Neutral Citation: 1995 ONICDRG 118
File No.: A-006279
ONTARIO INSURANCE COMMISSION
BETWEEN:
ALEXANDER A. BOATENG
Applicant
and
CUMIS GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Alexander A. Boateng, was injured in a motor vehicle accident on December 22, 1992. He applied for and received statutory accident benefits from the CUMIS General Insurance Company ("CUMIS"), payable under Ontario Regulation 6721. Mr. Boateng seeks weekly income benefits from January 5, 1993 until May 30, 1993, and physiotherapy expenses. 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, as amended.
The issues in this hearing are:
Is Mr. Boateng entitled to weekly income benefits for any period from January 5, 1993 to May 30, 1993?
Is Mr. Boateng entitled to payment for physiotherapy expenses?
Mr. Boateng also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Boateng is not entitled to weekly income benefits.
Mr. Boateng is not entitled to payment for physiotherapy expenses.
Mr. Boateng is not entitled to his expenses of the arbitration.
CUMIS is entitled to repayment of the $1,000 assessment fee.
Hearing:
The hearing was held in St. Catharines, Ontario, on March 15 and 31, 1995, before me, Fred Sampliner, arbitrator.
Present at the Hearing:
Applicant:
Alexander A. Boateng
Insurer's Representative:
Thomas Hanrahan
Barrister and Solicitor
Witnesses:
Alexander A. Boateng
Exhibits: The parties filed nine exhibits.
Evidence and Findings:
Alexander A. Boateng is a 38 year old physiotherapist, whose car was rear-ended on the evening of December 22, 1992. He was jolted back and forth by the impact, and may have hit his chest on the steering wheel. When Mr. Boateng visited the hospital emergency room that night, he complained of pain in his left shoulder, neck, chest and right knee. At the hospital, x-rays were taken, and he was examined and released that evening. Shortly after the accident, Mr. Boateng's family physician diagnosed his injury as a thoracic and cervical myofascial and trapezius muscle strain. He was referred to Dr. Ghouse, a specialist in physical and rehabilitative medicine, and advised to exercise daily.
At the time of the December 22, 1992 accident, Mr. Boateng was in the process of setting up a new physiotherapy clinic in St. Catharines called the Ontario Sports and Acute Injury Centre (OSAIC). Upon the opening of the clinic at the beginning of January 1993, Mr. Boateng was employed as the clinic director and sole full-time physiotherapist. Mr. Boateng was also a major owner. On January 5, 1993, Mr. Boateng enrolled as one of the first new patients at his clinic, in order to receive treatment for his accident injuries. He assessed his own treatment needs over the next six months, determined the number of his visits and duration of the treatments, and for the most part conducted his own exercises, hydrotherapy and manipulations. Between January 5, 1993 and June 8, 1993, Mr. Boateng generated $6,965 in physiotherapy charges, which he billed to CUMIS.
Along with the claim for physiotherapy expenses, Mr. Boateng also claims weekly income benefits from the week following the accident until May 30, 1993. Mr. Boateng admitted that during this period he worked at the clinic and indeed conducted his own treatment. CUMIS was sceptical of Mr. Boateng's claims at an early stage.
Claims for Supplementary Medical and Rehabilitation Expenses:
Mr. Boateng testified that he treated himself on his doctor's recommendation. However, Mr. Boateng stated that he alone determined the type of exercises that he did, the frequency of his treatments, and he conducted most of the body manipulations and hydrotherapy on himself. Mr. Boateng acknowledged that no one but himself set treatment, monitored his attendance or assessed the results of his treatment..
Section 6 of the Schedule and the decision of Senior Arbitrator Rotter in Richard Mark Plows and Jevco Insurance Company, January 16, 1992, OIC File Nos. A-000175 and A-000588, set the general criteria for an insured person to establish entitlement to medical and rehabilitation expenses, including physiotherapy. Basically, it must be a reasonable expense resulting from the accident, required because of the accident, and qualified as necessary by a medical practitioner's signed statement.
Even at first glance it seems unorthodox for a health practitioner to engage in self-treatment without outside scrutiny. Quite logically, no one treating him or herself should expect an insurer to accept his or her objectivity or professional judgement, especially in a situation where there is potential for financial gain. In my opinion, supplementary medical care and rehabilitation claims of health care practitioners who treat themselves are inherently suspect, unless the insurer consents to the treatment.
In this case, Dr. Ghouse and Dr. Wooder recommended physiotherapy, although they did not specify the length or course of treatment. Mr. Boateng himself determined these matters, and he testified about his progress through the exercises and hydrotherapy regimes he prescribed for himself. According to his own documentary evidence, Mr. Boateng had 19 physiotherapy sessions during January 1993, one on nearly every day that his clinic was open that month. For the months from February through May 1993, he billed for anywhere from 20 to 23 treatments. In June the records show eight treatments.
No one verified these visits or Mr. Boateng's treatment. The patient/claimant monitored his own attendance and performed 95 per cent of his exercises, hydrotherapy and manipulations without supervision or participation from any other health care professional. Considering Mr. Boateng's financial stake in this new enterprise and the lack of independent supervision, I am not prepared to accept the reliability of his evidence, opinion and treatment decisions in his own case.
Evidence from an orthopaedic specialist causes me to question the need for physiotherapy. Dr. Ghouse examined Mr. Boateng at the request of his family doctor. His first medical report, on August 10, 1993, essentially restates Mr. Boateng's neck and back complaints. Despite the doctor's notations of muscle tenderness and spasms, he found normal cervical spine and shoulder movement.
Shortly before the examination by Dr. Ghouse, Dr. Gold examined Mr. Boateng at CUMIS' request. Dr. Gold noted guarded movement in Mr. Boateng's neck and shoulder movements, but full cervical spine and shoulder range of motion when he was not guarding his actions. Dr. Gold states that Mr. Boateng told him the physiotherapy was helping him at first, but that his neck and upper back pain had increased since the accident. Dr. Gold suggested that the physiotherapy should be discontinued to allow any cervical trauma to heal. Mr. Boateng disagreed with the recommendation of Dr. Gold.
X-rays were interpreted by both of these physicians. Dr. Ghouse saw some mild degenerative changes in the cervical spine, but felt they were insignificant to the injury and to Mr. Boateng's complaints. On the other hand, Dr. Gold saw some wedging in two cervical vertebrae, which he speculated might be attributable to cervical trauma. However, Dr. Gold's recommendation for a bone scan and neurological tests to verify the indications on the x-rays and determine the cause of the cervical problem were never followed. Without corroborating tests and supporting medical opinion to identify the cause of the cervical problem, the x-rays alone are insufficient to support a finding that the motor vehicle accident caused a cervical fracture. I accept Dr. Gold's finding that Mr. Boateng suffered a mild soft tissue injury.
In sum, Mr. Boateng may have suffered some modest discomfort from whiplash, but his self-evaluation and self-treatment at his own clinic cannot be relied upon. He cannot be treated as an objective expert or professional in a case where he diagnoses, treats and prognosticates about his own condition. This is even more so, when he owns, works at, directs and profits from the clinic where he treats himself.
I find that the evidence from more independent sources, Dr. Ghouse and Dr. Gold, does not support the frequency or duration of Mr. Boateng's self-treatment. Further, I find that Mr. Boateng's assertions that he assessed his own treatment needs, performed exercises under his own direction, manipulated himself, and is consequently entitled to reimbursement, entirely spurious. Adding to the outrageous nature of the claim, Mr. Boateng admits receiving a $60,000 annual salary plus benefits and commissions from the Centre, which he owns, directs, works at and which billed his treatments.
Evidence of other financial dealings at OSAIC cause me to seriously doubt Mr. Boateng's honesty. Mr. Boateng testified from documents about financial transactions during the first operating year of OSAIC. The 1993 revenue and expense summary presented at the hearing shows $207,000 annual revenue and expenses of approximately $387,000. Significantly, $142,000 of the expenses was attributable to professional fees . Mr. Boateng testified that all of these professional fees, more than a third of the total expenses, were paid to his brother, Joseph A. Boateng, a self-employed accountant in Rochester, New York. According to Mr. Boateng, his brother did the company's accounting, tax returns and other paperwork. It seems odd, to say the least, that Mr. Boateng's brother, an accountant residing in another country with different tax laws, would be hired by this new enterprise for such large fees. My concern about the nature of these arrangements grew even greater when Mr. Boateng testified that his brother gave him a late model automobile in April 1993. In my opinion, Mr. Boateng's financial and personal arrangements with his brother raise serious questions about his honesty. However, I do not rely upon the dubious nature of Mr. Boateng's financial schemes.
My findings are based upon Mr. Boateng's lack of objectivity as a professional witness in his own treatment and the lack of independent support for the duration and frequency of Mr. Boateng's self-treatment. Moreover, in my view, there is an irreconcilable conflict of interest between his needs as a patient and his ownership, employment and remuneration from the treating clinic, which undermines the veracity and accuracy of his evidence. Consequently, I find that none of the physiotherapy expenses claimed are reasonable or necessary under section 6 of the Schedule.
Weekly Income Benefits:
In order for Mr. Boateng to be entitled to weekly income benefits under section 12 of the Schedule for the claimed period between January 5, 1993 to May 30, 1993, he must prove, on a balance of probabilities, that he suffered a substantial inability to perform the essential tasks of his job at OSAIC. Mr. Boateng testified that during this period he was the director and a physiotherapist at the Centre, as well as an owner. He estimated that physically assisting and manipulating patients (including himself) occupied about 40 per cent of his work time, with the remainder taken up writing reports, handling other administrative work, and assessing and advising patients.
Mr. Boateng testified that after the accident he could not drive a car because of his injuries, so he took the bus to work. However, later he admitted that he did not own a car until April 1993. At the same time, Mr. Boateng testified that his social and recreational activities were limited. No independent evidence was introduced to corroborate Mr. Boateng's assertions.
Mr. Boateng testified that he attended at his clinic for normal hours during the months of January through May 1993. He said that, although he went to work, he could not bend down, lift or sit for long periods due to pain in his neck and shoulder, and headaches. Mr. Boateng's evidence is that as a result of this pain, he could not perform patient therapy. However he was able to do administrative work two hours a day between January 5, and May 5, 1993, and four hours a day during the remainder of the claim period until May 30, 1993.
Mr. Boateng denies an earlier written statement, which differs significantly from his testimony at the hearing. On June 2, 1993 Mr. Boateng signed an Application For Accident Benefits which states:
Due to pain I could not work for the 2 weeks following the accident, but there after, I have been working though.
The Application also asked whether Mr. Boateng had returned to work. Mr. Boateng answered "yes" and listed February 1, 1993 as the return date. After re-reading his Application at the hearing, Mr. Boateng explained that this evidence in the Application was not complete. He said he initially was unable to attend work on some days during the first two weeks after the accident, and did go to work other days, but was not able to accomplish much. Mr. Boateng later testified that he was bedridden during the entire two week period following the accident.
Even on their face these explanations are not plausible. Adding to the contradictions in his evidence, Mr. Boateng testified that he was intimately involved with setting up the clinic during the latter part of December 1992 and in early January 1993. This conflicts with his evidence that he was either in bed for most of the first two weeks after the accident or only nominally involved when physically present at the clinic. In view of these significant discrepancies and the numerous other conflicts in Mr. Boateng's evidence, I find that his evidence is not reliable or credible.
The medical evidence does not establish that Mr. Boateng suffered a substantial inability to perform his essential tasks. Dr. Wooder's June 1, 1993 form report, attached to Mr. Boateng's original accident benefits application, simply recites neck, shoulder and upper back muscle strain, but provides no opinion about the length or type of his disability. The reports of Dr. Gold and Dr. Ghouse, who examined Mr. Boateng after the claimed disability period, provide no specifics or opinion about his work disability. In fact, absolutely no independent medical evidence verifies Mr. Boateng's claim that he suffered a substantial inability to perform his essential tasks at OSAIC.
On the other hand, Mr. Boateng's testimony that he worked normal hours, set up and ran the clinic in January 1993, and treated himself, indicates he was quite fit. It is not plausible that OSAIC could start to operate without Mr. Boateng's full efforts. He was the director and chief clinician. Since he was the only full time physiotherapist, no one else was available to assess and treat new patients on an ongoing basis. Logically, I find that Mr. Boateng himself assessed, treated and managed patients at the clinic. I conclude that Mr. Boateng lied throughout his evidence.
As a consequence of Mr. Boateng's unreliability and the lack of supporting medical evidence, I find that Mr. Boateng did not suffer a substantial inability to perform his job tasks during the claim period and that he is not entitled to weekly income benefits.
Expenses:
I agree with the long established tradition in this forum, that arbitration expenses from legitimate claims of insured persons should be reimbursed by the insurer in order to provide accessibility to the system. Nevertheless, arbitrators have refused to exercise their discretion in cases where the claims were entirely without merit. In this case I find that Mr. Boateng's claims are wholly without merit, and accordingly I decline to award his expenses to him.
I further find that Mr. Boateng's claims are frivolous and an abuse of this process. Mr. Boateng advanced as legitimate expenses which he claimed for treating himself at a clinic which he owns, and from which he collects salary, commissions and profits. While he claims he was providing these therapeutic services to himself on an almost daily basis, as well as attending to other business at the clinic, he also says he was not fit to work at the same time. These conflicting claims defy logic and fall into the realm of the ridiculous. All the more, when none of the medical opinions support any disability or recommend any specific course of treatment.
Section 282 (11.2) of the Insurance Act provides that an arbitrator who finds that a claimant has commenced an arbitration that is frivolous, vexatious or an abuse of process can award the insurer the assessment fee it paid to the Commission to participate in the process. In this case, CUMIS paid a $1,000 assessment fee, and I find it entirely appropriate that Mr. Boateng be ordered to reimburse the Insurer for this expense. I would award CUMIS its full expenses if it were within my power.
Order:
- Mr. Boateng shall pay $1,000 to CUMIS.
August 29, 1995
Fred Sampliner Arbitrator
Date