and they have become worse since the accident. No evidence was provided as to when the psychological diagnoses was made or by whom.
The Adjudicator found JS to be credible and honest in his testimony, however, the evidence JS provided predominantly refers to how his occupational therapist has helped him with his anxiety. In this regard the treatment plan which deals only with physical treatment to be neither reasonable nor necessary.
The application was dismissed.