Neutral Citation: 1999 ONFSCDRS 4

FSCO A98-000388

BETWEEN:

ANGELO TSIMIDIS Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: M. Kaye Joachim

Heard: November 2 and 3, 1998, at the Financial Services Commission of Ontario, Toronto. Final submissions were received on December 9, 1998.

Appearances: Gary M. Spector for Mr. Tsimidis David G. Lavkulik for Liberty Mutual Insurance Company

Issues:

The Applicant, Angelo Tsimidis, was injured in a motor vehicle accident on February 3, 1997. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ A claim for payment for the cost of a functional capacity evaluation and a surface electromyography ("surface EMG") was refused by the Insurer. The parties were unable to resolve their disputes through mediation, and Mr. Tsimidis applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is the Applicant entitled to payment for the cost of a functional capacity evaluation and a surface EMG pursuant to section 24 of the 1996 Schedule?

Mr. Tsimidis also claims interest on any overdue payments and his expenses incurred in the arbitration proceeding.

Result:

Mr. Tsimidis is entitlement to payment for part of the cost of a functional capacity evaluation and surface EMG pursuant to section 24 of the 1996 Schedule, being the amount of $637.50, plus interest, in accordance with section 46 of the 1996 Schedule.
Mr. Tsimidis is entitled to his expenses of the arbitration proceeding.

EVIDENCE AND ANALYSIS:

Background

Mr. Tsimidis is 68 years old. He was employed as an automotive engine rebuilder at the time of the motor vehicle accident of February 3, 1997. He saw his family physician, Dr. Kong-Ting, who initially diagnosed neck sprain, lower back strain and whiplash disorder. Mr. Tsimidis later developed headaches, dizziness, left arm numbness and blurred vision. A treatment plan submitted on February 24 by his treating physiotherapist recommended six more weeks of physiotherapy. By letter dated March 10, 1997, the Insurer advised that it would fund six weeks of physiotherapy, with progression to active treatment in three weeks and immediate implementation of a range of motion exercises. Mr. Tsimidis attended physiotherapy for approximately six weeks, before payments were terminated by the Insurer. The Insurer also assigned a kinesiologist from the Canadian Rehabilitation Institute to do an assessement of daily living and a job analysis.

In April 1997, Mr. Tsimidis began seeing Dr. S. Bergman as his family physician, because Dr. Bergman's office was closer to his home. Dr. Bergman was concerned about the recommendation of "active" physiotherapy set out in the Insurer's proposed treatment plan, because of Mr. Tsimidis's history of hypertension and his complaints of severe headaches. Dr. Bergman spoke with the Insurer's adjuster and advised that he wished to do his own assessment of Mr. Tsimidis before submitting a treatment plan.³

In May 1997, the Applicant attended an orthopaedic medical examination at the request of the Insurer. A scheduled functional capacity evaluation also requested by the Insurer was not carried out at that time, apparently because of concerns about Mr. Tsimidis' hypertension.

In the meantime, Dr. Bergman arranged for various assessments of Mr. Tsimidis in order to gain a complete understanding of his condition and to prepare a treatment plan. One of the assessments requested was a functional capacity evaluation, including a surface EMG by Back in Motion Diagnostic Services. The assessment was conducted on July 21, 1994 and a report was prepared on August 7, 1997 by Dr. Taverniti, a chiropractor.

After receiving Dr. Taverniti's report, as well as a psychiatrist's report, kidney function and nerve conduction studies and updates on Mr. Tsimidis' hypertension status, Dr. Bergman submitted a treatment plan to the Insurer on October 10, 1997.

Dr. Taverniti submitted his account for the functional capacity evaluation ($800) and the surface EMG ($475) study directly to the Insurer. The Insurer declined to pay the account. The issue in this hearing is whether the Applicant is entitled to payment of Dr. Taverniti's account pursuant to section 24 of the 1996 Schedule, which states, in part:

24(1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including,

(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan;

(b) fees charged by a designated assessment centre; and

(c) transportation expenses incurred in transporting the insured person to and from an examination or assessment, including transportation expenses for an aide or attendant.

The Applicant's counsel argued that Dr. Taverniti's fees for the functional capacity assessment and surface EMG were reasonable expenses which were incurred for the purpose of assisting Dr. Bergman to prepare a treatment plan, and as such, were expenses incurred for the purpose of the Regulation. The Insurer's counsel argued that the submitted expenses were medical or chiropractic "services" under subsection 14(2) of the 1996 Schedule and could only be claimed under that provision. Alternatively, the Insurer submitted that if the Applicant can claim these expenses under section 24, the Applicant must still meet the procedural requirements of section 38. The Insurer also asserted that the expenses claimed relate to services which were experimental in nature and therefore, not payable, pursuant to subsection 14(3). Finally, the Insurer submited that the cost of Dr. Taverniti's reports were not reasonable, because the quality of the reports were so poor. The Insurer's arguments will be addressed in greater detail, below.

Cost of Examinations pursuant to section 24:

Under previous Schedules, applicants often sought repayment for medical assessments and reports under the medical benefit provision of the applicable Schedule. For accidents prior to January 1, 1994, section 23 of the 1990 Schedule.⁴ only addressed payment for certificates required to support a claim for weekly benefits. However, arbitrators have held that the cost of other assessments and reports may be recoverable as medical services under the medical benefit provision of the 1990 Schedule⁵ The 1994 Schedule ⁶ specified the insurer's obligation to pay the cost of medical examinations and assessments pursuant to section 57. Applicants sometimes continued to claim payment, and payment has been ordered for the cost of medical assessments and reports as a "medical service" under the medical benefit provisions of the 1994 Schedule, although these expenses could have been claimed in the alternative under section 57.⁷

The Insurer argued that section 24 of the 1996 Schedule applies only to assessments and examinations which are specifically referred to in the Regulation (such as disability certificates, treatment plans, insurer's examinations, DAC reports or reports requested by the insurer pursuant to section 33) and that to give a broader interpretation would render the words "for the purpose of this Regulation" in section 24 meaningless. The rules of statutory interpretation require that every provision of a statute should, if possible, be given meaning.

Not only must the whole Act be read, but every provision of the Act should, if possible, be given meaning; hence, if there are rival constructions the general principle is that the construction that gives effect to the whole of the statute, or to the provision under consideration, should be adopted in preference to one that renders part thereof meaningless. ⁸

The Insurer argued that "for the purpose of this Regulation" must mean something more than "related to the accident" as it is self-evident that assessments and examinations unrelated to a motor vehicle accident would not be covered.

In my view, section 24 must be interpreted to include those examinations, assessments, certificates, reports or treatment plans which are obtained in furtherance of claims for benefits set out in the 1996 Schedule. This interpretation does not render the words "for the purpose of this Regulation" meaningless, any more than, for example, the words "as a result of an accident" in the medical benefits section.⁹ In section 14 it is equally self-evident that insurers would not be required to pay benefits in respect of impairments which did not result from the accident, yet those words are included, for greater clarity.

This interpretation of section 24 is consistent with the scheme of the Regulation. Part V of the Regulation, in which the provision for medical benefits is found, deals with medical, rehabilitation, attendant care and case manager services. All these services are aimed at helping applicants return to or function at their pre-accident level of functioning. The provisions of Part VI on the other hand, deal with specific pecuniary losses which arise from the accident, such as housekeeping expense, expenses of visitors, and in the case of section 24, the costs associated with obtaining medical examinations and assessments. Examinations and assessments which are conducted primarily for the purpose of assessing an applicant's condition (to determine or justify entitlement to benefits), rather than for the purpose of returning the applicant to pre-accident levels of functioning, fall under section 24. On the evidence before me, Dr. Tavemiti's assessment fits within section 24.

In this case, the Applicant's treating physician obtained the functional capacity evaluation and the surface EMG studies to obtain a clear picture of the Applicant's medical condition prior to preparing a treatment plan to address the impairments sustained in the accident. The Applicant was not referred to Dr. Taverniti for chiropractic treatment, in which case the initial assessment prior to treatment might more appropriately be viewed as a medical benefit under section 14. This was a purely diagnostic referral for assessment purposes. In my view, the requested assessments and subsequent reports are "assessments" within the meaning of section 24 of the 1996 Schedule.

The Insurer argued that this interpretation would open the door to claims for reimbursement for all medical reports requested by applicants, including medico-legal reports. The Insurer noted that such reports would be more appropriately claimed as legal expenses under the expense regulation.¹⁰ I note that the report in this case is not a medico-legal report and the issue of whether such reports could be claimed under section 24 is not before me.

The Insurer further argued that functional capacity evaluations are not encompassed within section 24, since they are not specifically listed in that section, whereas functional capacity evaluations are specifically mentioned in paragraph 42(5)(b).¹¹ I find that the terms "assessment" and "examination" are broad enough to include functional capacity evaluations and surface EMG studies.

The Insurer also argued that the functional capacity evaluation and the surface EMG studies are listed as "services" under the Ontario Chiropractic Association Recommended Service Codes and Fee Schedule and that arbitrators have consistently treated these types of initial examinations and reports as "medical services," payable under the medical benefits provision of the various Schedules. The Insurer argued that the Applicant must claim reimbursement for all medical or chiropractic¹² services under the medical benefits provision. I disagree. Many of the expenses which the Insurer concedes are included in section 24 (disability certificates and treatment plans) are also "medical services." Virtually everything a medical practitioner does, whether it is conducting an examination, or writing a report is a "medical service." Some medical services might be more appropriately claimed under the medical benefits section, while other medical services are more appropriately paid for under the cost of examinations provision. Dr. Taverniti was not asked to provide any chiropractic treatment to Mr. Tsimidis. He was simply asked to conduct a functional capacity evaluation, including a surface EMG study, and to provide a report to the family physician for the purpose of assisting Dr. Bergman to prepare a treatment plan for the purpose of the Regulation. That type of assessment can appropriately be claimed under section 24.

Section 24 subject to section 38

The Insurer argued that even if the Applicant can appropriately claim payment for this expense under section 24, he is still subject to the requirements of section 38, that is, the insured must submit a treatment plan, the treatment provider must disclose conflicts of interest, and the treatment must be subject to a DAC assessment at the insurer's request.

The Insurer argued that the Legislature intended section 38 to apply to all medical "services," and that assessments conducted pursuant to section 24 are medical "services." As I stated previously, not all medical services need to be claimed under the medical benefits provision. Medical services such as assessments and examinations and the provision of disability certificates, reports, and treatment plans, are more appropriately claimed under section 24. If I applied the Insurer's reasoning to its logical conclusion, then every disability certificate, every insurer medical examination, and every DAC examination, which are all technically medical services, would also be subject to section 38. This would lead to a ludicrous result.

Had the Legislature intended section 24 expenses to be subject to the requirements of section 38, it would have stated so in section 24 or in section 38. Section 38 falls within Part X, Procedures for Claiming Benefits. Each provision within Part X states which procedure applies to which benefit. For example, section 34 requires a person who claims income replacement benefits, non-earner or caregiver benefits to provide a disability certificate. Section 38 requires applicants to submit a treatment plan in respect of medical and rehabilitation benefits. There is no similar requirement for claiming section 24 expenses.

The Insurer argued that the purpose of requiring applicants to submit treatment plans in advance¹³ of obtaining services is to allow the Insurer some input into the medical services to be received by applicants. This is equally a concern with respect to section 24 expenses. By failing to submit a treatment plan in this case, the Insurer argued that it had no opportunity to provide relevant information to Dr. Taverniti, to ask relevant questions, or to suggest alternative and cheaper suggestions.

Similarly, the Insurer argued that the legislative purpose of requiring applicants to disclose conflicts of interest between the treatment provider and the applicant, or to submit to a DAC assessment process if requested, is equally applicable to section 24 assessments.

I find that the purpose of section 24 is not thwarted by the failure to apply the section 38 requirements to submit a treatment plan in advance, to disclose conflicts of interest, or to submit to a DAC assessment. The procedural safeguards set out in section 14 address ongoing treatment or service, whereas those safeguards are not required for the purely diagnostic assessments which fall within section 24. This is not to say that applicant-initiated examinations and assessments are not subject to scrutiny. Section 24 provides for reimbursement for "reasonable expenses." That requirement is discussed more fully below.

Experimental Services

In the further alternative, the Insurer argued that the procedures used by Dr. Taverniti were experimental in nature and were excluded by virtue of section 14(3). As the Applicant has not claimed the cost of Dr. Taverniti's services under section 14, but under section 24, the expense is not subject to an "experimental" defence.

Reasonable Expenses:

Section 24 requires the Insurer to pay for "reasonable expenses" incurred in obtaining assessments and reports. Arbitrators have considered several factors in determining whether the cost of examinations, assessments and reports is reasonable, both with respect to reimbursement for medical benefits and medico-legal reports. Those factors are equally applicable to assessing the reasonableness of costs incurred pursuant to section 24.The reasonableness requirement relates to whether obtaining the service was reasonable¹⁴ and whether the quality and value of the medical report justifies the cost.¹⁵

The Insurer argued that obtaining the functional capacity assessment and surface EMG study was neither reasonable, necessary, required by the accident, or of significant benefit to the Applicant. The latter three conditions are not preconditions to reimbursement under section 24. I find that the referral to Dr. Taverniti was reasonable in the circumstances, as part of Dr. Bergman's overall assessment of Mr. Tsimidis, in preparation for the completion of a treatment plan. The Insurer's own kinesiologist recommended in March 1997 that Mr. Tsimidis' current abilities be assessed, to determine if Mr. Tsimidis was capable of returning to work. The Insurer scheduled a functional capacity assessment, in conjunction with an orthopaedic examination in May 1997, but the functional capacity evaluation was not completed at that time, apparently due to concerns about Mr. Tsimidis' hypertension.

The Insurer further argued that the quality and value of Dr. Taverniti's assessments and reports did not justify the expense of $1,275.

Mr. Tsimidis' assessment took approximately four hours. The assessment included a history taking and a review of complaints, the completion of questionnaires, the surface EMG and then a functional capacity evaluation using the ARCON computerized testing system. Dr. Taverniti conducted the surface EMG personally, and the kinesiologist administered the functional capacity evaluation. Dr. Taverniti interpreted the results of the functional capacity evaluation and the surface EMG and dictated the report. The functional capacity evaluation portion of the report was 25 pages long, although many pages were simply computer-generated standard paragraphs or results calculated by the ARCON program. The surface EMG portion of the report was 12 pages, mostly computer-generated.

i) Functional Capacity Evaluation

I find that Dr. Taverniti's $800 fee for the functional capacity evaluation was within the recommended guidelines of the Ontario Chiropractic Association for such services and the cost was not unreasonable in light of the work and expertise involved. His report was considerably less expensive than a functional capacity evaluation requested by the Insurer from AssessMed ($1985) and slightly less expensive than one requested by the Insurer from North York Rehabilitation ($925). However, I find that the quality and value of Dr. Taverniti's reports was questionable.

Dr. Bergman did not forward to Dr. Taverniti reports on Mr. Tsimidis' pre-accident activities of daily living or pre-accident employment, although they were in his medical file. Although Dr. Taverniti obtained some information from Mr. Tsimidis, this information contradicted the information obtained from the Applicant during a work site assessment. In particular, Dr. Taverniti obtained information that Mr. Tsimidis was required to lift up to 200 lbs. Dr. Taverniti reported that this was a critical job task. However, the work site evaluation, conducted in Mr. Tsimidis' presence, indicates that in fact, two persons are involved for lifts of engine blocks greater than 120 lbs. The maximum weight that Mr. Tsimidis was required to lift alone was a 60 lb engine component.

Dr. Bergman testified that he did not think it was important to provide this (or indeed any) information to Dr. Taverniti since he was not concerned with Mr. Tsimidis ability to return to work. He testified he wanted to generally obtain information about Mr. Tsimidis' capacities. The difficulty with Dr. Bergman's approach is that a functional capacity evaluation is meaningless taken out of context. What any individual is capable of lifting, pushing, pulling, etc. in relation to the normal population may be interesting information in the abstract, but it does not help the physician or the insurer judge whether that individual is suffering any deficits in lifting, pushing, pulling, etc, resulting from an accident. Dr. Bergman testified that he wanted the results of the functional capacity evaluation to prepare the treatment plan. But the treatment plan is supposed to assist the Applicant in relieving or reducing his particular impairments resulting from the accident, not necessarily in returning the Applicant to function comparable to the normal population. The literature submitted by the Applicant confirms the importance of measuring functional limitations in terms of the Applicant's particular activitites of daily living and work.¹⁶

I find that the failure to provide Dr. Taverniti with available information with respect to Mr. Tsimidis pre-accident activities of daily living and pre-accident work history severely undermines the value of his report. Without this information, Dr. Taverniti's conclusions about Mr. Tsimidis's restrictions and deficits is of limited value.

By comparison, I note that the functional capacity evalutions conducted at AssessMed and North York Rehabilitation included a review of extensive medical documentation and specifically included a review of Mr. Tsimidis' activities of daily living and the work site evaluation.

However, Dr. Taverniti's functional capacity evaluation quantified Mr. Tsimidis' capacity to lift, push, pull, etc. without discomfort, and indicated his range of motion, without discomfort. As a result of the testing, Dr. Taverniti was able to confirm that Mr. Tsimidis was deconditioned and had restricted range of motion due to pain and muscle strength deficit. He recommended a functional restoration program consisting of physical reconditioning, education on injury and pain management, stress management, and behavioural goals centred around treatment and pain modulation (passive treatment). He also recommended physical conditioning of specific muscles needed in lifting, general flexibility, overall strengthening and muscular and cardiovascular endurance.

As a result, Dr. Bergman prepared a treatment plan in October 1997 recommending physiotherapy treatment and massage treatment. The Insurer argued that this is precisely what the treatment plan approved by the Insurer in March 1997 suggested and that Dr. Taverniti's involvement in the process did not add anything of value.

While Dr. Bergman's proposed treatment plan did not differ significantly from the plan initially agreed to by the Insurer in March 1997, Dr. Bergman was justified in investigating the appropriateness of the proposed plan, in light of Mr. Tsimidis complaints of severe headaches, which contraindicated any active exercise program at that time.

Further, the results of the functional capacity evaluation reflect measurable restrictions which can be used to measure future progress. In addition, the evaluation provides information with respect to sensitivity to various movements and positions, along with weight-bearing tolerances which could be useful to the treating therapist in preparing an exercise program. Accordingly, I find that the functional capacity evaluation served some useful purpose, despite its weaknesses. In light of the failure to provide Dr. Taverniti with relevant available information outlined above, I would discount the value of the functional capacity evaluation report by one-half, and would assess the reasonable cost to be $400.

ii) Surface EMG Study

Dr. Taverniti charged $475 for the surface EMG study and report, which is within the OCA guidelines for testing and the provision of a report. Dr. Taverniti testified that it takes approximately 35 to 40 minutes to calibrate the machine and administer the test. He tested three sets of muscles: the cervical paraspinal muscles, the lumbar paraspinal muscles and the lower cervical and upper thoracic paraspinal muscles. Dr. Taverniti's 12-page surface EMG study was largely standardized paragraphs and computer-generated test results. The results of the study showed "unexpected" results and "abnormal" results in all muscles tested. Dr. Taverniti's report did not explain the significance of these findings. From the literature provided by Dr. Taverniti, it appears that abnormal surface EMG results "correlate" with patient complaints of low back pain.

I find the value of Dr. Taverniti's report on the results of the surface EMG study questionable in light of his failure to explain what the surface EMG actually measures and in light of his failure to explain the significance of the results. Frankly, after reading the report and the literature I am no further ahead in understanding the significance of an abnormal reading. I also find it significant that Dr. Bergman, who requested the surface EMG study, did not testify why he requested it or how he found it useful in preparing his treatment plan.

Dr. Taverniti testified that a surface EMG indicates whether there is a problem with muscle contraction, which indirectly indicates whether there is muscle atrophy. This information, which is potentially relevant and useful information, is not contained in the report.

I would reduce Dr. Taverniti's account by 50 percent in light of the weaknesses in his report of the results, outlined above. Accordingly, his account is reduced to $237.50 for this part of the assessment.

In summary, Mr. Tsimidis is entitled to $637.50 for Dr. Taverniti's fees for the functional capacity evaluation, the surface EMG study, and corresponding reports.

Interest:

By virture of subsection 46(1), a payment in respect of a benefit is overdue if the insurer fails to pay the benefit within the time requried under this Part (being Part X). In accordance with section 41, Part VI benefits, (including section 24 expenses), are due within 30 days after the insurer receives the application for benefits. Dr. Taverniti submitted his account on August 7, 1997. Although the form of the account was not an application for benefits, the Insurer responded on September 12, 1997, denying the expense under section 24, and did not request that the account be submitted in any other form. I find that Dr. Taverniti's account (in the reduced amount of $637.50) became overdue from September 7, 1997. In accordance with subsection 46(2), the Insurer shall pay interest on the overdue amount at the rate of 2 percent per month compounded monthly.

As the Applicant has been successful in establishing entitlement under section 24 and as this was clearly a "test" case pursued by the Insurer to challenge the limits of section 24, I exercise my discretion to award the Applicant his expenses of the arbitration proceeding.

January 6, 1999

M. Kaye Joachim Arbitrator

Date