November 11, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: William J. Renahan
Decision Date: October 29, 2008
Maria Edward was injured in motor vehicle accidents on March 6, 2001 and April 30, 2001. She applied for and received statutory accident benefits from TD Home and Auto Insurance. TD refused to fund a treatment plan proposed by a chiropractor, for treatment in the amount of $1,154.72. The parties were unable to resolve their disputes through mediation, and Mrs. Edward applied for arbitration.
At the time of the hearing, Mrs. Edward was 39 years old, married with four children. She had no health complaints until her first motor vehicle accident in March 1996. Since then she had four motor vehicle accidents and she continued to complain of pain from soft tissue injuries. She admitted that accidents on October 4, 1998 and November 16, 1998 aggravated her complaints and that she had never recovered.
This application for arbitration is concerned with the reasonableness and necessity of treatment proposed by the chiropractor, at the end of 2005, arising out of accidents on March 6, 2001 and April 30, 2001.
According to Mr. Edward Singarajar, Mrs. Edward´s husband, the March 6, 2001 accident occurred in a parking lot when his vehicle was struck on the rear driver´s side. It cost about $2,000 to repair the bumper and light. The April 30, 2001 accident occurred when Mr. Singarajar struck the vehicle in front of him. The damage to his vehicle was more than $3,500.
Mrs. Edward was not sure whether she had shoulder problems prior to 2001. She could not remember the parking lot collision or whether previous injuries were aggravated in 2001. She could not remember whether her low back was worse after the 2001 accidents. She could not remember if the chiropractor treated her back injury in 2005, although she could remember him treating her neck and right shoulder.
Mrs. Edward said that the chiropractor massaged her neck and demonstrated exercises. She could not remember what else he did.
A doctor specializing in pain medicine and psychiatry did an assessment for Mrs. Edward´s lawyer in March 2005 and he considered Mrs. Edward to have borderline low intelligence.
The arbitrator found that Mrs. Edward´s inability to describe the accidents, her injuries, her complaints and her treatment with any detail or clarity was due to her low intelligence. She was not a persuasive witness. In considering her inability to describe other relevant aspects of her claim, the arbitrator did not believe, by itself, her testimony that she received immediate and temporary relief following treatment by the chiropractor.
Mr. Singarajar, Mrs. Edward´s husband, testified that his wife complained of neck, lower back and right shoulder pain and headaches before the 2001 accidents. She was also depressed. After the 2001 accidents she had more pain and depression. When asked in examination in chief how she was before and after treatment, he said that he did not notice after one day, only after a couple of weeks that she complained less about pain. He said that sometimes she was better for two or three hours, or sometimes a couple of days.
Another chiropractor considered the treatment plan, of the chiropractor in question, as part of an assessment at a Designated Assessment Centre. This chiropractor did not know where her notes were. The arbitrator placed little weight on her testimony or report because Mrs. Edward´s lawyer did not have a fair opportunity to cross-examine her.
Since the first motor vehicle accident in 1996, Mrs. Edward had seen her family doctor about once a month. On referral from her family doctor in May 2000, she had seen a physiatrist, about every three to six months. Several other doctors had assessed her.
Since 1996, Mrs. Edward´s family doctor had reported that she continued to suffer from pain in many parts of her body, including right low back, neck, shoulder and headaches. Records included several references to Mrs. Edward´s complaints remaining substantially unchanged. Following the March 6, 2001 accident the family doctor recorded that Mrs. Edward had increased neck and shoulder pain. Following the April 30, 2001 accident she recorded that Mrs. Edward complained of new pain in her right lower back and felt that the neck, right arm and right shoulder pain had flared up.
The physiatrist saw Mrs. Edward six months after the April 2001 motor vehicle accident. The physiatrist reported that Mrs. Edward did not recall any new injuries and that she suffered an acute exacerbation of previous neck, shoulder and lower back injuries.
In 2000, a year before the motor vehicle accidents in question, the physiatrist reported to the family doctor that following the 1996 accident, Mrs. Edward had attended three different clinics but the treatments only resulted in temporary relief of pain. In a report six months before the March 2001 accident, the physiatrist reported to the family doctor that Mrs. Edward was attending physiotherapy three times a week and that she was slowly improving.
In 2005, the physiatrist reported to the family doctor that Mrs. Edward had two or three weeks of chiropractic therapy which gave her temporary relief of pain.
In December 1996 a neurologist suspected a behavioural component to Mrs. Edward´s symptoms and suggested referral to a pain management clinic which emphasized behavioural therapy if Mrs. Edward did not improve following physiotherapy.
In March 1998, a rheumatologist found significant emotional overlay and chronic pain.
In December 2005, a psychologist diagnosed a chronic adjustment disorder with a serious level of dysfunction.
The treatment plan of the chiropractor in issue was dated November 28, 2005 and proposed 12 sessions of myofascial therapy, 12 of mobilization, adjustments, 12 sessions of active care and one re-assessment, at a cost of $1,154.72.
The family doctor´s reports showed that since 1996, intervening accidents had exacerbated Mrs. Edward´s complaints but her complaints had not changed much since 1996 despite the recommendations.
In a report to Mrs. Edward´s lawyer in May 2006, the physiatrist summarized her office consultations with Mrs. Edward. Most summaries referred to Mrs. Edward not receiving therapy or no therapies were recommended. The only reference the arbitrator found in the physiatrist´s records to Mrs. Edward receiving temporary relief from chiropractic treatment was a note to the family doctor in October 2005. Otherwise, most of the advice concerned exercise.
In the treatment plan under consideration, the chiropractor admitted that Mrs. Edward had a "relatively poor response to various prior therapeutic approaches." The arbitrator was not directed to, and did not find any evidence that the chiropractor´s approach would succeed where other approaches had failed.
A specialist in pain medicine and psychiatry did an assessment for Mrs. Edward´s lawyer in March 2005. The specialist wrote that Mrs. Edward´s presentation was consistent with a bone-fide and severe health problem, namely Chronic Pain Disorder Associated with Psychological Factors. This implied that psychological factors were the main factors in prolonging pain. The specialist had no difficulty accepting that Mrs. Edward felt pain based on the history that she recounted but it was the specialist´s opinion that pain was no longer being generated by the original strains. They had healed long ago and were de-conditioning. It was likely that poor posture was generating any pain arising from the body. Mrs. Edward´s presentation was consistent with an individual who greatly exaggerates pain levels by the psychological process of somatisation - to convert anxiety into physical symptoms.
The occasional reference to Mrs. Edward receiving temporary relief of pain from physical therapies was outweighed by much more evidence that she had not received any benefit from physical or psychological treatment. The specialist was the only assessor who found it significant that Mrs. Edward was a "passive, dependent, immature woman of low intelligence," factors that were apparent in Mrs. Edward´s testimony and factors which helped explain why she did not benefit from treatment. The specialist had provided a reasonable explanation for her condition and inability to benefit from treatment. The arbitrator accepted and agreed with the specialist´s opinion that no specific treatment could have helped Mrs. Edward.