September 07, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: April 26, 2013
Adjudicator: Judith Killoran
REASONS FOR DECISION
Tazlin Alladina was injured in a motor vehicle accident on May 2, 2008. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company payable under the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Alladina applied for arbitration at the Financial Services Commission of Ontario.
The issues in this hearing are:
Is Ms. Alladina entitled to medical benefits of $11,695 for treatment at the Rehab Centre?
Is Ms. Alladina entitled to $1,462.44 for the cost of examinations?
Is Ms. Alladina entitled to interest on the overdue payment of benefits?
Is either party entitled to their expenses in respect of the arbitration?
Ms. Alladina is entitled to medical benefits of $11,695 for treatment at the Rehab Centre.
Ms. Alladina is entitled to $1,462.44 for the cost of examinations.
Ms. Alladina is entitled to interest on the overdue payment of benefits.
The issue of expenses may now be addressed.
EVIDENCE AND ANALYSIS:
On May 2, 2008, Ms. Alladina was involved in a motor vehicle accident in which her vehicle was rear-ended. She went to see her family physician, Dr. ICY, within 3 or 4 days following the accident. Scotiabank, Ms. Alladina’s employer, accommodated her injuries with modified duties and modified time for 3 to 4 months following the accident. By September 2008, she went back to work full-time. However, she testified that for almost every 2nd day in 2009, she took a half-day of accumulated vacation time. In the spring of 2010 she took 4 months off work to focus on rehabilitation. She attended at Miracle Rehab for treatment initially and later obtained treatment from Doctor’s Assessment and Rehab. She began treatment at the Rehab Centre in February 2010 and stopped treatment toward the end of 2010. She has been working continuously since 2010.
The issues before the Arbitrator were whether the three treatment plans submitted by the Rehab Centre to State Farm were reasonable and necessary and whether Ms. Alladina was entitled to have the cost of assessments paid by State Farm.
State Farm submitted that this was a minor accident which resulted in minor soft tissue injuries which did not justify the disputed treatment which was offered almost 2 years after the accident. Ms. Alladina submitted that this was a chronic pain case which resulted in her need for ongoing treatment in order to treat pain and improve function so that she could keep her employment.
Claims for Medical Benefits and Examinations
Within 3 to 4 days following Ms. Alladina’s accident, Dr. ICY referred her to Dr. AK, a physiatrist, for treatment. However, it was not until February 22, 2010 that Ms. Alladini visited Dr. AK for the first time. In the meantime, she received treatment from other facilities which she did not find effective. Dr. ICY also referred her for an MRI, ultrasound and x-rays.
State Farm denied the first treatment plan from the Rehab Centre dated February 5, 2010 and referred Ms. Alladini for an independent examination. The clinic submitted another treatment plan dated May 8, 2010 and a third dated July 14, 2010. Each of the three treatment plans estimated a cost of $4910 each for approximately 16 sessions each. The amount claimed by Ms. Alladina is $11,695 for the treatment provided by the Rehab Centre from February 2010 to October 2010. The amount claimed is somewhat less than the estimated cost of the three treatment plans.
Dr. MM was qualified as an expert in the treatment of chronic pain, impairment and disability. Since 2004, he has been the full-time director of the Rehab Centre which is a multi-disciplinary pain and disability management clinic. Dr. MM is a licensed chiropractor involved in the assessment and treatment of patients at the clinic. He also supervises and coordinates the clinicians. Both he and Ms. Alladina were called as witnesses to support the applicant’s claims.
Dr. MM was questioned about why the facility kept treating Ms. Alladina when the insurer denied the submitted treatment plans. He testified that he believed that Ms. Alladina would benefit from continued treatment that was effective in reducing her pain and discomfort and increasing her range of movement while reducing her need for medication. Dr. MM testified about the intake summary which he prepared by taking a history from Ms. Alladina over a 20-25 minute period during her first visit to the clinic on February 5, 2010. Subsequently, Mr. AHA, a physiotherapist, conducted the initial assessment of Ms. Alladina and signed Ms. Alladina’s Disability Certificate dated February 5, 2010.
Dr. MM testified that Ms. Alladina’s symptoms were headaches, right trapezium cervical pain, and stiffness in the right shoulder area together with a sleep disorder. He also explained that pain is diagnosed as chronic if it lasts for more than six months, which is the case for Ms. Alladina. DM, a physiotherapist, who conducted an insurer’s examination acknowledged that Ms. Alladina’s “main problem seems to be her chronic pain.”
Ms. Alladina was a credible witness who provided many details about her accident and its consequences. At the time of the accident, she had been employed at Scotiabank for 11 years where she worked at the Data Centre dealing with branches. After 3 years, she was moved to the Call Centre and worked 12 hour overnight shifts. By May 2008, Ms. Alladina was dealing with email communications and her annual earnings were $50-60,000 per year. After the accident, she had a difficult time walking, her hip and right leg were hurting, tingling and numb, and her back was painful. She also had bad headaches together with pain in her right shoulder.
Ms. Alladina chose to go to Miracle Rehab initially for treatment rather than going to see Dr. AK. She received massage, acupuncture and TENS machine treatment and Dr. ICY prescribed medications for her. She testified that she managed to stay at work by popping pills and trying to make it through each day. She used her accumulated vacation days until the end of 2009 to help her function at work. When the treatment at Miracle Rehab was not effective, Ms. Alladina had treatment for several months with another facility. Her treatment there consisted of massage, acupuncture, treadmill, and exercises on the yoga ball. As she was not improving, Dr. ICY suggested again that she see Dr. AK at the Rehab Centre. Ms. Alladina was feeling very depressed about her lack of progress and her physical problems and pain were intensifying as time went on. Although she took a lot of medications and continued to work, every day was a struggle, particularly as she could only manage to get 2-3 hours of sleep a night.
At the Rehab Centre, Ms. Alladina testified that she received physiotherapy, two types of acupuncture and her treatment sessions were 2 to 3 hours long. She also testified that the treatment she received helped her with mobility and walking. By 2010, Ms. Alladina was still taking medication and continuing to go to work. However, in April, she was off work for 4 months because Dr. AK advised her to focus on getting better. Her treatment ended at the Rehab Centre in October 2010. Ms. Alladina also saw Dr. M, a psychiatrist, for treatment of her pain.
The essence of State Farm’s submissions was that it had paid enough money for treatment for Ms. Alladina prior to the treatment claimed. State Farm argued that Ms. Alladina continued to work after the accident as she sustained such a relatively minor injury. The Arbitrator disagreed and found Ms. Alladina had widespread chronic pain which required pain killers, anti-depressants, and steroids. She was referred to a chronic pain management centre. There were good objective reasons after assessments and an MRI to the shoulder to continue treatment. Ms. Alladina’s injuries were not minor and the emotional and physical effects stemming from her injuries resulted in chronic pain.
Dr. BS’s chiropractic assessment on June 19, 2009 concluded that Ms. Alladina had been provided with “sufficient physical rehabilitation for her soft tissue injuries” and predated the February 5, 2010 treatment plan from Active Rehab. Ms. DM’s assessment of May 4, 2010 concurred with Dr. BS and concluded that further facility based treatment would not affect the outcome for Ms. Alladina. Her opinion was that maximum therapeutic benefit had been attained with facility based treatment. In the most optimistic of circumstances 100% recovery was not anticipated because of the nature of her chronic pain. The flaw in the conclusions offered by these two assessors is that little consideration was given to the role of treatment in pain relief and increase in function.
The claim for examination expenses of $1462.44 includes the following: $360 for two assessments dated May 8, 2010 and July 14, 2010 respectively from Dr. B, chiropractor at the Rehab Centre; $130 for two treatment plans from Dr. B and Dr. AR, physiotherapist, dated May 8, 2010 and July 14, 2010 respectively; $450 for a rebuttal report prepared by Dr. AR and Dr. AHA; and $195 for completion of three Disability Certificates dated, February 5, 2010, May 8, 2010 and July 14, 2010. The only claim for examinations not originating from the Rehab Centre is $327.44 from ICC Healthnet Canada, for an initial assessment and completion of OCFs 18 and 22.
State Farm relied on the cases of Waheed and Waheed and RBC General Insurance Company and Ramballe and State Farm Mutual Automobile Insurance Company. The Arbitrator did not find either case particularly helpful in the case before her. They are both fact-specific cases where the credibility of the applicants was in issue. The Arbitrator preferred the case of Violi and General Accident Assurance Co. of Canada where the arbitrator presented a sophisticated general analysis of the role of treatment in pain relief, medication reduction and maintenance of function together with improvement of sleep as reasonable treatment goals. Ms. Alladina’s evidence was that the treatment she received assisted in pain management, better sleep and improvement in function. Ms. Alladina was not only credible; she provided helpful details and information about the nature of her disability and the need for continuing treatment.
Ms. Alladina persevered in the face of continuing disability and difficulties at work. The Arbitrator found the reports from Drs. P, G and MG persuasive that Ms. Alladina suffers from a chronic pain disorder. Although their reports focused on pharmacological and psychotherapeutic management of her depression and anxiety, the Arbitrator found, based on Ms. Alladina’s and Dr. Moazami’s testimony, that the physical treatment she received at the Rehab Centre assisted her in dealing with her chronic pain disorder. Her treatment at the Rehab Centre made it possible for her to continue to work.
The Arbitrator found that the medical treatment expenses claimed by Ms. Alladina are both reasonable and necessary within the meaning of the Schedule. Consequently, Ms. Alladina is entitled to payment of medical benefits totalling $11,695 for treatment at the Rehab Centre. In light of the finding that Ms. Alladina’s treatment expenses were reasonable and necessary, it follows that all examinations and documentation required to assist her in obtaining the treatment she needed should be paid by State Farm. Consequently, Ms. Alladina is entitled to payment of examination expenses totalling $1,462.44. Also, Ms. Alladina is entitled to interest on overdue benefits as prescribed by the Schedule.