Neutral Citation: 2004 ONFSCDRS 57

FSCO A02-001364

BETWEEN:

MARJORIE BROWN

Applicant

and

PILOT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

February 16 and 17, 2004, at the offices of the Financial Services Commission of Ontario

Appearances:

Rikin Morzaria for Ms. Brown

Edmund Kent for Pilot Insurance Company

The Applicant, Marjorie Brown, was injured in a motor vehicle accident on January 3, 1999. She applied for and received certain statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ However, Pilot refused to pay other benefits claimed by Ms. Brown. The parties were unable to resolve the resulting disputes through mediation and Ms. Brown applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In this hearing, Ms. Brown seeks an order requiring Pilot to pay for:

physiotherapy treatment;
an adjustable bed;
a scooter accessible van:
interest on the above amounts.

Each side also claims its hearing expenses.

Ms. Brown is not entitled to an order requiring Pilot to pay for any of the above items.
If required to do so, I will deal with the issue of hearing expenses in accordance with the procedure stipulated by the Dispute Resolution Practice Code.

All three items were claimed under section 14 of the Schedule as medical benefits. At the outset of the hearing, and again during argument, I raised a question as to whether the scooter accessible van was not more appropriately claimed under section 15 of the Schedule as a rehabilitation benefit. For the reasons set out below under Issue 3, I find that Ms. Brown's entitlement to a scooter accessible van is governed by section 15 of the Schedule, not by section 14 of the Schedule.

I agree that Ms. Brown's entitlement to physiotherapy and an adjustable bed, Issues 1 and 2, are governed by section 14 of the Schedule. Physiotherapy is specifically mentioned in section 14(2)(b) and an adjustable bed is, in my opinion, an assistive device within the meaning of section 14(2)(f). Accordingly, Ms. Brown must establish first, that she suffers from one or more impairments as a result of the accident, second, that the physiotherapy services and the adjustable bed she claims were recommended by a member of a health profession for the treatment of these impairments, and third, that these forms of treatment were reasonable and necessary.

At the outset of the hearing, it appeared that Pilot only contested Ms. Brown's claim to physiotherapy and an adjustable bed on the ground that they were not reasonable and necessary. However, during the course of the hearing, Pilot's counsel also sought to cast doubt upon the causal relationship between the motor vehicle accident and the impairments for which Ms. Brown sought payment of the disputed items. I must, therefore, begin my analysis of Issues 1 and 2 by determining whether, on the one hand, the accident caused or contributed in a material way to the impairments for which these items are claimed or whether, on the other hand, those impairments existed prior to the accident and simply continued after the accident without any material, accident-related aggravation. I will then deal with the question of whether the disputed items constitute reasonable and necessary treatment.

Causation: pre-accident health

Ms. Brown was 45 years old at the time of the accident in January 1999. She had been an assembly line worker from at least 1979 to 1988. Apparently, as a result of the repetitive nature of that employment, she developed neck and shoulder pain. In 1982, this condition was diagnosed by Dr. Walter Silecky, a rheumatologist, as "fibrositis".²

In 1989, Ms. Brown secured employment in an office environment but her pain continued and in 1996 she applied for long-term disability benefits. In response to a letter from a rehabilitation consultant, her family doctor, Dr. G.M. Luck, stated that Ms. Brown's neck and shoulder pain "had spread" to the thoracic and lumbar areas of her spine.³

In 1997, Ms. Brown applied for a disability pension from the Canada Pension Plan. Dr. Luck supplied a supporting diagnosis of "cervical, thoracic and lumbar strain" and noted that she "has had intermittent neck & back pains for many years...since 1981".⁴

Ms. Brown was seen by another rheumatologist, Dr. Heather McDonald, in July 1998, six months before the accident. Ms. Brown apparently informed Dr. McDonald that she had been suffering from fibromyalgia "for approximately 20 years" and that "currently she hurts all over".⁵

Of course, the issue of causation does not arise merely because Ms. Brown had significant pre-accident health problems. It arises from two additional facts directly relevant to Issues 1 and 2. First, Ms. Brown received a great deal of physiotherapy treatment for her pre-accident health problems, and second, Ms. Brown's pre-accident pain interfered with her ability to sleep. The medical documentation supporting the finding of these two facts is found in Dr. Luck's clinical notes and records and can be summarized as follows.

In a report to Dr. Luck date July 7, 1981, Dr. C.H. Vipond, a physical medicine and rehabilitation specialist, noted:

Mrs. Brown has been attending a Physiotherapist since January 1981 who is giving her deep heat (ultrasound on several occasions) and manual massage and manipulation. Mrs Brown finds these treatments helpful in relieving pain and keeping her cervical spine more mobile and feels that these treatments have enabled her to keep on working.⁶

In an Admission Report dated February 2, 1984, Dr. J.D. Haynes, a specialist employed at the Workmen's Compensation Board's Hospital and Rehabilitation Centre, observed that since seeing Dr. Vipond

...this lady has had a great deal of physiotherapy,...she has had extensive physiotherapy with the use of many modalities...She states that physiotherapy does assist her and from time to time, she believes has been the factor which kept her in the work force. She would go to the physiotherapy department in the evenings.⁷

Dr. Luck's clinical notes of March 24, 1986, March 17, 1988 and August 7, 1990 refer to Ms. Brown's insomnia and problems sleeping; his clinical note of January 22, 1992 indicates that on that date he referred Ms. Brown "to Burt's physio for therapy on the right shoulder and arm".⁸

This latter note appears to be a reference to Ruth Burt, the author of the treatment plans submitted with respect to Issues 1 and 2.

Ms. Brown was seen by Dr. M.C. Mason, a specialist in physical medicine and rehabilitation, on June 29, 1992. He noted in his report to Dr. Luck that Ms. Brown's "long-standing pain in the neck, right and upper limb" had worsened and that "she is awakened at night by a combination of her pain, and upper limb paresthesia and numbness ". He observed that "because her pain is chronic... I have suggested she is a good candidate for regular use of night time anti-depressant medication". In the same report, Dr. Mason made the following comments about physiotherapy:

She has been attending for physiotherapy once again since January, at Central Park Physiotherapy (therapist Ruth). This consists of range of motion exercises, modalities for pain relief (she finds laser of value and uses TNS at home). She is also swimming and using a whirlpool on her own.

She has found the physiotherapy of symptomatic value now and in the past.⁹

This appears to be another reference to Ruth Burt and links her to the Central Park Physiotherapy Centre. Only two brief progress reports were entered into evidence from this Centre, both dated in February 1996.¹⁰ Despite the fact that one of those reports was signed by Ms. Burt, both were entered as part of Dr. Luck's clinical notes and records. Ms. Burt's own reports dealt only with Ms. Brown's post-accident treatment.

Ms. Brown saw Dr. Mason again on October 10, 1996. He confirmed that "she continues to have diffuse areas of musculoskeletal discomfort including the neck, both shoulders, and the low back" and then went on to observe: "she sleeps poorly, awaking during the night, and having difficulty positioning herself comfortably". As he had done in his earlier report to Dr. Luck, Dr. Mason also commented on the issue of physiotherapy treatment. He wrote:

Mrs. Brown is a 43 year old woman who presents with diffuse musculoskeletal pain. She presents with considerable muscle tension and tightness that appears to be a combination of true mechanical limitations of soft tissues (especially at the left shoulder), but also with considerable voluntary muscle tightening and splinting, particularly of the neck and low back.

I have explained to Mrs. Brown that she has to learn to relax her musculature better and move the neck and back in a more normal manner, and if she can do so, and can continue to improve the range of motion of those areas, her symptoms should continue to improve.

I think she has had an episode of frozen shoulder on the left side, and this should also continue to improve with attempts at increasing range of motion.

She is currently attending physiotherapy, and I reviewed the physiotherapist note. Although Mrs. Brown has been going for considerable length of treatments (January 30 to present time, 84 treatments), the treatment she is receiving appears to be appropriate from a physical standpoint.

However, as I expressed to Mrs. Brown today there is a significant component of stress/psychological factors with respect to her presentation, particularly the evidence of holding the muscles very tightly. She herself attributed the onset of her symptoms to the significant stress that was occurring in her work place. She believes that the stress factors are now not significant, but I disagree given the considerable muscle tension demonstrated on examination today. I suspect that the stresses are no longer an issue to her consciously because she is off work, due to her physical symptoms. I would strongly recommend that she be involved in some treatment for stress and perhaps depression (certainly her night-time awakening suggests a depressive illness that may be masking as an increase in somatic symptoms). She seemed to accept that it would be reasonable to get involved in counselling or other forms of intervention. I will leave this to the discretion of you and the patient.

On a physical medicine standpoint the most significant factor is gradually increasing her range of motion and strength, and her physiotherapist is attempting this. I have no other suggestions concerning physical management.¹¹

On January 16, 1998, at the request of the Canada Pension Plan, Ms. Brown was examined by Dr. Y. Kwamie, a psychiatrist. He found no basis for a psychiatric diagnosis and declined to comment on her stated belief that she had been suffering from "fibrositis-fibromyalgia" for many years. In recording her complaints, however, Dr. Kwamie noted: "she has both sleep onset difficulty and intermittent awakening".¹²

Ms. Brown's last examination before the accident by a medical specialist was the examination in July 1998 by Dr. McDonald, the rheumatologist referred to earlier. Dr. McDonald noted that Ms. Brown was "in significant distress, walking with a somewhat antalgic gait". She stated that the "assessment of fibrositic tender points was very difficult as the patient complained of quite severe pain with fingertip pressure over the entire neck, thoracic and lumbar region". Dr. McDonald nevertheless expressed the opinion that the pain Ms. Brown "experiences in small joints in her hands is likely part of the fibromyalgia type spectrum". Her report also makes the following comments about Ms. Brown's symptoms and further treatment:

While this passage does not refer specifically to physiotherapy, I find that physiotherapy of the type Ms. Brown had previously received falls within the parameters of the treatment recommended by Dr. McDonald.

Dr. Luck's monthly clinical notes for the period July 1998 to January 1999 do not indicate that there was any significant change in Ms. Brown's condition in the last six months leading up to the accident. Nor is there any evidence to suggest that Ms. Brown's pre-accident health problems diminished or disappeared after the accident.

Causation: accident injuries

The motor vehicle accident of January 1999 was a head-on collision. Hospital records indicate that as a front seat passenger, Ms. Brown's head struck and cracked the windshield and that her forehead and chest sustained lacerations. Ms. Brown complained at the hospital of pain in the chest, left shoulder, clavicles, neck, rib and pelvis. Radiological examinations of the chest, pelvis, cervical, thoracic and lumbar spine revealed no new fracture, bony injury or other abnormality except for some degenerative spurring in the cervical spine.¹⁴ A radiological examination of the right knee showed a joint effusion but no fracture or bony injury; a radiological examination of the skull revealed no abnormalities and a radiological examination of the nasal and facial bones showed no evidence of fracture.¹⁵

Dr. Luck's Disability Certificate of January 28, 1999 described Ms. Brown's injuries as follows: "lacerations to the forehead and right eyelid, head injury, cervical strain, thoracic and lumbar strain, contusions to both legs". Dr. Luck also noted he had treated Ms. Brown for "fibromyalgia - causing neck and upper back pains since 1979"; later in the Certificate, Dr. Luck added the following: "neck pain & back pain - pain in the shoulder and arms - had some of these before but substantially worse since the accident".¹⁶

Ms. Brown was seen in January 1999 by Ms. Ruth Burt, the registered physiotherapist who submitted the treatment plans relevant to Issues 1 and 2. In her examination-in-chief at the hearing, Ms. Burt stated that she "first saw" Ms. Brown in January 1999 and that she subsequently treated Ms. Brown for a total of 107 sessions. On cross-examination, Ms. Burt acknowledged that she had treated Ms. Brown for neck and back problems "many years before". However, Ms. Burt was not asked by either counsel whether her pre-accident treatment of Ms. Brown was fully reflected in her single progress note of February 1996. Nor was Ms. Burt asked whether, in her opinion, the impairments for which physiotherapy was needed before the accident were different from the impairments for which she recommended the physiotherapy treatment and adjustable bed at issue in this proceeding. This question was also not addressed in any of Ms. Burt's reports or treatment plans.

Instead, in order to establish that the accident caused or contributed to impairments requiring the physiotherapy treatment and adjustable bed recommended by Ms. Burt, Ms. Brown's counsel relied upon the following reports.

Dr. Anthony Newall, a physical medicine and rehabilitation specialist, wrote a report dated August 16, 2000 in which he repeated the opinion of Dr. Longdon, a psychiatrist, to the effect that Ms. Brown was suffering from a conversion disorder. Dr. Newall stated that this disorder caused Ms. Brown "real physical, cognitive and speech impairments" which "need to be treated".¹⁷ However, Dr. Newall did not suggest that these impairments required further physiotherapy or an adjustable bed. On the contrary, in an earlier report, dated November 26, 1999, Dr. Newall clearly linked the need for any ongoing physiotherapy to Ms. Brown's fibromyalgia.¹⁸

Dr. Diana Velikonja, a neuropsychologist, wrote a report dated February 12, 2001, in which she repeated the opinion of Anita Gross, a physiotherapist, to the effect that Ms. Brown "would benefit from a course of specific manual therapy and exercise".¹⁹ However, Dr. Velikonja expressed no opinion about whether that treatment was required by Ms. Brown's fibromyalgia or by the injuries sustained in the accident. Nor did Ms. Gross in her own report dated February 6, 2001.²⁰

Dr. B.J. Dobson, a medical doctor, wrote a report dated March 9, 2001 in which she referred to the results of a routine quantitative EEG (qEEG) conducted by Howard Galin on May 24, 2000. According to Ms. Brown's counsel, these results pointed to "a possible organic basis" to her complaints. However, in the only portion of her report dealing with the question of physiotherapy, Dr. Dobson recommended "a consult from a physiotherapist specializing in fibromyalgia".²¹

Dr. M.B. Weber, a neurologist, wrote a report dated July 24, 2000 in which he maintained that the diagnosis of fibromyalgia was "never absolutely confirmed according to a rheumatologist's examination" and that Ms. Brown "clearly sustained a grade III concussion in the trauma of the motor vehicle accident of January 3^rd, 1999".²² In a report dated September 12, 2000, Dr. Weber expressed the opinion that the results of a conventional EEG conducted on May 17, 2000 and the qEEG conducted on May 24, 2004 (at his request) provided "objective evidence in support of the clinical diagnosis of a traumatic brain injury followed by symptoms of the post-traumatic/concussion syndrome".²³ However, when Dr. Weber turned to the question of treatment for this syndrome in his report dated July 24, 2000, he referred only to various drugs, not to physiotherapy.²⁴

Dr. E.R. Tunks, a psychiatrist, wrote a report dated April 2, 2001 in which, repeating diagnoses obtained from unidentified sources, he stated that Ms. Brown had "cognitive effects associated with closed head injury, diffuse brain injury, cerebellar injury affecting the left side, TMJ injury right side, post traumatic chronic headache, neck and low back persistent pain (I don't know to what degree this tenderness existed pre-accident) ". The final paragraph of Dr. Tunks' report then contained the following sentence: "For the brain injury, long-term rehabilitation and functional support through physiotherapy and occupational therapy will be needed."²⁵ However, Dr. Tunks did not explain why physiotherapy would be needed to deal with a brain injury.

Dr. Harold Becker, a medical doctor, wrote a report dated February 26, 2003 in which he stated that while Ms. Brown "sustained serious head injuries", she "would have been expected to recover within months, I believe" but instead became "a victim of various consultants who concluded that she sustained permanent brain damage where the clear signs of Conversion Disorder in which she manifested non-organic gait and speech impediment were interpreted as manifestations of permanent brain damage and even progressive dementia."²⁶ Ms. Brown's counsel also referred to pages 17 to 19 of Dr. Becker's report but these pages dealt with the issue of catastrophic impairment which is not before me; they say nothing about the treatment issues which are before me.

A Catastrophic Impairment Report from a Designated Assessment Centre was completed on October 30, 2003. Ms. Brown's counsel referred me to the Executive Summary which confirmed a diagnosis of conversion disorder and contained the following paragraph:

Ms. Brown is reported to have suffered from chronic pain and fibromyalgia prior to the motor vehicle accident (MVA) of January 3, 1999. One year prior to the MVA, she had seen a psychiatrist who did not recognize any acute emotional pathology but did reference the fibromyalgia at the time. Thus, there appears to be no clear history of a diagnosable psychiatric/psychological condition in the immediate pre-accident period. Moreover, the available history evidence suggests a marked decline in her functional status post traumatically. As such, Dr. Salmon and Dr. Rosenblat deemed her psychological/psychiatric impairments as rated to be accident related.²⁷

One of the DAC assessors, Dr. Henry Rosenblat, a psychiatrist, also expressed the following opinion:

Despite the fact that there was evidence of impairment prior to the accident, her degree of cognitive problems, speech impairment and gait problems are directly related to her conversion disorder is of such a magnitude that I would consider her to be catastrophically impaired. It is my opinion that her cognitive problems are primarily relate [sic] to her conversion disorder and not a brain injury in that they are inconsistent and out of keeping in severity with degree of head injury.

I do not feel that there is evidence of malingering.²⁸

Of course, this DAC report dealt with the issue of catastrophic impairment, not the treatment issues which are before me.

A Medical Rehabilitation Report from a Designated Assessment Centre was completed, in part, by Dr. W. Longdon, a psychiatrist, on February 10, 2000. Dr. Longdon found that Ms. Brown's speech and articulation problems were not accounted for by organic pathology but rather by a conversion disorder which was not intentionally produced or feigned. Dr. Longdon wrote: "the basic goal of the treatment of conversion disorder is to help the patient cope with her symptoms rather than to eliminate them. In short, the aim is palliation rather than out right cure".²⁹However, it is clear from the passage preceding this statement that the treatment Dr. Longdon was referring to was psychotherapy or speech therapy, not physiotherapy.

In order to counter Ms. Brown's assertion that the accident caused or contributed to impairments requiring the physiotherapy treatment and adjustable bed recommended by Ms. Burt, Pilot's counsel relied upon the following reports.

Dr. S. Jiaravuthisan, a neurologist, saw Ms. Brown soon after the accident (February 17, 1999) and referred her for a CAT scan in order to determine whether or not she had a partial Horner's syndrome. The results of the CAT scan showed that Ms. Brown had neither a Horner's syndrome nor any other clinically significant abnormality.³⁰

Dr. Vera Bril, the neurologist at The Toronto Hospital through whom Dr. Jiaravuthisan arranged the CAT scan, also examined Ms. Brown and, in a report dated April 8, 1999, wrote: "we do not find evidence of neuromuscular or neurological damage".³¹

Dr. Lawrence Tuff, a psychologist, and Dr. Daniel Bird, a consultant in neuroscience and behavioural science, wrote a report dated December 15, 1999, which concluded that Ms. Brown "sustained a minor (mild) closed head injury" but that "given the absence of any negative prognostic indicators,...any post-concussive symptoms should have reasonably resolved by this time". These assessors noted "major functional overlay with marked somatic pre-occupation and histrionic features" and stated that Ms. Brown satisfied the criteria for a DSM-IV diagnosis, Somatoform (Pain) Disorder (Chronic).³²

A Medical Rehabilitation Report from a Designated Assessment Centre was completed, in part, by Michael Drinkwater, a physiotherapist, on February 7, 2000. He wrote:

"Certainly if it is the opinion of the other assessors that her issues lie outside the physical domain then clearly any further physiotherapy treatment is not going to address these issues".³³

Dr. B.J. Dobson's discharge note dated March 9, 2001 indicated that after spending the period from January 15 to February 7, 2001 in the "Specialized Rehab and Older Adult" unit of one of the Hamilton Regional Hospitals, the diagnosis most responsible for affecting length of stay was "mild brain injury" and other diagnoses affecting length of stay was "factitious disorder".³⁴ According to an excerpt from an unidentified but undisputed publication entered into evidence at the hearing, the diagnostic criteria for factitious disorder are as follows:

A. Intentional production or feigning of physical or psychological signs on symptoms.

B. The motivation for the behavior is to assume the sick role.

C. External incentives for the behavior (such as economic gain, avoiding legal responsibility, or improving physical well-being, as in Malingering) are absent.³⁵

Causation: analysis and conclusion

In my view, the medical evidence, taken as a whole, does not establish that the accident of January 3, 1999 caused or contributed in a material way to the impairments for which Ms. Brown may have required the physiotherapy treatment and adjustable bed recommended by Ms. Burt.

That is not to suggest that Ms. Brown sustained no impairments as a result of the accident of January 3, 1999. The evidence identifies several possible impairments. She may have sustained a brain injury and a post-traumatic/concussion syndrome, as suggested by Dr. Weber. She may have developed a conversion disorder, as suggested by Drs. Longdon, Rosenblat and Becker. Then again, Ms. Brown's post-accident behaviour may have satisfied the diagnostic criteria of either a Somatoform (Pain) Disorder (Chronic), as suggested by Drs. Tuff and Bird, or a factitious disorder, as suggested by Dr. Dobson.

However, there is no evidence that the conversion disorder, the Somatoform (Pain) Disorder (Chronic) or the factitious disorder would have required treatment of the type recommended by Ms. Burt. In my view, it is only a diagnosis of post-traumatic/concussion syndrome which has the potential to establish a causal link between the accident and Ms. Brown's alleged need for the treatment recommended by Ms. Burt. This potential arises from evidence before me which could, arguably, support three findings: first, that dizziness is a recognized symptom of a post-traumatic/concussion syndrome, second, that Ms. Brown complained of dizziness after the accident, and, third, that Ms. Brown's complaints of dizziness dictated the need and the nature of the treatment recommended by Ms. Burt.

Still, these findings alone would not be sufficient to establish the required causal link; they would need to be accompanied by a prior foundational finding that Ms. Brown did indeed sustain a post-traumatic/concussion syndrome as a result of the accident. I am not prepared to make this foundational finding for two reasons.

First, in his report dated July 24, 2000, Dr. Weber stated that Ms. Brown had been suffering from migraine headaches since the early 1980s. In his view, it was "not a quantum leap to presume" that both these headaches and Ms. Brown's complaints of "widespread pain and tenderness" (which others called fibromyalgia) were caused by a condi tion which he called "neurogenic inflammat ion". In Dr. Weber's opinion, the head injury Ms. Brown sustained in the accident of January 3, 1999 aggravated this condition and caused her to develop a "constellation of posttraumatic neurological symptoms...that correspond well with the published medical literature on the post-traumatic/concussion syndrome". Dr. Weber, therefore, challenged Dr. Newall's opinion (as expressed in his report dated November 26, 1999³⁶) that there was no neurological basis for Ms. Brown's complaints. Dr. Weber wrote:

Dr. Newall is incorrect when he states that the patient had no neurologic symptomatology to support an organic neurological condition. Clearly her symptomatology fits well the definition of the post-traumatic/concussion syndrome and her headaches fit well the definition of (posttraumatic) migraine. His statement that she had no pre-accident neurological condition is also faulty for she had a clear-cut past history of headaches which likely could be described as migraine.³⁷ [emphasis in original]

As I understand Dr. Weber's opinion, it was based, at least in part, on the factual assumption that Ms. Brown had been suffering from migraine headaches since the early 1980s. I acknowledge that, as previously indicated, Dr. Weber's opinion was also based, at least in part, on the results of a conventional EEG conducted on May 17, 2000 and a qEEG conducted on May 24, 2000. Nevertheless, insofar as Dr. Weber's opinion was based on the former as opposed to the latter, it is not supported by the substantial body of evidence before me dealing with Ms. Brown's pre-accident health. This evidence does not establish a "clear-cut" history of pre-accident migraine headaches. Indeed, Dr. Weber's own description of Ms. Brown's "past health" noted that "she did complain of headaches of a lessor degree. She is not aware of the frequency of those headaches prior to the motor vehicle accident". Moreover, while his report confirmed that he had "briefly reviewed the file of Dr. Geoffrey Luck that ran from January, 1981 to 1999", his report also confirmed that "little mention was made of headaches in Dr. Luck's file on this patient and what mention there was of such headaches was insufficiently detailed to determine of [sic] these were migraine".³⁸ The same could be said of the rest of the medical documentation before me dealing with Ms. Brown's pre-accident health.

The second reason I reject Dr. Weber's opinion is that it was not shared by any of the other neurologists whose reports were produced before me. Though not himself a neurologist, this point was made by Dr. Newall in his report dated August 16, 2000 wherein he wrote:

There were then two reports from Dr. Weber, Neurologist who focuses his report on his diagnosis of a post-traumatic migraine. He points out that Ms. Brown suffered a head injury and suffered diffuse axonal injury. However, he failed to address the issue of the major neurologic manifestations for Ms. Brown. All evaluators to-date have failed to find an organic basis for Ms. Brown's speech deficit, cognitive deficits and movement disorders. Dr. Weber does not address these and focuses instead on the migraine headaches which he feels is post-traumatic. He spent some time discussing post-traumatic concussion syndrome and the concept of diffuse axonal injury which certainly in this particular case, is not in dispute. We are completely unable to explain the nature of the movement disorder, speech disorder, and cognitive deficits manifested by Ms. Brown. Diffuse axonal injury does not explain such marked problems as described above. For an expert opinion, of course this should be referred to a neurologist but all neurological examinations, with the exception of Dr. Weber who does not address these issues, have failed to find an organic basis for Ms. Brown's problems.³⁹

While he did not mention them by name, Dr. Newall was clearly referring to Drs. Jiaravuthisan and Bril, the neurologists previously mentioned. A third neurologist, Dr. Robert J. Duke, expressed a similar opinion in his report to Dr. Tunks dated October 31, 2001. He wrote:

I am going to go out on a limb here Eldon, by stating that I think the vast majority of her features are non-organic. I find it hard to believe also that someone could be left with such impairments and yet was deemed fit for discharge directly from the emergency room in Oshawa. While I cannot prove that she has not had an epileptic seizure, I am not hearing any convincing evidence to make me label her or treat her at this point.⁴⁰

Where Dr. Tunks is concerned, I should note that I accord no weight to his statement that Ms. Brown needed physiotherapy for a brain injury. This statement was contained in Dr. Tunks' report dated April 2, 2001. As previously mentioned, this report did not identify the basis for Dr. Tunks' opinion that Ms. Brown had sustained a brain injury. Still, after reviewing Dr. Tunks' clinical notes and records which were produced in evidence, I consider it extremely likely that he was relying upon Dr. Weber's reports, all of which were written in the year 2000 and two of which appear in Dr. Tunks' clinical notes and records. However, it is not clear from these records what effect Dr. Duke's report of October 31, 2001 may have had on Dr. Tunks' belief that Ms. Brown had sustained a brain injury. In view of this uncertainty, I am not prepared to rely upon Dr. Tunks' statement that Ms. Brown needed physiotherapy for a brain injury.

Based on the foregoing analysis of the evidence before me, I conclude that the accident of January 3, 1999 did not cause or contribute in a material way to the impairments for which Ms. Brown may have required the physiotherapy treatment and adjustable bed recommended by Ms. Burt. I find it more likely that if Ms. Brown required such treatment after the accident, she did so by reason of her ongoing pre-accident impairments, in particular, her fibromyalgia, her muscle tightening and tension, her antalgic gait and her problems sleeping.

In the event I have made some error in reaching this conclusion, I turn next to the question of whether the treatment recommended by Ms. Burt was reasonable and necessary. In doing so, I will assume that the accident either materially aggravated or caused the impairments for which Ms. Burt recommended physiotherapy treatment and an adjustable bed.

Reasonableness and necessity of the treatment: the recommendations

Part 2 of the treatment plan form⁴¹ completed by Ms. Burt on November 10, 2001 is labelled impairment/disability; it required her to describe any disability resulting from impairment caused by the automobile accident. Ms. Burt's entry read: "head injury, frontal right eye orbit # cog & memory problems, left ataxia, ? seizures, orthopaedic impairments due to neurological adaptation". This entry said nothing about the impairments/disabilities that Ms. Burt was competent to describe and treat. Nevertheless, the treatment plan was accompanied by a letter of the same date in which Ms. Burt did describe the impairments/disabilities which she proposed to treat. The letter stated that Ms. Brown was having two kinds of problems: first, maintaining her "cardiovascular fitness, balance, muscle strength, and energy levels" and second, performing "in and out of bed transfers and lay to sit [position changes] in bed".⁴² I, therefore, find that these were the impairments/disabilities for which Ms. Burt recommended physiotherapy treatment and an adjustable bed.

To help Ms. Brown improve her cardiovascular fitness, balance, muscle strength and energy levels, Ms. Burt recommended a particular kind of physiotherapy: supervised aqua therapy in a heated pool. In an earlier letter dated July 31, 2001, Ms. Burt had stated that "pool exercise is the most recommended activity since it reduces adaptive muscle tightening by eliminating gravity".⁴³ In her letter dated November 10, 2001, Ms. Burt characterized this kind of treatment as a continuation of the kind of therapy which Ms. Brown had already been receiving in her own swimming pool at home. Ms. Burt wrote:

The availability of an outdoor home pool had facilitated the recovery of her strength and endurance by allowing her multiple shorter exercise sessions, in a supported, minimally distracting environment to reduce negative muscle and joint adaptation and neurological reaction (increased myoclonic activity, confusion and distraction). This home setting has also minimized fatigue caused by travel. Pilot Insurance rejected extended heating of her pool.

Her muscle bulk and strength have improved and her endurance in the pool has increased from 20 to 40 or 45 minutes of light activity up to 3x per day. It is important that she maintain these gains over the winter while her pool is not available to maintain her functionality in her home and social environment. Cool or even normal temperature pools increase her neurological reactions (myoclonic activity, confusion) thus, for safety, a warm pool (90 degrees plus) is recommended.⁴⁴

The total cost of providing aqua therapy in a public pool was not clearly set out in the treatment plan or explained by Ms. Burt at the hearing. The amount shown on the face of the treatment plan was $1,435.75 but this total estimate was clearly not arrived at by adding up the subtotals also listed in the treatment plan. Moreover, those subtotals may not have properly reflected all component costs. Based on the information in the treatment plan and Ms. Burt's accompanying letter, the component costs fell under three headings and can be estimated as follows: first, access to a heated pool at a cost of $26 per session, two sessions per week, for six months, subtotal: $1,352; second, transportation to and from the pool by taxi at a cost of $40-$44 per session, two sessions per week, for six months, subtotal: $2,288; supervision in the pool by "a physiotherapy assistant ", subtotal: $4,189, i.e, approximately $160 per session. If these subtotals are accurate, the total estimated cost of the recommended treatment would have been $7,829, almost six times the amount shown on the face of the treatment plan. Even if they are not entirely accurate, the recommended treatment definitely involved three sets of component costs and I find it extremely likely that its estimated total cost would have greatly exceeded the amount shown on the face of the treatment plan.

In her letter of November 10, 2001, Ms. Burt explained the need for supervision by a physiotherapist in the following terms:

Due to safety concerns (slippery surfaces) and her neurological problems (myclonic activity, confusion, slowed response to instructions, and attentional distractions of noise and colour in a class setting), she requires an attendant skilled in neurology and exercise to assist, interpret and modify the classes as they happen. Thus, I am recommending a physiotherapy assistant who is also a swimming instructor.⁴⁵

Ms. Burt's letter of November 10, 2001 also confirmed that, in her opinion, an adjustable bed would help Ms. Brown with bed transfers and sitting up in bed. Her treatment plan estimated the cost of this assistive device to be $3,910.

Reasonableness and necessity of the treatment: the DAC report

It was not until February 26, 2003 that Ms. Burt's treatment recommendations were reviewed by a Medical Rehabilitation Designated Assessment Centre. Moreover, the MedRehab DAC did not review the recommendations contained in the original treatment plan and letter dated November 10, 2001, as described above, but instead reviewed the recommendations contained in a new treatment plan dated August 23, 2002, which I did not receive in evidence. However, it would appear from Ms. Burt's letter of August 23, 2002⁴⁶ that, due to a delay in earlier treatment, she simply resubmitted her earlier recommendations to Pilot at around that time. It would further appear that Pilot then immediately referred these recommendations to the MedRehab DAC. Since neither party raised this issue or suggested any reason to think that the recommendations reviewed by the MedRehab DAC were different, in any material way, from the recommendations contained in Ms. Burt's original treatment plan and letter, I find that they were the same and that the MedRehab DAC reports retain their usual relevance.

There were two MedRehab DAC reports, one written by Dr. David Crisp, a neurologist, and one by Linda Zakoor, a physiotherapist. Since I am assuming, in this part of the decision, that the accident either materially aggravated or caused the impairments for which Ms. Burt recommended treatment, I need not dwell on Dr. Crisp's opinion, except perhaps to note in passing that he was a fourth neurologist to doubt that Ms. Brown had any neurologically based problems.⁴⁷ Ms. Zakoor's report, however, recognized both the benefit which Ms. Brown might derive from exercise and her problems with balance. Ms. Zakoor wrote:

...it is felt that Ms. Brown can manage with her home program of sitting on a therapy ball working on her balance, and continuing with her walking in her home. It is not felt that further formal physiotherapy would help Ms. Brown at this time. The request for a craftmatic [adjustable] bed would not be reasonable. The client demonstrates the ability to move well enough on the standard mat in the examination room and would not require an automatic adjustable bed.⁴⁸

Reasonableness and necessity of the treatment: analysis and conclusion

Assuming that Ms. Brown was having problems maintaining her "cardiovascular fitness, balance, muscle strength, and energy levels", I am easily persuaded that she would have benefited from some kind of exercise program. I am not persuaded that the aqua therapy program recommended by Ms. Burt was either reasonable or necessary.

In my view, Ms. Burt's recommendation fails the legislative test primarily because it required Ms. Brown to leave her own home. In addition to generating pool access and travel expenses, aqua therapy would have exposed Ms. Brown to distractions which, according to Ms. Burt, she tolerated poorly. I note that on cross-examination, Ms. Burt doubted the wisdom of a gym membership on the ground that this would have involved too many distractions such as loud music. Yet, she was prepared to recommend aqua therapy, apparently without much concern about either distractions in the pool or the additional expenses which dealing with those distractions would have generated.

In my opinion, it would have been more reasonable for Ms. Burt to have developed a home-based exercise program, perhaps involving the use of exercise equipment. I acknowledge Ms. Burt's testimony that a stationary bike or a rowing machine would not have been "as good" as aqua therapy. I also assume that any home-based program would have needed to recognize Ms. Brown's problems with balance and muscle tightening, as aqua therapy did. Nevertheless, Ms. Zakoor's report strongly suggests that such a program could have been developed. While Ms. Burt had every opportunity to do so when she testified, she provided no explanation as to why such a program could not have been developed or how such a program would have been insufficient to satisfy Ms. Brown's needs. In the absence of such evidence and in the presence of evidence confirming the distractions and associated expenses of aqua therapy, I am unable to conclude that aqua therapy was a reasonable and necessary form of treatment.

Moreover, the evidence also failed to establish that aqua therapy remained a viable form of treatment. Ms. Brown is no longer living in a home with a pool and Ms. Burt acknowledged that, as of the date of the hearing, the heated pool in Ms. Brown's community had closed, though perhaps only temporarily. I fail to see how I could find that aqua therapy is a reasonable form of treatment, or how Pilot could be ordered to pay for such treatment, when the evidence at the hearing did not establish that aqua therapy remained a viable form of treatment.

I also reject Ms. Burt's recommendation for an adjustable bed. If, as I assume, Ms. Brown was having problems transferring in and out of bed and sitting up in bed, I find that these problems were manifestations of her more general problems maintaining muscle strength and balance. Ms. Burt confirmed the connection to muscle strength when she testified that her recommendation really should have been (but was not) for an adjustable and heatable bed. A heatable bed, Ms. Burt testified, would have allowed Ms. Brown to warm up her muscles, particularly her abdominal muscles, before attempting to get out of bed. Ms. Brown confirmed the connection to balance when she testified that she would be better able to get her balance if she were able to raise the head of the bed before getting out of it. Ms. Burt's report of August 23, 2002⁴⁹ did not refer to balance as a bed-related problem but rather as a standing-related problem; still, standing is an integral part of getting in and out of bed.

However, I see two contradictions between Ms. Burt's view that Ms. Brown required aqua therapy to improve her "cardiovascular fitness, balance, muscle strength, and energy levels" and Ms. Burt's view that Ms. Brown required an adjustable/heatable bed to help her get in and out of bed and sit up in bed.

First, I acknowledge that getting in and out of, or sitting up in, an ordinary bed requires some physical effort but it is likely that aqua therapy would require a great deal more physical effort. I do not, therefore, understand how Ms. Burt could explicitly encourage Ms. Brown to make the greater physical effort required to perform the latter while, at the same time, implicitly discourage her from making the smaller physical effort required to perform the former. In my view, it is more reasonable to believe that any activity requiring physical effort, undertaken with care and within Ms. Brown's physical limits, would help to improve her "cardiovascular fitness, balance, muscle strength, and energy levels ". Ms. Brown acknowledged on cross-examination that getting in and out of, or sitting up in, her current ordinary bed was within her physical limits as long as she did it with care.

Second, it is reasonable to believe that any exercise program which did, in fact, improve Ms. Brown's "cardiovascular fitness, balance, muscle strength, and energy levels" would also remove or reduce her problems getting in and out of, or sitting up in, an ordinary bed and hence remove or reduce her need for an adjustable/heatable bed, assuming she ever needed one in the first place.

In short, as I see it, the evidence does not establish either that Ms. Brown would benefit from having an adjustable bed or, assuming that she did at the outset, that she would continue to do so over a sufficiently long period of time to make the purchase of an adjustable bed reasonable and necessary. I am not, therefore, prepared to find that an adjustable bed is a reasonable or necessary form of treatment.

Issue 3: scooter accessible van

In a letter to Pilot dated May 14, 2002, Ms. Brown's occupational therapist, Sue Wilkinson, stated that Ms. Brown had recently acquired a scooter through other funding sources (i.e., not Pilot) but that Pilot had paid for a scooter lift to be installed on Ms. Brown's leased van. Ms. Wilkinson indicated that since the van was required "in order to transport the scooter to various locations", she was enclosing a treatment plan seeking reimbursement from Pilot of the cost of leasing the van. The treatment plan, dated May 2, 2002, was signed by Ms. Wilkinson and by Ms. Brown's new family doctor, Dr. Kevin Corless. It recommended that Pilot pay for the cost of leasing the van in order to give Ms. Brown "improved community access". The total estimated cost to Pilot was $35,097.63.⁵⁰

this issue is governed by section 15, dealing with rehabilitation benefits, not section 14, dealing with medical benefits

As mentioned in the Introduction, this claim was made under section 14 of the Schedule, the section dealing with medical benefits. Ms. Brown's counsel likened her need for a scooter accessible van to her need for the scooter itself; both, he submitted, assisted her to overcome her problems with mobility. However, even if I assume, as I will throughout this part of the decision, that Ms. Brown's problems with mobility were caused or materially aggravated by the accident and that she needed both a scooter and a scooter accessible vehicle to cope with those problems, her claim for a scooter accessible vehicle must, in my view, be dealt with under section 15 of the Schedule, not under section 14.

It is true that section 14(2)(f) explicitly addresses the issue of mobility. It states:

(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, ...

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

However, since the treatment plan at issue in this case effectively recommends the purchase of a motor vehicle, dealing with it under section 14 would require defining the motor vehicle as a "mobility device" or an "assistive device" within the meaning of section 14(2)(f). Moreover, since section 14(2)(h) appears to require that all goods and services recognized under section 14 be "of a medical nature", the motor vehicle would have to fit this description too. Section 14(2)(h) states:

h) other goods and services of a medical nature that the insured person requires.⁵¹

This questionable, "make-it-fit ", approach can be avoided by accepting that the reference to mobility in section 14(2)(f), however explicit, is not exhaustive. Indeed, interpreting this reference exhaustively would, in my opinion, ignore sections 15(2), (5)(j) and (10) of the Schedule which also refer to mobility, albeit implicitly, by providing for vehicle modifications or purchases. They state:

15.(2) The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market.

(5) (j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an exiting vehicle.

(10) The amount of the rehabilitation benefit for the purchase of a new vehicle shall not exceed the cost of the new vehicle, less the trade-in value of the existing vehicle.

In my view, the Schedule is best interpreted in this case by dealing with the treatment plan under sections 15(2) and (5)(j). In addition to the fact that section 15(5)(j) specifically refers to the purchase of vehicles, section 15(2) specifically refers to "the insured person's reintegration into his or her family, the rest of society..." Both the treatment plan and Ms. Brown's own evidence confirm that this was the very purpose the scooter and the scooter accessible van were intended to serve. As mentioned, the treatment plan itself stated that its goal was to provide "improved community access". Ms. Brown testified that the scooter and van permit her to visit her grandchildren, go shopping, visit parks and feel more independent.

For these reasons, I find that Ms. Brown's entitlement to a scooter accessible van is governed by section 15 of the Schedule, not by section 14.

entitlement under section 15 of the Schedule

While section 15(5)(j) specifically authorizes the purchase of vehicles, it does so only when "it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle". The relevant questions, therefore, are whether Ms. Brown had "an existing vehicle" and, if so, whether the cost of modifying that vehicle would exceed the cost of purchasing a new vehicle minus the value of any trade-in.

According to Ms. Brown's evidence, she and her husband owned three vehicles at the time of the accident: a Buick LeSabre written-off in the accident, a 1991 Cougar and a 1979, % ton pick-up truck. She testified that her husband used the truck before the accident to carry on a DJ business but that, as a result of also being injured in the accident of January 3, 1999, he was unable to carry on his DJ business and sold his truck. Ms. Brown testified that she and her husband gave the Cougar to their daughter and leased a 2000 Pontiac Van, the van referred to in the treatment plan, because she needed a vehicle capable of transporting her scooter. But for this need, she testified, she would have kept the Cougar as it was still in good shape. Ms. Brown did not specify the dates of any of the preceding events but she did testify that the lease for the van ran out in the summer of 2003 ("last summer ") and that, at that point, she and her husband acquired a GMC 2003 truck, a vehicle which is also capable of transporting her scooter. She stated that the scooter lift provided by Pilot for the van had not yet been attached to the GMC truck but she acknowledged that it probably could be.

The documentary evidence neither corroborates nor contradicts Ms. Brown's evidence. On the one hand, Ms. Wilkinson's letter to Pilot dated May 14, 2002 stated that "Mrs. Brown and her husband leased a van beginning in August 2000", nearly two years before Pilot received Ms. Wilkinson's treatment plan for the van. On the other hand, Ms. Wilkinson's letter dated May 14, 2002 also indicated that a recommendation for a scooter was first made by Ms. A. Carr, an occupational therapist, whose written request for a scooter (not addressed to Pilot) was dated July 14, 2000, the month before Ms. Brown apparently began leasing the van.⁵² It is, therefore, possible that Ms. Brown and her husband started leasing a van in August 2000 merely because they decided to acquire a new vehicle to replace the vehicle destroyed in the accident, the 1979 truck or the 1991 Cougar. It is also possible that Ms. Brown and her husband started leasing the van in August 2000, at least in part, because they were already anticipating that Ms. Brown would acquire a scooter and that she would, therefore, also eventually require a scooter accessible van.

However, the question posed by section 15(5)(j) is not why Ms. Brown and her husband sold or gave away their previous vehicles or why they acquired their "existing vehicle".⁵³ The question posed by that section is simply whether they had an "existing vehicle". In my opinion, the word "existing" should be interpreted as referring to the date on which the treatment plan was received by Pilot. This must be the relevant date because it is only by comparing the then current cost of modifying an existing vehicle to the then current cost of purchasing a new vehicle (minus the then current value of any trade-in) that Pilot could have determined how to respond to the treatment plan. In this case, for example, Ms. Brown's evidence did not exclude the possibility that she and her husband still had the 1979 truck when they leased the van.⁵⁴ If so, and if a scooter accessible van was indeed reasonably required at that time, Pilot should have had the opportunity to determine the capacity of the 1979 truck, the then "existing vehicle", to carry a scooter, the cost of modifications to that truck, if any were required, and the trade-in value of the truck, if a new vehicle was required. In short, even if I assume that Ms. Brown was attempting to exercise her rights under section 15(5)(j), the evidence before me does not exclude the possibility that her unilateral course of action deprived Pilot of its rights under the same section.

The evidence conclusively establishes that Ms. Brown did have an existing vehicle at the time the treatment plan was submitted to Pilot in May 2002, namely, the van referred to in the treatment plan and covering letter from Ms. Wilkinson.

The evidence also establishes that the only modification required to that van was the scooter lift which Pilot has already paid for. There can be no suggestion that the cost of that modification exceeded the purchase price or the leasing costs of any scooter accessible van or vehicle.

I, therefore, dismiss Ms. Brown's claim for a scooter accessible van.

EXPENSES:

If required to do so, I will deal with the issue of hearing expenses in accordance with the procedure stipulated by the Dispute Resolution Practice Code.

April 21, 2004

David Leitch Arbitrator

Date