Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 99

FSCO A04-000115

BETWEEN:

VICTORIA MSUYA

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

REASONS FOR DECISION

Before:

Rosemary Muzzi

Heard:

December 13 and 14, 2004, in Ottawa, Ontario.

Appearances:

Kellie Siegner for Ms. Msuya

Paul Muirhead for Belair Insurance Company Inc.

Issues:

Victoria Msuya, the applicant, was injured in a motor vehicle accident on October 7, 1999 when she was struck by a car while crossing the street. She was fourteen years old at the time. She applied for and received statutory accident benefits from Belair Insurance Company Inc. ("Belair"), payable under the Schedule.¹ Belair terminated benefits on May 16, 2003. The parties were unable to resolve their disputes through mediation, and Ms. Msuya 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 Ms. Msuya entitled to receive a medical benefit for chiropractic, massage and weight training as set out in a treatment plan by Back to Health dated January 16, 2003?

2. Is Ms. Msuya entitled to receive payment of $857 for the cost of Dr. Reesor's assessment?

3. Is Ms. Msuya entitled to interest?

4. Is Ms. Msuya entitled to a special award?

Result:

1. Ms. Msuya is not entitled to receive a medical benefit for chiropractic and massage therapy. She is entitled to continued benefits for supervised weight training because such expenses are reasonable and necessary.

2. Ms. Msuya is entitled to $857 for the cost of Dr. Reesor's assessment.

3. Ms. Msuya is entitled to interest on the amounts owing.

4. Ms. Msuya is not entitled to a special award.

EVIDENCE AND ANALYSIS:

Medical benefits

Chiropractic, massage and weight training

Since the accident, Ms. Msuya has had extensive chiropractic and massage treatment and has engaged in strength training and other exercise. Indeed, she has spent a good portion of the years since her accident engaged in various kinds of treatment and going to numerous assessments and other medical appointments.

Ms. Msuya claims that her life has changed significantly because of the pain she continues to experience as a result of the accident. Prior to the accident, she attended school, and engaged in sporting activities on a recreational basis including in-line skating, basketball and rock climbing. She spent time with her friends hanging out and going to movies. She took turns with her sister and mother doing household chores.

Ms. Msuya is now in her second year of a four-year Health Sciences program at the University of Ottawa. She works part-time at Lazerquest, eight to 12 hours per week as a crew member, and has been doing so since September 2004. She sees a chiropractor regularly and works out with a personal trainer. She also takes medications like Robaxacet, Advil and Tylenol to ease the pain in her back and neck. She makes use of access services at the university. She has friends and socializes but does not engage in physical recreational pursuits to the same degree as before. She is distracted by her perceived physical limitations and treatment. Carolyn Andison, her mother, says that she has also become difficult to communicate with and there are disagreements and misunderstandings.

Belair paid for Ms. Msuya's treatment up to May 16, 2003. A DAC of April 2003 returned with the recommendation that continued chiropractic and massage treatments were not reasonable and necessary. Nevertheless, Ms. Msuya continued her treatments with Dr. Rodwin and accumulated expenses of $2,292.79. When she could not afford to pay her debt to Back to Health, she was discharged and then began to be treated by another chiropractor, Dr. M. St. Denis. She has been paying him in installments but has incurred expenses totalling $1,693.45.

Section 14(2)(b) of the Schedule requires that the insurer pay for all reasonable and necessary chiropractic and physiotherapy services incurred as a result of the accident. Ms. Msuya argues that the chiropractic and massage treatments are reasonable and necessary. She testified that the pain is lessened with treatment, even if only temporarily, and she believes that it helps her get through her days.

Arbitrators have considered numerous factors in determining what treatment is reasonable and necessary. These factors include whether the treatment complied with accepted professional protocols, the subjective benefit to the insured person, or if a treatment helped to relieve pain. In the case of Violi and General Accident Assurance Co. of Canada², the arbitrator concluded that pain relief in and of itself can be a legitimate medical and rehabilitative goal, and therefore reasonable and necessary, even if it does not promote recovery. In other cases³, arbitrators have qualified this latter proposition, however, by adding that pain relief measures should not encourage an inappropriate or indefinite dependency, or interfere with other aspects of rehabilitation.

More recently, while confirming that pain relief, even if only temporary, is a legitimate goal of therapy, arbitrators have found that other factors, such as frequency, duration and cost of treatment, efficacy of treatment, and availability of other effective treatments, can outweigh the pain relief factor.⁴

I adopt this latter approach in my analysis. In my view, the question of whether this treatment is reasonable and necessary, in Ms. Msuya's case, can only be answered by an assessment of all of the pertinent circumstances.

The medical evidence before me was voluminous and detailed. Having reviewed it, I find that the doctors who have examined and treated Ms. Msuya have made similar observations of her and actually share an approach to her treatment though they may differ on the particular details of that treatment. Indeed, there are a number of conclusions which all of the medical practitioners appear to have made, including:

• Ms. Msuya has a long standing problem punctuated by chronic pain;

• she will likely never recover completely to her pre-accident status though she can get close to that;

• there were weaknesses in her muscles (hip, lower back) which could be attributed to a state of deconditioning;

• she should have been weaned off chiropractic treatment;

• her exercise program should be changed to suit her changing needs and capabilities;

• there are some psychological issues to deal with and some psychological trauma to examine;

• some behavioural intervention is necessary; and

• finally, Ms. Msuya must move forward with her life.

A number of these conclusions are particularly pertinent to the question of whether continued chiropractic and massage therapy is reasonable and necessary, in Ms. Msuya's case.

First, none of the doctors including Dr. Rodwin, Ms. Msuya's former treating chiropractor who testified in support of her case, believed that chiropractic was a good long term treatment option. Even Dr. Rodwin had planned to wean Ms. Msuya off the chiropractic treatment eventually, after she had shown a certain degree of improvement. Dr. Rodwin testified that she never commenced a proper weaning off program because of interruptions in Ms. Msuya's treatment, which, in her view, had caused some regression.

Not one doctor ever recommended that Ms. Msuya increase her use of chiropractic or massage treatment though they have recognized that each of the treatments has provided her with some degree of pain relief so that she can continue with her rehabilitation program.

The Hamilton Hospitals Assessment Centre (Hamilton Hospitals) DAC assessors, who completed their report on September 24, 2001, did not recommend long-term chiropractic and massage treatment. Instead, they recognized that continued chiropractic and massage treatments would be helpful in management of symptoms and initial compliance with the plan of management. In fact, these assessors recommended a more intense and suitable training regime, including supervised weight training and an aquatics program. They also recognized Ms. Msuya's deconditioned physical state.

Ms. Msuya, herself, testified that her strength training exercise has been the most effective treatment. Ms. Msuya's personal trainer, Mr. Clement, wrote at one point that Ms. Msuya should be spending more time in training with him but was unable to because other appointments, such as chiropractic, massage, and physiotherapy, prevented it. Indeed, the evidence before me is that Ms. Msuya's work with Mr. Clement had moved her rehabilitation forward when her fitness regime included both weight training and an aquatics program.

Dr. Finestone noted, as early as September 2002, that the chiropractic treatment did not appear to be of assistance whereas the massage provided some degree of pain relief but that exercise should be Ms. Msuya's focus for rehabilitation. He based this finding on Ms. Msuya's own report to him that massage treatment was more helpful than chiropractic treatment for the relief of pain though the chiropractic treatment helped reduce stiffness. As did the Hamilton Hospitals assessors, Dr. Finestone encouraged more supervised aerobic-focussed activities.

Others, such as Dr. Jackson and Ms. Manaigre, who conducted the DAC assessments of April 2003 which led Belair to terminate payments, and Dr. Finestone expressed concern that Ms. Msuya was becoming dependent on frequent chiropractic and massage treatments while the treatments themselves did not appear to improve her functionality.

It must also be recognized that, to a great degree, Ms. Msuya does seem to function as many others of her age group do. To describe her as a young person who can not do what others her own age do is overstating the situation. She appears to be doing what others do: she goes to university, she has a part-time job and she engages in social activity. She limits some of her activities because of the pain she experiences. She also requires special services to assist her with academics. On the other hand, she hasn't told her employer about her limitations because she doesn't want her chances at retaining the job to be diminished. This is significant in that it also appears that her limitations are not evident to her employer either, even though she claims that she refuses to do certain tasks at work. She has not requested a modification of duties and no such need has been assessed by her employer.

Moreover, Ms. Msuya has had periods in her life when she has chosen not to engage in chiropractic and massage therapy and has foregone her fitness regime. Her counsel asked me to conclude that she terminated for those periods for financial reasons, but the evidence is also that those breaks in treatment coincided with her attendance at a summer camp. I find that this evidence shows that Ms. Msuya can continue in her life's activities, for periods of time, without treatment and while she limits some of her activities, she is not unable to carry on and, indeed, she does carry on. She is a young woman who, as many of her health practitioners have advised, needs to move forward with her life.

All of this evidence leads me to conclude that continued chiropractic and massage therapy is not reasonable and necessary in Ms. Msuya's case. Many of the doctors and assessors involved in this case have concluded that chiropractic and massage therapy are not good long term solutions to Ms. Msuya's problems, that she may have developed a dependence on this kind of treatment without it affording a real improvement in her condition, and that her efforts should really be directed to conditioning her body. Furthermore, the fact that she has already engaged in these treatments for many years, and her age and the expectation by many of the medical professionals that she should have healed by now and should, in any event, get on with her life, indicate to me that any benefit that chiropractic and massage could have afforded has already been realized.

On the other hand, it is also clear to me that other kinds of treatment, such as supervised weight training that can be modified from time to time and other physical training, some of which she has already engaged in, is reasonable in the circumstances and necessary to promote her recovery. Such treatment was suggested in the treatment plan of January 2003 and it is this kind of treatment for which the insurer should continue to pay. Again, every one of the doctors has stressed the importance of physical exercise to Ms. Msuya's recovery from the accident. Dr. Jackson testified that endorphins produced from exercise elevate mood and suppress pain. He, as others did, also recognized that Ms. Msuya's self management skills are not good, necessitating a degree of supervision. Ms. Msuya testified that her workouts were less painful and more successful with the assistance of a personal trainer. Furthermore, the evidence before me is that weight training is not the only or best method of exercise, that there are other routes to be explored and that her exercise routine should change with her development and changing needs.

Psychological assessment

The issue here is whether Dr. Reesor's psychological assessment is a reasonable and necessary examination for Ms. Msuya. In an earlier psychological assessment (for which Belair paid), Dr. Gow identified areas of impairment and recommended treatment for Ms. Msuya, and referred her to Dr. Reesor, a rehabilitation psychologist, for that treatment. Dr. Reesor is a specialist in rehab psychology and testified that he sees 30 patients a week like Victoria Msuya. He conducted his own psychological assessment of Ms. Msuya.

Dr. Reesor sought but was denied prior approval from Belair for the assessment. Belair relied on the findings of a Fast Track DAC assessment in order to deny payment of the assessment. The Fast Track DAC concluded, in part:

The most recent medical evidence provided for review indicates emotional findings that are consistent with a mild to moderate degree of depressive symptoms with only a mild contribution of the post-concussive symptoms to her daily life. These symptoms should be evaluated in psychiatry with a potential psychopharmacological intervention. Dr. Reesor's assessment and treatment is not indicted for this case.

Ms. Msuya and Dr. Reesor proceeded with the assessment anyway. Dr. Reesor conducted a five to six hour assessment of Ms. Msuya and then completed a treatment plan. He stated that no further assessments need be done. The assessment included a clinical interview with Ms. Msuya, and interviews with her mother and sister, with whom she resides, the completion of forms, a review of all of the relevant documentation, and preparation of the report itself. Dr. Reesor billed Ms. Msuya $857 for the assessment.

I find that payment of Dr. Reesor's assessment is a reasonable and necessary expense in these circumstances. A review of the evidence indicates that virtually all of the medical practitioners and assessors involved have at one time or another proposed some kind of psychological or behvioural intervention and treatment for Ms. Msuya. Furthermore, I am not satisfied that the Fast Track DAC assessment fully and fairly considered the history and complexity of Ms. Msuya's impairments in concluding that the assessment was not reasonable and necessary.

First, regarding the actual cost of the assessment, I find that the evidence about the nature of the assessment and the work that went into the assessment and preparation of the report justifies the five to six hours spent. Further, an overall fee of $857 itself does not appear exorbitant.

Second, I agree with Dr. Reesor who questioned the Fast Track DAC findings. I find that those conclusions ignored significant factors present in Ms. Msuya's case which demanded an assessment including:

• Ms. Msuya's reported symptoms;

• the absence of behavioural intervention to that point;

• her need for special and specific services on account of her age (for example, Dr. Reesor explained that psychiatry and medication should not be the first line of assessment with a young person and I find this comment compelling); and

• Ms. Msuya's complaints of pain (which were not even mentioned in the Fast Track DAC conclusions).

Finally, as already stated, the medical practitioners in this case, including some of the DAC assessors, have virtually unanimously expressed concern about Ms. Msuya's cognitive and behavioural issues, yet almost no treatment has ensued. It is clear to me from the evidence that behavioural and/or neuropsychological intervention is necessary. Dr. Reesor's assessment would appear to be the necessary first step in such treatment. It makes sense that the proposed treating professional assess his patient and determine her exact needs and the manner in which he believes she needs to be treated.

SPECIAL AWARD:

There was insufficient evidence before me upon which to conclude that a special award was warranted in this case.

EXPENSES:

The parties did not argue the issue of expenses before me. The parties should attempt to resolve their claims for the expenses of this arbitration process by reviewing Rules 75 to 79 of the Dispute Resolution Practice Code. If the parties are unable to resolve the issue of expenses, either party may request, in accordance with Rule 79, an appointment before me to determine expenses.

July 14, 2005

Rosemary Muzzi

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 99

FSCO A04-000115

BETWEEN:

VICTORIA MSUYA

Applicant

and

BELAIR INSURANCE COMPANY INC.

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Belair shall pay for the services of a weight trainer, twice per week at the rate of $40 per session, from January 16, 2003, pursuant to section 14 of the Schedule.

2. Belair shall pay $857 for the cost of Dr. Reesor's psychological assessment, pursuant to section 24 of the Schedule.

3. Belair shall pay interest on the amounts owing in accordance with section 46(2) of the Schedule.

4. If the parties are unable to agree on expenses, either party may request an appointment before to determine expenses.

July 14, 2005

Rosemary Muzzi

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2(FSCO A98-000670, August 20, 1999)
3. 3Amoa-Williamss and Allstate Insurance Company of Canada, (FSCO A97-001864, June 5, 2000); Violi and General Accident Assurance Company of Canada, (FSCO P99-00047, Septmeber 27, 2000)
4. 4Driver and Traders General Insurance Company, (FSCO P03-00006, November 18, 2003)