Neutral Citation: 2008 ONFSCDRS 173 FSCO A07-000293

BETWEEN:

MARIA EDWARD Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: William J. Renahan Heard: June 9, 10 and 11, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David S. Wilson for Mrs. Edward Pamela A. Brownlee for TD Home and Auto Insurance Company

Issues:

The Applicant, Maria Edward, was injured in motor vehicle accidents on March 6, 2001 and April 30, 2001. She applied for and received statutory accident benefits from TD Home and Auto Insurance Company, payable under the Schedule.¹ TD Home refused to fund a treatment plan proposed by Dr. Ron Fuller, a chiropractor, for treatment in the amount of $1,154.72.

The parties were unable to resolve their disputes through mediation, and Mrs. Edward 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 Mrs. Edward entitled to payment pursuant to section 14 of the Schedule for treatment proposed in a treatment plan by Dr. R. Fuller dated November 28, 2005?
Is either party entitled to expenses of the arbitration proceeding?

Result:

Mrs. Edward is not entitled to payment for treatment proposed in a treatment plan by Dr. R. Fuller dated November 28, 2005.
The issues of entitlement to and amount of expenses of the arbitration proceeding are deferred.

EVIDENCE AND ANALYSIS:

Background:

Mrs. Edward is 39 years old now, married with four children. She had no health complaints until her first motor vehicle accident in March 1996. Since then she has had four motor vehicle accidents and she continues to complain of pain from soft tissue injuries. She admits that accidents on October 4, 1998 and November 16, 1998 aggravated her complaints and that she has never recovered.

This application for arbitration is concerned with the reasonableness and necessity of treatment proposed by Dr. Ron Fuller, a chiropractor, at the end of 2005, arising out of accidents on March 6, 2001 and April 30, 2001.

According to Mr. Edward Singarajar, Mrs. Edward's husband, the March 6, 2001 accident occurred in a parking lot when his vehicle was struck on the rear driver's side. It cost about $2,000 to repair the bumper and light. The April 30, 2001 accident occurred when Mr. Singarajar struck the vehicle in front of him. The damage to his vehicle was more than $3,500.

Mrs. Edward's testimony:

In examination in chief, Mrs. Edward was not sure whether she had shoulder problems prior to 2001. She could not remember the parking lot collision or whether previous injuries were aggravated in 2001. She could not remember whether her low back was worse after the 2001 accidents. She could not remember if Dr. Fuller treated her back injury in 2005, although she could remember him treating her neck and right shoulder.

In cross-examination, Mrs. Edward could remember the parking lot collision, but she could not remember the other accident in 2001.

In answer to my question what Dr. Fuller did for her, Mrs. Edward said that he massaged her neck and demonstrated exercises. She could not remember what else he did.

Dr. Brian Kirsch specializes in pain medicine and psychiatry. He did an assessment for Mrs. Edward's lawyer in March 2005 and he considered Mrs. Edward to have borderline low intelligence.

I find that Mrs. Edward's inability to describe the accidents, her injuries, her complaints and her treatment with any detail or clarity is due to her low intelligence. She was not a persuasive witness. Considering her inability to describe other relevant aspects of her claim, I do not accept, by itself, her testimony that she received immediate and temporary relief following treatment by Dr. Fuller.

Mr. Singarajar's testimony:

Mr. Singarajar is Mrs. Edward's husband. He testified that his wife complained of neck, lower back and right shoulder pain and headaches before the 2001 accidents. She was also depressed. After the 2001 accidents she had more pain and depression. When asked in examination in chief how she was before and after treatment, he said that he did not notice after one day, only after a couple of weeks did she complain of less pain. He said that sometimes she was better for two or three hours, or some days two days.

Dr. Natalia Lishchyna's testimony:

Dr. Lishchyna is a chiropractor who considered Dr. Fuller's treatment plan as part of an assessment at a Designated Assessment Centre. She testified at the hearing. Although requested, she did not bring her notes made contemporaneously with the examination. She did not know where her notes were. I placed little weight on her testimony or report because Mr. Wilson did not have a fair opportunity to cross-examine her.

Mrs. Edward's complaints:

Since the first motor vehicle accident in 1996, Mrs. Edward has seen her family doctor, Dr. L. Kahansky, about once a month. On referral from Dr. Kahansky in May 2000, she has seen Dr. V. Kekosz, a physiatrist, about every three to six months. Several other doctors have assessed her.

Since 1996, Dr. Kahansky has reported that Mrs. Edward continued to suffer from pain in many parts of her body, including right low back, neck, shoulder and headaches. Her records include several references to Mrs. Edward's complaints remaining substantially unchanged. Dr. Kahanksy noted that Mrs. Edward's complaints increased following each motor vehicle accident. Following the March 6, 2001 accident she recorded that Mrs. Edward had increased neck and shoulder pain. Following the April 30, 2001 accident she recorded that Mrs. Edward complained of new pain in her right lower back and felt that the neck, right arm and right shoulder pain had flared up.

Dr. Kekosz saw Mrs. Edward six months after the April 2001 motor vehicle accident. She reported that Mrs. Edward did not recall any new injuries and that she suffered an acute exacerbation of previous neck, shoulder and lower back injuries.

I find that Mrs. Edward complained of pain in her low back, neck and shoulders continually following the 1996 accident and that each subsequent accident, including the two in issue in this case, aggravated that pain.

Prior treatment and recommendations:

In October 1996, Dr. A. Oshidari strongly encouraged aquatic therapy as soon as possible. Dr. Kahansky reported that following Dr. Oshidari's recommendations, Mrs. Edward's complaints remained the same. Similarly, following exercise and manipulation by a chiropractor, her complaints remained the same.

In December 1996, Dr. Richard Magder, a neurologist, reported to Dr. Kahansky that Mrs. Edward had physiotherapy for six months with no improvement. That same month, the physiotherapist noted that Mrs. Edward found physiotherapy helpful.

In 1997, Dr. John VanDeursen, a psychologist, reported to Dr. Kahanksy that Mrs. Edward was frustrated that she was not improving and that various treatments had been provided with limited relief.

In 2000, a year before the motor vehicle accidents in question, Dr. Kekosz reported to Dr. Kahansky that following the 1996 accident, Mrs. Edward had attended three different clinics but the treatments only resulted in temporary relief of pain. In a report six months before the March 2001 accident, Dr. Kekosz reported to Dr. Kahansky that Mrs. Edward was attending physiotherapy three times a week and that she was slowly improving.

In 2005, Dr. Kekosz reported to Dr. Kahanksy that Mrs. Edward had two or three weeks of chiropractic therapy which gave her temporary relief of pain. Dr. Kekosz summarized her bi-annual office consultations from 2000 to 2005. In 2000 and 2001, she encouraged Mrs. Edward to continue with physical and psychological therapy. From September 2001 to January 2005 she noted that no therapies were advised. In October 2005, she noted that Mrs. Edward had started some chiropractic treatment.

As early as October 1996, Dr. Oshidari recommended general conditioning and active exercise. In 1997, Dr. Howard Weinberg, orthopaedic surgeon, stressed the importance of exercise. In 1998, Dr. Sharon Kreidstein, a rheumatologist, reported to Dr. Kahansky that exercise and reconditioning was her best advice. Dr. Kekosz recommended on several occasions daily walks, daily stretching, a gym membership with exercise two or three times a week and rest. In 2006, Dr. Kekosz reported to Dr. Kahanksy that Mrs. Edward was not doing any specific exercises. I found no evidence that Mrs. Edward was exercising.

Behaviourial component:

Dr. Kahansky referred Mrs. Edward to Dr. B.R. Raghunan, a psychologist, in October 1996. The records indicate that Mrs. Edward saw Dr. Raghunan monthly up to 2001. One record indicates that she found him extremely helpful, one that he was helpful and another that she received no substantial improvement to her psychological complaints. In 2002, Mrs. Edward was seeing Dr. J. Rajendra, another psychologist, every two months.

In December 1996, Dr. Richard Magder, a neurologist, suspected a behavioural component to Mrs. Edward's symptoms and suggested referral to a pain management clinic which emphasized behavioural therapy if Mrs. Edward did not improve following physiotherapy.

In March 1998, Dr. Sharon Kreidstein, a rheumatologist, found significant emotional overlay and chronic pain.

In December 2005, Dr. A. Mistry, a psychologist, diagnosed a chronic adjustment disorder with a serious level of dysfunction.

Proposed treatment:

The treatment plan of Dr. Fuller in issue is dated November 28, 2005 and proposes 12 sessions of myofascial therapy, 12 of mobilization, adjustments, 12 sessions of active care and one re-assessment, at a cost of $1,154.72.

Opinions and analysis:

Dr. Kahansky's reports show that since 1996, intervening accidents have exacerbated Mrs. Edward's complaints but her complaints have not changed much since 1996 despite her recommendations. In June 2001, following the two accidents under consideration, she wrote to Mrs. Edward's lawyer:

It appears, from reviewing Mrs. Edward's medical history and the opinions of numerous specialists, that Mrs. Edward is suffering from depression, chronic pain syndrome and possible post-traumatic stress disorder.

The chronicity of Mrs. Edward's symptoms, her poor coping skills and her very poor response to multiple therapeutic modalities (ie. physiotherapy, psychotherapy, medication) make me believe her prognosis for a return to her pre-accident status (ie. no myofascial pain, no depression or anxiety) is very guarded and likely should be considered poor.

In a report to Mrs. Edward's lawyer in May 2006, Dr. Kekosz summarizes her office consultations with Mrs. Edward. Most summaries refer to Mrs. Edward not receiving therapy or no therapies were recommended. The only reference I found in Dr. Kekosz's records to Mrs. Edward receiving temporary relief from chiropractic treatment was a note to Dr. Kahansky in October 2005. Otherwise, most of her advice concerned exercise.

In his treatment plan under consideration, Dr. Fuller admitted that Mrs. Edward had a "relatively poor response to various prior therapeutic approaches." I was not directed to, and did not find any evidence that his approach would succeed where other approaches had failed.

Dr. Brian Kirsch is a specialist in pain medicine and psychiatry. He did an assessment for Mrs. Edward's lawyer in March 2005. He wrote:

Her presentation is consistent with a bone-fide and severe health problem, namely Chronic Pain Disorder Associated with Psychological Factors. This implies that psychological factors are the main factors in prolonging pain. I have no difficulty accepting that this woman feels pain based on the history that she recounted but it is my opinion that pain is no longer being generated by the original strains. These healed long ago and now deconditioning and likely poor posture is generating any pain arising from the body. . . . Ms. Edward's presentation is consistent with an individual who greatly exaggerates pain levels by the psychological process of somatization, a process that is out of her conscious awareness. [emphasis in original]

Dr. Kirsch found that Mrs. Edward had stresses in her life prior to the 1996 motor vehicle accident and because of her psychological makeup, she could not cope with another stressor, namely, pain. As a result she decompensated and

. . . subconsciously allowed herself to attribute the emotional problems she was experiencing in her life to a physical cause and this allowed her to absolve herself of any responsibility for her life difficulties. Physical illness is a society-sanctioned reason for disability because, in her mind, depression, marital problems, and the like are unacceptable. The society and sub-culture in which she was raised never demonstrated that women in this predicament would be cared for and she probably has even less support here in Canada. I agree with others that she is likely a passive, dependent, immature woman of low intelligence who was able to cope in a sheltered environment when she was well, but she does not have the skills to manage more serious challenges. She has come to believe that she is totally disabled by pain. Of course, on the physical side, she is capable of more than she demonstrates but with minor physical or emotional stresses, her mind exaggerates the level of pain and convinces her that she is unable to function. Part of this syndrome is maintained by family who themselves have never acquired the skills to work with someone so afflicted.

. . . Invalidism has become her chosen way of life and I do not believe that this will change even after this legal case is settled. This disabled lifestyle ensures that she will be taken care of without her taking responsibility for her life. Her prognosis is poor.

There is no specific treatment that can help this condition. Her family doctor should see her on a regular basis for support and encouragement

The occasional reference to Mrs. Edward receiving temporary relief of pain from physical therapies is outweighed by much more evidence that she has not received any benefit from physical or psychological treatment. Dr. Kirsch was the only assessor who found it significant that Mrs. Edward was a "passive, dependent, immature woman of low intelligence," factors that were apparent in Mrs. Edward's testimony and factors which help explain why she did not benefit from treatment. Dr. Kirsch has provided a reasonable explanation for her condition and inability to benefit from treatment. I accept and agree with his opinion that no specific treatment can help Mrs. Edward.

Accordingly, I find that Dr. Fuller's treatment plan of November 28, 2005 is not reasonable or necessary.

EXPENSES:

If the parties cannot agree on the issue of entitlement to expenses of the arbitration hearing, they may make written submissions. The party requesting expenses has 30 days to file submissions and the responding party has 15 days to respond.

October 29, 2008

William J. Renahan Arbitrator

Financial Services Commission of Ontario