Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 1
FSCO A08-000014
BETWEEN:
DAVID JUSTIN ATKINSON
Applicant
and
BERTIE AND CLINTON MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Robert Kominar
Heard: September 18, 2008, in St. Catharines, Ontario
Appearances: Mick Sloniowski and Robert Budgell for Mr. Atkinson
James Greve for Bertie and Clinton Mutual Insurance Company
Issues:
The Applicant, David Justin Atkinson, was injured in a motor vehicle accident on December 27, 2005. He applied for and received statutory accident benefits from Bertie and Clinton Mutual Insurance Comp, payable under the Schedule.1 Bertie and Clinton denied various medical benefits. The parties were unable to resolve their disputes through mediation, and Mr. Atkinson 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. Atkinson entitled to receive the following medical benefits pursuant to section 14 of the Schedule?
$665.88 + 45.59 for treatment by Kai Rasmussen, as set out in treatment plan dated September 21, 2006.
$998.72 for treatment at Edge Physiotherapy, as set out in treatment plan dated April 9, 2007;
$843.72 for treatment at Edge Physiotherapy, as set out in treatment plan dated October 19, 2007;
899.90 for acupuncture treatment by Kai Rasmussen, as set out in treatment plan dated June 9, 2008
Is Bertie and Clinton liable to pay Mr. Atkinson’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Atkinson liable to pay Bertie and Clinton’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Atkinson entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Result:
- Mr. Atkinson is entitled to the amounts claimed for treatment, mileage, interest and expenses.
EVIDENCE AND ANALYSIS:
There are four treatment plans in dispute in this arbitration:
September 21, 2006, prepared by Kai Rasmussen, for a YMCA membership in the amount of $665.68 and a body pillow in the amount of $45.59
April 9, 2007, prepared by John Staresinic, for physiotherapy in the amount of $998.72
October 19, 2007, prepared by John Staresinic, for physiotherapy in the amount of $843.72, and mileage in the amount of $276.76 (the calculation of mileage is not in dispute)
June 9, 2008, prepared by Kai Rasmussen, for acupuncture in the amount of $899.90. (after hearing submissions from the parties that they have mediated this treatment plan but only in respect to the mileage claimed, I ordered that it be added to the issues in this arbitration)
Mr. Atkinson was involved in an automobile accident on December 27, 2005. He was at that time a passenger in the rear seat of a vehicle which was hit from behind. He was wearing his seat belt and the impact caused his body to volt forward until it became lodged between the vehicle’s two front pilot-style seats. He attended at hospital that evening and was x-rayed based on his complaints of scapular pain as well as pain in the thoracic and lumbar regions. The advice he received at that point in time was that he should arrange for physiotherapy, which he did. He attended physiotherapy for three to four months and Bertie and Clinton paid for that treatment.
The issue in this arbitration relates to subsequent requests which Mr. Atkinson made of Bertie and Clinton that they pay for the ongoing treatment he went through, as reflected in the four treatment plans in dispute.
Every case turns on its unique facts. In this arbitration it is important to note that at the time of the accident, as well as the disputed treatment, Mr. Atkinson was a full time university student at Brock University, majoring in biomedical science. However, during the summers Mr. Atkinson worked in what can only be reasonably described as very heavy industry at a metal heat treating facility. In this capacity he was required to repetitively lift heavy metal objects and transition them into furnaces for the required heat treatment. This job required him to be on his feet all day. As physically demanding as this work was, the level of remuneration for this type of employment assisted Mr. Atkinson in paying for his university education; for his hope not to have to work as a physical labourer for the rest of his life. It was clearly quite different in the requirements it placed on both his body and mind than studying biomedical science while university was in session. That is a fundamentally important aspect, in my view, of this dispute and the essence of what I find the Insurer either ignored, or did not properly appreciate.
Mr. Atkinson stated in his evidence that, after his original course of physiotherapy concluded, he chose to look for something different in the way of treatment. Although he felt better than he had right after the accident he testified that he was aware that there was no point in continuing on with simply more of the same. During his original course of physiotherapy he engaged in various stretching exercises and had some manipulation of his spine. He also had administered some traditional style acupuncture, which he stated did not produce any noticeable benefit for him. I find that Mr. Atkinson’s evidence was clear and forthright and reflected a young man who was making quite careful observations of how his body was responding to various modalities of treatment over time.
The problem which Mr. Atkinson experienced after the first course of approved treatment was that his pain level was still approximately the same as it was before treatment. For this reason he chose to change therapists to determine whether a different treatment approach could improve his pain level and further increase his level of functionality.
Mr. Atkinson commenced treatment with Kai Rasmussen. However his situation was materially different than it had been earlier. In May of 2006, when this treatment began, Mr. Atkinson was not in class, but instead was engaged in his summer employment at a metal heat treating factory. Quite understandably, interventions which Ms. Rasmussen suggested were different than Mr. Atkinson had experienced in the past. She recommended that he focus on strengthening his back and core body areas. She advised him that he needed to lose approximately 15-20 pounds in weight, which to his credit he did, and she recommended massage therapy to increase blood circulation. Ms. Rasmussen, at that time, did not recommend any acupuncture for him. Bertie and Clinton paid for this treatment.
Mr. Atkinson’s evidence was that Ms. Rasmussen’s treatment recommendations proved to be very helpful to him. With the treatment he was able to work in the physically demanding environment of his job. However, he further testified that the ultimate effect of the treatment was that it allowed him to function adequately while at work but that when he came home at night he was almost incapacitated. Ms. Rasmussen advised him to get up early and to exercise to encourage more blood flow in his body before starting work each day. She also suggested that Mr. Atkinson bicycle to work so that his body was prepared for the challenges that the work environment would present him with. Mr. Atkinson followed her recommendations.
As a result Mr. Atkinson was able to work that summer, but he was still experiencing significant pain, particularly at the end of his work day. In other words, he was physically functional but otherwise still compromised in how he experienced life.
In December 2006, Mr. Atkinson underwent an MRI to rule out any possibility of disc herniation as a result of this accident. The MRI results ruled that possibility out. However on July 10, 2007, Mr. Atkinson’s physician, Dr. Bentley, recommended that he needed a further 12 weeks of therapy to help him return to his pre-accident baseline. This recommendation was premised on the doctor’s observed improvement in Mr. Atkinson during periods of treatment as well as deterioration during periods of non treatment. Dr. Bentley further observes that Mr. Atkinson had complied with all past treatment recommendations and had worked seriously to regain his pre-accident health status. The one proviso to this is that Mr. Atkinson chose not to take prescription pain medications. Mr. Atkinson’s evidence on this point was that he took some non prescription medications when needed, but that he preferred to engage in more active treatment, as well as a focus on maintaining proper body mechanics, to regain his pre-accident health status.
At that point in time Bertie and Clinton stopped funding Mr. Atkinson’s medical treatment. However Mr. Atkinson believed that he did in fact need more therapy to continue with the challenges associated with both school and work and therefore he paid for this treatment even though, as a university student, he found it to be a practical challenge to do so.
It is fair to summarize the conclusions of the various independent medical examinations which Bertie and Clinton obtained as concluding that Mr. Atkinson had received conventional forms of treatment for his injuries and that he, by all standard measures, should have improved more than he stated that he had. The conclusions reached by these assessors quite clearly decline to evaluate Mr. Atkinson from any holistic perspective. Each specialist opines that there is no observable evidence of any significant symptomatology. They conclude that Mr. Atkinson needs, from their independent perspectives, no more treatment assistance from the Insurer. What I find to be missing from all of these assessments is any meaningful attempt to tie all of the evidence together to determine, on a balance of probabilities, whether Mr. Atkinson was reasonable in undergoing the treatment, and whether it was necessary in any meaningful sense for him.
The evidence in this case makes it clear that Mr. Atkinson was not “just a student”, nor was he “just a factory worker.” It is fundamentally important for insurers to consider the “person” the applicant is. In essence this means that there is no justification for insurers to stereotype people. In this case the evidence leads to the inference that Bertie and Clinton and subsequently its medical examiners characterized Mr. Atkinson as an undergraduate university student. From that conclusion they seem to have inferred that only treatment which would reasonably help him regain his basic ability to sit in a lecture hall, or participate in a laboratory tutorial, is all that was important. However, as Mr. Atkinson stated in his evidence, classroom work was only one aspect of his life. As an undergraduate student he needed to work during the summers to earn the money that allowed him to continue with his education. Prior to the accident he had both the physical ability and stamina to work in physically very demanding jobs. These jobs held the benefit of remunerating him at a rate high enough to fund a large part of his education.
After considering the evidence carefully in this arbitration, I find that Bertie and Clinton chose to focus on only one dimension of Mr. Atkinson’s life and discounted or ignored other salient parts. Specifically, they and their medical examiners, characterized Mr. Atkinson as a sedentary undergraduate student, and ignored that, for him to continue in that educational status, he had to work in very physically demanding jobs between semesters.
With regard to the first disputed treatment plan, dated September 21, 2006, the insurer denied the benefit based on a report prepared by Jeremy Buchan, physiotherapist. Mr. Buchan concluded that since Mr. Atkinson was provided with a Bosu ball and an instructional video the requested YMCA membership was unwarranted. In reading Mr. Buchan’s report what stands out is the complete lack of reasoning in support of his conclusion that the treatment plan was not reasonable and necessary. Mr. Buchan does recount what Mr. Atkinson told him during their interview as well as the results of the physical tests that he administered. However, his report is of no assistance in helping an adjudicator determine whether this treatment plan was reasonable and necessary. Mr. Buchan notes that Ms. Rasmussen recommended the Bosu Ball and an Obus form seat. But nothing in his report assists me in determining what reasonable basis there was for concluding that a Bosu ball and an Obus Form seat were reasonable “alternatives” to the treatment recommended, rather than aspects of it as Ms. Rasmussen believed. I find that Mr. Buchan’s report does not now, nor did it at the time, provide sufficient grounds for denying Mr. Atkinson’s claim for funding of this treatment plan. I note that the OCF-9 denying this claim explicitly recites that the sole reason for denial was the report of Mr. Buchan. There simply is no reasoning within this report which any reasonable insurer should have responsibly relied on. If Bertie and Clinton relied on something else to deny the benefit it was incumbent upon them to advise Mr. Atkinson of that information. The documentation before me however states that Mr. Buchan’s conclusions were the only reason for the denial.
It is important to state that it is not rationally sufficient for an insurer to blindly parrot conclusions contained in independent examinations as rationales for denying accident benefit claims. Conclusions carry no rational weight apart from the data and warrants which rationally support them. Although it is true that insurance adjusters need to obtain opinions from properly qualified health care professionals when there is a disagreement about whether medical benefits are payable - because they themselves do not have the technical evaluative expertise to fully assess the situation - that does not lead to the automatic inference that any conclusion which favours their point of view is adequate to properly deny first party benefits. An insurer representative who does not read, understand, and carefully evaluate the reasoning within reports received may, down the road, face a difficult time in supporting decisions to deny or terminate benefits.
It is incumbent upon insurers to take the independent assessments which they obtain and review them to determine how well the conclusions therein are supported by sound reasoning. This is necessarily a two way street and it applies equally to section 24 assessments which applicants obtain. In my view significant costs for insurers and anxieties for applicants can be eliminated in the accident benefit system if all parties take the time to evaluate the reasonableness of the reports which they obtain, rather than aggressively, and often mindlessly advocating on behalf of the conclusions that their assessors reach.
With regard to Mr. Staresinic’s denied physiotherapy treatment plan, I find that Mr. Atkinson’s evidence was persuasive well beyond his burden of proof to establish that this treatment was reasonable and necessary on a balance of probabilities. Both he and Mr. Staresinic testified that this course of physiotherapy consisted of different modalities of treatment than in the past. Mr. Staresinic had noticed muscle wasting around Mr. Atkinson’s left lower back region and believed that there were options for treatment which could help him regain strength. Mr. Atkinson’s evidence was that this therapy helped him and supplemented his personal attempts to exercise and keep himself in shape.
With regard to the treatment plan dated October 19, 2007, the OCF-9 denying this claim recites that the treatment plan is denied because it is not reasonable and necessary based on a “file review included.” From the documentary evidence I infer that this refers to the “Independent File Review Report” of Dr. Robert, orthopaedic surgeon, dated November 2, 2007. In that very short report, of which all but four lines recite boilerplate, Dr. Robert concludes that he is unable “to recommend” further physiotherapy for Mr. Atkinson. It should be noted that Dr. Robert examined Mr. Atkinson on July 12, 2007.
Once again the difficulty here really is evidentiary in nature. As an arbitrator I find Dr. Robert’s report to be unhelpful in making a decision as to whether Mr. Atkinson’s treatment plan was reasonable and necessary. The doctor may have reasonably believed that the conclusion he reached was warranted, but nothing in his report helps me to understand “why” he believed that. If Bertie and Clinton chose to rely on this “less is more” form of expert report, then I conclude that they did so at their peril. There is simply no helpful reasoning contained within it for anyone looking at the circumstances from the outside. One has to note that if medical assessments ultimately come down to nothing more than “he said/she said” types of arguments, then the burden of proof presumptions in the law will ultimately be the sole warrant for determining the outcome of disputes.
Useful expert reports are those which help the ultimate decision maker, whether circumstantially, that is an insurance adjuster or an adjudicator, to understand the evidence in support of, as well as challenging, the conclusion that a claimed benefit is reasonable and necessary. Reports that only record the evidence on one side of the case are generally unhelpful; they do very little to assist the ultimate decision maker in understanding the complexity of the situation. If a dispute reaches an adjudicator, it is reasonable to assume that there are rational arguments on both sides of the case. If expert reports do not rationally help the ultimate decision maker in making her or his decision they serve no useful purpose. Given the high cost associated with generating many of these reports they should address the situation in a helpful, rather than a partisan way.
Bertie and Clinton called no witnesses in this arbitration. Mr. Atkinson testified as did the two treating practitioners: Ms. Kai Rasmussen and Mr. John Staresinic. No evidence before me, nor any submissions made during this hearing, alleged that Mr. Atkinson’s injuries were such that treatment for them should be confined within a PAF guideline. As such I am considering Mr. Atkinson’s claims for benefits as being outside the PAF. Notwithstanding that neither party alluded to this aspect of the case, the medical reports in evidence note that Mr. Atkinson suffered a rib constriction as a result of the automobile accident, which, absent arguments to the contrary, I conclude takes him outside of the PAF guidelines.
Ms. Rasmussen’s acupuncture treatment plan was denied based on an independent examination by Dr. Khan, a physiatrist, who opined that the “contemporary medical acupuncture” which Ms. Rasmussen was administering was no more effective than traditional acupuncture and that Mr. Atkinson had stated that the traditional acupuncture he had received early after the accident did not significantly help him. Dr. Khan states in his report “In addition, there is insufficient evidence to suggest that electroacupuncture is clinically more effective than traditional acupuncture.”
Dr. Khan did not testify at the hearing. Ms. Rasmussen testified to the training she received at McMaster University in “contemporary medical acupuncture” as well as her clinical experience with administering it. I am not prepared to accept Dr. Khan’s bald statement that there is “insufficient evidence” for the clinical value of this modality of treatment in the absence of his even citing what research he looked at. In addition, I have no way of rationally assessing what would count as “insufficient evidence” for Dr. Khan. In contrast I found that Ms. Rasmussen’s explanation of the process and her experience with it to demonstrate grounded knowledge of the process. I prefer her evidence to Dr. Khan’s conclusions.
In addition, Ms. Rasmussen testified that she believed that this treatment was worth trying with Mr. Atkinson given the progress he had made in recovering from the accident to date, his compliance with treatment recommendations and his clear dedication to regaining his pre- accident health status if possible. Her belief was that, given his young age, it was too soon to give up on improving his functional status and levels of pain. I find this to be a good reason for Mr. Atkinson being prescribed this treatment. I also find that Ms. Rasmussen was also correct to assume that it was necessary to try this treatment given his relatively young age and the levels of physical activity he wanted to continue to experience. Ms. Rasmussen was quite clear that she does not believe that physiotherapy is a continually ongoing process, and that it normally comes to an end where no further progress can be expected. This was not, in her view, where Mr. Atkinson was at.
In conclusion I find that the treatment plans in dispute were reasonable and necessary and that Bertie and Clinton should have approved them. Mr. Atkinson is entitled to be paid the amounts of the submitted treatment plans as well as statutory interest from the respective dates of denial.
EXPENSES:
I exercise my discretion to award Mr. Atkinson his expenses in this arbitration as he was completely successful in his claims. I encourage the parties to resolve the issue of expenses between themselves within the next 30 days. In the event that they cannot do so, an expense hearing can be arranged through the case administrator and I shall assess them.
January 6, 2009
Robert Kominar
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2009 ONFSCDRS 1
FSCO A08-000014
BETWEEN:
DAVID JUSTIN ATKINSON
Applicant
and
BERTIE AND CLINTON MUTUAL 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:
- Bertie and Clinton shall pay to David Justin Atkinson:
a. $711.27 pursuant to a treatment plan dated September 21, 2006, prepared by Kai Rasmussen, for a YMCA membership and a body pillow.
b. $998.72 pursuant to a treatment plan dated April 9, 2007, prepared by John Staresinic, for physiotherapy.
c. $1,120.48 pursuant to a treatment plan dated October 19, 2007, prepared by John Staresinic, for physiotherapy and agreed transportation.
d. $899.90 pursuant to a treatment plan dated June 9, 2008, prepared by Kai Rasmussen.
e. Interest on the above amounts at the statutory date calculated from the date of denial for each treatment plan.
f. Mr. Atkinson is entitled to his expenses in this arbitration, as agreed upon or to be assessed.
January 6, 2009
Robert Kominar
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.