October 19, 2009, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Suesan Alves
Decision Date: June 29, 2009
Ms. V was injured in a motor vehicle accident on September 24, 1996. In this arbitration she claimed that the cost of psychological treatment; also, she claimed a special award.
Ms. V was injured in motor vehicle accidents that occurred on January 23, 1991, September 24, 1996, December 3, 1996 and October 3, 2003. Ms. V's claims, as a result of the 1991 accident, were governed by Bill 68; those as a result of the September 1996 accident were governed by Bill 164; those from the December 1996 accident by Bill 59 and those from the 2003 accident by Bill 198.
This arbitration dealt with Ms. V's claim for psychological treatment submitted to Allstate in February 2004. Ms. V claimed that she required this treatment as a result of the motor vehicle accident that occurred on September 24, 1996.
Allstate disputed that the claimed treatment resulted from that accident or that it was reasonable or necessary. Allstate submitted that if Ms. V required treatment, it was due to various distressing life events or to subsequent motor vehicle accidents.
Entitlement to psychological treatment
To succeed on a substantive basis, Ms. V had to establish that she sustained an impairment as a result of the September 24, 2006 accident, required psychological services as a result and that the cost of the treatment was reasonable and necessary.
At the time of the 1991 accident, Ms. V was a homemaker who was self-employed part-time as a seamstress.
Ms. V was initially referred to see Dr. J. S., psychologist by her family physician in 1993, as she had chronic pain and was experiencing a prolonged recovery from the 1991 motor vehicle accident. Dr. J.S. treated her between May 1993 and February 1994. With his assistance, and that of a chiropractor and of a physiatrist, Ms. V was able to return to work as a part-time seamstress in March 1994. In July 1996, she began doing this work on a full- time basis.
Based on Dr. J.S.'s opinion, the arbitrator found that at the time of the September 1996 accident, Ms. V had largely recovered from the pain and psychological distress from the 1991 accident. The arbitrator also accepted his opinion that Ms. V's 1991 injuries left her more vulnerable to developing pain and emotional distress on subsequent re-injury.
The 1996 accidents
The Applicant's evidence
At the time of the September 24, 1996 motor vehicle accident, Ms. V was in her mid-forties and married with two children, aged 11 and 14. She was self-employed full-time as a seamstress and clothing designer, and was a homemaker responsible for home maintenance activities, including shoveling snow and mowing the lawn.
Following the September 1996 accident, Ms. V. experienced severe pain in the area of her tailbone, mostly on her right side, which was worsened by prolonged sitting. She was again unable to work as a seamstress, as that work required prolonged sitting. In addition, the pain in her right elbow, right knee and the problems she experienced with her right hand interfered with her ability to operate a sewing machine and manipulate garments. Ms. V also suffered intense pain in the back of her head that would come, go, and last about half a day, and sharp pain below her right shoulder blade.
Ms. V was again unable to do her housework and home maintenance chores; her marital difficulties were again exacerbated and she again experienced psychological distress. In November 1996, Ms. V began seeing Dr. J.S. on a fresh referral from her family physician. Dr. J.S. diagnosed her as suffering from severe anxiety and a severe agitated depression, secondary to her pain and inability to work.
Dr. J.S. reported that Ms. V had consistently attributed the majority of her pain and difficulties to this September 24, 1996 accident. In his opinion, Ms. V's pain was temporarily exacerbated by the injuries she sustained in subsequent accidents; however, the September 1996 accident was primarily responsible for her continuing chronic pain problems, activity limitations, vocational difficulties, marital breakdown, depression, anxiety and consequent need for treatment. In his opinion, Ms. V's pain, depression and anxiety all continued without remission since September 1996. Since this accident she has been unable to return to her work as a seamstress, and do heavier household chores and outdoor maintenance.
In Dr. J.S.'s opinion, by about December 1997 the impact of the December 1996 accident had waned and Ms. V's pain complaints were those that originated with the September 1996 accident.
The 1996 accidents
The Insurer's evidence
Allstate relied on the psychiatric insurer examination it obtained in relation to the earlier 1997 treatment dispute in this arbitration. Dr. X.K., psychiatrist assessed Ms. V in January and December 1997 in relation to her treatment needs as a result of both 1996 accidents. She authored four reports and testified at the hearing. In her opinion, Ms. V was a poor historian and was malingering. Dr. X.K. testified that this was malingering with the intent to obtain financial gain. Dr. X.K. opined that Ms. V's presentation was not consistent with a primary mood or anxiety disorder; that she had not derived any significant benefit from psychotherapy and that further psychological treatment sessions were neither indicated nor required.
In January 1997, Dr. S., a neurologist, examined Ms. V on behalf of Allstate. He opined that while it was difficult to say how much of her symptoms were attributable to the September 1996 accident as opposed to the December 1996 accident, it was clear that she was having symptoms of a fairly severe nature following the first motor vehicle accident and she felt that she was only about 20% better by the time she had the second motor vehicle accident in December. It would seem then that the majority of her symptoms were probably attributable to the first [September 24, 1996] motor vehicle accident, and perhaps 25% of her symptoms are were to the second [December 3, 1996] motor vehicle accident.
In 1998, Dr. J.E., a psychiatrist and social worker conducted a psychiatric assessment as part of a disability DAC and as a medical and rehabilitation DAC, to determine whether it was reasonable and necessary for Ms. V to receive psychological treatment as a result of both 1996 accidents, and if so, at what frequency and duration.
In Dr. J.E.' opinion, Ms. V was an unreliable historian. He concluded that Ms. V met the diagnostic criteria for benzodiazepine abuse, major depression, marital dysfunction and a pain disorder associated with psychological factors. He opined that Ms. V's somatoform pain disorder was disabling, and her experience of pain had rendered her functioning impaired in regards to activities related to her family and to her work. In his opinion, the September and December 1996 accidents exacerbated a pre-existing underlying somatoform pain disorder, which was substantially disabling, and both 1996 accidents exacerbated her pre-existing condition.
Dr. J.E. opined that Ms. V required psychological treatment to address her pre-existing injuries and syndromes exacerbated by the motor vehicle accidents of September and December 1996. He recommended an initial course of 16 sessions and an additional 16 sessions if she was making progress.
Although the 1997-1998 treatment dispute was resolved in Ms. V's favour as a result of the DAC assessment, her circumstances made frequent treatment sessions difficult and there was a hiatus in her treatment with Dr. J.S.. In 1998 she worked while retraining at night. In 1999 she worked both full-time and part-time for economic reasons and saw Dr. J.S. on seven occasions.
The 1997- 2003 period
Ms. V testified that she never recovered from her September 1996 injuries. By November 1997, she began to look at alternative career possibilities as she had been unable to return to work as a seamstress. Together, Ms. V and Dr. J.S. developed a plan in which she would retrain to become a welder.
Despite her continuing pain and headaches, between 1998 and 1999, Ms. V worked as a hostess at a restaurant, by day, standing for the most part, and earned the necessary funds to pay for her training. At night she took courses to become a welder. She obtained a certificate to do flat welding. In May 1999, she began working full-time as a welder. She also continued to work part-time as a hostess. The arbitrator found these to be remarkable achievements.
Ms. V testified that before seeing Dr. J.S. she had pain and was unable to work. As a result of her treatment with him she became able to work although she continued to experience pain.
In the summer of 2000, Ms. V contacted Dr. J.S. with a view to resuming treatment. Dr. J.S. reported to Allstate on August 26, 2000, that Ms. V remained severely depressed both on clinical evaluation and on psychometric testing, and continued to harbour suicidal thoughts as well as feelings of low self-worth and hopelessness. In Dr. J.S.'s opinion, Ms. V would need continuing psychological treatment and support for the foreseeable future. Ideally, this would have been in sessions at least once every two weeks, probably over a 5 year period or more, depending on future events, which could not be foreseen.
Between September 2001 and October 1, 2003, Ms. V's treatment was again interrupted by various life events. Allstate submitted that Ms. V's life events during this period were of greater psychological significance than the two 1996 motor vehicle accidents and that it was not reasonable to attribute her need for treatment to the 1996 accidents.
In August 2001, Ms. V's teenaged daughter was injured while riding as a passenger on a motorcycle, and her leg was amputated. Her daughter's stump had been painful and problematic—it had become infected, nerves have re-grown and she has required further surgery and care. Ms. V provided care for her daughter while continuing to work as a welder. In Dr. J.S.'s opinion, the main effect of her daughter's accident on Ms. V was likely an increased vulnerability to subsequent physical and psychological injuries.
There were other distressing events in Ms. V's life during this period. Ms. V divorced her husband at his request; her father passed away; there were structural changes at her employer and she experienced job insecurity.
Ms. V understood that Allstate agreed to pay for treatment with Dr. J.S. for a year, and contacted Dr. J.S. to resume treatment. The messages she left with his office, which form part of his file, are consistent with Ms. V's understanding that such an agreement had been reached. Allstate disagreed that such an agreement was reached.
Ms. V's next session with Dr. J.S. took place on October 2, 2003. That evening on her way to work she was involved in another motor vehicle accident.
Dr. J.S. reported that the October 2, 2003 accident made Ms. V's pre-existing problems temporarily worse, but did not contribute qualitatively new symptom complaints. In his opinion, within a few months of this accident, her complaints were very similar to those she had before the accident.
Allstate submitted that there was evidence that supported its position that Ms. V's 2003 accident was the cause of any need for psychological treatment.
Allstate submitted that according to Dr. G.'s report, Ms. V had a full recovery from her previous accidents and most of her difficulty was the result of the 2003 accident. To the extent that the evidence of Dr. G. conflicted with the opinion of Dr. J.S., the arbitrator preferred the evidence of Dr. J.S., as he treated Ms. V at various times between 1993 and 2004 with respect to her ongoing complaints of pain including her complaints of chronic headaches.
The 2004 treatment dispute
Between October and November 2003, Allstate paid for Ms. V's treatment with Dr. J.S. Allstate informed Dr. J.S., but not Ms. V that it would not pay for further treatment. Dr. J.S. saw Ms. V for a further five sessions between August 19, 2004 and November 11, 2004. Ms. V learned of Allstate's refusal to pay during a treatment session, when she asked Dr. J.S. whether he had heard from Allstate. She suspended treatment because she did not want to run up a debt.
Three years and eight months after Ms. V's February 2004 request for psychological treatment, Allstate arranged an insurer's examination by Dr. R.N., psychiatrist.
Dr. R.N. reported to Allstate on October 4 and 11, 2007. He opined that it was not reasonable and necessary for Ms. V to have obtained that treatment as a result of the 1996 accidents.
Analysis & Findings
Most of the assessors who had seen Ms. V described her as an unreliable historian. The accepted this was the case; however, the arbitrator was not persuaded that this was due to dishonesty on her part. She had been involved in several motor vehicle accidents and has been subjected to numerous stressors. Her unreliability as a historian should also be seen in light of her pain disorder and in light of Allstate's delay in having her assessed.
The arbitrator rejected Dr. X.K.'s opinion that Ms. V had not benefited from psychotherapy with Dr. J.S. In 1994, Ms. V was able to return to part-time work as a seamstress with the assistance of psychological treatment and physical therapies. As detailed earlier, with Dr. J.S.'s assistance, Ms. V was able to plan a retraining program, work to fund her tuition, obtain a welding certificate and obtain employment.
The arbitrator preferred the opinions of Drs. J.E. and J.E. that Ms. V had a somatoform pain disorder that was disabling. Dr. J.E. opined that this condition pre-dated the 1996 accidents and was exacerbated by the 1996 accidents. However, in light of Ms. V's return to part-time employment in March 1994, the arbitrator preferred Dr. J.S.'s evidence that Ms. V had largely recovered at the time of the September 1996 accident.
Based on Dr. J.S.'s opinion, the arbitrator found that Ms. V sustained physical and psychological impairments in the September 1996 accident that continued into 2004 and beyond. The arbitrator found that Ms. V required psychological treatment to address her anxiety, depression, chronic pain and her activity and vocational limitations as a result of that accident.
The arbitrator preferred and accepted Dr. J.S.'s opinion that Ms. V's need for psychological treatment largely stemmed from the September 1996 accident, that her condition had been temporarily exacerbated by subsequent accidents. As a treating practitioner who saw Ms. V before and after each of the 1996 accidents, he was well positioned to opine on this question.
Reasonable and necessary treatment
Violi and General Accident Assurance held that to qualify for prolonged treatment the Applicant must show the treatment goals are reasonable, goals have been met in the past and the overall cost was reasonable taking into account both degree of success and availability of other treatment alternatives.
The Insurer did not present other treatment alternatives for consideration. The arbitrator accepted Dr. J.S.'s opinion that Ms. V required psychological treatment to address her depression fuelled by chronic pain, occupational limitations, economic hardship, insurer stresses and to optimize her adjustment in the face of chronic pain and future uncertainties.
Dr. J.S. opined that behavioural management of Ms. V's pain was of particular importance because she was working with semi-automated machinery and could potentially be injured if her judgment, co-ordination or motor speed was impaired. Her employer required her to report medications, and she did not dare to take strong pain medication for fear that it might jeopardize her employment. The arbitrator accepted Dr. J.S.'s opinion.
Dr. J.S. appeared to appreciate Ms. V's psychological make-up. Ms. V had formed a therapeutic relationship with him and had worked with him in the past to address her problems with chronic pain, anxiety and depression. The arbitrator did not wish to disturb a treatment relationship, particularly one that worked, which she sees as helpful and which helped her respond to chronic pain in the past.
In August 2006, Dr. J.S. opined that Ms. V had had chronic pain for almost four years since her September and December 1996 accidents, and that statistically her prognosis for recovery after that amount of time is quite small. The arbitrator found that even if a full recovery was unlikely, the relief of Ms. V's pain was nevertheless a valid treatment and rehabilitation goal.
If the arbitrator was wrong about Ms. V's entitlement to psychological treatment on a substantive basis, then the arbitrator that Ms. V would be entitled to payment of the treatment she claimed on a procedural basis. This was because under section 36 of the Schedule the treatment claimed was payable pending resolution of the dispute.
In determining what consequences should flow from an insurer's failure to pay medical and rehabilitation benefits pending resolution of the dispute as required by the Schedule, arbitrators have consistently ordered payment for treatment for procedural and social policy reasons even where the Applicant does not succeed on the merits, in the interest of avoiding an unjust or unreasonable result, because of the statutory goal of ensuring prompt and timely payment for necessary medical services.
Ms. V submitted that Allstate unreasonably withheld and delayed payment of the benefits and sought a special award at the maximum allowable rate. Allstate submitted no special award was payable.
The arbitrator found that Allstate both unreasonably delayed and withheld payment of Ms. V's psychological treatment in the amount of $4,110. I find Allstate failed to comply with its obligations to pay the benefit pending resolution of the dispute, to respond to her claim for treatment within 14 days, delayed in arranging an insurer examination, and failed to schedule a DAC assessment at all, and thus deprived her of a timely neutral assessment to which she was entitled.
A mitigating factor was that Allstate paid for some treatment with Dr. J.S., albeit before the current dispute arose.
Allstate requested various clinical notes and records and health records to clarify the issue. Ms. V promptly signed all authorizations.
Allstate did not move promptly to obtain opinion evidence to clarify the causation issue; instead it waited for more than 3 years. Allstate also did not schedule a DAC assessment that might have resolved the dispute. No one testified from Allstate to explain its failure. Allstate was required to arrange a DAC assessment in relation to the current treatment dispute. However, Allstate did not make those arrangements.
In 1998, following receipt of the reports of Dr. Kirkpatrick's insurer examination, Allstate took the position that it would not pay for any further treatment, and this gave rise to the earlier treatment dispute. On that occasion, it fell to Dr. J.S. to remind Allstate of its obligations to arrange a medical and rehabilitation DAC. Dr. J.S. testified that even after the favourable DAC assessment in 1998, Allstate denied a psychological treatment invoice from him dated November 24, 1999.
In the context of Allstate's earlier denial of Ms. V's psychological treatment and the resolution of that dispute by a DAC assessment, Allstate's failure to arrange a DAC assessment in relation to this second dispute for psychological treatment was not understandable.
The arbitrator found that Allstate unreasonably withheld or delayed the payment of all of the benefits Ms. V claimed in this arbitration. A conservative estimate of the maximum special award is $9,900 (Maximum special award = 50% x (benefits that were unreasonably withheld or delayed + interest on these benefits calculated under the SABS + compound interest). In the circumstances of this case, the arbitrator found that she should exercise her discretion and order Allstate to pay Ms. V a special award in the amount of $5,000.