Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 13
FSCO A05-001289
BETWEEN:
RAPHAEL PIERRE Applicant
and
RBC GENERAL INSURANCE COMPANY Insurer
REASONS FOR DECISION
Before: Judith Killoran
Heard: November 14, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Dimple Verma for Mr. Pierre Darrell March for RBC General Insurance Company
Issues:
The Applicant, Raphael Pierre, was injured in a motor vehicle accident on August 27, 2004. He applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.1 However, the parties were unable to resolve their dispute about medical benefits through mediation, and Mr. Pierre applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
- Is Mr. Pierre entitled to receive a medical benefit, claimed pursuant to section 14 of the Schedule, for: (a) chiropractic treatment, massage therapy and acupuncture, provided by East Sheppard Rehabilitation Company Ltd. from November 23, 2004 to January 28, 2005, in the amount of $941.50; and (b) prescription medication in the amount of $83.31?
Result:
- Mr. Pierre is not entitled to a medical benefit claimed pursuant to section 14 of the Schedule for: (a) chiropractic treatment, massage therapy and acupuncture, provided by East Sheppard Rehabilitation Company Ltd. from November 23, 2004 to January 28, 2005, in the amount of $941.50; and (b) prescription medication in the amount of $83.31.
BACKGROUND:
Although the quantum of medical benefits in dispute in the case before me is quite small, the larger issue is the standard of proof required to establish whether expenses claimed under section 14 of the Schedule are reasonable and necessary. The test for entitlement to medical expenses is set out in section 14 of the Schedule. Subsection 14(1) states that the "Insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit." Subsection 14(2) requires that the medical benefit "shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for ... (b) chiropractic, psychological, occupational therapy, and physiotherapy and ... (h) other goods and services of a medical nature that the insured person requires." Mr. Pierre is required to establish, on the balance of probabilities, that the medical benefits in dispute were reasonable and necessary as a consequence of his accident.
EVIDENCE:
Mr. Pierre is a 58-year old automotive mechanic who was involved in a motor vehicle accident on August 27, 2004. He was travelling in the right eastbound lane of Eglinton Avenue West at 7:40 p.m. As he was driving past Winona Road a Honda CRV 2-door Jeep hit his vehicle on the left passenger side.
Subsequently, Mr. Pierre attended Simply Align Rehabilitation for treatment until October 8, 2004. RBC approved a treatment plan for $2,788 which included massage therapy, acupuncture, exercise, aerobics and a cervical pillow. Dr. Nima Pardinsnia, the treating chiropractor, signed a discharge note on November 4, 2004, which stated under recommendations: "Over 90% improvement objectively on day of patient's last visit, October 8, 2004. I do not feel extension of the proposed treatment plan (OCF-18 dated September 3, 2004) due to fast recovery by the patient". The reason checked for the discharge of Mr. Pierre was "stopped attending.2"
In his testimony, Mr. Pierre stated that he did not agree with the conclusion that he was 90% improved. While he returned to work almost immediately after the accident, he did not concede that he was fully able to participate as before. Also, he testified that he took 2 weeks with modified duties at his business where he restricted himself to answering phones and doing paper work. He claimed he could not work the same number of hours and required the services of an assistant with his repair work. In fact, he testified that he has still not fully recovered from the accident and does not work the long hours that he did prior to the accident. Mr. Pierre testified that he worked as an auto mechanic 60 to 80 hours per week before the accident. He was also a very active person who had a black belt in karate. Although he had motor vehicle accidents in 1994 and 1999, he had recovered by January 2000. Mr. Pierre testified that he did not see his family doctor, Dr. Williams, for a 4-year period. He returned to Dr. Williams on February 13, 2004 due to back, neck and shoulder pain. He was prescribed Diclofenac Sodium for his arthritic problems and Ranitidine for the stomach problems caused by the arthritis medication.
Mr. Pierre was concerned about ongoing pain in his elbow and back after the accident. In his view, the treatment at Simply Align was not addressing this problem. For that reason, he attended at East Sheppard Rehabilitation Company Ltd. (East Sheppard) from November 23, 2004 to January 28, 2005 for active and passive treatment, including chiropractic, massage, heat therapy, and acupuncture. He was diagnosed by Dr. Grant Alyea with: cervical sprain/strain with intermittent numbness, lumbar sprain/strain with facet irritation and left shoulder/elbow strain/deep tissue bruising.3
Mr. Pierre testified that the treatment at East Sheppard was excellent, but he could provide few details about the treatment and his response to it. He claimed that he started to feel better as a result of the treatment from November to December. When Mr. Pierre was questioned about his treatment from December to January, he testified that he eventually decided to stop treatment because he had no real need for the intervention of medical people at that stage. He preferred to handle his problems himself and exercise at home. He still experiences pain in his elbow and wrist.
East Sheppard submitted 3 treatment plans to RBC. They were dated October 7, 2004, November 20, 2004 and December 2, 2004, respectively. The first treatment plan was approved but the remaining two treatment plans were rejected.
The treatment plan dated October 7, 2004 provided for an initial examination together with twelve sessions of chiropractic, massage, active rehabilitation exercises, IFC modalities, and a hot pack.
The treatment plan dated November 20, 2004 includes a 6 week course of 6 chiropractic sessions, 6 massage treatments, 6 IFC modalities, 6 sessions with the hot pack, and 6 sessions of active rehabilitation exercises.
The treatment plan dated December 2, 2004 recommended 12 sessions of acupuncture at $69 a session for a total of $720. My understanding is that Mr. Pierre never attended for acupuncture and is not claiming a medical benefit related to the third treatment plan.
In an in-home assessment report dated November 11, 2004, Laurie Taylor, the occupational therapist at Functional Rehabilitation Inc., found that Mr. Pierre demonstrated adequate ranges of motion and functional abilities to complete all aspects of self-care safely and independently.
RBC initially relied on a multi-disciplinary insurer's examination provided by Riverfront Medical Services to deny the two treatment plans. A functional capacity evaluation was performed by a kinesiologist on December 9, 2004 and an orthopaedic assessment was conducted by Dr. Ernest White on December 15, 2004. Dr. White concluded that Mr. Pierre had reached maximum medical recovery from any formal therapy treatments and was not disabled.4 Dr. White noted that Mr. Pierre had told him that he was "currently working his regular pre-loss occupation. He did not demonstrate any reason during the course of the evaluation to suggest that he should not continue in this capacity."5
A medical/rehabilition DAC assessment on January 21, 2005 determined that the two treatment plans dated November 20, 2004 and December 2, 2004 were not reasonable and necessary. The report issued by Accident Injury Management Clinics concluded that there were no objective physical findings indicating any musculoskeletal impairment. Dr. D. Hytman, the chiropractor, observed that: "Review of his file revealed approval for 2 full courses of active and passive therapy. I believe the aforementioned treatment to be sufficient considering the injuries he sustained ... .6
The attendance/sign in sheets from East Sheppard document a total of 5 visits from Mr. Pierre on the following dates: November 30, December 2, December 9, December 28, 2004 and January 28, 2005.7 However, Mr. Pierre testified that he attended regularly on 2 days of the week, Tuesdays and Thursdays, approximately 18 times during the period in dispute.
Claim for Medication
Mr. Pierre submitted a claim for the following prescription expenses: $34.43 for Ranitidine, $48.88 for Diclofenac Sodium, and $11.64 for Tylenol #2. RBC approved the expense for Tylenol #2. However, it rejected the claim for Ranitidine and Diclofenac Sodium prescription expenses. Ranitidine is a medication used to treat and prevent the recurrence of ulcers and to treat other conditions where the stomach makes too much acid. Diclofenac Sodium is an anti-inflammatory analgesic often used to treat inflammation and pain arising from arthritis.8
ANALYSIS AND CONCLUSION
Many arbitral decisions have examined the question of reasonable and necessary treatments in the context of section 14. A criterion for determining whether treatment is reasonable and necessary is the identification of treatment goals which must be reasonable and should be met to a reasonable degree. The treatment must be appropriate to the goals and to the person. As well, the frequency, cost and duration of the treatment itself must be reasonable.
In the case before me, Mr. Pierre returned to work shortly after the accident but continued to obtain medical treatment. Arbitral decisions have established that pain relief can be a valid treatment goal provided that it does not foster indefinite dependency or interfere with other aspects of rehabilitation.9 However, Mr. Pierre was equivocal in his testimony about the benefit of his treatment at East Sheppard. Also, no particulars were provided by him about his treatment sessions at East Sheppard. Not only was he unable to discuss with any specificity the modalities offered by the treatment facility, his recollection about the number of times he attended the clinic during the relevant time period was not consistent with the clinic records.
Despite repeated requests by RBC for clinic records, it was not until the day of the hearing that any documents were produced from the clinic with respect to attendance sheets, clinical notes and progress reports. No witness appeared from East Sheppard to authenticate the records or testify about the diagnosis for Mr. Pierre, treatment goals, the nature and frequency of his treatment, or his response to treatment. For that reason, I attach little weight to the clinic records.
RBC relied on Pinto and Allstate Insurance Company of Canada10 where the arbitrator found that the only evidence regarding the treatment at East Sheppard were Mr. Pinto's statements that he "felt better" following treatment. I agree with the decision in Alves and Commercial Union Assurance Company11, which found that generalized assertions that therapy is beneficial are insufficient. This case shares some similarities to Pinto. Although Mr. Pierre testified, he was extremely vague about his treatment sessions at East Sheppard Rehabilitation. It was unclear whether the treatments he received during the disputed period were beneficial to him. On the other hand, RBC provided a great deal of medical evidence which asserted that the treatment sessions at East Sheppard were not reasonable and necessary.
I find that the 2 prescriptions for which Mr. Pierre seeks payment were medications which he took prior to the accident for arthritis and the consequent stomach problems arising from the arthritis medication. I received no medical evidence that the disputed prescriptions resulted as a consequence of the accident.
I find that Mr. Pierre has not satisfied his burden of proof with respect to his claims for medical benefits. Therefore, Mr. Pierre is not entitled to the medical benefits claimed under section 14 of the Schedule.
EXPENSES:
If the parties are unable to agree on the issue of expenses, they may make submissions in accordance with Rule 79 of the Dispute Resolution Practice Code.
January 26, 2007
Judith Killoran Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 13
FSCO A05-001289
BETWEEN:
RAPHAEL PIERRE Applicant
and
RBC GENERAL 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:
- Mr. Pierre is not entitled to a medical benefit claimed pursuant to section 14 of the Schedule for: (a) chiropractic treatment, massage therapy and acupuncture, provided by East Sheppard Rehabilitation Company Ltd. from November 23, 2004 to January 28, 2005, in the amount of $941.50; and (b) prescription medication in the amount of $83.31.
January 26, 2007
Judith Killoran Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Arbitration brief, Tab 15
- Exhibit 2, Applicant's Supplementary Index, Disability Certificate, p. 13
- Exhibit 4, Insurer's Arbitration Brief, Tab. 12, FCE, pg. 8
- Exhibit 4, Tab 12, Dr. E. White's assessment, p. 6
- Exhibit 4, Tab 13, AIM chiropractic assessment report, p. 4
- Exhibit 2, Supplementary Index, pp. 4 - 6
- Exhibit 4, Tab 10, Explanation of Benefits dated Sept. 23, 2004, p. 2
- Glinka and Dufferin Mutual Insurance Company (FSCO A99-000849, November 21, 2000)
- (FSCO A05-000403, January 4, 2006)
- (FSCO P99-00028, August 25, 2000)