February 22, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Richard Feldman
Decision Date: January 23, 2009
Kandy Pedisic was injured in motor vehicle accidents on March 6, 1997 and February 5, 2003. She applied for and received statutory accident benefits from State Farm Ms. Pedisic applied for payment for massage therapy but disputes arose with respect to the reasonableness and necessity of such treatment.
The issue of the hearing was to see if Ms. Pedisic was entitled to medical expenses in the total sum of $57,078.50 for massage treatment she has received from Shawn Reid from July 2, 2002 to and including January 20, 2008.
Kandy Pedisic was forty-seven years old at the time of the hearing. She was a registered nurse who worked full-time in a hospital in London. She lived with her teenaged son and her spouse.
In the last thirteen years or so, Ms. Pedisic had been involved in three motor vehicle collisions. In November 1995, she suffered soft-tissue neck injuries when her car was rear-ended. She reported severe neck symptoms with concomitant sub occipital pattern headaches with nausea, vomiting and dizziness. She did not lose any time from work. She received treatment for those injuries until July 1996, by which time she had made a complete recovery.
On March 6, 1997, a vehicle driven by Ms. Pedisic was struck on the driver's side with considerable force by another vehicle. Her vehicle was "totalled". She again suffered soft-tissue injuries to her neck and back with some neurological symptoms. She was off work until about June 1997 and then gradually returned to her usual duties in the surgical unit of the hospital. Her treatment included physiotherapy, massage therapy, chiropractic treatment, a TENS machine, stretching and regular exercise. Although physiotherapy was discontinued after about one year, all of the other therapies continued for many years thereafter. Into 2002, State Farm continued to pay for various treatments, including chiropractic treatment and massage therapy.
By late 2002, although Ms. Pedisic's neck pain and headaches had not fully resolved, there had been some improvement in her condition as she was able to reduce the frequency of therapy. She was able to participate in many of her usual daily activities and routinely worked up to 60 hours per week (which included a considerable amount of overtime). She was, however, looking to reduce her hours at work and had transferred to a position in the hospital that was less physically demanding. While she was not back to her pre-accident level of health, Ms. Pedisic's condition had reached a "plateau". State Farm paid for massage therapy up to June 26, 2002 but refused to pay for massage therapy beyond that date. Between June 26, 2002 and February 4, 2003, Ms. Pedisic incurred $4,510.00 in massage therapy for which State Farm refused to pay.
On February 5, 2003, Ms. Pedisic was involved in a third accident. She was rear-ended at approximately 20 km/h. She immediately complained of headaches, pain and stiffness in her neck and numbness in her left arm. Although this accident resulted in only minor damage to her vehicle, it is this accident that, according to Ms. Pedisic, had the most devastating impact on her health. The medical experts seem to agree that the physical damage to Ms. Pedisic's soft tissues in this accident ought to have healed within weeks or months after the accident. The real problem was that she developed chronic pain (primarily pain in her neck and back and severe headaches) after the 1997 accident, which then worsened after the 2003 accident, and the medical experts did not all agree on how best to deal with this situation.
Following the 2003 accident, Ms. Pedisic very rarely worked more than 44 hours per week. The range of recreational activities in which she took part had been reduced. In order to manage the level of pain she experienced and maintain her current level of functioning, she continued with a comprehensive rehabilitation and maintenance program that included: daily stretching, exercise at the gym three times per week (focusing on cardiovascular health and lower body work), a home exercise program that included yoga and upper body strength training, chiropractic treatment (approximately one time per week) and, on average, three 1.5 hour massage therapy sessions each week. While State Farm initially supported the treatment being received by Ms. Pedisic, by the end of 2003, State Farm questioned whether it was reasonable for her to continue with the passive therapy (i.e., chiropractic treatment and massage therapy) that she had been receiving since 1997. Relying upon the results of a DAC report, State Farm partially approved one last treatment plan for massage therapy (dated November 27, 2003) and denied all subsequent massage therapy plans that were submitted to State Farm. Between February 5, 2003 and January 20, 2008, Ms. Pedisic incurred $52,568.50 in massage therapy for which State Farm refused to pay.
Section 14 of the Schedule requires State Farm to pay for, amongst other things, all reasonable and necessary expenses incurred by or on behalf of Ms. Pedisic for physiotherapy and other services of a medical nature (that were incurred as a result of one or both of the accidents in question).
At the hearing of the Applications, the arbitrator accepted into evidence (and marked as exhibits) a large volume of documents and surveillance videographic evidence and heard testimony from the Applicant, her spouse (Marc Guimond), S.R. (chiropractor), Dr. G.D., Dr. K.S., Dr. M.S., R.O.(DAC assessor) and Dr. J.C.
State Farm never really questioned whether Ms. Pedisic suffered an impairment as a result of one or more of the accidents in question. Ms. Pedisic suffered from chronic pain in her neck, shoulders and back and intermittent severe headaches. This pain impairs her ability to function.
As of February 5, 2003, the situation was made more complex by the fact that Ms. Pedisic, who was still suffering the effects of the March 6, 1997 accident, was then involved in another accident. State Farm focused on the fact that the damage to the vehicle driven by Ms. Pedisic that resulted from the 2003 accident was very minor (only a few hundred dollars). State Farm suggested that the arbitrator draw the inference from this that Ms. Pedisic's complaints were more likely related to the earlier, more severe.
Ms. Pedisic testified that the 2003 accident had a much greater impact on her lifestyle than the 1997 accident. She stated that (on a subjective scale) the pain she experienced went from a 2 or 3 out of 10 to 10 out of 10 and that her neck pain and headaches went from being intermittent to being constant. After the 2003 accident, she had to give up doing voluntary overtime work and restricted herself to lighter work at the hospital that was more in keeping with her limitations. Ms. Pedisic also testified that she suffered a much more drastic reduction in her ability to engage in her normal household and recreational activities after the 2003 accident, due to unmanageable flare-ups in her symptoms. This is consistent with what Ms. Pedisic reported to her treating medical practitioners and was corroborated by the testimony of her spouse, Marc Guimond.
Dr. G.D., a physiatrist who examined Ms. Pedisic and reviewed her history, concluded that the accident of February 5, 2003 was an accident of minor damage but by history worsened her condition. Although she had no work loss time after the third accident of 2003, one must remember that she was already in modified work and doing a job that mostly involved doing interviewing, rather than physical hands-on work with patients. She developed a new symptom of stiffness in her jaw and worsened in her back symptoms. The soft tissue injuries to her neck (WAD II) also worsened.
The only medical professional who, by implication, raised causation as an issue was Dr. J.C., a physiatrist who examined Ms. Pedisic at the request of State Farm in 1999. At that time, Dr. J.C. did not question that Ms. Pedisic was suffering some effects from the 1997 accident but he recommended discontinuing passive therapy. In early 2006, Dr. J.C. was again asked by State Farm to examine Ms. Pedisic and provide his opinion about various treatment plan(s) that were in dispute. Dr. J.C. chose not to examine Ms. Pedisic. He reviewed the documentation provided to him and gave an opinion concerning the reasonableness of proposed treatment. He also stated that, in his opinion, any soft tissue injuries Ms. Pedisic sustained in the 2003 accident ought to have healed within a matter of weeks. He appeared to question the link between her ongoing complaints and the 2003 accident but he did not really explore the issue in any detail.
While it was possible that Ms. Pedisic's symptoms were, from time to time, aggravated by stress arising from personal or professional relationships or from other health concerns, this did not alter the fact that her chronic neck pain, back pain and headaches were caused by the 1997 and 2003 accidents. Up to February 4, 2003, her impairments were attributable to the 1997 accident. From February 5, 2003 onwards, based upon the evidence presented, the arbitrator was satisfied that Ms. Pedisic proved on a balance of probabilities that both the 1997 and the 2003 accidents materially contributed to her impairments.
It has been established for some time that in order for prolonged treatment to be considered reasonable and necessary, an insured person must establish that:(a) the treatment goals, as identified, are reasonable; (b) these goals are being met to a reasonable degree; and(c) 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 the Violi and General Accident Insurance Company of Canada case, Director's Delegate Draper approved the principle that pain relief is a legitimate goal of treatment. In fact, he noted that in some extreme cases, pain relief might be the only goal. He also noted that evaluating the effectiveness of any treatment is important, especially in determining whether it should continue over a lengthy period and that one concern is dependence.
According to the Violi case and others, factors that ought to be considered in determining the reasonableness of long-term passive therapies include the following:
(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 does not need to be proven to a level of scientific certainty.
In cases such as Ms. Pedisic’s, the credibility and motivation of the insured person is often critical since there is no objective medical test for measuring pain. Virtually every medical practitioner who had seen Ms. Pedisic had commented favourably upon her motivation to work (and to engage in as many activities as possible) and upon her credibility. The medical reports that were filed with the arbitrator were replete with favourable comments concerning her motivation and credibility.
S.R. (chiropractor) had been working with Ms. Pedisic for over a decade. He testified that, based upon his experience, Ms. Pedisic had a fairly high threshold for pain, she was generally an up-beat person who did not tend to complain about her pain or focus on it (ruminate) or engage in "grandstanding" and, in terms of compliance with her rehabilitation and maintenance program (i.e., following through and performing her stretching and exercise routines) and in terms of her motivation, she was one of the best patients he ever had (out of approximately 700 patients he has treated with complaints following a motor vehicle accident).
Ms. Pedisic did not exaggerate her limitations; rather, she consistently reported that, with the help of appropriate therapies, she was able to maintain close to full function, albeit with varying degrees of discomfort.
State Farm placed great emphasis upon its surveillance of Ms. Pedisic, which took place over many days and different years. Her treating practitioners confirmed that what was shown on the surveillance tapes (or described in the associated reports) was consistent with the manner in which Ms. Pedisic presented herself in their offices. Throughout much of the surveillance, Ms. Pedisic was shown standing and sitting for prolonged periods. A careful review of the surveillance, however, showed that she was constantly shifting her weight and changing body positions. According to the practitioners who knew her the best, this was consistent with what they would expect to see. Also, since she had not claimed to be disabled, the fact that she appeared on the surveillance tapes to move normally did not adversely affect the assessment of her credibility. Thus, the surveillance was of little assistance in this case.
Based upon her testimony, the arbitrator was favourably impressed with Ms. Pedisic and found her to be a credible witness. The arbitrator therefore accepted as truthful her reports to others as to the degree of pain she felt, the extent to which that pain limited her function and the degree of relief she received from various forms of therapy. The arbitrator accepted that she honestly believed that her program (consisting of both active and passive modalities) was helping her to cope with her chronic pain and that massage therapy was an essential component of this program.
S.R. was a registered massage therapist since 1988. Approximately 70% of the people he treated were involved in a motor vehicle accident.
S.R. agreed that in cases of soft tissue injuries, massage alone is of very little benefit. The primary purpose of massage is to allow the patient sufficient relief so that they can do stretching and exercise. If the patient is not cooperating by doing their stretching and exercise routines, S.R. testified that he would discontinue the massage therapy.About 90% of soft tissue injury patients will get better, but for the remaining 10% (or so), the duration, intensity and frequency of their symptoms never come into a manageable range. For that latter group, massage may be supportive care that can assist the person by reducing pain and allowing them to do the active therapy (stretching and exercise) that assists in keeping them functioning. S.R. testified that Ms. Pedisic fell into the small group of people for whom massage was supportive, not rehabilitative.
S.R. testified that, in assessing Ms. Pedisic's condition, he would rely heavily upon what she told him but that he would also look for objective confirmation such as muscle spasm and swelling and would also ask her to demonstrate her various stretches to ensure that she was doing them correctly and to verify that she actually had been doing her stretching routine.
Since Ms. Pedisic had apparently reached a "plateau" by late 2002 (i.e., her rehabilitation was not progressing), Mr. Reid also recommended that she see a rehabilitation medicine specialist (Dr. G.D.).
Dr. M.S. was a chiropractor. The vast majority of his patients received 8 to 9 chiropractic treatments and made a full recovery. Only a small percentage (perhaps 5%) developed chronic pain and required "supportive" care. Dr. M.S. defined supportive care as "treatment for patients who have reached maximum therapeutic benefit but who fail to sustain benefit and progressively deteriorate where there are periodic trials of treatment withdrawal". In cases where supportive care is appropriate, the goal is to prevent deterioration of the condition or loss of function. The aim, according to Dr. M.S., is always to decrease passive care whenever that is possible, but only to the extent that it does not adversely affect the patient (by resulting in a significant increase in their symptoms and/or a decrease in function).
Unfortunately, by late 2002, attempts to reduce the frequency of massage therapy to only one session per week and maintain it at that level had not proven successful. Dr. M.S. indicated that, at that time (late 2002), he and S.R. were still hopeful that, gradually, over time, Ms. Pedisic could be weaned off of passive therapies. Unfortunately, the February 2003 accident then intervened.
In May of 1998, State Farm conducted a multi-disciplinary DAC report, which stated that chiropractic and massage therapy treatment was not expected to alter functional outcome although it may provide temporary reduction in pain and enable her to continue to work. The DAC report approved the massage therapy being proposed at that time.
Dr. F., a physiatrist, noted at his initial examination, that Ms. Pedisic had done an excellent rehabilitation program and that nothing could have been said about the chiropractic and massage therapy when such a reliable patient said that they had been of significant benefit to her and actually helped her to continue on with life. Dr. F., supported the once a week massage therapy and chiropractic treatments as medically necessary in Ms. Pedisic’s overall treatment program.
After the follow-up visit, Dr. F., noted that it did not seem medically necessary and reasonable for Ms. Pedisic to continue with the chiropractic and massage therapy as this was one of those cases where a straight forward individual was simply indicating that they worked.
State Farm arranged for Ms. Pedisic to be examined by Dr. J.C., another physiatrist who had been in practice since 1982. Dr. J.C. recognized that in a relatively small number of cases, chronic pain could develop in persons who have suffered soft-tissue, whiplash-type injuries, even where those people have received prompt and appropriate treatment and have recovered a full range of motion. Dr. J.C. testified that where there can be found no underlying pathology to explain such ongoing, chronic pain, it is known as "non-malignant chronic pain" or "chronic inorganic pain". The question for treating medical practitioners then becomes, "Should I provide treatment to a person suffering from non-malignant chronic pain?" It became clear from the testimony of Dr. J.C. that, from a strict medical point of view, he believed that the correct answer to this question is always, "No".
According to Dr. J.C., there was no endorsement in the literature for long-term passive therapy for chronic pain that had its origins in soft-tissue injuries. As he put it, there is "no objective medical basis for ongoing treatment" in a case like Ms. Pedisic’s. In addition, given that soft tissue injuries usually heal within a few weeks, Dr. J.C. stated that in cases such as this there is no clear, organically based causal relationship between the remote soft tissue injuries and the ongoing complaints of pain. In other words, he almost always opposed ongoing treatment in these cases not only on the basis that it’s contrary to the usual approach recommended in the literature (reasonableness and necessity) but also on the basis that it cannot be proven that the person's chronic pain is the result of the soft tissue injuries that were suffered in the accident.
Dr. J.C. stated that his approach made him exceedingly unpopular with patients and their lawyers (and possibly some of his colleagues) but stated that his approach was probably the reason why he got so much work from the defense side (i.e., insurance companies).
In cases of bona fide chronic pain perception, Dr. J.C. took the position that the literature suggested that the best approach is to encourage the patient to gradually return to all regular physical activities, to reassure the patient that this may, in the short-term lead to an increase in pain but that this is not a bad thing (i.e., hurt does not equal harm) and to encourage stretching and therapeutic exercise.
In 2002, Ms. Pedisic was still complaining of constant neck and shoulder pain and of upper back pain and occasional lower back pain. The intensity of the pain varied. She experienced headaches daily which were sometimes so painful that she felt nauseated.
R.O. (DAC assessor) appeared as a witness at the hearing before the arbitrator his testimony was found to be helpful. R.O. found Ms. Pedisic to be well motivated and credible. While he still believed that his recommendations in the DAC report of March 2004 were valid based on the information that was available to him at that time, he agreed with the following propositions that were put to him by counsel for Ms. Pedisic:
- Pain is subjective
- Pain itself can limit a person's function
- Treatment must be individualized for each person
- A program that focuses on active therapy such as daily stretching, yoga, in-home and community-based exercise, supported by passive therapy, is a good program
- Massage therapy can be helpful in relaxing muscles to permit a person to get more benefit out of their stretching and active exercise program
- Where passive therapy has been ongoing for some time, there should be periodic attempts to reduce the frequency of treatments and constant monitoring and reassessment of the situation – a valid trial should last four to six months
- If, however, a trial reduction of treatment results in an unmanageable flare-up of symptoms, the trial should be discontinued
- The usual goal is to gradually get the person to the point where they no longer require any massage therapy
- Some people never reach that point, however, and for them, the goal is to reduce their pain and permit them to maintain function (i.e., prevent regression)
- If the patient reaches a plateau and efforts to further reduce the frequency of massage therapy are unsuccessful, the patient should be referred to a rehabilitation specialist (such as a physiatrist) and R.O. would defer to the opinion of such a specialist
In March 2004, Dr. G.D. recommended to Ms. Pedisic that she avoid any medication and continue with the current program of massage therapy and chiropractic treatments. In November 2005, Dr. G.D. recommended that massage therapy continue at the frequency of three sessions per week.
Dr. M.S. saw a dramatic difference in Ms. Pedisic after the 2003 accident. There was substantially increased inflammation and muscle spasm in her neck and upper back. Initially, the frequency of chiropractic treatment had to be increased but, by the summer of 2003, it was back to one session per week.
Dr. G.D. found Ms. Pedisic to be credible and that she put forward good effort during testing. Through testing, Dr. G.D. found that Ms. Pedisic had a high threshold for pain. She therefore concluded that, if Ms. Pedisic complained of pain, it was likely significant. Dr. G.D. ordered an MRI and a bone scan to rule out possible underlying pathologies that could explain the chronic pain. Dr. G.D. then met with Ms. Pedisic a couple more times to review her findings.
The bone scan showed degenerative changes at both AC joints. Although this condition likely pre-dated the accidents, the accidents may have made this condition symptomatic (whereas prior to the accidents it was asymptomatic). The MRI showed two mild disc herniations but neither appeared to be compressing the spinal cord. In March 2004, Dr. G.D. recommended to Ms. Pedisic that she avoid any medication and continue with the current program of massage therapy and chiropractic treatments.
Given Ms. Pedisic's job requirements, her history of adverse reaction to non-steroidal anti-inflammatory drugs (NSAIDS) and pain medication and the other possible side-effects inherent in long-term use of such medication, Dr. G.D. also supported Ms. Pedisic's decision to opt for massage therapy as a reasonable and effective alternative method of coping with her chronic pain. To the extent that Ms. Pedisic was "dependent" upon massage therapy, Dr. G.D. saw it as being reasonable because, in conjunction with an excellent active program, massage therapy was effective in controlling Ms. Pedisic's pain and allowing her to continue to function.
In Dr. G.D.’s opinion, there were two main risks to discontinuing the current treatment. One risk was that Ms. Pedisic would lose her job (since she would have been unable to function). The other was that, if the treatment was discontinued and then later reinstituted, Ms. Pedisic might not have derived the same benefit from massage therapy as she did previously.
Since at least 2002, the goal of massage therapy in this case had been to provide Ms. Pedisic with supportive care – that is, to give her relief from her chronic pain (neck pain and back pain and associated headaches) both for its own sake and so that she could fully engage in and derive greater benefit from the active therapies that had enabled her to remain highly functional. S.R., Dr. M.S., Dr. P., Dr. G.D., Dr. K.S. and Dr. F. all found these to be reasonable treatment goals. They also agree that these goals were being met to a reasonable degree; Ms Pedisic had been able to continue working full-time and engage in many other activities, despite her chronic pain, in part because of the massage therapy she had been receiving. It also appeared that the overall cost was reasonable taking into consideration the degree of success achieved and the lack of any other reasonable treatment alternatives for Ms. Pedisic.
Based upon his philosophy of medicine, Dr. J.C. did not seem to recognize pain reduction as a legitimate goal of treatment in cases such as this. While his views may have reflected one school of thought within the medical community, it was a view that was apparently not shared by the other physiatrists who offered opinions in this case and it was a view that flew in the face of the judicially established principle that pain relief could be a legitimate goal of treatment (even in the absence of "objective" evidence of an underlying pathology). Dr. J.C. failed to recognize that this was an exceptional case, that Ms. Pedisic was already engaged in active exercise and that there had already been several attempts to "wean" her off of passive therapy. Given Dr. J.C.’s self-professed "bias" and the fact that he had not seen Ms. Pedisic since his one and only examination of her in 1999, the arbitrator gave little weight to his opinion concerning the treatment that was in dispute.
While the amount of massage therapy being sought was very unusual, the arbitrator found that it was reasonable and necessary in this case. The treatment goals of pain reduction and maintenance of function were reasonable. These goals were being met to a reasonable degree. Given the degree of success in controlling her symptoms and the lack of any viable alternative treatment, the overall cost was reasonable, especially where the evidence suggested that discontinuing this treatment would likely result in a loss of employment and reduction in Ms. Pedisic's quality of life.
The opinion of experts who did not, in the absence of objective evidence of underlying pathology, recognize pain management as a legitimate treatment goal were disregarded, especially where all experts agreed that Ms. Pedisic is a credible and highly-motivated individual.
The treating practitioners adopted a consistent approach, periodically attempting to reduce passive treatment and carefully monitoring Ms. Pedisic's progress. When appropriate, they recommended that she be seen by specialists (such as Dr. G.D.) and then follow their recommendations. Their refusal in this case to follow the recommendations of the two DAC reports (in 2002 and 2004) was justifiable. While dependence on passive therapy can be a legitimate concern, in this case, the passive therapy in question was being used to support more active therapies and was being used appropriately, in a supportive role. Although the medical research may suggest that, in general, prolonged massage therapy is not helpful for most soft-tissue whiplash-type injuries, the evidence suggested that this was an exceptional case and that massage therapy, as part of a larger program, worked for Ms. Pedisic.