Neutral Citation: 1994 ONICDRG 131
File No. A-006496
ONTARIO INSURANCE COMMISSION
BETWEEN:
JOE THEUMA SR.
Applicant
and
HALIFAX INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Joe Theuma Sr., was injured in a motor vehicle accident on April 7, 1991. He applied for and received statutory accident benefits, including weekly income benefits and supplementary medical and rehabilitation benefits, from the Insurer, Halifax Insurance Company, payable under Ontario Regulation 6721. The Insurer disputes the Applicant's entitlement to certain benefits claimed. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O 1990, c.I.8.
The issues in this hearing are:
Does subsection 16(2) of the Schedule preclude Mr. Theuma from receiving weekly income benefits under section 12 for the week of August 30-September 6, 1993?
What is the proper amount of benefits payable to Mr. Theuma for income lost while he attended physiotherapy after June 14, 1992?
Is Mr. Theuma entitled to benefits for chiropractic treatment, under paragraph 6(1)(a) of the Schedule?
Mr. Theuma also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
The parties agreed that if subsection 16(2) does not preclude Mr. Theuma from claiming weekly benefits for the week of August 30-September 6, 1993, the hearing will be reconvened to determine whether he was substantially unable to perform the essential tasks of his pre-accident job during that period.
Result:
Mr. Theuma is not entitled to weekly income benefits for the week of August 30-September 6, 1993.
The amounts claimed by Mr. Theuma for income lost while he attended physiotherapy are reasonable, with the exception of the claim made for the week of August 30-September 6, 1993. The Insurer is not entitled to repayment of these benefits.
Mr. Theuma is not entitled to benefits for chiropractic treatment.
Mr. Theuma is entitled to his expenses incurred in the proceeding.
Hearing:
The hearing was held in North York, Ontario, on April 13, 1994, before me, Nancy Makepeace, Arbitrator.
Present at the hearing were:
Applicant:
Joe Theuma Sr.
Insurer's
Marina Stefanovic
Representative:
Barrister and Solicitor
Insurer's
Vinti Sansanwal
Officer:
Claims Manager
Mr. Theuma was assisted at the hearing by his son, Michael Theuma.
Mr. Theuma and Mr. Sansanwal testified at the hearing.
Exhibits entered into evidence and other documents on the record are set out in an appendix to the decision.
Evidence and Findings:
Mr. Theuma has worked as a maintenance mechanic at Vulcan Packaging for 23 years. He testified that he does whatever he is asked to do, and that his job involves lifting heavy motors, gearboxes, and other heavy items.
He contends that as a result of the accident on April 7, 1991, he suffered injuries to his left shoulder, neck and back. His main problem since the accident has been with lifting.
I was not asked to determine Mr. Theuma's entitlement to weekly income benefits, except for the period of August 30-September 6, 1993.
1. Entitlement to Weekly Benefits for the Week of August 30-September 6, 1993:
The parties agreed that following the accident of April 7, 1991, Mr. Theuma returned to his pre-accident job, full-time, on June 14, 1992. The parties also agreed that he has been working full-time since that date, with the exception of the week of May 10-18, 1993, and the week of August 30-September 6, 1993.
There was some confusion about the actual dates at issue. Mr. Theuma testified that he could not remember what days of the week he had been away. The September 27, 1993 report of his family doctor, Dr. H. Manning (included in Exhibit 3) states that Mr. Theuma visited him on August 30 complaining of worsening shoulder pain, and that Dr. Manning advised him to rest from August 30 to September 6, and return to work on September 7. After some discussion, Mr. Theuma agreed with the suggestion of Insurer's counsel that he was off work between Monday, August 30 and Friday, September 5, 1993.
Subsections 16(1) and (2) of the Schedule provide as follows:
16.--(1) Subject to section 15 and subsection (3), a person receiving a benefit under this Part may attend school or accept, or return to, work at any time during the first two years following the accident for any period of time without affecting his or her benefits under this Part if, as a result of the accident, he or she is unable to continue at school or in the occupation or employment.
(2) Subject to section 15 and subsection (3), after the two-year period referred to in subsection (1), a person receiving a benefit under this Part may attend school or accept, or return to, an occupation or employment for periods of up to ninety days without affecting his or her benefits under this Part if he or she, as a result of the injury, is unable to continue at school or in the occupation or employment.
On behalf of the Insurer, Ms. Stefanovic submitted that subsection 16(2) precludes Mr. Theuma from receiving weekly benefits for the week of August 30-September 6, 1993. She submitted that this provision applies to Mr. Theuma because by the first week of September he had returned to his regular full-time work for more than 90 days after the two-year anniversary of the accident, April 7, 1993. She relied on the arbitration decision, Earl Joseph Russell and Co-operators General Insurance Company, December 20, 1993, OIC File No. A-005417, in which Arbitrator David Draper discussed subsection 16(2).
Mr. Theuma testified that although he had returned to the same job he had held before the accident, he was not able to put 100% into it, and other employees helped him with the heavy lifting, which he could no longer do. Mr. Theuma made no submissions about how I should interpret subsection 16(2).
I find that Mr. Theuma returned to work within the meaning of subsection 16(2), although he may have had ongoing pain and some ongoing disability. I heard no evidence to suggest that he was substantially unable to perform the essential tasks of his job after he returned to work.
In the Russell decision, Arbitrator Draper made the following comments about the purpose of section 16:
According to section 12 of the No-Fault Benefits Schedule, weekly income benefits are to be paid "during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment". The purpose of section 16 is to encourage people receiving weekly benefits to attempt to return to work. Without section 16, it could be argued that eligibility is lost as soon as the person is able to return to his or her pre-accident occupation or employment. The effect of section 16, therefore, is to extend eligibility during certain periods of work.
The Applicant in that case argued that subsection 16(2) does not apply to an applicant who returns to work before the two-year anniversary and receives no further weekly benefits after the two-year anniversary. Arbitrator Draper made the following comments about the Applicant's submission:
Mr. Russell's submission is that section 16(1) applies to him because he returned to work before the two-year anniversary of the accident and, therefore, he is able to continue working "for any period of time without affecting his or her benefits under this Part". Further, he submits that section 16(2) does not apply to him, and therefore does not limit his eligibility, because he did not receive a benefit or return to work after the two-year anniversary.
In my opinion, Mr. Russell's interpretation is a possible reading of words of the section. I conclude, however, that reading section 16(1) and (2) together, and within the context of the No-Fault Benefits Schedule, the better interpretation is that the protection of section 16 is lost if the person is able to work for more than ninety days after the two-year anniversary. Section 16(1) extends eligibility during any period worked up to the two-year anniversary of the accident. Section 16(2) extends eligibility "after the two-year period referred to in subsection (1)", but only for periods of up to ninety days.
I heard no submissions in this case which would persuade me to depart from the interpretation of subsection 16(2) adopted by Arbitrator Draper. I find that subsection 16(2) precludes Mr. Theuma from claiming weekly benefits for the week of August 30-September 6, 1993.
2. Lost Time Claimed for Physiotherapy Attendances:
In a related mediation, the Insurer agreed to pay Mr. Theuma for wages lost while he attended physiotherapy treatment. The Insurer appears to have paid these benefits under paragraphs 6(1)(a) and (f) of the Schedule. The Insurer paid Mr. Theuma $13.52 per hour (80% of his gross hourly wage) for hours missed from work while he attended physiotherapy.
Ms. Stefanovic introduced into evidence a number of physiotherapy attendance sheets, which were signed by Mr. Theuma's employer and filed with the Insurer, verifying the hours missed (Exhibit 2). The sheets cover the period between October 27, 1992 and November 1, 1993. There is one sheet for each week of physiotherapy. On each sheet is a handwritten note recording the dates and numbers of hours missed. Mr. Theuma claimed between three and four and one-half hours for each physiotherapy attendance, for a rough average of four hours per attendance. He went to physiotherapy two or three times a week. Mr. Theuma confirmed that he had filled in the details about the hours missed on the attendance sheets and that he had attended physiotherapy on those dates.
The Insurer contends that it was unreasonable for Mr. Theuma to claim four hours to attend physiotherapy. Ms. Stefanovic submitted that some lesser amount of time would be reasonable, and the Insurer seeks repayment of benefits overpaid.
Mr. Theuma testified that he had physiotherapy at three places since the accident. He attended the Kensington Medical Clinic in the evening, so he did not lose any time from work. However, he attended physiotherapy programs at Medex and at Peel Memorial Hospital during the day. The program at Medex was one recommended by the Insurer, and the Insurer seemed to have less concern about the time Mr. Theuma took to attend these appointments.
Mr. Theuma testified that he asked his family doctor for a referral to Peel Hospital because the treatments given at Kensington were not covered by OHIP. His physiotherapy sessions at the hospital started at 8:30 a.m., and lasted between 45 minutes and an hour, depending on the treatment given.
Mr. Theuma testified that he starts work at 7:00 a.m. He lives in Brampton, and works on Rexdale Boulevard. It takes him about 15 minutes to drive to work, and about 45 minutes to drive between work and the hospital. Because his physiotherapy starts at 8:30 a.m., he feels it would not be worthwhile to go to work before going to physiotherapy. After physiotherapy, he drives back home, which takes about 15 minutes, then goes to work, arriving at work around 10:45 a.m.; if he arrives at 10:45 a.m., the company does not begin paying him until 11:00 a.m. He testified that he goes home in order to change his clothes, and perhaps have toast and a coffee. He estimated that it takes him about 45 minutes to get from the hospital to work.
The Insurer has agreed to pay for Mr. Theuma's travel time, as well as the hours he was actually in physiotherapy sessions. However, the Insurer contends that Mr. Theuma should not go home before going to work after physiotherapy. The Insurer also suggested that Mr. Theuma could have arranged evening or lunchtime sessions. Mr. Theuma testified that he tried to arrange evening sessions at Peel, but was told there was a waiting list of over a year. He was told that the 8:30 a.m. appointment was the only daytime appointment available. Mr. Theuma testified that he waited a month and a half before his first appointment.
I heard no evidence to support the Insurer's suggestion that Mr. Theuma could have attended physiotherapy at Peel Hospital in the evening or at lunchtime. I find it plausible that there would be a longer waiting list for evening physiotherapy sessions than for daytime appointments in an OHIP-covered facility. I also find it plausible that lunchtime appointments might be unavailable. I heard no evidence about the comparative cost of private physiotherapy treatments. Nor was I presented with any evidence that the Insurer had ever advised Mr. Theuma that it would pay only for a certain number of hours for each physiotherapy attendance.
In my view, an insured person is not required to exhaust all possibilities, including delaying treatment for months, in order to ensure that necessary treatments are obtained at the lowest possible cost to an insurer. On the other hand, section 6 of the Schedule requires the Insurer to pay only for those reasonable expenses which are necessary as a result of the accident.
In the arbitration decision, Surbir Singh Gaba and Allstate Insurance Company, August 21, 1992, OIC File No. A-000624, Arbitrator K. Julaine Palmer made the following comments, with which I agree:
The question of who has the onus of proof of reasonableness was not directly addressed by either counsel. It would appear to be implicit that this task is required to be performed by the Applicant. It is my view that once a prima facie case has been made for the reasonableness of the account, the secondary onus shifts to the Insurer to disprove the reasonableness. It is not my sense of the Schedule that the legislature sought to impose a heavy accounting onus on injured persons.
Considering all the circumstances, I find that the time claimed by Mr. Theuma for physiotherapy attendance was reasonable, consistent with the parties' agreement at mediation, and in keeping with the remedial character of the Schedule, which is intended to encourage early rehabilitation.
A physiotherapy attendance sheet was completed for the week of August 30-September 6, 1993. Three attendances (August 30, August 31, and September 2), each involving four hours of missed work, were claimed and paid for. The Insurer seeks repayment of these benefits because Mr. Theuma was not working during this week.
Mr. Theuma testified that he claimed for that week because he was still going to therapy. He testified that Brenda Taylor, the Insurer's Claims Representative, told him that the Insurer "would not pay him for the whole week, but would pay him for his lost time". Mr. Vinti Sansanwal, the Insurer's Claims Manager, testified that he supervised Ms. Taylor, who had carriage of the file. Mr. Sansanwal testified that the Insurer paid for this lost time on the basis of the employer's submission, signed by the personnel office, and only found out that Mr. Theuma had not been working after the payment was made. I note that the physiotherapy attendance sheet introduced into evidence for that week is the only sheet that has not been signed by a representative of the employer.
I find that Mr. Theuma was not entitled to lost time payments for the week of August 30-September 6, 1993.
Subsection 27(1) of the Schedule provides that, "a person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud." I am not persuaded that these benefits were paid to Mr. Theuma as a result of any misconduct on his part. I accept that he made the claim without entirely understanding his entitlement to various categories of benefits. Further, in my view, he can be presumed to have relied on the funds. Given these considerations, there will be no repayment order.
3. Chiropractic Treatment:
At the pre-hearing conference, Mr. Theuma agreed to see Dr. R. James Skipper, Orthopaedic Surgeon, with regard to the need for chiropractic and physiotherapy treatments. Dr. Skipper has subsequently seen Mr. Theuma, and his reports dated January 19, 1994 and March 30, 1994 were entered into evidence (Exhibit 1, Tabs 21 and 22). On the basis of Dr. Skipper's reports, the Insurer refuses to pay for chiropractic treatment. At the outset of the hearing, the parties agreed that I should determine this issue, although it was not dealt with in mediation.
Mr. Theuma wants chiropractic treatment. He testified that Dr. Skipper told him that he would recommend to Dr. Manning that Mr. Theuma be referred to a chiropractor. However, Dr. Skipper's reports do not recommend chiropractic treatment. In his first report to Dr. Manning, Dr. Skipper stated that Mr. Theuma asked about chiropractic treatment, and wrote, "I will leave that for you and him to set up if you feel it is indicated". In his second report, to Insurer's counsel, Dr. Skipper stated, based on his one visit with Mr. Theuma, "I see no reason why he requires chiropractic care".
Mr. Theuma introduced into evidence (Exhibit 3), a note from Dr. Patrick Keogh, Chiropractor, dated April 12, 1994. It says that Mr. Theuma was referred by his family doctor for chiropractic treatment from February 7 to March 7, 1994, for injuries sustained in the accident. Dr. Keogh states "the patient feels he was starting to feel relief at the time the insurance company said they would not pay for continued treatment".
None of the medical reports filed by the Insurer or Mr. Theuma recommend chiropractic treatment.
In order to be entitled to chiropractic treatment under paragraph 6(1)(a) of the Schedule, the Applicant must prove, on a balance of probabilities, that he needs chiropractic treatment as a result of the accident. Based on the medical evidence presented to me at this time, I am not satisfied that Mr. Theuma is entitled to chiropractic benefits. This does not preclude Mr. Theuma from claiming chiropractic or other medical or rehabilitation benefits from the Insurer in the future, based on further supporting medical documentation.
Expenses:
Mr. Theuma claims his expenses incurred in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:
The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
The prescribed expenses and maximum amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses.
I find this an appropriate case in which to exercise my discretion to award Mr. Theuma his expenses, which will likely be minimal because he represented himself. He was partially successful in his claim, and the issue raised by subsection 16(2) is one of statutory interpretation.
I remain seized of the issue of expenses. If the parties are unable to agree on the amount payable, either party may bring the matter before me for an assessment.
Order:
Mr. Theuma is not entitled to weekly income benefits for the week of August 30-September 6, 1993.
The amounts claimed by Mr. Theuma for income lost while he attended physiotherapy are reasonable, with the exception of the claim made for the week of August 30-September 6, 1993. The Insurer is not entitled to repayment of benefits paid for that period.
Mr. Theuma is not entitled to benefits for chiropractic treatment.
Mr. Theuma is entitled to his expenses incurred in the proceeding.
Nancy Makepeace
Arbitrator
Date
APPENDIX - THE RECORD
Exhibits:
Exhibit 1
Medical Brief of the Halifax Insurance Company
Exhibit 2
Physiotherapy attendance sheets, with summaries prepared by Mr. Sansanwal
Exhibit 3
Medical Documents of Joe Theuma, Sr.
Further Documents Before the Arbitrator:
Report of Mediator, dated September 13, 1993
Application for Appointment of an Arbitrator, dated September 20, 1993
Response by Insurer, dated November 15, 1993
Reply by Insured Person, received December 6, 1993
Pre-hearing letter, dated January 14, 1994
Decisions Referred To:
Surbir Singh Gaba and Allstate Insurance Company, August 21, 1992, OIC File No. A-000624
Earl Joseph Russell and Co-operators General Insurance Company, December 20, 1993, OIC File No. A-005417