Neutral Citation: 2000 ONFSCDRS 106

FSCO A99-000740

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

IRENA MILEEVSKY

Applicant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

December 10, 1999 and February 4, 2000 at the Offices of the Financial Services Commission of Ontario in Toronto.

Written Submissions were received on February 25, March 10 and March 24, 2000.

Appearances:

Roland Spiegel for Ms. Mileevsky

Brian Bangay for General Accident Assurance Co. of Canada

Issues:

The Applicant, Irena Mileevsky, was injured in a motor vehicle accident on October 26, 1997. She applied for and received statutory accident benefits from General Accident Assurance Company of Canada ("General Accident"), payable under the Schedule.¹ General Accident refused to pay for certain medical benefits. The parties were unable to resolve their disputes through mediation, and Ms. Mileevsky 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 Ms. Mileevsky entitled to a medical benefit for in-home physiotherapy expenses under section 14 of the Schedule?
Is Ms. Mileevsky entitled to a special award under subsection 282(10) of the Insurance Act?
Is Ms. Mileevsky entitled to her expenses of the arbitration?
Is General Accident entitled to its expenses of the arbitration?

Result:

Ms. Mileevsky is entitled to $3,847.50 for physiotherapy expenses.
Ms. Mileevsky is not entitled to a special award.
The question of expenses may now be addressed.

EVIDENCE AND ANALYSIS:

Irena Mileevsky was a self-employed immigration consultant prior to the motor vehicle accident. On October 26, 1997 she was injured when her vehicle skidded and flipped over. She was taken to the hospital by ambulance, complaining of pain in her ribs, neck and back. X-rays revealed a compression fracture at T12. Her family physician, Dr. M. Brodsky, recommended rest to permit the fracture to heal, and also prescribed a sacral brace, neck support, and medication. In November 1997, Dr. Brodsky referred Ms. Mileevsky to Integrated Health Recovery for physiotherapy treatment. Ms. Mileevsky was picked up and dropped off by clinic staff, but she felt the aggressive treatment and the car ride to the clinic was aggravating her pain. She stopped treatment after two visits.

In December 1997, an occupational therapist, appointed by General Accident, conducted an assessment and concluded that Ms. Mileevsky was unable to manage all her activities of daily living at that time. During the assessment, Ms. Mileevsky demonstrated consistency of effort. The occupational therapist recommended eight hours of housekeeping assistance per week, to be reassessed after six weeks. She also recommended in-home physiotherapy treatment for six weeks and thereafter, at the discretion of the physiotherapist. The occupational therapist believed that Ms. Mileevsky was also experiencing emotional difficulties and recommended eight to ten counselling sessions.

In January 1998, Ms. Mileevsky referred herself to the Universal Injury Rehabilitation Centre ("Universal") for in-home physiotherapy treatment. On January 9, 1998, Sharee Mandel, a registered physiotherapist from Universal, attended at Ms. Mileevsky's apartment, conducted an initial assessment and began initial strengthening exercises. At this initial assessment, Ms. Mandel noted pain and tenderness over C3-5, T3-5 and T9-12. Ms. Mileevsky demonstrated limited cervical range of motion. Her lumbar range of motion was difficult to measure because of extreme guarding and pain behaviour. In Ms. Mandel's opinion, Ms. Mileevsky was unable to attend at the clinic because of difficulties bending her head and back and because of the pain she experienced during car rides.

Ms. Mandel completed a treatment plan recommending in-home physiotherapy treatment three times per week for three to four weeks. Ms. Mandel testified that her initial recommendation was time limited because she was unaware of the T12 fracture. However, a review of her clinical notes and records and her initial assessment report indicates that she was advised of the fracture at the initial assessment. This and other inconsistencies between Ms. Mandel's oral testimony and her written notes lead me to conclude that her written reports and clinical notes are a more reliable indication of the course of treatment. This is not intended as a reflection on Ms. Mandel's' credibility, but simply a determination that notes written at the time are more reliable than Ms. Mandel's memory some 18 months after the events.

Ms. Mandel's clinical notes indicate that Ms. Mileevsky complained consistently of pain in her thoracic spine and neck. Although there was some improvement, visits to various medical assessors often caused a decline in function and an increase in pain.

Follow-up x-rays of Ms. Mileevsky's thoracic and lumbar spine taken in late January 1998 confirmed the compression fracture at T12 and revealed an increase in anterior wedging.

In February 1998, Ms. Mileevsky was referred to Dr. J. E. Bateman, an orthopaedic specialist at the Orthopaedic and Arthritic Hospital. Dr. Bateman recommended anti-gravity inversion traction at his Spine Assessment Clinic. He also recommended that Ms. Mandel continue the therapy she was providing to Ms. Mileevsky at her home, but recommended against too vigorous an exercise program at that time.

Dr. Bateman conducted follow-up assessments on February 20 and again on March 13, 1998. In his report of March 13, 1998 he noted that Ms. Mileevsky experienced spinal spasm and sensitivity over T10, 11, and 12. He noted a marked loss of motion over the whole thoracic-lumbar region. In Dr. Bateman's view, the January 1998 x-rays showed marked compression at T12 and the suspicion of compression at T5-6. He believed that Ms. Mileevsky was showing improvement with the inversion therapy and recommended that it continue for at least three months. He indicated that she was "well looked after by the home physiotherapist and may continue to have such attention..."

In April 1998, Ms. Mileevsky was assessed at a Medical Rehabilitation Designated Assessment Centre in North York. She was examined by Dr. E. P. Urovitz, an orthopaedic specialist and Ms. G. Lebi, a physiotherapist. Dr. Urovitz noted a full range of motion through the cervical spine, but marked voluntary guarding of all thoracolumbar movements. He noted that Ms. Mileevsky declined to sit up but remained lying in the supine position during most of the examination. In his view, the x-rays confirmed the presence of a "very minimal" compression fracture at T12 with loss of height of about 10 percent. In his opinion, Ms. Mileevsky demonstrated no major, consistently reproducible, objective signs of musculoskeletal impairment and he concluded that no further services were needed. He noted marked signs of functional overlay and chronic illness behaviour suggesting a major psychoemotional component. He further opined that passive modalities would reinforce an already exaggerated and distorted sense of incapacity.

Ms. Lebi, the physiotherapist, was unable to conduct a thorough functional capacity evaluation in light of Ms. Mileevsky's significant pain focus. She did primarily range of motion testing and made informal observations during the interview. Ms. Mileevsky remained lying in a bent-over position during the evaluation. The physiotherapist noted that Ms. Mileevsky was not sure that she was benefiting from in-home physiotherapy. Accordingly, she concluded that further treatment was unnecessary. She recommended that if further x-rays showed that the fracture was stable, Ms. Mileevsky be weaned off her lumbosacral support and begin active physiotherapy.

Universal discontinued in-home treatments in May 1998 in light of General Accident's refusal to fund further treatment. Ms. Mandel testified, and her clinical notes confirm, that at the time treatment was discontinued in May 1998, Ms. Mandel did not believe that Ms. Mileevsky was able to travel to the clinic for treatment. Ms. Mileevsky testified that she was not physically fit to travel for further physiotherapy treatments until February 1999, although she continued to travel for inversion treatments.

General Accident paid Universal's account for the first four weeks (approximately January 9 to February 9, 1998) of in-home physiotherapy treatment, in the amount of $3,540. General Accident declined to pay for the further 10 weeks of physiotherapy treatment recommended in the second treatment plan. Ms. Mileevsky is seeking payment for the expenses she incurred at Universal between February 9 and May 29, 1998.

1. Entitlement to a Medical Benefit:

Was the physiotherapy treatment provided by Universal after February 9, 1998 reasonable and necessary?

Ms. Mileevsky continued to receive physiotherapy treatment in her home from February 9 to May 13, 1998. Initially, these treatments continued at the rate of three times per week, and then tapered off to twice per week after mid-April 1998. The treatment consisted primarily of support, encouragement, and supervision of light exercises.

I find that Ms. Mileevsky continued to require some form of supervised physiotherapy between February 1998 and May 1998. The evidence indicates that she suffered a serious compression fracture in October 1997 which had deteriorated somewhat by the end of January 1998. Ms. Mileevsky's complaints of pain in her ribs, neck, and back were consistent with the injuries sustained in the accident and continuous from the date of the accident. While Ms. Mileevsky's reaction to her pain was assessed by some health practitioners as excessive and exaggerated, those who saw her regularly, including Ms. Mandel and Dr. Bateman, believed her complaints were genuine and consistent with her objective injuries. I have no hesitation in accepting the genuineness of Ms. Mileevsky's complaints of pain.

Further, Ms. Mandel's clinical notes indicate that her efforts contributed to a gradual improvement in Ms. Mileevsky's condition. This gradual improvement was confirmed by Ms. Mileevsky's evidence and Dr. Bateman's reports. In light of Ms. Mileevsky's subjective pain experience, she required active supervision and encouragement to engage in exercise. Further, Dr. Bateman specifically warned against aggressive therapy until Ms. Mileevsky's fracture stabilized further. In the circumstances, I find that it would be unreasonable to expect Ms. Mileevsky to disregard the advice of her treating specialist and physiotherapist and engage in more strenuous physiotherapy at that time.

I am unable to give as much weight to the conclusions of the Medical Rehabilitation DAC Assessment. Both Dr. Urovitz and Ms. Lebi noted that Ms. Mileevsky had marked guarding of her thoracic area. However, Dr. Urovitz concluded that her problem had no basis in any musculoskeletal problem and therefore, further physiotherapy would not be reasonable. It is difficult to reconcile his conclusion with the January 1998 x-ray which indicates the compression fracture had deteriorated. I find that Ms. Mileevsky's complaints did have some objective basis. In any event, in light of her complaints of pain, Ms. Mileevsky needed support and encouragement to help her move through her pain.

Ms. Lebi, the DAC physiotherapist, acknowledged the significance of the x-rays by her caveat that active physiotherapy not be commenced until further x-rays indicated that the fracture was stable. I interpret this as support for the use of passive therapy until the fracture had stabilized. There were no further x-rays submitted into evidence which indicate that the fracture had stabilized by May 1998. The basis for Ms. Lebi's opinion that the in-home therapy be discontinued was Ms. Mileevsky's comment that she did not know whether the therapy was helping. However, I am satisfied that the evidence indicates that despite some relapses in her condition, Ms. Mileevsky was benefiting from the treatment and that she was making some progress.

I find that the physiotherapy treatment provided by Ms. Mandel between mid-February 1998 and May 13, 1998 was reasonable and necessary.

Was it reasonable and necessary to provide the therapy at home?

I also conclude that it was reasonable and necessary to provide the therapy in Ms. Mileevsky's home. I have already explained my reasons for accepting the genuineness of Ms. Mileevsky's subjective experience of pain. General Accident submitted that Ms. Mileevsky had demonstrated that she was capable of travel by her visits to Dr. Bateman's clinic at Yonge and Wellesley for inversion therapy. Ms. Mileevsky's apartment is located at Finch and Bathurst. Universal, at Lawrence and Bathurst, is located much closer to her home than Dr. Bateman's clinic.

I note that Ms. Mileevsky reported to Ms. Mandel that her pain increased as a result of the jolting and bumping of car rides.² There are also references in Ms. Mandel's clinical records to the pain caused by the ride down to Dr. Bateman's office, although Ms. Mandel was prepared to endure this pain in order to obtain the treatment. The question is not whether Ms. Mandel could physically be transported by car to Universal. The question is whether, given the degree of pain she experienced in travelling, it was reasonable to incur the additional expense of obtaining the treatment at home. I find that the degree of discomfort Ms. Mileevsky was experiencing justified the provision of physiotherapy treatment in her home, between February and May 1998.

Was the expense reasonable?

Subsection 14(2) requires the insurer to pay for all "reasonable" and necessary expenses. General Accident challenged the reasonableness of the fees charged by Universal for the treatment provided. Once the insured has made out a prima facie case for the reasonableness of the account, the secondary onus shifts to the insurer to disprove the reasonableness. The Schedule does not impose a heavy accounting onus on injured persons.³ I find that the fees charged by Universal were not reasonable.

Subsection 14(4) relieves the insurer of an obligation to pay for physiotherapy expenses that exceed the maximum rate or amount established under the Professional Fees Guidelines published by the Commission. The Commissioner of Insurance issued a Professional Fees Guideline in respect of Physiotherapists ("Physiotherapists Fees Guideline") which applies to expenses incurred on or after November 22, 1997. The Physiotherapists Fees Guideline sets out the maximum rate or amount of expenses for the services of a physiotherapist that an insurer is liable to pay for a medical benefit under subsection 14(2) (b). The rates are as follows:

The range of fees for services provided by physiotherapists is $95.00 per hour to $120.00 per hour for direct (one on one) treatment time (including administrative time such as report writing, treatment plan preparation, inter-professional and professional-insurer consultations).

The range of fees per unit (15 minutes) of service is $23.75 to $30.00.

Where a physiotherapist's bill falls within the range of fees, it should be based on the physiotherapist's assessment of their practice outcomes and on objective and verifiable data, not on overhead, professional certification, accreditation or other factors.

Ms. Mileevsky submitted an invoice from Universal indicating a fee of $265 for each of 30 home visits between February 11 and May 29, 1998. Ms. Mandel testified that the last visit was May 13, 1998. I heard no evidence that any physiotherapy treatment was rendered on May 15, 22 or 29 and therefore the charges for these three days are disallowed in their entirety.

I am satisfied that Ms. Mandel did attend at Ms. Mileevsky's home on the remaining 27 days billed. Ms. Mandel retained a register of visits for January, February and March 1998 which matched the dates billed by Universal. Although she could not produce a similar register for the April and May visits, I find that the dates billed matched the established pattern of three visits per week, until April 13, after which, in accordance with her clinical notes, the treatment was reduced to two visits per month until the last visit of May 13, 1998. General Accident submitted that the lack of clinical notes for some of the invoiced treatments was not explained in evidence, but I find that Ms. Mandel did testify that she did not record every visit in her clinical notes and I accept her evidence on this point. Accordingly, I am satisfied that Ms. Mandel conducted 27 at-home physiotherapy sessions with Ms. Mileevsky between February 9 and May 13, 1998. Ms. Mandel testified that she spent approximately one hour with Ms. Mileevsky on each visit, working on strength, range of motion, and providing support and encouragement. She testified that Ms. Mileevsky was generally her first patient and that she spent approximately 25 minutes travelling to her home and 20 minutes travelling to the clinic afterwards.

Ms. Mandel testified that she invoiced Universal for the time she spent travelling as well as the time spent with Ms. Mileevsky and that she billed Universal at the rate of $35 per hour. The only invoice produced by Universal at the request of General Accident was for a two-week period in February 1998. This invoice shows that Ms. Mandel charged a block fee of $50, $75 or $100 for the home visits. There was no distinction made between travel time or time spent with Ms. Mileevsky. While the invoice does not indicate that Ms. Mandel consistently charged Universal for one hour of physiotherapy and two units of travel time, this is not indicative that she did not actually spend that time with Ms. Mileevsky. The amount charged by Ms. Mandel to the clinic is not determinative.

I accept Ms. Mandel's evidence that she generally spent approximately one hour providing treatment to Ms. Mileevsky. I find that it would be reasonable to invoice for this time.

I also accept her estimates of travel time. While I accept that it would be reasonable to charge for travel time involved in providing the in-home service, it is not clear to me why the initial trip to Ms. Mileevsky's home and the return trip to the clinic were both invoiced. Ms. Mandel testified that she generally visited Ms. Mileevsky at the beginning of each day. Presumably, if Ms. Mandel had not provided the home treatment, she would have spent her own time travelling to the clinic in any event. I heard no evidence that travelling to Ms. Mandel's home took her out of her way. Accordingly, I find that it would be reasonable to invoice for approximately 20 minutes of travel time (or two units) from Ms. Mileevsky's home to the clinic, as that is time during which Ms. Mandel might otherwise have been providing physiotherapy treatment to other clients of the clinic.

Ms. Mandel testified that treatment time is generally broken down into units of 15 minutes and any extra minutes are charged at the full unit rate. Ms. Mandel testified that it is Universal's practice to bill in units of 15 minutes at $35 per unit, which equals $140 per hour. This is above the maximum rate in the Physiotherapists Fees Guideline of $30 per 15 minute unit or $120 per hour. Further, I heard no evidence explaining the gross up from the $35 per hour charged by Ms. Mandel to the $140 hourly rate charged by the clinic or explaining why each home visit was billed at $265.

I am unable to conclude that the rate of $265 per home visit was reasonable. I find that it would be reasonable to charge for four units of Ms. Mandel's time (the one hour of physiotherapy) and another two units of travel time. I find that the service provided should be compensated at the low range of the Physiotherapists Fees Guideline ($23.75 per unit), since the level of service provided did not involve any equipment and consisted entirely of support, encouragement and range of motion exercises. Accordingly, I find that a rate of $145.50 per home visit ($23.75 per unit x 6 units) is a reasonable expense for each of the 27 home physiotherapy treatments provided, for a total of $3,847.50.

Estoppel:

Ms. Mileevsky submitted that General Accident should be estopped from disputing the reasonableness of the cost of the treatment on the basis that it had paid the first four weeks of treatment, without raising the issue of cost. Further, General Accident did not suggest to Universal at any time during the course of their treatment that their expenses were too high. Ms. Mileevsky submitted that had she known that the cost of the treatment was at issue, she could have exercised her judgement to cease treatment or obtain treatment at an alternative facility.

I reject the argument that an insurer's payment of some treatment expenses forecloses the possibility of raising the reasonableness of the cost of treatment at some later point. I note that subsection 38(16) of the Schedule contemplates that, despite any dispute the insurer may have with the reasonableness or necessity of proposed physiotherapy or chiropractic treatment, it shall pay for all expenses incurred in respect of the first 15 treatment sessions or all treatment sessions within six weeks after the accident. It appears that the expenses which were paid by General Accident fell within this provision. This is not to suggest that these initial treatment sessions are immune from subsequent review.⁴ However, this provision indicates a legislative intention to facilitate the prompt payment of early chiropractic and physiotherapy expenses. To estop an insurer from raising the cost of physiotherapy or chiropractic treatments if it has promptly paid initial invoices without strict scrutiny of the cost, would only encourage disputes and delay in this area.

Further, I am not satisfied that there has been any detrimental reliance by Ms. Mileevsky. As will be discussed in further detail below, Universal continued to provide treatment to Ms. Mileevsky without first submitting a treatment plan, and despite being specifically advised by the adjuster that the insurer would be challenging the reasonableness and necessity of further treatment through the Medical Rehabilitation DAC process.

Approval of earlier treatment plan:

Ms. Mileevsky submitted that General Accident had approved her initial treatment plan from Integrated Health Recovery dated November 1997, recommending 32 treatment sessions of physiotherapy over eight weeks, at a cost of $5,900. Ms. Mileevsky submitted that since she abandoned this treatment plan after two sessions, General Accident should be compelled to pay at least the approved amount of $5,900 toward the disputed treatment plan. I find this argument unpersuasive. General Accident is not bound to pay expenses in the amount of $5,900 if those expenses were not incurred at the time and by the treatment provider approved in the first treatment plan.

Procedural compliance with subsection 38 of the Schedule:

Ms. Mileevsky submitted that General Accident had failed to comply with the provisions of section 38 of the Schedule and should therefore be estopped from disputing its obligation to pay for expenses innocently incurred. Specifically, she submitted that General Accident failed to give written reasons for its refusal to pay for the recommended treatment as required by subsections 38(8) and (12) and therefore the benefits must be paid.

In response, General Accident asserts that Ms. Mileevsky was not in compliance with the strict requirements of the Schedule and cannot therefore demand strict compliance from the Insurer. In particular, Ms. Mileevsky failed to submit an application for the benefit or a treatment plan, before incurring the expense, as required by subsection 38(1) and the treatment plan submitted midway through the treatment was incomplete.

Prior to addressing these arguments, it is useful to set out my understanding of how the procedure should work. There are extensive safeguards directed at avoiding conflicts of interest. As this is not an issue in this proceeding, I will not address those provisions in detail.

Before incurring any expenses in respect of a medical benefit, the insured shall submit an application for the benefit, including a treatment plan. [subsections 38(1) and (2)]⁵ Upon receiving the application, the insurer shall promptly determine whether it is required to pay for the services set out in the treatment plan [subsection 38(7)].⁶

Assuming there is no conflict of interest disclosed, the insurer shall, within 14 days, give notice that it will pay for some or all of the services or that it will not pay for any of the services contemplated in the treatment plan. Section 68 provides that notice shall be given in writing.

If the insurer gives written notice that it will pay for some or all of the services set out in the treatment plan, the insurer shall pay for the services within 30 days of receiving an invoice for them. [subsection 38(11)].

If the insurer has indicated that it will not pay for some or any of the services, the insurer shall require a DAC assessment in accordance with section 43 and shall include in its notice letter, a statement of its reasons for refusing to pay and notice of the DAC assessment. [subsection 38(12)].

After receiving notice of the DAC assessment, the insured may withdraw the request for the services within seven days. [subsection 38(13)]

Typically, the DAC is expected to begin its assessment within two weeks of the request [subsection 53(8)].

If the DAC report states that the expense is reasonable and necessary, the insurer shall pay the expense, pending resolution of the dispute under the dispute resolution provisions of the Insurance Act. [subsection 38(14)]

If the DAC report states that the expense is not reasonable and necessary, the insurer is not required to pay for the expense, pending resolution of the dispute under the dispute resolution provisions of the Insurance Act. [subsection 38(14)]

Either the insured or the insurer may challenge the DAC findings under the dispute resolution provisions of the Insurance Act. [subsection 38(14)]

Certain goods and services cannot be assessed at a DAC [subsection 38(15)]

Thus, section 38 contemplates that before expenses are incurred, the insurer has the opportunity to approve the proposed treatment. If the insurer wishes to dispute the reasonableness or necessity of the expense, the reasons for the refusal must be given and the DAC process must be invoked. The Schedule is designed to achieve a prompt resolution of a dispute (the insurer must respond to a request for treatment within 14 days and, in the case of a refusal, the insurer shall arrange a DAC assessment and notify the DAC within 15 days [section 43(1)] and the DAC must begin the assessment within two weeks after receiving a request [section 53(7)]). The expenses need not be paid prior to the DAC process. Only if the DAC report states that the service is reasonable and necessary, is the insurer required to pay the expense, pending resolution of the dispute.

In reality, insureds often begin physiotherapy and chiropractic treatments immediately following an accident, which leaves little time to follow the procedure contemplated above. Subsection 38(16) appears to recognize that reality by requiring insurers to pay expenses incurred for initial physiotherapy and chiropractic treatment, despite involving the DAC process.

Further, section 38(17) contemplates the situation where the insured incurs expenses without first submitting an application or a treatment plan. The insured person shall submit the application for payment and the treatment plan within 30 days after incurring the expenses.

In that case, the insurer must either pay the expense or give the insured person notice of its reasons for not paying the expenses [subsection 38(18)].There does not appear to be any requirement to pay for expenses incurred without prior approval, pending dispute, nor any necessity to invoke the DAC process in respect of such expenses. Indeed, the Commission's Guidelines for Designated Assessment Centres to Conduct Assessment for Accidents on or after November 1, 1996 (at page 11) states that questions should not be referred to DAC Centres regarding treatment plans submitted after expenses are incurred.

The Insurer may agree to pay for expenses without the submission of an application or a treatment plan. [subsection 38(22)]

Ms. Mandel completed a treatment plan recommending in-home physiotherapy treatment 3 times per week for 3 to 4 weeks at an estimated cost of $3,540.This plan was received by General Accident on January 20, 1998 and approved.

The treatment recommended in the initial plan was completed by approximately February 9, 1998. However, Ms. Mileevsky continued to receive in-home treatment from Universal, without first submitting a further treatment plan for the ongoing treatment.

On March 19, 1998, Maureen Callaghan, General Accident's claims representative on Ms. Mileevsky's file, contacted Universal to inquire about their ongoing treatment. She advised the clinic that she intended to challenge any further treatment beyond the first treatment plan through the DAC process and requested a copy of the second treatment plan.

That same day, March 19, 1998, Ms. Callaghan wrote to the Multi-Disciplinary Assessment Centre to request an assessment of the current treatment being provided by Universal. She also wrote to Ms. Mileevsky advising her that a Medical Rehabilitation DAC was being arranged to assess the treatment she was receiving. This letter did not state the reasons for refusing the requested treatment.

On or about March 20 or 23, 1998, Universal forwarded a second treatment plan dated February 15, 1998, recommending a further 10 weeks of physiotherapy and muscle-strengthening at an estimated cost of $6,900. This plan was apparently not forwarded to the Multi-Disciplinary Assessment Centre.

It is evident that the parties failed to follow the procedure contemplated by the Schedule.

Ms. Mileevsky did not submit a further application or treatment plan in respect of ongoing physiotherapy treatment before incurring the expense.

Upon receiving the treatment plan, General Accident was entitled to and did challenge the reasonableness of further physiotherapy expense by invoking the Medical Rehabilitation DAC process. However, it failed to provide written notice explaining the reasons for its refusal to pay for further treatment as required by subsections 38(8) and (12). The requirement to provide reasons is important, as it enables the insured to understand the reason for the refusal and possibly remedy the defect to the insurer's satisfaction. Thus, the failure to provide reasons is not a trivial breach of the procedure.

Nonetheless, I am not satisfied that the failure to provide written reasons for the refusal to pay the treatment set out in the second treatment plan means that General Accident must pay for the disputed treatment. The Schedule does not mandate such a consequence. Ms. Mileevsky submitted that if the insurer does not provide written reasons for the refusal and the insured does not withdraw the treatment plan, then subsection 38(11) mandates that the insurer shall pay the expenses. However, subsection 38(11) refers to the situation where the insurer discloses a conflict of interest under subsection 38(8). In that case, the insured has the option of withdrawing the treatment plan. If the insurer has approved the expenses, and the insured does not withdraw the treatment plan, then subsection 38(11) requires the insurer to pay the expenses, despite the conflict of interest.

Neither am I satisfied that General Accident's conduct led Ms. Mileevsky to incur the disputed expenses. As stated previously, Ms. Mileevsky continued to receive ongoing physiotherapy expenses after February 9, 1998 without first seeking approval. Universal only submitted a treatment plan, part-way through the treatment, when asked to do so by General Accident. General Accident specifically advised Universal and Ms. Mileevsky that it was disputing the reasonableness of continued physiotherapy. Nonetheless, Universal continued to provide physiotherapy treatment until advised of the results of the Medical Rehabilitation DAC. I am satisfied that Ms. Mileevsky (and Universal) took a calculated risk to continue treatment (as she was entitled to do), despite being advised that the treatments were being disputed. As it turns out, I have decided that some part of the cost of that treatment is reasonable and necessary and must be paid.

Procedural problems with the medical rehabilitation DAC:

Ms. Mileevsky also raised a number of procedural irregularities concerning the conduct of the Medical Rehabilitation DAC, although she failed to clarify the significance of these problems. To the extent that there is some suggestion that the medical benefit should be paid because of these irregularities, I reject that argument.To the extent that these alleged breaches should undermine the weight to be given the Medical Rehabilitation DAC assessment, I have already ruled above that I preferred the weight of other medical evidence, for other reasons. Finally, to the extent that these alleged breaches should be weighed in considering a special award, I will address them, below.

2. Special Award:

At the outset of these proceedings, Ms. Mileevsky raised the issue of a special award for the first time on the basis that the Insurer had unreasonably withheld the disputed medical benefits. General Accident objected to the introduction of this issue at that time. I ruled that I was prepared to consider the issue of a special award on the basis that General Accident still had sufficient opportunity to respond to a general allegation that, based on the available medical evidence, its decision to refuse the benefits was not reasonable. During the proceedings, General Accident called the adjuster to explain the basis for declining to pay the benefit claimed. I remain satisfied that General Accident had sufficient opportunity to respond to Ms. Mileevsky's general allegation that it had unreasonably withheld the medical benefit claimed.

Ms. Callaghan testified that she declined to pay for the ongoing in-house physiotherapy beyond February 9, 1998 based on an independent medical opinion by Dr. Seiden which recommended against further treatment. General Accident was also in possession of a medical opinion by Dr. Bayer which emphasized the functional component to Ms. Mileevsky's complaints. Counsel submitted that physiotherapy would not address this functional component.

On the other hand, the Insurer's own occupational therapist's report of December 11, 1997 recommended in-home physiotherapy sessions for the first six weeks and then "left to the discretion of the treating physiotherapist. "Ms. Mandel, the treating physiotherapist, recommended ongoing in-home physiotherapy.

However, Ms. Callaghan did not have Ms. Mandel's detailed progress report of February 28, 1998, which was not submitted until March 31, 1998. By that time, the Medical Rehabilitation process was underway. Neither did Ms. Callaghan have any reports from Dr. Bateman at the time she made the decision to refuse benefits.

Based on the information available to her in mid-March 1998, I am not satisfied that Ms. Callaghan's decision to refuse to pay for ongoing in-home physiotherapy services was unreasonable.

By the end of June 1998, Ms. Callaghan had received Ms. Mandel's detailed progress report of February 28, 1998 which outlined Dr. Bateman's approval of the ongoing physiotherapy treatment, as well as his report of March 13, 1998, specifically approving ongoing physiotherapy. At the same time, she was in receipt of the Medical Rehabilitation DAC report which stated that further physiotherapy was not reasonable or necessary. In light of these conflicting medical opinions, I am not satisfied that General Accident's continued refusal to pay for the disputed treatment was unreasonable.

During the cross-examination of Maureen Callaghan and during final written submissions, Ms. Mileevsky raised several additional bases for claiming a special award, which are set out below.

I fail to understand why the Applicant failed to specify these allegations at the outset of these proceedings, so that the Insurer could fairly and adequately prepare its response. However, as I have decided that these allegations are without merit, I am satisfied that there has been no breach of natural justice.

I) Failure to obtain relevant medical records from Dr. Bateman

Ms. Mileevsky submitted that General Accident was aware from Ms. Mandel's progress reports that Ms. Mileevsky was seeing Dr. Bateman, and that it should have obtained Dr. Bateman's records. I am not satisfied that General Accident's failure to actively solicit medical records which might support Ms. Mileevsky's position was unreasonable.

II) Breach of subsection 43(2)

Ms. Mileevsky asserted that General Accident breached subsection 43(2) of the Schedule by failing to provide the DAC with such information as is reasonably necessary. In particular, she asserts that General Accident failed to provide a work-site evaluation of January 15, 1997, Ms. Mandel's reports of February 28, 1998 and Dr. Bateman's reports of February 29, 1998 and March 13, 1998. I am not satisfied that the work-site evaluation was reasonably necessary to determine the reasonableness and necessity of the proposed treatment. With respect to Dr. Bateman's reports, the evidence indicates that the Insurer first received his report of March 13, 1998 on June 4, 1998, after the Medical Rehabilitation DAC had taken place. It did not receive his report of February 29, 1998 until the commencement of the proceedings. Ms. Mandel's progress report of February 28, 1998 was received after Ms. Callaghan made the referral, but before the assessments had taken place. I note that subsection 43(2) places the obligation to provide information on the insured as well. In my view, Ms. Mileevsky was also in a position to provide relevant medical information concerning her claim to the DAC. In all the circumstances, I am not satisfied that General Accident has breached subsection 43(2).

III) Failure to provide reasons for the refusal to pay for treatment

I have addressed this argument above. I found that the failure to provide reasons as required by subsection 38(8) and (12) does not justify an award of the disputed benefits. For the same reasons I am satisfied that this breach does not justify a special award.

IV) Failure to Initiate emotional or pychological counselling

Ms. Mileevsky pointed out that the Insurer's own occupational therapist recommended eight to ten counselling sessions as early as December 1997. Ms. Mileevsky asserts that the Insurer's failure to implement this recommendation warrants a special award. However, Ms. Mileevsky did not request any counselling or mediate this issue. While I recognize that it is sometimes appropriate for insurers to take a pro-active approach to rehabilitation, I am not satisfied that the issue of psychological or other counselling sessions is an issue before me.

V) Failure to have Ms. Mileevsky assessed by a specialist in chronic pain

Ms. Mileevsky asserted that the assessors at Multi-Disciplinary Assessment Centre lacked the necessary expertise to assess her complaints of chronic pain. I am satisfied that the physiotherapist and the medical assessor from Multi-Disciplinary Assessment Centre had the appropriate expertise to assess Ms. Callaghan's musculoskeletal injuries.

VI) Failure to hold the DAC assessment within two weeks - section 3(7)

As stated previously, the Schedule contemplates prompt assessment of services requested in a treatment plan. Subsection 38(7) states that upon receiving an application for medical benefits, the insurer must promptly determine whether it is required to pay for the service. The insurer has 14 days to accept or refuse the treatment plan [section 38(3)]. General Accident did respond promptly to the second treatment plan. Indeed, Ms. Callaghan rejected the ongoing physiotherapy treatment before she even received the treatment plan. While this could indicate a failure to fairly consider the proposed treatment, Ms. Callaghan testified, and I accept her evidence, that she understood that the services being proposed were a continuation of the in-home physiotherapy treatment. Ms. Callaghan testified that, based on other medical information in her possession at that time, she did not believe the continued physiotherapy treatment was reasonable or necessary.

If the insurer refuses to pay for the requested services, it shall require the person to be assessed by a designated assessment centre. Subsection 43(1)(a) requires the insurer to notify the DAC within 15 days. Ms. Callaghan promptly notified the Multi-Disciplinary Assessment Centre on March 19, 1998, that it would require a medical rehabilitation DAC in respect of various services being requested by Ms. Mileevsky. Subsection 53(7) provides that the DAC must begin the assessment within two weeks after receiving a request for the assessment. The medical rehabilitation DAC was conducted on April 16 and April 20, 1998, which is more than two weeks after the request for the assessment (March 19, 1998). However, subsection 53(8) provides that if the DAC is unable to begin the assessment within two weeks, the insured person or the insurer may require that the assessment be conducted by the DAC next nearest to the insured person's residence. Neither Ms. Mileevsky nor General Accident made such a request. I am not satisfied that General Accident behaved unreasonably in failing to request an alternative DAC, in light of Ms. Mileevsky's acquiescence in the short delay.

VII) The Medical Rehabilitation DAC commented on past treatment and did not have the proposed treatment plan

Ms. Callaghan sent the DAC copies of two treatment plans in respect of physiotherapy treatment which Ms. Mileevsky had already received. The first treatment plan, from Integrated Health, recommended a program of eight weeks of treatment, ending January 8, 1998. As stated earlier in this decision, Ms. Mileevsky only attended two sessions and then discontinued this treatment. Multi-Disciplinary Assessment Centre nonetheless commented that this treatment was considered reasonable.

Ms. Callaghan also sent the first treatment plan from Universal, recommending home care treatments for three to four weeks, ending February 9, 1998. Again, Multi-Disciplinary Assessment Centre commented that this treatment was also considered reasonable.

The Summary Report of Multi-Disciplinary Assessment Centre indicates that it did not have the second treatment plan from Universal, recommending another nine weeks of ongoing physiotherapy. Nonetheless, the Centre commented that further treatments "of this type" are not required.

Ms. Mileevsky objected to the DAC commenting on past treatment and the failure to provide the DAC with the disputed treatment plan. I am not satisfied that these procedural irregularities have any bearing on any issues in this case. The Commissioner's Guidelines for Designated Assessment Centres to Conduct Assessment for Accidents on or after November 1, 1996 (at page 11) states that questions should not be referred to DAC Centres regarding treatment plans submitted after expenses are incurred. However, General Accident did not ask the DAC to comment on past treatment. The referral questions set out in the DAC Summary Report clearly indicate that the DAC was asked to comment on current treatment.

I agree General Accident should have sent the second disputed treatment plan to the DAC. Nonetheless, the DAC understood that it was being asked to comment on the reasonableness and necessity of further physiotherapy treatment of the kind set out in the first treatment plan by Universal. At most, the absence of the second treatment plan would have affected the weight I would have given their conclusions. As stated previously, I have preferred other medical evidence over the DAC report for other reasons.

VIII) Failure to list documents reviewed

Ms. Mileevsky objected to the DAC's failure to list the medical documents it reviewed during the assessment. I agree that it is difficult to discern what medical information was before the DAC when it conducted its assessment and this affects the weight to be given to the assessment. However, I was not referred to any provisions of the Schedule or any Guideline which requires the listing of documents reviewed. In any event, I am not satisfied that the DAC's failure in this regard warrants a special award against General Accident.

IX) Failure to provide the service provider with a copy of the DAC report

Ms. Mileevsky asserts that the DAC failed to provide a copy of its report to Universal. The Schedule provides that a complete copy of the DAC report must be submitted to the insurance company, the claimant and the claimant's health practitioner [section 43(4)]. The requirement to provide copies of the DAC report is imposed on the DAC, not the insurer.

I am not satisfied that any of the above factors, taken singly, or together, indicate that General Accident acted unreasonably in denying the medical benefits claimed.

EXPENSES

I remain seized to deal with the issue of expenses, if the parties are unable to resolve this matter.

June 15, 2000

M. Kaye Joachim Arbitrator

Date