Neutral Citation: 1999 ONFSCDRS 160

FSCO A98-000670

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DOMINIC VIOLI

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

REASONS FOR DECISION

Before:

Suesan Alves

Heard:

April 12, 1999, in Hamilton, Ontario, and on April 13, 1999 via teleconference call.

Submissions were heard on April 16, 1999 via teleconference call.

The clinical notes and records of Dr. Frisina were filed on consent on April 27, 1999.

Appearances:

Allen Wynperle for Mr. Violi

Robert H. Rogers for General Accident Assurance Co. of Canada

Issues:

The Applicant, Dominic Violi, was injured in three motor vehicle accidents on July 11, 1994, July 20, 1995 and January 26, 1996. General Accident Assurance Co. of Canada, ("General Accident") responded to Mr. Violi's claims for statutory accident benefits under the Schedule.¹ In this arbitration Mr. Violi claims the cost of chiropractic and massage treatments, interest and expenses. General Accident disputes that the services claimed are reasonable and necessary.

The parties were unable to resolve their disputes through mediation, and Mr. Violi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Violi entitled to chiropractic treatments and massage treatments under sections 36 and 40 of the Schedule?
Is Mr. Violi entitled to interest on overdue benefits under section 68 of the Schedule?
Is Mr. Violi entitled to his expenses in respect of the arbitration?

Result:

Under section 36 of the Schedule, General Accident shall pay Mr. Violi the cost of outstanding chiropractic treatments incurred between July 31, 1995 and April 1, 1999 in the amount of $7,002.70 and the cost of massage treatments incurred between May 1996 and March 31, 1999. I do not need to determine whether these expenses are also rehabilitation benefits under section 40 of the Schedule.
General Accident shall also pay the cost of chiropractic treatments between April 2, 1999 and July 31, 1999, to a maximum of two treatments per week. General Accident shall also pay the cost of massage treatments at a frequency of once per month between April 1, 1999 and July 31, 1999.
Mr. Violi is entitled to interest on overdue benefits under section 68 of the Schedule.
The question of Mr. Violi's entitlement to expenses may now be addressed.

EVIDENCE AND ANALYSIS:

Dominic Violi is presently 33 years of age, married, and living with his wife and infant daughter. He was injured in three motor vehicle accidents which occurred on July 11, 1994, July 20, 1995 and January 26, 1996. General Accident is the insurer responsible for payment of Mr. Violi's statutory accident benefits in all three accidents.

Mr. Violi sustained injuries to his neck, low back and shoulder in the motor vehicle accidents. X-rays of Mr. Violi's cervical and lumbar spine taken in 1995 were reported to be normal; those taken in 1998 show early degenerative disc disease in his cervical spine at C5-6, and neural foraminal narrowing on the left side at L-4 of his lumbar spine. A CT-Scan of his lumbar spine shows a moderately sized disc herniation at L5-S1; however, it is unclear whether this contributes to Mr. Violi's symptoms.

Prior to the first of the accidents, Mr. Violi had no significant complaints of a musculoskeletal nature. Post-accident, he has complaints of back pain and headaches. He has been treated with medication, physiotherapy, exercise and stretching programs, and massage and chiropractic treatments. In this arbitration, Mr. Violi seeks chiropractic and massage treatments under sections 36 and 40 of the Schedule, interest on overdue benefits and his expenses in respect of the arbitration. General Accident disputes that the treatments claimed are reasonable or necessary, and relies on the reports of two assessments by a designated assessment centre, ("DAC").

Prior to the first of the accidents, Mr. Violi was self-employed and involved in two businesses. He was the owner of D&V Promotions and Investments, and the part owner and vice-president of Avanti Custom Flooring. D&V imported and supplied Italian and domestic products and foods to restaurants, cafes, and grocery stores. Prior to the accidents, Mr. Violi was responsible for all aspects of the business, placed orders, took delivery of and delivered goods, and did the bookkeeping, etc. Post-accident, Mr. Violi discontinued his involvement with D & V.

Avanti Custom Flooring sold and installed flooring material, including carpeting, ceramic tile, hardwood and marble. Prior to the accidents, Mr. Violi did in-store sales, pick-ups and deliveries, and helped installers prepare the floor surface on jobs by taking out the old carpet and under padding, and lifting out the rolled carpeting. Post-accident, he returned to Avanti at modified duties and hours. He does sales, estimates and prepares purchase orders only. The installers either pick up the flooring, or someone other than Mr. Violi delivers the goods to the job site. He has returned to many of his other activities; however, his impairments prevent him from engaging in heavy lifting, prolonged sitting, skiing, playing racquetball, hockey, soccer, gardening or cutting the grass around his home.

Mr. Violi seeks chiropractic treatments because they provide relief from his back pain, albeit temporarily, and improve his level of function. He testified that at times the pain relief lasts for as little as twenty minutes, and at other times, for an hour or more. Sometimes he feels good after a treatment; at other times he does not feel quite as good. Mr. Violi finds that with the treatment he can stand up and sit down a little more, and he doesn't have constant pain. Mr. Violi testified that massage makes him feel "looser, more flexible." He feels that these treatments help him get through the day and through the week. They assist him in functioning at work and allow him to help his daughter as she learns to walk. Mr. Violi finds this approach preferable to the chronic use of pain relieving medication.

Mr. Violi also does a stretching program and uses a treadmill, typically for half an hour in the morning and again late in the evening for flexibility, strength and cardiovascular conditioning. He testified that this program helps relieve some of the tightness in his muscles, making him feel looser and more flexible. He once participated in a more vigorous exercise program at the "Y," but injured himself while doing so, and discontinued this program. According to Dr. R.B. Dunlop, Mr. Violi's orthopaedic surgeon, he is again willing to attempt such a program with a view to building his stamina.

Initially Mr. Violi had chiropractic treatments about five times per week. They have now declined to once per week. At times he seeks a second appointment during the week when his pain is particularly bad. According to Dr. Dunlop, there is a maximum period that Mr. Violi finds that he can go without developing more significant distress.

Dr. Dunlop noted that Mr. Violi is a well motivated business individual. He uses his time wisely... [he] has reduced his chiropractic treatment over the past while....As far as recovery is concerned, neither pain medication or [sic] chiropractic treatment will cure his problem. These treatments are palliative but are useful in maintaining function. For that reason these are reasonable treatments and preferable to some of the options." Dr. Dunlop was also of the opinion that these treatments are reasonable when no specific curative treatments are available.

According to Mr. M.L. Jugloff, a massage therapist who treats Mr. Violi, massage therapy relieves Mr. Violi's headaches. I find, based on the records of the two massage therapists which were filed, that Mr. Violi had an average of three massage treatments per month between May 1996 and March 1999. Mr. Violi's family physician, Dr. W.R. Awrey, his chiropractor, Dr. A. Frisina, and his massage therapist, Mr. Jugloff, all support his use of chiropractic and massage treatments.

I find that Mr. Violi has a preference for relieving his pain with chiropractic and massage treatments. Arbitrators have consistently stated that the choice of the modality of treatment is that of the insured person and of his or her health practitioner.²

In 1996, and again in 1998, General Accident asked The Hamilton Hospitals Assessment Centre, a DAC, to provide an opinion as to whether chiropractic treatment and massage were reasonable and necessary. In June 1996, the DAC recommended that Mr. Violi's chiropractic care should be tapered over an eight week period, then discontinued, and that Mr. Violi would best be served by a structured exercise program.³

In November 1998, the DAC reported that:

Despite a wide variety of therapeutic interventions, Mr. Violi continues to experience headache, neck pain and low back pain. Given the time from his initial accident and considering the subsequent exacerbations, it is unlikely that any further passive interventions are to be of benefit to Mr. Violi in helping him recover from his ongoing complaints ... At the current time, passive interventions are palliative in nature and are likely to have no significant impact on Mr. Violi's ongoing recovery. We do not feel at the current time that ongoing chiropractic treatment and massage therapy is medically reasonable or necessary to address the injuries sustained in his previous three motor vehicle accidents... it is the consensus of the examining practitioners that there are no other future medical treatments or rehabilitation services required that would be considered to be medically reasonable and necessary to address the injuries sustained in his previous three motor vehicle accidents.

The DAC recommended that Mr. Violi continue to focus on his self-directed home exercise program to maintain his flexibility and endurance.

No one has been able to offer Mr. Violi a cure for his pain. What he seeks is pain relief. The premise of the DAC report is that the treatment claimed must promote recovery to be reasonable and necessary. In the case of State Farm and Walker,⁴ Director's Delegate Draper held that the Schedule does not require the insured person to establish that she would not have recovered if the item were not provided. Pain relief is one of the reasons people frequently consult medical practitioners, and I find the relief of pain in and of itself to be a legitimate medical and rehabilitative goal. For these reasons I reject the premise in the DAC's report that treatment which relieves pain but which does not also promote recovery, is unreasonable and unnecessary.

Dr. Edward Crowther, a chiropractor, participated in both DACs and testified at the hearing. Dr. Crowther testified that he had participated in excess of twelve to fifteen hundred DACs. He acknowledged that Mr. Violi had degenerative disc disease, legitimate problems, and that everyone who had assessed him was satisfied that he is a credible and straightforward person. Dr. Crowther testified that if the chiropractic treatments constituted supportive care, this would form an alternative basis for recommending the treatments which Mr. Violi sought.

Dr. Crowther stated that he would be prepared to recommend the chiropractic treatments "tomorrow," if he were provided with the requisite data which established that Mr. Violi was receiving supportive care. According to Dr. Crowther, care is supportive when chiropractic treatments increase function or decrease pain, and are used in conjunction with active care, or care that the person does for himself, such as Mr. Violi's stretching program.

Dr. Crowther testified that in order to establish that Mr. Violi required supportive care, his chiropractor would have to withdraw chiropractic treatments for a period of up to six weeks, preferably on more than one occasion, and measure Mr. Violi's levels of function prior to and after the withdrawals. This could be done by physical examination, patient questionnaires, a sleep diary, records of lost time at work, or decreased production levels, etc. The chiropractor could then determine, with the benefit of such data, whether the treatments significantly affect or improve Mr. Violi's function as a spouse, worker, etc. Dr. Crowther testified that there was nothing in the materials or Dr. Frisina's reports which would suggest that withdrawals of care and data collection had been undertaken in relation to Mr. Violi. He was therefore unable to recommend the treatments as supportive care. In his opinion, a similar approach should be undertaken to determine whether massage therapy was reasonable or necessary.

Dr. Crowther testified that the approach which he outlined, which is contained in the Glenerin Guidelines,⁵ has become an industry standard. It is not clear to me, however, that these are standards of care, that is to say, that chiropractors or others are required to take these steps. These practice guidelines were developed in 1993 to assist clinicians by providing an analytic framework for the evaluation and treatment of common clinical problems. These guidelines are not intended to replace a clinician's clinical judgement or to establish the only appropriate approach for all patients. They are intended to be flexible. They are not standards of care. Adherence to them is voluntary...Many factors must be considered in determining clinical necessity in each individual case."

Mr. Violi performs active care, as defined by Dr. Crowther. I accept Mr. Violi's testimony that the treatments relieve his pain and allow him to maintain function. Except for the withdrawal of care and the collection of data, Mr. Violi's chiropractic care seems to meet Dr. Crowther's definition of supportive care.

Dr. Crowther acknowledged that in the absence of data, one would rely on the clinical judgement of a health practitioner. In this case, the preponderance of the opinion evidence supports Mr. Violi's use of chiropractic and massage treatments. Dr. Frisina's opinion with respect to chiropractic treatment is supported by those of Mr. Violi's family physician, Dr. Awrey, and his orthopaedic surgeon, Dr. Dunlop. Dr. Crowther acknowledged that Dr. Dunlop is a highly respected orthopaedic surgeon.

There is no mention in either DAC report of the concept of supportive care, or that the DAC would require evidence of repeated periodic withdrawals of care, coupled with data, in order to recommend the chiropractic treatment which Mr. Violi sought. When asked why this was so, Dr. Crowther stated that this would go beyond his mandate, and would amount to telling another chiropractic practitioner how to practise. Both DAC reports indicate they were copied to Dr. Awrey, Mr. Violi's family physician who recommended chiropractic and massage therapy, and to Mr. Violi. However, there is no indication on the face of the reports that they were copied to Dr. Frisina.

Section 39(10) of the Schedule requires that the DAC report include a statement of whether, in the opinion of the assessors, the expense claimed is reasonable and necessary for the insured person's treatment. DACs were introduced into the statutory accident benefit scheme by the Statutory Accident Benefits Schedule —Accidents on or after January 1, 1994 and before November 1, 1996, to provide informed, neutral opinions to insured persons and insurers so as to assist them in resolving their disputes. In order to provide such assistance, in my view, such an opinion should include the relevant facts which form the basis for the opinion and full reasons for that opinion.

My sense is that had the DAC communicated to the parties that it required certain documentation to make a positive recommendation, or that it was unable to make a determination in the absence of withdrawals and data, this dispute would have been resolved prior to arbitration.

In Plows and Jevco Insurance Company,⁶ Arbitrator Rotter concluded that reasonable meant "in accordance with reason; not absurd; and within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair." I agree with and adopt these definitions in determining whether the treatments are reasonable and necessary as a supplementary medical benefit under section 36 of the Schedule.

I accept Mr. Violi's testimony that chiropractic and massage treatments relieve his pain and permit him to maintain function. I find his choice of chiropractic and massage treatment, supplemented by pain killers once a week, and his daily stretching and treadmill work, in order to relieve pain and maintain his function, to be reasonable. Mr. Violi's choice is supported by his treating practitioners. In the opinion of Dr. Dunlop, which I accept, the chiropractic and massage treatments are useful in relieving Mr. Violi's pain and help him to maintain function. There is no suggestion that the cost per individual treatment is extortionate or unreasonable. For these reasons, I conclude that the chiropractic and massage treatments which Mr. Violi has incurred are reasonable.

Counsel for the Insurer submitted that there was no evidence that the expenses claimed were necessary, as required by the Schedule. A similar argument was advanced in the case of State Farm and Walker.⁷ In that case the insured person's physician provided a statement that the item claimed as a supplementary medical benefit provided effective pain relief and was reasonable. The certificate made no comment on whether the item claimed was necessary. On appeal, State Farm submitted that there was no evidence to support the arbitrator's conclusion that the expense was reasonable and necessary. Director's Delegate Draper ruled:

The focus of these sections is on providing reasonable medical and rehabilitation services. If the proposed treatment or rehabilitation plan is reasonable, the goods and services necessary to carry out the plan are to be provided, as long as the cost of those goods and services is also reasonable. The fact that the insured person might recover eventually without treatment does not disqualify him or her from receiving reasonable medical and rehabilitation expenses.

I agree with and adopt these reasons. I conclude that the chiropractic and massage expenses claimed by Mr. Violi are both reasonable and necessary within the meaning of section 36 of the Schedule. Mr. Violi is therefore entitled to chiropractic expenses between July 31, 1995 and April 1, 1999, in the amount of $ 7,002.70, and massage expenses between May 1996 and March 31, 1999. I will leave it to counsel to calculate the precise amounts of the massage expenses, bearing in mind that Ms. Firlotte's treatments, recorded at the rate of $55 in her clinical notes and records, and reinvoiced at $60, are to be paid at the rate of $55, while Mr. Jugloff’s should be paid at the rate of $50. I remain seized of the amount in the event counsel are unable to agree.

Mr. Violi also seeks entitlement to chiropractic and massage treatments on an ongoing basis. Dr. Awrey opined that the treatments were effective and should be continued as long as is necessary. In October 1998, Dr. Frisina proposed an additional six to eight months of treatment for Mr. Violi. This period would end between April and June 1999. In April 1999, Dr. Frisina proposed treatment for the next two or three months, or until June or July 1999.

Dr. Crowther was critical of Dr. Frisina's prognosis that Mr. Violi would experience recovery in six to eight months. Dr. Crowther testified that he would be very cautious of and sceptical of that kind of prognosis, given Mr. Violi's chronic pain and his injuries in three motor vehicle accidents. I find Dr. Crowther's opinion more persuasive on this point in light of Mr. Violi's history, and find it unlikely that Mr. Violi's treatments will be at an end in July 1999. However, I will address his entitlement to chiropractic and massage treatments until that time.

I find Dr. Frisina's proposal of chiropractic treatments at the rate of once to twice a week until the end of July 1999 reasonable, with the actual frequency determined by a combination of Mr. Violi's activities, work, hobbies, complaints and objective findings. With respect to massage therapy, I accept that this should be provided at the rate of once per month between April 1, 1999 and the end of July 31, 1999, as this is the premise contained in Dr. Dunlop's report.

I have determined that the chiropractic and massage treatments which Mr. Violi claims are supplementary medical benefits, and I do not find it necessary to go on to deal with Mr. Violi's entitlement to the same items as a rehabilitation benefit.

Interest

Mr. Violi is entitled to interest on overdue benefits under section 68 of the Schedule.

EXPENSES:

If the parties are unable to agree on the question of Mr. Violi's entitlement to expenses of this arbitration, counsel should contact the Registrar's office to schedule an appointment.

August 20, 1999

Suesan Alves Arbitrator

Date