FSCO Arbitration Decision

(Ryan) Michael Digby and Aviva Canada Inc.

May 25, 26 2017

FSCO Arbitration Decision

Arbitrator – Marshall Snapp

The main issues in dispute in this Arbitration was whether the Applicant was entitled to a payment of $2,362.00 for a treatment plan for physical therapy.

Prior to the collision, the Applicant required foot surgeries which lead to complications, entitling him to ODSP disability benefits. He was obese, and suffered from diabetes, knee pain, hip pain, depression and chronic pain. Ten years prior to the collision he was involved in another collision for which he received therapy for neck and shoulder pain.

On December 14, 2011, he was involved in a collision in which he suffered neck, back, and shoulder pain. After the collision, he was advised that he had a concussion. His concentration became poor, and he developed a short temper. He slept poorly and had difficulty functioning. He received physiotherapy and massage therapy for his injuries. After his treatment was denied, his injuries worsened, as did his depression and function. He became irritable. The Applicant paid for treatment out of his own pocket. He had suicidal ideation.

The position of the Applicant was that he, his mother and his two treatment providers gave evidence that the physiotherapy and massage therapy treatments helped with his function, mobility, mood, focus, depression, stiffness and allowed him to socialize. The treatments sought were related specifically to his 2011 motor vehicle accident impairments.

The position of the Respondent was that the Applicant suffered uncomplicated strain and sprain injuries that resolved in the months after the accident; as of August 20, 2014, his ongoing back, shoulder and neck complaints represented a flare up in his pre-accident chronic pain condition, unrelated to the 2011 accident. The Insurer also asserted that the onus is always on the Applicant to prove entitlement to the specific benefits they are claiming.

Relying heavily on the evidence of the Applicant and his mother, the Arbitrator found the treatment plan to be reasonable and necessary, and found that the evidence demonstrated how the Applicant’s condition deteriorated rapidly after he stopped treatment in 2014, after the denial, and then improved again when he was receiving treatment for which he personally paid. The Arbitrator was unable to agree with the expert’s opinion of the Insurer that the Applicant’s anticipated recovery should have been 8-12 weeks post-injury, and was unable to agree that the Applicant achieved maximum therapeutic benefit from a physiotherapy perspective when the treatment plan was denied.

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