Neutral Citation: 1997 ONICDRG 93

OIC A96-000588

ONTARIO INSURANCE COMMISSION

BETWEEN:

YU CHANG LUO

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

Mr. Luo was injured in a motor vehicle accident on April 28, 1995. He received statutory accident benefits, under the Schedule,¹ from Guardian Insurance. Guardian terminated weekly income replacement benefits on July 31, 1995. After the parties failed to resolve a dispute about the benefits through mediation, Mr. Luo applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Luo entitled to receive weekly income replacement benefits after July 31, 1995 ongoing, under section 7 of the Schedule, because he suffers a substantial inability to perform the essential tasks of his employment?

2. Is Mr. Luo entitled to the supplementary medical expenses he claims for: (1) the cost of physiotherapy from September 26, 1995 to March 5, 1996 and (2) transportation expenses from November 6, 1995 to March 5, 1996 for visits to his doctor and the physiotherapy clinic, under sections 36(1)(b) and (g) of the Schedule?

3. Is Mr. Luo entitled to receive $400.00 for an assessment and report by Dr. J. Pilowsky, under section 57 or 36(1)(b) of the Schedule?

4. Is Mr. Luo entitled to interest and his expenses incurred in the hearing?

Result:

1. Yes, Mr. Luo is entitled to receive weekly income replacement benefits from July 31, 1995 and ongoing at the rate of $423.57 per week, so long as he satisfies the requirements of Part II of the Schedule.

2. Yes, Mr. Luo is entitled to recover $4,600 for physiotherapy from September 26, 1995 to March 5, 1996 and $232.50 for transportation expenses from November 6, 1995 to March 5, 1996 for visits to his doctor and the physiotherapy clinic. Guardian will also pay a special award of $483.25 (10%) plus interest as calculated under section 282(10) of the Insurance Act.

3. Yes, Mr. Luo is entitled to receive $400.00 for an assessment and report by Dr. J. Pilowsky, under section 36(1)(b) of the Schedule. Guardian will also pay a special award of $40.00 (10%) plus interest as calculated under section 282(10) of the Insurance Act.

4. Yes, Mr. Luo is entitled to interest and his expenses incurred in the hearing.

Hearing:

The hearing was held at the Ontario Insurance Commission in North York on April 22 and 23, 1997 before me, K. Julaine Palmer, Arbitrator. Those present at the hearing and the witnesses are listed in Appendix A.

Evidence and Findings:

The Accident

Mr. Luo was injured in a motor vehicle accident on April 28, 1995. His car was hit from behind on highway 401 by a transport truck. Mr. Luo had braked to avoid a collision. Mr. Luo could not estimate his speed at the time of the accident. He testified that he did not know if he lost consciousness. He could not remember if any part of his body struck any part of the car's interior. He remembered only that he was really frightened. Mr. Luo testified that his car's tail lights were broken or cracked by the impact and his trunk lid was warped. No other witness testified about the accident. Guardian filed copies of photographs and two damage appraisals showing estimates of $1,072.53 and $1,751.84, respectively, to repair Mr. Luo's 1987 Mercury Topaz L. four-door sedan.

The accident occurred late on a Friday night. Mr. Luo went to the collision reporting centre before going home. He testified that his head ached and his shoulder, chest, and hands hurt. He testified that he experienced neck pain shortly after he arrived home. On Monday he went to see Dr. Vansen Lee, to whom he had been referred by friends. By that time, he stated, his middle and low back was painful as well. He did not go to work.

Mr. Luo testified that Dr. Lee arranged for him to attend physiotherapy. Dr. Lee directed him to attend four to five times each week. Later, he was told to attend three to four times per week. Mr. Luo attended physiotherapy until March 1996. At the beginning the treatment consisted mainly of massage and treatments with "electrical equipment," but later, the physiotherapists taught him exercises. Mr. Luo testified that the treatments helped relieve his pain and improve his ability to move.

Mr. Luo testified that he could not return to his work as an upholsterer because of pain. He testified he had headaches, could not sleep, and felt anxious. He claimed to have the feeling of losing control of himself. He lost his temper very easily, was unable to concentrate and felt restless. He stated that these feelings began about 1-1/2 to 2 months after the accident.

1. Entitlement to income replacement benefits from July 31, 1995 ongoing

In order to qualify for income replacement benefits, Mr. Luo must meet the test set out in section 7 of the Schedule. Since he was employed at the time of the accident, he must demonstrate that, as a result of the accident, he sustained an impairment that substantially disables him from performing the essential tasks of his employment. Impairment is defined as "a loss or abnormality of psychological, physiological or anatomical structure or function."

Essential Tasks

Mr. Luo testified about his job upholstering office chair backs. In addition, the Insurer called as a witness Mr. Sezer Tekbas, plant manager of Mr. Luo's employer. Mr. Tekbas testified very briefly about Mr. Luo's job and brought a sample chair back to the hearing.

Mr. Luo testified that he was paid on a piece-work basis. He stated that he had worked full-time at Global Upholstery since November 1994. He worked Monday to Friday, and usually Saturday, for approximately 10 hours each day. Mr. Luo described his work. He stated that he had to collect wood panels at a distance of about 30 metres from his work-station and push the panels on a cart to his work-station. He also used the cart to collect pre-cut fabric pieces. He then upholstered the chair backs by pulling the fabric around the wooden panel and stapling it with a staple gun powered by compressed air. Each panel required 40 to 50 staples.

Mr. Luo testified that he needed a lot of strength to pull the fabric around the chair back and also a lot of concentration so that he would not staple into his own hand. He stated that it was difficult to coordinate the pulling of the fabric and the stapling. He testified that he was required to work at a high speed, standing all day at a table that was of a height slightly below his waist level. He stated that, on average, he produced 380 to 400 pieces per day, for which he was paid $0.35 per piece.

According to a statement Mr. Luo gave in May 1995, he earned $2,614.30 in the four weeks before the accident, or an average of $653.57 per week. Guardian paid Mr. Luo income replacement benefits of $423.57 per week until August 1, 1995. Neither party disputes the amount of the benefit.

Mr. Luo testified that he could not return to his job because of pain. He testified he had headaches, could not sleep and felt anxious. He claimed to have the feeling of losing control. He said he lost his temper very easily, could not concentrate and felt very restless. He stated that these feelings began about 1-1/2 to 2 months after the accident. He stated that he tries to concentrate to read and cannot; he feels dizzy. He tries his very best to help with the housework, because his doctor suggested he should, no matter how much pain it gives him. He has looked for work through the newspapers and asked friends about jobs which do not demand intense concentration. He returned once to his old workplace to ask if he could try his old job, but was told there was no work for him. He testified that this visit occurred about November 1995 after one of the doctors who examined him advised him to try to return to work. He stated that he felt that he could not do the work, although he did not communicate this to his former employer.

On cross-examination, Mr. Luo admitted that he felt capable of lifting the individual chair panels and the stapler. He admitted that he is able to buy groceries, visit friends, go for walks, have lunch in a restaurant, and use his computer or the telephone to buy and sell stocks on the stock market. He looks after his daughter more now, since she is older. He stated that since September 1996 he has practised the discipline of qi gong for two to three hours continuously per day. He attributes a great deal of the subsequent improvement in his physical symptoms to his new ability to manipulate his inner energy to heal parts of his body. Nevertheless, he did not think that he would ever be able to return to the type of work that he was doing at the time of the accident.

In contrast to Mr. Luo's evidence about the amount of strength and high degree of concentration required to perform his job was the brief testimony of Sezer Tekbas, Mr. Luo's former supervisor and plant manager of Global Upholstery. Mr. Tekbas was not present while Mr. Luo testified about his work. The supervisor testified that workers were not required to carry much weight, that the work was performed one piece at a time, and that a cart was used to move multiple pieces. He stated that workers did not have to stretch the fabric to put it on the chair back. He stated that no force was required to squeeze the trigger on the stapler. He also testified that he did not think there was any mental requirement to the job, more than any other job, apart from being attentive so that you did not staple your thumb. On cross-examination, Mr. Tekbas admitted that if the work was improperly done, workers were not paid. He also agreed that speed was important, to both the employee and the employer. He stated that although one employee sits at his work, all the others stand. He agreed that workers produced 350-400 panels per day.

Medical, Psychological and Surveillance Evidence

Guardian provided written reports of several examiners. Dr. James Houston, orthopaedic surgeon, conducted a medical examination of Mr. Luo for the Insurer on June 26, 1995. Dr. Ronald Gitelman, chiropractor, performed a DAC² disability assessment on August 1, 1995. Dr. Allan Rosenbluth, psychiatrist, conducted a psychiatric examination of Mr. Luo for the Insurer on May 22, 1996. The Accident Injury Management Clinic, Scarborough, performed a DAC medical and rehabilitation assessment on July 2, 1996. With Mr. Luo's consent, Guardian also filed surveillance reports of observations of Mr. Luo on June 8, October 13 and 14, 1995, and January 7 and 9, 1997.

Mr. Luo filed the clinical notes of Dr. Vansen Lee, four OCF-3 Health Practitioner's Certificates completed by Dr. Lee, and a narrative medical report dated April 6, 1997. He also filed two reports of Dr. Judith Pilowsky, psychologist, dated September 15, 1995 and January 31, 1997 as well as a Health Practitioner's certificate.

No separate statement of qualifications or curriculum vitae for any of the health practitioners was filed, as required by section 38 of the Dispute Resolution Practice Code—Third Edition. Some of the health practitioners made brief statements about their qualifications in their reports.

Without a statement of qualifications, the evidence I have of the expertise of these practitioners is very restricted. None of the experts testified at the hearing. Only their reports were filed.

None of expert's reports filed by the parties displays much knowledge of the essential tasks of Mr. Luo's employment. Detailed information about the claimant's job is critical to the issue of whether he can substantially perform those tasks.

In Dr. Houston's report the following comments about Mr. Luo's job are made:

From the way the job was described, it involved working eight-hour shifts, five days a week.

On further questioning, Mr. Luo stated that his job largely involved putting pieces of upholstery made from, for example, leather or cloth, on the backs of what were described as chairs.

Two types of armchairs present in the inner office were pointed out to Mr. Luo and he stated this was the sort of chair-frame he would be dealing with.

On questioning, he stated that others would put on the rest of the upholstery.

He stated that the chair-frames would each have to be picked up and placed on some sort of a table which allowed, apparently, for rotation of the chair so that the upholstery could be put in place with some sort of staple gun.

The information presented by Dr. Gitelman is even scantier:

This gentleman worked as an upholsterer in which he placed material on the backs of chairs, he had to lift up chair frames but he did not have to work above his head.

Both Dr. Houston and Dr. Gitelman thought Mr. Luo should have been able to return to his work, as far as a musculo-skeletal assessment was concerned. They observed inconsistencies and contradictory findings in their examinations which could not be explained by any organic lesion. Mr. Luo scored high on tests designed to elicit symptom magnification.

Dr. M. Foo testified that Mr. Luo attended at his office twice-once in 1993 and again in 1995. The attendance in 1995 resulted from Dr. Foo's concerns for the close family members of a patient who had tested positive for a contagious illness. I did not find Dr. Foo's testimony relevant to the issues before me.

Guardian's theory is that Mr. Luo's alleged psychological problems did not arise until the weekly insurance benefits were terminated, effective August 1, 1995. The Applicant countered this argument with evidence from Dr. Lee's clinical notes. Anxiety is recorded as early as an attendance on May 16, 1995 and a diagnosis of depression, coupled with insomnia and decreased libido is noted by June 6, 1995. The words "mental conflict" appear in the notes made on June 20, 1995. In September 1995, Dr. Lee wrote that Mr. Luo complained about a decrease in memory. Mr. Luo's complaints of depression, decreased libido, and insomnia are often recorded throughout the fall of 1995, when Dr. Lee was seeing Mr. Luo frequently. On November 20, 1995 Dr. Lee made the first notation of "CPS"³ on Mr. Luo's chart. These emotional or psychological complaints were coupled with reports of physical symptoms of neck and back pain.

Dr. Judith Pilowsky, psychologist, assessed Mr. Luo on September 12, 1995. She characterized Mr. Luo's employment as follows:

At the time of the accident, the client was working at Global Upholstery company as an upholsterer on a full-time basis. His work involved covering furniture with fabric and using equipment. This labour was considered to be heavy work.

Dr. Pilowsky determined that Mr. Luo was suffering from "a moderate level of depression and a severe level of anxiety." She was of the view that Mr. Luo met the full diagnostic criteria for Post Traumatic Stress Disorder, as set out in the DSM IV.⁴ She recommended 20-25 sessions of psychotherapy and a referral to his family doctor for short-term anti-anxiety medication. Dr. Pilowsky was of the view that Mr. Luo could not work or return to normal daily activities in September 1995.

Finding

The reports of Dr. Houston and Dr. Gitelman do not display enough consideration about Mr. Luo's essential job tasks to be valuable opinions about his ability to return to that work, as a result of injuries he received in the accident of April 28, 1995. Since Dr. Pilowsky's opinion was that Mr. Luo's emotional difficulties arising from the accident had had a dramatic impact on his relationships, quality of life and ability to function normally, her lack of knowledge of the precise details of his job is less significant. In addition, her assessment was not specifically about Mr. Luo's fitness for work.

Neither Dr. Houston nor Dr. Gitelman comments on the significance of Mr. Luo's employment on a "piecework" basis, although this fact is mentioned in the portion of Dr. Gitelman's DAC report, completed by the Insurer, purportedly outlining the claimant's essential job tasks. I find this omission diminishes greatly the validity of their opinions of Mr. Luo's fitness for work. It is probable that neither assessor took into account that Mr. Luo was required to work at high speed and repeat his upholstering tasks 350 to 400 times in a typical work day. Neither report shows evidence of any appreciation of the speed, dexterity, accuracy and concentration required to successfully and safely perform Mr. Luo's job.

A narrative report of Dr. Vansen Lee was filed. He was Mr. Luo's general practitioner after the accident until October 1996. Dr. Lee reported that on the last occasion when he examined Mr. Luo "he was still complaining of neck and back pain especially with weather changes, decreased libido, and insomnia. He was feeling depressed. There has been a lot of stress at home." Dr. Lee also wrote:

Physical examination revealed tenderness along the cervical and lumbro-sacral [sic] spine with decreased range of movement. He was still suffering from chronic pain syndrome and depression. He was advised to take medication left over from previous prescriptions which included Arthrotec p.o. b.i.d. and Surgam 150 mg p.o. b.i.d.

The surveillance evidence of January 8 and 9, 1997 (when Mr. Luo was not seen) is of some assistance. On January 8, 1997 Mr. Luo's home was the subject of observation from the early morning. He was first seen at nearly 4:00 p.m. when he drove with his daughter to a bank, then to buy some rice and a newspaper. He was observed carrying his daughter, now age 3 years. He drove to pick up two male friends or relations, and then his wife, from their respective workplaces, then all went out for dinner. He returned home about 9:30 p.m. He was observed smiling and chatting. The investigator wrote:

At no time did the subject display any physical discomfort associated with his neck or back, nor did he appear to experience any psychological problems when socializing with his wife, daughter or companions.

The latest evidence relating to Mr. Luo's psychological condition is found in the report of Dr. Pilowsky dated January 31, 1997 regarding her reassessment of Mr. Luo four days earlier. Dr. Pilowsky found, on formal testing, that Mr. Luo's anxiety levels had improved somewhat since her first assessment "but that he still suffers from anxiety in the moderate to severe range. His depression levels have remained approximately the same in the past year and one half." Mr. Luo reported nightmares, flashbacks, cognitive impairment and a heightened sense of agitation to Dr. Pilowsky.

This evidence contrasts with the findings of Dr. Allan Rosenbluth, psychiatrist, in May 1996.Dr. Rosenbluth wrote:

It was my clinical impression that Mr. Luo does not suffer from a post-traumatic stress disorder. While he described some post-traumatic symptoms, he did not have the typical constellation of signs and symptoms of this disorder. Furthermore, there are several suggestions that Mr. Luo might be exaggerating some of his complaints. As noted above, his complaints of significant memory and concentration impairment were not verified in the interview. While he complained of depression, he did not appear to be depressed and his activity level did not conform with significant depression.

The evidence of the health practitioners regarding Mr. Luo's physical and mental condition and fitness for work is conflicting. I discount the value of the reports of Dr. Houston and Dr. Gitelman on this issue since the reports contain no confirmation of a good understanding of Mr. Luo's essential tasks. Those assessors also only considered Mr. Luo's fitness for work from a musculo-skeletal perspective. Mr. Luo, however, suffers from significant psychological symptoms arising from the accident.

Since there appears to be little organic basis for Mr. Luo's continuing physical complaints, and the evidence of psychological symptoms is conflicting, it is useful to consider his work history and motivation to return to work. Mr. Luo arrived in Canada in 1988 at age 28. Previously, he had worked as a math teacher, then television reporter in China. In Canada he worked at several jobs prior to the piece-work upholstery job. He worked as a cook and kitchen helper in a restaurant, for a Chinese language television station, delivering meals, and in a supermarket. He had taken some classes in English in Canada. He reported to Dr. Rosenbluth and Dr. Pilowsky that he had worked in a videotape manufacturing company for two to three years and then in his own business selling cash registers. He testified that since the termination of his benefits he has struggled financially, living on his savings and his wife's employment income, with some help from his parents. I find Mr. Luo has a good work history and compelling reasons to return to employment.

I found Mr. Luo to be a credible witness. He has followed the treatment program recommended by his doctor and tried to help himself with alternative methods. The surveillance evidence shows that he is able to carry on with some aspects of a normal life, such as social relationships. However, I am satisfied that Mr. Luo's condition meets the test of section 8(1) of the Schedule in that he suffers a substantial inability to perform the essential tasks of his employment as a piece-work upholsterer for Global Upholstery. Although I am sure that Mr. Luo could perform the individual actions associated with the job, in my view, he is substantially disabled because he suffers more than some inability to do his work. He has suffered a sizeable disability. I am not charged with diagnosing the precise nature of Mr. Luo's mental disability. He has proven, on a standard of a balance of probabilities, that his residual physical problems, coupled with his continued inability to concentrate, high level of anxiety and other psychological symptoms, meet the requirements of the Schedule. I believe Mr. Luo's psychological complaints to be genuine and I conclude that he could not perform his job with the coordination, precision or speed required on any kind of reasonable, sustained basis after July 31, 1995 to the present.

As Sr. Arbitrator Naylor put it, in the Flemming⁵ case:

....the fact that the Applicant is able to perform some functions of her occupation on a part-time basis does not address the standard of disability set out in the regulations.... In determining an applicant's ability to perform his or her essential occupational or employment tasks, the demands of such tasks cannot be evaluated in isolation from the broader employment context.

The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative.

2. Is Mr. Luo entitled to the supplementary medical expenses he claims for the cost of physiotherapy from September 26, 1995 to March 5, 1996 and for transportation expenses from November 6, 1995 to March 5, 1996 for visits to his doctor and the physiotherapy clinic, pursuant to sections 36(1)(b) and (g) of the Schedule?

The rules in the Schedule regarding payment for treatment for injuries received in an accident, or transportation to the treatment, are different from the rules governing income replacement benefits. Section 36(1) obliges the Insurer to pay "for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for...(b)....psychological.... and physiotherapy services." Section 36(4) then sets out the rule for payment of supplementary medical expenses in this case:

36(4)—Subject to subsection (5) [relating to eyeglasses, dentures, and other devices],

clause 39(11)(b) [negative report of a med-rehab DAC after 12 weeks post-accident and subsection 39(12) [cooperation by insured for assessments]

the insurer shall pay an expense under subsection (1) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act.

[cross-referencing and emphasis added]

An Insurer may request a health practitioner's certificate under section 37 of the Schedule, relating to expenses under section 36. This certificate must state that a supplementary medical expense is reasonable and necessary for the insured person's treatment. Once it receives such a certificate, the Insurer may request an assessment by a medical-rehabilitation DAC⁶ if the expense was incurred more than 8 weeks post-accident or after the Insurer has paid $2,000 for medication or for chiropractic, psychological services, occupational therapy or physiotherapy.

In this case, Guardian sent Mr. Luo a four-page form letter, dated September 14, 1995. This form letter is entitled "Discontinuance of Treatment Coverage Notice." The first part of the letter is plain:

This serves to advise that Guardian Insurance will no longer provide coverage for treatment.

If you wish to continue to receive any form of treatment you will now be required to incur the cost of such treatment directly yourself. Should your family physician, [sic] continue to refer you to any treatment centre then you can forward to us the attached medical certificate completed by the referring physician and we can proceed to set up an assessment as per section 39 of the Statutory Accident Benefit Schedule which relates to all accidents occurring on or following January 1, 1994.

Thereafter follows 3 pages of summaries and quotations of parts of section 39 of the Schedule. The form letter ends with an invitation to contact the claims examiner "should you have any questions or concerns with respect to the above process."

It is not clear what "medical certificate" is referred to in the second paragraph of the letter. No example was provided at the hearing. What is known is that an OCF-3, Health Practitioner's Certificate, was completed by Dr. Lee within the next few days. The certificate is dated September 21, 1995. In that certificate Dr. Lee refers to Mr. Luo's continuing need for physiotherapy at the Therapeutic Centre and his referral to a psychologist for assessment and counselling. There is no dispute between the parties that the Insurer received a copy of this certificate. It also received a further certificate dated November 29, 1996 which also prescribes continuing physical therapy as being required.

If the Guardian seeks to rely on the provisions of sections 39 and 39.1 of the Schedule to avoid paying for Mr. Luo's physiotherapy pending dispute, it must prove it took the proper steps set out in the Schedule, including a request that the insured person furnish "a certificate from the person's health practitioner stating that the expense is reasonable and is necessary for the person's treatment."⁷ Cindy Kirmaier, Guardian Claims Examiner, testified briefly at the hearing. She stated that, although the letter of September 14, 1995 does not refer to it, she included a form with the letter for Mr. Luo to sign in order that information might be released to a medical-rehabilitation DAC. She claimed this form (OCF 14) was never received until after an alleged second request of April 8, 1996. On April 22, 1996 Mr. Luo's solicitors returned a signed form to her with a letter. But that document cannot be the health practitioner's certificate referred to in sections 37 and 39. Ms. Kirmaier was not asked about any certificate to be signed by Dr. Lee with respect to physiotherapy.

In the meantime, on September 21, 1995, Ms. Kirmaier sent Mr. Luo a request to sign a "Permission to Disclose Health Information" form to arrange a medical-rehabilitation DAC, regarding psychological treatment. This form was returned promptly with a letter dated September 28, 1995. On November 1, 1995, Ms. Kirmaier wrote to the Applicant's lawyer about treatments at the Therapeutic Centre, denying accounts for physiotherapy treatments after September 22, 1995. She makes no reference in that letter to any certificates or forms expected but not received from Mr. Luo or his doctor. However, Ms. Kirmaier did enclose an "Explanation of Assessment" form (which was not filed), apparently in purported compliance with the provisions of section 39.1(6) of the Schedule.

I find Guardian did not follow the Schedule in terminating payment for Mr. Luo's physiotherapy in September 1995. It has not proven that it required a certificate under section 37. If the Insurer does not require a certificate under section 37, then it cannot access the DAC assessment procedures set out in section 39. It has to continue to pay the expenses according to the provisions of section 36.

In this case, however, Guardian did receive two subsequent certificates from a treating physician, even though those certificates are not likely the ones referred to in section 37. (Those certificates are on form OCF-3. Form OCF-3 does not set out a statement that the expense is "reasonable and is necessary for the person's treatment" following the language of section 37, although it does ask if the treatment is "required.") Although its submission on the relevance of the subsequent certificates is not entirely clear to me, Guardian appeared to take the position at the arbitration that these certificates fulfilled the requirement of section 37. I find they do not. Guardian then sought to rely on Mr. Luo's purported failure to return a form OCF-14 (Permission to Disclose Health Information to the Assessment Centre) to prove his lack of cooperation under section 39(12) of the Schedule. I find Ms. Kirmaier is mistaken in her assertion that she sent an OCF-14 Form relating to a physiotherapy DAC to Mr. Luo with her letter of September 14, 1995. Guardian did not send the form to Mr. Luo until April 1996. There is no evidence in this case that Mr. Luo failed to make himself reasonably available for a medical-rehabilitation assessment regarding physiotherapy or failed to provide information that would have been reasonably necessary for it.

Guardian maintained a denial of payment for the physiotherapy without referring Mr. Luo to a medical-rehabilitation DAC to deal with the issue. Only if the Insurer had followed the proper procedure under section 39 and had received a subsequent (negative) report from the DAC would it have been released from paying for the physiotherapy, pending the determination of a dispute through mediation and arbitration.⁸

However, this does not end the issue, because, despite the Insurer's breaches of the Schedule, it is still necessary for Mr. Luo to prove in this arbitration that the expense incurred for physiotherapy was reasonable and was incurred as a result of injuries received in the accident, according to the provisions of section 36(1) and (4) of the Schedule.

Mr. Luo testified that the treatments were helpful to decrease his pain and increase his movement. They were prescribed by Dr. Lee, who was following his case on a regular basis. Despite their reservations about Mr. Luo's level of physical disability, both Dr. Houston and Dr. Gitelman were of the opinion that Mr. Luo would benefit from "mobilizing and stretching exercises" and an "active exercise program," respectively, in their reports in June and August 1995. Although neither of these reports has the focus of a medical-rehabilitation DAC, I note the opinions that exercises would be important to Mr. Luo's physical recovery. The fact that more passive therapy continued longer than would have apparently been the choice of either Dr. Houston or Dr. Gitelman is irrelevant, since the treating physician was directing the therapy that his patient was receiving, and was, apparently, satisfied with the method and rate of progress exhibited, due to his continued referral of his patient to that facility. From the evidence filed, it is clear that Dr. Lee turned his mind to the question of physiotherapy at least at each filing of a Health Practitioner's Certificate: in May, July, September, and November 1995.

Mr. Luo stopped attending at the Therapeutic Centre in March 1996, about ten months after the accident. A medical-rehabilitation DAC was conducted some four months later, in July 1996, by an orthopaedic surgeon, a chiropractor and a kinesiologist. The orthopaedic surgeon and the chiropractor both recommended a "self-directed (home) exercise program." The orthopaedic surgeon recommended Mr. Luo be reassessed for consideration of anti-depressant medication. I find since this DAC was conducted almost four months after the end of the physiotherapy treatment for which reimbursement is claimed, it is of very limited use to determine the reasonableness of professionally-directed therapy from September 1995 to early March 1996.

Guardian did not raise any argument that the Therapeutic Centre's charge per treatment, itself, was unreasonable. For physical therapy in September, October, and November 1995 the fee per treatment was $50.00. The same fee was charged for massage therapy during those months. In January, February, and early March 1996, the Therapeutic Centre charged $100.00 per treatment for "physical and exercise therapy." As I stated in the case of Surbir Singh Gaba and Allstate Insurance Company:⁹

...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. In this case, the reasonableness of the expenses was supported by the Applicant's testimony, the testimony of the occupational therapists, the two written reports filed...

These comments related to the Schedule in force from 1990 to 1993, but I find them applicable to the present Schedule as well.

In my view, Mr. Luo has brought forward sufficient evidence that the physiotherapy treatments from September 1995 to early March 1996 were reasonable and incurred as a result of the accident of April 28, 1995. The treatments took place within ten or eleven months of the accident date and had progressed to include a directed exercise component, that even the Insurer's own experts recommended. The Insurer is responsible to pay $4,600.00 on that account. It necessarily flows that Mr. Luo is also entitled to transportation expenses under section 36 (1)(g) to those treatment sessions and to his doctors' appointments. He claims $232.50, which I find is reasonable.

Special Award

Section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, requires an arbitrator to impose a lump sum award, in addition to awarding the benefits and interest to which an insured person is entitled if she finds that an insurer has "unreasonably withheld or delayed payments."

The maximum amount is 50 per cent of the amount to which the insured person is entitled at the time of the award together with interest, calculated as set out in that subsection. At the hearing I requested submissions from counsel with respect to this issue.

The rehabilitation sections of the Schedule are complex. The procedures for disputing treatment must be followed precisely in order for an Insurer to invoke the right not to pay for a treatment that an insured person's health care practitioner deems reasonable and necessary. The correct procedure was not followed here, although I see nothing in Guardian's conduct with respect to this claim that indicates to me that this failure was malicious. However, I find Guardian's conduct was unreasonable in the face of continuing reports from Dr. Lee prescribing this treatment. I find Mr. Luo entitled to a special award of ten per cent of the outstanding physiotherapy accounts and transportation claim.

3. Is Mr. Luo entitled to receive payment for an assessment and report by Dr. J. Pilowsky, in the amount of $400.00, pursuant to section 57 or 36(1)(b) of the Schedule?

Mr. Luo was referred by Dr. Lee to Dr. Pilowsky, a clinical psychologist, after a recommendation from the Therapeutic Centre, which, Mr. Luo testified, was concerned about his poor spirits. In a report dated September 15, 1995, Dr. Pilowsky diagnosed Mr. Luo as suffering from post-traumatic stress disorder as a result of the motor vehicle accident. She recommended a course of psychotherapy treatment. Mr. Luo was examined by a psychiatrist, Dr. Allan Rosenbluth, at the request of the Insurer on May 22, 1996. Dr. Rosenbluth concluded that "there was no evidence of a significant or disabling depressive disorder nor was there evidence of a significant or disabling post-traumatic stress disorder."

In my opinion, in this case where Mr. Luo's family doctor notes anxiety, insomnia, decreased memory, and depression within a few weeks of the motor vehicle accident, it is entirely reasonable for the Insurer to bear an expense of $400.00 for an assessment and report by a clinical psychologist. I find Dr. Rosenbluth's views eight months later of little relevance to this issue. I find Mr. Luo entitled to this assessment and report under section 36 (1)(b) of the Schedule. The cost may also be payable under section 57 of the Schedule, but it is not necessary for me to decide that.

Special Award

Guardian was also unreasonable in failing to pay for Dr. Pilowsky's assessment and report in the light of Dr. Lee's diagnosis of reactive depression and post-traumatic syndrome and other comments in his reports of September 21 and November 29, 1995. I also grant a special award of ten per cent of this outstanding account, together with interest as computed under section 282(10) of the Act.

Expenses:

Mr. Luo seeks an award of the expenses he has incurred in this arbitration. He has been successful in this arbitration. An award to him of his expenses is justified, based on this success. I understand that no written offers to settle were made by either party to this proceeding. I, therefore, exercise my discretion in Mr. Luo's favour to grant him his expenses according to Schedule F of the Dispute Resolution Practice Code (Third Edition)—April 15, 1997 and Ontario Regulation 464/96. In the event that the parties cannot agree as to the total amount of expenses, a party may apply to the Registrar for assessment of the expenses.

Order:

1. Guardian Insurance Company of Canada will pay Mr. Luo weekly income replacement benefits from July 31, 1995 and ongoing at the rate of $423.57 per week, so long as he satisfies the requirements of Part II of the Schedule.

2. Guardian Insurance Company of Canada will pay Mr. Luo $4,600 for physiotherapy from September 26, 1995 to March 5, 1996 and $232.50 for transportation expenses from November 6, 1995 to March 5, 1996 for visits to his doctor and the physiotherapy clinic. It will also pay a special award of $483.25 (10%) plus interest as calculated under section 282(10) of the Insurance Act.

3. Guardian Insurance Company of Canada will pay Mr. Luo $400.00 for an assessment and report by Dr. J. Pilowsky, under section 36(1)(b) of the Schedule. It will also pay a special award of $40.00 (10%) plus interest as calculated under section 282(10) of the Insurance Act.

4. Guardian Insurance Company of Canada will pay Mr. Luo interest pursuant to section 68 of the Schedule and his expenses incurred in the arbitration, as agreed or assessed under The Dispute Resolution Practice Code—Third Edition, April 15, 1997.

June 9, 1997

K. Julaine Palmer

Arbitrator

Date

APPENDIX A

Present at the Hearing:

Applicant:

Yu Chang Luo

Mr. Luo's

L. Brent Vickar

Representative:

Barrister and Solicitor

Guardian's

Lisa Hamilton

Representative:

Barrister and Solicitor

Guardian's

Cyndy Kirmaier

Officer:

Claims Examiner

Witnesses:

Yu Chang Luo, Cyndy Kirmaier, Marshall Foo, Sezer Tekbas

Interpretation services for Mr. Luo were provided by Isabelle Wong. The proceedings were recorded by Christine McAlister, CSR, of Holley and Strauch.

The parties filed 7 exhibits at the hearing, including two document briefs.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2DAC = designated assessment centre provided under section 26 of the Schedule
3. 3CPS = chronic pain syndrome
4. 4DSM-IV: the official diagnostic manual of the American Psychiatric Association
5. 5Donna Flemming and Wawanesa Mutual Insurance, OIC A-000406, April 28, 1992.
6. 6DAC = Disability Assessment Centre
7. 7Section 37 of the Schedule
8. 8section 39(11)(b) of the Schedule
9. 9OIC A-000624, August 21, 1992, at page 15.