Neutral Citation: 1998 ONFSCDRS 9

FSCO A96-000912

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KULDIP GREWAL

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Kuldip Grewal, was injured in a motor vehicle accident on March 9, 1995. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹

Mrs. Grewal claimed payment of the cost of an examination, the cost of treatment, interest on overdue benefits, her expenses in respect of the arbitration and a special award. Allstate denied that the services claimed were reasonable, necessary, or within the scope of the Schedule. Allstate also alleged that this arbitration was brought by Trauma Services, the facility which provided the services which are the subject of this arbitration, and not by Mrs. Grewal. Allstate submitted that this arbitration application was therefore improper.

The parties were unable to resolve their disputes through mediation, and Mrs. Grewal applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the application for arbitration proper?

2. Is Mrs. Grewal entitled to the cost of an assessment under section 57 of the Schedule?

3. Is Mrs. Grewal entitled to the cost of treatment provided by Trauma Services as a supplementary medical benefit under section 36 of the Schedule or as rehabilitation expenses under section 40 of the Schedule?

4. Is Mrs. Grewal entitled to a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8 as amended?

Mrs. Grewal also claims interest on any amounts owing and her expenses incurred in respect of the hearing.

Result:

1. The application is proper.

2. Mrs. Grewal is entitled to $914.19, as reasonable expenses incurred in obtaining an assessment under section 57 of the Schedule.

3. Mrs. Grewal is entitled to $3,240.10 as reasonable rehabilitation expenses under section 40 of the Schedule.

4. Mrs. Grewal is entitled to interest on overdue payments under section 68 of the Schedule.

5. Mrs. Grewal is not entitled to a special award.

6. Mrs. Grewal is entitled to one half of her reasonable expenses in respect of the arbitration.

Details of the hearing are set out in Appendix A. Section 40 of the Schedule is reproduced in Appendix B.

Evidence and Findings:

Is the application for arbitration proper?

The arbitration application identifies the Applicant as Mrs. Kuldip Grewal. Allstate alleges that in reality, the arbitration is a collection proceeding brought by Trauma Services against Allstate. Since only an insured person can commence an arbitration under section 281(1) of the Insurance Act, Allstate submits that the arbitration application is improper, and that I have no jurisdiction to determine the issues raised in this arbitration.

Allstate relies on two pieces of evidence. Firstly, the fact that written submissions were filed in the name of Trauma Services, a rehabilitation facility, and not "on behalf of the Applicant;" secondly, Allstate relies on the provisions in a permission document signed by Mrs. Grewal, filed as Exhibit 12.

The arbitration file contains a history of Mrs. Grewal's representation in relation to her claims for statutory accident benefits. In an application for mediation with respect to medical and rehabilitation benefits and the cost of an examination, Mrs. Grewal was represented by a person on staff at Trauma Services. In an application for mediation with respect to claims for other statutory accident benefits, including income replacement benefits, Mrs. Grewal was represented by Vince Burnett, of Workers' Care Inc.

An application for arbitration with respect to her claims for medical and rehabilitation benefits and for the cost of an examination was filed on June 11, 1996. In its Response, Allstate alleged that Mrs. Grewal's authorized representative was Vince Burnett, and objected to Mrs. Grewal having separate representation on different claims for statutory accident benefits.

An application for arbitration in relation to Mrs. Grewal's claims for income replacement benefits, loss of earning capacity benefits, medical, rehabilitation, and caregiver benefits and interest was faxed to the Registrar's office on November 6, 1996. Mrs. Grewal's representative on that application was Vince Burnett. Mr. Burnett was not identified as a lawyer, and the Registrar's office asked him to provide written confirmation that Mrs. Grewal had authorized him to represent her. In a letter dated January 29, 1997, Mr. Burnett advised that he had attempted to obtain such authorization in writing from Mrs. Grewal, had been unable to do so, and that he was therefore withdrawing as her representative.

At the pre-hearing, Mr. Ferro, of Patient Advocacy Services, a division of Trauma Services, represented Mrs. Grewal. On September 29, 1997, Mr. Michael Henry of the Thomson, Rogers law firm wrote the Commission and advised that he had been retained by Mrs. Kuldip Grewal and Trauma Services with respect to the arbitration. On the first day of the hearing one of the grounds upon which Mr. Henry requested an adjournment was to permit him to combine Mrs. Grewal's claims for income replacement and other benefits in one arbitration.²

During the first four days of the hearing, Mr. Henry appeared as counsel for the Applicant. On the fifth day of the hearing both Mr. Henry and Mr. Ferro appeared as counsel. After arguing a motion as to the admissibility of certain evidence, I permitted Mr. Henry to withdraw and Mr. Ferro completed the arbitration.

I heard no evidence regarding the nature of the retainer, and am not prepared to infer that there was anything improper in the arrangements made between Mr. Henry, Mr. Ferro and the Applicant.

The second piece of evidence on which Allstate relies is a document, "Permission to allow Trauma Services to get help from the mediation/arbitration services of the Ontario Insurance Commission,"³ which Mrs. Grewal signed on February 14, 1996. In particular, Allstate relies on the provision that if Mrs. Grewal cooperated with Trauma Services in mediation and arbitration proceedings, she would not be held personally responsible for the payment of the Trauma Services account. Trauma Services in turn agreed that it would abide by the outcome of the arbitration proceedings, and not look to Mrs. Grewal for any shortfall in the outstanding account. The permission document in this case has been an issue in two previous arbitration cases, namely, Pereira and State Farm, and Strachan and Jevco⁴ I agree with and adopt the approaches taken and the reasons given by the arbitrators in those cases.

In Pereira, Arbitrator Allen noted that the Applicant did not assign or give up her right to commence the arbitration in the permission document, but agreed to cooperate in the recovery of the account by commencing the proceeding, attending and testifying at the arbitration. Arbitrator Allen noted that section 69 of the Schedule permits treatment providers to directly bill insurers for the treatment of insured persons. This permits impecunious insured persons to receive treatment they would otherwise not receive were they required to pay the treatment provider in advance. In Strachan, Arbitrator Bayefsky concluded that the Applicant had an interest in seeing that Trauma Services was paid for the services it had provided.

I agree with Arbitrators Allen and Bayefsky, that there are important policy considerations which favour a flexible approach to the matter of "retainer" and to the manner in which disputes are brought to the Commission so as not to restrict the access of accident victims to adjudication of their disputes at the Commission.

In this case, the arbitration application states that Mrs. Grewal is the Applicant. Mrs. Grewal attended at the arbitration and testified on two days. She testified that Trauma Services assisted her in her recovery, and that she wanted them to be paid. I find that under the terms of the permission document which she signed, Mrs. Grewal is implicitly liable for payment of the account if she failed to cooperate with Trauma Services' efforts to recover payment. I am satisfied that Mrs. Grewal has an interest in this arbitration. For these reasons, I find that this arbitration was properly instituted by Mrs. Grewal, and that I have jurisdiction to decide the issues raised in this arbitration.

Entitlement to the cost of an assessment and treatment

Background

Mrs. Grewal was injured in a motor vehicle accident on March 9, 1995. At the time of the accident, she was 35 years of age, and lived with her husband, three children, and mother-in-law. She was employed as a staple packer. Since her husband had recently purchased a franchise, Mrs. Grewal's salary was the primary source of income for her family. An additional mortgage had been placed on the family home to assist in the purchase of the new franchise.

On March 9, 1995, Mrs. Grewal was returning from working her usual shift at approximately 4:00 a.m. She was driving on a multi-lane ramp between highway 403 and highway 401, when she saw a vehicle driving towards her. That car was travelling in the wrong direction on the ramp. Mrs. Grewal changed lanes to avoid a collision; however, the driver of the oncoming vehicle followed into her new lane and struck her vehicle.

Mrs. Grewal's brother-in-law and his wife had recently been killed in a motor vehicle accident, and she was frightened that she would suffer the same fate. She was taken to hospital by ambulance, where x-rays were taken and she was released with a prescription for pain killers. She saw her family doctor, Dr. Malhotra four days later in follow up. Mrs. Grewal complained of pain to her neck, chest, back, shoulder, buttocks and right leg.

Assessments and treatment

Mrs. Grewal's family doctor, Dr. Malhotra, diagnosed myofascial strain and contusion to her chest. He prescribed medication for her pain and inflammation, and later referred her for physiotherapy. Mrs. Grewal began attending physiotherapy three times a week on March 30, 1995. The focus of those treatments was to reduce pain and muscle spasm, restore the range of motion to her right shoulder, cervical and lumbar spines, and increase her general flexibility.

Allstate retained The Rose Nursing Care Inc. in March 1995, to provide case management services. Lorna Penman, a registered nurse and rehabilitation counsellor, was assigned. Ms. Penman arranged for a kinesiologist who provided a home activation program to Mrs. Grewal between May and July 1995. The goal was for Mrs. Grewal to recover sufficiently by mid-June 1995, so that she could begin a graduated return to work program.

Ms. Penman described Mrs. Grewal as motivated to regain her health and return to work. However, she noted that Mrs. Grewal was very pain-focussed. She equated pain with disability and believed that she would recover with rest, rather than by engaging in physical activity. The rehabilitation counsellor and the physiotherapist both identified Mrs. Grewal's beliefs as being culturally-based. They attempted, as did the kinesiologist, to educate Mrs. Grewal on the difference between hurt and harm, with a view to changing her beliefs.

With what was described as "excessive encouragement," Mrs. Grewal performed her exercises. Initially, her participation in the physiotherapy program was described as "excellent." By May it was described as "somewhat motivated." Although Mrs. Grewal was able to increase her range of motion, she did not see her condition as improved because she continued to experience pain.

Mrs. Grewal testified that she was willing to listen to this education. However, as Ms. Penman noted, every increase in Mrs. Grewal's activity level was accompanied by an increase in pain, and she believed that she would re-injure herself or had re-injured herself. Her experiences tended to support her beliefs and heighten her fears that she would harm herself by increasing activity.

For example, following her first week of physiotherapy, she experienced an increase in low back pain. She went to the hospital and then to her family doctor. On April 12, 1995, Dr. Malhotra noted that Mrs. Grewal's myofascial strain had been exacerbated by physiotherapy, and instructed her to rest for two to three days before resuming the program. In May 1995, the Applicant began to complain of back pain, radiating into her left leg. The kinesiologist encouraged her to increase the number of times she did laundry. When she did so, she had a sudden onset of backache, difficulty bending forward, and consequently attended at Dr. Malhotra's office.⁵

In about July 1995, Dr. Sennik, an orthopaedic surgeon examined Mrs. Grewal at Allstate's request. He, too, noted "The patient is quite convinced that she's not able to go back to work because she's not feeling 100%... however, she has to get a positive attitude and start thinking of going back to work in the near future." Dr. Sennik was of the opinion that Mrs. Grewal would be able to return to her job following a five to six week work-hardening program.

In August 1995, WorkAble assessed Mrs. Grewal for a work-hardening program. She tested positive for all of the Waddell's non-organic physical signs and symptoms. Ms. Penman reported to Allstate that this was not "an intentional misrepresentation of pain and disability, but more likely a learned pattern of illness behaviour. This may have to be aggressively addressed in the near future. However, it should be first recognized by a future medical assessment with suitable recommendations."

WorkAble designed a work-hardening program to build Mrs. Grewal's strength, improve her cardiovascular condition, and simulate her work. They asked Mrs. Grewal to increase the intensity and duration of the exercises and increase the weight she lifted. She balked at increasing her pain further in order to increase her function. She repeatedly complained of being tired and in pain, and stated that increasing her exercises caused her pain. The WorkAble staff continued to repeat their requests, although that approach was not working. They are reported to have been of the opinion that sufficient education had now been given to Mrs. Grewal, and that it was now up to her.

On September 1, 1995, WorkAble discharged Mrs. Grewal due to poor effort and motivation. There is no indication in the discharge summary that any effort was directed at determining what lay behind Mrs. Grewal's apparent decline in motivation and effort, or at addressing the learned pattern of illness behaviour.

Mrs. Grewal testified that she was still experiencing pain and was becoming depressed. In her opinion, the staff at the work-hardening program pushed her too hard, and did not listen to her point of view. According to the clinical notes and records of her family doctor, in August 1995, Mrs. Grewal also had muscle spasm, difficulty sleeping, and anxiety. Dr. Malhotra changed her medication, and suggested that she see a chiropractor. In November, she complained of increased back pain, difficulty bending forward, and continuing difficulty sleeping at night. Dr. Malhotra referred her for further physiotherapy and prescribed medication to improve her sleep, and reduce her muscle spasm and depression.

The referral to Trauma Services

Mrs. Grewal continued to see her family doctor. By December 1995, Dr. Malhotra had prescribed various types of medication, made two referrals for physiotherapy and one for chiropractic treatments. He testified that he could not get her better. He was concerned that Mrs. Grewal was a young patient, with a young family, and, if left in that condition, would "fall through the cracks" and become a burden to society. Dr. Malhotra testified that in his opinion, Mrs. Grewal needed aggressive treatment of a multidisciplinary nature to get her to the point where she could respond to treatment.

In this arbitration Mrs. Grewal claims the cost of the assessment and treatment provided by Trauma Services. Allstate disputes that the assessment or treatment were reasonable or necessary.

Law

The Applicant claims the cost of the assessment under section 57 of the Schedule. Section 57(1) of the Schedule requires the insurer to pay for "all reasonable expenses incurred by or on behalf of an insured person in obtaining and attending an examination or assessment for the purpose of this Regulation or in obtaining a certificate or report for the purpose of this Regulation, including, (a) fees charged by a person who conducts an examination or assessment or provides a certificate or report;"

The Applicant also claims the cost of treatment as a supplementary medical benefit under section 36 of the Schedule, or as a rehabilitation benefit under section 40 of the Schedule. I find it appropriate to deal with Mrs. Grewal's claim under section 40 of the Schedule. I make this finding based on the statement in Trauma Services' letter addressed to Allstate, that it is a rehabilitation facility; the testimony of Ms. Nickason, an employee of Trauma Services, that Trauma Services is a rehabilitation organization; and the certificate signed by Dr. Malhotra that he was requesting assistance in rehabilitation planning and treatment for his patient. Dr. Malhotra also authorized the treatment program as "an essential, reasonable and necessary approach to the rehabilitation of my patient." In view of my finding, I do not need to go on to determine whether such services would also be payable under section 36 of the Schedule.⁶

Section 40 of the Schedule is set out as Appendix B. This is a broad section which makes generous provision for vocational and social rehabilitation measures required to remedy the effects of an impairment caused by an accident. "Impairment" is defined under section 1 of the Schedule as "a loss or abnormality of psychological, physiological or anatomical structure or function."

Counsel for the Applicant submitted that the services rendered by Trauma Services were reasonable and should be paid because they helped Mrs. Grewal get back to work. I do not agree that the Schedule imposes the test of success. Insured persons must make decisions to pursue rehabilitation programs, and insurers must make decisions as to whether to fund or fund and dispute the payment of such programs prospectively, not with the benefit of hindsight.

The Schedule requires the rehabilitation measures to be geared towards certain purposes: either eliminating the effects of disability under section 40(1)(a), or facilitating the insured person's reintegration into the family, the labour market and the rest of society under section 40(1)(b). However there is no requirement that any one measure meet the requirements of both section 40(1)(a) and 40(1)(b) of the Schedule.

Reasonableness

In the case of Plows and Jevco Insurance Company,⁷ Senior Arbitrator Rotter concluded that in the context of the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994, "reasonable" has two different, although not unrelated meanings:

• (1) in accordance with reason; not absurd, and,

• (2) within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair."

I agree with and adopt these meanings for purposes of section 57 and 40 of this Schedule.

Dr. Malhotra testified that in his opinion, Mrs. Grewal was suffering from a psychological impairment which was hindering her physical recovery, as well as 5 percent physical impairment of her body.⁸ He therefore referred her to Trauma Services for an assessment in December 1995.

Dr. deVeber, a neurologist also trained in psychiatry and rehabilitation medicine,⁹ physiotherapy and occupational therapy, assessed Mrs. Grewal at Trauma Services. Dr. deVeber reported that on examination, she found clear evidence of residual myofascial injury and spasm. In her opinion, Mrs. Grewal was also suffering from clinical depression, major anxiety due to the consequences of being unable to work, a loss of self esteem, a driving phobia and a sleep disorder. Mrs. Grewal also showed evidence of symptom magnification.

The assessors at Trauma Services concluded that the accident and sequelae had an impact on all areas of Mrs. Grewal's functioning and designed a treatment plan to improve her function in physical, emotional, recreational, financial and social family areas. Dr. deVeber recommended changes in Mrs. Grewal's medication so that she would be able to manage her pain without codeine, and receive better relief from her depression.

The treatment program involved the development of a therapeutic relationship between a nurse clinician and Mrs. Grewal. In Dr. deVeber's opinion, the establishment of trust in such a relationship would lead to a decrease in symptom magnification behaviour. The nurse clinician would use behavioural measures, such as biofeedback and relaxation techniques to reduce Mrs. Grewal's anxiety, remedy her sleep difficulties, and reduce her driving phobia.

The kinesiologist would design a program with stretching, strengthening and cardiovascular-conditioning components, to assist in reducing her pain, and in restoring her physical function. This would permit Mrs. Grewal to resume her work and family responsibilities and thereby decrease her depression. These aspects of the program involved direct treatment by staff employed by Trauma Services.

In addition, Trauma Services recommended chiropractic treatment and treatment by a psychiatrist to address her depression. These services were provided by persons who were not employees of Trauma Services. Dr. Malhotra and Dr. deVeber recommended the program as reasonable and necessary.

Allstate obtained an assessment of the treatment program from a designated assessment centre. That assessment was conducted by Dr. Dos Santos, a chiropractor, who examined Mrs. Grewal in March 1996. While he found restrictions in range of motion on examination, Dr. Dos Santos was of the opinion that these findings were unreliable because there were so many inconsistencies within the examination. His clinical impression was that there was no impairment, symptom magnification, and some deliberate deception attempted by Mrs. Grewal.

Dr. Dos Santos testified that he accepted that Mrs. Grewal was feeling the pain of which she complained, but in his opinion, it did not have an organic basis. Dr. Dos Santos was of the opinion that no further passive or active therapies were warranted, and that any counselling intervention was likely to reinforce Mrs. Grewal's pain behaviours. In his opinion, no further treatment was reasonable or therapeutically necessary.

Allstate retained Ms. Ringler, a physiotherapist and rehabilitation consultant, to review the Trauma Services treatment program. She recommended that Allstate obtain the clinical notes and records of the family physician to determine whether Mrs. Grewal's depression was related to the accident. Based on the information available to her, Ms. Ringler concluded that there was no physical or psychological impairment, and, in the absence of such impairments, no services were reasonable or necessary. She testified that symptom magnifiers have a poor response to treatment, and that this was a factor to be considered in determining whether treatment was reasonable.

Findings

Dr. Malhotra and Dr. deVeber were of the opinion that Mrs. Grewal had a psychological impairment. Ms. Penman, Allstate's case manager had identified Mrs. Grewal's difficulties as being non-organic in nature. Dr. Dos Santos testified that Mrs. Grewal's pain did not have an organic basis, although he accepted that she felt the pain of which she complained. Allstate's evidence did not otherwise address the issue of whether Mrs. Grewal was suffering from a psychological impairment. I accept the opinions of Dr. Malhotra and Dr. deVeber with respect to Mrs. Grewal's depression and find that she had a psychological impairment.

There was some issue as to whether Mrs. Grewal's depression was related to the accident. Mrs. Grewal testified that her ongoing pain caused her to be depressed, since she was worried that she would remain in pain for the rest of her life. Dr. Malhotra testified that her depression was secondary to her financial problems. His clinical note of January 9, 1996 also identifies her ongoing physical ailments, and her husband's financial problems as triggering factors.

Allstate submitted that the financial difficulties were due to Mr. Grewal's business problems, and should not be attributed to the motor vehicle accident. I accept that Mr. Grewal's failing business contributed to the financial stress. However, at the time of the accident, Mrs. Grewal's salary had been the principal source of the family's income. She was laid off from her job within two months of the accident, and her employer hired someone else to perform the job which she had held for approximately seven years. She was described as an excellent worker. The layoff took place before she was expected to begin a graduated return to work. I find that Mrs. Grewal's financial situation was compromised as a result of the accident. I find it probable that her pain, job loss and compromised financial situation, all of which resulted from the accident, contributed to her depression.

There is a clear conflict between the evidence of Dr. Malhotra and Dr. deVeber on the one hand, who found evidence of a physical impairment, and that of Dr. Dos Santos and Dr. Sawa on the other, who found none. I find it more likely than not that Mrs. Grewal was suffering from some residual physical impairment since she had not progressed in or completed the work-hardening program. I therefore prefer the opinions of Dr. Malhotra and of Dr. deVeber in this regard.

Given Mrs. Grewal's failure to respond to treatment, her depression, and her ongoing complaints of pain, I find that it was reasonable for her family physician to seek an assessment to provide recommendations for her rehabilitation and treatment. In light of her impairments, I also find that it was reasonable to provide services which were aimed at remedying the effects of those problems on the spheres of her life as provided in section 40 of the Schedule.

I generally accept Dr. deVeber's evidence that the program was designed to address Mrs. Grewal's psychosocial functioning, her residual physical impairment and to restore her pre-accident level of functioning. I find that these aspects of the treatment plan were reasonable measures to remedy the effects of her impairments and to facilitate her reintegration into the family and the labour market within the meaning of sections 40(1)(a) and (b) of the Schedule.¹⁰

The cost of the assessment and treatment

Assessment

Trauma Services states that it conducts "a comprehensive multidisciplinary assessment in which an individual's physical, emotional, recreational, financial and social well-being were assessed." Initially a nurse clinician interviews the client with respect to past history and current problems and reviews various reports. A kinesiologist then performs a functional assessment. After a briefing, the physician conducts a medical assessment. The members of the assessment team outline their findings, present recommendations for treatment and prepare a plan for rehabilitation. According to Trauma Services the usual cost of its assessments is between $2,000 to $3,000.¹¹ None of the evidence suggested that Mrs. Grewal's assessment was more extensive than the average assessment conducted by Trauma Services.

I find that the assessment as described by Trauma Services included the cost of the rehabilitation plan. I accept Ms. Nickason's testimony that the cost of the assessment was $3,557.94. These services are itemized in three invoices, each dated February 5, 1996. One invoice is in the amount of $2,707.94, the second is in the amount of $475 and the third in the amount of $375.These total $3,557.94. Allstate disputes that the cost of the assessment is reasonable.

I heard little evidence as to the usual cost or the reasonable cost of assessments. I have considered the other assessments which were provided in relation to Mrs. Grewal. The work-hardening assessment performed at Allstate's request by WorkAble was estimated to cost $600, and to involve the services of an occupational therapist and a kinesiologist for between 45 minutes and one hour. The report suggests that the assessment took longer than one hour. Allstate retained the services of an occupational therapist to conduct a worksite analysis and prepare a report, at a cost of $963. Dr. Dos Santos, a chiropractor, testified that when conducting assessments as a designated assessment centre, he charges $200 an hour.

The scope of each of the assessments is different, and different considerations may well apply in relation to each of the reports provided in this case. I am not persuaded that the evidence before me establishes that there is any standard billing practice in relation to the amount charged for assessments.

Mrs. Grewal had no significant pre-accident history. Trauma Services conducted an assessment nine months following the motor vehicle accident. The records available for review by the nurse clinician likely approximated 50 pages.¹² The kinesiologist did not complete his assessment due to Mrs. Grewal's discomfort. A physician conducted an assessment, and a report and treatment plan were generated. Trauma Services treated Mrs. Grewal's case as a straightforward one during the assessment in that it recommended no additional assessments.

I find that the fees charged for such an assessment should not exceed the low end of the range of fees quoted for such assessments by Trauma Services. As noted earlier Trauma Services states that the usual range for its assessments is between $2,000 to $3,000. At $3,557.94 the assessment exceeds the high end of the quoted range. I do not view the amount charged as reasonable, even when measured against the range of fees set by Trauma Services for its own assessments.

I have concerns about the accuracy and consistency of the billing records, and the redundancy built into the delivery of services. I find that items which are ordinarily treated as overhead expenses, (which are therefore already factored into the fees charged by the nurse, kinesiologist and physician), were billed in addition to the fees for professional services. These concerns are detailed below in relation to the treatment program, however they apply equally to the billings in relation to the assessment.

I find that $914.19, inclusive of disbursements is a reasonable fee for the assessment which was conducted in relation to Mrs. Grewal. I have based this on 6 hours of the nurse's time, half an hour for the kinesiologist as invoiced, and 2 hours for the physician. For reasons given under the heading "hourly rates," I find $50 an appropriate hourly rate for the services of the nurse and the kinesiologist. Dr. deVeber testified that her hourly rate was $250 per hour which was equivalent to what she would receive from the Ministry of Health. There was no evidence to the contrary. The disbursements billed at $89.19 appear to be reasonable. Allstate is required to pay the amount of $914.19 as the reasonable cost of the examination under section 57 of the Schedule.

The treatment program

Mrs. Grewal's family physician authorized Trauma Services to carry out the treatment plan. Trauma Services submitted an account for these services in the amount of $23,019.40.¹³ Allstate disputed that this amount was reasonable.

I heard a good deal of evidence with respect to different treatment models. I find that these are largely philosophical and ideological differences in approaches to delivering treatment. The question I have to determine is whether the cost of the measures was reasonable, that is to say fair, and not extortionate. I find that the amounts charged by Trauma Services were not fair or reasonable, but excessive.

According to Trauma Services, once a treatment plan has been developed, it "can be implemented by any appropriate facility."¹⁴ I find that reasonable services in Mrs. Grewal's case would be direct treatment to Mrs. Grewal by the nurse clinician and the kinesiologist, follow up medical evaluations to assess her progress, some case management services to ensure that appropriate referrals were made and to track her progress. Disbursements reasonably incurred in relation to those activities would also be payable.

In Mrs. Grewal's case there were two variables. One was her acute financial situation. She felt that this prevented her from participating in a treatment plan which lasted 24 weeks, since she needed to begin earning income in a much shorter time frame. Trauma Services took this into account and agreed to modify the program so that she could begin to work within the first six weeks of treatment, within her limitations, and possibly on a part-time basis. The nurse clinician also helped Mrs. Grewal to develop problem solving skills and coached her in relation to her return to work. The rationale was that if she regained her work role, this would assist in relieving her depression. The second variable was that Mrs. Grewal improved more quickly than had been anticipated. The response was to increase the intensity of the program. I find that Trauma Services' response to both variables was entirely appropriate. However I find that neither of these variables can account for the additional time or services which have been billed.

Redundancy

Trauma Services' structure for delivering services is such that a number of other persons, in addition to the nurse clinician, kinesiologist and the physician become involved in the file. These persons also bill their time in daily progress reports, and the insurer is invoiced for these services.

Ms. Ringler reviewed Trauma Services' records at Allstate's request. Her evidence was that 25 percent of the account relates to the services of case facilitators in relation to mediation and arbitration services. These persons have no background in the health sciences and provide no clinical input. Trauma Services' rationale for including this as part of treatment is that funding for rehabilitation expenses and services is needed in order to provide treatment. I am not persuaded that the present Schedule is sufficiently broad to encompass such activity as rehabilitation measures. I find that services such as file facilitation, case facilitation, team meetings, mediation and arbitration do not constitute treatment or rehabilitation measures. I find that Allstate is not required to pay for these services as rehabilitation measures under the Schedule.

One more example will suffice. On December 6, 1995, the team facilitator telephoned Mrs. Grewal, explained the services offered by Trauma Services, and booked an appointment for her assessment. On December 14, 1995, Mrs. Grewal telephoned the team facilitator to confirm the time of her appointment. Instead of responding to that query, the team facilitator relayed the inquiry to the nurse clinician.

That evening the nurse clinician made two unsuccessful attempts to reach Mrs. Grewal, and then called the team facilitator back. The same information from the team facilitator was again noted by the nurse clinician. The nurse clinician then telephoned Mrs. Grewal and left a message with her son. The billings for the nurse clinician's time were recorded as half an hour. I find it unreasonable that a facility which holds itself out as being client-centred would use such a circuitous and inefficient approach to respond to Mrs. Grewal's simple query. The insurer is not required to pay for such duplication of effort and waste.

I find that the approach used by Trauma Services in Mrs. Grewal's case involved a good deal of redundancy. While redundancy increases the cost of delivering services, if some benefit can be demonstrated, the increased cost may nevertheless be reasonable. The evidence before me did not suggest that there was any benefit to Mrs. Grewal in that redundancy.

Overhead

Trauma Services has billed for services which would generally be included in the hourly billing rates of the nurse clinician, kinesiologist and the physician, and expensed as part of overhead. For example, audits of the file were billed to the insurer. Audit and supervision costs go to improving the recording practices of the employee and satisfying consistency of practice within Trauma Services. In my view, these are overhead costs which are borne by the facility as an overhead expense, spread amongst all clients and factored into the hourly rate. I do not accept that these items are properly passed on directly to an individual client as an additional cost.

There are also billings for services which are more appropriately performed by administrative or clerical staff, than by a nurse clinician. For example, obtaining clinical notes and records, and following up with courier delivery problems. Again, these services are usually treated as part of overhead.

Hourly rates

Trauma Services staff testified that they work in a unique setting, and there is no identical job which can be compared to that of the nurse clinician. The closest job comparison they could find was the job of a case manager, whose billing rates ranged between $90 and $107 per hour.¹⁵ The rationale for increasing the billing rate to $125 per hour was to reflect the additional responsibility of providing treatment. Trauma Services claimed that most of the services they provided to Mrs. Grewal were treatment. I therefore find it puzzling that they would select the job of a case manager as the closest comparator.

Neither the nurse clinician nor the kinesiologist testified at the hearing. Both were recent graduates. The nurse clinician obtained her Bachelor of Science degree in Nursing in 1995, and part of her clinical experience was obtained in a hospital psychiatric and liaison unit.¹⁶ The kinesiologist graduated in June 1994. According to their resumes they began work at Trauma Services in June 1995, and these were their first full-time jobs as a nurse clinician and as a kinesiologist, respectively. Recent graduates have not yet developed much of the experience and "art" which develops with practice, and are seldom compensated at the upper end of a billing range.

Allstate submitted that the hourly billing rate of $125 charged by Trauma Services for the services of the nurses and kinesiologist was excessive. Allstate retained The Rose Nursing Care Inc. That company provided the services of a rehabilitation counsellor and a kinesiologist to Mrs. Grewal, and case management services to Allstate. The rehabilitation counsellor, Ms. Penman, was a registered nurse, who obtained her registration in Scotland in 1968 and in Ontario in 1976. Ms. Penman met with the Applicant, her family doctor and physiotherapist. She did some patient education, arranged for a kinesiologist to provide an activation program to Mrs. Grewal in her home, coordinated the services of the physiotherapist, kinesiologist and of the work hardening program, reviewed various reports, and provided fourteen reports to Allstate between March, 1995 and December 1995. Allstate provided a payment summary which states that it paid The Rose Nursing Care Inc. $691.49.

There was no evidence as to the number of hours Ms. Penman spent in providing these services, and it is unclear whether the amount paid also included payment for two and a half hours of the kinesiologist's services. The details of any contractual arrangements between Allstate and The Rose Nursing Care Inc. were not provided. Nevertheless, the amount of $691.49 is strikingly lower than the amounts billed by Trauma Services in relation to similar services.

Based on the limited evidence available to me, I am of the opinion that a more appropriate hourly rate for the services of the nurse clinician would be $50 per hour. Since Trauma Services billed the kinesiologist’s services at the same rate, I will also apply that rate to the kinesiologist’s services.

Travel time

The kinesiologist and the nurse clinician travelled to Mrs. Grewal’s home on most occasions to provide services. I find travel to her home was reasonable, since Mrs. Grewal had a driving phobia. I was provided with no evidence as to the amounts which professionals are usually paid during necessary travel.

I find that travel time should not be compensated at the same rate as the rate for providing treatment since professional skills are not being used during that time. I have considered that while travelling the nurse clinician and kinesiologist are unable to bill for professional services at their usual rate to other clients. However, Trauma Services made a decision to treat Mrs. Grewal knowing that she lived outside of Hamilton. I find that travel time should be paid at $25.00 per hour or half of their hourly rate. I have based this on the approach of the legal aid plan which compensates lawyers at approximately half of their hourly rate for professional services while travelling. The travel portion of the trip has not been separated from the treatment billing. When staff attended at Mrs. Grewal's home in Mississauga, I have attributed 90 minutes of the billing to travel time for a return trip.

Kinesiologist’s services

Allstate submitted that the services of the kinesiologist at Trauma Services duplicated services which Allstate had already provided to Mrs. Grewal. Dr. Malhotra testified with the benefit of hindsight, that in his opinion, the services which Allstate had arranged had been provided at too early a point in Mrs. Grewal’s recovery. I accept Dr. Malhotra’s opinion in this regard. Dr. deVeber noted that Mrs. Grewal was deconditioned at the time of her assessment.

The question of whether there has been a duplication of services is a relevant factor in determining whether services are reasonable, but is not in my view determinative. I accept that there will be cases, where an insured person is unable to benefit from therapies and services when they are initially offered. In my view, the Schedule does not preclude the provision of further services of a similar nature for valid reasons.

Allstate submitted that the kinesiologist’s expertise lay in setting up a physical activation program. He apportioned 3.75 hours to physical treatment, and the remainder to emotional, recreational, financial and systems issues. Since these areas fall outside of a kinesiologist's expertise, Allstate submitted that they should not be paid.

I have reviewed the kinesiologist’s daily progress reports with respect to the services provided. With the exception of half an hour billed in relation to "systems issues," that is to say, obtaining funding for treatment, I find that for the most part the kinesiologist was preparing the physical program, travelling to Mrs. Grewal’s home or providing the physical program contemplated. His breakdown of services across the various areas of functioning is probably due to Trauma Services philosophy that improving Mrs. Grewal’s physical function improves her function across all spheres of her life.

Cancellation fees

Allstate submitted that the amount charged for cancellation fees was excessive. I agree that more than 14 hours of cancellation time, if accurate, appears high. Trauma Services, like many treatment facilities, applies a cancellation policy where there is a failure to cancel within 24 hours. A cancellation policy is generally designed to ensure maximum service is provided to patients, maximum utilization of staff time, and a commitment by clients to the services offered. I find that cancellation fees are not a rehabilitation expense, and that Allstate is not required to bear this cost as a rehabilitation expense.

Records

Trauma Services' records in relation to Mrs. Grewal which were filed in this arbitration consist of a volume of typewritten reports and a one and a quarter inch thick volume of daily progress reports. Daily progress reports are sheets of paper in which staff can record the services performed, identify the nature of the activity, record the units of time, and disbursements. The daily progress reports are the source documents for the invoices. I find that records should be accurate and complete. I am not persuaded that this was always the case in relation to Mrs. Grewal.

Trauma Services primarily uses a time based method for billing its services, although some services are billed at a flat rate. The series of telephone calls on December 6, 1995 by the nurse clinician mentioned above also illustrates that the time recorded does not necessarily reflect the amount of time expended.

On December 6, 1995, the time and charges for each of the three calls to Mrs. Grewal's home were recorded at 1 minute per call, for a total of 3 minutes. The daily progress report however indicates 25 units, or 15 minutes was billed for telephone calls to the client. The call by the nurse clinician to the team facilitator is recorded as a further 25 units on the phone, or 15 minutes. Even if allowances are made for additional time to pull out the file, to dial the calls, and call the team facilitator, the actual time expended would be less than 10 minutes. Thus 30 minutes was billed for telephone calls which took less than 10 minutes of time. This is inaccurate and excessive.

I also have concerns as to the accuracy of the invoices. For example, Dr. deVeber testified that her follow-up medical report was flat-rate billed at $150; it appears twice on the invoices, once on the June 18, 1996 statement of account, and again on the July 19, 1996 statement. On each occasion it is billed as $250. In other words $500 was invoiced instead of $150. The June statement reflects the date of the service as May 27, 1996; the July statement reflects that date as May 28, 1996. There are also instances where time recorded in the daily progress reports is not reflected on the invoices.

Although most services were billed on the basis of time recorded to have been expended, the monthly progress reports were billed at a flat rate. One of these reports was audited by the team leader, on March 13, 1996, and this audit gave rise to an additional fee billing. As noted earlier audit costs are part of overhead. The nurse clinician's amendment to the monthly progress report following the audit gave rise to yet another fee billing.

The rationale for flat rate billing is that the same amount is charged for the item or service regardless of the actual time expended or who touches the file in relation to that item. It is inconsistent to charge a flat rate in relation to a service in some circumstances and in others to bill additional fees in respect of the same service. Trauma Services did not for example discount its flat rate billing of $320 to the Insurer for monthly progress report number 6 in its August 1996 statement because the total amount of time billed for all services during July 1996 was less than an hour.

The daily progress reports are not always in chronological order; at times they do not contain a breakdown of the amount of time spent treating the client. This makes it difficult at times to determine whether amounts billed as treatment are actually treatment. For example, on February 14, 1996, a team client meeting re "systems issues" is billed as treatment. The amount of time billed was 5.75 hours by the nurse clinician. This is most of a working day. I find that a meeting regarding funding for treatment does not constitute treatment. According to the daily progress report, during the meeting Mrs. Grewal became tearful and had difficulty composing herself. It is possible that there was a treatment component in dealing with Mrs. Grewal's distress, or that there was a treatment session prior to or following the team client meeting, or it may be a case of mis-labelling the meeting as treatment.

At times there appear to be missing daily progress reports. For example, the services on March 8, 1996, were invoiced as 1.8 hours of treatment. The daily progress report states that it is page 1 of 4 pages and states "See attached." The next page states that it is page 2 of 2 and states "advise client via phone." The corresponding disbursement for the long distance telephone call is $6.00. The next daily progress report is dated March 11, 1996. Insufficient details were provided in these documents to permit me to determine whether any of the 1.8 hours described as treatment in the invoice, was in fact treatment. The $6.00 telephone disbursement suggests that little of the time for this billing was spent in contact with Mrs. Grewal.

An invoice should be transparent. The prospective payer should be able to readily determine the nature of the services which were performed as well as the amount charged. In reviewing the invoices and comparing them against the daily progress reports, I note that items such as case management, preparation for mediation, and attendance at mediation which are not treatment, were invoiced as treatment.

Since all time-based billings were charged at the same hourly rate, these distinctions may not seem relevant to the persons recording the services. However, this practice can have significant ramifications because the Schedule requires the prospective payer in this case, Allstate, to pay rehabilitation benefits pending resolution of the dispute. On the other hand, case management services are not payable pending resolution of the dispute, unless the insurer agreed in advance to the appointment of a case manager.

Conclusion

I have attributed nine hours of travel time to the kinesiologist, and fifteen hours to the nurse clinician at 15 hours, for a total of 24 hours. At $25 per hour this amounts to $600.

I have reviewed the accounts and the corresponding daily progress reports to determine, insofar as this is possible, what amounts should be allocated to treatment. I have allowed as treatment expenses, the kinesiologist’s services for Mrs. Grewal’s rehabilitation, including preparation of a stretching program, and the nurse clinician’s services such as progressive muscle relaxation techniques, other measures to reduce her anxiety, and psychosocial counselling.

I have determined those amounts for the period between February 8, 1996, following the authorization of treatment by the family physician, and May 31, 1996. Dr. deVeber examined Mrs. Grewal on or about May 27, 1996, and concluded that further treatment was not necessary. According to the daily progress reports, on June 11, 1996, the nurse clinician then purported to instruct to kinesiologist to prepare a work hardening program for Mrs. Grewal. Despite Dr. deVeber’s opinion, Trauma Services continued to bill for Mrs. Grewal’s treatment.

There was one telephone contact with Mrs. Grewal on August 8, 1997, more than a year later. Nevertheless, Trauma Services continued to generate monthly follow-up reports. The last invoice for services is dated September 23, 1997. I accept Ms. Ringler's evidence that it is difficult to understand how Trauma Services was able to provide follow-up reports without meeting with or speaking with Mrs. Grewal during this period of time. I do not find it reasonable that services beyond May 30, 1996 should be billed or paid as treatment.

I find that of the services which have been invoiced as treatment, during the relevant period, 14.1 hours of the kinesiologist, and 14 hours of the nurse clinician have been recorded and described in the daily progress reports as treatment. In light of my serious concerns as to the accuracy of the time records, I find it appropriate to discount the amount of this treatment time by 30%. The amount which I have allowed for treatment amounts to $983.50.

I find that the services recorded in the daily progress reports as case management total 21.44 hours.¹⁷ Given the redundant levels of service which I find did not contribute to Mrs. Grewal's rehabilitation, as well as my serious concerns as to the accuracy of the time records, I have discounted these hours by 85%. The amount payable for case management is $160.80.

In addition, there is the flat rate billing by Dr. deVeber for the follow-up medical in May 1996 in the amount of $250. Dr. deVeber testified that it should have been in the amount of $150. In addition I have allowed for her consultation with the nurse clinician for half an hour on April 1, 1996, in the amount of $125, for a total of $275.

I find that disbursements for telephone calls and mileage charges by a case facilitator and corporate transportation in relation to mediation, all relate to the mediation process, and are not rehabilitation expenses. I find that the arbitration filing fee is an expense of the arbitration, not a rehabilitation expense. The amount which Allstate is required to pay as disbursements is therefore $1,220.80

In summary, the total amount which I find payable as a rehabilitation benefit is $3,240.10. Whereas the invoices from Trauma Services for the assessment and rehabilitation services totalled $26,577.34; I have found $4,154.29 to be reasonable. I conclude that the charges billed by Trauma Services were excessive and unreasonable.

Interest

Mrs. Grewal is entitled to interest on overdue benefits in accordance with section 68 of the Schedule.

Special Award

Section 282(10) of the Insurance Act provides for the payment of a special award where an arbitrator is of the opinion that an Insurer has unreasonably withheld or refused to pay benefits. Mrs. Grewal claims a special award. Although I have found that benefits are payable, I do not view this as an appropriate case in which to make a special award.

The Insurer brought evidence which supported its position that Mrs. Grewal did not suffer from a physical impairment, and that the treatment was not reasonable or necessary. There is also some question as to whether the Applicant disclosed relevant medical documentation on a timely basis. One of the grounds on which she sought an adjournment of the hearing was her failure to provide all of her family physician's clinical notes and records. Those records were requested as early as August 1995 by the rehabilitation counsellor retained by Allstate.

Section 40(7) of the Schedule obliges an insurer to pay rehabilitation benefits, pending resolution of the dispute, subject to the provisions of sections 40(8), and 45(11)(b) and 45(12). Arbitrators have held that an insurer's failure to pay benefits which the Schedule requires to be paid pending resolution of a dispute, is evidence that benefits have been unreasonably withheld, and have made special awards. In this case I find that at least two of the provisos apply to exempt Allstate from an obligation to pay benefits pending resolution of the dispute.

Section 40(8) provides that the insurer is not required to pay case management expenses pending resolution of the dispute, unless the insurer has agreed to the appointment of a case manager before the expense was incurred. There was no such agreement in this case, and no special award would therefore be payable for a breach of the Schedule in relation to any amounts which I have determined are payable as case management expenses.

Section 45(11)(b) provides that an insurer is not required to pay a rehabilitation benefit pending resolution of the dispute if an assessment of a medical and rehabilitation designated assessment centre states that the rehabilitation expense claimed is not reasonable and necessary. Allstate obtained such an opinion. For these reasons, I conclude that Allstate did not unreasonably withhold the payments of benefits claimed by the Applicant. I find that the Applicant is not entitled to a special award.

Expenses

The Applicant seeks an award of her expenses. An arbitrator has a discretion to award these expenses pursuant to section 282(11) of the Insurance Act. In light of the excessive and unreasonable charges which were pursued in this arbitration, I exercise my discretion to award Mrs. Grewal half of her reasonable expenses in respect of the arbitration.

Order:

1. Allstate Insurance Company of Canada shall pay Mrs. Grewal $914.19, as reasonable expenses incurred in obtaining an assessment under section 57 of the Schedule., $3,240.10 as reasonable rehabilitation expenses under section 40 of the Schedule, together with interest calculated according to section 68 of the Schedule.

2. Allstate Insurance Company of Canada shall pay Mrs. Grewal half of her reasonable expenses in respect of the arbitration.

July 22, 1998

Suesan Alves

Arbitrator

Date

APPENDIX A

Hearing:

The hearing was held at the offices of Mark Nimigan in Hamilton, Ontario, on October 6, 7, 8, and 9, 1997, and on December 12, 1997, before me, Suesan Alves, Arbitrator. Written submissions were received from counsel for the Applicant on December 17 and 18, 1997 and from counsel for the Insurer on December 23, 1997. The Applicant's Reply submissions were received on December 29, 1997.

Present at the Hearing:

Applicant:

Kuldip Grewal

Mrs. Grewal's Representatives:

Michael J. Henry

Barrister and Solicitor

Lou Ferro

Barrister and Solicitor

Allstate's Representatives:

Stuart Aird

Barrister and Solicitor

James Greve

Barrister and Solicitor

Allstate’s Officer:

Doug Morgan

Witnesses:

Mrs. Kuldip Grewal

Ms. Paula Nickason

Dr. Verinder Malhotra

Ms. Caryn Lynne Paupst

Dr. Gabrielle deVeber

Dr. David Richard Dos Santos

Ms. Patricia Noelle Balardo

Ms. Leanna Susan Ringler

Exhibits:

Exhibit 1

Copy of Employer's Confirmation of Income

Exhibit 2

Laser photocopies of vehicle damaged in accident

Exhibit 3

Copy of Proof of Loss

Exhibit 4

Insurer's Arbitration Brief

Exhibit 5

Copy of letter from Automatic Staple Manufacturing Inc.

Exhibit 6

Copy of account from Finchgate Treatment and Rehabilitation Centre

Exhibit 7

Copy of statement of account from McLaughlin Road Chiropractic Centre

Exhibit 8

Copy of Application for Accident Benefits

Exhibit 9

Copy of Allstate Insurance Company's Initial visit - disability questionnaire

Exhibit 10

Copy of essential daily tasks - employed

Exhibit 11

Applicant's Brief of Documents - two volumes

Exhibit 12

Permission to allow Trauma Services to get help from the mediation/arbitration services of the Ontario Insurance Commission dated February 14, 1996

Exhibit 13

Copy of resume of Paula Nickason

Exhibit 14

Statement summary and detailed invoices

Exhibit 15

Trauma Services Billing Scale effective January 17, 1996

Exhibit 16

Trauma Services Staff Coding

Exhibit 17

Resumes of Leah Lewis, Clae Willis, Karen Boelhouwer, Lydia Potocnik, Les Kelemen, Kevin Wolf, Matthew Fretz, Cynthia Moran, Freddi Macdonald-Puckerin,Trauma Services staff

Exhibit 18

Fax referral form and medical certificate prescription

Exhibit 19

CT-Scan report from Peel Memorial Hospital

Exhibit 20

Health Practitioner Certificate from Dr. Malhotra dated March 28, 1995

Exhibit 21

Letters from Allstate to Dr. Malhotra dated July 25, 1995 and April 3, 1996

Exhibit 22

Resume of Caryn Lynne Paupst

Exhibit 23

Correspondence between Trauma Services and Allstate

Exhibit 24

Breakdown of disbursements incurred, prepared by Paula Nickason

Exhibit 25

Letter from Trauma Services to Allstate dated April 16, 1996 and from Allstate to Trauma Services dated May 13, 1996.

Exhibit 26

Letter from Trauma Services to Dr. Faulhaber dated March 1, 1996.

Exhibit 27

Extracts from Guide to the evaluation of permanent impairment

Exhibit 28

Two surveillance videotapes

Exhibit 29

Copy of clinical notes and records of Dr. Malhotra in relation to Mrs. Grewal

Exhibit 30

Letter dated December 4, 1995 from Allstate to Dr. Malhotra

Exhibit 31

Resume of Patricia Balardo, Nurse Clinician

Exhibit 32

Diagram re: Scope of Practice for Nurse Clinician, and extracts from Regulated Health Professions Act - A Practical Guide by Linda S. Bohnen, B.A., LL.B.

Exhibit 33

Diagram: Nurse and scope of practice trauma medicine in relation to other regulated health care professionals

Exhibit 34

Memo from Caryn Paupst, Marketing, re Billing Rates

Exhibit 35

Curriculum Vitae of Dr. Gabrielle A. deVeber

Other Documents Before the Arbitrator:

Reports of Mediator dated April 18, 1996 and April 19, 1996

Application for the Appointment of an Arbitrator dated May 10, 1996, and facsimile of an Application for the Appointment of an Arbitrator dated November 6, 1996

Response to an Application for Arbitration, dated June 27, 1996

Letter from Vince Burnett dated January 29, 1997

Appendix B

Sections 40 of the Schedule

PART VIII

REHABILITATION BENEFITS

Entitlement to Benefits

40.—(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable measures,

(a) to reduce or eliminate the effects of any disability resulting from the impairment; and

(b) to facilitate the insured person's reintegration into his or her family, the labour market and the rest of society.

(2) The payments required by subsection (1) for the purpose of facilitating the insured person's reintegration into the labour market include payment for vocational rehabilitation measures that are reasonably necessary to enable the person to,

(a) engage in an employment that is as similar as possible to employment in which he or she engaged before the accident; or

(b) lead as normal a work life as possible.

(3) In determining what payments are required under subsection (2), regard shall be had to the insured person's personal and vocational characteristics.

(4) The payments required by subsection (1) for the purpose of facilitating the insured person's reintegration into his or her family and the rest of society include payment for social rehabilitation measures that are reasonably necessary to,

(a) return the insured person as much as possible to the family and social situations in which he or she lived before the accident;

(b) assist the insured person to adjust to family and social situations as a result of the accident; and

(c) maintain the insured person's level of function within the home and family.

(5) The payments required under this section include payment of all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for a purpose referred to in clause (1)(a) or (b) for,

(a) social rehabilitation, including life skills training, family counselling, social rehabilitation counselling, financial counselling, home renovations and home devices to accommodate the needs of the insured person, vehicles, vehicle modifications to accommodate the needs of the insured person, and communications aids for the insured person’s home;

(b) vocational rehabilitation, including employment counselling, vocational assessments, vocational training, academic training, workplace modifications and workplace devices to accommodate the needs of the insured person, and communications aids for the insured person’s employment;

(c) services provided by a case manager related to the coordination of medical, rehabilitation and attendant care services for the insured person;

(d) transportation for the insured person to and from counselling sessions, training sessions and assessments, including transportation for an aide or attendant;

(e) other goods and services that the insured person requires.

(6) Transportation expenses under clause (5)(d) in respect of an insured person's automobile are limited to expenses for fuel, oil, maintenance, tires and parking.

(7) Subject to subsection (8), clause 45(11)(b) and subsection 45(12), the insurer shall pay an expense under subsection (5) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act.

(8) The insurer is not liable to pay an expense under clause (5)(c) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act unless the insurer agreed to the appointment of the case manager before the expense was incurred.

Footnotes

1. 1Arbitration5_PDF_format_2_Part_2_Sanjay_FN
2. 2I declined the adjournment request.
3. 3Exhibit 12
4. 4Pereira and State Farm Mutual Automobile Insurance Company (June 19, 1997), OIC A96-000996, and Strachan and Jevco Insurance Company (September 30, 1997), OIC A96-001602.
5. 5Clinical notes and records of Dr. Malhotra, July 27, 1995
6. 6Section 36 of the Schedule provides that if an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person with respect to specific services and items, as well as other goods and services of a medical nature which an insured person requires.
7. 7(January 16, 1992), OIC A-000175 and OIC A-000588
8. 8Dr. Malhotra testified that he is in the process of obtaining a fellowship in disability medicine.
9. 9Dr. deVeber is a Diplomate of the American Board of Psychiatry & Neurology. She testified that a third of the Boards which she completed were in psychiatry. She testified that she also completed a fellowship program in rehabilitation medicine between 1990 and 1991.
10. 10Although copies of invoices for chiropractic and massage treatment were filed as an exhibit, no claim was asserted for payment of these treatments at the pre-hearing or the arbitration hearing.
11. 11Letter from L. Lewis, Exhibit 23, testimony of Dr. deVeber
12. 12This estimate is based on 38 pages of "Outside medical reports and records" at Tab 5 of Exhibit 11, together with Dr. Malhotra's clinical notes and records as filed.
13. 13$26,577.34 less $3,557.94 for the assessment.
14. 14Letter from L. Lewis dated December 8, 1995, Exhibit 23
15. 15Memo re Billing Rates from C. Paupst compared billing rates among six Toronto based offices of case management firms
16. 16This is one of seven items at three hospitals and one nursing home listed under "Clinical experience" on the nurse clinician's resume. No dates are given. Since this item was not listed on her resume as part of her employment history, I have assumed that this was part of her training towards her BscN degree.
17. 17In this total I have included a calculation of 2.56 hours for each of four monthly progress reports. The $320 flat rate billing was divided by the hourly rate of $125 to determine the equivalent time charge for each