Neutral Citation: 2009 ONFSCDRS 7

FSCO A04-002338 and A04-002339

BETWEEN:

KANDY PEDISIC

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Richard Feldman

Heard: January 21, 22, 23 and 24, 2008 and November 24, 25, 27 and 28, 2008, in London, Ontario.

Appearances: Robert W. Vitols for Ms. Pedisic Nawaz Tahir for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Kandy Pedisic, was injured in motor vehicle accidents on March 6, 1997 and February 5, 2003. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ Amongst other things, the Applicant applied for payment for massage therapy pursuant to section 14 of the Schedule. Disputes arose with respect to the reasonableness and necessity of such treatment. The parties were unable to resolve these disputes through mediation and Ms. Pedisic applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

One application was filed with respect to the March 6, 1997 accident (File No. A04-002338) and one application was filed with respect to the February 5, 2003 accident (File No. A04-002339). At the pre-hearing conference, it was ordered that these two applications be combined and be heard together.

The issues in this combined hearing are:

Pursuant to section 14 of the Schedule, is the Applicant entitled to medical expenses in the total sum of $57,078.50² for massage treatment she has received from Shawn Reid from July 2, 2002 to and including January 20, 2008?
Is the Applicant entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is either party entitled to their expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

The Applicant is entitled to payment of $57,078.50 for massage therapy up to and including January 20, 2008.
The Applicant is entitled to interest on the amount set out above, pursuant to section 46(2) of the Schedule.
The decision on expenses is reserved, to be resolved in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background Information and Summary of Dispute

The Applicant, Kandy Pedisic, is forty-seven years old. She is a registered nurse who works full-time in a hospital in London. She lives with her teenaged son, Dalton, and her spouse, Marc.

In the last thirteen years or so, Ms. Pedisic has been involved in three³ motor vehicle collisions.

In November 1995, she suffered soft-tissue neck injuries when her car was rear-ended. She reported severe neck symptoms with concomitant sub occipital pattern headaches with nausea, vomiting and dizziness. She did not lose any time from work. She received treatment for those injuries until July 1996, by which time she had made a complete recovery (i.e., she was free of any symptoms by that point).

On March 6, 1997, a vehicle driven by Ms. Pedisic was struck on the driver's side with considerable force by another vehicle. Her vehicle was "totalled". She again suffered soft-tissue injuries to her neck and back with some neurological symptoms. She was off work until about June 1997 and then gradually returned to her usual duties in the surgical unit of the hospital. Her treatment included physiotherapy, massage therapy, chiropractic treatment, a TENS machine, stretching and regular exercise. Although physiotherapy was discontinued after about one year, all of the other therapies continued for many years thereafter. Into 2002, State Farm continued to pay for various treatments, including chiropractic treatment and massage therapy.

By late 2002, although Ms. Pedisic's neck pain and headaches had not fully resolved, there had been some improvement in her condition as she was able to reduce the frequency of therapy. She was able to participate in many of her usual daily activities and routinely worked up to 60 hours per week (which included a considerable amount of overtime). She was, however, looking to reduce her hours at work and had transferred to a position in the hospital that was less physically demanding. While she was not back to her pre-accident level of health, Ms. Pedisic's condition had reached a "plateau". State Farm paid for massage therapy up to June 26, 2002 but refused to pay for massage therapy beyond that date.⁴ Between June 26, 2002 and February 4, 2003, Ms. Pedisic incurred $4,510.00 in massage therapy for which State Farm has refused to pay.

On February 5, 2003, Ms. Pedisic was involved in a third accident. Her vehicle was stopped and she was rear-ended at approximately 20 kph. She immediately complained of headaches, pain and stiffness in her neck and numbness in her left arm. Although this accident resulted in only minor damage to her vehicle, it is this accident that, according to Ms. Pedisic, had the most devastating impact on her health. The medical experts seem to agree that the physical damage to Ms. Pedisic's soft tissues in this accident ought to have healed within weeks or months after the accident. The real problem is that she developed chronic pain (primarily pain in her neck and back and severe headaches) after the 1997 accident which then worsened after the 2003 accident and the medical experts do not all agree on how best to deal with this situation.

Since the 2003 accident, Ms. Pedisic very rarely works more than 44 hours per week. The range of recreational activities in which she takes part has been reduced. In order to manage the level of pain she experiences and maintain her current level of functioning, she has continued with a comprehensive rehabilitation and maintenance program that includes: daily stretching, exercise at the gym three times per week (focusing on cardiovascular health and lower body work), a home exercise program that includes yoga and upper body strength training, chiropractic treatment (approximately one time per week) and, on average, three 1.5 hour massage therapy sessions each week. While State Farm initially supported the treatment being received by Ms. Pedisic, by the end of 2003, State Farm questioned whether it was reasonable for her to continue with the passive therapy (i.e., chiropractic treatment and massage therapy) that she had been receiving since 1997. State Farm had Ms. Pedisic attend an assessment at a Designated Assessment Centre ("DAC") and, relying upon the resulting DAC report,⁵ State Farm partially approved one last treatment plan for massage therapy (dated November 27, 2003) and denied all subsequent massage therapy plans that were submitted to State Farm.⁶ Between February 5, 2003 and January 20, 2008, Ms. Pedisic incurred $52,568.50 in massage therapy for which State Farm has refused to pay.

Section 14 of the Schedule requires State Farm to pay for, amongst other things, all reasonable and necessary expenses incurred by or on behalf of Ms. Pedisic for physiotherapy and other services of a medical nature (that were incurred as a result of one or both of the accidents in question). State Farm questions the reasonableness and necessity of Ms. Pedisic receiving any massage therapy beyond that which has already been approved and paid for by State Farm. At the conclusion of the hearing, the parties agreed that, based upon the evidence presented, this is an "all or nothing" proposition – I must either find that the entire amount claimed is due and owing to the Applicant or that none of the expenses claimed for massage therapy are reasonable.

At the hearing of these Applications, I accepted into evidence (and marked as exhibits) a large volume of documents and surveillance videographic evidence and heard testimony from the Applicant, her spouse (Marc Guimond), Shawn Reid, Dr. Gail Delaney, Dr. Keith Sequeira, Dr. Matthew Somers, Rick Overeem and Dr. John Clifford.

Impairment

State Farm has never really questioned whether the Applicant has suffered an impairment as a result of one or more of the accidents in question. Ms. Pedisic suffers from chronic pain in her neck, shoulders and back and intermittent severe headaches. This pain impairs her ability to function. To the extent that it is necessary, I find that this qualifies as an "abnormality of a psychological, physiological or anatomical structure or function" (i.e., an "impairment", as that term is defined in the Schedule).

Causation

There appears to be no real question that, between March 6, 1997 and February 4, 2003, Ms. Pedisic's problems with neck pain and headaches were caused by the March 6, 1997 accident.

As of February 5, 2003, the situation was made more complex by the fact that Ms. Pedisic, who was still suffering the effects of the March 6, 1997 accident, was then involved in another accident. State Farm has focused on the fact that the damage to the vehicle driven by Ms. Pedisic that resulted from the 2003 accident was very minor (only a few hundred dollars). State Farm suggests that I draw the inference from this that Ms. Pedisic's ongoing complaints are more likely related to the earlier, more severe collision (i.e., the 1997 accident).⁷

Ms. Pedisic testified that the 2003 accident had a much greater impact on her lifestyle than the 1997 accident. She stated that (on a subjective scale) the pain she experienced went from a 2 or 3 out of 10 to 10 out of 10 and that her neck pain and headaches went from being intermittent to being constant. After the 2003 accident, she had to give up doing voluntary overtime work and restricted herself to lighter work at the hospital that was more in keeping with her limitations. Ms. Pedisic also testified that she suffered a much more drastic reduction in her ability to engage in her normal household and recreational activities after the 2003 accident. She testified that when she attempts to do more (such as gardening or cooking/cleaning for a party) she often pays for it with an unmanageable flare-up in her symptoms. This is consistent with what Ms. Pedisic reported to her treating medical practitioners and was corroborated by the testimony of her spouse, Marc Guimond.

The DAC reports of March 25, 2004 and January 12, 2005 do not deal with the issue of causation.

Dr. Gail Delaney, a physiatrist who examined Ms. Pedisic and reviewed her history, concluded that:

The accident of February 5, 2003 was an accident of minor damage but by history worsened her condition. Although she had no work loss time after the third accident of 2003, one must remember that she was already in modified work and doing a job that mostly involved doing interviewing, rather than physical hands-on work with patients. She developed a new symptom of stiffness in her jaw and worsened in her back symptoms. The soft tissue injuries to her neck (WAD II) also worsened.⁸

Another physiatrist who specifically commented on the issue of causation was Dr. Keith Sequeira. In a report dated April 2, 2007, he wrote as follows:

It is my opinion that the February 5, 2003 accident materially contributed to Ms. Pedisic's current conditions and limitations. Overall, the 1997 accident initiated Ms. Pedisic's injuries and she had plateaued in her recovery by the time of the 2003 accident. This 2003 accident then aggravated the areas of impairment that she initially sustained in the 1997 accident.⁹

Dr. Sequeira further elaborated this point in a letter dated August 2, 2007:

In my opinion, the 1997 accident resulted in 30-50% of Ms. Pedisic's current problems and limitations. In my opinion, the 2003 motor vehicle accident resulted in 50-70% of Ms. Pedisic's present limitations…

Although Ms. Pedisic had some limitations after the 1997 accident, she was physically and functionally able to maintain many work, avocational and functional roles. Prior to 2003, her energy level and tolerance of activities was reasonably good, in spite of her pain. At that time, Ms. Pedisic continued to work significant hours, in spite of her pain. During some weeks, she worked seven days in a week and significant overtime hours in the hope of enhancing her job opportunities for the future. She continued to work full time hours plus overtime until the motor vehicle accident of 2003. After the motor vehicle accident of 2003, she has not been able to work overtime hours. She is now more relegated to consistently pacing herself and accommodating to her symptoms and physical needs at work. Her progression suggests that Ms. Pedisic's 2003 accident likely had a greater impact on her from a physical and functional standpoint than the 1997 accident…¹⁰

The only medical professional who, by implication, raised causation as an issue is Dr. John C. Clifford, a physiatrist who examined Ms. Pedisic at the request of State Farm in 1999. At that time, Dr. Clifford did not question that Ms. Pedisic was suffering some effects from the 1997 accident but he recommended discontinuing passive therapy. In early 2006, Dr. Clifford was again asked by State Farm to examine Ms. Pedisic and provide his opinion about various treatment plan(s) that were in dispute. Dr. Clifford chose not to examine Ms. Pedisic. He reviewed the documentation provided to him and gave an opinion concerning the reasonableness of proposed treatment. He also stated that, in his opinion, any soft tissue injuries Ms. Pedisic sustained in the 2003 accident ought to have healed within a matter of weeks. He appears to question the link between her ongoing complaints and the 2003 accident but he does not really explore this issue in any detail.

Finally, while it is possible that Ms. Pedisic's symptoms were, from time to time, aggravated by stress arising from personal or professional relationships or from other health concerns, this does not alter the fact that her chronic neck pain, back pain and headaches were caused by the 1997 and 2003 accidents. Up to February 4, 2003, her impairments are attributable to the 1997 accident. From February 5, 2003 onwards, based upon the evidence presented, I am satisfied that Ms. Pedisic has proven on a balance of probabilities that both the 1997 and the 2003 accidents materially contributed to her impairments.

Is the treatment in question "reasonable and necessary"?

(a) The Applicant's position

The Applicant's position can be summarized as follows:

After the accident in 1997, the Applicant developed chronic pain. Despite that pain, with the assistance of both passive and active therapies, she was able to maintain a very high level of function until the accident of 2003. As a result of the 2003 accident, the frequency and intensity of the pain greatly increased. As a result, her quality of life was impaired and she avoided many of the activities she had enjoyed prior to the 2003 accident. Although Ms. Pedisic initially believed that she would recover quickly from this relatively modest impact, she was wrong.

Despite the pain, she has managed to keep her full-time job, support her family and maintain a semblance of a normal life, but only with the help of a huge amount of therapy, both active and passive. The massage therapy helps relax her muscles enough that she is able to fully engage in her stretching and strengthening exercises. It is this combination of the passive and active therapies that works for her. She does not enjoy the massage therapy but finds it to be an essential part of her program.

Long-term use of pain medication is not a viable alternative for Ms. Pedisic because of her personal beliefs and because of the risk of side-effects (i.e., the risk of irritating her pre-existing gastro-intestinal problems, the risk of other potential adverse effects on her health and the risk of interference with mental function or alertness that could put her patients and her job at risk).

There have been many attempts to taper off the massage therapy and all have ended badly. It now appears unlikely that Ms. Pedisic will ever make a full recovery (i.e., return to her pre-accident status) and the purpose of massage therapy is to give her relief from the pain and support her active therapies which, together, allow her to maintain her current level of function. Ms. Pedisic feels so strongly that she requires massage therapy that she has continued to go for treatment approximately three times per week and incur this expense even after State Farm refused to pay for this treatment.

It is the Applicant's position that although the frequency and duration of massage therapy being sought here is unusual, it is reasonable and necessary in this particular case and is supported by all of Ms. Pedisic's treating practitioners as well as several independent medical experts.

(b) The Insurer's position

The Insurer's position can be summarized as follows:

The 2003 accident was a minor one. Any soft tissue injuries suffered by Ms. Pedisic in that accident ought to have healed within weeks. There is no medical explanation for her ongoing complaints of pain. Pain is subjective and cannot be measured. The Applicant cannot rely entirely on her own subjective reports of pain and feelings of pain relief. By the end of 2003 (if not sooner), she had a full range of motion and had full function. Ms. Pedisic has been going for massage therapy, on average, three times per week since 1997; she has developed an unhealthy dependence on massage therapy. Two DAC reports and an independent physiatrist (Dr. Clifford) have concluded that ongoing massage therapy is not reasonable and necessary in this case.

(c) Case law

It has been established for some time 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.¹¹

It is now well-accepted that the relief of pain is, in and of itself, a legitimate medical and rehabilitative goal.¹² Additionally, if, through the reduction of pain, supportive care can improve or at least maintain the insured person's level of function, that is also a legitimate medical and rehabilitative goal.¹³

In the Violi case,¹⁴ Director's Delegate Draper approved the principle that pain relief is a legitimate goal of treatment. In fact, he noted that [I]n some extreme cases, pain relief might be the only goal.¹⁵ He also noted that "[e]valuating the effectiveness of any treatment is important, especially in determining whether it should continue over a lengthy period" and that "[o]ne concern is dependence".¹⁶

According to the Violi case and others,¹⁷ factors that ought to be 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).

Finally, the Director's Delegate in Violi cautioned that, "While insurers should not be expected to fund ineffective treatment, effectiveness need not be proven to a level of scientific certainty."¹⁸

(d) Credibility and Motivation of the Applicant

In cases such as this, the credibility and motivation of the insured person is often critical since there is no objective medical test for measuring pain. Virtually every medical practitioner who has seen Ms. Pedisic has commented favourably upon her motivation to work (and to engage in as many activities as possible) and upon her credibility. The medical reports that have been filed with me are replete with favourable comments concerning her motivation and credibility.

Shawn Reid has been working with Ms. Pedisic for over a decade. He testified that, based upon his experience, Ms. Pedisic has a fairly high threshold for pain, she is generally an up-beat person who does not tend to complain about her pain or focus on it (ruminate) or engage in "grandstanding" and, in terms of compliance with her rehabilitation and maintenance program (i.e., following through and performing her stretching and exercise routines) and in terms of her motivation, she is one of the best patients he has ever had (out of approximately 700 patients he has treated with complaints following a motor vehicle accident).

Even Dr. Clifford, who opposes passive therapy in treating chronic pain arising from soft-tissue injuries,¹⁹ was so impressed with Ms. Pedisic's efforts to remain active that he suggested that State Farm make a "good faith" payment to her.

Ms. Pedisic does not exaggerate her limitations; rather, she has consistently reported that, with the help of appropriate therapies, she has been able to maintain close to full function, albeit with varying degrees of discomfort.

State Farm placed great emphasis upon its surveillance of the Applicant which took place over many days and different years. Her treating practitioners have confirmed that what is shown on the surveillance tapes (or described in the associated reports) is consistent with the manner in which Ms. Pedisic presents herself in their offices. Throughout much of the surveillance, Ms. Pedisic is shown standing and sitting for prolonged periods. A careful review of the surveillance, however, shows that she is constantly shifting her weight and changing body positions. According to the practitioners who know her the best, this is consistent with what they would expect to see. Also, since she has not claimed to be disabled, the fact that she appears on the surveillance tapes to move normally does not adversely affect my assessment of her credibility. Thus, the surveillance was of little assistance in this case.²⁰

Ms. Pedisic testified that, despite her pain following the accident in 1997, with the assistance of both passive and active therapies, she was able to return to a very high level of function and maintain that high level of function until the accident of 2003. As a result of the 2003 accident, the frequency and intensity of the pain greatly increased. Ms. Pedisic testified that, after the 2003 accident, she had to reduce her hours of work. She discontinued many recreational activities that she simply found to be too painful. She managed to keep her full-time job, support her family and maintain a semblance of a normal life, but only with the help of a huge amount of therapy, both active and passive.

Based upon her testimony before me, I was favourably impressed with Ms. Pedisic and found her to be a credible witness. I therefore accept as truthful her reports to others as to the degree of pain she feels, the extent to which that pain limits her function and the degree of relief she receives from various forms of therapy. I accept that she honestly believes that her current program (consisting of both active and passive modalities) is helping her to cope with her chronic pain and that massage therapy is an essential component of this program.

I must now assess what the medical experts have concluded about the reasonableness and necessity of massage therapy in this case.

(e) Expert evidence

i. Treatment up to February 4, 2003

Shawn Reid

Shawn Reid has been a registered massage therapist since 1988. Approximately 70% of the people he treats have been involved in a motor vehicle accident.

Mr. Reid agrees that in cases of soft tissue injuries, massage alone is of very little benefit. The primary purpose of massage is to allow the patient sufficient relief so that they can do stretching and exercise. If the patient is not cooperating by doing their stretching and exercise routines, Mr. Reid testified that he will discontinue the massage therapy.

In Mr. Reid's experience, of his patients who have suffered soft-tissue injuries as a result of a motor vehicle accident, about 90% will get better (i.e., their symptoms improve to the point where they no longer need to see him on a regular basis). For the remaining 10% (or so), the duration, intensity and frequency of their symptoms never come into a manageable range. For that latter group, massage may be supportive care that can assist the person by reducing pain and allowing them to do the active therapy (stretching and exercise) that assists in keeping them functioning. Shawn Reid testified that Ms. Pedisic now falls into this small group of people for whom massage is supportive, not rehabilitative.

Shawn Reid first saw Ms. Pedisic in late May 1996 (following her 1995 accident) when she was referred to him by her chiropractor, Dr. Somers. The goal was to loosen up her muscles so that she could get more benefit from the stretching and exercise she was doing. Within a few months (by about the end of July 1996), Ms. Pedisic had improved to the point that massage therapy could be discontinued. According to Mr. Reid, this is typical of 90% of his cases.

Mr. Reid did not see Ms. Pedisic again until after her accident in March 1997. Initially, he was seeing her three times per week. Mr. Reid testified that, in assessing Ms. Pedisic's condition, he would rely heavily upon what she told him but that he would also look for objective confirmation such as muscle spasm and swelling and would also ask her to demonstrate her various stretches to ensure that she was doing them correctly and to verify that she actually had been doing her stretching routine. From October 1997 through March 1998, he tried reducing the frequency of sessions to two times per week. Then from March 1998 through September 1999, the frequency was further reduced to approximately one time per week. Given the physical demands upon Ms. Pedisic at work and the number of hours she was working, one session per week proved to be insufficient so in October 1999, the frequency of massage treatments returned to two times per week.²¹ That pattern continued until Ms. Pedisic's accident in 2003. Since Ms. Pedisic had apparently reached a "plateau" by late 2002 (i.e., her rehabilitation was not progressing), Mr. Reid also recommended that she see a rehabilitation medicine specialist (Dr. Delaney).

Dr. Matthew Somers

Dr. Somers has been a chiropractor since 1985. He treats about 200 new patients each year. Approximately 15 – 20% of his practice relates to persons who have been injured in a motor vehicle accident. In his experience, the vast majority of his patients receive 8 to 9 chiropractic treatments and make a full recovery. Only a small percentage (perhaps 5%) develop chronic pain and require "supportive" care. Dr. Somers defines supportive care as "treatment for patients who have reached maximum therapeutic benefit but who fail to sustain benefit and progressively deteriorate where there are periodic trials of treatment withdrawal". In cases where supportive care is appropriate, the goal is to prevent deterioration of the condition or loss of function. The aim, according to Dr. Somers, is always to decrease passive care whenever that is possible, but only to the extent that it does not adversely affect the patient (by resulting in a significant increase in their symptoms and/or a decrease in function).

Dr. Somers first saw Ms. Pedisic in July 1995 to assist her with an injury she sustained in a waterskiing incident. The problem was resolved after three visits and she was discharged.

He then saw her again after her motor vehicle accident in November 1995. He treated her for about seven months. The situation had fully resolved by July 1996 and, once again, she was discharged.

Dr. Somers next saw Ms. Pedisic after her March 1997 motor vehicle accident. Initially he was providing chiropractic treatments three times per week. Gradually that was reduced to two times a week and then, by 2003, it was further reduced to one time per week. Dr. Somers was also responsible for approving the treatment recommendations of Shawn Reid with respect to massage therapy. A similar approach was taken with respect to the frequency of massage therapy (i.e., efforts were made over time to reduce the frequency of massage therapy). Unfortunately, by late 2002, attempts to reduce the frequency of massage therapy to only one session per week and maintain it at that level had not proven successful. Dr. Somers indicated that, at that time (late 2002), he and Shawn Reid were still hopeful that, gradually, over time, Ms. Pedisic could be weaned off of passive therapies. Unfortunately, the February 2003 accident then intervened.

May 1998 Med/Rehab DAC Report

In or about May 1998, State Farm referred to a multi-disciplinary DAC the issues of proposed chiropractic and massage therapy treatment (as well as the ongoing need for a TENS machine). The assessment was conducted by Dr. P.J. Potter (physiatrist), Lisa Manto (physiotherapist) and Dr. Ian Judge (chiropractor). The DAC report supported ongoing use of the TENS machine and long-term continuation of the exercise program in which Ms. Pedisic was engaged. With respect to the provision of further manual treatment to Ms. Pedisic, the report stated that such treatment "is not expected to alter functional outcome although it may provide temporary reduction in pain and enable her to continue to work." The DAC report approved the massage therapy being proposed at that time.

Dr. H. Finestone

In 1999, Ms. Pedisic's family physician (Dr. Komar) referred her to a physiatrist, Dr. Finestone. It appears that Dr. Finestone first saw Ms. Pedisic in January 1999 and then followed-up with a second examination in June 1999. The comments in the two reports of Dr. Finestone are telling because they are the typical of the comments of almost all doctors who have been involved in this case. After the first examination of Ms. Pedisic, Dr. Finestone wrote:

She has done an excellent rehabilitation program and what can one say about the chiropractic and massage therapy when such a reliable patient tells you that they have been of significant benefit to her and actually help her to continue on with life. I support the once a week massage therapy and chiropractic treatments as medically necessary in her overall treatment program.²²

After the follow-up visit, Dr. Finestone wrote:

It does seem medically necessary and reasonable for her to continue with the chiropractic and massage therapy as this is one of those cases where a straight forward individual is simply indicating to us that they work.²³

Dr. John C. Clifford

Shortly after Dr. Finestone's follow-up report, State Farm arranged for Ms. Pedisic to be examined by a physiatrist of its choice, Dr. Clifford. Dr. Clifford has been a physiatrist since 1982.

Dr. Clifford authored a report dated September 24, 1999 (and a number of subsequent reports). Before reviewing the conclusions contained in his report(s), I think it is important to outline his testimony before me concerning his general philosophy of medicine, as I found it to be most instructive.

Dr. Clifford recognizes that in a relatively small number of cases, chronic pain can develop in persons who have suffered soft-tissue, whiplash-type injuries, even where those people have received prompt and appropriate treatment and have recovered a full range of motion. Dr. Clifford testified that where there can be found no underlying pathology to explain such ongoing, chronic pain, it is known as "non-malignant chronic pain" or "chronic inorganic pain". The question for treating medical practitioners then becomes, "Should I provide treatment to a person suffering from non-malignant chronic pain?" It became clear from the testimony of Dr. Clifford that, from a strict medical point of view, he believes that the correct answer to this question is always, "No".

Dr. Clifford acknowledges that pain itself can limit function and that many medical practitioners will treat the symptoms of a person suffering from chronic pain in an attempt to give them relief from the pain and in an attempt to restore or maintain their level of function. He disagrees with this approach. Dr. Clifford believes that one must treat the cause and not the symptom. His "bias" (the term he himself used), in the absence of objective evidence of pathology, is to fall back on the medical literature. According to Dr. Clifford, there is no endorsement in the literature for long-term passive therapy for chronic pain that had its origins in soft-tissue injuries. As he put it, there is "no objective medical basis for ongoing treatment" in these cases. In addition, given that soft tissue injuries usually heal within a few weeks, Dr. Clifford states that in cases such as this there is no clear, organically-based causal relationship between the remote soft tissue injuries and the ongoing complaints of pain. In other words, he will almost always oppose ongoing treatment in these cases not only on the basis that it contrary to the usual approach recommended in the literature (reasonableness and necessity) but also on the basis that it cannot be proven that the person's chronic pain is the result of the soft tissue injuries that were suffered in the accident (causation).

Dr. Clifford states that his approach makes him exceedingly unpopular with patients and their lawyers (and possibly some of his colleagues) but states that his approach is probably the reason why he gets so much work from the defence side (i.e., insurance companies).

Given this "bias", it is therefore not surprising that Dr. Clifford summarized his conclusions as follows:

In the context of:

soft tissue nature of initial injuries
Quebec Task Force on Whiplash Associated Disorders
Chiropractic IME

ongoing manual therapy (massage, chiropractic) would not be considered an essential component of treatment. Indeed current medical literature would suggest far more benefit will be gained from the patient continuing to remain involved a community based program of Therapeutic Exercise – designed to enhance musculoskeletal and cardiovascular conditioning.²⁴

Nevertheless, Dr. Clifford was so impressed with Ms. Pedisic's efforts and initiative that he made an exception for her and recommended a "good will" payment equal to the cost of an additional three months of passive therapy.

Other than this gesture, his conclusion is exactly what one would expect, given Dr. Clifford's view of soft tissue injuries and non-malignant chronic pain. In cases of bona fide chronic pain perception, Dr. Clifford takes the position that the literature suggests that the best approach is to encourage the patient to gradually return to all regular physical activities, to reassure the patient that this may, in the short-term lead to an increase in pain but that this is not a bad thing (i.e., hurt does not equal harm) and to encourage stretching and therapeutic exercise. Dr. Clifford does not seem to take into account that there will always be exceptional cases (where the usual recommended approach may not work), that Ms. Pedisic was already involved in a program of stretching and therapeutic exercise (and had found that stretching and exercise, without passive therapy, was ineffective) and had returned to most of her regular physical activities at least two years earlier.

Notwithstanding Dr. Clifford’s recommendation in late 1999 that passive manual therapy be discontinued, State Farm continued to pay for such therapy for several more years.

Dr. Michael Lacerte

In February 2001, State Farm arranged to have Ms. Pedisic undergo another medical examination, this time by Dr. Lacerte. After examining Ms. Pedisic and reviewing the medical documentation, Dr. Lacerte concludes as follows:

It is my opinion that continued massage therapy treatments, TENS Unit and participation in a gym program are desirable but are not a medical necessity. Massage treatment may be useful during myofascial pain exacerbation related to her work.²⁵

Dr. Lacerte does not explain either this conclusion or what he meant by the phrase "not a medical necessity". After receiving Dr. Lacerte's report, State Farm continued to fund massage therapy for Ms. Pedisic. Dr. Lacerte was not called as a witness.

March 5, 2002 Med/Rehab DAC Report

In 2002, Ms. Pedisic was still complaining of constant neck and shoulder pain and of upper back pain and occasional lower back pain. The intensity of the pain varied. She experienced headaches daily which were sometimes so painful that she felt nauseated.

State Farm received a treatment plan for chiropractic treatment from Dr. Somers (dated November 16, 2001) and referred that plan for a DAC assessment in or about March 2002. With respect to the chiropractic plan that was in dispute, instead of approving 24 sessions over 6 months, the DAC team approved 24 chiropractic sessions spread out over 12 months (in an effort to "wean her off treatment to avoid dependency").²⁶

With respect to massage therapy, despite the fact that massage therapy was not being recommended as part of the treatment plan being considered by Dr. Asha Bhardwaj (physiatrist) as part of this DAC, at the end of his report Dr. Bhardwaj added a comment to the effect that "ongoing massage therapy three years post-injury is not necessary." Dr. Bhardwaj does not explain this conclusion. There is no indication that Dr. Bhardwaj was aware of the efforts that had already been made to wean the Applicant off of passive therapies. Dr. Bhardwaj also does not deal in this report specifically with the issue of pain management or the possible value of massage therapy to Ms. Pedisic in a supportive role (as was recognized by Dr. P.J. Potter and Lisa Manto in the previous med/rehab. DAC report from the same Designated Assessment Centre).

State Farm received a copy of this DAC report by March 26, 2002. Around the same time, State Farm approved a treatment plan for massage therapy two times a week up to May 24, 2002²⁷ but indicated that once this plan was exhausted, as per the comment of Dr. Bhardwaj contained in the March 5, 2002 DAC report, State Farm would not approve payment for any further massage therapy.²⁸ In fact, State Farm paid for massage therapy up to June 26, 2002 but refused to pay for massage therapy thereafter (at least, until the 2003 accident occurred).²⁹

ii. Treatment from February 5, 2003 onwards

March 25, 2004 Med/Rehab DAC Report

After the February 2003 accident, the severity of the problems increased substantially. Although Ms. Pedisic was optimistic that she'd be back to "normal" within six weeks, that proved not to be the case. Also, her low back and right hip were more of a problem after the February 2003 accident.

Given her new injuries, State Farm backed off of the position it had taken in mid-2002 and again began to pay for massage therapy. Towards the end of 2003, however, State Farm questioned the reasonableness of proposed ongoing passive treatment and referred Ms. Pedisic to another med/rehab. DAC assessment which took place in late March 2004. As in 2002, Dr. Bhardwaj (physiatrist) and Dr. Judge (chiropractor) were involved in the assessment but, this time, a registered massage therapist (Rick Overeem) was also part of the assessment team.

The proposed Treatment Plan for massage therapy called for treatment three times a week at a total cost of $3,969.00. With respect to this plan, Dr. Bhardwaj concluded as follows:

To date, she has had extensive chiropractic and massage therapy treatments with ongoing symptomatology.

The proposed massage therapy treatment appears to be excessive in the frequency as well as in cost. We recommend that at this stage in her rehabilitation she does not require massage therapy treatments 3 times a week. This needs to be tapered down to twice a week, followed by once a week, followed by once every 2 weeks, then once every 3 weeks, then once a month, and discontinued over the next 8 to 12 months with a total of 26 one-hour treatments.³⁰

Rick Overeem wrote as follows:

The massage therapy treatment plan as proposed is excessive and not supported. A modified plan as outlined earlier is indicated. A gradual decline in the number of treatments is necessary to avoid dependence on a passive modality of treatment. Treatment should include introducing an appropriate and effective homecare exercise program.³¹

State Farm relied upon this DAC Report to stop paying for massage therapy.

Rick Overeem appeared as a witness at the hearing before me and I found his testimony to be helpful. Mr. Overeem found Ms. Pedisic to be well-motivated and credible. While he still believes that his recommendations in the DAC report of March 2004 were valid based on the information that was available to him at that time, he agreed with the following propositions that were put to him by counsel for the Applicant:

Pain is subjective
Pain itself can limit a person's function
Treatment must be individualized for each person
A program that focuses on active therapy such as daily stretching, yoga, in-home and community-based exercise, supported by passive therapy, is a good program
Massage therapy can be helpful in relaxing muscles to permit a person to get more benefit out of their stretching and active exercise program
Where passive therapy has been ongoing for some time, there should be periodic attempts to reduce the frequency of treatments and constant monitoring and reassessment of the situation – a valid trial should last four to six months
If, however, a trial reduction of treatment results in an unmanageable flare-up of symptoms, the trial should be discontinued
The usual goal is to gradually get the person to the point where they no longer require any massage therapy
Some people never reach that point, however, and for them, the goal is to reduce their pain and permit them to maintain function (i.e., prevent regression)
If the patient reaches a plateau and efforts to further reduce the frequency of massage therapy are unsuccessful, the patient should be referred to a rehabilitation specialist (such as a physiatrist) and Mr. Overeem would defer to the opinion of such a specialist

January 12, 2005 Med/Rehab DAC Report

Further treatment plans were submitted for massage therapy notwithstanding the previous DAC report (of March 25, 2004). In December 2004, State Farm had a "paper DAC" conducted by Kelly Ould (resulting in a report dated January 12, 2005).³² Ms. Ould, a registered massage therapist, supported the earlier recommendations of Rick Overeem that the frequency of massage therapy treatments be tapered off since "there is no new documentation in the file to suggest that massage is changing the symptom picture of this client … in spite of continued treatment at a frequency of thrice weekly for 1.5 hour treatments between February 2003 and at least September 30, 2004."³³

Dr. John C. Clifford

In May 2006, State Farm requested that Dr. Clifford again examine Ms. Pedisic and give his opinion concerning proposed ongoing passive therapy in light of the accident that occurred on February 5, 2003. Dr. Clifford felt that it was unnecessary to examine Ms. Pedisic. Given his view of soft-tissue injuries, chronic pain and the benefits of passive treatment,³⁴ it is not surprising that he felt that a physical examination of Ms. Pedisic was unnecessary. He reviewed some up-dated medical documentation and concluded as follows:

As has been recommended on numerous occasions, ongoing passive manual therapy in the context of remote and minimal soft tissue injuries is inappropriate and contraindicated… Ms. Pedisic would benefit far more from involvement in an active exercise program – designed to enhance musculoskeletal and cardiovascular reconditioning.³⁵

In late 2007, Dr. Clifford was provided by State Farm with additional documentation (including some surveillance) and asked if this changed his opinion. On November 13, 2007, he wrote as follows:

Traditionally in medicine, issues of …

diagnosis
treatment
prognosis

…are based on the initial injury or disease.

In the present case, with respect to MVA #2 (5.2.03), damage to Ms. Pedisic's vehicle was appraised at $231 – suggesting that minimal if any injuries were sustained by occupants of the vehicle.

In such a case where minimal if any injuries were sustained, common sense alone would dictate that no ongoing treatment was indicated and that no loss of function would ensue.

Accordingly, it remains a mystery (at least from the clinical perspective) how clinicians can continue to suggest the need for any treatment – let alone ongoing passive manual therapy.³⁶

Shawn Reid

In or about April 2004, Mr. Reid received the March 2004 DAC report that recommended that massage therapy be tapered off. Mr. Reid did not think that the DAC proposals were appropriate for Ms. Pedisic. According to Mr. Reid, the DAC report of March 2004 did not specifically deal with the issue of chronic pain, did not seem to consider the active stretching and exercise program in which Ms. Pedisic was already engaged and did not appear to consider the supportive role that was being played by massage therapy.

Mr. Reid's concern was that, based on his experience with Ms. Pedisic and other chronic pain patients, reducing or eliminating massage therapy would exponentially increase her symptoms. Mr. Reid felt that this would adversely affect her quality of life and put her job at risk. Mr. Reid decided not to follow the recommendations of the DAC report and, instead, awaited recommendations from a treating physiatrist, Dr. Delaney.

In March 2004, Dr. Delaney recommended to Ms. Pedisic that she avoid any medication and continue with the current program of massage therapy and chiropractic treatments.³⁷ In November 2005, Dr. Delaney recommended that massage therapy continue at the frequency of three sessions per week.

Thus, treatment plans for massage therapy continued to be submitted at the rate of three sessions per week. Mr. Reid and Ms. Pedisic did periodically try to reduce the frequency of massage therapy but these attempts were never successful in permanently reducing the frequency of sessions.

Mr. Reid's opinion at the hearing was that, given the history of this case, if Ms. Pedisic wishes to maintain her full-time position at the hospital and her current level of activity, she will likely require ongoing massage therapy at its current level.

Dr. Matthew Somers

Dr. Somers saw a dramatic difference in Ms. Pedisic after the 2003 accident. There was substantially increased inflammation and muscle spasm in her neck and upper back. Initially, the frequency of chiropractic treatment had to be increased but, by the summer of 2003, it was back to one session per week.

Both Dr. Somers and Mr. Reid originally focused on rehabilitation (improvement of function). Gradually, the focus shifted to supportive care (preservation of function and/or reduction in pain). According to Dr. Somers, in asking whether the proposed treatment would "improve" Ms. Pedisic's condition or function, Dr. Judge was missing the point (i.e., that passive therapy was now for supportive care, not for rehabilitation).

Dr. Somers admitted being uncomfortable with the level of care required for Ms. Pedisic. He stated that it is "not normal at all" and that he would like to see passive therapy reduced, if possible. As a result, he took each treatment plan seriously and really considered if it was reasonable and necessary. There were several trial withdrawals of treatment and none was successful in permanently reducing her need for this therapy. Dr. Somers said that Ms. Pedisic's reported increase in symptoms (upon a trial reduction in treatment) was far greater than one would normally expect (even considering how long she had been receiving this type of treatment). Although it would be nice to reduce passive therapy, in the opinion of Dr. Somers, in all the circumstances of this case, it is unlikely that that will be possible.

Dr. Gail Delaney

Dr. Delaney has been a physiatrist since 1983. She has done DAC assessments and assessments for the Workplace Safety and Insurance Board. She states that the goal of physical medicine and rehabilitation is to return the person to as close to their pre-accident level of function as possible. Most of the patients she sees are suffering pain and about half of those cases started with soft-tissue injuries. Virtually all her patients are in chronic pain.³⁸ There is rarely a complete “cure” for chronic pain. The goal in these cases, according to Dr. Delaney, is to help improve the person's function and decrease their symptoms (i.e., help get the pain to a manageable level).

Dr. Delaney did an assessment of Ms. Pedisic in November 2003. In the experience of Dr. Delaney (and of Dr. Somers and Shawn Reid), the force of a collision is not always determinative of the degree of impairment that results therefrom, especially when dealing with a person with a pre-existing condition or vulnerability. Rather than focusing on the value of the property damage, Dr. Delaney focused on the complaints of Ms. Pedisic, the complete medical history and the observations she was able to make during her examination of Ms. Pedisic.

Dr. Delaney found Ms. Pedisic to be credible and that she put forward good effort during testing. Through testing, Dr. Delaney found that Ms. Pedisic has a high threshold for pain. She therefore concluded that, if Ms. Pedisic complains of pain, it is likely significant. Dr. Delaney ordered an MRI and a bone scan to rule out possible underlying pathologies that could explain the chronic pain. Dr. Delaney then met with Ms. Pedisic a couple more times to review her findings.

The bone scan showed degenerative changes at both AC joints. Although this condition likely pre-dated the accidents, the accidents may have made this condition symptomatic (whereas prior to the accidents it was asymptomatic). The MRI showed two mild disc herniations but neither appeared to be compressing the spinal cord. In March 2004, Dr. Delaney recommended to Ms. Pedisic that she avoid any medication and continue with the current program of massage therapy and chiropractic treatments.³⁹

Dr. Delaney saw Ms. Pedisic again in November 2005 in order to perform another assessment and prepare a medical-legal report. Again, Dr. Delaney supported the continuation of passive therapy at the intensity, frequency and duration recommended by Dr. Somers. Dr. Delaney saw massage therapy, in a supportive role (for the relief of pain and maintenance of function), as being both reasonable and necessary. Since there had already been several failed attempts to reduce or eliminate massage therapy, it seemed fruitless to put Ms. Pedisic through that again and, in such circumstances, the proposed treatment seemed reasonable to Dr. Delaney.

Given Ms. Pedisic's job requirements, her history of adverse reaction to non-steroidal anti-inflammatory drugs (NSAIDS) and pain medication and the other possible side-effects inherent in long-term use of such medication, Dr. Delaney also supported Ms. Pedisic's decision to opt for massage therapy as a reasonable and effective alternative method of coping with her chronic pain. To the extent that Ms. Pedisic is "dependent" upon massage therapy, Dr. Delaney saw it as being reasonable because, in conjunction with an excellent active program, massage therapy is effective in controlling Ms. Pedisic’s pain and allowing her to continue to function.

In Dr. Delaney's opinion, there are two main risks to discontinuing the current treatment. One risk is that Ms. Pedisic will lose her job (since she will be unable to function). The other is that, if the treatment is discontinued and then later reinstituted, Ms. Pedisic may not derive the same benefit from massage therapy as she did previously.

Although both the frequency and duration of passive treatment that has been recommended

for Ms. Pedisic (and is likely to be needed for the foreseeable future) are very high, in the opinion of Dr. Delaney, there is no better alternative in this case and the proposed massage therapy is reasonable and necessary for Ms. Pedisic.

Dr. Keith Sequeira

Dr. Sequeira is an expert in physical medicine and rehabilitation. He currently divides his time between clinical work, education and research.

Dr. Sequeira examined Ms. Pedisic in April 2007, reviewed the documents that had been provided to him and then issued a report.⁴⁰ At the time of this assessment, Ms. Pedisic was still suffering from chronic pain, including frequent and severe headaches (most likely related to muscle tension). Her low back pain was relatively mild, occasional and localized.

According to Dr. Sequeira, given the history of this case, the massage therapy that has been recommended is reasonable and necessary to allow Ms. Pedisic to avoid dependence on medication and to give her sufficient pain relief so that she can continue to function. Dr. Sequeira agrees that this is a lot of passive therapy (i.e., that it is not typical) and he would not normally recommend this. In this case, however, it is not being used as an alternative to active therapy or to relieve pain in a person who has become inactive. The passive therapy is being used appropriately to support Ms. Pedisic's stretching, yoga, strength training and cardiovascular exercise and her activities of daily living. She is not "dependent" on massage therapy in a negative sense because it is not limiting her or harming her.

Kelly Ould (the massage therapist who conducted the “paper DAC” of proposed massage therapy in December 2004) did not have the benefit of meeting Ms. Pedisic and Ms. Ould's statements are very broad and generic. Thus, in the opinion of Dr. Sequeira, while Ms. Ould's statements might be true in 95% of cases, they are not appropriate in this case.

Similarly, Dr. Clifford's statements about the healing of tissue damage are generally true but, according to Dr. Sequeira, Dr. Clifford fails to deal with the minority of people with soft-tissue injuries who develop chronic pain. Dr. Clifford also fails to recognize that, despite her pain, Ms. Pedisic is very active.

Dr. Sequeira pointed out that Dr. Clifford relied upon research that may be out of date. Also, according to Dr. Sequeira, most research studies are funded by drug companies so a lack of research into the long-term benefits of massage (as a supportive therapy and an alternative to drug therapies) would not be terribly surprising. In any event, research studies tend to show trends and focus on typical cases rather than on the exceptional cases. The fact that there may or may not be research on the general efficacy of long-term use of passive therapy in a supportive program ought not to be determinative of deciding what is best for this patient.

Dr. Sequeira testified that there is rarely a “cure” for chronic pain. Even the most effective medications provide only short-term reduction in pain of, at best, 30%. Such medication would likely have to be taken every day for the foreseeable future and would carry the risk of aggravating Ms. Pedisic's irritable bowel syndrome or causing other adverse side-effects. For Ms. Pedisic, the program in which she is now engaged (including the passive therapy) provides far greater pain relief than any drug could (up to 75-80% for two or three days) and does not carry the same risk of side-effects. Massage three times per week is perfectly appropriate for Ms. Pedisic because she is not using it in an inappropriate manner.

Dr. Sequeira found it to be rare and refreshing to see someone like Ms. Pedisic who has developed chronic pain but who continues to work and to remain active. In his view, the goal ought to be to help her maintain this level of function. In the opinion of Dr. Sequeira, for Ms. Pedisic, the massage therapy in dispute (in conjunction with the rest of her program) is both reasonable and necessary in helping her to achieve this goal.

(f) Applying the law to the facts of this case

Since at least 2002, the goal of massage therapy in this case has been to provide Ms. Pedisic with supportive care – that is, to give her relief from her chronic pain (neck pain and back pain and associated headaches) both for its own sake and so that she can fully engage in and derive greater benefit from the active therapies that have enabled her to remain highly functional. Shawn Reid, Dr. Somers, Dr. Potter, Dr. Delaney, Dr. Sequeira and Dr. Finestone have all found these to be reasonable treatment goals. They also agree that these goals are being met to a reasonable degree; Ms Pedisic has been able to continue working full-time and engage in many other activities, despite her chronic pain, in part because of the massage therapy she has been receiving. It also appears that the overall cost is reasonable taking into consideration the degree of success achieved and the lack of any other reasonable treatment alternatives for Ms. Pedisic.

All medical practitioners who have seen Ms. Pedisic seem to agree that she is a credible and highly-motivated individual who has cooperated fully and participated faithfully in her rehabilitation and maintenance program.

Shawn Reid and Dr. Somers carefully monitored Ms. Pedisic's progress and periodically adjusted the frequency of treatment appropriately. Numerous attempts were made to reduce or discontinue passive therapy and, prior to the 2003 accident, some progress was made on that front. After the 2003 accident, attempts to further reduce passive therapy proved unsuccessful.⁴¹ When Ms. Pedisic reached a "plateau" in her recovery, she was referred to a number of specialists, including physiatrists like Dr. Finestone and Dr. Delaney who have concurred with the treatment recommendations of Shawn Reid and Dr. Somers. Ms. Pedisic’s treating practitioners and many of the specialists to whom she has been referred have considered the issue of her apparent dependence upon passive therapy and have concluded that, in this case, it is not a real concern because the passive modalities are being used to support and not to replace more active therapies.

Kelly Ould did not have the opportunity to examine Ms. Pedisic and Ms. Ould does not seem to consider pain management and/or the maintenance of function as legitimate goals of treatment. She did not testify before me. I give her opinion little weight.

Based upon his philosophy of medicine, Dr. Clifford does not seem to recognize pain reduction as a legitimate goal of treatment in cases such as these. While his views may reflect one school of thought within the medical community, it is a view that is apparently not shared by the other physiatrists who offered opinions in this case and it is a view that flies in the face of the judicially established principle that pain relief can be a legitimate goal of treatment (even in the absence of "objective" evidence of an underlying pathology). Dr. Clifford fails to recognize that this is an exceptional case, that Ms. Pedisic is already engaged in active exercise and that there have already been several attempts to "wean" her off of passive therapy. Given Dr. Clifford's self-professed "bias" and the fact that he has not seen Ms. Pedisic since his one and only examination of her in 1999, I give little weight to his opinion concerning the treatment that is currently in dispute.

In refusing to pay for massage therapy, State Farm relied upon the DAC reports of March 5, 2002 and March 25, 2004.

In the first of these two reports, the DAC centre had been asked to comment on the reasonableness and necessity of certain proposed chiropractic treatment. In his report dealing with the proposed chiropractic treatment under consideration, Dr. Bhardwaj also provided an opinion on future massage therapy that consisted of one sentence: “Ongoing massage therapy three years post-injury is not necessary.”⁴² Dr. Bhardwaj does not deal with the issue of Ms. Pedisic’s chronic pain or the supportive role played by massage therapy in her overall program (an issue that had been addressed by Dr. Potter and Ms. Manto in an earlier DAC assessment). Dr. Bhardwaj does not discuss the previous attempts made by Ms. Pedisic to reduce the frequency of massage therapy she was receiving. Dr. Bhardwaj appears to be making a general statement about massage therapy and is not responding to any proposed treatment plan. Since Dr. Bhardwaj was also not called as a witness, I am left with Dr. Bhardwaj’s statement in March 2002 that ongoing massage therapy is not necessary without any explanation as to the basis for this conclusion. Given the opinion of all the other medical professionals at that time (with the exception of Dr. Clifford), I am satisfied that the preponderance of the evidence establishes that it was reasonable for the Applicant to continue receiving massage therapy notwithstanding the opinion of Dr. Bhardwaj in the DAC report of March 5, 2002.

In the second DAC report from Dr. Bhardwaj (March 25, 2004), Dr. Bhardwaj notes that Ms. Pedisic has had extensive passive treatment with ongoing symptomatology. Dr. Bhardwaj appears to be focused on the fact that Ms. Pedisic had had a lot of massage therapy (and chiropractic treatment) but had not yet fully recovered (i.e., she still had symptoms years later). Dr. Bhardwaj recommends tapering off the massage therapy over the next 8 to 12 months. Rick Overeem, the massage therapist who participated in this DAC assessment, agreed with this recommendation by Dr. Bhardwaj. Mr. Overeem encouraged a gradual decline in the number of treatments in order to avoid Ms. Pedisic developing dependence on a passive modality of treatment.

Neither Dr. Bhardwaj nor Rick Overeem seemed to appreciate the uniqueness of this case. They may not have appreciated the role massage therapy was playing in allowing Ms. Pedisic to participate in more active therapy, that she already had an excellent rehabilitation and support program and that she had already made a number of honest but unsuccessful attempts to reduce the frequency of massage therapy. They may not have been aware that Ms. Pedisic had already been referred to a physiatrist (Dr. Delaney). Rick Overeem testified that he would defer to such an expert. On cross-examination, Mr. Overeem agreed that if a trial reduction of treatment results in an unmanageable flare-up of symptoms, the trial should immediately be discontinued. He also admitted that, for people who have reached maximum therapeutic benefit, ongoing massage therapy may play a role in reducing the person’s pain and in permitting them to maintain function. Dr. Bhardwaj appears to have been under the impression that massage therapy was not really helping Ms. Pedisic because it did not eliminate her symptoms. Mr. Overeem appears to approve of the general approach that was adopted by Mr. Reid and Dr. Somers but he may have lacked sufficient information in March 2004 to see that this proposal for tapering off the massage therapy was unreasonable and unrealistic in this particular case.

While the amount of massage therapy being sought is very unusual, I find that it is reasonable and necessary in this case. The treatment goals of pain reduction and maintenance of function are reasonable. These goals are being met to a reasonable degree. Given the degree of success in controlling her symptoms and the lack of any viable alternative treatment, the overall cost is reasonable, especially where the evidence suggests that discontinuing this treatment would likely result in a loss of employment and reduction in Ms. Pedisic's quality of life.

The opinion of experts who do not, in the absence of objective evidence of underlying pathology, recognize pain management as a legitimate treatment goal can be disregarded, especially where all experts agree that the Applicant is a credible and highly-motivated individual.

The treating practitioners have adopted a consistent approach, periodically attempting to reduce passive treatment and carefully monitoring Ms. Pedisic's progress. When appropriate, they recommend that she be seen by specialists (such as Dr. Delaney) and then follow their recommendations. Their refusal in this case to follow the recommendations of the two DAC reports (in 2002 and 2004) is justifiable. While dependence on passive therapy can be a legitimate concern, in this case, the passive therapy in question is being used to support more active therapies and is being used appropriately, in a supportive role. Although the medical research may suggest that, in general, prolonged massage therapy is not helpful for most soft-tissue whiplash-type injuries, the evidence suggests that this is an exceptional case and that massage therapy, as part of a larger program, works for Ms. Pedisic.

Thus, based upon the preponderance of the evidence before me and in accordance with the approach supported by the case law, I find that the disputed massage therapy⁴³ is reasonable and necessary for Ms. Pedisic.

CONCLUSION:

For the reasons set out above, I find that the Applicant is entitled to payment for the treatment incurred under the disputed treatment plans. I also find that the Applicant is entitled to interest on the overdue payment of benefits, 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 through 79 of the Dispute Resolution Practice Code.

January 23, 2009

Richard Feldman Arbitrator

Date

Financial Services Commission of Ontario