May 20, 2010, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Robert A. Kominar
Decision Date: November 4, 2009
Mr. L was injured in motor vehicle accidents on August 11, 2001 and December 11, 2003. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance. State Farm denied payment for ongoing chiropractic and massage therapy provided under certain treatment plans. The issue of the hearing was to determine if Mr. L was entitled to payments for chiropractic and massage therapy as provided for in treatment plans prepared by Dr. CS, dated April 26 and June 15, 2007.
EVIDENCE AND ANALYSIS:
M L was involved in automobile accidents on December 7, 2000, August 11, 2001 and December 11, 2003. The last two accidents were the subject of the arbitration. The dispute related to State Farm's refusal to pay for ongoing chiropractic and massage therapy, which Mr. L believed that he needed to facilitate his ongoing recovery from the effects of the last motor vehicle accident. The crux of the disagreement between the parties related to the proper interpretation of the Schedule's test of being "reasonable and necessary." Specifically, the treatment proposed by Dr. CS, who was Mr. L's long time treating chiropractor, requested the approval of 100 sessions of chiropractic and massage treatment. State Farm declined to approve these treatment plans, primarily on the basis that it was unreasonable to expect an insurer to approve such extensive treatment and thereby eliminate its ability to monitor and assess, on a timely basis, whether the treatment was helping Mr. L or not. Mr. L, on the other hand, claimed that he had reached the point where ongoing chiropractic and massage treatment was what he needed to function. Thus, his view was that it was reasonable and necessary for him to seek approval for more than what might be called a "standard" course of treatment – which might have typically involved 10 to 15 sessions at a time.
Mr. L was a self-employed real estate broker. Both parties acknowledged that his motor vehicle accidents were fairly significant ones. Mr. L also testified that his general preference was to avoid prescription medications if at all possible, as he wanted to stay alert and focused while doing business. As a result, he preferred modalities of treatment such as chiropractic, massage and Bowen therapy. Mr. L stated that when he combined these types of treatments with regular workouts at a gym, he was able to function sufficiently well to run his business day to day and generally enjoy his life.
In essence, Mr. L's evidence was that ongoing chiropractic and massage therapy, combined with workouts four to five days per week at the gym, and Bowen therapy which was provided to him by his wife, were what he needed to keep his level of physical functionality at the point where he could still work.
Mr. L was asked if he ever tried to stop or taper off chiropractic and massage. He stated that he did try various times for a few weeks or so, but found that he never could function for long, due to the pain he experienced when he was not getting regular therapy. As a result, despite the fact that State Farm refused to pay for the disputed treatment, Mr. L continued to seek treatment out and to pay for it himself.
Mr. L stated that at some point in time he reached the point where he accepted that he may not ever fully recover from his injuries or become pain free. After that point in time, he shifted his focus to trying to adapt to the reality that he had to live with relatively constant pain and discomfort.
Mr. L stated that he had been a chiropractic patient of Dr. CS' since approximately 1991. He acknowledged that he had attended with her for treatment "regularly" since then. A significant amount of time in the hearing was taken up reviewing the history of Mr. L's clinical involvement with Dr. CS over the years.
Mr. L testified that he had reached the point where he found it bothersome to continually have to request approval from State Farm for normal courses of what he regarded as necessary treatment. He believed that he had reached the point where it was reasonable to assume that his pain would be continual and that he would need ongoing, indefinite maintenance treatments.
The statutory test is whether such treatment is reasonable and necessary in the circumstances. There is more to this test than Mr. L's personal beliefs. In the arbitrator’s view, it was not sufficient that Mr. L subjectively desired or felt that he needed this treatment to meet the threshold of the test. The objective medical evidence presented had to be considered as well.
When Dr. CS was asked whether Mr. L had reached maximum medical recovery, she stated that he had but that she also believed that he continued to need what she termed "supportive care." In her view, supportive care has the intended purpose of allowing the patient to continue to function and cope with pain. In that sense it is not directed at healing or improving functionality.
In Dr. CS' clinical experience, Mr. L's desire and need for chiropractic treatment was unique. However, in her opinion, although he was an anomaly among her patients, she also believed that he had tried all other reasonable therapeutic options to deal with his pain and that he would not have likely, in her professional opinion, become any better in the future.
The essence of Dr. K's evidence was that he did on examination find range of motion restrictions still present in Mr. L when he examined him. He also noted that he reviewed an MRI of Mr. L's spine which showed that he had a very old injury that had healed as much as one could expect and that it would not improve with any further type of treatment. Dr. K also testified that he could not meaningfully opine on whether the old injuries shown on Mr. L's MRI results were related in any way to any of the automobile accidents in which he had been involved. Dr. K did state that the notion of approving 100 treatments over the course of a year without any option to review progress in the interim was not generally reasonable in his view.
State Farm requested that Mr. L be independently assessed on multiple occasions by a chiropractor, Dr. A. A significant amount of hearing time was devoted to the unpleasant interactions between Mr. L and Dr. A. The arbitrator believed that it was fair inference from the evidence that Mr. Leclerc and Dr. A did not experience cordial, and at times not even civil, interactions.
Had the outcome of this case turned more directly on Dr. A's independent evaluations of Mr. L, the arbitrator would have given little if any weight to Dr. A's evidence. During his testimony at the arbitration, Dr. A clearly gave the impression that he was primarily a "business man" in contrast to a clinical health care professional. In fact, Dr. A's evidence and curriculum vitae revealed that he had had very little actual experience in chiropractic care of patients. Dr. A testified that, notwithstanding that he only worked for insurers, he was not biased. Rather, he saw his streamlined process for producing independent examinations as efficient and cost effective. Without further commenting on the issue, the arbitrator noted that Dr. A may have been correct in his economic conclusions. However, there were very serious concerns which were raised about economic efficiency being the primary driving force behind assessments for either side of an accident benefit case.
The conclusion which the arbitrator drew from Dr. A's evidence was that he did not take, or at least did not take in Mr. Leclerc's case, any meaningful time to reflect on his physical examination, clinical findings or interviews before asserting his conclusions in his report. Rather, it seemed that his primary focus was on generating reports quickly so that the flow of work would continue. The arbitrator found that this serious lack of any critical thinking perspective created very real concerns in an adjudicator's mind about the reliability of Dr. A's findings. Beyond that, it was also found that when one coupled Dr. A's business model of practice with a personality like Mr. Leclerc's, the probability of the kind of challenging interactions which these two had might well be increased. In summary, the arbitrator did not rely on the evidence of Dr. A in reaching his conclusions.
In essence, Mr. L was arguing that once an individual reached the stage of needing "supportive care" after having reached "maximum medical recovery," the interpretation of the statutory test of "reasonable and necessary" must change.
Mr. L raised an interesting and important argument. The arbitrator accepted that the interpretation of reasonableness and necessity are contextual under the Schedule. It is now acknowledged that treatment of chronic pain can in and of itself be an appropriate focus of medical care and that insurers may be required to fund such treatment. The arbitrator found that he did not have to decide that issue in this case as he was not prepared on the evidence to find that Mr. L had met his civil burden of proof to demonstrate that his ongoing chiropractic and massage therapy care was related to these accidents. It was also found that the quantity and duration of the treatment requested by Dr. CS was, according to her own evidence, well beyond the norm of contemporary chiropractic practice. In fact, it was so far beyond the norm that Dr. CS's evidence was that Mr. L's ongoing need for treatment was unique in her professional experience.
The reality was that, based on the evidence, including an extensive clinical history of Mr. L's treatment by chiropractors and massage therapists for over a decade, reflected that he was quite literally receiving approximately as much of this sort of care prior to the automobile accidents as he was right afterwards, throughout, and that he wanted to continue.
All of the medical evidence presented in the hearing acknowledged that Mr. L had reached maximum medical recovery and that further treatment would not have helped him heal any further. And Dr. CS, who drafted the treatment plan, admitted that she had never requested approval for such treatment before and also that she never had another patient in her practice that had so regularly used long term chiropractic care.
The arbitrator found that Mr. L had not met his burden of proof to demonstrate on a balance of probabilities that the treatment which he was requesting was both reasonable and necessary and related to the automobile accidents. In fact, it was found that the request for 100 chiropractic sessions was quite unreasonable in the sense that it, by definition, denied State Farm the opportunity to regularly monitor Mr. L's ongoing progress. Apart from Mr. L's self report of how he felt, there was really no bench mark against which State Farm could have meaningfully assessed whether continued funding of treatment was reasonable or necessary during the year in which the treatment would have been administered. Ongoing reasonable review of treatment by insurers is an integral part of the automobile insurance system.
The arbitrator took several considerations when making his conclusion: the long course of treatment proposed; the failure to build in any review process into the treatment; and the clear evidence of Dr. CS, supported by Dr. K, that Mr. L was unique in his devotion to chiropractic, and the fact that Mr. L's current request for treatment was for all intents and purposes equivalent to the treatment which he was getting on an ongoing basis prior to either of these automobile accidents. Therefore, the conclusion was that this treatment was not reasonable and necessary in the context of the Schedule. For clarity, the conclusion here does not directly deal with whether or not supportive care, as it was called during the hearing, could be at times reasonable and necessary. There may be circumstances where the treatment proposed after maximum medical recovery is reached and is quite appropriate.