Neutral Citation: 1999 ONFSCDRS 5

FSCO A97-000755

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ROBERTO PINTUCCI

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

DECISION

Issues:

Roberto Pintucci was injured in a motor vehicle accident on October 23, 1994. He received weekly income replacement benefits from Jevco Insurance Company ("Jevco"), payable under the Schedule,¹ until June 1995 when he returned to work. About ten months later, Mr. Pintucci left his work, because he felt his injuries from the accident had returned or been aggravated, leaving him again disabled. Jevco refused to reinstate Mr. Pintucci's weekly benefits on the basis that the disability in May 1996 did not arise from the accident of October 1994. The parties were unable to resolve their disputes through mediation, and Mr. Pintucci 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:

1. Is Mr. Pintucci entitled to weekly income replacement benefits from May 17, 1996 to July 28, 1997 on the basis that, as a result of sustaining an impairment in the October 1994 accident, he suffered a substantial inability to perform the essential tasks of his employment during this period?

2. Is Jevco required to pay various amounts for chiropractic, massage therapy, acupuncture, and computerized imaging expenses claimed by Mr. Pintucci as being incurred as a result of the accident?

3. Is Jevco required to pay an additional $428.00 for an examination and report by Dr. S. Bergman, dated September 21, 1996, pursuant to section 57 of the Schedule?

Mr. Pintucci also claims interest on any amounts owing and his expenses incurred in the hearing.

Result:

1. Mr. Pintucci is not entitled to weekly income replacement benefits from May 17, 1996 to July 28, 1997

2. Jevco must pay Mr. Pintucci's chiropractic, massage therapy, and acupuncture treatments until December 31, 1996, when it notified the various clinics of the results of the medical and rehabilitation assessment (DAC). Jevco must pay interest on these amounts, pursuant to section 68 of the Schedule.

3. Jevco is not required to pay a further $428.00 for the examination and report by Dr. S. Bergman, dated September 21, 1996.

The details of the hearing and those present are listed in the Appendix.

Evidence and Findings:

On October 23, 1994, Roberto Pintucci, then age 32, was returning home on his motorcycle when he was hit from behind by a car as he turned into his driveway. He was taken to hospital, examined and released that same night, with instructions to see his family doctor the next day. He saw Dr. S. Bergman, a general practitioner, on October 25, 1994 for the first time. On November 17, 1994 Dr. Bergman completed a health practitioner's certificate, diagnosing post traumatic headaches, neck pain, pain in both shoulders, back pain and anxiety. Mr. Pintucci had already been referred to physiotherapy by that time.

Following the accident, Mr. Pintucci was off work as a solid waste collector with a city public works department for about eight months, until June 18, 1995. He returned to work and continued working for about ten and a half months, until May 3, 1996.² After that date, he went on sick leave, claiming that he could no longer work as a result of a recurrence or aggravation of the injuries he received in the accident. He complained of disabling pain in his low back and neck and occasional numbness in his mid-back. Mr. Pintucci returned to work on August 11, 1997 and has been able to work since that time.

The main disagreement between Mr. Pintucci and Jevco is the cause of his disability from May 3, 1996 until August 11, 1997. Jevco says that it is not responsible to pay Mr. Pintucci either income replacement benefits or supplementary medical expenses because any disability he suffered during this time was not caused by the 1994 accident. Jevco contends that any disability in 1996 and 1997 was caused by a work-related injury, perhaps a repetitive strain injury to Mr. Pintucci's back, due to the heavy nature of his job. Secondly, apart from the cause of his problems, Jevco also submits that Mr. Pintucci could have returned to his job earlier than August 1997.

Conclusion on Causation

The provisions of section 14 of the Schedule promote early return to work by injured persons, with protections allowing a return to weekly income benefits if the person is unable to continue as a result accident-related injuries.³ Mr. Pintucci falls within the class of persons described by section 14(1), because he returned to work on June 18, 1995, during the 104 weeks following the onset of his disability. I must determine whether after May 3, 1996, it was "as a result of the accident, he ... [was] unable to continue in the employment."

Mr. Pintucci testified that when he returned to work in June 1995 he was feeling "about 80 to 90% around there—almost 100%—maybe 95% [recovered]." He had been undergoing regular massage therapy, chiropractic adjustments, and acupuncture treatment to try to condition his muscles to return to work. He was doing some stretching at home, but not a lot of exercises. He admitted that he returned to his usual job, not light duties, and continued in his full duties to May 1996. Throughout those ten and a half months, he continued with these same passive therapies.

Little documentation was filed at the hearing about Mr. Pintucci's decision to stop work on May 3, 1996. No report specifically about this decision from his family doctor, Dr. Bergman, was presented, nor are Dr. Bergman's clinical notes in evidence. Mr. Pintucci testified he stopped work because of a gradual increase in his low back pain. He stated, "It gradually built to a point where I don't think I could have done it anymore." Dr. Michael Hall's second orthopaedic report of August 6, 1996, however, discloses Mr. Pintucci also told him that his decision to stop work was based on his family doctor's advice. No such recommendation is clearly delineated in Dr. Bergman's report of September 21, 1996 which states that:

His treatment included reassurance, pain killers as Tylenol of different strengths, home exercises, physiotherapy, massage and acupuncture. We advised the patient to buy an orthopedic mattress in order to improve his sleep. The treatment helped the patient and he was able to return to work in June, 1995, but in May, 1996, due to an exacerbation of his pain, he had to stop working.

[emphasis added]

Mr. Pintucci was assessed by Dr. Bergman on March 21 and April 25, 1996 before stopping work, and every week during the month of May 1996 after he stopped work.

At the arbitration hearing, Mr. Pintucci was carefully questioned by Jevco's lawyer about Dr. Hall's initial examination of April 26, 1996, one week before he stopped work. Dr. Hall records under the heading "Present Complaints"in his report of April 26, 1996 the following:

Head: He gets the odd headache, not very often . He sometimes is briefly dizzy for ten seconds at a time but this does not seem to be a problem.

Eyes: No complaints

Ears: No complaints.

Jaw: No complaints.

Neck: This cracks when it feels stiff, and the muscles get stiff along the yoke at times.

Back: He sometimes has a burning feeling between the shoulder blades. He sometimes has some sharp pain in the low back when he is lifting garbage.

Arms: Once in a while he gets tingling in all of the digits of both hands when he is seated. Otherwise he has no complaints in regard to the arms.

Legs: He has had two occasions when the legs have felt numb but this has not persisted. He sometimes has a sharp pain in the right knee when he is lifting. He himself has been an instructor in health and safety in regard to lifting and understands proper body mechanics. (...)

Other: The patient was asked if there were any complaints other than those listed, and stated that there were none.

Dr. Hall recorded the following comments with respect to Mr. Pintucci's neck and back after his physical examination of him on April 26, 1996:

Neck: He indicates soreness at the right trapezius muscle but is not tender to moderately firm pressure. He executes quite briskly a full range of movement through flexion, extension, lateral flexion and rotation.

Back: There are no areas of tenderness. He flexes forward with normal spinal curvature and rhythm, bringing the fingertips within one inch of the toes. He returns with normal spinal mechanics to the upright position. Extension, lateral flexion and rotation are all taken through a full range without apparent difficulty or discomfort and without any increase in muscle tone.

Mr. Pintucci did not remember that his back was not tender under Dr. Hall's palpation, but he did not deny that this was Dr. Hall's finding. He agreed that he could bend fully for the examination. He testified that he did the best moving as he could.

Jevco did not send Mr. Pintucci to see Dr. Hall in relation to a claim for weekly income benefits, because he was working at the time. Nothing in any record before me suggests it was apparent, or even contemplated, that Mr. Pintucci's condition had worsened on April 26, 1996 so that he would be forced to stop work on May 3, 1996, just a week later. Dr. Hall's concluding comments address the treatment Mr. Pintucci was then receiving, for which Jevco was paying.

He is now getting a surprising amount of treatment, comprising chiropractic treatment, massage treatment, and acupuncture by his family physician. I can understand that after a day's heavy work he finds that massage eases sore muscles, but I do not believe there is any clinical necessity for this, nor that it is related in any way to the motor vehicle accident of October 23, 1994. I do not believe that he is in need of any form of treatment as a result of that accident. He might do well to engage in a recreational exercise program but that would be something for him to decide.

Dr. Hall examined Mr. Pintucci again on August 6, 1996, when he had been off work about three months. Dr. Hall thought that Mr. Pintucci should have active treatment through a structured exercise program "rather than passive treatment by manipulation and acupuncture in which I personally have no belief." As to the question of what caused Mr. Pintucci's recurrence of back pain, Dr. Hall wrote:

The issue is whether the accident of October 1994 can be held responsible for recurrence of back pain in a man who does heavy work moving garbage, who returned to work in June of 1995 and had no significant discomfort until March of 1996. I do not believe that the accident can be held responsible for this current back pain.

Examination of the billing records of Mr. Pintucci's massage, chiropractic, and acupuncture treatments disclose no increase in frequency of treatment until after Mr. Pintucci stopped work on May 3, 1996. Such an increase might have been a response to Mr. Pintucci's report of gradually increasing pain. Certainly the frequency of chiropractic and acupuncture increased after May 3, 1996. No other narrative treatment records were filed, nor did any treating health practitioner other than Dr. Slivka, Mr. Pintucci's chiropractor, testify. Dr. Slivka's letter of July 14, 1996 to Jevco indicates that the exacerbation had occurred while Mr. Pintucci was at work and prior to April 30, 1996. If an acute event was involved, then that incident would likely have occurred on April 29 or 30th, since those were the first two work days after Dr. Hall's examination of April 26, 1996.

Dr. Perry Tepperman, a physiatrist, examined Mr. Pintucci at Jevco's request on December 9, 1997. Dr. Tepperman's qualifications include ten years' experience as a specialist in physical medicine and rehabilitation, eight years' experience as an Assistant Professor in that specialty at the University of Toronto and five years' experience as a medical disability assessor for a Designated Assessment Centre (DAC) for examinations under the Schedule. Dr. Tepperman reported on his examination of Mr. Pintucci by letter dated December 13, 1997. He supplemented his report in his testimony at the hearing, following receipt of further information about Mr. Pintucci's treatment between August 1995 and February 1996. During those seven months Mr. Pintucci attended for ten chiropractic treatments (August 15 to February 13), 17 massages and five acupuncture treatments.

In his original report of December 13, 1997, Dr. Tepperman concluded as follows:

Based on review of presently available documentation and the balance of probabilities, it is far more likely that Mr. Pintucci's neck and back symptoms are due to the daily repetitive mechanical stresses to his spine incurred by his ongoing heavy work activities rather than the accident of October 23/94.

The additional information about passive treatment Mr. Pintucci received from August 1995 to February 1996 did not change Dr. Tepperman's opinion about the cause of his work stoppage in May 1996.

At the hearing, Dr. Tepperman stressed that a disabling repetitive strain injury can occur without an acute event. He testified that it was difficult to attribute causation to the accident on the basis of Mr. Pintucci's testimony that his back "felt the same" in May 1996 as after the accident injury in October 1994. Dr. Tepperman testified that the layperson tends to focus on an acute event, no matter how remote it is, to attribute causation of health problems. Dr. Slivka agreed that a patient's tendency to relate how they are feeling to an earlier traumatic event does not necessarily mean the two are related. Dr. Slivka also testified that his patients, who work at collecting garbage and other jobs where lifting is required, have a high incidence of back strain.

Mr. Pintucci was performing a "medium heavy" job, outdoors, for ten and a half months following his return to work, in June 1995, when he testified he felt 95% or 100% recovered. He continued some passive treatment throughout this ten and half months of work, but there is no evidence that the treatment was necessitated by or resulted from the accident throughout. As Dr. Hall put it, he could understand why a man doing such work would find that "massage eases sore muscles" but he did not believe it was clinically necessary or related to the accident.

Dr. Tepperman testified that the more remote symptoms are from the initial accident injury, the more unlikely it becomes that the symptoms were caused by the accident. Dr. Slivka agreed with this opinion as a general principle. Other than Mr. Pintucci's statement at the hearing that his back felt the same in May 1996 as in October 1994 and Dr. Slivka's testimony, no evidence links the accident injuries to the work stoppage. Even Dr. Slivka testified that "for months he [Mr. Pintucci] was doing fine doing the work that he does." In a letter to Jevco in July 1996, Dr. Slivka wrote that he saw Mr. Pintucci on April 30, 1996 and that "[i]t seems that during the course of his job, he exacerbated his low back problem, for which he originally sought my help." In a subsequent letter dated January 10, 1997, Dr. Slivka attempted to clarify his opinion, noting that Mr. Pintucci's law back pain was "reactivated by a short trial of his normal pre-accident employment requirements."

Dr. Slivka's opinion that the October 1994 accident caused Mr. Pintucci's disability in May 1996 and following months is less persuasive for several reasons. First, he testified mainly from memory, except for a partial chart from December 23, 1996 to May 21, 1997, and did not have any opportunity to review his full notes from the clinics where he worked to refresh his memory about whether Mr. Pintucci began to complain of a worsening of symptoms in the spring of 1996. Second, Dr. Slivka did not know about some of Mr. Pintucci's pre-accident back and shoulder injuries and his complaints of regular soreness and stiffness before the accident. Dr. Slivka agreed that the absence of a full understanding of a patient's history may lead to an incorrect opinion. He agreed that he had read only a single report from Dr. Prutis-Misterska, a consultant in physical medicine, and no other medical reports in coming to his opinion about the cause of Mr. Pintucci's symptoms. In addition, Dr. Slivka agreed that if Dr. Tepperman and Dr. Hall had better information about Mr. Pintucci's pre-accident history they could express a more valuable opinion on the cause of his symptoms in May 1996. Dr. Slivka's opinion about the cause of Mr. Pintucci's problems seemed to be based mainly on the fact that pain on his compression testing of Mr. Pintucci's spine, which pointed to a chronic facet syndrome, diminished prior to Mr. Pintucci's return to work, then was present again later, in 1996.

Contrary to Mr. Pintucci's submission that this was not a situation where an insured person had returned to work after a full recovery from an accident, in fact that was virtually Mr. Pintucci's evidence about how he felt when he went back to work in June 1995. I accept that there can be a difference between the general aches and pains associated with a labouring job like Mr. Pintucci's and more acute symptoms. However, the preponderance of evidence here points to the development of either a repetitive strain injury or an undisclosed acute incident which occurred about April 29 or 30, 1996, not a recurrence of the injuries from the 1994 motor vehicle accident. Mr. Pintucci has not proved that the injuries from the accident are a "significant factor" or made a" material contribution" with respect to the work stoppage in May 1996.

Even if I fully accept Mr. Pintucci's personal testimony about the gradual development of symptoms in April 1996, this is insufficient to link his condition to the injuries he suffered in the motorcycle accident in the fall of 1994. This evidence could as easily be viewed as supporting the development of a repetitive strain injury caused by the nature of his job. As Director's Delegate Draper wrote:

Causation is not established simply because the problem follows the event. Medical evidence is critical in determining whether it is likely that the injuries arise from the accident. This is particularly true where the person had pre-existing medical problems, the onset of the new symptoms is delayed, and the symptoms can arise from a number of different causes.⁴

I cannot rely solely on Mr. Pintucci's opinion on causation to find Jevco liable. However, that does not mean I find that Mr. Pintucci's testimony is not credible or that he is an unreliable witness; Mr. Pintucci simply is not in a position to be able to determine the cause of his pain.

Supplementary Medical and Rehabilitation Claims

The general provisions relating to supplementary medical benefits and rehabilitation benefits are set out in Parts 7 and 8 of the Schedule. An insurer may require a person claiming payment of an expense to furnish a certificate from a health practitioner stating that the expense is reasonable and is necessary for the person's treatment. If the expense is a continuing one, the insurer may require a certificate "as often as reasonably necessary." If the insurer receives a certificate and does not accept it at face value, it may give the insured person a notice requiring him to be assessed. Subject to certain other provisions that do not pertain here, section 36(4) mandates that "the insurer shall pay an expense under subsection (1) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act." These are the standard procedures to be followed for supplementary medical expense claims.

Jevco denied payment of Mr. Pintucci's claims for chiropractic treatment from February to October 1996, totalling $5,790, and massage therapy and acupuncture treatments from February 1996 to May 27, 1997, totalling $4,697.06. In addition, Dr. Slivka's chiropractic accounts from January 17, 1997 to September 11, 1998 in his new practice were submitted, totalling $1,316.55. Jevco does not contend the amount charged for the services was unreasonable. It disputes that the expenses were incurred by Mr. Pintucci as a result of the accident. Secondly, Jevco submits it has paid more than is reflected in the statements. In the alternative, Jevco submits that if I find the treatments are related to the motor vehicle accident, then, on the basis of Dr. Michael Hall's opinion in April 1996, the expense is not reasonable and necessary for the insured persons' treatment.

The oral evidence with respect to this portion of the hearing was minimal. The only witness testifying on this issue was Dr. Slivka. Dr. Slivka testified that he was a salaried employee of 1670 Dufferin Physiotherapy Clinic and had no interest in the accounts receivable of that clinic.

Dr. Bergman provided three health practitioner certificates relating to Mr. Pintucci's treatment and rehabilitation, dated November 17, 1994, March 8, 1995 and October 26, 1996, two of which were filed.⁵ He also provided an Assessment of Disability form dated July 7, 1996. The filed certificates all indicate that physiotherapy, chiropractic treatment, acupuncture or massage are "required treatment."

Dr. K. Prutis-Misterska, a consultant in physical medicine at the Dufferin Active Rehabilitation Centre, recommended to Dr. Bergman in February 1996 that Mr. Pintucci receive acupuncture treatment. She also reported that she had advised Mr. Pintucci to do "back and neck exercises regularly at home." In October 1996, Dr. Prutis-Misterska recommended "deep tissue massage to alleviate muscle spasm which is this gentleman's biggest problem. I also recommend acupuncture treatment, which is helping him, but unfortunately the effect of the treatment is not longstanding." She further reported that she had advised Mr. Pintucci to do "neck and back exercises regularly at home."

Jevco wrote to Dufferin Physiotherapy Clinic on May 1, 1996 after receiving Dr. Hall's report. The letter stated:

The conclusion of that report indicates that Mr. Pintucci's physical treatments should be discoutinued. [sic]

Please note that according to the above-mentioned report, JEVCO Insurance Company will not fund any physical treatment for Mr. Roberto Pintucci as of May lst, 1996.

The letter indicated a copy of it was sent to Mr. Pintucci personally.

In sending this letter Jevco did not follow the procedure prescribed by the Schedule. The Schedule does not permit treatment to be unilaterally terminated based on an insurer's examination. An insurer may require a certificate from the insured person's health practitioner (e.g. Dr. Bergman or Dr. Slivka), who must state that the expense is "reasonable and is necessary for the person's treatment" in order that it be paid. If the insurer is unsatisfied by the certificate, it may require the insured person to be assessed at a designated assessment centre (DAC).

At the time of its May 1, 1996 letter, Jevco had received no recent report from a health practitioner treating Mr. Pintucci, nor had it requested a certificate under section 37. Treatment had continued at the 1670 Dufferin Physiotherapy Clinic and the Accident Assessment and Treatment Centre Inc. (AATCI) from 1994 throughout Mr. Pintucci's return to work.

Dr. Slivka subsequently wrote to Jevco on July 24, 1996, apparently in response to a telephone request from them, to outline why he was continuing to treat Mr. Pintucci. Jevco responded by letter on July 31, 1996. Jevco's letter reads:

We acknowledge receipt of your letter dated July 24th, 1996, with respect to the chiropractic treatments provided to the above-mentioned claimant.

Mr. Pintucci's [sic] exacerbated his low back condition during the course of his job as indicated in your letter.

Please be informed that since the treatments provided to Mr. Pintucci are work related, JEVCO INSURANCE COMPANY will not fund for these treatments.

We would also like to inform you that Mr. Pintucci has been seen by Dr. Michael C. Hall on April 26th, 1996. The results of this examination indicated that Mr. Pintucci's did not require any form of therapy at that time and have completely recovered from the injuries sustained in his accident of October 23rd, 1996. [sic]

If you require any further information, please feel free to contact the undersigned.

Jevco followed up with similar letters on August 26, 1996 and September 15, 1996 after it had received another invoice regarding chiropractic treatment. None of these letters follows the requirements of section 71 of the Schedule to inform Mr. Pintucci of the procedure for resolving disputes relating to benefits under sections 279 to 283 of the Insurance Act or suggesting a DAC assessment under section 39.

At some point in the late fall of 1996, Jevco arranged a DAC assessment for Mr. Pintucci. He attended at the Regional Evaluation Centre, Toronto Hospital, on December 5 and 13, 1996 for a functional capacity evaluation and medical and rehabilitation assessment. He also was examined by Dr. Howard Vernon, D.C. on December 4, 1996 for a DAC assessment about the ongoing chiropractic treatments. In arranging the DAC assessments, Jevco appears to have only partly complied with the Schedule's procedures, since neither the Toronto Hospital nor Dr. Howard Vernon in their DAC reports appears to respond to any section 37 certificates provided by Mr. Pintucci's treating practitioners.

On December 27, 1996, Jevco wrote to 1670 Dufferin Physiotherapy Clinic about the results of the DAC assessments. The letter advised, once again, that Jevco would not fund any treatment for Mr. Pintucci, as "[t]he results of this assessment indicate that Mr. Pintucci does not require any other form of therapy as a result of the injuries sustained in his accident of October 23rd, 1994."

After receiving the report of the insurer's examination conducted by Dr. Hall in April 1996 that concluded Mr. Pintucci did not require further treatment, Jevco should have requested a certificate under section 37(1), to stop treatment payments from becoming overdue. For ongoing chiropractic treatments, the provisions of section 39.1(3)(b) oblige the insurer to pay within 14 days of receiving a requested chiropractor's certificate, while awaiting the DAC report, but for acupuncture and massage, presumably obtained under section 36 (1)(h),⁶ the expense would not have been overdue until 14 days after a requested DAC report found the expense reasonable and necessary for Mr. Pintucci's treatment. If the DAC report did not find the expense reasonable and necessary, it would not be overdue until an arbitrator or judge disagreed and ordered the expense be paid.

Jevco chose not to request health practitioner's certificates in early 1996. However, its clear obligation under section 36(4) of the Schedule was to pay for Mr. Pintucci's treatment pending the resolution of any dispute. It should have applied for mediation, then if the issue remained unresolved, could have sued Mr. Pintucci to recover any payment the court found was not a reasonable expense incurred as a result of the accident. In this case, Jevco has not paid for supplementary medical benefits since the end of January 1996, three months before Dr. Hall's insurer's examination report.

In the first quarter of 1996, the treatment Mr. Pintucci was receiving may well have been reasonable, necessary and resulting from the accident, while helping him lead as normal a work life as possible and maintain his level of function within the home and family.⁷ I am not able to determine that from the evidence at the hearing. Dr. Prustis-Misterska certainly felt acupuncture to be worthwhile and recommended Dr. Bergman consider referring Mr. Pintucci to a chronic pain clinic after she examined him in late February 1996. She also recommended deep tissue massage in October 1996. However, I am unable to rely heavily on Dr. Prustis-Misterska's reports with respect to the cause of Mr. Pintucci's symptoms, because she fails to make any note of the fact that Mr. Pintucci returned to his job for ten and one-half months after the accident and was, in fact, working at the time of her first report. Dr. Bergman's report of September 21, 1996, together with his health practitioner's certificates, do not address the issue of the reasonableness or necessity of the treatment from February 1996 onward, nor the causation issue.

It is important to the integrity of the operation of the Schedule that the parties comply with its terms. Prompt, continuing access to reasonable and necessary treatment, even while a dispute is underway, is a hallmark of the system. The initial gatekeepers of the treatment system are treating health practitioners, who are regulated health professionals, and the designated assessment centres. As Justice Catzman of the Court of Appeal noted in a recent decision, "Part VI of the Insurance Act represents the expression of a social policy adopted by the Legislature of this province to deal with automobile insurance."⁸ Insurers cannot flout the terms relating to the provision of and payment for supplementary medical and rehabilitation benefits and substitute in their stead adjustment procedures that they find more convenient or suitable to their purpose.

Instead of requesting a certificate under section 37 from Mr. Pintucci's health care providers in the spring of 1996, Jevco arranged an insurer's examination with Dr. Hall. In the meantime, it did not pay for treatment. At the end of April 1996, Dr. Hall concluded Mr. Pintucci did not require the treatment he was receiving. However, the Schedule does not permit Jevco to retroactively cancel Mr. Pintucci's supplementary medical and rehabilitation benefits in this manner. I reject Jevco's submission that it was appropriate for it to "exercise its judgment" in this case in refusing to pay the treatment expenses. It does not behove an insurer to deny the process of the Schedule and ask to be relieved from payment at arbitration. This is not a case where a serious question of fraud has been raised, or where the claim is clearly unreasonable.⁹ Neither is it a case where an unrelated condition is being treated after an accident.¹⁰ In Mr. Pintucci's case, his post-accident treatment continued throughout his return to work over a period of ten and one-half months and his symptoms in May 1996 were similar to those he experienced after the October 1994 accident.

As of December 31, 1996 Jevco had received the results of the med/rehab DAC of Mr. Pintucci in mid-December 1996 and had notified the treatment providers of the result (by letter of December 27, 1996). After that, it is not required to pay for the treatment, pending resolution of the dispute, according to the provisions of section 39(11)(b) of the Schedule. I find the conclusions of the assessors that, at that point, further passive therapies were no longer necessary or reasonable in relation to the injuries from the October 1994 accident, to be supported by their findings on their various examinations of Mr. Pintucci, including a functional capacity evaluation. All the assessors recommended Mr. Pintucci participate in an independent, active exercise program in preference to relying on passive treatments. In addition, Dr. Vernon urged that Mr. Pintucci be reassured that "minor transient symptoms do not represent re-injury but rather transitory activity intolerance which can be managed by effective self-care measures."

I find that Jevco is responsible to pay for Mr. Pintucci's treatment until December 31, 1996, since it failed to follow the mandatory, procedural provisions of the Schedule, found at sections 36(4) and 40(7), in paying an expense "...pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act." In my view, Jevco's failure to follow the terms of the Schedule is not answered by any suggestion that Mr. Pintucci might have successfully applied for an interim order under section 279(4.1) of the Act. By the time arbitration was commenced, treatment by anyone except Dr. Slivka had been concluded.

Jevco may find difficulty in reconciling my findings about the cause of Mr. Pintucci's back problems after May 1996 with my order that they pay for his treatment until the end of 1996. Our Court of Appeal has disagreed with arbitrators, including me, who previously interpreted provisions of the predecessor to the Schedule in a conservative manner that appeared to comply with the text of the provision, but produced an unfair result. Laskin, J.A. has written that "[a]voiding unjust or unacceptable results is an essential part of the court's task in interpreting statutory language."¹¹ In the words of Mr. Justice Laskin from the same case, it is not a "reasonable and just outcome" of this case, in the face of Jevco's noncompliance with the Schedule, that Mr. Pintucci should be responsible for the cost of treatment he pursued in good faith, at the recommendation of his doctor and chiropractor, yet which, ultimately, he has not proven was necessitated by the October, 1994 accident, after a point in time.

If Jevco had followed the procedures mandated by the Schedule, it would have been called upon to pay for, at most, a few months of chiropractic treatment on an interim basis, pending the receipt of a DAC report, perhaps in June 1996. Jevco could even have eliminated the insurer's examination step and turned straight to the DAC process, obliging it to pay chiropractic treatment until, perhaps the end of April 1996. Mr. Pintucci and his treating practitioners would have turned their minds to the causation issue and Mr. Pintucci would have been aware that his massage and acupuncture treatments were not being paid, pending the receipt of the DAC report, and that they would only be paid, pending resolution of the dispute, if the DAC report was favourable. Instead, treatment continued, without much consideration of the cause of the renewed symptoms in May 1996.

In the appeal decisions in the Henry and Allstate Insurance Company of Canada, (P96-00064, July 23, 1997) and Marques and Commercial Union Assurance Company, (P97-00047, May 25, 1998) Director's Delegate Draper commented on the insurer's obligation to pay weekly income benefits pending the DAC assessment, even though the insurer claims the insured person is no longer entitled. He held that the insurer's obligation to pay "does not create an entitlement that is immune from later challenge."¹² This case is distinguishable from the Henry case, because in the Henry case the insurer complied with section 64 and continued to pay weekly income benefits pending the DAC, albeit not at the rate or under the category of weekly benefit the arbitrator ultimately found was the correct one. In the Marques case, Mr. Marques raised the stoppage of benefit issue too late in the proceeding. In this case, Jevco stopped paying medical benefits, without any justification, at the end of January 1996 on its own initiative, despite the clear "pay pending dispute" provisions of the Schedule. In my view the social policy considerations in a case where supplementary medical payments were terminated, without even an attempt at compliance with the Schedule's process, mandate that Jevco be ordered to pay these expenses even though Mr. Pintucci's substantive entitlement to the treatment has not been proved.

The amount for which Jevco is liable is $4,344.98, for acupuncture and massage therapy (following exhibit 2), and $5,790 for chiropractic. The chiropractic account is the net amount, following payment of the maximum of $225 per year by Mr. Pintucci's extended health benefits.

Dr. Bergman's Report - balance $428.00, ADIO imaging $400.00

Mr. Pintucci submitted that a narrative report was requested from his doctor, Dr. Samuel Bergman, in anticipation of the mediation to be held in December 1996. I do not have the letter requesting Dr. Bergman's report. The report of September 21, 1996 was signed by Dr. Bergman on the letterhead of Accident Assessment and Treatment Centre Inc. I do not know Dr. Bergman's qualifications, except as noted in his report that he is a medical doctor, a Fellow of the American Academy of Disability Evaluating Physicians and a Member of the Acupuncture Foundation Canada. Dr. Bergman was the practitioner who applied the acupuncture to Mr. Pintucci throughout his treatment. Both the acupuncture treatments carried out by Dr. Bergman and massage therapy were billed through AATCI. At the hearing Mr. Pintucci denied knowing these treatment providers billed through the same corporation. I understand Dr. Bergman's office was located in a different suite in the same building as the massage therapist.

Dr. Bergman's report of September 21, 1996 is a three-page narrative report, of approximately 65 lines, covering treatment from October 25, 1994 to that time. Although no invoice was presented, the parties agreed the report had been invoiced at $856.00 and Jevco had paid $428.00.

Mr. Pintucci did not submit that the charge of $856.00 was a "reasonable expense." Under the provisions of section 57(1)(a) the insurer must 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...including (a) fees charged by a person who conducts an examination or assessment or provides a certificate or report..."

No evidence was presented that would support any notion that any additional examination of Mr. Pintucci was required, or that any special tests or assessments were conducted by Dr. Bergman to prepare the September 21, 1996 report. The report is essentially a narrative summary of the treatment Mr. Pintucci had been receiving at the AATCI for nearly two years, without a visit-by-visit explanation of the findings on each examination. Five lines of the report simply list the dates Mr. Pintucci was assessed in Dr. Bergman's office. Three paragraphs of the report at the bottom of page two and top of page three read like standard form "boilerplate," referring to "the patient" and "the patients."

No information was before me as to how Dr. Bergman arrived at a charge of $856.00 for the report. I cannot imagine that the report would have taken more than one hour to prepare and dictate. I find that Jevco has already paid a reasonable amount for this report.

The ADIO imaging report, of December 1996, while included with the exhibits, was not the subject of any testimony, explanatory report or elucidation by counsel. No basis exists for determining that Jevco should pay the $400 cost of the report.

Special Award

Section 282(10) of the Act provides that an arbitrator shall award a lump sum special award to an insured person if an insurer has unreasonably withheld or delayed payments. The section reads as follows:

282.--(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled...shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Due to my findings with respect to the cause of Mr. Pintucci's disability in May 1996, and following, I find no unreasonable withholding or delay of his income replacement benefits.

However, an insurer is required to follow the timelines of the Schedule and pay expense claims in accordance with either section 39.1. The Schedule prescribes a process for requesting a health practitioner's certificate, and if the insurer disagrees with the treatment proposed, it should request an assessment by a DAC. I find that the basis on which the supplementary medical payments were withheld from the end of January 1996 until the DAC report in December 1996 was unreasonable. The unreasonable withholding of the benefit should attract a special award of 25 per cent of the amount to which Mr. Pintucci is now entitled, together with interest on all amounts owing to him (including unpaid interest) at 2 per cent per month, compounded monthly, from February 1996 as the benefits became payable under the Schedule. I award 25 per cent, because I do not find Jevco's conduct deserves the maximum penalty, particularly given Dr. Slivka's letter in July 1996 about the reasons he continued to treat Mr. Pintucci.

Expenses:

I received no submissions from the parties with respect to expenses. If the parties cannot agree on this issue, they may contact the case administrator to resume the hearing by teleconference .

Order:

1. Mr. Pintucci is not entitled to weekly income replacement benefits from May 17, 1996 to July 28, 1997.

2. Jevco shall pay Mr. Pintucci $4,344.98, for acupuncture and massage therapy and $5,790 for chiropractic treatment. Jevco must pay interest on these amounts, pursuant to section 68 of the Schedule.

3. Jevco is not required to pay a further $428.00 for this examination and report dated September 21, 1996 by Dr. S. Bergman. Jevco is not required to pay $400.00 for an A.D.I.O. imaging report.

January 7, 1999

K. Julaine Palmer

Arbitrator

Date

Appendix

Hearing:

The hearing was held at the Financial Services Commission of Ontario in Toronto on September 29 and October 1, 1998, before me, K. Julaine Palmer, Arbitrator. I received additional written submissions from the parties on two points, by letters dated October 9 and October 16, 1998.

Present at the Hearing:

Applicant:

Roberto Pintucci

Mr. Pintucci's Representative:

Ian Little

Barrister and Solicitor

Jevco's Representative:

Chris Blom

Barrister and Solicitor

Witnesses:

Roberto Pintucci, Perry Tepperman, Leo Slivka

The parties filed a Joint Document Brief and five other exhibits.

14.—(1) A person receiving weekly income replacement benefits under this Part may return to or start an employment at any time during the 104 weeks following the onset of the disability in respect of which the benefits are paid without affecting his or her entitlement to resume receiving benefits under this Part if, as a result of the accident, he or she is unable to continue in the employment. (2) After the 104-week period referred to in subsection (1), a person receiving weekly income replacement benefits under this Part may return to or start an employment for periods of up to ninety days without affecting his or her entitlement to resume receiving benefits under this Part if, as a result of the accident, he or she is unable to continue in the employment.

Footnotes

1. 1The 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 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2Mr. Pintucci received sick benefits from work for about 10 days from May 4 to May 16, 1996 and is not claiming for this time from Jevco.
3. 3Temporary Return to Employment
4. 4Koch and AXA Insurance (Canada), (OIC A-951417, June 6, 1996), confirmed on appeal (OIC P-96-00058, May 8, 1997)
5. 5The report of March 8, 1995 is summarized by Dr. Tepperman in his report of December 13, 1997, ex.1.22.
6. 6section 36(1)(h) a other goods and services of a medical nature that the insured person requires."
7. 7see section 40(2)(b) and 40(4)(c) of the Schedule
8. 8in Morton v. Rabito, 1998 CanLII 5865 (ON CA), [1998] O.J. no. 5129, December 10, 1998.
9. 9see White and Pilot Insurance Company, (OIC A-008462, June 6, 1995).
10. 10see Norton and Colonial Penn Insurance Company, (OIC A-014428, June 3, 1996, P-96-00057, 1997).
11. 11Bapoo v. Cooperators General Insurance Company, 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616 (C.A.).
12. 12in the Henry case at page 5.