FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2004 ONFSCDRS 38
FSCO: A03-000780
BETWEEN:
BEATA HEJNOWICZ Applicant
and
COACHMAN INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Joyce Miller
Heard: March 1, 2 and 3, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Howard R. Blitstein for Mrs. Hejnowicz Jamie Pollack for Coachman Insurance Company
Issues:
The Applicant, Beata Hejnowicz, was injured in a motor vehicle accident on January 3, 1999. She applied for and received statutory accident benefits from Coachman Insurance Company ("Coachman"), payable under the Schedule.1 Coachman denied Ms. Hejnowicz' claim for two treatment plans dated May 17, 2000 and March 22, 2003 for massage therapy. The parties were unable to resolve their disputes through mediation, and Mrs. Hejnowicz 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 Ms. Hejnowicz entitled to receive a medical benefit for massage therapy pursuant to two treatment plans dated May 17, 2000 and March 22, 2003 in the amount of $5,190 claimed pursuant to section 14 of the Schedule?
Is Ms. Hejnowicz entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Is Coachman liable to pay Ms. Hejnowicz' expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is Ms. Hejnowicz liable to pay Coachman's expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Results:
Ms. Hejnowicz is entitled to receive a medical benefit for massage therapy pursuant to two treatment plans dated May 17, 2000 and March 22, 2003 in the amount of $5,190 claimed pursuant to section 14 of the Schedule.
Ms. Hejnowicz is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.
If needed, the parties may now speak to the issue of expenses.
Background:
Ms. Hejnowicz is 43 years old. She is married and has a three year old son.
On January 3, 1999 Ms. Hejnowicz was a passenger in a van driven by her then fiancé when the van spun out of control on black ice on the 401 Highway. The van struck the guard rail on the passenger side before it came to rest. Ms. Hejnowicz, who was wearing a lap seat belt, was thrown forward on impact. Her left leg hit the engine consol and her face hit the dashboard. The impact was severe and Ms. Hejnowicz suffered multiple injuries including a hip dislocation, a pelvic fracture, a left knee injury and facial cuts. She underwent two operations and remained in the hospital for 16 days.
At the time of the accident, Ms. Hejnowicz who is a goldsmith and jeweller, was working at George Brown College in the Jewellery Arts Department. She supervised over a hundred students and her work entailed looking after the physical materials, machinery and equipment used by the students as well, she was in charge of administrative functions which required her to work on a computer. The work was physically demanding. Her physical tasks ranged from fixing the machinery and equipment to fixing a broken chair and retrieving jewellery that had fallen down the sink.
Ms. Hejnowicz was off work for nine months. When she returned to work in September 1999 Ms. Hejnowicz was limping badly and using a cane to assist her in walking. A student was hired to assist her with the physical aspects of her job while she focussed on administration and looking after the students' needs as best she could.
At the time of the hearing Ms. Hejnowicz testified that she has resumed most of her job duties, however, squatting remains "extremely difficult" for her, and also she has difficulty with stair climbing.
Ms. Hejnowicz submits that as a result of her car accident injuries, she now suffers from chronic pain which is relieved through massage therapy. Ms. Hejnowicz claims payment for two treatment plans for massage therapy in the amount of $5,190. Coachman submits that the claim for massage therapy is neither reasonable nor necessary.
EVIDENCE AND FINDINGS:
A. Ms. Hejnowicz' Evidence
1. Ms. Hejnowicz' Testimony
Ms. Hejnowicz testified that as a result of her injuries in the car accident she had a permanent metal plate inserted with two screws to fix her pelvis fracture. As well, she had a metal plate inserted with two screws to fix her hip fracture. In order to repair these injuries her femur had to be cut and then put back together with two screws. These latter screws protrude from her thigh and have continued to cause her pain. She stated that she will be undergoing an operation on March 11, 2004 to remove these screws.
Ms. Hejnowicz testified that two weeks after she came home from the hospital a physiotherapist came to her house and worked with her for six weeks on exercises. As well, the therapist gave her acupuncture treatment.
Her family doctor, Dr. Ochocinski, recommended that she take hot pool treatment to loosen up her muscles. She found a hospital in Mississauga that had a hot pool, and she went two to three times a week for physiotherapy - which included a session of exercises in the hot pool. She did this for two months, when Dr. Ochocinski recommended she switch to a private physiotherapist where she would get better attention. She then went to Fitness Institute, which also had a pool and continued with her therapy. She described her therapy experience at Fitness Institute as being very helpful in her recovery.
Ms. Hejnowicz testified that in July 1999, she began massage therapy at Natural Pain Therapy Centre Inc. The massage treatments, which were recommended by Dr. Ochocinski, were paid by Coachman pursuant to a treatment plan filled out by Ms. Vesna Baric, a registered massage therapist and owner of Natural Pain Therapy. The treatment plan was for 24 sessions, three sessions a week for eight weeks.
Ms. Hejnowicz stated that the benefits she received from massage therapy were "tremendous." At first, she was sceptical about this form of treatment, but then discovered how helpful it was. She testified that the therapist by working on reducing the muscle spasms and knots helped reduce her pain level. In turn, this allowed her to push herself further in her physiotherapy.
Ms. Hejnowicz testified that by the Spring of 2000 she had finished her formal physiotherapy and massage therapy sessions and was trying to get her life back. She was working out in a gym with a personal trainer and doing everything she could to get better. However, her progress had slowed down and she was in a lot of pain. For this reason Dr. Ochocinski recommended that she continue with massage therapy to complement her physical training.
Dr. Ochocinski wrote her a perscription for massage therapy and on May 17, 2000 Ms. Baric filled out a treatment plan for further massage therapy. This treatment plan was rejected by Coachman supported by a Designated Assessment Centre ("DAC") report dated August 1, 2000.
Ms. Hejnowicz testified that in 2000 she continued with physiotherapy. As she could not afford to pay for massage therapy she only attended five massage sessions, the maximum allowed under her employer's medical insurer.
Ms. Hejnowicz testified that at the end of 2000 her son was born prematurely at 27 weeks, and remained in the hospital for two months. For the first six weeks he was fed by a tube and the remaining two weeks he was bottle fed. Ms. Hejnowicz stated that she very much wanted to breastfeed her son because it would be the optimal thing for his health. She stated that she went to great lengths to accomplish this goal, and in the end she succeeded. She stated that because she was breastfeeding she could not take any pain medication.
Ms. Hejnowicz testified that because her son was born prematurely, special care had to be taken over and above the needs of an average newborn. This entailed a lot of work. She stated that her child became her number one priority and she put all of her personal needs on the "back burner."
Ms. Hejnowicz testified that after the birth of her son she continued to exercise and do her stretches to alleviate as much of her pain as she could. In 2001 and 2002 she attended the maximum massage sessions allowed by her employer's medical insurer, five each year. However, by the winter of 2003 her pain had become unbearable. She stated that she had "excruciating pain." As a result, Dr. Ochocinski recommended that she have massage therapy.
On the basis of Dr. Ochocinski's recommendation, Ms. Baric filled out a treatment plan on March 22, 2003. Again this treatment plan was rejected by Coachman supported by a DAC report dated August 11, 2003.
Ms. Hejnowicz testified that despite this rejection by Coachman she borrowed money and began receiving massage treatments from Ms. Baric on a regular basis in April, May, June, August, September, October, November and December 2003.
Ms. Hejnowicz testified that she very much benefited from the massage treatment. She stated that massage therapy not only helps with pain relief, but it breaks down the muscles knots which helps her align her body posture, and thus lessens the damage. She stated that massage balances her out and allows her to live her life as a mother, wife and to perform her job.
Ms. Hejnowicz stated that she is not dependent on the massage therapy for pain relief, but rather sees it as a process, a tool that complements and helps her to build her strength and endurance. She stated that she continues to use other modalities to assist her including hot pool therapy, yoga and exercising. She stated that massage therapy by decreasing her pain and loosening up the knots and muscle spasms allows her to push herself further in her physical activities, thus in turn increasing her strength and endurance.
Her long term-goal is to have another child and to be able to live a normal life where she can play with her child on the floor, go into nature, hike and bike and travel through the world.
Ms. Hejnowicz testified she is always in pain. She stated that without massage therapy her pain level can be rated 8 to 9 out of ten. With massage she rates it as 3 to 5 out of ten.
When confronted under cross-examination that Ms. Baric charged the Insurer ten dollars more per session than she does an individual client, and that Ms. Baric had a financial goal to gain in requesting the treatment plans, I found Ms. Hejnowicz' response to be reasonable and plausible.
Ms. Hejnowicz stated that while Ms. Baric may get a financial benefit, she gets a physical benefit. Moreover, Ms. Hejnowicz pointed out that she is a very small portion of Ms. Baric's business and she was impressed with the great lengths Ms. Baric has gone to assist her, including allowing her to delay her payments when she was short of money.
With respect to the ten dollar surcharge to insurance companies, Ms. Hejnowicz confirmed Ms. Baric's testimony that this surcharge is to make up for the fact that insurers delay making their payment. Ms. Hejnowicz stated that in her own particular case it took Coachman one year to pay Ms. Baric the cost of the first treatment plan that Coachman had approved. And this only happened after she personally intervened on behalf of Ms. Baric by writing to Coachman.
2. Ms. Vesna Baric's Testimony
Ms. Baric testified that she has been a registered massage therapist since 1996, and that she specializes in treating people with acute and chronic pain. Prior to becoming a massage therapist she was a Medical Radiation Technologist and thus she has the added skill of being able to read the x-rays of her patients. As well, she has taken a number of continuing education programs including a form of shiatsu massage called Suikodo that she uses to treat her patients. She stated that one quarter of her 3,500 client base are clients who have been involved in car accidents and have been referred to her by their doctors.
Ms. Baric testified that Ms. Hejnowicz came to see her in June 1999, and she assessed her and filled out the treatment plan form dated August 30, 1999. This treatment plan was approved by Coachman. She also filled out the second and third treatment plans on a referral by Dr. Ochocinski.
Ms. Baric testified that when Ms. Hejnowicz came to see her in June 1999, approximately six months after the accident, Ms. Hejnowicz was in a subacute phase - which means that she still had inflammation - and was in a lot of pain.
Ms. Baric testified that the short-term goals of Ms. Hejnowicz' massage treatment was to decrease the muscle spasms in her left hip rotator muscles, increase the circulation to her left lower limb, reduce pain and stiffness to her neck, back and shoulders and to stretch and lengthen the muscles which were not in spasm and improve her posture and gait. The long-term goals include preventing adhesions from forming around the scar tissue of the left hip, strengthening weak muscles and improving posture, so she would no longer need the assistance of a cane.
Ms. Baric testified that Ms. Hejnowicz will always have to watch that adhesions, which are very painful, do not form over the fracture site and the screws in her body. She stated that the adhesions form as a result of lactic acid build up and are relieved by massage therapy.
Ms. Baric also explained that massage therapy assists in decreasing pain by releasing histamines, which are natural painkillers released in the brain when nerve signals are sent to the brain as a result of touching the pain area through massage. Ms. Baric testified that Ms. Hejnowicz healed quickly after the first treatment plan and that she was relying less on her cane.
Ms. Baric testified that when Ms. Hejnowicz came back with a referral from Dr. Ochocinski for further massage therapy in the Spring of 2000 her pain condition had become chronic. She stated that against her better judgment she prepared a treatment plan for the six months recommended by Dr. Ochocinski. It was her opinion that Ms. Hejnowicz needed this treatment and that the better route instead was to prepare two three-month treatment plans which would probably be more acceptable by an insurer. In any case, this treatment plan as well as the third treatment plan prepared by her were rejected by Coachman.
Ms. Baric stated that the second and third treatment plans had basically similar goals to the first treatment plan. However, she noted that Ms. Hejnowicz' treatment in the chronic pain phase, where there was no inflammation, would be more aggressive in stripping away the adhesions and muscle spasms.
Ms. Baric testified that Ms. Hejnowicz will always be vulnerable to further soft tissue re-injury because of the nature of her car accident injuries. She pointed out that the pelvis is a central point in the body where muscles, tendons and bones attach and/or pass through this area. Due to her injuries in this central area there is a greater chance that Ms. Hejnowicz can re-injure herself in the ordinary course of carrying out her daily activities. As a result, in her view, Ms. Hejnowicz will continually be susceptible to chronic pain.
Ms. Baric testified that massage therapy has helped Ms. Hejnowicz cope with her chronic pain and has made a significant difference in Ms. Hejnowicz' ability to live her life in a normal fashion. It was her view that the massage therapy recommended by Dr. Ochocinski and outlined in the two treatment plans is both reasonable and necessary in assisting Ms. Hejnowicz in diminishing her chronic pain, which in turn allows her to continue working at her job and fulfilling her role as a wife and mother.
In cross-examination Ms. Baric was questioned on her financial gain in recommending massage therapy as well as the fact that she charged ten dollars more for a massage to an insurer than what a client directly pays. Ms. Baric provided a response, which was corroborated by Ms. Hejnowicz as noted above, and which I find reasonable and credible.
Ms. Baric stated that her primary job goal as a massage therapist is to heal people, and that like any professional providing a service she is entitled to remuneration. Regarding the $10 surcharge to insurance companies, she stated that insurers have a tendency not to pay their bills on time and that the surcharge is to make up for this fault.
As well, under cross-examination, counsel for Coachman pointed out that the treatment plan forms in dispute were not properly filled out. More specifically, Part 2 which asks for a description of the impairment and Part 3 of the form which asks for the name and address of the health practitioner, state they must be completed by the Health Practitioner who is approving the Treatment Plan, but in fact were completed by Ms. Baric.
Ms. Baric stated that these Parts, although filled out by her, were based on Dr. Ochocinski's referral slips which were attached to the treatment plans. She stated that if in fact the forms were not acceptable because they were not properly filled out Coachman did not notify her. She pointed out that Coachman had in fact accepted the treatment plan forms when they chose to have them assessed by a DAC. She saw no reason why Coachman would incur the expenses of two DACs if the treatment plan forms were not acceptable to them.
I agree with Ms. Baric's explanation. In my view, the treatment plans should not be rejected because of the minor defects in the way the forms were filled out. The forms which were filled out in great detail and were supported by Dr. Ochocinski's referral notes were accepted by Coachman. I agree with Ms. Baric that Coachman would not have expended the money on two DACs if the treatment plan forms with the supporting referral notes from Dr. Ochocinski were not acceptable to Coachman.
B. Coachman's Evidence
Coachman submits that Ms. Hejnowicz' claim for massage therapy is unreasonable and unnecessary. Coachman presented a number of medical reports to support its position. These reports include:
two clinical notes by Dr. Maurice Bent who had operated on Ms. Hejnowicz after the accident,
an Insurer's Medical by Dr. Geoffrey R. French,
a defence medical report by Dr. Gordon Hunter for Ms. Hejnowicz' tort claim,
three medical-legal reports requested by Ms. Hejnowicz' counsel - two reports by Dr. Robin Richards and one report by Dr. L. Todd Walters, and
two DAC reports dealing with the two treatment plans for massage that are in dispute.
For the following reasons, I give little weight to the medical and DAC reports that Coachman presented in support of its position that Ms. Hejnowicz' request for further massage therapy is neither reasonable or necessary.
1. Reports of Dr. Maurice Bent
Coachman presented two clinical notes by Dr. Bent, an orthopaedic surgeon in respect of two visits that Ms. Hejnowicz had with him at the Fracture Clinic at the North York General Hospital on March 30 and June 1, 1999. The first note consists of one paragraph and the second note is two short paragraphs.
I give no weight to Coachman's submission that because Dr. Bent does not discuss massage therapy in these notes that Ms. Hejnowicz' two treatment plans for massage should be rejected. In my view, the content of these two short notes clearly reflects follow-up visits with respect to Dr. Bent's surgery to repair Ms. Hejnowicz' injuries from the car accident. Moreover, at the time Ms. Hejnowicz saw Dr. Bent, massage therapy was not one of the modalities she was using to assist in her recovery. More significantly, when Ms. Hejnowicz did provide Coachman with her first treatment plan for massage on August 30, 1999, Coachman approved the treatment plan.
2. Dr. Geoffrey French's Report
In his Insurer's Examination report of October 15, 1999, Dr. French acknowledges in his diagnosis that Ms. Hejnowicz continues to suffer from pain as a result of the accident. He states:
She continues to have a pain limited restriction in the range of motion of her left hip associated with tenderness on the outer aspect of her left hip. She also has recurring discomfort in the anterior aspect of her left knee aggravated by kneeling, squatting and stair climbing. She has a residual problem with cramping in the calf muscles of her left leg aggravated by prolonged walking.
Dr. French does not make any negative credibility findings. In fact, he states: "[Ms. Hejnowicz] recounted her history in a straight forward and unemotional fashion without the use of colourful adjectives to describe her symptoms." She "made no obvious attempt to magnify her symptoms or her physical findings."
In response to the following question put by Coachman, "Is Ms. Hejnowicz receiving the correct treatment for injuries sustained in the motor vehicle accident? If change is required, can you recommend a treatment plan and what provisions, restrictions and time limits would you stress." Dr. French responded in part:
I believe that the treatment that Ms Hejnowicz received for her injuries was optimal. I agree that she does not require any further formal treatment. ... Her residual discomfort can be controlled with simple analgesic agents supplemented, if necessary, with analgesic creams or liniments and either ice or heat. I believe that she should be provided with a gym membership for a period of three months.
[emphasis added]
I give very little weight to this conclusion as a support of Coachman's position that further massage treatment is neither reasonable nor necessary.
First, Dr. French gives no basis as to why and with whom he agrees with that Ms. Hejnowicz does not require further formal treatment. Secondly, although the question put to Dr. French by Coachman was a broad question, I find it significant that Dr. French did not specifically address the issue of massage treatment in his report. At the time Ms. Hejnowicz saw Dr. French she was receiving massage therapy under a treatment plan approved by Coachman. Dr. French gave no reasons as to why massage therapy is no longer reasonable and necessary. Rather, he specifically comments that Ms. Hejnowicz should be provided with a gym membership. For this reason I prefer Ms. Hejnowicz' evidence that this Insurer's Examination came about as a result of her request for a gym membership, as opposed to whether she required further massage therapy.
Even if the Insurer's Examination with Dr. French was meant to deal with the issue of massage therapy, I can give it little weight because it was prepared long before the two treatment plans in dispute were requested by Ms. Hejnowicz.
3. Report of Dr. Gordon Hunter
According to Coachman, the report by Dr. Hunter, an orthopaedic surgeon, dated August 30, 2002 was prepared as a defence medical in Ms. Hejnowicz' tort claim. Coachman claims that this report stands for its position that Ms. Hejnowicz is not entitled to massage therapy because Dr. Hunter did not recommend massage therapy in his report.
I give no weight to this report as evidence of Coachman's position.
It is clear from his report Dr. Hunter specifically addresses and answers the one question put to him by the Insurer, namely, whether Ms. Hejnowicz sustained a permanent impairment of her left hip as a result of the car accident. In his response Dr. Hunter acknowledges that Ms. Hejnowicz has an impairment and that her "impairment will not improve and may deteriorate as the years go by."
As well, Dr. Hunter acknowledges that Ms. Hejnowicz continues to suffer from pain as a result of her injuries. However, he points out that he did not find Ms. Hejnowicz to be pain focussed and that "she did not appear to exaggerate her disability." As well, he stated "I think she tries to make little of her symptoms."
In short, this report confirms the seriousness of Ms. Hejnowicz' injuries, the pain that she suffers as a result of the injuries and her credibility regarding her pain. The issue of massage was not an issue which he was meant to address and therefore, he did not address it.
4. Reports by Dr. Robin Richards
Coachman presented two medical legal reports dated September 9, 2002 and April 15, 2003 from Dr. Robin Richards, Surgeon-in-Chief at Sunnybrook & Women's College Health Sciences Centre as proof that Ms. Hejnowicz did not need massage therapy because Dr. Richards does not comment on this modality in his reports.
I give no weight to Coachman's submission. It is very clear from the two reports that Dr. Richards as an expert in orthopaedic surgery was specifically commenting on Ms. Hejnowicz' future need of surgery as a result of her car accident injuries and, not on any other treatment modalities.
5. Report of Dr. L. Todd Walters
Coachman presented a medical-legal report of Dr. L. Todd Walters, undated but signed electronically on December 4, 2002, as another example where a medical practitioner did not comment on Ms. Hejnowicz' need for massage therapy and submits this as proof that Ms. Hejnowicz should not be entitled to massage therapy.
I give no weight to this submission. In his report, Dr. Walters, who is an occupational medical consultant, makes no recommendations about any form of treatment. The purpose of Dr. Walters' report, which he states on page one, was to evaluate Ms. Hejnowicz' "ability to return to her occupation at the time of her accident as well as her future vocational prospects." The report clearly deals with Ms. Hejnowicz' vocational history, a job site analysis and his opinion on the impact her physical injuries as a result of the car accident have had on her pre-accident vocation.
6. The DAC Reports
(a) DA C Report on the Second Treatment Plan
The second treatment plan requesting massage therapy, dated May 17, 2000, was disputed and sent to a DAC to be evaluated. The DAC examination was performed by Dr. T. S. Levy, a physician, and Mr. Euson Yeung, a physiotherapist, on August 1, 2000. The qualifications of the assessors are not noted in the report and there is no indication as to whether or not they have any expertise or experience in assessing on the issue of massage therapy.
In its report2 the assessors acknowledge Ms. Hejnowicz' complaint that she has "[l]eft buttock pain which is virtually constant occurring 90% of the time. ... The pain is worsened by sitting for more than 15 minutes, standing for more than 20 minutes, walking for more than 20-30 minutes or laying on her left hip in bed." No negative comments were made about her credibility.
In its "Diagnosis" the assessors diagnosed Ms. Hejnowicz' condition as "Weakness of left gluteus medius and piriformis muscles post open reduction, internal fixation of hip fracture-dislocation and referred pain to left knee."
After making this brief diagnosis, the assessors, without providing any explanation, conclude in one sentence that "These treatment are neither reasonable nor necessary at this point in time."
I give little weight to this conclusion. The assessors did not provide any basis or reasons for how or why the assessors came to their conclusion. The only comment on massage therapy mentioned in the report is the fact that in the past Ms. Hejnowicz had massage therapy. There is no discussion as to whether or not Ms. Hejnowicz had benefited from this massage therapy. Although, Ms. Hejnowicz complained that she has pain almost 90% of the time, there is no discussion as to why any further massage therapy would not be beneficial for her. In my view, before denying the treatment plan, at a minimum there should have been some reasons given for the denial. I therefore give the DAC's conclusion very little weight.
(b) DAC Report on the Third Treatment Plan
The third treatment plan requesting massage therapy, dated March 22, 2003, was disputed and sent to be evaluated by a DAC on July 4, 2003.
Unlike the first DAC, the second DAC assessment was performed by a Registered Massage Therapist, Trajano Alvarez, and reasons were given for the denial of treatment. As part of his reasons Mr. Alvarez states:
Although massage therapy may assist with temporary relief of pain, this form of therapy will not increase muscular strength or endurance which, in my opinion, would be the claimant's main objective.
It is clear from this comment that Mr. Alvarez acknowledges that massage therapy may assist in temporary relief of pain. As well, he notes and the main goal of Ms. Hejnowicz should be to increase muscular strength and endurance. What Mr. Alvarez does not address is the fact that Ms. Hejnowicz is very committed to increasing her muscular strength and endurance, but needs the assistance that the temporary relief massage therapy gives her to carry out her muscle strengthening and endurance. In my view, this is an important point.
On this point, I accept Ms. Hejnowicz' very credible evidence that when she gets the temporary pain relief from the massage therapy it gives her the ability to do more physically challenging activities, for example, climbing stairs. In turn, her ability to climb stairs increases her muscular strength and endurance. For this reason I accept Ms. Hejnowicz' evidence, supported by her massage therapist Ms. Baric, that massage therapy helps facilitate Ms. Hejnowicz' ability to work on increasing her muscular strength and endurance. In short, I prefer the practical experience of Ms. Hejnowicz' benefits from massage therapy over Mr. Alvarez' conclusion that massage therapy is neither reasonable nor necessary.
ANALYSIS, FINDINGS AND CONCLUSION
Section 14 of the Schedule provides in part that:
14.(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.
(2) The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,
(b) chiropractic, psychological, occupational therapy and physiotherapy services;...
The burden of proof rests with Ms. Hejnowicz to show that on a balance of probabilities that her request for massage therapy pursuant to the treatment plans dated May 17, 2000 and March 22, 2003 is reasonable and necessary pursuant to section 14 of the Schedule.
For the following reasons I find that Ms. Hejnowicz has discharged her burden.
The evidence is very clear, Ms. Hejnowicz suffered serious injuries as a result of her car accident. Ms. Hejnowicz' testimony as well as the medical reports submitted into evidence by Coachman including the DAC reports support the fact that Ms. Hejnowicz continues to suffer from chronic pain as a result of her car accident injuries. The evidence also shows that Ms. Hejnowicz has done her best not to be pain focussed and get on with her life.
A number of arbitrations have held that alleviation of pain is a worthwhile treatment goal.3 In the case of Glinka and Dufferin Mutual Insurance Company, Arbitrator Joachim states: "I accept the principle that pain relief, in and of itself, may be a legitimate treatment goal, provided that it does not encourage inappropriate or indefinite dependency or interfere with other aspects of rehabilitation." I concur with this principle.
In this case, I accept Ms. Hejnowicz' credible evidence that massage therapy relieves her pain and thus, allows her to engage in more active exercise modalities to improve her strength and endurance and to live a more balanced and normal life. In short, I do not find that Ms. Hejnowicz is solely reliant and dependent on massage therapy as a means of pain relief.
Coachman submits that there is no supporting medical evidence for Ms. Hejnowicz' subjective perception that she feels better with massage therapy and that if I were to find that massage therapy was reasonable and necessary based on Ms. Hejnowicz' subjective perceptions it would, as stated in the Glinka case, amount to a "blank cheque to the service industry for unlimited treatment." I disagree.
In this case Ms. Hejnowicz is supported in her claim for massage therapy by the medical evidence which shows that she suffers from pain as a result of the accident, by her family doctor's referrals for massage therapy as well as her treating registered massage therapist, Ms. Baric, whose testimony I found to be both credible and consistent with Ms. Hejnowicz' testimony that massage alleviates Ms. Hejnowicz' pain.
I give no weight to Coachman's submission that I should draw an adverse inference because Ms. Hejnowicz did not call Dr. Ochocinski as a witness at the arbitration in support of her claim. At the commencement of the hearing, Coachman's counsel stated that if Ms. Hejnowicz intended to call Dr. Ochocinski to testify that he had recommended massage therapy for Ms. Hejnowicz, then Coachman accepted this fact and stated that there would be no need to call Dr. Ochocinski for cross-examination.
In my view, it is more likely than not if Coachman had serious concerns about Dr. Ochocinski's recommendation for massage therapy it would not have made this concession. Counsel for Ms. Hejnowicz by relying on this concession from Coachman took a practical and common sense approach by not calling Dr. Ochocinski as a witness.
There is only one issue in this arbitration with not a very high dollar value. By relying on Coachman's concession and not calling Dr. Ochocinski, time and money were saved in this arbitration. In short, Ms. Hejnowicz' counsel was adhering to the principles that arbitration, which is less formal than the court process, should aim for a less expensive and speedier resolution of issues in dispute.
In conclusion, I give little weight to Coachman's evidence in support of its position that the treatment plans should be rejected as being unreasonable and unnecessary. The medical reports presented by Coachman clearly recognize the seriousness of Ms. Hejnowicz' injuries as a result of the accident, and the pain that she continues to suffer as a result of these injuries. None of these medical reports had any adverse comment to make about Ms. Hejnowicz' credibility. In fact,the tort defendant report specifically noted that Ms. Hejnowicz down plays her symptoms. It is also clear on the face of it that these reports (with the exception of the DACs) were not meant to address the issue of whether or not Ms. Hejnowicz required massage therapy. I therefore, give no weight to Coachman's submission that because the reports do not discuss massage therapy therefore Ms. Hejnowicz' request for massage therapy is neither reasonable nor necessary.
I also, give no weight to the conclusion of the first DAC dated August 1, 2000 because of the superficiality of the report and more specifically the lack of reasons for the conclusion it came to. While I give some weight to the second DAC on July 4, 2003, in that it acknowledges that massage therapy can give temporary relief to pain and that Ms. Hejnowicz should focus on increasing her muscular strength and endurance, I note that it does not address the important point of how the massage therapy can support the goal of Ms. Hejnowicz to increase her muscular strength and endurance. On this latter point, I accept the practical experience of Ms. Hejnowicz supported by her massage therapist and the case law which states that pain relief is a legitimate treatment goal.
Accordingly, for all of these reasons, I find on a balance of probabilities that the massage therapy requested by Ms. Hejnowicz is both reasonable and necessary. I therefore, find that pursuant to section 14 of the Schedule Ms. Hejnowicz is entitled to the medical benefit of two treatment plans dated May 17, 2000 and March 22, 2003 in the amount of $5,190 with interest calculated according to subsection 46(2) of the Schedule.
EXPENSES:
The parties chose not to address the issue of expenses in their submissions. I remain seized on this matter and if needed the parties may now speak to this issue.
March 19, 2004
Joyce Miller Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 38
FSCO: A03-000780
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
BEATA HEJNOWICZ Applicant
and
COACHMAN INSURANCE COMPANY Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Coachman shall pay Ms. Hejnowicz a medical benefit for massage therapy pursuant to two treatment plans dated May 17, 2000 and March 22, 2003 in the amount of $5,190 claimed pursuant to section 14 of the Schedule.
Coachman shall pay Ms. Hejnowicz interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.
If needed, the parties may now speak to the issue of expenses.
March 19, 2004
Joyce Miller Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
- Dated August 1, 2000, the same date as the assessment.
- Walker and State Farm Mutual Automobile Insurance Company (OIC P96-000036, December 3, 1998); Violi and General Accident Assurance Company of Canada (FSCO A-98-000670, August 20, 1999), confirmed by appeal decision (FSCO P99-00047, September 27, 2000) and Palmer and State Farm Automobile Insurance Company (FSCO A00-00186, December 20, 2001). Sorokin and Wawanesa Mutual Insurance Company (FSCO A00-001163, February 9, 2004) and Glinka and Dufferin Mutual Insurance Company (FSCO A99-000849, November 21, 2000)
