Insurer Must Consider the Individual - not the Stereotype

January 31, 2009, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator:Robert Kominar
Decision Date: January 6, 2009
David Justin Atkinson was injured in a motor vehicle accident on December 27, 2005. He applied for and received statutory accident benefits from Bertie and Clinton Mutual Insurance Company, Bertie and Clinton denied various medical benefits.

The main issue of the hearing was if Mr. Atkinson was entitled to receive certain medical benefits, phsyiotherapy and accupuncture, pursuant to section 14 of the Schedule.

There were four treatment plans in dispute in the arbitration:

  1. September 21, 2006, prepared one of Mr. Atkinson’s physiotherapists, for a YMCA membership in the amount of $665.68 and a body pillow in the amount of $45.59.
  2. April 9, 2007, prepared one of Mr. Atkinson’s physiotherapists, for physiotherapy in the amount of $998.72.
  3. October 19, 2007, prepared by one of Mr. Atkinson’s physiotherapists, for physiotherapy in the amount of $843.72, and mileage in the amount of $276.76 (the calculation of mileage was not in dispute).
  4. June 9, 2008, prepared by one of Mr. Atkinson’s physiotherapists, for acupuncture in the amount of $899.90. (after hearing submissions from the parties that they have mediated this treatment plan but only in respect to the mileage claimed, I ordered that it be added to the issues in this arbitration)


Mr. Atkinson was the passenger in the rear seat of a vehicle which was hit from behind on December 27, 2005. He went to hospital that evening and was x-rayed based on his complaints of scapular pain as well as pain in the thoracic and lumbar regions. The advice he received at that point in time was that he should arrange for physiotherapy, which he did. He attended physiotherapy for three to four months and Bertie and Clinton paid for that treatment.

At the time of the accident, as well as the disputed treatment, Mr. Atkinson was a full time university student at Brock University, majoring in biomedical science. However, during the summers Mr. Atkinson worked in what can only be reasonably described as very heavy industry at a metal heat treating facility. In this capacity he was required to repetitively lift heavy metal objects and transition them into furnaces for the required heat treatment. This job required him to be on his feet all day. As physically demanding as this work was, the level of remuneration for this type of employment assisted Mr. Atkinson in paying for his university education; for his hope not to have to work as a physical labourer for the rest of his life. It was clearly quite different in the requirements it placed on both his body and mind than studying biomedical science while university was in session. In the arbitrator’s opinion these issues were a fundamentally important aspect of the dispute and the essence of what the arbitrator found that Bertie and Clinton either ignored, or did not properly appreciate.

Mr. Atkinson's evidence was clear and forthright and reflected a young man who was making quite careful observations of how his body was responding to various modalities of treatment over time.

The problem which Mr. Atkinson experienced after the first course of approved treatment was that his pain level was still approximately the same as it was before treatment. For this reason he chose to change therapists to determine whether a different treatment approach could improve his pain level and further increase his level of functionality.

Mr. Atkinson commenced treatment with a different physiotherapist. However his situation was materially different than it had been earlier. In May of 2006, when this treatment began, Mr. Atkinson was not in class, but instead was engaged in his summer employment at a metal heat treating factory. Quite understandably, interventions which Ms. Rasmussen suggested were different than Mr. Atkinson had experienced in the past.
Mr. Atkinson's evidence was that the physiotherapist’s treatment recommendations proved to be very helpful to him. With the treatment he was able to work in the physically demanding environment of his job. However, he further testified that the ultimate effect of the treatment was that it allowed him to function adequately while at work but that when he came home at night he was almost incapacitated.
As a result Mr. Atkinson was able to work that summer, but he was still experiencing significant pain, particularly at the end of his work day. In other words, he was physically functional but otherwise still compromised in how he experienced life.

On July 10, 2007, Mr. Atkinson's physician recommended that he needed a further 12 weeks of therapy to help him return to his pre-accident baseline. This recommendation was premised on the doctor's observed improvement in Mr. Atkinson during periods of treatment as well as deterioration during periods of non treatment. The physician further observed that Mr. Atkinson had complied with all past treatment recommendations and had worked seriously to regain his pre-accident health status. The one proviso to this was that Mr. Atkinson chose not to take prescription pain medications. Mr. Atkinson's evidence on this point was that he took some non prescription medications when needed, but that he preferred to engage in more active treatment, as well as a focus on maintaining proper body mechanics, to regain his pre-accident health status.

At that point in time Bertie and Clinton stopped funding Mr. Atkinson's medical treatment. However Mr. Atkinson believed that he did in fact need more therapy to continue with the challenges associated with both school and work and therefore he paid for this treatment even though, as a university student, he found it to be a practical challenge to do so.

The conclusions of the various independent medical examinations which Bertie and Clinton obtained all came to the conclusion that Mr. Atkinson had received conventional forms of treatment for his injuries and that he, by all standard measures, should have improved more than he stated that he had. The conclusions reached by the assessors quite clearly declined to evaluate Mr. Atkinson from any holistic perspective. Each specialist opined that there was no observable evidence of any significant symptomatology. They concluded that Mr. Atkinson did need, from their independent perspectives, more treatment assistance from Bertie and Clinton. What the arbitrator found to be missing from all of these assessments was any meaningful attempt to tie all of the evidence together to determine, on a balance of probabilities, whether Mr. Atkinson was reasonable in undergoing the treatment, and whether it was necessary in any meaningful sense for him.

The evidence in the case made it clear that Mr. Atkinson was not "just a student", nor was he "just a factory worker." This case highlights the fundamentally important necessity for insurers to consider the "person" the applicant is. In essence this means that there is no justification for insurers to stereotype people. In the particular case of Mr. Atkinson the evidence leads to the inference that Bertie and Clinton and subsequently its medical examiners characterized Mr. Atkinson as an undergraduate university student. From that conclusion they had seemed to infer that only treatment which would reasonably help him regain his basic ability to sit in a lecture hall, or participate in a laboratory tutorial, was all that was important. However, as Mr. Atkinson stated in his evidence, classroom work was only one aspect of his life. As an undergraduate student he needed to work during the summers to earn the money that allowed him to continue with his education. Prior to the accident he had both the physical ability and stamina to work in physically very demanding jobs.
After considering the evidence carefully in this arbitration, the arbitrator found that Bertie and Clinton chose to focus on only one dimension of Mr. Atkinson's life and discounted or ignored other salient parts. Specifically, they and their medical examiners, characterized Mr. Atkinson as a sedentary undergraduate student, and ignored that, for him to continue in that educational status, he had to work in very physically demanding jobs between semesters.

This case also highlights that it is not rationally sufficient for an insurer to blindly parrot conclusions contained in independent examinations as rationales for denying accident benefit claims. Conclusions carry no rational weight apart from the data and warrants which rationally support them. Although it is true that insurance adjusters need to obtain opinions from properly qualified health care professionals when there is a disagreement about whether medical benefits are payable - because they themselves do not have the technical evaluative expertise to fully assess the situation - that does not lead to the automatic inference that any conclusion which favours their point of view is adequate to properly deny first party benefits. An insurer representative who does not read, understand, and carefully evaluate the reasoning within reports received may, down the road, face a difficult time in supporting decisions to deny or terminate benefits.

From the conclusions stated above, it is incumbent upon insurers to take the independent assessments which they obtain and review them to determine how well the conclusions therein are supported by sound reasoning. This is necessarily a two way street and it applies equally to section 24 assessments which applicants obtain. In the arbitrators view, significant costs for insurers and anxieties for applicants can be eliminated in the accident benefit system if all parties take the time to evaluate the reasonableness of the reports which they obtain, rather than aggressively, and often mindlessly advocating on behalf of the conclusions that their assessors reach.

With regard to one to the treating physiotherapist’s denied physiotherapy treatment plan, the arbitrator found that Mr. Atkinson's evidence was persuasive well beyond his burden of proof to establish that this treatment was reasonable and necessary on a balance of probabilities. Mr. Atkinson's evidence was that the therapy helped him and supplemented his personal attempts to exercise and keep himself in shape.

With regard to the treatment plan dated October 19, 2007, the OCF-9 that denied this claim recited that the treatment plan was denied because it was not reasonable and necessary based on a "file review included." The statement referred to the "Independent File Review Report" of anorthopaedic surgeon, dated November 2, 2007. In that very short report, of which all but four lines recited verbatim, the orthopaedic surgeon concluded that he was unable "to recommend" further physiotherapy for Mr. Atkinson.
Once again the difficulty was evidentiary in nature. The arbitrator found orthopaedic surgeon’s report to be unhelpful in making a decision as to whether Mr. Atkinson's treatment plan was reasonable and necessary. The doctor may have reasonably believed that the conclusion he reached was warranted, but nothing in his report helped to understand "why" he believed that. Bertie and Clinton’s choice to rely on the "less is more" form of expert report was, in the arbitrator’s opinion, at their own peril. There was simply no helpful reasoning contained within it for anyone looking at the circumstances from the outside.
The use of expert reports in this case raises important issues. It is important to acknowledge that if medical assessments ultimately come down to nothing more than "he said/she said" types of arguments, then the burden of proof presumptions in the law will ultimately be the sole warrant for determining the outcome of disputes.
Useful expert reports are those which help the ultimate decision maker, whether circumstantially, that is an insurance adjuster or an adjudicator, to understand the evidence in support of, as well as challenging, the conclusion that a claimed benefit is reasonable and necessary. Reports that only record the evidence on one side of the case are generally unhelpful; they do very little to assist the ultimate decision maker in understanding the complexity of the situation. If expert reports do not rationally help the ultimate decision maker in making her or his decision they serve no useful purpose. Given the high cost associated with generating many of these reports they should address the situation in a helpful, rather than a partisan way.

Mr. Atkinson suffered a rib constriction as a result of the automobile accident, which, absent arguments to the contrary, the arbitrator concluded that this took him outside of the PAF guidelines.The physiotherapist’sacupuncture treatment plan was denied based on an independent examination by a physiatrist who opined that the "contemporary medical acupuncture" which Ms. Rasmussen was administering was no more effective than traditional acupuncture and that Mr. Atkinson had stated that the traditional acupuncture he had received early after the accident did not significantly help him. The physiatrist stated in his report "In addition, there is insufficient evidence to suggest that electroacupuncture is clinically more effective than traditional acupuncture."


The arbitrator was not prepared to accept the physiatrist’s bold statement that there was "insufficient evidence" for the clinical value of this modality of treatment in the absence of his even citing what research he looked at. In addition, there was no way of rationally assessing what would count as "insufficient evidence" for the physiatrist. In contrast the arbitrator found the physiotherapist's explanation of the process and her experience with it to demonstrate grounded knowledge of the process. The arbitrator preferred the physiotherapist’s evidence to the physiatrist’s conclusions.

The physiotherapist testified that she believed that the treatment was worth trying with Mr. Atkinson given the progress he had made in recovering from the accident to date, his compliance with treatment recommendations and his clear dedication to regaining his pre- accident health status if possible. Her belief was that, given his young age, it was too soon to give up on improving his functional status and levels of pain. The arbitrator found this to be a good reason for Mr. Atkinson to be prescribed this treatment. The physiotherapist was also correct to assume that it was necessary to try this treatment given his relatively young age and the levels of physical activity he wanted to continue to experience.

 

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Chronic Pain, Pain and Suffering, Physical Therapy, Treatment

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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 toll-free at 1-866-414-4878.

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.

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