February 14, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
West and Aviva – REASONABLE AND NECESSARY TREATMENT; insured seeking additional massage and chiropractic treatment; must show that treatment goals reasonable, goals are met to a reasonable degree, overall cost financially and in time is reasonable considering degree of success and alternative treatments; relief of pain a legitimate medical and rehab goal along with supportive care; effectiveness of treatment need not be proven to level of scientific certainty; require “compelling evidence” between subjective belief and objective evidence approaching scientific certainty
Arbitrator: Anne Sone
Decision: February 3, 2012
The applicant, Therese West, was injured in a motor vehicle accident on April 4, 2002. She applied for and received statutory accident benefits from Aviva Canada payable under the Schedule. Amongst other things, the Applicant applied for payment for medical benefits pursuant to section 14 of the Schedule. Disputes arose as to the reasonableness and necessity of such benefits. The parties were unable to resolve their disputes through mediation, and Mrs. West applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act.
The issues in this hearing are:
1. Is Mrs. West entitled to receive a medical benefit for massage therapy in the amount of $1,848.34 chiropractic care in the amount of $903.72 and a magnetic resonance stimulation machine ("MRS 2000") in the amount of $4,000?
2. Is Mrs. West entitled to interest for the overdue payment of benefits?
3. Is either party entitled to their expenses in respect of the arbitration?
1. Mrs. West is entitled to receive medical benefits for massage therapy in the amount of $1,848.34 and chiropractic care in the amount of $903.72.
2. Mrs. West's claim for an MRS 2000 is dismissed.
3. Mrs. West is entitled to interest on $1,848.34 for massage therapy and on $903.72 for chiropractic care.
4. The decision on expenses is reserved, to be resolved in accordance with the Dispute Resolution Practice Code.
EVIDENCE AND ANALYSIS:
Before Mrs. West, at age 41, was injured in a motor vehicle accident on April4, 2002, she led an extremely active life. Her activities were drastically reduced after the accident. Aviva acknowledges that Mrs. West suffers from chronic pain, and has paid for significant amounts of treatment.
The treatment plans claimed in this arbitration were signed by Mrs. West's chiropractor, Dr. MS on January 3, 2008, and by her massage therapist Ms. KD, on December 15, 2007. Aviva continues to pay for nerve block and trigger point injections for Mrs. West.
Mrs. West's Pre-Accident Functioning
Mrs. West lives with her husband and two children. Prior to the motor vehicle accident, she was self-employed as an accountant in Cambridge. She performed 30 hours of accounting work per week, as comptroller for a trucking firm. She was in her third year of a Master of Accounting program at Waterloo University, and was working towards a Chartered Accountant designation. In addition, she had several years of accounting experience with public and private accounting firms.
Mrs. West also had a sports photography business, and sold action photographs at national and provincial gymnastic meets.
Before the accident, Mrs. West played on a ladies travel softball team, two to three nights per week from April to October. The team consisted of ladies over 25 who played other towns, and participated in tournaments. She was the team’s pitcher and the most valuable player for the season prior to the accident.
Her other recreational activities before the accident included judo one time per week, at the black belt level. In winter, she did a lot of ice skating at the local arena. In summer, she hiked and canoed extensively. She also attended at the local YMCA a few times a week for aerobics, racquetball and squash. She played a little bit of badminton at her local community centre.
Mrs. West was also very involved in taking her daughter to gymnastics practices, as a board member for her daughter's gymnastics club, and as a volunteer at events such as gymnastic trials for winter games and Olympics. She also did the majority of shopping, cooking, laundry, cleaning and gardening for her household.
Mrs. West's Post Accident Condition
On April4, 2002, Mrs. West was struck on the passenger side of her vehicle by someone who ran a red light.
Her first symptoms included stiffening of her neck and back. These symptoms occurred 15 minutes after the collision. She testified that in the first 24 hours, things "escalated pretty severely." She was essentially bedridden. It was difficult for her to even hold the phone for a long period of time. She testified that she was not able to do much of anything due to sharp pains in her neck and upper back.
Migraine headaches started 12 days after the accident, and continued daily for approximately one year. She had not experienced them before. She also experienced a lot of numbness in her face, hands, legs and feet.
The symptoms gradually got worse over a period of six weeks, each day being worse than the day before. She has been diagnosed with a facet joint injury in her neck, and chronic pain syndrome affecting her neck, shoulders, upper and lower back.
Mrs. West's Initial Medical Treatment
Mrs. West started massage therapy the week following her accident with Mr. PC at Wellington Wellness Centre. The massage was very gentle, as she could not tolerate a lot of pressure around her neck and upper back. The massage therapy treatments lasted for an hour, and occurred two times per week.
Mrs. West started physiotherapy treatments two weeks after the accident with Mr. RH at Waterloo Sports. These treatments consisted of a little bit of manual manipulation, stretching, exercise, electronic pulse, ultra sound and heat. They initially lasted for 45 minutes one or two times per week.
Around this time, Mrs. West also had some treatment with an osteopath, and took prescription medication recommended by her family physician, Dr. JH. This medication included a muscle relaxant, an anti-inflammatory and a pain reliever.
By the end of the first year after the accident, Mrs. West’s physiotherapy included exercising on a stationary bike and leg press, and stretching, both alone and with assistance. Her massage therapy progressed to deeper tissue. Around this time, she moved to Welland. As a result, she switched to physiotherapy at LifeMark in Fonthill with Ms. KY. At physiotherapy, Mrs. West expanded on what she had done before, and added more each week as she could tolerate it. At this time, she had one-hour massage therapy sessions with Ms. PTB, two times per week. For the first year and one-half, Mrs. West experienced daily migraine headaches. In addition to a higher dose of the medications previously mentioned, Mrs. West was taking Tylenol Three, two to three times per week, and Oxycocet, prescribed by her family physician, a few times per week.
Initially, in the first year after the accident, Mrs. West needed a driver for most appointments. Although her progress was slow, by the end of the first year, Mrs. West was able to drive herself, do a little shopping and volunteer a little more at the gymnastics club. She could walk for 10 or 15 minutes at a slow pace.
Around this time, a Designated Assessment Centre assessment recommended psychological counseling. Overall her mood was low. She had a lot of suicidal ideation. She also had cognitive issues such as losing track of conversations and forgetting words. In addition, her sleep was disrupted because she was waking up every 10 to 15 minutes with pain. She saw Dr. TS, psychologist, in St. Catharine’s. There she learned about controlling her relaxation response through biofeedback. She attended two to four times per month for a couple of years. After the Insurer would not support the psychological counseling, she did not pursue it because she thought that it had run its course.
Two to Three Years Post Accident
Just before attending the multi-disciplinary residential chronic pain program at Chedoke Hospital in Hamilton at the end of 2004, Mrs. West was able to walk to the YMCA for 20 to 30 minutes, then do a 45-minute workout, and walk home again.
In 2004, Mrs. West testified that she failed at photography because the weight of the camera was too much for her. She had to re-learn to read and spell because she found herself at the level of a ten year old. In addition, she managed to do a few tax returns in March and April for family and friends, as well as help out a little bit at her daughter's gymnastics club. She could play cards with her children for one hour with breaks. At this time, she was taking muscle relaxants, pain relievers and from time to time anti-inflammatory medication.
Three or More Years Post Accident
After completing the Chedoke program in 2004, Mrs. West started regular treatment with Dr. MS, chiropractor, and with massage therapists at his clinic.
At this time, she was also regularly performing an exercise program provided to her by a kinesiologist, when she completed her program of physiotherapy. She was engaged in psychological counseling that focused largely on educating her about the relationship between her emotional status and her pain levels and on providing her with techniques to manage her driver anxiety, anger about the change in her situation and chronic pain. The psychological counseling ended when she felt that she was able to manage on her own.
She also started receiving trigger point and nerve block injections from Dr. S. These offered temporary pain relief on twenty different spots from the top of her head to her mid back.
Within a month of starting treatments with Dr. MS, Mrs. West testified that she noticed significant changes in her functional status. She was able to attend the YMCA more often and experienced less pain. She was able to play basketball with her husband and to try activities such as ping pong, bowling and miniature golf. She could also use the computer more frequently and was alert the day of the treatment. She testified that her headaches started to decrease.
By January 2008, Mrs. West had noticed year over year improvements in her functional status and had made gradual but steady progress in her functional abilities.
After Aviva's denial of the treatment plans for massage therapy and chiropractic care, Mrs. West paid for these treatments herself. She also purchased an MRS 2000 machine for $3,200 plus applicable taxes.
Mrs. West testified that her ability to function continued to improve and that she was able to significantly reduce her use of narcotic medications after January 2008.
By September 2010, Mrs. West was able to return to university full time, with a reduced course load. Her goal was to complete her accounting program and eventually return to work.
Is the treatment in question "reasonable and necessary"?
The Treatment Plans
The treatment plan Ms. KD, registered massage therapist, signed on December 15, 2007 proposed massage therapy (and related documentation), two times weekly for 16 weeks in the amount of $1,848.34.
The treatment plan Dr. MS signed on January 3, 2008 proposed 12 sessions of functional integrative therapy ("FIT") (and related assessments and documentation) in the amount of $903.72. It also proposed the purchase of an MRS 2000 for the amount of $4,000.
Law- Statutory Framework
Under subsection 14(1) of the Schedule, the insurer shall pay a medical benefit to an insured person who sustains an impairment as a result of an accident. The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for a number of modalities, such as medical, chiropractic, psychological, physiotherapy, medication and other goods and services of a medical nature that the insured person requires.
However, under subsection 14(3), an insurer is not liable to pay for goods or services that are experimental in nature.
It has been established that in order for prolonged treatment to be considered reasonable and necessary, an insured person must establish that:
1. the treatment goals, as identified, are reasonable;
2. these goals are being met to a reasonable degree; and
3. the overall costs (not just financial, but also investment of time, etc.) of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternatives.
It is now well-accepted that the relief of pain is, in and of itself, a legitimate medical and rehabilitative goal. Additionally, if, through the reduction of pain, supportive care can improve or at least maintain the insured person's level of function, that is also a legitimate medical and rehabilitative goal.
In Violi and General Accident Insurance Company of Canada, (September 27, 2000), Director's Delegate Draper approved the principle that pain relief is a legitimate goal of treatment. He also noted that "[e]valuating the effectiveness of any treatment is important, especially in determining whether it should continue over a lengthy period" and that "[o]ne concern is dependence."
Arbitrator Sone agreed with Arbitrator Feldman in Pedisic and State Farm Mutual Automobile Insurance Co., that the Violi case and others set out additional factors that ought to be considered in determining the reasonableness of long-term passive therapies. These factors are:
(1) the credibility of the insured person and whether he or she is sincerely motivated to return to his or her pre-accident activities, including work;
(2) whether the treatment team takes a consistent approach, recommending a reasonable progression of treatment;
(3) whether the insured person and treatment team utilize a variety of treatment modalities and adjust the type and frequency of treatments based upon his or her current needs; and
(4) whether passive modalities are relied upon to the exclusion of other treatment alternatives (i.e., whether there is an inappropriate dependence on passive modalities or the treatment in question interferes with other aspects of rehabilitation).
Finally, the Director's Delegate in Violi cautioned that, "While insurers should not be expected to fund ineffective treatment, effectiveness need not be proven to a level of scientific certainty."
Arbitrator Sone was aware of Arbitrator Joachim's statement in Glinka and Dufferin Mutual
Insurance Company (November 21, 2000) about the Violi decision:
Violi and General Accident Assurance Company of Canada does not stand for the proposition that if a patient claims she feels better, the treatment is reasonable and necessary. That standard would amount to a blank cheque to the service industry for unlimited treatment.
In Chan and CAA Insurance Company (May 3, 2004), Arbitrator Sapin referred to requiring insured persons to provide "compelling evidence" that the treatments were effective, as in some type of formal testing or outcome evaluation. She stated that:
...the "compelling evidence" required to meet the statutory test of reasonableness lies somewhere in the balance between subjective belief and generalized assertions on the one hand, and the type of objective evidence that approaches "scientific certainty" on the other.
However, in the Arbitrator Sone’s view, the requirement for "compelling evidence" set out in Chan dealt with a situation where the goal of therapy was not rehabilitation, but pain relief alone. In the Arbitrator’s opinion, that is not the case here. Mrs. West is seeking both pain relief and rehabilitation in her level of functioning, as she gradually resumes more and more of her extensive pre-accident activities.
Mrs. West's position
The goals of the respective treatment plans are set out in Part 10.
The goals of the treatment plan signed by Dr. MS on January 3, 2008 and by Ms. KD on December 15, 2007 are identified as:
Increase in strength
Increased range of motion
Return to activities of normal living
In the treatment plan signed by Dr. MS on January 3, 2008, the treatment goals are identified as:
Return to activities of normal living
Mrs. West submits that the above noted goals are reasonable and that according to Violi,
"...effectiveness need not be proven to a level of scientific certainty."
Mrs. West testified about the benefits she received from the massage therapy and chiropractic treatment, which Aviva had denied. She stated that she had significant increases to her activity level, and decreased levels of fatigue. In addition, she had dramatically reduced her need for narcotic based medications (due to less pain), and returned to school.
Since Mrs. West has access to collateral benefits through her husband’s insurance coverage, she submits that the cost to Aviva is modest. Mrs. West admits that the cost of the MRS 2000 is substantial, but argues that it is a one-time cost.
Aviva alleges the following:
1. the frequency, cost and duration of the treatment plans were unreasonable
2. the treatment goals were not being met or were not proportional to the ongoing cost of therapy
3. there is an absence of compelling evidence to support the treatments the purchase of the MRS 2000 was not reasonable.
Credibility and Motivation of the Applicant:
Use of Other More Active Therapies
Mrs. West was extremely physically active before the accident. After the accident, she attempted to add in physical activities as much as possible. She regularly exercised based on programs provided by her physiotherapist and her kinesiologist. After treatments with Ms. KD and Dr. MS, she testified that she was able to attend the YMCA more often and experienced less pain. She was also able to play basketball with her husband and to try activities such as ping pong, bowling and miniature golf.
Maintenance and Trials for Weaning off Treatment
Mrs. West testified that her condition declined when she had breaks in treatment at Dr. MS's clinic.
Paid for by Applicant herself
After Aviva's denial of the treatment plans for massage therapy and chiropractic care, Mrs. West paid for these treatments herself. If she was not realizing significant benefits from the treatments in question it is unlikely she would have incurred these expenses.
In addition, she herself purchased the MRS 2000 from Dr. MS after Aviva denied the treatment plan proposing it. Mrs. West testified that she paid $3,200 plus applicable taxes, (which would come to $3,680). She said that she did not purchase the wand attachment, so that reduced the price.
Despite the passage of time and the numerous modalities of treatment Mrs. West received, the Arbitrator found her to be a good historian, who provided thoughtful and detailed answers to the questions posed to her. Her evidence was consistent on key points, and found her to be a very straightforward and credible witness, and a highly motivated patient.
In 2008, Mrs. West stopped doing psychological treatment (which she had started in 2005) because she thought it had run its course. When her physiotherapy ended in 2007 or 2008, Mrs. West did not seek further treatment of this type. In addition, she dispensed with the services of a kinesiologist when she thought he had given her enough to continue on her own.
These actions did not strike the Arbitrator as the types of things that a person who has a tendency to become dependent on passive modalities would do.
Mrs. West did not provide documents to substantiate her claim that her activity level increased substantially after January 2008 which she paid for herself (due to the denied treatment). As a result, Aviva suggests that other modalities, specifically the nerve block and trigger point injections that began in the summer of 2007, caused the improvement. However, the Arbitrator did not accept Aviva’s argument on this point since the Arbitrator found credible Mrs. West’s assertion that there was a decline in her improvements when she took a break from treatments at Dr. MS's clinic.
Dr. MS, chiropractor
Dr. MS's practice mainly involves amateur and professional athletes. A portion of his practice is devoted to managing chronic pain.
From November 2004 to the end of 2007, Dr. MS provided functional integrative therapy ("FIT") to Mrs. West, which included chiropractic adjustments, myofascial release and contemporary medical acupuncture. She saw Dr. MS a couple of time each month. She also had massage therapy at his clinic.
After treatment at Dr. MS's clinic, Mrs. West testified that she had reduced headaches, was more alert on that day and was able to move much better. She would also talk to him about changes in her exercise and activity level and he would suggest different ways of doing things. He was supportive of her trying new things, except for running.
Dr. MS opined in his rebuttal report dated April 1O, 2008 that Mrs. West will require ongoing supportive care to prevent any deterioration in the progress made to date as well as for her to continue to make progress in returning to her normal activities of daily living.
Dr. MS admitted that he was mistaken when he put in his rebuttal report that Mrs. West had decreased her treatment frequency dramatically to 2 to 3 time per month. Because of that admission, Aviva argued that the Arbitrator should place no weight on his report. However, given the period of time that Mrs. West saw Dr. MS, the Arbitrator found such an error minor.
Dr. MS testified that the MRS 2000 is comprised of a control unit that emits pulsed electromagnetic fields and is manufactured by Mediconsult, a company based in Germany. He indicated that there had been scientific double-blind studies regarding its efficacy in assisting with things such as deeper sleep, but these were not entered into evidence. At page five of his treatment plan he signed January 3, 2008, he claimed $4,000 for the MRS, 2000. He stated that the cost of the MRS 2000 could range from $2,700 to $4,000 due to fluctuations in currency exchange for the Euro.
Dr. JC, chiropractor
Aviva requested that Dr. JC conduct an insurer’s examination with respect to the treatment plans which are the subject of this arbitration. After obtaining a history from Mrs. West and examining her, he prepared a report in which he opined:
It is the opinion of this assessor that no further passive therapies are recommended.... There is no evidence to suggest that further passive therapies will improve Ms. West's physical status.... It is the concern of this assessor that Ms. West may have developed a dependency with respect to passive therapy, as she stated that terminating such treatment would cause her to "seize up and everything gets worse"
Dr. JC then goes on to quote from the Clinical Guidelines for Chiropractic Practice in Canada (the Guidelines):
"... if there is little demonstrable additional progress after a period of two months of treatment I care, the patient should be discharged and presumed to have achieved maximum therapeutic benefit."
Subsequently, Dr JC again refers to the Guidelines. With respect to achievement of maximum therapeutic benefit, the document states
"... It is expected that patients will reach their maximum therapeutic benefit within 6 to 16 weeks."
Unfortunately, Dr. JC's quotations are quite selective. The quote immediately above is from section 8.9 of Chapter 8 of the Guidelines. In section 8.10, the Guidelines state regarding supportive care that "supportive care using passive therapy may be necessary if efforts to withdraw treatment If care result in significant deterioration of clinical status." This would seem to be Mrs. West's case.
This section also states that the frequency of treatment must be determined on an individual case basis as dictated by therapeutic necessity. Dr. JC's interpretation suggests the opposite. Immediately after the above quotations, Dr. JC states as follows: Furthermore,
"...·the repeated use of acute care measures generally fosters chronicity, physician dependence and over-utilization." (Riley et al. 1988).
In this quote, Dr. JC has omitted the word, "Alone" from the beginning of this sentence. Actually, the Guidelines state as follows at page 87:
"Alone, the repeated use of acute care measures generally fosters chronicity, physician dependence and over-utilization." (Riley et al. 1988).
This changes the meaning of this quotation considerably. It is an especially egregious omission considering that Mrs. West was engaging in other modalities at this time, such as active therapy, psychological treatment and facet joint injections. Accordingly, the Arbitrator found Dr. JC's interpretation of the Guidelines to be extremely misleading, and focused on supporting a particular point of view.
During cross-examination, Dr .JC testified that he has been doing assessments on behalf of insurers since 1995, and that he derives approximately 70% of his income from this activity. The remainder of his income comes from teaching, research and other clinical practice concerns.
He also testified during cross-examination that he always encourages people to seek [pain] relief, but that he did not think that a third party payer should pay for it.
Dr. JC's selective editing of the Guidelines is troubling and makes his evidence suspect. He also admitted in his oral testimony that he believed that even if people were in pain, third parties such as insurers, should not have to pay for their treatment. Of course that view does not permit him to answer the question of whether the treatment for which Mrs. West sought funding from Aviva was reasonable and necessary in an unbiased fashion. In the Arbitrator’s view, he crossed over the line from expert to advocate. Based on his using selective quotations from the Guideline and his clear admission of bias, the Arbitrator gave his report and testimony little, if any, weight.
Massage Therapy and Chiropractic Care
Mrs. West established herself as a credible witness and highly motivated patient. She provided detailed, reliable answers to questions regarding her activity levels both before and after the accident. In addition, with respect to the massage and chiropractic treatment, she was able to substantiate that, given her pre-accident level of activity, her treatment goals were reasonable, and that these modalities had assisted her with her treatment goals. She indicated that without the massage therapy and chiropractic treatment, her pain symptoms increased and her ability to function was reduced. Because of this treatment she was able to reduce her reliance on narcotic medication. In terms of increasing her activity level, she was able to return to school as a stepping stone to returning to work. There is no question that in striving towards her treatment goals she availed herself of all her possible treatment alternatives. She definitely used active along with passive treatment modalities to assist her in her rehabilitation. The Arbitrator thought the following quotation from Arbitrator Feldman in Pedisic (January 23, 2009), is appropriate here with respect to Mrs. West's claims for massage therapy and chiropractic care:
While dependence on passive therapy can be a legitimate concern, in this case the passive therapy in question is being used to support more active therapies and is being used appropriately, in a supportive role.
1. the frequency, cost and duration of the treatment plans were unreasonable
2. the treatment goals were not being met or were not proportional to the ongoing cost of therapy
The Arbitrator noted that Aviva continued to pay for other forms of therapy such as nerve block injections for Mrs. West.
Also, as set out above, the Arbitrator gave very little, if any, weight to the report of Aviva's expert, Dr. JC. Aviva did not provide any other witnesses to defend its denial of the two treatment plans.
Due to the severe and chronic nature of her symptoms, and her ongoing, extraordinary and very commendable efforts to regain (as much as possible) her pre-accident high level of function, Mrs. West falls into a very limited category of applicants. Based on the evidence before the Arbitrator and the preponderance of the case law, the Arbitrator found that Mrs. West's claims for massage therapy and chiropractic treatment are reasonable and necessary to meet her treatment goals of pain reduction and rehabilitation, even though a lengthy period of time has elapsed after her accident.
Accordingly, the Arbitrator found that Mrs. West is entitled to receive a medical benefit for massage therapy in the amount of $1,848.34 and for chiropractic care in the amount of $903.72
The burden of proof is on Mrs. West to establish that she is entitled to payment in the amount of $4,000 for an MRS 2000 machine. Mrs. West provided some evidence to establish that this machine made a bit of difference in achieving her goals for pain management and level of functioning. She did state that it helped her with sleep, and reduced the number of times she had a cold. Obviously, since Mrs. West purchased the MRS 2000 from Dr. MS, he is not an unbiased witness in this regard. Dr. MS testified that there was "a lot of research supporting the use of this machine for sleep." However, this research was not produced. As the Arbitrator was unable to assess this research, the Arbitrator placed no weight on it.
Aviva argued in its written submissions that the MRS 2000 is "experimental" and is therefore not covered under subsection 14(3) of the Schedule. However, Aviva did not provide any evidence on this point, so the Arbitrator placed no weight on it.
In terms of the cost of the MRS 2000, Dr. MS explained that he had put $4,000 in the treatment plan dated January 3, 2008 because of currency fluctuations in the value of the Euro; however, it appears from Mrs. West's testimony that she actually paid $3,680 in Canadian dollars, including tax. Therefore, if the Arbitrator found in Mrs. West's favour on this point, and the Arbitrator would order payment of $3,680, rather than the $4,000 originally claimed.
Overall, the Arbitrator did not find that the cost of the MRS 2000 is reasonable taking into consideration the relatively minor degree of success in achieving treatment goals and the availability of other treatment alternatives. Accordingly, the Arbitrator found that Mrs. West’s claim for a medical benefit for $4,000 for the purchase of the MRS 2000 not reasonable and necessary.