Neutral Citation: 1999 ONFSCDRS 251
FSCO A97-001958
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
GHITI IRAVANI-FARD
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
November 1, 2, 3 and 4, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Robert N. Franklin for Ms. Iravani-Fard
Guy Farrell for Zurich Insurance Company
Issues:
The Applicant, Ghiti Iravani-Fard, was injured in a motor vehicle accident on October 28, 1996. She applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.1 Zurich refused to pay the accounts of Target Rehabilitation Centre ("Target") after April 3, 1997 and the accounts of Sheppard Leslie Chiropractic Clinic after May 16, 1997. The parties were unable to resolve their disputes through mediation, and Ms. Iravani-Fard applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to payment of chiropractic expenses pursuant to paragraph 36(1)(b) of the Schedule in the amount of $1,798.68?
Is the Applicant entitled to payment of rehabilitation expenses pursuant to subsection 40(1) of the Schedule in the amount of $7,158.54?
Result:
The Applicant is not entitled to payment of chiropractic expenses pursuant to paragraph 36(1)(b) of the Schedule in the amount of $1,798.68.
The Applicant is not entitled to payment of rehabilitation expenses pursuant to subsection 40(1) of the Schedule in the amount of $7,158.54.
EVIDENCE AND ANALYSIS:
Background:
Mrs. Iravani-Fard suffered soft tissue injuries to her neck and shoulder in a motor vehicle accident on October 28, 1996 when the vehicle in which she was a passenger struck another vehicle. The collision occurred at an intersection during rush hour. Mrs. Iravani-Fard was 41 years old at the time. She cared for two children aged 19 and 12 and attended high school classes in English as a second language, math and computers.
She went home from the accident scene and awoke the next day stiff with pain. She visited her family doctor, Dr. A Hadian, who referred her to Dr. Shahidi at the Sheppard Leslie Chiropractic Clinic. Dr. Roshan Ahmad was employed at the Clinic and she treated Mrs. Iravani-Fard. She referred Mrs. Iravani-Fard to Target for rehabilitation.
On November 12, 1996, Dr. Ahmad completed a certificate under sections 37 and 43 of the Schedule that chiropractic treatment on a regular basis and active rehabilitation were both required. On November 13, 1996, Dr. Hadian completed a certificate under the same provisions indicating that Mrs. Iravani-Fard was under the care of a chiropractor and in answer to the question "Is any other treatment required?" he replied "Pending looks unlikely."
Mrs. Iravani-Fard underwent regular chiropractic and rehabilitation treatment from October 3, 1996 until the spring of 1997 when a medical/rehabilitation assessment at a Designated Assessment Centre ("DAC") concluded that such treatment was not reasonable or necessary. Zurich terminated benefits for rehabilitation at Target effective April 3, 1997 and for chiropractic treatment effective May 16, 1997 on the basis of the DAC report.
Dr. Ahmad continued to render chiropractic treatment until September 12, 1997. These treatments are in dispute.
Target continued to render rehabilitation treatment until September 12, 1997. These treatments are also in dispute.
Mrs. Iravani-Fard returned to school and completed her math and English courses. She dropped out of the computer course. Mrs. Iravani-Fard now works part-time with a nursing service helping elderly people. She still complains of neck and shoulder pain.
Legal Test:
For payment of an expense under section 36, such as a chiropractic expense, the insurer may require the insured to furnish a certificate from the insured person's health care practitioner stating that the expense is reasonable and necessary for the person's treatment. Similarly, for payment of a rehabilitation expense under section 40, the insurer may require the insured to furnish a certificate from the insured person's physician stating that the expense is reasonable and necessary for the insured person's rehabilitation.
The question therefore is whether the chiropractic and rehabilitation expenses Mrs. Iravani-Fard incurred after April 3, 1997 and May 16, 1997 were necessary and reasonable.
Description of treatment:
Mrs. Iravani-Fard always first attended at the Sheppard Leslie Chiropractic Clinic for chiropractic treatment from Dr. Ahmad and then went downstairs in the same building to Target for rehabilitation. Mrs. Iravani-Fard attended treatment at both facilities about 100 times in the ten months following the accident. At the chiropractic sessions, Mrs. Iravani-Fard relayed her complaints to Dr. Ahmad and Dr. Ahmad applied hot pads, electric current and ultra sound to Mrs. Iravani-Fard's shoulder, neck and back. She also manipulated her joints. Mrs. Iravani-Fard said that the treatment relaxed her so that she could exercise.
After the chiropractic treatment Mrs. Iravani-Fard went downstairs to Target. She spent from 30 minutes to two hours at Target for an average of about one hour per session. For the first four months she went about 12 times per month. Thereafter, she went about eight times per month. Every two weeks Mrs. Iravani-Fard saw either Dr. G. Maistrelli, an orthopaedic surgeon, or Dr. C.G. Morana, a family doctor, who were employed by Target, to examine her and express an opinion on whether she required further rehabilitation. A kinesiologist, usually Ms. Allison Wallace, prescribed and supervised the exercises.
Mrs. Iravani-Fard's described a typical attendance at Target. She arrived in her exercise clothes. She rotated her neck for about five minutes. She followed pictures on the walls which showed her how to stretch. She stretched her quadriceps muscle by holding her heal behind her with her hand. She lifted her arms while laying on the floor. She made circles with her arms for about 20 minutes. She rode a stationary bicycle for 10 to 20 minutes. She walked on a treadmill for 5 to 20 minutes and she used a stepping machine. She also pulled down a bar attached to weights to strengthen her shoulders. She testified that she did not do anything else.
Usually two kinesiologists were present in the gym to supervise and encourage one to five patients. They recorded the patient's blood pressure, pulse, length of time on the machines, range of motion and progress on the weights. The patients were not given appointments and could come and leave as they wanted.
Target charged $150 per attendance for each patient regardless of how long the patient stayed or the number of patients present.
Nature of Evidence:
I received a number of expert opinions on the reasonableness and the necessity of the treatment Mrs. Iravani-Fard underwent after Zurich terminated benefits in the spring of 1997. Dr. Ahmad, Dr. Morana, and Dr. Z. Szaraz, a chiropractor, testified for Mrs. Iravani-Fard. Dr. Bruce Makos, a chiropractor, and Ms. Maureen Dwight, a physiotherapist, testified for Zurich. I also received a number of reports from experts. They all agreed that, although there may be guidelines and principles for treating whiplash injury, each case is individual and may require treatment outside the guidelines. I therefore reviewed the evidence particular to Mrs. Iravani-Fard to determine whether the treatment she received was reasonable to alleviate the pain she suffered from the soft tissue injuries to her neck, shoulder and back and to restore function.
Analysis:
I examined the evidence surrounding the exercise Mrs. Iravani-Fard did before and after the accident to determine the level of supervision and encouragement she needed.
Mrs. Iravani-Fard was a member of the YMCA at the time of the motor vehicle accident and exercised twice a week. She testified that the equipment at the "Y" was the same as the equipment at Target. After the accident and while attending Target she continued to attend the " Y" on weekends, mostly for sauna, but she also occasionally used the stationary bicycle and exercise programs. She testified that she was embarrassed to exercise at the "Y" after the accident because she felt slow and did not know how to use all the equipment.
The progress reports of Target indicate that Mrs. Iravani-Fard was motivated and required little supervision or encouragement.
After Target and Dr. Ahmad stopped providing treatment on September 12, 1997, Mrs. Iravani-Fard obtained a stationery bicycle and a step machine from a friend and continued to exercise at home every day. She also visits a friend and uses the exercise room in her apartment building. Mrs. Iravani-Fard testified that she learned how to check her pulse herself and she felt better and more confident that she could do it herself.
I find that Mrs. Iravani-Fard was motivated to exercise on her own and that she required no supervision. She felt better when she could do things on her own. She described all the exercises she did at Target. The exercises were repetitive and uncomplicated. I find that after the kinesiologist showed her a particular exercise a few times, Mrs. Iravani-Fard did not need the kinesiologist for instruction or motivation. If Mrs. Iravani-Fard felt any embarrassment at exercising at a regular gym, or if she required assistance using slightly different equipment, I find that she could have overcome any problem with the assistance of a kinesiologist for a few hours on joining a gym.
Target charged $150 per session per patient. This amount covered overhead and medical assessments and reports. The major component of the hourly rate was for the services of the kinesiologist who was paid $16 per hour. I find that the hourly rate of $150 charged by Target was excessive in the case of Mrs. Iravani-Fard. I also find that Mrs. Iravani-Fard did not require any assistance from Target after April 3, 1997. I therefore find that the expense of $7,158.68 for rehabilitation at Target for the period April 3, 1997 to September 12, 1997 is not a reasonable or necessary expense.
I now consider the claim for payment of chiropractic expenses.
A number of chiropractors testified that a chiropractor must elect whether to bill for each service they provide or bulk bill for all services. For example, the 1997 Ontario Chiropractic Association Fee Schedule recommends that a chiropractor charge separate rates of $12 for interviewing the patient, $16 for spinal manipulation therapy, $10 for electrical current therapy and $15 for applying pressure to and stretching soft tissue. Where the chiropractor so elects, he or she can charge a bulk figure for all services provided regardless of which of the four services are provided. The preponderance of evidence was that most chiropractors elect to bulk bill and that the $46.27 which Dr. Ahmad charged per session was a reasonable bulk bill. I therefore accept $46.27 as a reasonable rate.
Zurich paid for the first six months of chiropractic treatment but refused to pay for treatment for the next four months on the basis of the DAC report. Dr. Ahmad testified that she continued to provide treatment after six months because Mrs. Iravani-Fard continued to improve. She also testified that she stopped when Mrs. Iravani-Fard's condition plateaued. She also said that Mrs. Iravani-Fard's pain became worse in March 1997 when she did not attend for treatment for 13 days while she was attending the DAC. Dr. B. Nikols reported that Dr. Ahmad followed the recommended approach by withdrawing treatment and then resuming treatment when Mrs. Iravani-Fard's condition deteriorated.
I examined the communications between Mrs. Iravani-Fard and Dr. Ahmad for other evidence of why Dr. Ahmad continued to treat Mrs. Iravani-Fard through the summer of 1997 when Dr. Ahmad knew that the DAC report said that the chiropractic treatment was not recommended and that Zurich would not have to pay unless ordered to pay.
Mrs. Iravani-Fard had no knowledge of the DAC report and was under the mistaken impression that Zurich terminated payment for chiropractic treatment on September 12, 1997. She did not know what this dispute was about and she had no other explanation for why chiropractic treatment was terminated.
She went to appointments as directed by the employees of Sheppard Leslie Chiropractic Clinic and Target and stopped when someone at Target or the chiropractic clinic told her that Zurich had refused to pay for further treatment. No one told her that Zurich had terminated benefits four months earlier.
I find that Dr. Ahmad did not discuss with Mrs. Iravani-Fard her need for further treatment nor did she tell her that she stopped treatment because her condition had plateaued and would not benefit from further treatment.
Further, Dr. Ahmad evaded answering questions about who decided to terminate treatment on September 12, 1997.
In these circumstances, I find it likely that from the spring of 1997, when Zurich terminated benefits, to September 12, 1997, when someone told Mrs. Iravani-Fard that Zurich had terminated benefits, Dr. Ahmad did not turn her mind to the question of whether further chiropractic treatment was reasonable or necessary. I therefore do not accept her opinion that she terminated treatment because Mrs. Iravani-Fard's condition had plateaued.
Mrs. Iravani-Fard had very little to say about the benefit she received from chiropractic treatment after Zurich stopped paying May 16, 1997. She said that her attendances for chiropractic treatment and rehabilitation helped with her pain but that her pain returned after two hours. She did not distinguish between rehabilitation treatment or chiropractic treatment except that the chiropractic treatment helped her prepare to exercise. She also said that since treatment stopped, she still suffers from pain and that she has undertaken OHIP-funded physiotherapy and acupuncture. She said that she had four acupuncture treatments, the last treatment four weeks before this hearing. She has not sought further chiropractic treatment even though, according to the evidence of Dr. Nikols, OHIP contributes a maximum of $220 per year for chiropractic treatment.2
Dr. Z. Szaraz, a chiropractor, examined Mrs. Iravani-Fard in September 1999 at her request. He reported that the chiropractic treatment helped her a great deal at the beginning. Dr. Ahmad treated Mrs. Iravani-Fard for ten months. Dr. Szaraz' evidence does not tend to establish that the treatment helped Mrs. Iravani-Fard for the last four months in dispute.
Dr. B. Nikols prepared a report for Mrs. Iravani-Fard. He did not examine her or ask her whether the chiropractic treatment helped. He reviewed the file and concluded that the treatment provided by Dr. Ahmad was not negligent or sub-standard. He did not express a clear opinion on whether the last four months of chiropractic treatment was reasonable and necessary. His report does not help me determine whether the last four months of chiropractic treatment was reasonable and necessary.
I do not find any persuasive or reliable evidence that Mrs. Iravani-Fard received any particular benefit from chiropractic treatment after May 16, 1997.
On the other hand, the medical/rehabilitation DAC report shows a fair understanding of Mrs. Iravani-Fard's history, level of function before and after the accident and her complaints. The opinion of the assessors that Mrs. Iravani-Fard should direct her own exercise program is consistent with my view of the evidence. I find its opinion that Mrs. Iravani-Fard discontinue chiropractic treatment in April 1997 is reasonable.
I am therefore not satisfied that the $1,798.68 chiropractic expense was reasonable or necessary for her treatment.
EXPENSES:
If the parties cannot agree on the issue of entitlement of expenses of the arbitration proceeding, either party can apply through the registrar's office within 60 days, for an appointment for me to determine the issue.
December 17, 1999
William J. Renahan
Arbitrator
Date
Neutral Citation: 1999 ONFSCDRS 251
FSCO A97-001958
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
GHITI IRAVANI-FARD
Applicant
and
ZURICH INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as amended, it is ordered that:
The Application for Arbitration is dismissed.
The issue of entitlement to expenses is deferred.
December 17, 1999
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
- The Sheppard Leslie Chiropractic Clinic account indicates that in 1997 OHIP contributed $9.65 per treatment.