Michael Spence v. RBC General Insurance Company, 2015 ONFSCDRS 246

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

Neutral Citation: 2015 ONFSCDRS 246

FSCO A13-010143

BETWEEN:

MICHAEL SPENCE

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Rosemary Muzzi

Heard: April 28, 29, 30 and May 1, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Adrian Lomaga for Mr. Spence Aldo Picchetti for RBC General Insurance Company

Issues

Michael Spence, the applicant, was injured in a motor vehicle accident on November 20, 2006. Mr. Spence had pre-existing injuries from which he had developed a chronic pain condition and the accident caused an aggravation. He had engaged in numerous types of therapies over the years, each with varying degrees of success, some of which was funded by RBC. He commenced aqua therapy with the assistance of a physiotherapist in November 2012, treatment that was approved by RBC General Insurance Company (“RBC”), on the recommendation of one of their assessors, Dr. Soriano. Aqua therapy in a public pool became problematic for Mr. Spence, so he constructed a therapy pool on his residential property. He applied to RBC for reimbursement of many of the associated expenses pursuant to section 14 of the Schedule.¹ RBC denied payment of these expenses. The parties were unable to resolve their disputes through mediation, and Mr. Spence applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is Mr. Spence entitled to medical benefits in the amount of $62,877.65 for the cost of construction of a residential therapy pool?

Result

1. Mr. Spence is not entitled to $62,877.65 for the cost of construction of a residential therapy pool.

EVIDENCE AND ANALYSIS:

Background

Mr. Spence has physical injuries and a long-subsisting chronic pain condition on account of a series of accidents, motor vehicle and otherwise. In 1984 he lost his spleen and one kidney, and broke his right arm as a result of a motor vehicle accident. A workplace injury in 1987 resulted in his cutting his right forearm down to the bone.² The result was chronic right arm pain treated by medications like oxycodone and Percocet.³ In 2006, he tore his finger back doing renovations which required surgery. While he has had numerous pre-MVA accidents, the pain after the November 2006 accident was different and worsened over time: his medicine dosage increased by 6 times; his weekly trips to the cottage decreased; he missed one week from work and over time was given some accommodations.⁴

At present, Mr. Spence has been taking 40 mg daily of OxyContin and 40 mg daily of Percocet. Mr. Spence’s chief complaint has been unrelieved and chronic pain that is documented in all of the medical evidence and not disputed by RBC.

Mr. Spence began aqua therapy in November 2012. The physiotherapist engaged to assist, Ms. Szczecina, found a number of public pools that maintained the water temperature at the optimum temperature for therapy and a pool in Clarkson (Mississauga) was chosen for its proximity to Mr. Spence’s workplace.

Mr. Spence seeks payment of $62,877.65 from RBC which comprises most of the expenses associated with the construction of a therapy pool on his residential property. He asserts that it is the best treatment he has received as it provides better relief and also better value than all the other treatment he has tried which includes physiotherapy, acupuncture, massage, chiropractic, spinal decompression, and nerve block injections. Mr. Spence also argues that RBC should pay the therapy pool costs because he has seen improvement in his health overall – increased energy levels, improvement in gait, posture, and mood, better sleep, weight loss and the discontinuance of cholesterol medication. In addition, he has not had to increase his prescription medication intake.

RBC has approved and paid for Mr. Spence’s aqua therapy sessions and is also paying for the therapist’s travel time and expenses incurred in travelling to his home. However, RBC insists that paying for the construction of Mr. Spence’s home therapy pool is not reasonable and necessary as contemplated by the Schedule.

Mr. Spence experienced a different scale of back pain radiating down to his left leg after the November 2006 accident. Besides the significant increase in medication, he sought other treatment to help relieve the constant pain. It is fair to say that aqua therapy is the last therapy he tried after a long string of other passive therapies that provided little or only temporary relief.

The Law

In order for Mr. Spence to be reimbursed the cost of his residential therapy pool, the amount must be payable as a medical benefit.⁵

A medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured as a result of the accident for goods and services of a medical nature that the insured person requires.⁶

The expenses claimed have to be reasonable and necessary and required by the insured and this case turns on whether the expenses associated with the residential therapy pool meet these criteria. More specifically, the question is whether the residential therapy pool is necessary to carry out the treatment plan for Mr. Spence and whether the cost of it is also reasonable.⁷ While an insured and their doctor can choose any modality they want to carry out treatment and the insurer cannot insist on a particular program if a reasonable alternative is proposed, the insurer must only pay for reasonable and necessary expenses.⁸

The focus of the section is on providing reasonable medical and rehabilitation services. If the insured’s proposed treatment is reasonable, then the goods and services necessary to carry out the treatment plan are to be provided as long as the cost is also reasonable.⁹ Furthermore, the jurisprudence recognizes that pain relief is a general and reasonable treatment goal.¹⁰

Analysis

To assess the reasonableness of the treatment plan for the home therapy pool, it is important to examine the goals of treatment for Mr. Spence.

Aqua therapy itself has been recommended to Mr. Spence by numerous doctors as a means to provide physical conditioning and some pain relief: Dr. Schacter in 2009, Dr. Kekosz¹¹ in March 2012, and even RBC’s assessor Dr. Soriano¹², in August 2012, suggested this type of therapy. Mr. Spence’s physiotherapist, Ms. Szczecina, found Mr. Spence quite deconditioned when she first began working with him. He did not exercise because it exacerbated his pain. As a result, he had gained 30 pounds and had also developed high cholesterol. Ms. Szczecina explained that the water environment decreases pain perception and allows individuals to move actively and it is more enjoyable for them. The pool increases freedom of movement and speed for cardiovascular benefits as well. Therapy pools are generally warmer than regular pools, thereby also providing additional benefits for chronic pain sufferers.

When Mr. Spence began aqua therapy in November 2012, the sessions were conducted at a public pool which was close to Mr. Spence’s workplace and met the temperature and depth requirements for a therapy pool, 94 degrees F and five feet deep, respectively. The therapist’s reports¹³ of Mr. Spence’s progress, once the therapy commenced show that the therapy was leading him to the stated goals of treatment.

Ms. Szczecina’s report¹⁴ of December 2012, reveals that Mr. Spence did 2.5 hour sessions, twice a week with her assistance and an additional session on his own. For the future, she was recommending 12 more sessions, eight of those at a frequency of once per week and once every two weeks for the remaining four sessions.

The December recommendations were never completely implemented. Ms. Szczecina reported in June 2013¹⁵ that the frequency of sessions declined due to Mr. Spence’s illness in January, bad weather in February and March, and then a change in the pool’s public swimming hours in April. She did note that overall there had been improvement since November 2012 when he began and that while he still had daily pain, the periods of increased pain were not as long. She opined that his infrequent attendance resulted in limited progress and recommended that RBC fund some additional sessions — three to five — and the purchase of some aquatic equipment.

In the meantime, Mr. Spence had been researching the cost of construction of his own pool, an idea supported by Dr. Kingston, his family doctor, Dr. Rivlin, his pain specialist, and Ms. Szczecina. He obtained several estimates and then approached Ms. Szczecina. Ms. Szczecina then delivered her treatment plan for the residential therapy pool. Her rationale for the home pool¹⁶ was that it would (i) provide daily and convenient access to therapy; and (ii) be beneficial in managing pain and allow for active exercises without the aggravation of the symptoms of pain.

The pool was constructed in late 2013. It is a custom pool at the optimum depth of 5 feet. Since the initial construction, Mr. Spence has enclosed the pool with a yurt to allow him access during the winter months. At the time of the hearing, Ms. Szczecina continued to assist him with therapy sporadically.

The Cost

The actual cost of the home therapy pool in this case cannot be ignored. At over $60,000, the cost is very high especially when compared to the awards granted in other arbitration cases where a similar good was claimed. While the arbitrator in Jazey and State Farm Mutual Insurance Company¹⁷ found the cost of a hot tub reasonable, the $15,000 cost was one quarter what is being sought in this case. Both Ms. Szczecina and Dr. Kingston remarked on the high price of Mr. Spence’s pool.

While Mr. Spence claimed that he chose the least expensive of the estimates he obtained, he still constructed a custom pool that was to all of his specifications and made few, if any, compromises in this regard. It is the optimal depth, length and temperature. Ms. Szczecina testified that this is the best pool for him, though the cost is high. Best is, by its nature, optimal and not necessarily reasonable.

The fact that Mr. Spence is prepared to spare no expense to obtain his treatment and relieve his pain is not grounds for considering the cost reasonable.¹⁸ In this case, it is especially unreasonable given that one of the reasons he claimed that the Clarkson pool was not feasible was that he would lose wages to leave early for therapy. He testified that with the initial therapy he lost 3 hours of work per week. He was paid an hourly wage and his hours of work were 7 a.m. to 3:30 p.m. but he would leave work at 2-2:15 p.m. in order to get to the pool, a twenty-five minute drive from his office. Because of the nature of his work he could not leave early consistently for his twice per week sessions.

Yet, Mr. Spence has spent many of his own dollars building, maintaining and heating an expensive pool and has lost wages in the past to engage in other kinds of pain relieving therapy. The maintenance and operation costs of this pool far outweigh any loss of wages occasioned by his attendance at therapy in a community pool. In addition, while Mr. Spence had the same complaint about attendance at Dr. Rivlin’s office once per week — he had to leave at 2-2:15 p.m. in order to make Dr. Rivlin’s last appointment at 3 p.m. – he managed that inconvenience and loss of wages for 88 sessions from March 2011 to November 2013.

Mr. Spence testified that he believed his treatment to be compromised when he missed six consecutive aqua therapy sessions during the early winter of 2013 but the evidence shows that he did improve even with fewer sessions and that, in any event, had he been more patient, over time the frequency of the aqua therapy would have decreased with his improved conditioning.

The Purpose of the Treatment

The preponderance of the evidence is that aqua therapy was to facilitate Mr. Spence’s return to a more active and healthy lifestyle that would help with pain management. Given the chronicity of his symptoms, he would never be without pain and he would continue on high doses of opiate pain medication. As a result, access to a residential home therapy pool was not necessary as the treatment plan was to gradually introduce other types of exercise as Mr. Spence’s overall physical condition improved.

This purpose to treatment can be seen from Ms. Szczecina’s treatment plans. In this regard, Ms. Szczecina’s initial treatment plan proposed only a short term of aqua therapy over the course of several weeks gradually to give way to independent exercise.¹⁹ A similar approach to activity and pain management was proposed by Dr. Kekosz, the physiatrist who saw Mr. Spence in March 2012. Dr. Kekosz recommended that Mr. Spence be involved in a gym program of active exercises including pool, light strengthening, and exercise-related pain education. Dr. Kekosz proposed a one year gym membership with pool facilities and 12 sessions with a qualified kinesiologist.²⁰ Moreover, Mr. Spence testified that physical home exercise had been proposed in the past²¹ but he was unable to maintain this therapy as it exacerbated his pain symptoms. The aqua therapy was a treatment method recognized as facilitating exercise, while not exacerbating pain by numerous practitioners. However, it is also evident that this form of therapy was not to be exclusive of other types of treatment. Ms. Szczecina’s subsequent treatment plans support this conclusion.

Aqua therapy was to be one of a number of treatment modalities that would bridge Mr. Spence to an active lifestyle and help with pain management. For example, in May 2014,²² Ms. Szczecina reported that she had introduced Nordic Walking at the April 12th session as an effective way to gradually transfer aquatic exercises to land. She recommended 3 more sessions over 20 weeks, in addition to her recommendations for improving his work environment with an ergonomic chair and an accessible parking spot. She indicated that Nordic Walking was an effective low impact exercise to increase core stability, balance and gait in individuals with chronic pain, the same stated benefits provided by aqua therapy. Ms. Szczecina’s final report²³ indicates that she directed three sessions of Nordic Walking in June 2014 and other land exercises, pelvic stability exercises, were introduced in the October session.

In addition, the evidence shows that daily access to a home pool was not necessary for Mr. Spence to make progress in his treatment goals. Ms. Szczecina notes that he experienced a decrease in pain and increase in flexibility and exercise tolerance when in therapy from November to December 2012. That therapy was not daily but as per her plan. Even with infrequent attendance when the initial therapy plan was discontinued in May 2013²⁴ because of a challenging winter and a change in pool hours, Ms. Szczecina’s June 2013²⁵ report noted that overall there had been improvement since November 2012, though progress was limited, and that the periods of increased pain were not as long.

It is also significant that initially Ms. Szczecina recommended aqua therapy at a frequency of three times per week at a community pool as, she testified, she recommends for most of her patients. The high cost of the home pool is especially problematic in this context. There was little evidence before me that Mr. Spence’s case, from a therapeutic standpoint, was extraordinary.

Again, the preponderance of evidence is that the goals of treatment did not necessitate the convenience of an expensive home therapy pool and that in this context it is an unreasonable expense.

Considering the stated goals of treatment, Ms. Szczecina’s treatment plan of February 2013 appears to be essentially a justification for Mr. Spence’s desire to have the convenience of a residential pool.

First, there was no recommendation for a residential therapy pool until Mr. Spence’s attendance at the community pool became infrequent and he indicated his desire to build his own pool. Dr. Soriano²⁶ suggested this type of therapy should continue, if it improved his symptoms, but did not recommend a residential pool. While both Dr. Kingston and Dr. Rivlin supported the idea of a residential pool, Dr. Kekosz believed that a gym membership that included pool facilities would suffice.

The rationale that Ms. Szczecina provided in her February 2013 treatment plan for the pool²⁷, in part, was daily and convenient access to therapy but her own initial treatment plan did not indicate that Mr. Spence should do therapy on a daily basis.

Furthermore, the detailed letter accompanying the plan²⁸ makes exaggerated claims about the necessity of a residential pool. In that letter, she notes that although he continues to experience significant pain outside of pool therapy and relies on strong medication to manage his pain, he has been able to discontinue nerve block injections, which prior to engaging in pool therapy he received on a weekly basis. This letter was written in February 2013 when Mr. Spence had just commenced aqua therapy; while he had attended regularly for one his attendance had dropped off in early 2013. I find it disingenuous to attribute his improvement at this point to the availability of a residential pool.

Moreover, Ms. Szczecina went further to say that, in order to assist Mr. Spence in maximizing the gains available from aquatic therapy, his own therapy pool would allow him to continue with aquatic therapy on a consistent basis without interfering with his work and family life. However, I am not satisfied on the evidence that the therapy had been interfering with his work and family life.

While Mr. Spence was required to leave early from work to accommodate the therapy sessions, there was no evidence that it significantly impacted on his work. Initially Mr. Spence would miss three hours per week of work. In fact, apart from these early departures to accommodate therapy, Mr. Spence has missed no significant time from work as a result of the 2006 accident.²⁹ His employer, Mr. Duncan, described Mr. Spence as one of his top designers. The workplace has been well aware of his issues and has improved his work space to assist him. While his employer testified that on some occasions they had to do some backpedalling with some clients, he also acknowledged that Mr. Spence is dedicated to one account and therefore specialized and hard to replace. He also testified that while he was sometimes concerned with the speed with which Mr. Spence did things, he was never in fear of losing his job.

I heard almost no evidence of how attendance at a community pool interfered with Mr. Spence’s family life. He missed aqua therapy sessions in January and February because he was sick. Mr. Spence testified that the drive back home after therapy was often longer than usual and he might be particularly tired but he had a very long commute home whether or not he attended therapy. There was no other information about any strain on his family life.

I find that the lack of a rational therapeutic basis for the recommendation of a residential therapy pool detracts from its reasonableness and necessity.

Temporary Pain Relief Only

The fact that the pain relief benefit of the aqua therapy is temporary also impacts on the reasonableness of a residential therapy pool. Both Mr. Spence and Ms. Szczecina confirmed that the pain before and after the aqua therapy sessions was the same. Pain relief only came while in the pool. There has been no decrease in Mr. Spence’s medication as a result of regular pool therapy, though his general health has improved as has his flexibility and stamina. The true benefit of the aqua therapy was to allow Mr. Spence to re-condition his body which had deteriorated due to lack of exercise after the accident.

The evidence before me indicates that the point of the aqua therapy was to allow for pain-free exercise, not a pain-free life. As discussed, pain-free exercise can be realized without a pool at home and Mr. Spence experienced pain-free exercise even when he attended for his sessions at a community pool. If, as testified, warm, deep water allows for muscle relaxation and some pain relief while immersed, Mr. Spence might have installed a hot tub, or something similar at much less expense, to provide those pain relief benefits at home.

Convenience as a Factor

The residential therapy pool was supported by Dr. Kingston, Mr. Spence’s family doctor, because it was optimal given that he resided in a small town north of where he worked in Etobicoke. Dr. Kingston had consulted with and advised Mr. Spence over the years and she thought he was trying his best and she had very few other solutions for pain relief. Ms. Szczecina had been conducting aqua therapy in a community pool which had been successful until such time as Mr. Spence’s attendance became irregular.

Ms. Szczecina had located a few pools close to Mr. Spence’s workplace that offered the preferred water temperature and settled on the pool in Clarkson because it was convenient to his work. Though the public swimming hours were limited³⁰ and then changed, necessitating Mr. Spence’s early departure from work, the real inconvenience to him resulted with his commute home, which was long and made more difficult during the winter and because he was fatigued after therapy.

The necessity of a residential pool is largely founded on this convenience factor. To the degree that it is, I do not find this argument persuasive. The evidence shows Mr. Spence has not made decisions for convenience in other aspects of his life despite the fact that the consequences of those decisions are increased pain for him. For example, when he moved from Brampton to Shelburne in 2009, Dr. Kingston noted in November³¹ the detrimental impact the commute was having on Mr. Spence. The pain was worsening because he was sedentary and without regular activity.³² She noted that his pain was at its worst upon arrival at his office and return to his home.³³ He could just tolerate the drive from his previous residence in Brampton to his workplace. Dr. Rivlin confirmed that driving long hours was definitely a factor in the aggravation of his pain.³⁴ Moreover, for a few years after the accident, Mr. Spence continued to drive to his cottage on weekends despite the pain it caused him. Mr. Spence also continues to see Dr. Kingston, whose office is in Mississauga, which is a long distance from his home. The Clarkson community pool was always conveniently located to his workplace even with the altered public hours.

The desire for the optimal home therapy is understandable. On the other hand, there are many circumstances in Mr. Spence’s life which are not optimal by choice. In these circumstances, the provision of a convenient residential pool is neither reasonable nor necessary.

CONCLUSION:

Having considered all the evidence I find that Mr. Spence is not entitled to a medical or rehabilitation benefit because the cost of the residential therapy pool is not a reasonable and necessary expense incurred by him.

EXPENSES:

I award RBC its reasonable expenses of the arbitration. If the parties cannot agree they may request an assessment hearing in accordance with Section 79 of the Dispute Resolution Practice Code.

November 17, 2015

Rosemary Muzzi Arbitrator

Date

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

Neutral Citation: 2015 ONFSCDRS 246

FSCO A13-010143

BETWEEN:

MICHAEL SPENCE

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mr. Spence is not entitled to a medical or rehabilitation benefit for a residential therapy pool. The application for arbitration is dismissed.

2. RBC is entitled to its reasonable expenses of the arbitration.

November 17, 2015

Rosemary Muzzi Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 1, Tab 68, page 1494
3. 3Exhibit 1, Tab 59, page 1090
4. 4Mr. Spence was involved in a subsequent accident, a head-on collision on April 5, 2007, while on route to physiotherapy for the November 2006 accident. He was discharged the same day with an aggravation of previous injuries to the neck, back, hip, both arms and legs, and left side of body. See Exhibit 1, Tabs 2 and 25.
5. 5Section 14 of the Schedule. While it might also be payable as a rehabilitation benefit pursuant to section 15, the expenses must still be reasonable and necessary.
6. 6Section 14(1)(h)
7. 7State Farm Mutual Automobile Insurance Company and Walker (OIC-P-96, 00036, December 9, 1996)
8. 8Lynch and The Halifax Insurance Company (OIC A-004781, December 20, 1994)
9. 9See footnote 7, supra.
10. 10General Accident Assurance Co. of Canada and Violi (FSCO P99-00047, September 27, 2000)
11. 11Exhibit 1, Tab 45
12. 12Exhibit 1, Tab 87
13. 13Exhibit 1, Tabs 54, 55, 56 and 57
14. 14Exhibit 1, Tab 54
15. 15Exhibit 1, Tab 55
16. 16Exhibit 1, Tab 52
17. 17Jazey and State Farm Mutual Insurance Company (FSCO A13-001352, December 9, 2014)
18. 18Chan and CAA Insurance Company (Ontario) (FSCO A02-001228, May 3, 2004)
19. 19Exhibit 1, Tab 54, see pages 1058-1059 of the report
20. 20At this time, Dr. Kekosz also noted the following: Mr. Spence would benefit from 6 months of biweekly osteopathic treatment for improvement of his neck and lower back pain; he needs to continue using his cane for longer distances and wearing supportive footwear with custom foot orthotics; he will also need to continue with ongoing therapy with Dr. Rivlin, who is currently his chronic pain specialist and he should continue with his regular soft tissue injections and monitoring of his pain medications.
21. 21For example, by the Canadian Back Institute
22. 22Exhibit 1, Tab 56
23. 23February 2015
24. 24In February 2013, Ms. Szczecina delivered her treatment plan for the home therapy pool, supported by Dr. Kingston, Mr. Spence’s family doctor, and Mr. Spence had his own pool installed by the summer of 2013.
25. 25Exhibit 1, Tab 55
26. 26Exhibit 1, Tab 87
27. 27Exhibit 1, Tab 52
28. 28Exhibit 1, Tab 52, letter dated February 14, 2013
29. 29Interestingly, Dr. Kekosz (see Tab 45) also recommended that Mr. Spence reduce his work hours initially: Mr. Spence does not require a vocational assessment and/or retraining. He is working in a full time capacity and is having difficulties managing the commute, as well as the fulltime hours. I do believe he should have only part-time modified hours (4 day week) on a temporary basis so that he could improve in his overall strength and mobility. Ideally three months of an active exercise program (on his day off) followed by a gradual return to fulltime hours.
30. 30Monday and Wednesday from 1-3 p.m. and Tuesday and Thursday from 2-4 p.m.
31. 31Exhibit 3— Dr. Kingston’s clinical notes and records
32. 32Exhibit 3 — page 114
33. 33Exhibit 3 — page 90
34. 34Exhibit 3 — page 89