Insured's own testimony makes his case

September 22, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Digby and Aviva

Date of Decision: August 14, 2017
Heard Before: Adjudicator Marshall Schnapp

Mr. (Ryan) Michael Digby was injured in a car accident on December 14, 2011 and sought accident benefits from Aviva but when the parties were unable to resolve their disputes through mediation Mr. Digby applied for arbitration at the FSCO.

The issues in this Hearing are:

1. Is Mr. Digby entitled to a payment of $2,362.00 for a treatment plan for physical therapy, dated August 20, 2014?
2. Is Aviva liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Digby?
3. Is Mr. Digby entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Digby is entitled to a payment of $2,362.00 for a treatment plan for physical therapy, dated August 20, 2014.      
2. Aviva is not liable to pay a special award because it unreasonably delayed payments to Mr. Digby.
3. Mr. Digby is entitled to interest for the overdue payment of benefits.

Mr. Digby was in a car accident on December 14, 2011 when he was driving behind a vehicle.  He changed lanes his vehicle ended up driving underneath a parked truck, which resulted in significant damage to his car.

Mr. Digby provided his evidence in a candid, straightforward and sincere manner.  The Arbitrator found him to be a very credible witness.  He was first questioned about his pre-accident medical history, which is very noteworthy and involves a significant number of issues.  Due to the complications arising from the foot surgeries, Mr. Digby went on disability benefits, which he is still receiving.  He has weight issues; at one time he weighed 370 pounds, and at present with dieting and exercises he weighs 270 pounds.  Other pre-existing medical conditions include diabetes and depression.

Mr. Digby testified that after the surgeries, his pain was concentrated on his feet, but moved up to his knees and hips.  He sees a pain specialist who prescribes medication.  Mr. Digby also said his depression resulted from his medical condition due to the surgeries on both of his feet.  He went from being strong and physically active to someone able to do little physically.  He also had a drug addiction prior to the accident and is enrolled in a drug program.  Mr. Digby also testified that he was in a previous motor vehicle accident in the year 2000 but cannot recall the exact date.  His neck and left shoulder were treated after that accident and he stopped treatment prior to the 2011 accident.

Mr. Digby recalls that prior to the 2011 accident, he “was functioning for me”, getting to the gym a few times per week and helping his mother.  He testified that his functioning level was not the same as a “normal person”.  Mr. Digby testified that his pain and injuries lasted for years and at times things would die down but he still had injuries.

He testified after the impact from the accident on December 14, 2011, he knew he had been hurt and that his neck hurt most.  He was taken by ambulance on a stretcher to Credit Valley Hospital, where he thinks he was told he suffered a concussion.  He recalls after the accident his concentration was off, which was never good to begin with, but was made much worse.  As well, he found he had a short temper for a few months after the accident.  In addition, he experienced issues with his back, his neck, and he could hardly move one of his shoulders.  He testified that prior to the accident, he struggled with depression and he felt the accident made everything worse.  As well, he testified that due to his neck pain and it being out of whack, he had difficulty sleeping, which meant he could not function.

Mr. Digby testified that he started treatment a few weeks after the accident but when he stopped treatment, things started to go backwards, and while he was still going to the gym, things were getting worse and worse, including his shoulder movement and neck pain – the neck pain resulted in him not being able to sleep.  The deterioration of his condition resulted in irritability and depression.

Mr. Digby testified that he used his own funds to pay for physiotherapy and massage treatment after the treatment plan was denied, providing copies of invoices documenting these treatments and payment. Mr. Digby explained that things were so bad for him that he decided to use his own savings to obtain treatment as he was having suicidal thoughts.  He could only afford one modality so he chose massage as it was more beneficial to him than physiotherapy.  This was done in alternating sessions because he could only afford 30-minute treatments.  He testified that he went at least three times a month and sometimes twice a week. Mr. Digby testified that receiving massage treatment helps with sleep, allows him to workout, provides stress relief, and helps with posture and walking.  The treatments are painful but afterwards provide two weeks of mobility.  Mr. Digby also testified that the treatment he is currently receiving is the same type of treatment he was receiving when the benefits were terminated.  Mr. Digby is not sure if he requires treatment for the rest of his life but he has made a lot of improvements with the treatment and believes more improvements can be made.

During cross-examination, Mr. Digby confirmed that he was taking “almost every kind” of medication prior to the 2011 accident, including Percocet, Oxycontin, and now Hydrocontin, as well as being in a Methadone treatment program.  He was also taking medication for depression and sleeping.  There has been no change in his medications after the 2011 accident as he was already on the highest dosages possible.

Mr. Digby testified that he was receiving ODSP Benefits prior to the 2011 accident due to a multitude of reasons including: ongoing issues with his feet that resulted in him not being able to walk long distances, previous head injuries, and learning disabilities. 

When questioned if he attended for treatment at Physiotherapy 2000 Clinic prior to the 2011 accident, Mr. Digby replied – “possibly yes”, but could not recall the last time he attended there prior to the 2011 motor vehicle accident.  He also noted that he received a lot of treatment after the 2000 motor vehicle accident.

Mr. Digby’s massage therapist provided testimony.  He came across as straight forward and knowledgeable and was found to be a credible witness.  He has been a registered massage therapist for 23 years and when he first saw Mr. Digby, his complaints were of pain and sickness in the mornings due to lack of sleep.  He recalls Mr. Digby had pain on range of motion and on function – the pain was in his neck, shoulders, and thoracic spine.  Mr. Y performed very active treatment on Mr. Digby – Active Release Technique (ART).  He tried to be as active as possible, using deep tissue work to actively facilitate the muscles to release.  According to Mr. Y, this is not something Mr. Digby can do at home on his own.  He recalls the above was done under a treatment plan that permitted 12 sessions, once per week. The treatment plan in dispute was to assist with Mr. Digby’s shoulder pain and joint dysfunction.  The goals of the treatment plan were to increase strength and range of motion and it was noted to reduce scar adhesions.  Upon further questioning, he advised that pain relief was an important goal of the treatment.

The plan called for 20 treatment sessions of massage as Mr. Digby seemed to be responding to massage treatment more than physiotherapy treatment. Mr. Digby had been improving but had not fully recovered when the treatment plan was denied.

Mr. Y, the massage therapist, was then questioned about Aviva’s medical report which found the treatment plan in dispute was not reasonable and necessary.  The witness testified that he had reviewed excerpts of the report and disagreed with the conclusion that Mr. Digby had reached his maximum therapeutic benefit from the treatment.  Mr. Y agreed that normally this would be the case but it was not the case for Mr. Digby.  It was Mr. Y’s objective findings that Mr. Digby had not reached maximum therapeutic benefit from the treatment.  He also believed that the treatment he provided was active and never passive, as passive treatment would not have assisted Mr. Digby.  Mr. Y believed that after the 20 treatments, it was possible for a favourable outcome and Mr. Digby would be able to be on his own.

Mr. Y was then questioned about the treatment he has provided Mr. Digby since the treatment plan in dispute was denied.  He recalls it was approximately a five- to six-month period when Mr. Digby did not receive treatment.  When he saw Mr. Digby again, he presented with “upper cross” syndrome.  His posture is still a bit like that but it is getting better.  In Mr. Y’s view, Mr. Digby had regressed since the last time he saw him because he was not receiving treatment.  He was not attending at the gym and exercising so these were also factors.  He continues to receive treatment from May 2016 to present.  Mr. Y does not believe that Mr. Digby has grown dependent on his treatment, as mentioned in Aviva’s medical assessment.  Mr. Y notes that Mr. Digby receives less frequent treatments at this time than he did before.  At first he saw him once per week, then once every two or three weeks and now once per month – it varies depending on his needs.

The Arbitrator asked Mr. Y about his clinical notes and records.  He testified that he did not have access to them and while they had been requested, Physiotherapy 2000 did not provide them.

Mr. Digby’s family doctor also testified on his behalf.  She has been practicing family medicine since 2002.  Mr. Digby has been her patient since 2002 but in 2005, she became more involved with his care.  She described his noteworthy medical history to include the following: type 2 diabetes, hypertension, fatty liver, sleep apnea, urinary issues and chronic pain.  She explained his chronic pain condition predominantly stems from the heel/feet surgeries Mr. Digby had years ago.  She also noted he has mental health issues, including depression, for which he has been treated with anti-depressant medication.

The doctor testified that according to a review of her notes, dated January 19, 2012, January 16, 2015, and August 5, 2015, Mr. Digby mentioned he was receiving physiotherapy due to the motor vehicle accident.  She also explained that when she saw Mr. Digby on February 17, 2016, he made reference to his rehabilitation treatment including physical therapy and massage to deal with his pain.  She went on to say that she advised Mr. Digby that physical therapy would be more helpful.  The doctor also testified that she would recommend Mr. Digby continue treatment if he reports decreased pain and increased functionality from treatments.  When asked if chronic pain would make the body more susceptible, Dr. Z replied “to some extent, makes recovery harder, you don’t go back to the base line, and it usually takes longer to treat the re-injury.”

The doctor believes she was not in a position to decide if his condition was aggravated by the motor vehicle accident or if it was a flare up.  She explained that his underlining musculoskeletal pain mainly refers to his pain in his heels, ankles and toes, although there was another note in her records that mentioned generalized musculoskeletal pain.

Mr. Digby’s physiotherapist also provided testimony during the Hearing.  He has been a physiotherapist for 33 years.  He has been the manager at Physiotherapy 2000 for the past year, and for the previous 32 years, he was the owner of Physiotherapy 2000.  Mr. W was aware Mr. Digby was involved in a motor vehicle accident in 2011.  Mr. W noted that Mr. Digby was not a normal patient and when he took a break from treatment, he would come back stiff and weak.  He also did not agree with Aviva’s assessment when it found Mr. Digby had reached his maximum medical recovery because each time he saw Mr. Digby, he had regressed – got stiffer and weaker – and it was not like he was plateauing.  The goal of continued treatment was to maintain, get him active and moving, and to improve his function to allow him a more regular lifestyle.  Mr. W explained that for someone who has pre-existing injuries, recovery is impacted and will take longer.  He did not see any dependencies developing as noted in Aviva’s assessment.  He recalls Mr. Digby went to the gym on his own and was trying to become independent but it wasn’t working. According to Mr. W, the purpose of the disputed treatment plan was to avoid gaps and keep him functioning. 

Mr. P appeared as an expert witness for Aviva.  He conducted a physiotherapy assessment on Mr. Digby.  His report was used by Aviva in support of the denial of the treatment plan at issue.  When Mr. P questioned Mr. Digby about his condition, Mr. Digby complained of pain in his neck and left shoulder and constant pain in his lower back.  During his examination, Mr. P noted superficial tenderness but found no objective signs or clinical evidence of biomechanical dysfunction in the areas assessed.  On page 7 of his report, the following was written:

Typical soft injuries of this nature are expected to have a positive prognosis, with anticipated recovery within 8-12 weeks post-injury.  Standard clinical guidelines would not support ongoing therapy… He currently continues to suffer from subjective pain related to the initial injuries.  However, after extensive formal conservative therapy over the course of almost 3 years, it is not expected that further significant clinical gains will occur.  Mr. Digby has achieved maximum therapeutic benefit…from a physiotherapy perspective.

Mr. P further noted that continued physiotherapy treatment may reinforce a maladaptive cycle of pain management or create disincentives for Mr. Digby to approach his pain management in the expected active and functional manner.  As well, Mr. P testified if Mr. Digby had been diagnosed with chronic pain, he would not have recommended the treatment plan.

According to Mr. Digby, the issue is whether or not the treatment plan at issue was reasonable and necessary in light of Mr. Digby’s acknowledged injuries and significant pre-accident medical conditions.  The evidence provided by Mr. Digby’s treating physiotherapist and massage therapist show the treatment plan was related specifically to his 2011 motor vehicle accident impairments.  The goals noted in the treatment plan and elaborated upon by Mr. Digby and his providers were to increase function and reduce pain.  Mr. Digby, his mother and his two treatment providers gave evidence that his treatment helped with his function, mobility, mood, focus, depression, stiffness and allowed him to socialize.

As well, based on the testimony from Mr. Digby, his mother and his massage therapist, there are approximately two years of post-denial evidence that demonstrates that the massage therapy aspect of the plan was beneficial to Mr. Digby, a therapy that he paid for on his own. Mr. Digby takes the position that the findings made by Mr. P are generalizations and are not applicable to Mr. Digby given his pre-accident condition, which included chronic pain, and given the benefits he experienced from resuming treatment on his own after treatment was terminated.

With respect to the claim for a special award, after the treatment plan was denied, Mr. Digby submitted supporting letters from his treating massage therapist as well as some updated records. However, Aviva did not respond nor did it carry out its duty to reassess its decision upon receipt of further information.  Mr. Digby is taking the position that this Hearing was unnecessary as all he wanted was appropriate treatment.

Aviva agrees that the evidence shows Mr. Digby had a long pre-accident history of disability, chronic pain and severe functional limitations and as noted by his family doctor, Mr. Digby’s condition affected his entire body.  However, Aviva submits that neither Mr. Digby’s family doctor nor his pain specialist provided evidence or a report that his condition worsened because of the 2011 accident.

Aviva also notes that its expert witness was more prepared and provided more accurate testimony than Mr. Digby’s treating physiotherapist and massage therapist.  As well, Aviva noted inconsistencies in Mr. Digby’s testimony, specifically that he did not recall receiving treatment from Physiotherapy 2000 prior to the 2011 accident for his ankles and that his chronic pain prior to the 2011 accident mainly affected his feet, ankles and legs, however his family doctor’s testimony showed it affected his entire body.

In response to the claim for a special award, Aviva takes the position firstly that as the treatment plan was not reasonable and necessary, it did not withhold payment unreasonably. 

The Arbitrator reviewed the evidence and the law and determined that the treatment plan in dispute was reasonable and necessary.  In coming to this decision, the Arbitrator relied heavily on the testimony provided by Mr. Digby and his mother.  Both came across as very credible witnesses.  Both were able to demonstrate how the treatment being provided to Mr. Digby was required after the accident and how it continued to be necessary when the treatment plan was denied.  Their evidence was very consistent and showed how Mr. Digby’s level of functioning and mental health was impacted by the treatment.

The Arbitrator found the evidence demonstrated how Mr. Digby’s condition deteriorated rapidly after he stopped treatment in 2014, after the denial, and then improved again when he was receiving treatment for which he personally paid.  The Arbitrator noted that the evidence provided by both of his treating practitioners regarding his response to treatment and the negative effects when treatment ceased was consistent with Mr. Digby’s and Ms. Digby’s evidence.

From the evidence, the Arbitrator did not find this an appropriate case to order a special award as I do not find Aviva acted in an imprudent, stubborn, and inflexible manner.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.