Financial Services Commission of Ontario

Neutral Citation: 2009 ONFSCDRS 145 FSCO A07-002058

BETWEEN:

L.E. Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Elizabeth Nastasi Heard: April 6, 7, 8 and 9, 2009, with written submissions received on May 6, 2009.

Appearances: The Applicant represented herself Richard Horst for Allstate Insurance Company of Canada

Issues:

The Applicant was injured in a motor vehicle accident on August 3, 2002. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Pursuant to section 14 of the Schedule, is the Applicant entitled to receive a medical benefit for the following:

a) $852.00 for physiotherapy treatment as per a treatment plan dated February 7, 2005² and all additional physiotherapy treatment incurred up to March 2009?

b) $7,245.00 for acupuncture treatment as per treatment plans dated January 26, 2005³ and July 19, 2007⁴ and all acupuncture treatment incurred up to March 2009?

c) Medication set out in a treatment plan dated October 25, 2007⁵ and all incurred expenses up to March 2009? This claim is for the following items:

(i) Ketamine (topical pain cream) - $1,306.95

(ii) Cyclobenzaprine (Flexeril) (muscle relaxant) - $428.46

(iii) Tylenol #4 - $87.24

d) $396.89 for disposable gloves used to apply topical medication (not submitted as part of a treatment plan) incurred up to March 2009?

e) $181.85 for transportation expenses to medical appointments as incurred up to March 2009?

2. Is Allstate liable to pay a special award pursuant to subsection 282(1) of the Insurance Act because it unreasonably withheld or delayed payments to the Applicant?

3. Is either party liable to pay the other’s expenses pursuant to section 282(11) of the Insurance Act?

4. Is the Applicant entitled to interest for the overdue payment of benefits under subsection 46(2) of the Schedule?

Result:

1. Pursuant to section 14 of the Schedule, the Applicant is entitled to receive a medical benefit in the total amount of $8,366.09 for the following:

a) $852.00 for physiotherapy treatment up to March 2009;

b) $7,245.00 for acupuncture treatment up to March 2009;

c) $87.24 for Tylenol #4 prescription medication, and

d) $181.85 for transportation expenses to medical appointments as incurred up to March 2009.

2. The Applicant is entitled to interest for the overdue payment of benefits under subsection 46(2) of the Schedule.

3. The Applicant is not entitled to the following medical benefits as claimed pursuant to section 14 of the Schedule:

a) $1,306.95 for Ketamine / DMSO (topical pain cream);

b) $428.46 for Flexeril / Cyclobenzaprine (muscle relaxant); and

c) $396.89 for disposable gloves.

4. Allstate is not liable to pay the Applicant a special award.

5. The decision on legal expenses is reserved to be resolved in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Background

The Applicant was working as a computer software designer and programmer at the time of the accident. She had been self-employed working as an independent consultant for almost 20 years. Her work required her to sit at a computer for long periods of time.

After the accident the Applicant experienced pain in her right wrist, elbow and arm. As a result of the accident, the Applicant suffered a tear in the triangular fibrocartilage complex (TFCC) of her right wrist.⁶ She subsequently developed worsening diffuse pain in her arm as well as discolouration, swelling and a limitation in movement which was diagnosed as reflex sympathetic dystrophy (RSD).⁷ At times she has been hypersensitive to touch and has reported that cold weather aggravates her pain.

Over the past 7 years since the accident, the Applicant has attended various forms of treatment and undergone numerous assessments and medical appointments.⁸ Soon after the accident she attended for acupuncture treatment. She has continued with this treatment to date. For a period of time the Applicant also received physiotherapy treatment but discontinued when she found it was no longer making any improvements. The Applicant has also been treated with various pain medications including: a topical pain cream mixture containing Ketamine and Dimethyl sulfoxide (DMSO), Cyclobenzaprine (also known as Flexeril) which is a muscle relaxant, and Tylenol #4.

Is the treatment in question “reasonable and necessary”?

Section 14 of the Schedule requires that the insurer pay for all reasonable and necessary medical services and expenses incurred as a result of the accident. Section 14 of the Schedule reads as follows:

14(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit. O. Reg. 403/96, s. 14 (1).

(2) 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,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

(c) medication;

(d) prescription eyewear;

(e) dentures and other dental devices;

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices;

(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant;

(h) other goods and services of a medical nature that the insured person requires.

(3) The insurer is not liable to pay a medical benefit for goods or services that are experimental in nature.

The Applicant’s position

The Applicant’s position is that the acupuncture, physiotherapy and medication in question reduce her pain and allow her to achieve her maximum functionality. Although she is no longer attending for physiotherapy treatment, she submits that the past treatment in question assisted her in increasing her range of motion to the maximum extent possible. Her position is that the current acupuncture treatment and medication have allowed her to continue her employment on a modified basis.

The Insurer’s position

The Insurer relies on a Medical / Rehabilitation Designated Assessment Centre (DAC) assessment conducted by Mr. Angelo Papachristos, physiotherapist; as well as the Insurer Examinations of Dr. Kaminker, orthopaedic surgeon, and Dr. Lipson, physiatrist, to support their position that the proposed medical expenses in question are not reasonable and necessary.

In respect of the treatment, Allstate takes the position that the Applicant had reached a plateau in her recovery at the time of the treatment plans in question and that passive treatment was no longer of any benefit. In respect of the medications, the Insurer determined that they were not appropriate for the Applicant’s condition and, in the case of the topical cream containing Ketamine, it considers it to be experimental in nature.

Case law

Arbitrators have considered numerous factors in determining whether a particular medical treatment is reasonable and necessary. It is well accepted that pain relief in and of itself can be a legitimate medical and rehabilitative goal, and therefore reasonable and necessary, even if it does not promote recovery.⁹ Treatment that provides supportive care – care that reduces pain and improves or at least maintains the level of function – has also been determined to be a legitimate medical and rehabilitative goal.¹⁰ The frequency, duration and cost of treatment, efficacy of treatment, and availability of other effective treatments, are also factors that have been considered in determining whether a particular form of treatment is reasonable and necessary.¹¹

In the Violi case, Director’s Delegate Draper found that, in order for prolonged treatment to be considered reasonable and necessary, an insured person must establish that:

(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.¹²

Other factors that arbitrators have considered in determining the reasonableness of long-term passive therapies include the following:

(1) the credibility of the insured person and whether he or she is sincerely motivated to return to his or her pre-accident activities, including work;

(2) whether the treatment team takes a consistent approach, recommending a reasonable progression of treatment;

(3) whether the insured person and treatment team utilize a variety of treatment modalities and adjust the type and frequency of treatments based upon his or her current needs; and

(4) whether passive modalities are relied upon to the exclusion of other treatment alternatives (i.e., whether there is an inappropriate dependence on passive modalities or the treatment in question interferes with other aspects of rehabilitation).¹³

The Acupuncture and Physiotherapy Treatment

The Applicant has undergone a large number of assessments since the time of the accident and has been an active participant in her attempts at rehabilitation. She uses a splint for her right wrist since the accident and has received various types of active and passive therapies including acupuncture, physiotherapy, massage and chiropractic. She has had an MRI, x-rays and seen several hand surgeons. Over the years she has also tried a variety of anti-inflammatory medication with varying degrees of success and some adverse side effects. She has also tried nerve blocks, also without success.¹⁴

Since the accident the Applicant has been unable to resume her full-time work schedule. Almost immediately after the accident the Applicant experienced problems keyboarding – her ability slowly diminished over time. She has tried using various voice recognition software, but found that it is not appropriate for the kind of complex programming work that she does.

According to the Applicant, the combination of acupuncture treatment and medication has allowed her to resume some of her work activities and maintain a level of function that includes approximately 4 hours of work each day with breaks. She is able to work for about 4 days each week and a typical week would include a break on Wednesday. She attends for an acupuncture treatment every 2-3 weeks as needed. She testified that initially the physiotherapy was assisting with improving her range of motion. She completed the course of treatment as recommended by Rebecca Chambers, physiotherapist. At that point, she discontinued the physiotherapy treatment as she felt she had reached her maximum improvement in terms of range of motion.

The Applicant testified that as a result of the accident she has been unable to engage in many of her pre-accident leisure activities. Prior to the accident she was active and enjoyed kayaking, dragon boating, cross country skiing and yoga.¹⁵

Allstate relies on a March 14, 2005 DAC Assessment and a September 20, 2007 Insurer Examination in its denial of the claimed acupuncture and physiotherapy treatment benefits.

The Medical / Rehabilitation DAC Assessment was conducted by Mr. Angelo Papachristos, physiotherapist.¹⁶ The DAC reviewed the treatment plans of Rebecca Chambers recommending 8 weeks of physiotherapy dated February 7, 2005¹⁷ and Dr. Howard Chen (MD) for 20 treatments of acupuncture dated January 26, 2005.¹⁸ The DAC concluded that the proposed continued acupuncture and physiotherapy treatments were not reasonable and necessary.

The DAC assessor, Mr. Papachristos, gave evidence at the hearing. Mr. Papachristos is a staff physiotherapist at St. Michael’s Hospital and is also licensed to provide acupuncture.¹⁹ He testified that he has worked with and is familiar with RSD and chronic pain patients.

In his report, Mr. Papachristos noted that no further forms of active or passive treatment were reasonable or necessary. Further, he noted that, in the Applicant’s case, the proposed therapy would be of “questionable benefit both in terms of pain and her functional status.”²⁰

Although Mr. Papachristos testified that he was not disputing the diagnosis of RSD, his report notes that he did not find any evidence of it. He stated that there were limited objective clinical findings that would support an active RSD picture. Mr. Papachristos did acknowledge however, that it was not within his expertise to make a diagnosis of RSD. He added that RSD is difficult to diagnose and that it is unpredictable and manifests in different forms. His clinical impression was that the majority of the Applicant’s symptoms and pain were more mechanical because of the TFCC tear. His report notes that at this stage, to treat chronic RSD and a torn TFCC, the use of physical therapies and acupuncture are not supported by the current literature and that the appropriate amount of active and passive treatment had already been received.²¹

Mr. Papachristos noted that part of the basis of his opinion came from the fact that the Applicant has been able to receive appropriate treatment almost immediately post accident and that it had been continuous since that time. There was no lapse of time without treatment. At the time of the DAC assessment the Applicant had been receiving treatment for approximately 30 months.

Mr. Papachristos stated that normally with any conservative care you see a plateau when the person reaches a maximum recovery and at some time the effective care levels out. The practice standards set out by the College of Physiotherapy hold that when a patient has plateaued (i.e., maximum recovery has been achieved) and there are no clinically significant changes in the individual’s condition, then you move on to try something else. I asked Mr. Papachristos specifically about whether his opinion would be different if the treatment served only to assist with pain management within this plateaued level. His response was that “the conservative management recommended would not be within the accepted approach – the long term goal is self management.” He did not consider long-term passive therapy treatment solely for pain management as falling within the accepted practice standard.

Mr. Papachristos acknowledged that there is not a lot of research about the long-term treatment and control of RSD and no curative treatment for the TFCC tear. His recommendations included education, encouraging range of motion exercises and avoidance of positions that hurt. In his opinion, education is an important component of pain management. He also recommended continued use by the Applicant of her working splint and a re-evaluation by the Toronto Western Hand Program surgical team.

The Insurer also relied on an Insurer’s Examination conducted by Dr. Kaminker, orthopaedic surgeon.²² Dr. Kaminker reviewed the July 19, 2007 Treatment Plan of Dr. Chen. Dr. Kaminker came to a similar conclusion as that of Mr. Papachristos that acupuncture treatment is not reasonable and necessary in the Applicant’s case.

Dr. Kaminker notes that “[f]rom a symptomatic point of view [the Applicant] seems to benefit from acupuncture ... but that such treatments do not address specific focal orthopaedic pathology such as the TFCC tear, but rather address her global pain throughout the extremity.” He states that “[w]ith respect to her CPS/RSD, I would defer comment to experts in the pain field.”²³

Although the Applicant was subsequently assessed by a physiatrist, Dr. Lipson, the purpose of his assessment was to consider the treatment plans submitted for prescription pain medication and not the reasonableness of continued acupuncture treatment. Dr. Lipson gave evidence at the hearing and given his specialty in dealing with chronic pain and experience in working with RSD, I found his testimony helpful in respect of the treatment in question.²⁴

Dr. Lipson stated that there can be significant variations between a mild and severe case of RSD in terms of the symptoms. It is a difficult condition to both diagnose and treat. In his opinion, based on his examination, he felt that the Applicant’s condition could be characterized as mild to moderate. In treating someone with RSD he said that one of the treatment goals would be to attempt to control the symptoms to the maximum amount possible. His goal would be to get the person “as functional as possible” while exposing them to as little risk as possible over the long term. He also noted that pain control would be important and that “acupuncture may be an acceptable long term approach if it works” and if it increases the level of functioning.

I find that Dr. Lipson’s opinion supports the evidence of the Applicant and I prefer his opinion in combination with the evidence of the Applicant over that of Mr. Papachristos and Dr. Kaminker.

I have given Dr. Kaminker’s opinion limited weight as his opinion seems to be based on only part of the Applicant’s condition. Given his speciality as an orthopaedic surgeon, he seems to focus his assessment on the Applicant’s torn TFCC. Dr. Kaminker notes that “from an orthopaedic perspective, acupuncture would be of no benefit on her underlying TFCC tear” and that the July 19, 2007 “treatment plan is not reasonable and necessary for the treatment of that specific orthopaedic injury.”²⁵ He also recommends an independent assessment from someone in the pain field such as “an anaesthetist or a physiatrist” in order to determine the potential affect of the RSD on her daily function as well as determining appropriate further treatment modalities.²⁶

I have also given Mr. Papachristos’ opinion limited weight. The standard of care and protocol suggested by Mr. Papachristos of self-management does not seem appropriate in this case. In addition, Mr. Papachristos does not deal with the issue of pain management. Mr. Papachristos recommended that the Applicant continue to use her working splint which she testified that she was already doing as it assists with her ability to keyboard. He also recommended another surgery consult. This was something that the Applicant had in fact already explored in the past and surgery was dismissed as a viable option by the specialists who saw her.²⁷ Even Dr. Kaminker, in his Insurer’s examination on September 20, 2007, noted that surgery was not an option in this case.²⁸

I find that the Applicant has taken a very active approach to her treatment and recovery. It was clear that she was able to coordinate her treatment very quickly post-accident and has explored a variety of options including surgery, pain medication and both active and passive therapies. I found her to be a motivated and active participant in her recovery and eager to continue her employment even on an extremely limited and modified basis.

When considering the reasonableness of prolonged treatment, the case law does acknowledge a concern for an insured in becoming dependent on passive therapy. Allstate expressed a concern that the Applicant has plateaued in her recovery and has become dependent on passive treatment. In response, the Applicant stated that she maintains her current treatment schedule to keep functional and that she avoids letting herself get to the point of complete dysfunction. When she feels she is getting worse she tries to get acupuncture as soon as possible. She felt that the longest she has gone is about 4 weeks between treatments. Although the Applicant could not recall a specific time when she reached the point of complete dysfunction, it was clear that she closely monitors her need for treatment and goes only as often as is necessary – responding with pain medication in between if needed.

In this case, I find that the benefit of pain relief and the fact that the Applicant clearly finds that the treatment enables her to be “as functional as possible,” overrides the concern of her potential dependence on the treatment. In light of all the circumstances of this case, I find that pain relief and the ability to maintain her current level of functionality should be considered reasonable treatment goals despite perhaps not fitting within accepted treatment protocol or standards. I find that these goals are being met to a reasonable degree.

In determining whether treatment is reasonable and necessary, arbitrators have also considered the overall costs – both financial and temporal – in achieving the treatment goals as relevant considerations.²⁹ In considering that the Applicant is attending for acupuncture once every 2-3 weeks, I do not feel that the cost or inconvenience is so great as to override the treatment goals that she is achieving. Although she has been receiving acupuncture treatment for a prolonged period of time, she has reduced the frequency over time to the current “plateaued” levels today. In terms of the physiotherapy treatment in question, the Applicant attended for the purpose of increasing her range of motion – when she was no longer seeing progress, she stopped the treatment. The physiotherapy was not being used for pain management.

The Insurer took the position that the Applicant’s pain seemed to fluctuate randomly regardless of whether she received an acupuncture treatment or not. The Applicant disagreed with this assertion. According to the Applicant, she was able to identify a very clear pattern or cycle post acupuncture treatment. What is consistent, is that she has some pain reduction and improvement in function in the week following the acupuncture treatment after which her pain increases again. She noted that there are some variations in this depending on the weather which can cause increased sensitivity.

I find the Applicant’s evidence to be forthright and credible. I accepted her evidence in respect of the pain relief that the treatment provided. Considering the factors set out in the case law involving chronic pain and/or prolonged treatment, I find the treatment plans in question are reasonable and necessary and Allstate is liable to pay for the physiotherapy and acupuncture treatment in dispute.

Prescription Medications

In respect of the Applicant’s claim for medications, Allstate relies on the Insurer’s Examination³⁰ conducted by Dr. Lipson, physiatrist, which reviewed the October 25, 2007 Treatment Plan³¹ of Dr. Chen, recommending the following prescription medications:

(i) Topical pain cream (DMSO / Ketamine)

(ii) Flexeril (muscle relaxant)

(iii) Tylenol #4

The Applicant currently uses an analgesic topical cream that contains both Ketamine and DMSO. She also uses muscle relaxants periodically, generally only at night, and Tylenol #4 for “break through” pain.

The Applicant also submitted a claim for disposable gloves used to apply the topical pain cream. This claim was not submitted as a part of a treatment plan.

Topical Pain Cream

Although the prescriptions did come by way of a treatment plan by Dr. Chen, I did not receive any other medical evidence in support of this type of treatment. The Applicant did attempt to introduce some information at the hearing, but I did not allow the evidence as it had not been provided to the Insurer prior to the hearing. As a result, it was not possible to verify the source of the information. Some of the proposed material was from the internet. Given that it was being tendered on the day of the hearing, the Insurer was not provided any time to have their medical experts review and respond to the material and comment on its reliability.

In the Applicant’s case, the topical cream she used was a mixture of DMSO and Ketamine. The Applicant’s evidence was that she used the cream 2-3 times per day. The primary purpose is to reduce the perceived painful sensation and to treat the “odd sensations” that are inherent in her condition. She applies the cream on the back of her hand and down 2 inches. She had recently started to also apply it to the underside of her wrist. She used approximately 1 tube every 3 weeks.

It was Dr. Chen who prescribed the topical cream and submitted the treatment plan in question. Dr. Chen, who is a medical doctor and a sports medicine practitioner, functioned almost like a family doctor in terms of the coordination of the Applicant’s care. Dr. Chen also provided her acupuncture treatment. The Applicant stated that Dr. Chen had prescribed DMSO but was not comfortable with how often she was going to use it. She later requested a higher concentration but he had never prescribed it before. He did not agree initially but, according to the Applicant, he did some research and later agreed. Dr. Chen was not called as a witness to testify at the hearing.³²

The Applicant stated that it was a pharmacist who raised the possibility of using Ketamine initially with her. Her evidence was that Dr. Faclier, Director of the Pain Management Program at Sunnybrook and Women’s College Health Sciences Centre, also suggested that topical Ketamine could be helpful but he would not prescribe it as he had no experience with it. There is no reference of this in his report dated April 25, 2003.³³ Dr. Faclier did not appear as a witness at the hearing.

Dr. Lipson’s evidence was that the topical cream is not an accepted treatment for chronic pain and has no proven efficacy. Dr. Lipson testified that he had experience in the past working with DMSO. It is used as a solvent for carrying other medications into the bloodstream when used topically. It is thought to affect pain receptors. Dr. Lipson was using DMSO in 1965 at a university teaching centre but stopped after one reported death as well as reports of adverse effects in rats. He also noted that it has been used with some success by veterinarians. Dr. Lipson stated that DMSO is not considered to be an accepted way of treating pain among the medical community and there have not been a significant number of controlled studies.

With respect to Ketamine, Dr. Lipson testified that it is typically used as an anaesthetic agent. It works well with elderly patients intravenously so that it is not necessary to intubate them and with patients going into surgery. In such cases it is used in highly controlled environments.

Dr. Lipson noted that the use of Ketamine is still not well documented in terms of understanding acceptable levels and long-term side effects. He was not aware of any Canadian studies and stated that it was not an accepted chronic pain treatment by the established medical profession and is considered experimental.

In the case of Palmer and State Farm, Arbitrator Allen held that a treatment is considered to be experimental for a specific condition, although it may be a conventional treatment for other conditions, where there is expert medical evidence that research results to date are inconclusive, and no convincing evidence currently exists on the usefulness of the treatment for the conditions claimed.³⁴

I find that the use of DMSO and Ketamine in treating chronic pain and in this case RSD, is experimental and not an accepted treatment or standard of care. I accept Dr. Lipson’s evidence in this regard. I was not provided with any reliable medical evidence in support of its use as a topical cream for pain. As such, I also find that the Applicant’s claim for disposable gloves required to apply the cream is also not reasonable and necessary.

Cyclobenzaprine (Flexeril)

Cyclobenzaprine (marketed as Flexeril) is a muscle relaxant. It is typically used for pain relief in muscle spasm. Dr. Lipson noted that in his examination there was no evidence of muscle spasm. Dr. Lipson testified that Flexeril is generally recommended for short-term use only – typically 2 to 3 weeks of maximum use. The purpose is to decrease acute muscle spasm during an acute injury. It is not meant to treat a chronic condition and is not recommended beyond 3 weeks.

I was not provided with any evidence of the effectiveness of Flexeril for long-term use or in relation to chronic pain. I accept Dr. Lipson’s evidence and find that the prescriptions for Cyclobenzaprine (Flexeril) are not reasonable and necessary.

Tylenol #4

With respect to the use of Tylenol #4, Dr. Lipson’s opinion is that it is too strong for the Applicant’s condition at this time. He testified that in respect of treating pain, one should always be trying to decrease the level of medication. The goal is to try and control the pain without having the patient develop a tolerance to the drug. Dr. Lipson was clear that he was not suggesting that the Applicant did not require pain medication. He noted that the Applicant may require even stronger medication than what she is currently taking. In his opinion, however, the prolonged use of Tylenol #4 was not beneficial.

In Dr. Lipson’s opinion, in the Applicant’s case, after 5 years of ongoing pain, he would recommend oxycontin or Tylenol with codeine – central nervous system depressor type drugs. The Applicant noted in cross-examination that she had in fact tried stronger pain mediation such as oxycontin; however, it did not allow her to maintain the mental clarity she required in order to perform her work. Her evidence is that she only uses the Tylenol #4 for “breakthrough” pain at a rate of approximately 100 tablets over a 6-month period.

On cross-examination in relation to Tylenol #4, Dr. Lipson stated “I do not feel strongly – but there is an onus to try and reduce pain medication as much as possible because of long term use.” He added that his recommendation is based on the fact that the overall treatment goal is to always try and decrease the medication while maintaining levels of function. He added that “if it’s working, then I am OK with it.”

Dr. Lipson’s opinion on this issue appears to be ambivalent. The Applicant has tried other types of medication and has found that she was not able to conduct her employment on stronger medication. Finally, she uses the Tylenol #4 for breakthrough pain only. For all of the foregoing reasons I find the Tylenol #4 prescription is reasonable and necessary in this case.

The Applicant claimed $181.85 for her transportation expenses to and from her acupuncture appointments. Her evidence was that on most occasions she drives her own car but when she is in pain and/or if the weather is bad she has either taken a taxi or used the TTC. She is cautious in very bad weather because driving in those conditions puts more strain on her wrist and there is a greater chance of a sudden movement that may cause pain. None of the claims submitted are for instances when she was driving her own vehicle.

The Insurer’s only submission with respect to this claim is that pursuant to section 14(6) of the Schedule, an insurer is not required to pay a medical benefit for expenses related to the first 50 kilometers of transportation in the insured person’s vehicle to and from a treatment session in accordance with the section.

I find that section 14(6) of the Schedule does not apply in this case. Although the Applicant acknowledged that her appointments were less than 50 kilometers in distance, her claim was not for the transportation she incurred using her own vehicle. Section 14(5) states that an insurer is not liable to pay a medical benefit for transportation unless the expense is authorized by the Transportation Expense Guidelines (“Transportation Guidelines”).³⁵ In respect of the use of taxis, the Transportation Guidelines set out that an insurer is liable to pay for the reasonable and necessary taxi fare incurred by an insured person provided that:

• The insured person does not own or have access to an automobile; or

• The insured person is unable to operate an automobile; or

• It is reasonable and practical in the circumstances to take a taxi.

In respect of other modes of transportation (such as public transportation), the Transportation Guidelines provide that:

Insurers are liable to pay for reasonable and necessary expenses for other modes of transportation where circumstances warrant. …

I find that in the limited circumstances as set out by the Applicant when she is physically unable to drive as a result of pain, it is reasonable and necessary for her to attend her acupuncture appointments using either a taxi or public transportation. As such, the Insurer is liable to pay the Applicant’s incurred costs as claimed.

SPECIAL AWARD:

The Applicant has requested a special award in this case.

Subsection 282(10) of the Insurance Act provides the authority for a special award:

If an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule , shall award a lump sum of up to 50 per cent of the amount of which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The Applicant set out a variety of concerns related to the overall handling of her case. The concerns relevant to the issues in dispute at this hearing can be summarized as follows: first, a concern that irrelevant and confidential information and documentation was sent to assessors, and second that, in general, the information sent to assessors was inconsistent – different assessors received different information.³⁶

The Applicant expressed concern about the handling of her file with respect to the fact that the Insurer had inadvertently sent some of her financial information and records to a medical assessor. The Applicant’s position is that these documents were confidential and not relevant to the assessments being conducted. In respect of the issues in dispute in this case, her financial documents were sent to the March 14, 2005 DAC. Ms. Sonia Fearon, the adjuster, testified that this was an oversight. The entire file had been accidentally copied and sent to the DAC which included 2 reports by a forensic accountant. These documents stayed in the DAC file until the Applicant followed up with the matter again at mediation on June 21, 2007.

Ms. Fearon testified at the hearing. She acknowledged that Allstate had made an error in sending the Applicant’s financial information to the DAC and she apologized. Ms. Fearon indicated that Allstate’s acknowledgement and apology had been extended to the Applicant both prior to and at the mediation as well again at the hearing itself.

At the hearing, Mr. Papachristos stated that he did not recall seeing that kind of information but, if he had, he would not have reviewed it because it would not have been relevant.

Although an unfortunate oversight, I find that this disclosure of irrelevant financial information did not result in an unreasonable withholding or delay of the payment of any accident benefits.

Second, the Applicant takes the position that the Insurer did not send complete or appropriate medical information and documentation to the various medical assessors. This resulted in different assessors having different information and what the Applicant characterized as a “general lack of consistency.” The Applicant suggested that between early 2003 and the mediation in 2007 very few attempts, if any, were made to collect all of the medical information relevant to her case.

In relation to the issues in dispute before me, the Applicant expressed a concern to the DAC assessor, Mr. Papachristos, that he did not have all the relevant and updated medical information. Of particular note were the updated clinical notes and records of Dr. Chen and Rebecca Chambers from 2004 onwards. These were the practitioners whose treatment plans were being reviewed by the DAC. After the Applicant expressed this concern to the DAC assessor, Mr. Papachristos notified Allstate of the Applicant’s concern on March 24, 2005. The release of the final DAC report was delayed slightly as a result of waiting to hear back from the adjuster. A representative of the DAC³⁷ contacted Ms. Fearon on April 7, 2005 who advised that these records were not available in the adjuster’s file. The DAC report was issued on April 12, 2005.

Ms. Fearon’s evidence was that the Insurer did not have that information at the time of the request.

In his testimony, Mr. Papachristos noted that, in preparation for the hearing, he was able to review the up-to-date clinical notes and records that he did not have at the time of the assessment. His evidence was that they would not have made any difference in his opinion at the time. He noted that the records did not reveal anything different from the information that he had at the time. Although I find this statement by Mr. Papachristos to be somewhat self-serving, I do agree that the additional clinical notes would not have likely altered his conclusions.

It was clear from his testimony that, in Mr. Papachristos’ opinion, prolonged passive therapy was not within what he found to be the accepted treatment protocol. He conducted an interview and assessment of the Applicant and found that, given her diagnosis and the fact that she had received almost immediate and constant treatment since the time of the accident, continued treatment was not recommended. The type of information that would have been contained in the records in question (i.e., details of the amount and type of treatment provided and its effect) would have been available to Mr. Papachristos in his examination and assessment of the Applicant.

Although I consider that providing the most up-to-date medical records to an assessor would seem to be a best practice, in this case I do not find that their absence resulted in the DAC report being defective or fundamentally flawed. As such, I find that the failure of Allstate to provide the DAC with the most up-to-date clinical notes and records did not in this case result in an unreasonable withholding or delay in payments of accident benefits to the Applicant.

CONCLUSION:

For the reasons set out above, I find that the Applicant is entitled to payment for the acupuncture and physiotherapy treatment as well as the Tylenol #4 prescriptions and transportation expense as claimed as well as interest on the overdue payment of these benefits, pursuant to section 46(2) of the Schedule.

I find that Allstate is not liable to pay for the prescriptions for DMSO/Ketamine and Flexeril or the disposable gloves. Further, Allstate is not liable to pay a Special Award in this case.

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 through 79 of the Dispute Resolution Practice Code.

October 27, 2009

Elizabeth Nastasi Arbitrator

ARBITRATION ORDER

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

1. The Insurer shall pay to the Applicant $852, the total claimed for incurred physiotherapy treatment up to March 31, 2009.

2. The Insurer shall pay to the Applicant $7,245, the total claimed for acupuncture treatment up to March 31, 2009.

3. The Insurer shall pay to the Applicant $87.24, the total claimed for Tylenol #4 prescription medication up to March 31, 2009.

4. The Insurer shall pay to the Applicant $181.85, the total claimed for transportation expenses to medical appointments up to March 31, 2009.

5. The Insurer shall pay to the Applicant interest on the above amount, pursuant to section 46(2) of the Schedule.

6. The decision on expenses is reserved, to be resolved in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

October 27, 2009

Elizabeth Nastasi Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit #1, Tab 150
3. 3Exhibit #1, Tab 149.
4. 4Exhibit #1, Tab 154
5. 5Exhibit #2
6. 6Exhibit #1, Volume #3, Tab 156, page 13.
7. 7RSD is also referred to as complex regional pain syndrome (CRPS). The various reports use these terms interchangeably. I have used “RSD” in this decision. The diagnosis of both the TFCC tear and RSD was confirmed by several specialists including Dr. G. Faclier of the Pain Management Program at Sunnybrook and Women's College Health Sciences Centre (Exhibit #1, Volume #3, Tab 139) and Dr. G. Lloyd, orthopaedic surgeon (Exhibit #1, Volume #3, Tab 148).
8. 8Exhibit #1, Volume 3, Tab 155 - Dr. Kaminker's insurer’s examination report dated September 20, 2007.
9. 9Violi and General Accident Insurance Company of Canada (FSCO Appeal P99-00047, September 27, 2000); Amoa-Williams and Allstate Insurance Co. of Canada (FSCO A97-0001864, June 5, 2000); Kolonjari and CUMIS General Insurance Company (FSCO A00-000449, October 4, 2001); Suchan and State Farm Mutual Automobile Insurance Co. (FSCO A02-000844, March 24, 2003); Crossey and Farmers' Mutual Insurance Co. (FSCO A03-001643, September 28, 2005); Wong and Allstate Insurance Co. of Canada (FSCO A99-000545, September 22, 2000); and Pedisic and State Farm Mutual Automobile Insurance Co. (FSCO A04-002339, January 23, 2009).
10. 10Wong and Allstate Insurance Co. of Canada (FSCO A99-000545, September 22, 2000) and Pedisic and State Farm Mutual Automobile Insurance Co. (FSCO A04-002339, January 23, 2009).
11. 11Driver and Traders General Insurance Company, (FSCO P03-00006, November 18, 2003) - adopted in Msuya and Belair Insurance Company Inc. (FSCO A04-000115, July 14, 2005).
12. 12Violi and General Accident Insurance Company of Canada, (FSCO Appeal P99-00047, September 27, 2000).
13. 13As summarized in Pedisic and State Farm Mutual Automobile Insurance Co. (FSCO A04-002339, January 23, 2009) and also citing Msuya and Belair Insurance Company Inc. (FSCO A04-000115, July 14, 2005); Wasylewycz and Guarantee Company of North America (FSCO A04-002136, July 28, 2006) and Urgiles and Allstate Insurance Co. of Canada (FSCO A04-001424, May 8, 2006).
14. 14Exhibit #1, Volume 2, Tab 124.
15. 15Also noted in Dr. Lipson’s report dated November 21, 2007 (Exhibit #1, Volume 3, Tab 156 page 9).
16. 16Exhibit #1, Volume 3, Tab 152.
17. 17Exhibit #1, Volume 3, Tab 150.
18. 18Exhibit #1, Volume 3, Tab 149.
19. 19Exhibit #4 – Curriculum Vitae of Mr. Papachristos. His evidence was that he employs acupuncture in 10 -15% of his caseload.
20. 20DAC Conclusions, Exhibit #1, Volume 3, Tab 152, page 3.
21. 21Exhibit #1, Volume 3, Tab 152.
22. 22Exhibit #1, Volume 3, Tab 155.
23. 23Exhibit #1, Volume 3, Tab 155, page 16.
24. 24Exhibit #5 – Curriculum Vitae of Dr. Lipson.
25. 25Exhibit #1, Volume 3, tab 155 page 16.
26. 26Exhibit #1, Volume 3, tab 155 page 15.
27. 27Exhibit #1, Volume 2, Tab 133.
28. 28Exhibit #1, Volume 3, Tab 155 page 113.
29. 29Violi and General Accident Insurance Co. of Canada, (FSCO Appeal P99-00047, September 27, 2000).
30. 30Exhibit #1, Volume 3, Tab 156.
31. 31Exhibit #2.
32. 32Exhibit #1, Volume 3, Tab 123. The clinical notes and records of Dr. Chen on January 2, 2007 note that “patient would like to try DMSO alone. Researched on net.”
33. 33Exhibit #1, Volume 2, Tab 139.
34. 34Pacquette and Certas Direct Insurance Company (FSCO A06-000934, July 24, 2006); Driver and Traders General Insurance Co. (FSCO A01-000841, January 8, 2003); Palmer and State Farm Mutual Automobile Insurance Company (FSCO A00-001286, December 20, 2001).
35. 35Commissioner's Guideline No. 03/06, effective January 21, 2006, section (a) Accidents occurring before April 15, 2004.
36. 36The Applicant listed a number of concerns that she had with respect to Allstate’s file handling as well as factual and typographical errors she found in various assessments. I have addressed only the items that are related to actual issues in dispute in the case before me.
37. 37The DAC report notes that “...we contacted the adjuster...” The final report is signed by both Mr. Papachristos and Irene Sullivan, Clinic Coordinator.