F.J. v. Intact Insurance Company, 2020 CanLII 34495

Citation: F.J. vs. Intact Insurance Company, 2020 ONLAT 19-004400/AABS

Released Date: April 16, 2020

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

[F. J.]

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Paul Auerbach, Counsel

For the Respondent:

Daniel M Himelfarb, Counsel

HEARD:

By way of written submissions

OVERVIEW:

1The applicant, F.J., was injured in an automotive accident on March 13, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The respondent paid for a number of benefits but denied payment for a recent treatment plan for physiotherapy. The applicant was deemed to be catastrophically impaired under criterion 8: mental and behavioral disorder.

2A case conference was scheduled in this matter on July 31, 2019, and the parties were unable to resolve all of the issues in dispute. A hearing in writing was ordered to determine her entitlement to the treatment set out in the recent plan.

ISSUES:

3The following are the issues to be decided, as per the Case Conference Order dated July 31, 2019:

i. Is the applicant entitled to receive a medical benefit in the amount of $7,121.93 for physiotherapy, recommended by Ottawa Valley Physiotherapy in a treatment plan dated February 15, 2018, and denied by the respondent on June 12, 2018?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT:

4I find that the applicant is entitled to the medical benefit claimed. The Schedule requires that interest be paid on any outstanding incurred amounts.

ANALYSIS:

Is the treatment plan in dispute reasonable and necessary?

Section 14 and 15

5Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits, including physiotherapy, that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan, and the associated costs, are reasonable and necessary.¹

Position of the parties

6The applicant argues that the treatment plan is reasonable and necessary because she has chronic pain and psychological sequelae that are preventing her from returning to her pre-accident functional levels. The treatment plan is geared toward improving her functional levels, reducing her pain and improving her emotional state.

7In response, the respondent submits that the proposed physiotherapy and massage will not promote the applicant’s recovery from her accident-related injuries or achieve the goal of increasing her strength. As well, the respondent argues that F.J. has developed an indefinite and inappropriate dependency on such treatment following three years of extensive physiotherapy and massage treatment.

Reasonable and Necessary – Criteria to consider

8Determining what is “reasonable and necessary” treatment can be difficult as the Schedule does not define these terms. I accept the definition of reasonable set out by Arbitrator Rotter in Plows and Jevco Insurance Company (OIC A-000175, A-000588, January 16, 1992), cited by the applicant, as "within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair.” Furthermore, a number of Tribunal and FSCO decisions have identified factors that adjudicators should consider in determining reasonableness.

9I am guided by the following factors set out by Director’s Delegate Draper in Violi and General Accident Assurance Company of Canada (P99-00047, September 27, 2000) (“Violi”) which have been adopted by the Tribunal² for determining whether a treatment plan is reasonable and necessary:

a. the treatment goals, as identified, are reasonable;

b. these goals are being [or will be met] to a reasonable degree; and

c. the overall cost [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.

10Other factors considered in determining what is reasonable include whether the treatment complied with accepted professional protocols, the subjective benefit to the insured person, or if a treatment helped to relieve pain.³

11Violi involved ongoing chiropractic and massage treatment with goals of pain relief and maintaining the applicant’s level of functioning. There, Director’s Delegate Draper,⁴ in dismissing the appeal, approved the principle that pain relief is a legitimate goal of treatment, and noted that in some extreme cases, pain relief might be the only goal. He also noted that, more typically, pain relief will be part of “a broader treatment or rehabilitation strategy”. He cautioned that “evaluating the effectiveness of any treatment is important, especially in determining whether it should continue over a lengthy period,” and approved the approach taken by Arbitrator Sapin in Amoa-Williams v. Allstate Insurance Co. of Canada that “pain relief measures should not encourage an inappropriate or indefinite dependency, or interfere with other aspects of rehabilitation.”⁵

12I agree with Violi that pain relief in and of itself can be a legitimate medical and rehabilitative goal, and therefore reasonable and necessary, even if it does not promote recovery. I also agree with Arbitrator Sapin in Amoa that pain relief measures should not encourage an inappropriate or indefinite dependency, or interfere with other aspects of rehabilitation.⁶

13These criteria are not exhaustive. Every case must turn on its own unique circumstances and requires a balancing of the various factors to determine if, overall and considering all of the relevant evidence, a particular treatment is reasonable and necessary. With these criteria in mind, I now turn to the application of these criteria to the evidence.

Application of Criteria

14The Treatment and Assessment Plan (OCF-18) dated February 15, 2018 proposed 32 physical physiotherapy sessions and 32 massage therapy sessions with an estimate duration of 16 weeks. The goals identified were: pain reduction, increased range of motion and strength and the functional goal to return to activities of normal living.

15As this was a subsequent treatment plan, Kelly Ejetsiak, physiotherapist, and Heather Laird, massage therapist from Ottawa Valley Physiotherapy, who prepared this plan, in response to the question under Part 9 – ‘What was the applicant’s improvement at the end of the previous plan?’ – explained as follows:

There has been a plateau with F.J.’s shoulder and ROM improvements and there have been new injuries with the legs and pelvis, medical issues and doctors adjusting pain medications. F.J. has to wait to return to the pain clinic. Writer noted improvements in ROM, pain levels and mood of patient with the treatment from the pain clinic [emphasis added]

16In support of her position, the applicant also relies on the medical evidence of her treating psychologist, Dr. Zohar Waisman, and her Ottawa Valley Physiotherapy records. Dr. Waisman assessed the applicant in 2016 and diagnosed her with Somatic Symptom Disorder with Predominant Pain, Post-Traumatic Stress Disorder and Major Depressive Episode. Dr. Waisman concluded that her prognosis remained poor and she failed to respond to multiple treatment modalities despite showing evidence of being motivated and interested in improving her situation. Dr. Waisman recommended ongoing psychotherapy and a multidisciplinary pain management program. Similarly, her treating psychologist, Dr. T. Damji, in his report dated January 22, 2016, recommended continued physiotherapy and massage therapy treatments.

17The respondent denied the treatment plan based on multidisciplinary assessment of Dr Quan, psychiatrist, Dr. Howse, neurologist, and Dr. D. Simon, orthopedic surgeon.

18Dr. Quan concluded that the treatment plan was not reasonable and necessary because the applicant’s pain is due to the development of a somatic symptom disorder – a psychological condition – and she requires psychological treatment. Therefore, in his opinion, physiotherapy and massage therapy would not significantly improve her condition. He also noted that past massage and physiotherapy has only resulted in temporary relief of approximately one or two days.

19From a neurological perspective Dr. Howse opined that the mild concussion that F.J. sustained had fully resolved and that there was no neurological injury sustained from the accident that would justify the proposed treatment. Finally, Dr. Simon’s also concluded the disputed treatment was not reasonable and necessary on the basis that any additional clinic-based therapy was unlikely to confer a specific rehabilitation benefit. Dr. Simon in his assessment explained that the applicant had become dependent on therapy and that she consistently reported no sustained benefit of meaningful improvement and she was better suited to pursue an independent strength and conditioning program.

20Intact does not dispute the principle that pain relief is a legitimate treatment goal in and of itself, compensable under section 14 of the Schedule. Rather, Intact, submits that in F.J.’s case, the continued physiotherapy treatment is not reasonable and necessary because the treatment plan in dispute will not provide effective treatment in improving her function or relieving pain for any extended period of time (they say only 24-48 hours of insignificant pain relief) or achieve its goal of increasing the applicant’s strength.

Dependence on Treatment

21In this respect, the respondent relies on Amoa and submits that in evaluating the effectiveness of any treatment, especially whether it should continue over a length period of time, pain relief measures should not encourage an inappropriate or indefinite dependency. The respondent argues that the applicant has developed an inappropriate or indefinite dependency on physiotherapy and massage treatment following three years of extensive treatment. They submit that, prior to the denial, the respondent had approved $25,018.60 in physiotherapy and massage treatment from Ottawa Valley.

22As support for their position, the respondent points to Dr. Simon’s orthopedic assessment that stated that despite continuous physical therapy/massage, F.J. could not endorse a sustained benefit or meaningful improvement and she has become dependent on therapy and fears that she will become bed-ridden without it. They also point to the applicant’s own submissions at para. 31 that state that F.J. has become dependent on physiotherapy.

Findings and reasons

23Based on the overall weight of the evidence, I find that F.J.’s claim for further physiotherapy and massage treatment is reasonable and necessary.

24Applying the Violi factors in this case, I have no difficulty finding that the first two factors are satisfied. The treatment goals are reasonable, and they are being reasonably achieved. I accept the applicant’s submissions that physiotherapy reduces her pain and increases strength which should help her with her balance difficulties. I also accept that the physiotherapy and massage treatment helped her emotionally and mentally. These are reasonable and necessary goals for treatment given the interplay between the applicant’s well-documented psychological and physical impairments. I also accept that although the physiotherapy may have diminishing returns and the applicant’s pain reduction may not be as prolonged as one would hope, pain reduction, even on a lesser scale, is still a necessary goal especially in a complex case such as this where there is relationship between pain, anxiety and mood.

25The proposed treatment goals are also reasonable at this critical time because there is evidence that F.J. has suffered several new injuries related to her legs and pelvis and has fallen numerous times reporting a second head injury and sprained knee as a result of a slip and fall. Indeed, Dr. Simon, noted in his IE report that F.J. reported multiple falls since the date of loss which she attributes to balance disturbance following head injury, general deconditioning and a sense that her legs constantly give out on her. I noted that part of F.J.’s physiotherapy regime is strength training which should help with her balance difficulties and hopefully to regain some muscle mass. The evidence indicates that F.J. was benefitting from previous treatment and that continuing treatment would be beneficial in achieving improved muscle strength and range of motion. Dr. Simon’s, in his IE orthopedic report, concedes that, as delineated in prior reports, she has benefited from extensive occupational therapy and interventions. More recently, a letter dated July 20, 2019 from Dr. P. McGuire, dentist, confirms that F.J. has developed terminal dentition with rampant decay as a result of the accident and requires removal of all her remaining teeth because of her chronic pain which has also led to her use of chronic pain narcotics. This indicates to me that her chronic pain and accident-related injuries are multi-faceted and unfortunately continuing to evolve and develop into other physical and emotional symptoms. I can only imagine that losing one’s teeth could be quite stressful for someone in their early 30s.

26The respondent submitted that the treatment provided to date apparently provided no actual benefit to F.J. While I agree that insurers should not be expected to fund ineffective treatment, effectiveness need not be proven to a level of scientific certainty. I do not agree that past treatment has provided no benefit. I am entitled to rely on the evidence of the applicant and her treating team that the physiotherapy and massage treatment helped F.J. reduce her pain and improve her emotional and mental state. As well, the respondent’s own IE assessor, Dr. Simon’s, at page 6 of his report, makes it clear that F.J. has reported some mild symptomatic improvements. Similarly, Dr. Quan in his psychiatry report (page 8) concludes that F.J. does have pain due to development of a sematic symptom disorder and notes that the massage and physiotherapy she received in the past has resulted in some temporary relief.

27Moreover, as mentioned earlier, Tribunal decisions have determined that pain relief can be a valid end to treatment or a legitimate treatment goal so long as it does not encourage inappropriate or indefinite dependency or interfere with other aspects of rehabilitation. Dr. Quan in his IE psychiatry report dated September 7, 2018, concludes that F.J. does have pain due to development of a sematic symptom disorder. I did not find that the treatment encouraged an inappropriate or indefinite dependency or interfered with other aspects of her rehabilitation. In fact, the treatment plan noted improvements in the range of motion, pain levels and mood of patient.

28In weighing the evidence, I give more weight to the treatment recommendations of Dr. Waisamnan, Dr. Damji and Ms. Ejetsiak/Laird than the conclusions of the IE assessors. Their respective opinions are too cursory and not supported by the facts of this case. For example, with respect to Dr. Simon’s report, he identifies that F.J. has: core muscles weakness, reports discomfort and dizziness with motion in all planes, avoids stairs, has reported multiple falls which she attributes to balance disturbance, recently hit her head twice and had a recent two-week hospital admission related to kidney infection. Yet, he was still somehow able to conclude that her prognosis is “expected to be excellent”.

29Dr. Simon also concludes that there were no objective signs of ongoing impairment despite noting during his objective examination (page 10-11) that she only weighs 90 lbs. and was emaciated (other reports noted significant weight loss), she was generally weak, she was tearful at times, she exhibited pain behaviours, a slow reciprocating gait, balance was poor, spine range was self-limiting to 10%, cervical rhythm was slow, she had a dressing in ger right arm where her pic line remains. F.J. reported to Dr. Simon that she has severe right shoulder pain and radiating neck pain and an MRI and/or ultrasound of her neck and right shoulder was done but Dr. Simon was not able to locate and review these results. He notes the medication is excessive but does not stipulate what medication and if this could result in any harm to F.J. Finally, I could not reconcile how Dr. Simon was able to recommend an independent strength and conditioning program knowing that F.J. was vulnerable and fearful that her legs would give out and she would fall without warning.

30I also do not agree that a treatment plan may not be effective simply because it is more than several years (i.e., over three) after the accident. To accept this means any treatment beyond three years is not effective. On this point, perhaps foreshadowing what was to come, Dr. Waisman described F.J.’s prognosis as poor, finding that she has severe pain, depression, sleep disturbances and there is no evidence from which to infer these current problems will not continue in the long term. As well, the more recent evidence, which was consistent with what Dr. Waisman was saying back in 2016, was that the applicant was hospitalized in the past few years 3-4 times in the intensive care unit and continues to the present time to experience physical and psychological impairments.

31The third Violi factor is concerned with the overall cost [not just financial, but also investment of time, etc.] of achieving these goals, taking into consideration both the degree of success and the availability of other treatment alternatives. Intensive professional treatment such as this is expensive. In my view, 32 physical physiotherapy sessions and 32 massage therapy sessions with an estimate duration of 16 weeks at the cost of $7,121.93 is reasonable.

32Finally, the only other treatment alternative suggested by Dr. Simon was an independent strength and conditioning program. I appreciate that this may be a more cost-effective method for achieving the goals. I must consider the necessity of the treatment plan’s cost by looking at all of the circumstances. Here, based on the applicant’s current condition, including serious psychological issues as a result of the accident and ongoing problems with her balance and falling, I believe that F.J. is currently in very vulnerable fragile state and should be guided and supervised during any treatment and not left alone. For these reasons, I am not satisfied that this was a reasonable treatment alternative. I also find that F.J. has a preference for relieving her pain with physiotherapy and massage treatments. The Tribunal has accepted that the choice of the modality of treatment is that of the insured person and of his or her health practitioner.⁷ The applicant knows her body, and she knows what helps and reduces her pain, anxiety and other impairments.

CONCLUSION/ORDER:

33The applicant is entitled to payment of the treatment and assessment plan dated February 15, 2018, in the amount of $7,121.93.

34The applicant is entitled to interest on overdue payments in accordance with s. 51 of the Schedule.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635.
2. 217-006422 v The Guarantee Company of North America, 2018 CanLII 95556 (ON LAT) para. 9.
3. 3Amoa-Williams and Allstate Insurance Company of Canada (FSCO A97-001864 June 5, 2000)(“Amoa”).
4. 4The insured had appealed from an arbitration order of Arbitrator Alves dated August 20, 1999.
5. 5Amoa-Williams v. Allstate Insurance Co. of Canada (FSCO A97–001864 June 5, 2000)(“Amoa”)
6. 6As cited by the respondent, the principal of dependency has been referenced by the Tribunal in 17-006422 v The Guarantee Company of North America, and 17-001146 v Aviva Insurance Canada.
7. 717-001146 v Aviva Insurance Canada, 2017 CanLII 69449 (ON LAT) para. 16.