Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 165

FSCO A04-000100

BETWEEN:

MARGARET LITTLE Applicant

and

PILOT INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: May 9 and 10, 2005, in Kingston, Ontario.

Appearances: Edward Bergeron for Mrs. Little Patricia Lawson for Pilot Insurance Company

Issues:

The Applicant, Margaret Little, was injured in a motor vehicle accident on January 7, 2002. Pilot Insurance Company ("Pilot") refused to pay for physiotherapy treatment of Mrs. Little's accident injuries and also refused to pay for an assessment of her household abilities under the Schedule.¹ The parties did not resolve these disputes through mediation, and Mrs. Little 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:

1. Is Mrs. Little entitled to payment for her physiotherapy treatment at the Kingston Injury Management Centre?

2. Is Mrs. Little entitled to payment for an in-home assessment conducted by Limestone Health Consultants?

Result:

1. Mrs. Little is entitled to payment of a six to eight week physiotherapy program at the Kingston Injury Management Centre for her neck and shoulder symptoms.

2. Mrs. Little is entitled to payment for the in-home assessment conducted by Limestone Health Consultants.

EVIDENCE AND ANALYSIS:

In October 2003, Kingston Injury Management Centre (KIM) recommended six to eight weeks of various physiotherapy exercises and ultrasound treatment to reduce Mrs. Little's neck, low back and right leg pain and stiffness. The recommendation occurred three months after Mrs. Little's release from her initial program at this clinic. Pilot characterizes her condition at that time as a spontaneous recurrence of symptoms, unrelated to the January 7, 2002 accident, and therefore not a reasonable and necessary expense under Part V of the Schedule.

Limestone Health Consultants (Limestone) conducted an in-home assessment of Mrs. Little's activities over two days in June 2003. Pilot rejected her claim as neither a reasonable nor a necessary expense, and thus not payable under section 24 of the Schedule.

Background:

Mrs. Little's post-accident condition and treatment are clouded by some serious pre-accident health problems. She is a 54 year old, retired restaurant worker, who was a front seat passenger in a car struck broadside by a large commercial truck. Mrs. Little hit her right knee on the door panel and her head on the visor. She felt chest pain, dizziness, soreness in her left shoulder and stomach pain after the impact.

Mrs. Little was taken by ambulance from the accident scene to emergency at Kingston General Hospital with complaints of neck pain and tenderness in her arms and chest. She was released from hospital that day, and went home to the apartment that she shares with her teenage grandson.

Mrs. Little thereafter applied for accident benefits, and underwent six months of physiotherapy treatment at the KIM Centre. Pilot paid for the treatments to address her neck/upper back and dizziness. She was discharged in mid-June 2002, with a note from the treating therapist that she might suffer setbacks requiring further treatment.

Pilot's refusal to fund her additional physiotherapy at KIM was predicated on physiatric and physiotherapy assessments at a Designated Assessment Centre (DAC) in May 2003, which found that her symptoms were not accident-related. However, the DAC opinion and Pilot's refusal did not end her recovery program. Mrs. Little's family doctor obtained approval for publicly-funded treatment at St. Mary's Hospital in Kingston. At the hospital, she attended warm water pool exercises, treadmill and bicycle exercises, and massage therapy for her neck and lumbar spine symptoms during the first half of 2003. As her condition had not fully resolved when she was discharged, Mrs. Little was advised to continue with home exercises and a pain/stress management program.

Mrs. Little's Evidence:

Mrs. Little testified that her dizziness was reduced and her neck and shoulder mobility improved as a result of the KIM and St. Mary's Hospital programs. She testified that her symptoms from the accident were different than her pre-accident health problems. In particular, it was her evidence that her main accident-related problems were chronic right knee pain, limited mobility with pain in both her right and left shoulders.

Mrs. Little explained that her most serious pre-accident problems stemmed from a heart condition. Her heart angina destabilized during the summer of 2001, and she underwent quadruple cardiac bypass surgery in August that year. During the four months following surgery, just prior to this accident, Mrs. Little went to the emergency room numerous times complaining of chest pain.

In addition, Mrs. Little said that before the accident she had diabetes, high blood pressure/hypertension, arthritis, digestive problems and acid reflux. Her evidence is generally consistent with her health records that her symptoms have been controlled through medications.

Mrs. Little's family physician had told her to avoid heavier activities after her heart surgery. This is due to the veins being stripped from her legs for the bypass operation. Her main restrictions were, she testified, that she did not lift, push or pull heavy objects, squat, kneel or climb.

As a result, Mrs. Little said she moved to an apartment with an elevator shortly before the accident because she could not climb stairs. Mrs. Little openly admitted that her husband, the couple's adult daughter and her grandson helped her with heavier household chores before the accident: vacuuming, changing bed sheets, carrying groceries, washing floors, cleaning the tub/toilet. However, she did not require any personal care before the accident, except occasionally needing help getting into the bath tub.

Evidence from Mrs. Little's husband supports her evidence about her pre-accident health and abilities. I accept she did not lift and carry full grocery bags, squat and kneel/bend to change bed linens, wash floors, clean the bathtub or toilet, operate a vacuum or climb stairs.

Mrs. Little asserted she could walk for up to an hour without any aids before the accident, and had also resumed serving lunches as a volunteer at a seniors' home and helping at a local bingo hall. There is no evidence she resumed strenuous recreational activities.

Mrs. Little's evidence is that her accident symptoms were significantly reduced and her home making abilities were generally the same as before the accident, once she completed six months of physiotherapy treatment. In fact, Pilot provided her with assistive devices to do some tasks (floor duster, light vacuum, laundry cart and long-handled tub scrubber) she had been unable to do on her own before the accident.

However, Mrs. Little's knee/leg and shoulder pain has continuously limited her endurance and mobility after she was discharged from physical therapy. She testified having reduced walking stamina, less ability to dress herself as well as problems with stamina and balance in doing volunteer work.

Mrs. Little described her limited shoulder mobility. Her pre-accident left shoulder pain spread to both shoulders following the accident. As a result, she cannot raise either arm high enough to reach into her kitchen cabinets, and has lost her ability to raise her arms above shoulder height to put on tops. Now she must hang her blouses on a clothes tree and stoop underneath to put them on. I find her description to be compelling evidence.

Mrs. Little did not distinguish between her pre-accident dizziness and her so-called "floating spells" after the accident. Testifying that it stopped her volunteer work after the accident, Mrs. Little admits she suffered similar anxiety and dizzy spells before the accident.

Mrs. Little also admitted suffering low back/hip pain and knee pain before the accident. She pointed out that her low back pain cleared up by the fall of 2002. She characterized her right knee pain as periodic before the accident and chronic after the accident.

Warm water pool exercises and treadmill work have definitely helped her with endurance and mobility. Mrs. Little said she would benefit from these services if she could afford them or receive funding.

In summary, Mrs. Little indicates that she continues to experience pain and disability stemming from her right knee and right shoulder/neck soft tissue injuries in this accident. However, her evidence does not support her claim that after June 2002 she continued to suffer any greater degree of anxiety/dizziness, hip or low back pain than she did before the accident.

The Health Care Evidence:

Mrs. Little's claim is supported by the evidence of her long-time family physician, Dr. Anne Gaskin, who testified that all Mrs. Little's symptoms stem from the accident, and that she went steadily downhill afterwards. Dr. Gaskin recommended the KIM program for Mrs. Little because she believes that her home exercise program should be supplemented periodically as a control for her chronic symptoms.

Dr. Gaskin admitted in her evidence that Mrs. Little's dizziness may be a consequence of the medication for her continuing hypertension. She described Mrs. Little's back pain as recurring sometime after the physiotherapy stopped in the summer of 2002, agreeing she had similar symptoms before the accident with viral infections and took prescription medication for her low back pain.

Dr. Gaskin identified the same two primary accident symptoms as Mrs. Little stated in her evidence - pain in her right knee and shoulders. She testified Mrs. Little did not have any right knee problems until four days after the accident, her view being that the orthopaedic surgeon's finding of osteoarthritis and thinning or possible tear of the protective joint cover (medial meniscus) supports the accident as the cause. No other medical expert supports Dr. Gaskin's conclusion.

Dr. Gaskin struck me as a very concerned medical practitioner, but quite a partial advocate for Mrs. Little. Her broad initial opinion that all of Mrs. Little's complaints stem from the accident is contradicted by her admissions that specific problems may emanate from other sources. I do not rely on Dr. Gaskin's opinion.

Dr. Stephen Bagg was retained by Mrs. Little as a consulting specialist in physical medicine and rehabilitation. He testified that her occasional dizziness is likely due to her blood pressure medication, and did not know whether her right knee pain is due to the removal of veins for the bypass surgery or a result of natural arthritic deterioration.

Dr. Bagg wrote in his 2004 report that Mrs. Little demonstrated significant limited range of motion in both shoulders, which supports her telling him she could not reach her arms up to retrieve items in her kitchen cabinets. After thoroughly reviewing Mrs. Little's history, the radiology studies and examining her, Dr. Bagg found that she suffered a shoulder impingement syndrome and capsular joint restriction as a result of the accident.

Dr. Bagg agreed that Mrs. Little's pre-existing health problems create a murky picture, but did not accept her condition would have developed spontaneously over time in the absence of the accident's physical trauma. He wove a complex analysis before concluding that the accident was the most significant contributing factor to her shoulder restrictions and pain. He agreed with Dr. Gaskin's recommendation for massage and physiotherapy for short-term pain relief, adding Mrs. Little might benefit from steroid injections as well as re-education for long-term pain control.

Other specialists were less helpful in determining the accident's causal relationship to any of Mrs. Little's symptoms. An occupational therapist retained by Mrs. Little, Ms. Beth Hopkins, documented Mrs. Little's disabilities in a June 2003 assessment, but did not give an opinion about the causes. Her treating cardiologist, Dr. Anthony Sanfilippo, denied her symptoms had any link with her heart condition. Dr. Davide Bardana, an orthopaedic surgeon, found she had chronic shoulder pain, and injected the joints, and her consulting rheumatologist, Dr. Isaac Dwosh, also discussed his treatment protocols for her. None of these specialists opined that the accident was a significant contributing factor in Mrs. Little's conditions.

Dr. John Birchard, another treating orthopaedic surgeon, linked her right knee abnormality with arthritis, the accident contributing little to this condition. His report is supported by the broader conclusions of the physiotherapist and the specialist in physical medicine and rehabilitation at a Designated Assessment Centre (DAC) in Kingston. The DAC physiotherapist, Ms. Tracy Down, wrote:

Neck and upper spine pain...it would appear that any "flare-up" was dealt with effectively by the 5 months of therapy she received following the accident. Her current symptoms cannot therefore be attributed directly to the motor vehicle accident.

Bilateral shoulder pain....Although she had some arm symptoms following the motor vehicle accident, these appear to have fully resolved by June 2002. Her current symptoms had an insidious (spontaneous) onset in April 2003 and cannot be directly linked to the car accident in January 2002.

Ms. Down's report that Mrs. Little's shoulder problem recurred in April 2003 contrasts with the evidence from all other sources that her symptoms were continuous following her physiotherapy discharge. Her conclusion that Mrs. Little's symptoms had fully disappeared and failure to explain in her evidence the significance of KIM's mention of her potential future need for treatment is the basis for my discounting Ms. Down's evidence.

Dr. Matthew Faris, the examining DAC specialist in physical medicine and rehabilitation, also concluded that the recurrence of Mrs. Little's symptoms in the fall of 2002 were not caused by the accident because she had fully recovered beforehand. While Dr. Faris reported that he found Mrs. Little had restrictions lifting her arms because her shoulder muscle stretch was limited, he attributed all of her symptoms to Mrs. Little's pre-accident aches, pains and anxiety.

The contradiction is that Dr. Faris agreed in his testimony that there is no evidence Mrs. Little had any restrictions of her shoulder movement before the accident and she did not feign her symptoms. The discrepancy between Dr. Faris' post-accident findings of a shoulder restriction along with his erroneous assumption she fully recovered by the time Mrs. Little was discharged from physiotherapy are reasons to reject his opinion as well.

Conclusions on Treatment Issue:

In this case, there is no intervening event affecting Mrs. Little's health or a significant time lapse when she was asymptomatic. The evidence is that Mrs. Little's neck and shoulders were continuously symptomatic during the relatively short time between her release from physiotherapy and her family physician's referral for a second round of similar treatment at KIM. The evidence does not undermine Mrs. Little's presentation of her condition.

The DAC examiners ignored Mrs. Little's conditional discharge and potential for further treatment. However, Dr. Bagg carefully considered the many competing factors in analysing her pre-accident and post-accident conditions. I find his opinion is the most reliable and trustworthy.

On the one hand, Dr. Bagg does not conclude that the accident is a significant contributing factor to Mrs. Little's dizziness, right knee or leg or hip pain. In fact, she did not even complain about low back pain at the time of his June 2004 examination. Therefore, I find that the accident is not a significant contributing factor to Mrs. Little's ongoing complaints of dizziness, low back or right knee and leg or hip pain.

On the other hand, Mrs. Little's chief complaint concerns her shoulders and neck, and although Dr. Bagg agrees it would be impossible to distill her symptoms to one concrete cause, he finds that her shoulder impingement syndrome and joint restriction were probably triggered by the trauma of the motor vehicle accident. Based on Dr. Bagg's opinion, I find that the accident significantly contributed to Mrs. Little's shoulder/neck pain and restrictions, and that her shoulder/neck disability has continuously prevented her from being able to fully raise her arms.

I also rely on Dr. Bagg to determine that the KIM Centre's 6 to 8 week program is reasonable and necessary. He recommended the physiotherapy as offering Mrs. Little temporary symptom control, an acceptable goal when the length and cost of the plan are measurably reasonable.² Part of the KIM plan is directed towards her non-accident related low back and right leg symptoms, and I find it is not reasonable and necessary in those aspects. However, based on Dr. Bagg's opinion, I find that the portion of the KIM Centre physiotherapy treatment plan respecting her neck and shoulders is reasonable and necessary because the accident is a significant contributing factor to those symptoms.³

Based on Mrs. Little's undisputed success with past treatment at KIM, I find that the proposed plan offers her good potential for pain relief and improved mobility with her bilateral shoulder impingement condition. I further find that both the estimated cost and duration of the KIM plan are reasonable when measured against her past therapies at KIM and St. Mary's Hospital.

I expect the parties to be able to either allocate the amount of the treatment plan in accordance with my finding on causation or more simply to instruct KIM to treat only her neck and shoulder problems. I trust the parties will not need a resumption of the hearing to resolve this small matter.

Conclusions on In-Home Assessment Issue:

Pilot is required to pay for examinations or assessments for Mrs. Little where they deal with the diagnosis and treatment of her accident injuries, the resulting disabilities in relation to her potential or ongoing accident benefits.⁴ Ms. Beth Hopkins, an occupational therapist from Limestone Health Consultants, went through Mrs. Little's daily household activities in her town home over two days in June 2003. Ms. Hopkins recommended that Mrs. Little be provided with a number of household assistive devices, and that she needed about a half hour of housekeeping assistance per week.

Pilot argues the assessment is not reasonable because she was living at a different location than her apartment at the time of the accident. There is no policy reason, case law or regulation to support this argument, and I reject it as wholly without merit.

Pilot is required to pay for reasonable and necessary measures to reduce or eliminate Mrs. Little's neck/shoulder disability resulting from the accident⁵, home devices towards that end⁶, and to reimburse her for housekeeping expenses when she is suffering a substantial inability in that regard.⁷ Although Ms. Hopkins does not address diagnosis and treatment, I find that her report meets the basic threshold connection with Mrs. Little's potential accident benefits by documenting her disabilities and making recommendations about her need for assistive devices and potential housekeeping benefits recoverable under the Schedule. On balance, I find the Limestone Health Consultants' report is reasonable and necessary under subsection 24(1) of the Schedule.

EXPENSES:

The parties should try to resolve their claims for expenses of the arbitration in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code and Expense Regulation F. They may contact the caseworker to arrange an assessment of expenses by teleconference if they cannot agree on entitlement or amounts.

November 22, 2005

Fred Sampliner Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 165

FSCO A04-000100

BETWEEN:

MARGARET LITTLE Applicant

and

PILOT 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:

1. Pilot shall pay Mrs. Little up to a maximum of $1,900.00 for six to eight weeks of treatment for her neck and shoulder symptoms at Kingston Injury Management Centre.

2. Pilot shall pay Mrs. Little $1,200.73 for the cost of an in-home assessment at Limestone Health Consultants.

November 22, 2005

Fred Sampliner Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Violi and General Accident Assurance Company of Canada (FSCO A98-000670, August 20, 1999), confirmed on appeal (FSCO P99-00047, September 27, 2000)
3. 3Athey v. Leonati (1996) 1996 CanLII 183 (SCC), 140 DLR (4th) 235 (SCC), Pinhasov and Guarantee Company of North America (FSCO A99-000522, October 25, 2001), upheld (FSCO P01-00054, September 4, 2002)
4. 4Tsimidis and Liberty Mutual Insurance Company (FSCO A98-000388, January 6, 1999)
5. 5Subsection 15(2) of the Schedule
6. 6Subsection 15(5)(i) of the Schedule
7. 7Section 22 of the Schedule