Neutral Citation: 2009 ONFSCDRS 151 FSCO A08-000745

BETWEEN:

MARCEL LECLERC Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Robert A. Kominar Heard: January 6, 7, 8, 12, 2009 Appearances: David Hayward for Mr. Leclerc Joseph J. Sullivan and Christopher Deeley for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Marcel Leclerc, was injured in motor vehicle accidents on August 11, 2001 and December 11, 2003. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹

State Farm denied payment for ongoing chiropractic and massage therapy provided under certain treatment plans. The parties were unable to resolve their disputes through mediation, and Mr. Leclerc 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. Leclerc entitled to payments for chiropractic and massage therapy as provided for in treatment plans prepared by Dr. Cornale-Smith, dated April 26 and June 15, 2007.

Result:

Mr. Leclerc is not entitled to payments for the above treatment.

EVIDENCE AND ANALYSIS:

Marcel Leclerc was involved in automobile accidents on December 7, 2000, August 11, 2001 and December 11, 2003. The last two accidents are the subject of this arbitration. The dispute relates to State Farm’s refusal to pay for ongoing chiropractic and massage therapy, which Mr. Leclerc believes that he needs to facilitate his ongoing recovery from the effects of the last motor vehicle accident. The crux of the disagreement between the parties relates to the proper interpretation of the Schedule’s test of being “reasonable and necessary.” Specifically, the treatment proposed by Dr. C. Cornale-Smith, who is Mr. Leclerc’s long time treating chiropractor, requests the approval of 100 sessions of chiropractic and massage treatment. State Farm declined to approve these treatment plans, primarily on the basis that it was unreasonable to expect an insurer to approve such extensive treatment and thereby eliminate its ability to monitor and assess, on a timely basis, whether the treatment was helping Mr. Leclerc or not. Mr. Leclerc, on the other hand, claims that he has reached the point where ongoing chiropractic and massage treatment is what he needs to function. Thus, his view is that it is reasonable and necessary for him to seek approval for more than what might be called a “standard” course of treatment – which might typically involve 10 to 15 sessions at a time.

Mr. Leclerc is a self-employed real estate broker. His evidence at the hearing was that he needed to continue working after his accidents and that he took no more than about four weeks off of work in total. Both parties acknowledge that his motor vehicle accidents were fairly significant ones. Mr. Leclerc also testified that his general preference is to avoid prescription medications if at all possible, as he wants to stay alert and focused while doing business. As a result, he prefers modalities of treatment such as chiropractic, massage and Bowen therapy. Mr. Leclerc stated that when he combines these types of treatments with regular workouts at a gym, he is able to function sufficiently well to run his business day to day and generally enjoy his life. However, he also stated that without ongoing supportive chiropractic and massage therapy, he experiences a significant decline in his level of function. Mr. Leclerc disagrees with State Farm’s position that the treatment plans in question request approval of treatment that is not both reasonable and necessary under the Schedule.

In essence, Mr. Leclerc’s evidence was that ongoing chiropractic and massage therapy, combined with workouts four to five days per week at the gym, and Bowen therapy which is provided to him by his wife, are what he needs to keep his level of physical functionality at the point where he can still work. He noted that as a result of his automobile accidents he has changed the scope of his working life to becoming more of a supervisor. In the past, he regularly participated in showing houses and doing the other things which real estate agents normally do. Now, he has had to engage an assistant to take over much of the “leg work” associated with being a realtor, and restricts himself to overseeing the operation. As he testified, he basically “signs cheques ” now.

On direct examination, Mr. Leclerc was asked if he ever tried to stop or taper off chiropractic and massage. His answer was that he did try various times for a few weeks or so, but found that he never could function for long, due to the pain he experienced when he was not getting regular therapy. As a result, despite the fact that State Farm has refused to pay for the disputed treatment, Mr. Leclerc has continued to seek treatment out and to pay for it himself.

As noted above, Mr. Leclerc prefers not to take prescription medications if possible. His evidence was that they make him “stupid” and that his work requires him to be alert and focused. He also believes that chiropractic and massage allow him to do that without experiencing the grogginess that he associates with prescription pain medications. He did state that he was prescribed and took Vioxx, an anti-inflammatory, until it was taken off the market, and that it did help. He also was prescribed and took Percocet for some period of time for pain relief. Mr. Leclerc stated that it “helped” but also made him feel “dopey and embarrassed.” As a result, Mr. Leclerc used Percocet only as a “last ditch” option when his pain was uncontrollable through other means. According to Mr. Leclerc, his pain is still present almost daily notwithstanding the passage of time since the accidents.

When further asked about the effects of trying to wean himself off of chiropractic and massage, Mr. Leclerc stated that he recognizes that he becomes significantly more irritable during such times. He stated that he notices that his pain episodes become more frequent and also more intense. In his own words, he stated that he has become accustomed to “always feeling uncomfortable” but that at times his pain escalates to the point where it becomes the focus of his life. At such times Mr. Leclerc stated that he feels like he is just waiting for the “other shoe to drop.” My inference from this evidence is that Mr. Leclerc meant that he would at times reach the point where his pain is so intense that he has to take steps to intervene, otherwise his symptoms would escalate to the level where they would become debilitating.

Mr. Leclerc stated that at some point in time he reached the point where he accepted that he may never fully recover from his injuries or become pain free. After that point in time, he shifted his focus to trying to adapt to the reality that he had to live with relatively constant pain and discomfort. Although he had originally hoped to be “healed”, he later reduced his expectations to living without too much discomfort, knowing that he would likely experience episodic setbacks. At the time of the hearing, Mr. Leclerc was investigating some form of “hydrocision” surgery available to him currently only in the United States. He hoped that this procedure might finally resolve his pain problems; however, that is not an issue before me in this arbitration.

On cross examination, Mr. Leclerc stated that he has been a chiropractic patient of Dr. Cornale-Smith’s since approximately 1991. More significantly, he acknowledged that he has attended with her for treatment “regularly” since then. A significant amount of time in the hearing was taken up reviewing the history of Mr. Leclerc’s clinical involvement with Dr. Cornale-Smith over the years. I decline to analyze the full details of the history revealed in the chiropractor’s clinical notes as Mr. Leclerc explicitly stated that he accepted as being true whatever those records reflect, not having much specific recollection of many his attendances with Dr. Cornale-Smith over the years.

Mr. Leclerc testified that he has reached the point where he finds it bothersome to continually have to request approval from State Farm for normal courses of what he regards as necessary treatment. He believes that he has reached the point where it is reasonable to assume that his pain will be continual and that he will need ongoing, indefinite maintenance treatments, unless and until some surgical option completely resolves his pain complaints.

After hearing and carefully considering Mr. Leclerc’s evidence, I have no doubt that he personally believes that the ongoing chiropractic and massage treatment helps him to cope with his pain. However, the statutory test is whether such treatment is reasonable and necessary in the circumstances. There is more to this test than Mr. Leclerc’s personal beliefs. In my view, it is not sufficient that Mr. Leclerc subjectively desire or feel that he needs this treatment to meet the threshold of the test. The objective medical evidence presented must also be considered.

Dr. C. Cornale-Smith, Mr. Leclerc’s treating chiropractor, testified at the arbitration. She described the various modalities of treatment which she provided to Mr. Leclerc. In addition, she described her attempts to wean him off of the significant amount of treatment he was requesting and getting. Ultimately, however, Dr. Cornale-Smith testified that Mr. Leclerc continued to return to her office for chiropractic adjustments, complaining to her that he needed them to function adequately. When Dr. Cornale-Smith was asked whether Mr. Leclerc had reached maximum medical recovery, she stated that he had but that she also believed that he continued to need what she termed “supportive care.” In her view, supportive care has the intended purpose of allowing the patient to continue to function and cope with pain. In that sense it is not directed at healing or improving functionality. Specifically, Dr. Cornale-Smith stated that Mr. Leclerc told her that he would go into spasm and at times experience referred chest pains if he did not receive ongoing chiropractic care. Based on Mr. Leclerc’s insistence that he needed such ongoing treatment, she filled out the disputed treatment plans.

Dr. Cornale-Smith was asked whether she had considered the possibility that Mr. Leclerc had developed a dependency on chiropractic treatment. Her response, I find, was very significant and relevant to the decision which I have to make in this arbitration. She stated that Mr. Leclerc is the only patient, in her roughly 17 years of professional practice, whom she has treated on a regular weekly basis for the length of time that she and Mr. Leclerc have had a professional relationship. In Dr. Cornale-Smith’s clinical experience, Mr. Leclerc’s desire and need for chiropractic treatment is unique. However, in her opinion, although he is an anomaly among her patients, she also believes that he has tried all other reasonable therapeutic options to deal with his pain and that he would not likely, in her professional opinion, get any better in the future.

Dr. Kumbhare also testified during the arbitration. He is a doctor of physical medicine and Professor of Physiatry at McMaster University Medical School as well as Head of Physiatry at St. Joseph’s Hospital in Hamilton. Additionally, Dr. Kumbhare was a clinical instructor at the Canadian Memorial Chiropractic College in Toronto for approximately six years in which he supervised new chiropractors in clinical hospital settings after they had qualified to practice.

The essence of Dr. Kumbhare’s evidence was that he did on examination find range of motion restrictions still present in Mr. Leclerc when he examined him. He also noted that he reviewed an MRI of Mr. Leclerc’s spine which showed that he had a very old injury that had healed as much as one could expect and that it would not improve with any further type of treatment. Dr. Kumbhare also testified that he could not meaningfully opine on whether the old injuries shown on Mr. Leclerc’s MRI results were related in any way to any of the automobile accidents in which he has been involved.

When Dr. Kumbhare was asked about whether Mr. Leclerc had reached maximum medical recovery after these motor vehicle accidents, he, as did Dr. Cornale-Smith, answered that he had. He declined to opine on whether the specific modalities of treatment Dr. Cornale-Smith was proposing were appropriate, as he was not a chiropractor and it would be outside of his scope of practice. But Dr. Kumbhare did state that the notion of approving 100 treatments over the course of a year without any option to review progress in the interim was not generally reasonable in his view. Although Dr. Kumbhare is a physiatrist and not a chiropractor, he is also a medical doctor with extensive experience and professional credentials relating to provision of clinical chiropractic care.

State Farm requested that Mr. Leclerc be independently assessed on multiple occasions by a chiropractor, Dr. Chris Almas. Dr. Almas was retained off of a third-party roster which State Farm, and I assume other insurers, use to assign independent medical examinations to assessors in various geographic areas. A significant amount of hearing time was devoted to the unpleasant interactions between Mr. Leclerc and Dr. Almas. I believe it to be a fair inference from the evidence that Mr. Leclerc and Dr. Almas did not experience cordial, and at times not even civil, interactions. Mr. Leclerc on one occasion surreptitiously recorded his meeting with Dr. Almas, although Mr. Leclerc’s evidence was that he had advised Dr. Almas that this might happen in advance because he was so unsatisfied with his first experience with the doctor. Mr. Leclerc also complained about the reports which Dr. Almas issued to State Farm, alleging that Dr. Almas did not perform some of the tests and measurements which his report claims that he did and upon which he based his conclusions.

Given the basis for my decision as set out below, I do not find the need to deeply analyze the troubling interactions between these two individuals.

I do, however, find it necessary to say that, had the outcome of this case turned more directly on Dr. Almas’ independent evaluations of Mr. Leclerc, I would have given little if any weight to Dr. Almas’ evidence. During his testimony at the arbitration, Dr. Almas clearly gave the impression that he was primarily a “business man” in contrast to a clinical health care professional. In fact, Dr. Almas’ evidence and curriculum vitae reveal that he has had very little actual experience in chiropractic care of patients. To his credit, he quite openly and honestly stated that he chose to go where the money was in his field and that he worked deliberately to develop a business model for his practice that would allow him to generate the maximum number of assessments possible in any given time frame. He described a number of what one might call “efficiencies” in the way he went about preparing independent evaluations to insurers. Without going into the specific detail of his evidence, I did note with concern that Dr. Almas’ practice is to generate his reports during and immediately after he meets with a person whom he is assessing – one might say in “real time.” This practice, which he developed over time, allows him to regularly meet the tight timeframes which insurers work with and, as a result, he gets more business. Dr. Almas testified that, notwithstanding that he only works for insurers, he is not biased. Rather, he sees his streamlined process for producing independent examinations as efficient and cost effective. Without further commenting on the issue, I note that Dr. Almas may be correct in his economic conclusions. However, there are very serious concerns which I have about economic efficiency being the primary driving force behind assessments for either side of an accident benefit case.

The conclusion which I draw from Dr. Almas’ evidence is that he doesn’t take, or at least did not take in Mr. Leclerc’s case, any meaningful time to reflect on his physical examination, clinical findings or interviews before asserting his conclusions in his report. Rather, it seems that his primary focus is on generating reports quickly so that the flow of work would continue. I find that this serious lack of any critical thinking perspective creates very real concerns in an adjudicator’s mind about the reliability of Dr. Almas’ findings. Beyond that, I also find that when one couples Dr. Almas’ business model of practice with a personality like Mr. Leclerc’s, the probability of the kind of challenging interactions which these two had might well be increased.

In summary, I do not rely on the evidence of Dr. Almas in reaching my conclusions here.

ANALYSIS

In essence, Mr. Leclerc is arguing that once an individual reaches the stage of needing “supportive care” after having reached “maximum medical recovery,” the interpretation of the statutory test of “reasonable and necessary” must change. No longer, he argues, should he be subject to the ongoing review process involved in submitting serial treatment plans to his insurer, or, at least, he should have to do that much less frequently than one might do prior to having reached the state of maximum medical recovery.

State Farm, on the other hand, argues that, notwithstanding whether treatment is “supportive” or “palliative” or not, an automobile insurer is still only responsible to pay for treatment that is deemed to be reasonable and necessary and related to the motor vehicle accidents.

Mr. Leclerc raises an interesting and important argument. I accept that the interpretation of reasonableness and necessity are contextual under the Schedule. It is now acknowledged that treatment of chronic pain can in and of itself be an appropriate focus of medical care and that insurers may be required to fund such treatment. However, I find that I do not have to decide that issue here as I am not prepared on the evidence to find that Mr. Leclerc has met his civil burden of proof to demonstrate that his ongoing chiropractic and massage therapy care is related to these accidents. I further find that the quantity and duration of the treatment requested by Dr. Cornale-Smith is, according to her own evidence, well beyond the norm of contemporary chiropractic practice. In fact, it is so far beyond the norm that Dr. Cornale-Smith’s evidence was that Mr. Leclerc’s ongoing need for treatment was unique in her professional experience.

The reality is that, based on the evidence before me, including an extensive clinical history of Mr. Leclerc’s treatment by chiropractors and massage therapists for over a decade, reflects that he was quite literally receiving approximately as much of this sort of care prior to the automobile accidents as he was right afterwards, throughout, and that he wants to continue now. In other words, the reasonable inference to draw in Mr. Leclerc’s situation is that his use of chiropractic and massage care has not varied much over the years whether he had recently been involved in an automobile accident or not. There clearly were variations in the kind and quantity of care, which would be expected after experiencing an acute event such as a significant automobile accident, but overall, I agree with State Farm that the variations do not lead me to conclude that, as a result of these accidents, the insurer should be compelled to fund long term, unevaluated treatment for Mr. Leclerc.

After the accidents, Mr. Leclerc increased the frequency of his care and then over time, as one would expect if the therapy was useful at all, he decreased his use of it. In fact, Mr. Leclerc reduced his usage of chiropractic care back down to the level prior to the salient accidents. All of the medical evidence presented in the hearing acknowledges that Mr. Leclerc has reached maximum medical recovery and that further treatment will not help him heal any further. Even Mr. Leclerc acknowledges that ongoing chiropractic manipulation and massage are not going to resolve his pain problems. He only claims that they will help him manage them.

Notwithstanding this agreement about Mr. Leclerc’s current medical status, he nonetheless requests that State Farm continue to pay for his ongoing supportive treatment and to continue to do so for a period of time that all of the medical evidence in this hearing notes is an unusually long duration. Dr. Cornale-Smith, who drafted the treatment plan, admitted that she had never requested approval for such treatment before and also that she never had another patient in her practice who had so regularly used long term chiropractic care.

Having carefully considered the evidence and the submissions of the parties, I find that Mr. Leclerc has not met his burden of proof to demonstrate on a balance of probabilities that the treatment which he is requesting was both reasonable and necessary and related to the automobile accidents. In fact, I find that the request for 100 chiropractic sessions was quite unreasonable in the sense that it, by definition, denies State Farm the opportunity to regularly monitor Mr. Leclerc’s ongoing progress. Apart from Mr. Leclerc’s self report of how he feels, there is really no bench mark against which State Farm can meaningfully assess whether continued funding of treatment is reasonable or necessary during the year in which the treatment would be administered. I appreciate that Mr. Leclerc and his treating practitioners may be weary of doing the paperwork and at times attending the independent examinations associated with having treatment plans approved. However, that is the regulatory scheme under which accident benefits work. I find that there is nothing in the Schedule which allows an “opt out” of the treatment plan scheme simply because one has been deemed to have reached “maximum medical recovery.” If this were the case, applicants for accident benefits would presumably be able to submit treatment plans asking for approval of treatment that would exhaust the limits under the insurance policy. That is clearly not the intention of the accident benefits system in Ontario. Ongoing reasonable review of treatment by insurers is an integral part of our automobile insurance system. If the procedural requirements are unduly onerous, then that is something which the legislature will have to address. Until that happens, Mr. Leclerc will have to request approval for treatment in the normal course.

In conclusion, when I consider:

the long course of treatment proposed here;
the failure to build in any review process into the treatment; and
the clear evidence of Dr. Cornale-Smith, supported by Dr. Kumbhare, that Mr. Leclerc was unique in his devotion to chiropractic, and the fact that Mr. Leclerc’s current request for treatment is for all intents and purposes equivalent to the treatment which he was getting on an ongoing basis prior to either of these automobile accidents,

the conclusion which I reach is that this treatment was not reasonable and necessary in the context of the Schedule.

For clarity, my conclusion here does not directly deal with whether or not supportive care, as it was called during the hearing, can be at times reasonable and necessary. There may be circumstances where the treatment proposed after maximum medical recovery is reached is quite appropriate. My decision relates strictly to Mr. Leclerc’s situation as presented through the evidence in this hearing. I find that both he and Dr. Cornale-Smith proposed this particular course of treatment due to their frustration with filling out treatment plans and having them unfavorably reviewed by the insurer. The reality is that the Schedule is drafted to allow the insurer to monitor ongoing treatment and this is an integral aspect of the “reasonable and necessary” test. If the rationale for the amount of treatment requested here is simply to streamline process and paperwork, then that does not meet the test of being reasonable in my view.

EXPENSES:

The parties made no submissions on expenses. They are encouraged to resolve the issue. If they are unable to do so, they may schedule an expense hearing before me according to the provisions of Rule 79 of the Dispute Resolution Practice Code.

November 4, 2009

Robert A. Kominar Arbitrator

Date:

Financial Services Commission of Ontario