Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 197

FSCO A04-001750

BETWEEN:

JENNIFER ESTERREICHER

Applicant

and

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S

Insurer

REASONS FOR DECISION

Before: Jeffrey Rogers

Heard: October 27, 28 and 29, 2008, in Thunder Bay, Ontario.

Appearances: Mr. Christopher D. J. Hacio, solicitor for Ms. Esterreicher Mr. Peter I. Aldgate, solicitor for Non-Marine Underwriters, Mbrs. of Lloyd’s

Issues:

The Applicant, Jennifer Esterreicher, was injured in a motor vehicle accident on December 23, 2000. She applied to Non-Marine Underwriters, Mbrs. of Lloyd’s (“Lloyd’s”) for payment for certain treatment under section 14 of the Schedule.¹ Lloyd’s denied that she was entitled to payment. The parties were unable to resolve their dispute through mediation, and Ms. Esterreicher 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 Ms. Esterreicher entitled to receive payment of the following as medical benefits, pursuant to section 14 of the Schedule?

$3,659.60 for the balance owing for treatment provided by Monique Hansen, as set out in treatment plans dated May 8, 2005, April 20, 2006 and November 17, 2006;
$90 for the balance owing for treatment provided by Dr. JoLayne Advent, as set out in treatment plans dated March 6, 2006 and July 23, 2007;
$680 for the balance owing for treatment provided by Tara Mueller, as set out in treatment plan dated November 23, 2006; and
$220 for the cost of two further sessions with Tara Mueller, as set out in treatment plan dated November 23, 2006.

Is Ms. Esterreicher entitled to interest for the overdue payment of benefits, pursuant to section 46(2) of the Schedule?
Is either party liable to pay the other’s expenses of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Result:

Ms. Esterreicher is entitled to payment of $4,429.60, the total claimed for incurred treatment.
Ms. Esterreicher is entitled to payment of $220 for two further sessions with Tara Mueller, subject to deduction for her entitlement to collateral benefits.
Ms. Esterreicher is entitled to interest on the overdue payment of benefits on the incurred amounts, pursuant to section 46(2) of the Schedule.
The decision on expenses is reserved, to be resolved pursuant to Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE:

Introduction

On December 23, 2000 Ms. Esterreicher was heading from Winnipeg to Thunder Bay on a Greyhound bus insured by Lloyd’s, when it veered off the highway and rolled over. She was thrown out of a window and landed on her left side. She was taken to the Thunder Bay Regional Hospital where she was examined, prescribed painkillers, and released. According to the hospital records², her complaints were mid-back pain and left elbow pain.

Section 14 of the Schedule requires Lloyd’s to pay for, among other things, all reasonable and necessary chiropractic and physiotherapy treatment and other reasonable and necessary services of a medical nature, incurred as a result of the accident. In this arbitration, Ms. Esterreicher seeks payment of the outstanding balance for chiropractic, massage therapy and physiotherapy treatment she received between May 2005 and October 2008. She also seeks payment for two further sessions recommended by the physiotherapist.

The balance that Ms. Esterreicher claims from Lloyd’s is modest because most of the cost of her treatment is covered by her health plan through her employment as a probation officer. Lloyd’s denied the claim on the principle that the passive therapy upon which it is based is not reasonable and necessary so long after Ms. Esterreicher was injured. Lloyd’s also questions whether the injuries for which Ms. Esterreicher was treated result from the accident.

Ms. Esterreicher gave evidence at the hearing. Her family doctor and the three health care professionals who provided the disputed services, also testified on her behalf. Lloyds relied on the evidence of Dr. Hugh Cameron, an orthopaedic surgeon who assessed Ms. Esterreicher on Lloyd’s behalf.

There is no evidence to suggest that the information in the medical records and reports and Ms. Esterreicher’s testimony regarding her pre-accident health, her post-accident treatment and rehabilitation, her work history and her working conditions are inaccurate or unreliable. There was nothing in the way in which that evidence was given or in its content that suggests that it is not reliable. I accept that evidence and will recount it as fact.

Ms. Esterreicher’s Background and History of Treatment

Ms. Esterreicher was 27 years old at the time of the accident. She was a full-time student at the University of Winnipeg, enrolled in the Law and Justice Enforcement program. She was paying her way through school by working in a group home in Winnipeg during the school year and as a cook in a restaurant in Sioux Lookout in the summer. She was born in Winnipeg and moved to Thunder Bay at age 20. She was on her way to visit her family in Thunder Bay for Christmas, when the accident happened.

After the accident, Ms. Esterreicher continued with her education and employment, graduating in 2002. Upon graduation she returned to Sioux Lookout, resuming her job as a cook. She missed only a few days of work. She then got a job as a probation officer for adults. She moved to Toronto in 2003, where she also worked as a probation officer for adults. In November 2004, she returned to Sioux Lookout, where she secured her present job as a youth probation officer with the Ministry of Children and Youth Services. At the time of the hearing she had been on maternity leave for the last 11 months, with an anticipated return to work in late November 2008. This was her first child. She is a single mother, receiving no assistance of any kind from the child’s father.

The history of her treatment as she recounted it and as contained in the medical records and reports filed indicates that Ms. Esterreicher returned to Winnipeg a few days after the accident and sought treatment at a Walk-In Clinic. She was examined there by Dr. Sowemimo. According to the statement she gave to Lloyd’s on March 23, 2001,³ Dr. Sowemimo repeated a test on her kidneys that had been conducted in Thunder Bay, and recommended that she seek physiotherapy for her back. Her evidence was that she did not think that she could afford physiotherapy, so she went to see Dr. Asim Ashique for chiropractic treatment, which was cheaper.

Dr. Ashique reports that she saw him about 35 times between January 31, 2001 and April 23, 2001. His records indicate that her complaint was “mid & low back” pain.⁴ Ms. Esterreicher testified that she was having difficulty sitting in lectures and walking to classes. In March, she told Lloyd’s that she was concerned about her ability to resume her summer job in Sioux Lookout. Her statement indicates that her main complaint at that time was her back, but she had a scar on her knee, a lump on her head and her elbow was still sore.⁵ She testified that Dr. Ashique’s treatment decreased her pain and helped with her general ability to function. However, the relief was only temporary. Dr. Ashique’s records indicate that initially, she saw him almost every day and was seeing him about 3 times a week in April.

When Ms. Esterreicher returned to Sioux Lookout in April 2001, she sought further chiropractic treatment from Dr. JoLayne Advent. Her first appointment was on May 10, 2001. Treatment continues to the present time, with breaks when Ms. Esterreicher returned to Winnipeg to complete her degree and when she was in Toronto in 2003 and 2004.

While in Toronto, Ms. Esterreicher received further chiropractic treatment and some massage therapy, the details of which were not provided. In July 2004, Ms. Esterreicher sought treatment in Toronto from Dr. Elizabeth Tham, a family doctor. She complained of pain in her back, left elbow and left knee. Dr. Tham sent her for x-rays. The x-rays of the knee and elbow were normal but the x-rays of her spine revealed that she had suffered a fracture at the T11 level of her thoracolumbar spine.⁶ Dr. Tham referred her to Dr. Joseph Man Kwong Kwok, an orthopaedic surgeon. Dr. Kwok saw her on November 3, 2004, a few days before she moved back to Sioux Lookout. Dr. Kwok sent her for an MRI which confirmed the fracture at T11. He found no other orthopaedic abnormality and did not provide any treatment.

In April 2004, Ms. Esterreicher was referred to Dr. Dilkhush Panjwani, staff psychiatrist at the Trilllium Health Centre, in Toronto. He assessed her on April 13, 2004.⁷ Ms. Esterreicher reported numerous symptoms, including repetitive senseless thoughts and behaviours, fainting or feeling faint, irritability, headaches, fear of losing control, insomnia, fatigue and fear of going crazy. He notes no similar history prior to the accident. Dr. Panjwani’s diagnosis was major depressive disorder, post-traumatic stress disorder, post-concussion syndrome and chronic pain disorder. He prescribed medication for depression and advised Ms. Esterreicher on pain and stress management. Dr. Panjwani’s notes show four further visits, the last one on February 4, 2005. The notes of the last visit indicate that Ms. Esterreicher’s psychiatric issues were not resolved and she was still on medication for depression and anxiety. Although Ms. Esterreicher stopped seeing Dr. Panjwani, she has continued taking medication for depression and anxiety, under prescription from Dr. Fry, who was her family doctor until her pregnancy.

The treatment at issue in this arbitration was provided after Ms. Esterreicher returned to Sioux Lookout and secured her present job. On March 7, 2005 she was assessed by Dr. Fry who had previously seen her once in 2002. She complained of chronic back pain since the accident. Dr. Fry referred her for massage therapy and chiropractic treatment, noting that it had been beneficial in the past.⁸ Ms. Esterreicher then saw Ms. Monique Hansen, massage therapist, on March 12, 2005.⁹ Ms. Hansen submitted treatment plans, approved by Dr. Fry, dated May 8, 2005, April 20, 2006 and November 17, 2006.¹⁰ The stated goals of the plans were reduction of headaches, pain reduction and return to pre-accident work activities. The records indicate that Ms. Esterreicher attended for the proposed treatment and has continued to receive treatment from Ms. Hansen, about once every two weeks.

The records indicate that Ms. Esterreicher started getting further chiropractic treatment from Dr. Advent in November 2004 and has continued to see Dr. Advent about once a month since then. Dr. Advent submitted treatment plans dated March 6, 2006 and July 23, 2007.¹¹ The stated goals of the plans were pain reduction, return to pre-accident work activities and return to activities of normal living.

Ms. Esterreicher testified that Dr. Fry referred her for physiotherapy at the hospital in Sioux Lookout, but she never received any treatment there. She was put on a waiting list and was never contacted. There is a chronic shortage of physiotherapists in Thunder Bay. In May 2006, she had the opportunity to receive physiotherapy from Tara Mueller. Ms. Mueller practices in King City, but in 2006 she started conducting clinics in Sioux Lookout about once every 4 months. Ms. Mueller submitted a treatment plan dated November 23, 2006. It proposed 10 sessions of treatment with stated goals of pain reduction, increase in strength, increase in range of motion and return to activities of normal living. She has seen Ms. Esterreicher 8 times so far. Because of conflicting schedules, there has been no treatment for the last year.

Ms. Esterreicher’s Exercise Regimen

Ms. Esterreicher agrees that exercise is an important part of her overall plan for management of her pain and symptoms of depression. Starting with Dr. Ashique, the chiropractor she saw upon returning to Winnipeg after the accident, all of her health care professionals have recommended and encouraged exercise and have specifically recommended swimming. She testified that she has always followed their recommendations. She has done a lot of swimming in Winnipeg, Toronto and Sioux Lookout. She was a member of the Kingsway Fitness Centre in Toronto, where she also did some weight training. She joined Curves when a franchise opened in Sioux Lookout and continued to use its facilities until the centre closed. She now uses a community pool. She uses an exercise ball, weights and a treadmill at home. When Ms. Hansen suggested yoga, she bought books and tapes on the subject and started attending classes and doing yoga at home. Ms. Hansen notes in her treatment plan dated March 6, 2006 that Ms. Esterreicher had taken the initiative to start a regular swimming and exercise program on her own.¹²

Ms. Esterreicher testified that, until the advanced stages of her pregnancy, she was exercising two hours a day. Ms. Hansen notes in her treatment plan dated November 17, 2006 that exercise was consuming much of Ms. Esterreicher’s free time.¹³ Ms. Esterreicher testified that she could not swim during the advanced stages of pregnancy and her time to exercise was limited by the initial demands of taking care of her son. Now that her son is on a routine, she is back to swimming and exercising every day. She also attends yoga classes twice a week.

Ms. Esterreicher’s Job Demands

Ms. Esterreicher is a probation officer for young offenders. A Functional Capacities Assessment, conducted in 2005,¹⁴ indicates that this position is classified as limited. That classification means that the position involves handling loads of up to 5 kg and sitting is required but no limb co-ordination is required. Ms. Esterreicher testified that, although her position could be fairly sedentary, her particular assignment is not. Her assignment requires a lot of travel. She provides services to 8 First Nations Reserves, accessible only by plane. The planes are cramped, 12-seaters or smaller, and the cramped conditions aggravate her back pain. The runways are not paved, therefore the landings are bumpy and that also aggravates her back pain. There are no hotels, taxis or exercise facilities and one could not count on the availability of even the most basic supplies. She must pack her computer, extra clothes and food. If she is not picked up at the airstrip, she must carry all of her luggage to the reserve, which could be several kilometres away. The jails in which she must visit her clients are equally remote.

In addition to the demands of travel, her assignment also exposes her to some unique risks. Her clients are all high-risk teens. There is a high threat of physical attack. In one reserve, there is the possibility of being attacked by a polar bear. In others she must guard against attack by packs of wild dogs that group together as winter approaches. Ms. Esterreicher’s evidence was that the local police usually forestalls groupings by shooting the dogs on sight. Ms. Esterreicher’s evidence about the conditions in these remote communities seemed outlandish, until Ms. Hansen confirmed it. Ms. Hansen described them as dark, cold and scary places.

Ms Esterreicher testified that the demands of her job require her to be in good physical condition. They also restrict her ability to exercise consistently. Even going out for a walk on a reserve was risky because there were no paved roads, no street lights, dogs or bears might be on the prowl and she might become a target because of her race. She testified that she has unsuccessfully sought a transfer to a more conventional position in Thunder Bay for three years.

Benefits of Treatment

Ms. Esterreicher agrees that the benefits of the treatment are temporary. She testified that she reached maximum recovery in 2006. She estimated that treatment provides pain relief for five to seven days. Her evidence was that she requires the treatment in order to continue to meet the demands of her job and her other activities. She agrees that exercise is an important component of her pain management strategy and that her pain and anxiety are exacerbated when she neglects her exercise routine. Her evidence was that exercise has allowed her to increase the time between her visits for treatment. She testified however that exercise also increases her level of pain and one of the benefits of the treatment she receives is that it allows her to continue her exercise program. She agrees that exercise is the most important factor in her management of anxiety, but it is not a complete solution because she still takes medication for that condition. She testified that she has tried to further increase the time between visits for treatment, but the result has been an increase in pain. It would then take several visits for treatment to return to her best level of function.

As noted above, Ms. Esterreicher has not missed work as a result of her injuries, except for perhaps a few days from her job as a cook, in the summer of 2001. She testified that she is able to do her housework and yard work, but it takes her twice a long. Her boss at her present job allows her not to travel on “bad days”. She takes the day off after travel and she uses a lot of Motrin and Advil.

Expert Evidence

(a) Dr. Hugh Cameron

Dr. Hugh Cameron, a vastly experienced orthopaedic surgeon, examined and assessed Ms. Esterreicher on Lloyd’s behalf on December 3, 2004, about 5 months before the first disputed treatment plan was submitted. He concluded that she might have some back symptoms, but he would not relate them to the accident.¹⁵ On February 4, 2005, apparently in response to a request for his opinion on whether further chiropractic treatment was appropriate, he wrote as follows:

It is well known in the rehabilitation field, or should be well known, that any form of prolonged therapy, especially passive, is not only of no value but is actively detrimental in further emphasizing the illness role. Once a full range of movement has been regained there is no indication for further passive therapies.¹⁶

Repeating the finding of his earlier examination, he concluded that further treatment was neither reasonable nor necessary.

In March 2005, Dr. Cameron was asked to review the x-rays of Ms. Esterreicher’s spine, knee and elbow. He agreed that she had possibly sustained a compression fracture at T11 (identified as T12 in his report, but clarified in his testimony). He noted that her post-accident complaints of mid-back pain and a notation in the records of pain in the thoracolumbar joint were consistent with her having sustained this fracture. He concluded however that, based on the severity of the fracture, “one would have expected this lady to have some complaints of pain at the thoracolumbar junction for about 3 months. One would not expect that this, however, would produce long-term symptoms.¹⁷” In his testimony, he agreed that the fracture would have hurt when it was sustained. However, there are no long term effects in the “vast majority” of patients. He agreed that the records show that Ms. Esterreicher has consistently complained of back pain, since the accident and conceded that symptoms do not resolve within the expected time for all patients.

Dr. Cameron authored several further reports, upon receiving more material from Lloyd’s, his most recent being dated March 9, 2007.¹⁸ His opinion did not change. In his latest report, he indicated that it was impossible to determine at this time whether the wedging at T11 was caused by a compression fracture, or an adolescent condition known as Scheurmann’s disease.

Dr. Cameron elaborated on his reports in his testimony. He testified that, when he saw Ms. Esterreicher, he probably spent a total of 25 minutes with her, of which his examination of her was the shortest part. He doubted Ms. Esterreicher’s assertion that he spent a total of 17 minutes with her, but there was no record in his notes of how long he spent. He indicated that he did not ask about how her body was thrown about in the accident, because he would not trust her memory in that regard. He testified that everyone will get neck and back pain at some time. Therefore, unless there is a complaint within a week of the accident, he would not link such pain to the accident. He drew the analogy to spraining one’s ankle. You either sprain it and you know it, or you did not sprain it. He testified that he has never seen a patient who needed ongoing passive therapy, more than several months after an accident. The aim of passive therapy was to get the patient to a full range of motion. That is usually achieved in a few weeks. Once that has been achieved, strengthening and exercise was all that was reasonable and necessary. He described this approach as “not rocket science”. He suggested that what Ms. Esterreicher should do is go to a gym two or three times a week and “do some sit-ups”.

Dr. Cameron chided the service providers who recommended the disputed treatment, saying that they should know better. He indicated that the Chiropractic College warns in its Guidelines against the risk of patients becoming addicted to treatment, but admitted that he could not identify a specific Guideline, not having read them in detail. He was nevertheless confident that the College has issued a warning against the risk dependency. He elaborated on his view of a patient playing the “illness role”, saying that this behaviour was a ploy to avoid doing things, like a child complaining of a stomach ache to avoid going to school. Referring to passive therapy as a “laying on of hands”, he testified that patients can become as addicted to passive therapy as they can to crack cocaine.

Dr. Cameron agreed that pain can persist, even with a full range of motion and he agreed that chronic pain can be debilitating but testified that there is no sure way of telling whether a patient is in pain, absent objective evidence. Any other approach requires reliance on credibility and, when compensation is in issue, he is not prepared to rely on a patient’s credibility.

(b) Med/Rehab DAC

The first treatment plan in dispute in this arbitration was submitted to Lloyd’s by Monique Hansen in May 2005. That plan was referred to a Med/Rehab DAC for consideration of whether the proposed plan was reasonable and necessary for treatment of injuries sustained in the accident. The DAC was conducted on November 30, 2005,¹⁹ almost a year after Dr. Cameron examined Ms. Esterreicher. The plan proposed weekly massage, facial release and acupuncture for as long as Ms. Esterreicher retained her current job. The primary evaluator for the DAC was Lorne Gleeson, a massage therapist. Mr. Gleeson examined Ms. Esterreicher and conducted tests for range of motion in her cervical and lumbar spine. Ms. Esterreicher’s main complaint at the time was back pain. She also complained of pain in the neck and shoulders, leading to headaches.

Mr. Gleeson found normal range of motion, except for a restriction to 40 per cent on flexion of the lumbar spine. The left arm was strong in all positions, with complaint of pain in the elbow. There was weakness in the right arm in the lateral position. Mr. Gleeson also found tightness in the left hip and a hypertonic piriformis muscle on the right side. Everything else was normal. Mr. Gleeson’s diagnosis was sacroiliac joint dysfunction bi-laterally and chronic tension and latent trigger points in the thoracic/shoulder and neck regions. Knowing that Ms. Esterreicher had been going for treatment about once every two weeks since the plan was submitted, Mr. Gleeson nevertheless recommended further treatment, once per week for 10 weeks, then once every 2 weeks for 12 weeks, followed by re-assessments for further recommendations. In effect, Mr. Gleeson recommended that the proposed treatment continue until about May 2006, and then be reassessed. The only health care professionals who have assessed Ms. Esterreicher since then are the ones who have recommended and provided the disputed services.

(c) Ms. Esterreicher’s Treatment Providers

Ms. Esterreicher’s family doctor and the massage therapist, chiropractor and physiotherapist treating her are unanimous in their opinion that the treatment at issue in this arbitration will not result in recovery from her accident related injuries. They agree that her level of recovery has plateaued. Dr. Fry, her family doctor, said that Ms. Esterreicher reached maximum recovery by 2005. Monique Hansen, the massage therapist, said that it was about a year and a half after she started treatment, which would place it at around August 2006. Dr. Advent, the chiropractor, testified that she saw improvement until 2006. Tara Mueller, the massage therapist, placed maximum recovery at 2006 or early 2007. These healthcare professionals concede that the purpose of the treatment is to assist Ms. Esterreicher in managing chronic pain in order to allow her to continue with her activities of daily living. None of them suggests that treatment is the entire solution. They agree that exercise has an important part to play in Ms. Esterreicher’s overall pain management strategy.

Dr. Fry testified that she approved Monique Hansen’s treatment plans because she agrees with the diagnosis of chronic pain disorder that Dr. Panjwani made and she believed that the treatment would be beneficial for pain management. She disagreed with Dr. Cameron’s opinion that long-term, passive therapy is useless or even harmful. She testified that there is abundant literature supporting ongoing therapy in the management of anxiety and chronic pain. She maintained that this treatment should continue as long as Ms. Esterreicher was benefitting from it.

Monique Hansen testified that, when she first examined Ms. Esterreicher in March 2005, she complained of pain in the lower and mid-back, shoulders and neck. Light pressure elicited a pain response. It was immediately evident that Ms. Esterreicher needed counselling because of her anxiety and anger. She also thought that Ms. Esterreicher could benefit from some further chiropractic treatment and she was the one who later recommended Tara Mueller, the physiotherapist. She also immediately recognized the importance of exercise. She testified that Ms. Esterreicher has been eager to comply with all of her recommendations for exercise. She recommended yoga when a teacher came to Sioux Lookout. Ms. Esterreicher not only started attending classes but she also got videotapes so that she could practice at home. When Curves opened, Ms. Esterreicher took the initiative and joined on her own.

Her treatment plan of April 20, 2006 indicates that Ms. Esterreicher was engaging in exercise of various kinds for as long as two hours per day.²⁰ She testified that the exercise included walking, swimming, yoga and going to Curves. She testified that, as her treatment progressed, she was able to palpate Ms. Esterreicher’s muscles and tissue more deeply. Treatment became more vigorous and more specific. She could measure her progress by how tense the tissue felt and how quickly it would release. She testified that her observations “pretty well mirrored” Ms. Esterreicher’s reports of pain. She noted that, although Ms. Esterreicher has plateaued, this is not a static state. Although her treatment plan describes it in general terms, her treatment is now geared to address specific problems as they arise. Ms. Hansen testified that she saw herself as one piece of the pain management puzzle that includes exercise, and all the other treatment Ms. Esterreicher receives. She noted regression whenever Ms. Esterreicher neglected any aspect of her pain management strategy.

Dr. Advent, Ms. Esterreicher’s chiropractor gave similar testimony. She confirmed Ms. Esterreicher’s reports of pain and limitations that were consistent with her own findings upon examination. Her opinion also was that Ms. Esterreicher required a “multi-disciplinary approach”. She thought that she might have been the one who recommended massage therapy. She described Ms. Esterreicher as a model patient who was pro-active in seeking treatment. She also testified that, although she does not expect full recovery, Ms. Esterreicher now has fewer complaints and her problems have become more specific. She measured her progress in terms of allowing Ms. Esterreicher to engage in the activities of daily living. She agreed that exercise was an important component of pain management and noted regression when exercise was neglected, but she also noted regression when treatment was neglected.

Dr. Advent disagreed with Dr. Cameron’s opinion that Ms. Esterreicher is playing the “illness role”. Her opinion was that a patient suffering from chronic pain needs treatment and is entitled to seek it. She had no concerns about dependency. Her evidence was that she has read no research to support Dr. Cameron’s opinion. The research she has read supported her own opinion.

Ms. Mueller testified that she was aware of the massage therapy and the chiropractic treatment Ms. Esterreicher was receiving, when she took her as a patient. She testified that her treatment is not a component of chiropractic or massage. She also noted that there is limited access to physiotherapy in northern Ontario. She saw a role for all aspects of the treatment that Ms. Esterreicher was receiving. Like Ms. Hansen and Dr. Advent, she has also noted some improvement. Her initial hope was for full recovery but she does not now expect that result.

Ms. Mueller testified that she does not like maintenance programs, but her opinion was that Ms. Esterreicher’s circumstances warranted one. She saw a risk that without treatment, Ms. Esterreicher would enter a vicious cycle where increased pain leads to less activity, and less activity leads to more pain, and so on. Ms. Mueller also disagreed with Dr. Cameron’s opinion that further passive therapy is of no benefit to Ms. Esterreicher. She testified that one of the benefits of treatment is to enable Ms. Esterreicher to engage in her exercise program. She described a patient who plays the illness role as one who is trapped by pain and fosters a state of disability. Her opinion was that Ms. Esterreicher has not taken on that role.

ANALYSIS:

As noted above, section 14 of the Schedule requires Lloyd’s to pay for, among other things, all reasonable and necessary chiropractic and physiotherapy treatment and, as reasonable and necessary, services of a medical nature, incurred as a result of the accident. The section raises two questions: first, whether the treatment was incurred as a result of the accident and second, whether it is reasonable and necessary.

(a) Causation

Lloyd’s attacked the question of causation on two fronts. It questioned whether the injuries for which Ms. Esterreicher was treated were caused by the accident and it questioned whether she continued to experience pain from any injuries she suffered. I find that the disputed treatment plans address injuries resulting from the accident. There is no evidence that Ms. Esterreicher suffered any of the symptoms prior to the accident. I do not accept Dr. Cameron’s opinion that symptoms cannot be linked to the accident, unless reported immediately. That opinion does not consider that an injured person is likely to first seek treatment for only the most significant injury, it does not consider the possibility of progressive dysfunction caused by reported injury and it does not consider the psychological sequelae of physical injury, as diagnosed by Dr. Panjwani. In addition, although Ms. Esterreicher did not report all of the symptoms when she attended at the emergency department in Thunder Bay, her symptoms are consistent with the statement she gave in March 2001, when she reported back pain, injuries to her knee and elbow and a bump on her head. That report is sufficiently close to the accident to establish a temporal link. There is no evidence that Ms. Esterreicher suffered any further injuries in the intervening three months.

In any event, the major debilitating factor for Ms. Esterreicher is her back pain which she reported immediately and of which she has persistently complained. I do not accept Dr. Cameron’s opinion that the fracture that Ms. Esterreicher suffered at T11 was not caused by the accident. There is no evidence of pre-accident symptoms consistent with that fracture and the reported post-accident symptoms are consistent with the fracture. Even if I were to accept that the fracture pre-dated the accident, I would not conclude that the accident did not cause the back pain at issue because there is no evidence of pre-accident back pain. Given the same history that Dr. Cameron reviewed, none of the other health care professionals, including the DAC assessors, doubted the connection of her symptoms to the accident. I prefer their opinion.

I further find that Ms. Esterreicher continues to experience pain from the injuries caused by the accident. I do not accept Dr. Cameron’s opinion that the Ms. Esterreicher was “playing the illness role”. Her conduct was not consistent with his own description of that role as one of a patient who uses injury as an excuse to avoid doing things. Ms. Esterreicher has not used the accident as an excuse for inaction. Since the accident, despite significant challenges to obtaining recommended treatment and engaging in recommended exercises, she has completed her education as scheduled, missed hardly a day of work, started her career and accepted and held a challenging position in that career. She had also engaged in an extensive exercise program. Dr. Cameron’s opinion does not take that into account.

Dr. Cameron does not give a single example of what Ms. Esterreicher has avoided. His opinion is further compromised by the fact that it appears to be beyond his orthopaedic expertise. Determining Ms. Esterreicher’s motive appears to be a venture into the realm of psychology or psychiatry, with no basis established for Dr. Cameron’s expertise in those areas. Dr. Cameron’s approach was to seek an orthopaedic explanation for Ms. Cameron’s complaints and doubt their veracity if he did not find one. But Ms. Esterreicher was not seeking orthopaedic intervention. Given his pre-conceived opinion that no treatment is required once full range of motion has been achieved, one wonders why he examined Ms. Esterreicher except to find confirmation for his opinion.

I reject Dr. Cameron’s opinion and I accept Ms. Esterreicher’s evidence regarding her continued pain, bolstered by the opinions of Lorne Gleeson, Dr. Advent, Ms. Mueller and Ms. Hansen, all of whom found objective evidence to support the reports of pain, upon palpation of Ms. Esterreicher’s tissue and muscles, long after Dr. Cameron had formed his opinion.

(b) Reasonable and Necessary

The leading decision on the approach to determining what is reasonable and necessary treatment is Violi and General Accident Insurance Co. of Canada.²¹ In that case which involved chiropractic and massage treatment with goals of pain relief and maintaining the applicant’s level of functioning, Director’s Delegate Draper approved the principle that pain relief is a legitimate goal of treatment. He noted that: “[I]n some extreme cases, pain relief might be the only goal.”²² He also noted that, more typically, pain relief will be part of “a broader treatment or rehabilitation strategy.” He cautioned that “[E]valuating the effectiveness of any treatment is important, especially in determining whether it should continue over a lengthy period” and approved the approach taken by Arbitrator Sapin in her decision in Amoa-Williams and Allstate Insurance Company of Canada²³ that “pain relief measures should not encourage an inappropriate or indefinite dependency, or interfere with other aspects of rehabilitation.”²⁴

The decision sets out the following test for determining whether treatment is reasonable and necessary:

(a) the treatment goals, as identified, are reasonable;

(b) these goals are being met to a reasonable degree, and

(c) the overall costs [not just financial, but also investment of time, etc.] of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternatives.

Applying the above approach, I find that the treatment that Ms. Esterreicher claims is reasonable and necessary. This is not the extreme case where pain relief is the only treatment goal. As in Violi, the stated goals include return to pre-accident level of function. That function includes the ability to continue to perform pre-accident work, housekeeping and home maintenance activities and engage in exercise. There is no evidence that those are not reasonable goals and I find them to be so.

I find that the goals are being met to a reasonable degree. The best evidence of success is Ms. Esterreicher’s demonstrated ability to carry on with her challenging job, engage in her pre-accident housekeeping and home maintenance activities and engage in her therapeutic exercise program. The effectiveness of treatment is apparent from the noted improvement in symptoms since treatment began and the noted regression when treatment is neglected.

I find that the cost of the treatment is reasonable. As noted above, the financial cost to Lloyd’s is modest and the benefit for Ms. Esterreicher, of being able to continue with employment and her other activities far outweighs that cost.

I do not accept Dr. Cameron’s opinion that the kind of treatment in issue is never warranted once a full range of motion has been achieved. Dr. Cameron admitted that pain might persist, even with a full range of motion. It therefore appears that Markham is using his medical opinion to attack the judicially established principle that pain relief can be a legitimate goal of treatment. Attacking jurisprudence is not a function of expert evidence. Dr. Cameron’s opinion can be rejected for that reason alone.

In addition, Dr. Cameron suggests that Ms. Esterreicher’s solution is exercise, without taking into account the fact that she was already engaged in an extensive exercise program. His opinion focuses on the pain relief goal of the treatment, without taking into account the goal of improving function through pain relief. Further, it is again not immediately apparent that Dr. Cameron, whose expertise is in orthopaedics, is properly qualified to render an opinion on appropriate rehabilitation practice. I find that he is at least not as qualified to render that opinion as the practitioners of rehabilitative medicine with whom he disagreed. I again prefer the opinions of Lorne Gleeson, Dr. Advent, Ms. Mueller and Ms. Hansen, all of whom found it reasonable to continue treatment, long after Dr. Cameron concluded none was needed. The opinions of Dr. Advent, Ms. Mueller and Ms. Hansen, are particularly persuasive because they assessed the treatment as part of an overall treatment and rehabilitation strategy that included exercise, and they considered the risk of dependency in Ms. Esterreicher’s particular circumstances. They did not, as Dr. Cameron did, base their opinions on general expectations and presumptions about the rate of recovery.

CONCLUSION:

For the above reasons I find that Ms. Esterreicher is entitled to payment for the treatment incurred under the disputed treatment plans and for the two remaining sessions with Ms. Mueller, subject to deduction for her entitlement to collateral benefits. I also find that Ms. Esterreicher is entitled to interest on the overdue payment of benefits on the incurred amounts, pursuant to section 46(2) of the Schedule.

EXPENSES:

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

December 17, 2008

Jeffrey Rogers Arbitrator

Date

Financial Services Commission of Ontario