Michael Spence v. RBC General Insurance Company, 2017 ONFSCDRS 252

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 252

Appeal P15-00071

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MICHAEL SPENCE

Appellant

and

RBC GENERAL INSURANCE COMPANY

Respondent

BEFORE:

David Evans

REPRESENTATIVES:

Justin Nasseri for Mr. Michael Spence

Alexander Curry for RBC General Insurance Company

HEARING DATE:

March 23, 2017

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. The Arbitrator’s Order of November 17, 2015 is confirmed and this appeal is dismissed.

2. If the parties are unable to agree about the legal expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

September 26, 2017

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Michael Spence appeals the order of Arbitrator Muzzi dated November 17, 2015, denying his claim of $62,877.65 for the cost of the construction of a residential aqua therapy pool as a medical or rehabilitation benefit under the SABS–1996.¹

However, the Arbitrator had before her evidence that aqua therapy was available at a public pool, and the pool met Mr. Spence’s treatment needs, which were to be temporary. Therefore, she had evidence to conclude that the home pool was not reasonable or necessary.

II. BACKGROUND

Mr. Spence was injured in a motor vehicle accident on November 20, 2006. The accident aggravated his pre-existing chronic pain condition – now his chief complaint. After trying various therapies, he turned to aqua therapy in November 2012. RBC had approved and paid for Mr. Spence’s aqua therapy sessions. The Arbitrator noted that aqua therapy was the last therapy he tried after getting little or only temporary relief after a long string of other passive therapies.

The therapy was initially provided in a public pool. Ms. Szczecina, the physiotherapist engaged to assist Mr. Spence, found a number of public facilities that had the kind of specially heated, shallow pool he needed. A pool in Clarkson near to Mr. Spence’s workplace was chosen.

Aqua therapy had been recommended earlier to Mr. Spence to allow him to exercise without exacerbating his pain, including by RBC’s assessor, Dr. Soriano. Without exercise, he had gained 30 pounds and developed high cholesterol. Once he started the therapy, the therapist noted an improvement by December 2012. She recommended a further 12 sessions. There was no mention by her of a private pool at this point. Her treatment plan recommendations were never completely implemented due to Mr. Spence’s illness in January 2013, bad weather in February and March, and an unfavourable change in pool hours in April. In June 2013, Ms. Szczecina reported some improvement that was limited by his infrequent attendance at the public pool.

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, and Dr. Rivlin, his pain specialist. After getting several estimates for a pool, he gave them to Ms. Szczecina, who then delivered her treatment plan of February 2013 for it. The Arbitrator noted that Ms. Szczecina’s rationale for the home pool 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. However, the Arbitrator noted Ms. Szczecina’s own initial treatment plan did not indicate that Mr. Spence should do therapy on a daily basis.

The custom pool was constructed in late 2013 and now has a yurt for year-round access. While RBC had approved and paid for Ms. Szczecina’s expenses to travel to Mr. Spence’s home, it submitted that the construction of his home therapy pool was not reasonable and necessary as contemplated by the SABS.

The Arbitrator noted that, to claim the residential therapy pool as a medical benefit under s. 14, it had to be a reasonable and necessary expense 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 required. The expenses must still be reasonable and necessary if claimed as a s. 15 rehabilitation benefit. Accordingly, the Arbitrator stated that the question was whether the residential therapy pool was necessary to carry out the treatment plan for Mr. Spence and whether the cost of it was also reasonable.

Under the heading “The Cost,” the Arbitrator found that, in considering these criteria, the actual cost of over $60,000 for the home therapy pool in this case could not be ignored. The cost was very high compared with other arbitration awards, and both Ms. Szczecina and Dr. Kingston remarked on it.

Although this was a no-compromise pool that Mr. Spence testified was best for him, given its optimal depth, length and temperature, the Arbitrator stated that best is, by its nature, optimal and not necessarily reasonable. She noted that the cost was especially unreasonable because Mr. Spence claimed the Clarkson pool was unfeasible because he had lost three hours of wages a week leaving early for therapy. However, she noted that he had accepted lost time and wages to attend 88 nerve block injections at Dr. Rivlin’s office. Further, Mr. Spence had spent much more than the lost wages in building, maintaining and heating the pool.

Most importantly, she found as follows:

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.²

Under the heading “The Purpose of the Treatment,” the Arbitrator found that the goals of treatment did not necessitate the convenience of an expensive home therapy pool. She found that 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 instance, Ms. Szczecina’s initial treatment plan proposed only a short term of aqua therapy over the course of several weeks to give way to independent exercise. The Arbitrator found that the aqua therapy was a treatment method to facilitate exercise while not exacerbating pain, but it was not exclusive of other types of treatment and was meant to be a bridge to a more active lifestyle and to help with pain management. Thus, in May 2014, Ms. Szczecina reported that she had introduced Nordic Walking as an effective way to gradually transfer aquatic exercises to land.

The Arbitrator also found it significant that Ms. Szczecina initially recommended aqua therapy at a frequency of three times per week at a community pool as, she testified, she ordinarily recommends for most of her patients. Since the Arbitrator found little evidence that Mr. Spence’s case was extraordinary from a therapeutic standpoint, she found that the goals of treatment did not necessitate the extraordinary expense of a home therapy pool. Finally, the Arbitrator found that daily access to a home pool was not necessary for Mr. Spence to make progress in his treatment goals, as shown by his improvement even with his spotty attendance at the public pool.

Under the heading “Treatment Plan – a Justification for a Home Therapy Pool,” the Arbitrator found that Ms. Szczecina’s treatment plan of February 2013 was essentially a justification for Mr. Spence’s desire to have the convenience of a residential pool. First, the recommendation for the pool only arose after Mr. Spence’s attendance at the public pool was infrequent and he then indicated he wanted to build one. While two doctors did support the idea of a residential pool, two others did not think it was necessary. Further, as touched on above, one of Ms. Szczecina’s rationales was daily and convenient access, but Ms. Szczecina’s own initial treatment plan did not indicate that such access was required. The Arbitrator also found the detailed letter accompanying the plan made exaggerated claims about the necessity of a residential pool. For instance, it stated that he had been able to discontinue nerve block injections, but the Arbitrator noted he had just started the therapy so it was disingenuous to attribute his improvement to the availability of a residential pool. Finally, another rationale for the pool was to allow him to have consistent aqua therapy without interfering with his work and family life. However, the Arbitrator was not satisfied that the therapy at the public pool had been interfering as suggested, since apart from the early departures from work, Mr. Spence had missed no significant work time as a result of the accident other than the three hours initially, and he was a valued employee in no fear of his job. Mr. Spence testified that the drive back home after therapy was often longer than usual and he might be particularly tired, but the Arbitrator noted he had a very long commute home whether or not he attended therapy and there was no other information about any strain on his family life.

Accordingly the Arbitrator found that the lack of a rational therapeutic basis for the recommendation of a residential therapy pool detracted from its reasonableness and necessity.

Under the heading “Temporary Pain Relief Only,” the Arbitrator found the fact that the pool only provided temporary pain relief impacted its reasonableness. Both Mr. Spence and Ms. Szczecina confirmed that the pain was relieved only in the pool, and before and after the aqua therapy sessions it was the same, so there has been no decrease in Mr. Spence’s medication. The Arbitrator found the true benefit of the aqua therapy and realizable at a community pool was to allow Mr. Spence to re-condition his body via pain-free exercise. The Arbitrator noted that 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 benefits.

Finally, under the heading “Convenience as a Factor,” the Arbitrator noted that 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. However, she also noted that Ms. Szczecina’s treatment at the Clarkson pool had been successful until Mr. Spence’s attendance had become irregular. Moreover, the Clarkson pool was convenient to his work. Though the public swimming hours were limited and then changed, necessitating Mr. Spence’s early departure from work, the Arbitrator noted that the real inconvenience to him resulted with his long commute home, especially when he was fatigued after therapy.

However, the Arbitrator did not find this convenience argument persuasive, since Mr. Spence accepted inconvenience in other aspects of his life. For instance, he had moved further away from work, drove to his cottage on weekends, and saw Dr. Kingston in Mississauga, all of which entailed extra driving that aggravated his pain. By way of contrast, the Arbitrator noted the Clarkson community pool was conveniently located to his workplace even with the altered public hours. The Arbitrator concluded that, while the desire for the optimal home therapy was understandable, “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.”

III. ANALYSIS

Mr. Spence submits that the Arbitrator erred in law by:

1. Failing to consider relevant evidence, and her own findings, that the pool was necessary to Mr. Spence’s treatment

2. Considering irrelevant and improper factors in concluding that the pool was not a reasonable and necessary expense

3. Taking an “all or nothing” approach to the reasonableness of the expense

On the first point, failure to consider relevant evidence, Mr. Spence submits that the Arbitrator ignored the evidence that healthcare professionals recommended the residential pool. To the contrary, she recognized that some doctors recommended the benefits of a residential pool, but others did not. For instance, the Arbitrator referred to Dr. Kingston’s early support of the pool. However, she preferred the evidence of the healthcare professionals who thought otherwise, which was her role. Further, her comment that the treatment plan was essentially an ex post facto justification for the pool was also based on the evidence that Mr. Spence began to research the pool prior to having his physiotherapist say it would be useful, so again that conclusion was based on evidence.

Mr. Spence submits that the Arbitrator disregarded evidence that the home pool was helpful. However, the Arbitrator did indeed recognize that Mr. Spence improved as a result of having the residential pool. That fact does not lead to the conclusion in hindsight that the pool itself was a reasonable and necessary expense, which is the crux of the matter and ultimately determinative. What the Arbitrator found was that Mr. Spence had improved with just sporadic use of the public pool. What Mr. Spence failed to prove was that, but for the residential pool, he would not have improved. However, the Arbitrator had evidence of Mr. Spence’s improvement at the public pool, so she had evidence to conclude that the residential pool was neither reasonable nor necessary for his improvement, given that the use of a public pool was sufficient for him to improve and given that the treatment goals of the aqua therapy were to be temporary.

Mr. Spence submits that the Arbitrator’s criticism of the expensive customization of the residential pool was unfair. However, Mr. Spence already had a perfectly customized pool available to him at Clarkson.

Mr. Spence submits that the Arbitrator failed to recognize that his ability to engage in other forms of activity depended on his aquatic therapy when discussing the purpose of the treatment. However, over pages 8 and 9 of her decision, the Arbitrator discussed the evidence that the original treatment plan only proposed a short term of aqua therapy to give way to independent exercise, that aqua therapy was to be one of a number of treatment modalities that would bridge Mr. Spence to an active lifestyle, and that daily access to a home pool was not necessary for him to advance. Again, the evidence of the home pool’s benefits that Mr. Spence points to is really simply a justification after the fact and not the basis for deciding the pool was necessary or reasonable in the first place. The Arbitrator had evidence before her to support her conclusion that the goals of treatment did not require an expensive home pool. I find no error.

As to the second point, consideration of irrelevant factors, Mr. Spence submits that the Arbitrator erred by considering that he was prepared to spare no expense to obtain his treatment and relieve his pain and by ignoring the purpose of building the pool was to obviate the need for further lost wages. However, the cost of the pool was certainly a relevant factor to consider, and the loss of wages was to be only temporary. In any event, it was up to the Arbitrator to weigh the balance between the cost of the pool and the lost wages. In a similar vein, Mr. Spence submits that the Arbitrator inappropriately considered convenience as a factor but did not take into account Mr. Spence’s personal safety, in that he was tired after the treatment and had a long drive home. However, again, this was a matter of the Arbitrator to weigh. I note that there is nothing to suggest Mr. Spence looked at any public pools closer to his home. Rather, he attended the public pool a few times, and then started planning to build his own pool. Given these circumstances, I find no error.

As to the third point, the “all or nothing” approach, it was Mr. Spence’s own approach. The Arbitrator cannot be faulted for making findings based on the issues and evidence as presented before her. There was no evidence before her to arrive at any other figure, I have no way of providing such a figure, and there is no reason to send this issue back to arbitration. I find no error under this point either.

Accordingly, the Arbitrator’s decision is affirmed and the appeal is dismissed.

IV. EXPENSES

If the parties are unable to agree about expensses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

September 26, 2017

David Evans Director’s Delegate

Date

Footnotes

1. 1Effective September 1, 2010, the Statutory Accident Benefits Schedule — Effective September 1, 2010 (the “New Regulation”) came into force. The transition rules in the New Regulation provide that, subject to certain exceptions, benefits that would have been available pursuant to the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996 (the “Old Regulation”) shall be paid under the New Regulation, but in amounts determined under the Old Regulation. As a result, both the Old Regulation and the New Regulation are applicable to accidents that occurred on or after November 1, 1996 and before September 1, 2010.
2. 2Arbitration decision, p.8.