October 11, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
FP v Aviva Insurance Company, 2017 CanLII 62160 (ON LAT 16-002861)
Heard Before: Adjudicator Nicole Treksler
Date of Decision: September 8, 2017
Special Award: Onus on applicant to prove treatment is reasonable and necessary; applicant porves this treatment reasonable and necessary; Insurer denies plans and stalls claim; applicant awarded special award, interest and benefits.
FP was injured in a car accident on September 18, 2006, and sought benefits pursuant to the SABs for medical claims for physiotherapy treatments, and orthopaedic and psychiatric assessments.
Aviva denied the physiotherapy treatment plans based on the conclusions of physiotherapist, that the treatment plan was not reasonable and necessary because FP had already received extensive facility based treatment and home exercise programs. Aviva denied the orthopaedic and psychiatric assessments based on paper review IE from an orthopaedic surgeon, and a psychologist who concluded that the assessments were not reasonable and necessary.
According to FP, 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.
- Is FP entitled to a medical benefit for physiotherapy services for a treatment plan denied on September 25, 2014?
- Is FP entitled to a medical benefit for physiotherapy services for a treatment plan denied on November 15, 2015?
- Is FP entitled to the cost of an orthopaedic assessment for a treatment plan denied on March 15, 2016?
- Is FP entitled to the cost of a psychiatric assessment for a treatment plan denied on March 15, 2016?
- Is FP entitled to an award because Aviva unreasonably withheld or delayed payments of benefits under subsection 280(10) of the Insurance Act and Ontario Regulation 664, R.R.O. 1990?
- Is FP entitled to interest on any overdue payment of benefits?
- FP is entitled to a medical benefit for physiotherapy services as the Adjudicator is persuaded that these expenses for the treatment are reasonable and necessary because the services will assist FP in managing his pain.
- The expenses for the orthopaedic and psychiatric assessments are reasonable to determine and assess whether FP requires more treatment.
- FP is entitled to an award and interest.
The Adjudicator reviewed the law and the evidence and determined that under FP has met the test under section 14 of the Schedule to demonstrate that his entitlement to medical benefits is whether the expenses for the proposed treatment are reasonable and necessary.
In an orthopaedic medical assessment report FP was diagnosed with chronic pain syndrome related to a myofascial strain of the lumbosacral spine and post traumatic and post concussive cervicogenic headaches. The orthopaedic surgeon described the syndrome as a “persistent state of pain whereby the cause of the pain cannot be removed completely [and] continues beyond the normal recovery period for the respective injuries sustained despite appropriate therapy.”
In a psychiatric medical assessment report FP was diagnosed with a major depressive disorder and chronic pain disorder associated with both psychological factors and a general medical condition, and ongoing symptoms of post-traumatic stress disorder.
FP supported these reports with another report from treating physiatrist who also recommended that FP attend physiotherapy to manage his chronic pain.
Aviva relied on an IE prepared by a physiotherapist, to review the treatment plan in question for physiotherapy services. The physiotherapist did not have FP’s orthopaedic and psychiatrist reports. Aviva denied payment of the psychiatric treatment plan on the basis that it was signed by an MD not a psychiatrist. The Adjudicator noted that the assessment must be signed by a member of the healthcare or medical profession. An MD falls into this category.
The Adjudicator noted that at the time of the accident FP owned his own home renovation/construction company, and now he 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. The Adjudicator was of the view that FP met his onus to show that the fees for both the orthopaedic and psychiatric assessments were reasonable.
Is FP entitled to an award because Aviva unreasonably withheld or delayed payments?
Section 10 of Ontario Regulation 664, R.R.O. 1990 (“O. Reg. 664”) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award with interest.
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 Adjudicator agreed that the payment for physiotherapy services and the psychiatric and orthopaedic assessments were unreasonably withheld for the reasons that follow.
- FP has chronic pain and the Adjudicator did not agree with Aviva’s rationale that given FP is not able to recover from his injuries that further physiotherapy treatment is not reasonable and necessary.
- Regarding the assessments, given that the preliminary assessments were dated and the persistent nature of FP ’s chronic pain, it was reasonable for FP to request to undergo new assessments in order to determine if the assessors could recommend other treatments at this stage of his chronic pain. The Adjudicator was not persuaded by Aviva’s position regarding the denial of the assessments given the nature of FP ’s chronic pain and the timing of his prior assessments.
- Regarding the length of Aviva’s delay, Aviva delayed payment for 1-3 years depending on the treatment plan. The delay in payment of the treatment plans delayed FP ’s ability to effectively manage his chronic condition. According to FP, he had to incur the cost of the physiotherapy services, which has impacted him financially.
On this basis the Adjudicator found that an award under section 10 of O. Reg 664. is warranted. The Adjudicator determined that an award of 50 per cent of the disputed amount, including interest, for the reasons outlined above, as well as to all applicable interest as per the Schedule for Aviva’s overdue payment of the claimed benefits.