Automobile Injury Appeal Commission Province of Saskatchewan

Transcription

1 Province of Saskatchewan Citation: S.R. v. Saskatchewan Government Insurance, 2009 SKAIA 001 Date: File: 128 of 2006 BETWEEN S.R., Appellant and Saskatchewan Government Insurance, Respondent Appearances: S.R., the Appellant Dale Brown, for the Respondent Before: Barbara Tomkins, Chair Beverly Cleveland, Commission Member Jane Lancaster, Q.C., Commission Member THIS DECISION HAS BEEN EDITED TO PROTECT THE PERSONAL AND HEALTH INFORMATION OF INDIVIDUALS BY REMOVING PERSONAL IDENTIFIERS AND OTHER IDENTIFYING INFORMATION. Heard at Saskatoon, Saskatchewan December 17, 2008

2 Page 2 DECISION [1] The Appellant was injured in a vehicle accident on March 8, He applied for and received benefits under Part VIII the no-fault provisions of The Automobile Accident Insurance Act ( the Act ) until June 30, 2005 when SGI advised that medical reports it had received indicated that his injuries had resolved. SGI requested that he submit any claims for expenses that were then outstanding. [2] The Appellant forwarded receipts for massage therapy and acupuncture treatment that he had received prior to his recovery but SGI declined to pay the amounts claimed and wholly declined certain of the receipts. The Appellant appeals SGI s refusal to reimburse these expenses. [3] Some months after this, the Appellant complained of increasing problems with his legs and sought coverage for this. By letter dated December 1, 2005, SGI declined benefits on the basis that the Appellant s leg symptoms were not caused in the vehicle accident and, therefore, were not covered under Part VIII of the Act. The Appellant appealed this decision. [4] Therefore, there are two appeals before us. PRELIMINARY MATTERS [5] In the course of administering the Appellant s appeal, SGI learned that he had had a number of work injuries prior to the vehicle accident and that some of these injuries might be similar to injuries the Appellant said were caused in the accident. SGI sought to obtain the Appellant s workers compensation records but the Appellant objected to this. SGI decided to and did proceed without the records for some time. [6] Eventually, SGI sought to obtain records from the physical therapist who had been treating the Appellant. The physical therapist had the workers compensation records on her file and included them in the package of information that she provided to SGI. SGI filed those records in these proceedings.

3 Page 3 [7] The Appellant said that the records had been submitted in error and the physical therapist confirmed this. She said that the information was provided due to clerical error and was not related to the vehicle accident. She asked that the records that had been incorrectly submitted be returned. SGI declined this request. [8] The Appellant applied to the Commission asking that the records be removed from the appeal file and excluded from consideration. The Commission heard this issue as a preliminary matter some months prior to the hearing on the merits. [9] The Commission gave its decision orally on July 16, We concluded that the documents were prima facie relevant to the matters in issue in the appeal. Noting that SGI is required, under the Act and its regulations, to file all relevant documents, we concluded that the documents were properly included among the documents filed and properly before us for our consideration. Their degree of relevance and accuracy, of course, were open for argument. [10] The Appellant s allegation that there had been a breach of privacy in that the document were improperly disclosed, we concluded, is a matter for the Information and Privacy Commissioner upon the Appellant s application. FACTS AND FINDINGS [11] The Appellant was involved in a vehicle accident on March 8, In an Application for Benefits completed on March 10, 2005, he indicated that he suffered pain in his head, both shoulders on the back, the back left side of his neck, right hand and lower left buttock and left thigh. He indicated his level of pain at level 4, where zero is no pain and ten is pain as bad as could be. [12] He also noted on his application that he had an extensive history of work injuries, the most recent having occurred in January He stated that he hadn t yet recovered from those injuries. He also stated that he suffered pre-existing chronic myofascial pain syndrome and, in fact, had been treated for that on the day of his accident.

4 Page 4 [13] The Appellant saw his chiropractor on March 9, He noted the Appellant s preexisting chronic right shoulder and upper back condition but found also whiplash associated disorder and lower back pain arising from the accident. He recommended chiropractic treatment and massage therapy for a period of six weeks and re-evaluation thereafter. [14] After receiving his claim, SGI sent a letter setting out generally how an injury claim would be administered. In the letter, SGI stated that if massage therapy was recommended, SGI would authorize ten one-half hour sessions that could be billed directly to SGI. [15] The Appellant believed these limitations were not appropriate for his condition and he spoke to his Personal Injury Representative (PIR) about the matter on March 18, He explained that the accident had exacerbated his pre-existing chronic myofascial pain syndrome and he knew from experience that one-half hour treatments for massage therapy were not effective. Instead, he sought one-hour treatments that he had found effective in the past. [16] The PIR confirmed SGI s policy that allowed ten one-half hour treatments and suggested that he consult his family doctor to learn whether another form of treatment might be appropriate. Alternatively, she suggested that he raise the matter with a senior manager who might, in appropriate circumstances, allow treatments exceeding the policy. [17] The Appellant spoke with an SGI manager shortly after this. He explained his circumstances and his belief that his condition required more aggressive treatment than SGI policy allowed. The manager indicated that the Appellant might receive additional or longer massage therapy treatments if he would first undergo an assessment; if additional massage therapy was part of the recommended treatment plan, this would be funded. Alternatively, SGI would consider additional massage therapy if the Appellant provided a recommendation from a care provider indicating the clinical findings and therapeutic necessity for the treatment. The Appellant indicated that he was not interested in an assessment as he had undergone five of them in the course of his workers compensation claim.

5 Page 5 [18] Then and afterward, the Appellant did not undergo an assessment and did not provide a practitioner s recommendation for additional or enhanced massage therapy treatment. [19] The Appellant continued to receive chiropractic treatment, massage therapy and dry needling a form of acupuncture which he had received and found beneficial prior to his vehicle accident and by May, his care providers reported significant improvement in his condition. [20] In a report dated only May 2005, Karen Lucky, who performed dry needling, reported that she had treated the Appellant for two years prior to the vehicle accident to address generalized myofascial triggers, especially in the upper and mid-back levels. She reported good response to this treatment. [21] After the accident, he reported additional complaints as follows: Constant subocciptal headaches Leg pain Abdominal pain Pain in his neck and upper trapezius. [22] She diagnosed WAD - aggravation of his pre-existing myofascial triggers 1 and later in the report stated that the aggravation was significant. She was unable to provide a time line for treatment but suggested that he was by then showing decreased severity of headache and improved cervical mobility. [23] At about the same time, by report dated May 10, 2005, Dr. Clark, the Appellant s chiropractor, provided a report indicating that the Appellant by then showed improved range of motion in his cervical spine and reduced muscular tension in his upper thoracic and cervical spines. He reported that, Patient has improved significantly objectively and subjectively with respect to MVA related injuries. 1 WAD is Whiplash Associated Disorder.

6 Page 6 [24] It appeared that the Appellant had recovered from his vehicle accident injuries by late June At that time, Blaine Mackie, the physiotherapist who provided massage therapy treatment, reported that the Appellant s headaches had resolved and that he reported his functional abilities were at his pre-vehicle accident level. He did, however, report difficulties walking but he thought this would improve with time. Mr. Mackie concluded that the Appellant had recovered from his complaints relating to the vehicle accident and that no further treatment was required. [25] In her report dated June 28, 2005, Karen Lucky reported that she was closing her file and thought that the Appellant would continue to progress satisfactorily. She noted that her treatment had focused on myofascial triggers in the Appellant s back and trunk and that treatment goals had been met. She said that he reported decreased frequency of headaches but also that he was having difficulty with walking. She said she was unsure of the exact cause of the latter. [26] Given these reports, SGI concluded that the Appellant s injuries from the vehicle accident had resolved. SGI sent a letter to this effect on June 30, 2005 and set out this conclusion. They asked that he forward any outstanding claims for expenses relating to the accident. [27] The Appellant responded to this letter on August 1, He stated that he had deferred his response until he was assured that he was recovered from the accident but now provided receipts totally $613 for massage therapy treatments. [28] SGI considered these claims and responded by letter dated August 8, In that letter, SGI reiterated that the Appellant had only been approved for ten massage therapy treatments at one-half hour each. By that time, SGI had paid for four of those treatments and, while the Appellant had provided receipts respecting at least seven one-hour treatments, SGI would reimburse him only for the remaining six half-hours that had been approved. As such, SGI provided a cheque reimbursing that amount and returned the receipts that the Appellant had submitted.

7 Page 7 [29] The Appellant appealed SGI s decision; he seeks reimbursement for his actual expenses for massage therapy. [30] In the meantime, the Appellant continued to experience pain in his legs and returned to Karen Lucky for treatment in early November She reported that he said he was by then unable to walker further than four blocks and that pain was triggered in the front, back and sides of his legs and that this had not been a problem prior to the vehicle accident. He had apparently, however, had similar problems with his legs at some time before the accident because she recorded that he reported that previous treatments of massage therapy had resolved lower limb complaints. [31] Ms. Lucky stated that the accident could have caused this injury, given his recollection that he had his feet planted firmly into extension at the time of impact. In other words, he had his legs extended and firmly braced at the time of impact. She recommended a course of six to eight sessions of dry needling to treat the leg pain. [32] Given this new complaint, SGI sought an opinion from its chiropractic consultant, Dr. Mierau. Dr. Mierau noted that the first mention of leg symptoms in reports from care providers was in Dr. Lucky s November 2005 report, some eight months after the accident. He thought these symptoms were not, therefore, related to the accident. [33] Based on this opinion, SGI declined to provide coverage relating to the Appellant s leg symptoms and so advised him by letter dated December 1, The Appellant appealed that decision. [34] Following the Appellant s Application to Appeal, SGI sought an opinion from its medical consultant. Dr. Alport provided his opinion on August 20, [35] After recounting some of the Appellant s prior medical history, Dr. Alport concluded that the Appellant s leg complaints were not related to the vehicle accident for the following reasons: The symptoms were not in the same location as the injuries he originally reported; Symptoms such as these are unlikely to develop months after the accident;

8 Page 8 The symptoms are consistent with peripheral vascular disease; and Injuries normally improve, rather than progress, over time. [36] The information provided above was obtained from the documents filed in this appeal. We also heard oral evidence from the Appellant and from Dr. Alport. [37] The Appellant testified that he had complained of leg pain after the accident; it is shown on his application for benefits as being in the back of his left thigh but, during treatment, it came to involve his whole left leg. He said he had it immediately and continuously after the accident but the pain in his leg was not significant when compared to the exacerbated pain in his shoulders and his headaches. For this reason, his care givers concentrated their treatment on those areas. [38] Indeed, he said, the leg pain was minor at the time of his discharge from treatment for his vehicle accident injuries; he thought it would resolve. However, between August and October 2005, his right leg became affected. 2 He said that now, there is always some level of pain in his legs but not of such degree that it is a problem generally. However, he said, it becomes limiting if he walks more than about six blocks. In that case, he experiences muscle contracture and this causes pain that can continue for a few days. [39] He testified that he has experience with treatment for myofascial pain and has learned that one-hour massage treatment is most effective for his legs. He said he is not sure how effective dry needling is but that its effectiveness is borderline at best. He does not think a physician or physiotherapy is helpful. He did receive chiropractic treatment during the time he received benefits from SGI but said he would not have done so if he was paying for it; we take this to mean that he did not find chiropractic treatment effective. [40] The Appellant is skeptical of medical and other practitioners understanding of myofascial pain syndrome and its treatment and prefers to direct his care himself, based on his experience over many years and research he has undertaken. He is firmly of the view 2 Later in his evidence, the Appellant said that he thought both legs had become involved by the time of Ms. Lucky s May 2005 report. We are not able to resolve this inconsistency but do not find it necessary to do so in light of our conclusions.

9 Page 9 that one-hour massage therapy treatments are the most effective method of treatment. It is this treatment for which he has submitted claims and seeks reimbursement. [41] In general, we found the Appellant s evidence to be credible, although incomplete or uncertain as to events in the past. Most significantly, he was forthright about the nature of the symptoms in his legs and about leg pain prior to and after the accident. [42] Dr. Alport also testified. Dr. Alport is a physician who is contracted to SGI to provide opinions on various medical matters relating to injury claims. He stated, first of all, that in his experience it would be unlikely that the Appellant s legs would be injured in the accident, even if his legs were braced as the Appellant described. He said that in a rear impact accident, the body will move backward because the vehicle moves forward relative to the occupant. This, he said, would remove the force of impact at the feet. [43] As to reports of injury, Dr. Alport noted that the Appellant did not initially show any injury below his knees or in his lower back. Additionally, it is his opinion that the injuries shown on the pain drawing do not correlate to the symptoms that Ms. Lucky reported in November He also noted that the Appellant s chiropractor did not report a leg injury at any time. [44] More important, however, he said, is the fact that both care providers who indicated that the Appellant had difficulty walking upon discharge from treatment mentioned it only in passing and without prescribing treatment. Neither suggested further investigation of the leg pain. He took this to mean that neither saw the leg pain as significant or as relating to the vehicle accident, or both. [45] Dr. Alport said he could not think of a medical condition that was consistent with the Appellant s description of his history and symptoms. When questioned whether it was consistent with myofascial pain syndrome, Dr. Alport said he did not have enough information to answer this but he was inclined to think it was not for two reasons: first, the Appellant said the leg pain involved the soles of his feet and Dr. Alport was not aware of the condition affecting the soles of the feet; second, he said that myofascial pain syndrome would not be expected to move from the leg initially affected into the other leg. He said it

10 Page 10 was possible that the leg pain was related to a prior vascular condition the Appellant experienced or to a prior compression fracture in the Appellant s spine. Dr. Alport urged the Appellant to see appropriate medical specialists perhaps a neurologist and obtain a diagnosis. [46] Dr. Alport s evidence was helpful as he sought to understand and explain the symptoms and treatments that the Appellant described. ONUS OF PROOF [47] With regard to the first issue whether SGI is required to reimburse the Appellant s expenses for massage therapy in excess of one-half hour and in excess of ten treatments - the onus lies on SGI. SGI accepted that the Appellant s back and shoulder injuries were caused in the accident and provided benefits in this regard. As there is no dispute that the questioned invoices relate to treatment for insured injuries, questions as to the extent of coverage to be provided lie with SGI. [48] With regard to the Appellant s claim that an injury to his legs was caused in the vehicle accident, the onus lies on the Appellant. LAW AND ANALYSIS Reimbursement of Expenses for Massage Therapy [49] The cost of massage therapy, and others such as physiotherapy and acupuncture, are reimbursed by SGI in appropriate cases pursuant to section 112 of the Act which, in its relevant part, reads as follows: 112(1) In this section, rehabilitation includes any or all of the following measures, programs and treatments that the insurer considers necessary or advisable to contribute to the rehabilitation of an insured, to lessen the insured s disability caused by the accident and to facilitate the insured s recovery from the accident: (f) any additional prescribed measure, program or treatment. [50] SGI accepts massage therapy as appropriate treatment for many injuries and conditions but has long been of the view that it is not usually rehabilitative as a stand-alone treatment. For this reason, among others, it has developed a policy whereby massage

11 Page 11 therapy will be reimbursed only if offered in parallel with another kind of therapy (i.e. chiropractic, physiotherapy) and then, only for ten, one-half hour treatments. [51] However, the policy recognizes that there will be cases where additional massage therapy will be rehabilitative and appropriate and in such cases, massage therapy will be reimbursed above the limits of the policy. A decision to exceed the policy will be based on the reasons and recommendations of care providers. [52] The Appellant had had considerable experience with myofascial pain syndrome and its treatment prior to the vehicle accident and had learned, he said, that massage therapy was very effective for the treatment of his neck and shoulders, particularly in conjunction with dry needling. However, he had also learned that one-half hour of massage therapy was not helpful and even left his condition worse. He also was aware of the number of treatments he would likely need to achieve recovery and it would likely exceed SGI s policy of ten. [53] This Commission has concluded in previous cases 3 that there is nothing improper in SGI s use of policy or guidelines for the administration of claims, provided they are used as guidelines and not as binding in all cases. That is, a guideline prescribing that generally massage therapy will be insured only in certain circumstances and only for a limited number of treatments is acceptable provided the reasons behind the guideline are sound and provided SGI is prepared to fund treatment beyond the limitations of the guidelines in appropriate cases. [54] The policy in this case includes provision to exceed the guidelines as to the maximum number of treatments insured in appropriate cases. However, the policy does not specifically speak to the duration of those treatments. [55] We think it likely that the part of the policy that allows a PIR to authorize treatment in excess of ten sessions also includes the ability to authorize longer treatments because, arguably, longer sessions are effectively the same thing as additional treatments. That is, one treatment session according to the policy is one-half hour and therefore a request for 3 For example, T.S. v. SGI 2007 SKAIA 069

12 Page 12 approval of six one-hour treatments might be effectively be viewed as a request for approval of twelve massage therapy treatments. [56] In light of our conclusions below, it is not necessary that we reach conclusions in this regard. Instead, we suggest that if our view in paragraph [55] above is incorrect, SGI should review and reconsider its policy for massage therapy treatment. [57] In this case, the policy was applied fairly. The Appellant sought coverage beyond what SGI provided in the usual course. He was clearly advised of this and of what was required to receive additional coverage. He admitted this in his evidence when he said he knew that SGI would only pay for one-half hour massage therapy sessions but hoped they would reconsider. [58] In this circumstance, hope is not enough. SGI advised the Appellant that they would consider funding additional treatments if he went to an assessment or if one of his care providers provided a report setting out the nature of his injury, the effectiveness of massage therapy in his case and a recommendation for massage therapy treatment. The Appellant declined an assessment on the spot and apparently did not pursue a report from a care provider for this purpose. In any event, no such report was filed in the materials before us. [59] We are satisfied that, irrespective of its policy, SGI is not required to reimburse expenses for medical treatment unless it is satisfied that the treatment was rehabilitative as defined in section 112. The Appellant has not provided a recommendation nor has he provided evidence that the treatment is necessary or advisable for his rehabilitation. As such, he has not established that additional or extended massage therapy treatment should be reimbursed by SGI [60] In so concluding, we have not overlooked the Appellant s evidence that he is experienced in the treatment of myofascial pain syndrome and knowledgeable about appropriate treatment for him. He is engaged in self-directed care. [61] This may be so but he is nonetheless receiving care from health professionals and it is reasonable to require and rely on their professional opinions as to the care the Appellant

13 Page 13 directs, even when they disagree. While we have accepted self-directed care as appropriate in certain cases, we have not expected or required SGI to do so in the absence of some evidence of the effectiveness and, if any, consequences of such care. The Appellant has not provided any in this case. [62] For these reasons, SGI s decision letter dated August 8, 2005 declining to reimburse the Appellant for additional massage therapy treatments is confirmed. Causation of Leg Pain: [63] The Appellant argued that he reported pain in his legs shortly after the accident, specifically on his application for benefits that was completed on March 10, On that form, he indicated pain in the back of his left thigh which, he said, evolved to involve all of his left leg and, eventually, all of his right leg as well. He also drew out attention to Ms. Lucky s report indicating that he had complained of leg pain when he saw her on March 15, 2005, just a week after the accident. [64] He argued that the leg pain, therefore, was caused in the accident and that he should receive benefits relating to its treatment. [65] It may be that the Appellant is correct in this regard but he has not satisfied us that it is so. We note that his initial report to Dr. Clark shows no indication of leg pain and no diagnosis involving the Appellant s legs. While Ms. Lucky indicated that the Appellant reported leg pain, she did not provide any diagnosis or treatment for it; it appears she did not view this as a significant complaint at that time. [66] By June 2005, all three of the Appellant s care providers indicated that he had recovered from his vehicle accident injuries. In their reports confirming recovery, both Mr. Mackie and Ms. Lucky noted that he complained of difficulty walking but neither appeared to see this as affecting their conclusion that he had recovered; this may be taken to mean, by implication, that they did not view the difficulty walking as related to his vehicle accident injuries. Indeed, Ms. Lucky specifically stated that she was unsure of the exact cause of this. It appears, therefore, that she didn t at that time relate it to the vehicle accident.

14 Page 14 [67] Certainly none of the Appellant s care providers saw the leg pain as significant, initially or at discharge. The Appellant said that this was because it wasn t; his significant complaint was to his shoulders and upper back and this is where the care providers focused their attention. He said even he thought the leg pain would resolve over time without intervention. It is difficult to reconcile this evidence with the Appellant s testimony that the pain in his leg initially involved only the back of his left thigh but by time of discharge, involved his entire left leg. It seems to us odd that he would not think such an increase in symptoms significant and that he would think that an injury that was becoming worse would spontaneously resolve. Be that as it may, he said, it didn t resolve and instead became much worse. [68] Both Dr. Mierau and Dr. Alport concluded that the leg pain was not caused in the accident because it did not present until long after the accident. Dr. Alport put it quite simply when he said that one would generally expect an injury to improve over time, not get worse. [69] The difficulty for the Appellant and for us is that there is no diagnosis regarding the pain in his legs. It is possible that the pain was caused in the accident and is, as the Appellant believes, an exacerbation of his pre-existing myofascial pain syndrome. It is also possible that Dr. Alport is correct in his view that myofascial pain syndrome is not consistent with what the Appellant reports. [70] We are satisfied that the Appellant has previously suffered pain in his legs that appears the same as what he now describes. Indeed, he stated in his evidence that at least in 2001 or 2002 (and maybe as recently as September 2004) he suffered leg pain that was very similar to if not the same as the pain he describes now. In fact, we understood him to say in evidence that he had received treatment for leg pain in the year prior to the vehicle accident. [71] Dr. Alport provided other possible diagnoses. He said that upon reviewing the Appellant s history, it may be that the current leg pain is a consequence of a vascular condition or it might be a consequence of a compression fracture many years previously.

15 Page 15 [72] Even the Appellant provided an alternative diagnoses. While he now believes that his current leg pain is caused by myofascial pain syndrome, he stated that when he had it years back, he thought it was caused by a nerve pinch but his care providers did not agree. [73] We accept the Appellant s evidence, supported by Ms. Lucky, that he was not suffering leg pain at the time of the accident. That is, while he had experienced very similar leg pain previously, it had resolved by the time of the accident. However, we think it is most likely that his current symptoms are a reoccurrence of the leg pain he suffered previously. We are not able to reach conclusions, however, whether that recurrence was caused in the vehicle accident or even if it might have been precipitated by his vehicle accident injuries or their treatment. [74] Without a diagnosis and treatment plan, the treatment for which the Appellant seeks reimbursement has not been shown to be either necessary or advisable for purposes of section 112 of the Act. [75] On that limited basis, SGI s decision letter dated December 1, 2005 declining benefits in regard to pain in the Appellant s legs is confirmed. [76] However, the issue is not concluded by this decision. If the Appellant is able to obtain a diagnosis for his leg pain and an opinion as to its cause, the issue will be reconsidered by SGI and a further decision issued. CONCLUSION [77] For the reasons given above and in the manner state above, SGI s decisions of August 8, 2005 and December 1, 2005 are both confirmed.

16 Page 16 COSTS [78] As he has not been successful in his appeal, there shall be no order for recovery of his costs and expenses and he shall forfeit his appeal fee. Dated at Regina, Saskatchewan, on January 19, Barbara Tomkins, Chair Beverly Cleveland, Commission Member Jane Lancaster, Q.C., Commission Member