Neutral Citation: 2000 ONFSCDRS 173

FSCO A99-000545

BETWEEN:

ANNA S. WONG

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

August 8, 9 and 10, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on August 25, 2000.

Appearances:

Thomas Wolf Zwiebel for Ms. Wong

Todd J. McCarthy for Allstate Insurance Company of Canada

Issues:

The Applicant, Anna S. Wong, was injured in a motor vehicle accident on March 11, 1998. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate terminated weekly income replacement benefits on November 8, 1998. The parties were unable to resolve their disputes through mediation, and Ms. Wong 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. Wong entitled to income replacement benefits pursuant to section 4 of the Schedule after November 8, 1998?
Is Ms. Wong entitled to medical benefits pursuant to section 14 of the Schedule for the following:

chiropractic services in the amount of $4,200 provided by Sheppard Leslie Chiropractic clinic
medication in the amount of $190.70
transportation in the amount of $1,241.50
psychotherapy services provided by Dr. Young in the amount of $1,130
$1,337.50 for an assessment performed at Deahy Medical Assessments Inc.
$1,000 for a functional capacity evaluation performed at the Toronto Assessment Centre?

Is Ms. Wong entitled to rehabilitation expenses in the amount of $7,100.21 for services provided by Target Rehabilitation Centre and in the amount of $50 for services provided by Columbia Health?
Is Ms. Wong entitled to $215 for housekeeping expenses pursuant to section 22 of the Schedule?
Is either party entitled to expenses of the arbitration proceeding?

Result:

Ms. Wong is entitled to weekly income replacement benefits from November 8, 1998 to March 11, 2000.
Ms. Wong is entitled to the following medical benefits:

$1,976.35 for chiropractic services
$190.70 for medication
$1,156.25. for a psychological report prepared by Dr. Young

Ms. Wong is not entitled to medical benefits for transportation, an assessment performed at Deahy Medical Assessments Inc. or for a functional capacity evaluation performed at the Toronto Assessment Centre.

Ms. Wong is entitled to $615 for rehabilitation services provided by Target Rehabilitation Inc. She is not entitled to expenses for services provided by Columbia Health.
Ms. Wong is not entitled to expenses for housekeeping.
The issue of entitlement to expenses is deferred.

EVIDENCE AND ANALYSIS:

Background:

Ms. Anna Wong suffered soft tissue injuries to her neck, shoulders and back in a motor vehicle accident on March 11, 1998 when she was 32 years old. The accident occurred as she was returning to work after lunch with co-workers. Her vehicle was struck from behind and Ms. Wong's head struck the head rest. Her co-workers took Ms. Wong to a walk-in medical clinic and then to work. Ms. Wong finished her workday as an accounts payable administrator at Linda Lundstrom Inc, a clothing manufacturer. The next day she saw her family doctor, Dr. Kathleen Chan who prescribed physiotherapy.

Over the next month, Ms. Wong attended physiotherapy and continued to work part time, depending on her treatment schedule. The evidence is consistent, and I find, that over the first two weeks, Ms. Wong's main complaint changed from neck and back pain to headache to the point her headache was continuous and encompassed her total head.

Ms. Wong stopped work on April 17, 1998 and began seeing a succession of doctors and health care providers for treatment of her headache. Allstate paid weekly income replacement benefits until November 8, 1998 and then terminated them on the basis of a report from Dr. J. Cameron, an orthopaedic surgeon, that Ms. Wong's headaches should resolve and that she should begin a graduated return to work. Ms. Wong elected to be assessed at a Designated Assessment Centre ("DAC") designated to assess disability. On November 4, 1998 the DAC reported to Allstate that Ms. Wong admitted that she had the functional ability to return to work and that a Functional Capacity Evaluation confirmed this. Although the report refers to Ms. Wong's headaches, it does not comment on whether the headaches disable Ms. Wong from working all day as she claims.

Ms. Wong returned to Linda Lundstrom Inc. three weeks after Allstate terminated weekly income replacement benefits. Her employer had filled her position as the accounts payable administrator. Over the next year, Ms. Wong worked part-time as a payroll clerk two to four hours a day, five to 18 days a month. She claimed that she could only work part-time hours because of headaches. In 1999 she earned about one-quarter of her regular salary through her part-time work. In June 2000, her employer could no longer accommodate Ms. Wong's part-time hours and Ms. Wong left Linda Lundstrom Inc. In two weeks Ms. Wong found another part-time temporary job. She now works three hours a day, three days a week at a learning centre. This job ends in October.

Weekly income replacement benefits:

Legal test:

Under section 4 of the Schedule, an insured person who sustains an impairment as a result of an accident is entitled to an income replacement benefit for the period the person suffers a substantial inability to perform the essential tasks of her employment. The test changes after 104 weeks and Mr. Zwiebel indicated that Ms. Wong did not claim income replacement benefits beyond March 11, 2000, the 104-week mark.

Essential tasks of employment:

Ms. Wong's work was mostly sedentary. She worked at a desk and used a keyboard and computer. She needed to concentrate to collect information and do mathematical calculations and analysis

Disability:

Allstate adduced evidence to show that Ms. Wong was not happy with her work at Linda Lundstrom and implied that Ms. Wong stopped work for that reason. Ms. Wong graduated from university with a degree specializing in commercial mathematics. She wanted a career dealing with inventory control and she thought the job at Linda Lundstrom would lead to that. She was unhappy that it did not.

Ms. Wong continued to try and work for about one month after the accident. She testified that in the two and a half years she worked at Linda Lundstrom before the accident she did not take any time off other than vacation. She was not challenged on this testimony. The part-time payroll work she did after Allstate terminated income replacement benefits was less challenging then the accounts payable administrator position, yet Ms. Wong continued at this part-time work for more than a year. Within two weeks of being told that Linda Lundstrom could no longer accommodate her part-time hours, Ms. Wong found another part-time temporary position. Prior to working at Linda Lundstrom, Ms. Wong worked at a variety of jobs from one to two years each in Canada and Hong Kong. Some jobs she did not like. Ms. Wong's work history indicates to me that she has done work that she does not enjoy and I reject any implication that Ms. Wong used the accident as an excuse to stop working at Linda Lundstrom because she did not enjoy the work.

Ms. Wong continues to complain of nearly constant headaches despite extensive medical referrals, investigations and treatment.

Dr. Kathleen Chang referred Ms. Wong to at least six specialists in headache or pain management and one of those specialists, Dr. Gordon Ko, a physiatrist, referred Ms. Wong to a further five specialists.

Dr. S. W. Joseph Wong, a physiatrist, thought the headaches were due to impingement of the greater occipital nerve due to tight neck muscles. He prescribed prozac and trazodone. Ms. Wong said the trazodone gave her a violent headache. Dr. Raold Serebrin, a neurologist, thought Ms. Wong had a chronic tension-type headache, originally precipitated by the accident and made worse by subsequently acquired depression. He recommended pharmacological treatment and a return to work to forestall worsening depression. Dr. David Shulman, an anaesthetist, administered surgical nerve blocks. The procedure did not reduce the pain. Ms. Wong described the nerve blocks as the worst experience in her life. Dr. Gordon Ko, a specialist in pain, found that CT and MRI scans of the head and cervical spine and SPECT perfusion images of the brain were normal. He spoke to Ms. Wong about sleep hygiene, nutrition, exercise, stretching, stress management and judicious use of medication. Dr. Howard Wu also spent considerable time counselling Ms. Wong on chronic pain, use of narcotic analgesics and dependency and addiction. Dr. Jia-de Chen, a rheumatologist, talked to Ms. Wong about posture and exercises. Dr. Gardner-Nix, a pain management specialist, reported that Ms. Wong's pains were "clearly" not responsive to narcotics. Dr. Gil Faclier, another pain management specialist, told Ms. Wong that the continued use of habit-forming medication was not in her best interest.

Ms. Wong underwent an overnight sleep study which showed "reduced sleep efficiency." As late as July 1999, Ms. Wong underwent OHIP-funded physiotherapy three times a week for eight weeks. She has an appointment to see another neurologist in November 2000. Neither acupuncture, chiropractic treatment or physiotherapy has significantly helped her headaches. Dr. D. Katz, a physiatrist at a DAC, reported in December 1998 that Ms. Wong takes two Tylenol #2 a day and three Tylenol #3 a day and amitriptyline. Ms. Wong testified that she also uses Codeine Contin and that these medications do not help her headaches.

Dr. Gerald Young, a psychologist, saw Ms. Wong for Allstate in April 1999 and reported that:

Her pain experience is pervasive and persistent, and reflects the interplay of psychological and physical factors. It has taken on a life of its own, is burnt in, and is so deeply ingrained that it has become difficult to respond to treatment.

Dr. J. Cameron, an orthopaedic surgeon, reported to Allstate in June 1998 his recommendation that Ms. Wong gradually return to work. He thought Ms. Wong's headaches would resolve over the next eight weeks. Ms. Wong started part-time work on November 25, 1998. Her headaches did not resolve according to Ms. Wong, and I do not read this report as an opinion that Ms. Wong was fit to return to the essential tasks of her employment.

The report of the disability DAC in November 1998 notes that: "In discussion with the client, she stated that she knew that she had the physical ability to return to her job." No one questioned Ms. Wong about this statement at the hearing. Dr. Young noted that Ms. Wong told him that she could do her work for two hours a day, but it made her headaches worse. In view of Ms. Wong's return to part-time hours on November 25, 1998 and the evidence that she was seeking treatment or answers for her headache problem and her testimony that concentration aggravated her headaches, I find that Ms. Wong meant that she had the physical ability to return to her job in the sense that she could perform all of the tasks on a part-time basis until her headaches prevented her from continuing. Further, although the physiotherapist who assessed Ms. Wong at the DAC found "little" clinical evidence of "significant spasm, tension or tightness in her neck" I heard no evidence that cervicogenic headaches are always accompanied by clinical evidence. As well, not one of the approximately 12 treating doctors who specialize in headaches and pain management expressed any doubt that Ms. Wong experiences headaches.

Lastly, the surveillance videotape which shows Ms. Wong walking and getting in and out of a vehicle does not persuade me that she does not suffer from headaches.

I accept Ms. Wong's testimony that she has been disabled from working as an accounts payable administrator full time on account of headaches since November 8, 1998. Her work record, before and after the accident, and the evidence of her persistent attempt to find a cure for her headaches persuade me that she suffers from disabling headaches.

Cause of disability:

Ms. Wong and Dr. Chang were careful to record all Ms. Wong's complaints, both before and after the accident. Allstate claimed that Ms. Wong's current problems are due to pre-existing conditions noted by Dr. Chang. I find that Ms. Wong's pre-accident medical condition is irrelevant to her current problems, particularly in view of her uncontradicted testimony that she worked two and a half years before the accident for Linda Lundstrom without taking time off for any reason other than vacation.

Dr. Brian Alpert, an orthopaedic surgeon, assessed Ms. Wong for Dr. Chang and testified at the hearing. He testified that the long-term use of narcotic medication does not cause headaches, although it may cause temporary "rebound" headaches. On the other hand, a number of treating doctors expressed concern about Ms. Wong's use of narcotic medication. Dr. Gardner-Nix said Ms. Wong's pain was "clearly quite narcotic unresponsive." Dr. Gil Faclier was concerned about Ms. Wong's continued use of habit-forming medication. Dr. Ko and Dr. Wu counselled Ms. Wong on the "judicious" use of narcotic medication and addiction. Dr. J. Teitel reported to Ms. Wong's counsel "I am sure she is suffering withdrawal headaches from the codeine." Ms. Wong did not use narcotic medication before the accident. If her headaches are caused by addictive narcotic medication, the use of this medication is inextricably connected to the injuries she suffered in the motor vehicle accident and the accident remains a significant factor contributing to her disability.

I therefore find that her inability to perform the essential tasks of her occupation was caused by the motor vehicle accident.

She is therefore entitled to weekly income replacement benefits from November 8, 1998 to March 11, 2000.

Chiropractic treatment:

Mr. Zweibel referred Ms. Wong to the Sheppard/Leslie Chiropractic Clinic where she was treated by Dr. Manjur Suri from October 28, 1998 to March 26, 1999. At each therapy session Dr. Suri asked Ms. Wong how she was and how she responded to the last treatment. She then made an assessment and decided which joints to adjust and what treatments to administer. Chiropractic therapies administered by Dr. Suri included use of a tens machine, electrotherapy, stretches, traction, spinal adjustment and trigger-point therapy. The treatments started at four to five times a week and decreased to once per week.

Dr. Suri submitted five treatment plans which Allstate refused to fund. Dr. Suri provided the treatment despite the refusal and the Clinic now claims $4,200. Ms. Wong testified that she did not agree to pay the account if the Clinic could not collect it from Allstate. Allstate submitted the first treatment plan to the Multi-Disciplinary Assessment Centre for a medical/rehabilitation DAC. On December 23, 1998, the DAC reported that further physical treatment was not reasonable or necessary.

As with all other assessors and treatment providers, Ms. Wong's main reason for seeking chiropractic treatment was to find relief from her headaches. Dr. Suri recorded that Ms. Wong's headaches improved slightly with her treatment. Ms. Wong testified that she received no relief from her headaches, although the treatment helped with her neck, shoulder and low-back pain. Dr. Shane, the chiropractor at the medical/rehabilitation DAC recorded that Ms. Wong derived short-term relief from her discomfort, mainly reduced back pain, but received no relief of her headache symptoms. I accept the consistent evidence that Ms. Wong received short-term relief of neck, shoulder and low back pain from the chiropractic treatment.

Arbitrators have previously determined that in order for treatment to be reasonable and necessary, an applicant does not have to prove that it will return her to work or to a "full" level of functioning. Supportive care that relieves pain, be it physical or emotional, and therefore improves function, is a legitimate medical and rehabilitative goal.²

However, this test does not address the question of how much is too much to pay for pain relief. This question involves a consideration of matters difficult to measure, such as the amount of pain and the amount of relief. In my view, much depends on the honesty and good faith of the patient and the treatment provider. Ms. Wong was quite clear that although the chiropractic treatment did not relieve her headaches, she found the treatment helped her shoulder, neck and back pain. Dr. Suri underwent vigorous cross-examination and her conviction that her treatment helped Ms. Wong was not shaken. In some cases, unnecessary treatment promotes disability. I find it significant that Ms. Wong tried three massage treatments and discontinued them because it made her headaches worse. I do not believe that Ms. Wong looked to Dr. Suri to reinforce her pain behaviours. The chiropractic treatment Ms. Wong received at the Clinic was the only chiropractic treatment she received. She started treatment nine months after the accident. She started part-time work one month after she first started chiropractic treatment. Over a six- month period, from October 1998 to March 1999, she had 41 treatments on a gradually decreasing basis. At the conclusion of treatment she increased the amount of part-time work she did at Linda Lundstrom. I am satisfied that the treatment did not promote disability and that it was reasonable and necessary to relieve neck, shoulder and back pain.

I heard very little clear evidence on what was a reasonable fee for chiropractic treatment. Dr. Suri's Clinic charges a block fee of $49.65 inclusive of OHIP payments. She testified that in February 1999, OHIP coverage was reduced from $220 to a maximum of $150 per year. She did not know how the Clinic arrived at the block fee. She compared the block fee of some of her treatment visits to the fees recommended in the Ontario Chiropractic Fee Schedule as published in June 1997. In some cases the Clinic charged more than was allowed by the Fee Schedule and in some cases the Clinic charged less. Mr. William Gold, Allstate's claims consultant in charge of Ms. Wong's file, testified that many chiropractors charge Allstate $20 to $28 per treatment inclusive of OHIP. This is all the evidence I heard on the issue of what was a reasonable fee.

Mr. McCarthy submitted that Arbitrator Sapin's finding in Amoa-Williams and Allstate Insurance Company of Canada³ that $40 inclusive of OHIP per treatment visit was reasonable should be considered as evidence in this case. I do not consider it evidence because Ms. Wong has not had an opportunity to test the evidence upon which this finding was made. Further, I do not find that the principle of issue estoppel applies because the parties in this arbitration are not the same as those in Amoa-Williams. However, I do consider it a concession by Allstate as to the minimum it would pay the Clinic.

Brenda Rusnik is the president of Active Rehabilitation Group. This group represents a number of physiotherapy clinics. Ms. Rusnik testified that the group meets regularly with insurance companies to discuss services provided by the clinics and to arrive at guidelines for fees charged by the clinics. Ms. Rusnik testified that the fees are set on the basis of consensus and costs. In Amoa-Williams Arbitrator Sapin noted that health professionals can negotiate the fees they charge insurance companies through their professional associations and have them published by the Financial Services Commission. To a large extent, the fee a chiropractor can charge is determined by market forces. I would have found statistical evidence on how much chiropractors charge helpful. Considering Mr. Gold's evidence that many chiropractors charge Allstate $20 to $28 per treatment, inclusive of OHIP, and Mr. McCarthy's concession that $40 inclusive of OHIP is reasonable, I find in this case that a reasonable fee for the services provided by Sheppard-Leslie Chiropractic Clinic is $40 per treatment inclusive of OHIP. Like Arbitrator Sapin in Amoa-Williams, I point out that this finding is based on the evidence adduced and the concession made at this hearing.

Sheppard-Leslie charged an additional $45 for what is described as a "minor exam/re-assessment"on each of seven occasions. Dr. Suri testified that she reassessed Ms. Wong on each visit and I did not find that she performed any additional services on the seven days the clinic charged the additional $45. I therefore disallow this charge.

Sheppard-Leslie charged $114.25 for the initial visit. I heard no evidence as to the reasonableness of this amount and allow it.

Sheppard-Leslie charged $125 for each of five treatment plans Dr. Suri submitted to Allstate. Mr. Sandford Lee, a physiotherapist with Active Physiotherapy, testified that the clinic he worked for charged $75 for a treatment plan. The five treatment plans Dr. Suri submitted are identical except that the frequency of treatment and cost decrease with each plan. I heard no other evidence on the reasonableness of the fee charged for each treatment plan. I allow $125 for the first treatment plan and $75 for each subsequent plan.

Sheppard-Leslie charged $75 for a disability certificate Dr. Suri prepared. I heard no evidence on the reasonableness of this charge and allow it.

Sheppard-Leslie charged $75 for each of five medical reports Dr. Suri reviewed. It was not clear what reports Dr. Suri reviewed and I therefore do not allow this charge.

In summary, I allow the following amounts: $114.25 for initial assessment; $75 for a disability certificate; $125 for the first treatment plan and $75 for each of the following four treatment plans; and, $40 for each of 41 treatments. The total less $277.90 paid by OHIP is $1,976.35.

Target Rehabilitation:

Target Rehabilitation Centre ("Target") submitted an account to Allstate in the amount of $7,100.21. Most of the account is for what it describes as "work conditioning" which took place about three or four times per week between October 28, 1998 and February 22, 1999. In order to put the services provided by Target in perspective, I examine the other rehabilitation treatment Ms. Wong underwent.

A few days after the accident Ms. Wong received physiotherapy treatment at Times Physiotherapy. She stopped attending after three treatments because it was too far from home and work. Ms. Wong then attended The Sports Rehabilitation Institute ("Sports Rehab") where Sandford Lee, a licensed physiotherapist, provided physiotherapy treatment three times a week for 12 weeks from March 21, 1998 to June 12, 1998.

Each session at Sports Rehab was one to one-and-a-half hours. Initially Mr. Lee spent 35 to 40 minutes at each session helping Ms. Wong with exercises. At the end of 12 weeks he spent 15 to 20 minutes. Mr. Lee prescribed five floor exercises and seven exercises to be done with equipment for strength, flexibility and cardiovascular fitness. His notes describe the exercises and the frequency, duration and level of intensity. Mr. Lee testified that the level of intensity increased over the 12 weeks.

When Ms. Wong was discharged on June 12, 1998, her soft tissue injuries had improved but she still had headaches. She had a home exercise program which took 30 minutes to one hour to complete. Sandford Lee recommended a two-month gym membership but Ms. Wong said that she did not get one because she used a fitness room in her condominium. When she moved in June 1999, she had access to a friend's fitness room and whirlpool. She described the exercises she did at home and the equipment in the fitness room. She described stretching exercises for her neck, strength exercises using tins of canned food and pushing against a wall, and cardiovascular exercises on a treadmill, bicycle or rowing machine. She said the equipment in the fitness room was similar to that at Sports Rehab. Mr. Lee testified that he educated Ms. Wong on the proper way to exercise and how to monitor her responses so that she could exercise on her own. After 12 weeks at Sports Rehab he did not think she required supervision or that he could do anything more for her.

Two weeks before Ms. Wong started physiotherapy at Target, Dr. Shulman, the anaesthetist who administered the nerve blocks, noted that he told Ms. Wong that physiotherapy was not necessary and that she should stop it. He thought she needed more exercise and encouraged her to get out of the house and be as active as possible. The week after Ms. Wong started at Target, her family doctor, Dr. Chang, recorded that Ms. Wong could do her physiotherapy treatment of working, resting and stretching at home.

Despite these opinions, Ms. Wong attended at Target on the referral of her lawyer from October 9, 1998 to March 26, 1999. Dr. Jesse Teitel assessed Ms. Wong at Target and concluded that she would benefit from an exercise program at Target consisting of stretching and strengthening exercises and "muscle retraining." Dr. Teitel was "sure" that Ms. Wong suffered from withdrawal headaches from the use of codeine. He reported that the aim of the program was to decrease Ms. Wong's headaches, decrease her analgesic use and return her to her previous level of function.

Ms. Wong's program was supervised by a person identified only as "Vera." Vera's qualifications were not in evidence except that Ms. Wong testified that Vera told her she was a physiotherapist.

Ms. Wong described the exercises she did at Target. She said they were "slightly different" from those she did at Sports Rehab. She testified that she did sit-ups, push-ups and pulled her legs toward her chest. She did stretches for her lower back and shoulders. Vera massaged her once or twice a week for a few minutes. Vera also educated Ms. Wong on how to get out of bed by turning her body to the side and using her hand to support herself. She also taught her not to bend at the waist when lifting, how to carry bags and how to get into a car. This is all the evidence Ms. Wong gave about what happened at Target.

Mr. Lee examined Vera's notes and he found them deficient in that he could not tell what exercises Ms. Wong did at Target and, unlike his own records, another physiotherapist could not continue with Ms. Wong's program on the basis of the notes.

Target's progress reports note that Ms. Wong needed minimum supervision and encouragement and her motivation was good or excellent. As with all other therapies, Target's did not help with Ms. Wong's primary complaint of headaches.

Like other doctors, Dr. Teitel noted that Ms. Wong should decrease her use of codeine and analgesics. However, in addition, he reported that one of the goals of the Target program was to decrease Ms. Wong's dependence on analgesics. Dr. Teitel's recommendation was significant and of value at that time. Therefore, his assessment of Ms. Wong had value, and I allow the $450 Target charged for that assessment.

However, I heard no evidence that Target did anything to reduce Ms. Wong's use of medication. As well, at the time Ms. Wong started at Target, she had found that exercise had not helped with her headaches. I heard no evidence that Target did anything to help Ms. Wong with her headaches.

I find that the exercises Ms. Wong did at Target were not significantly different from what she did at home and that she did not need motivation or supervision to do the exercises on her own. This finding is consistent with the consensus opinion of the medical-rehabilitation DAC that Ms. Wong did not need supervised physiotherapy and that a registered physiotherapist or a certified kinesiologist could teach Ms. Wong a home exercise program in one to two sessions. Finally, I agree with the opinion of her family doctor and of Dr. Shulman that Ms. Wong did not need physiotherapy in October 1998 and that she should have been as active as possible.

Accordingly, I find that the Target exercise program was of no value to Ms. Wong. I find that Ms. Wong should have realized in the first week of the program that Target had nothing to offer her which she could not do on her own. I therefore find that Allstate should pay for three sessions at Target.

Target charged $150 per session. Target did little more than provide facilities for exercise. Ms. Wong said that Vera spent less time with her than Mr. Lee did. I do not know Vera's qualifications. Sports Rehab initially charged $85 per session. Mr. Gold testified that Allstate typically sees bills of $55 to $75 per session for work conditioning. I find that $55 for each of three sessions is a reasonable fee for the services provided by Target.

Medication:

Ms. Wong submitted a number of receipts for medications prescribed by her treating doctors which she claims add up to $190.70. Even if I accept Allstate's argument that the medication induced or worsened Ms. Wong's headaches, the expense is still recoverable because the prescription of the medication was directly related to the injuries Ms. Wong suffered in the motor vehicle accident. I therefore allow $190.70 pursuant to paragraph 14(2)(c) of the Schedule.

Transportation:

The parties identified transportation expenses of $1,241.50 as an issue of the hearing. I heard no evidence to establish this claim and therefore dismiss it.

Account of Dr. Young:

The parties identified the account of Dr. Young in the amount of $1,130 as an issue. I heard very little evidence concerning this account. In his submissions, Mr. Zweibel refers to "medical benefits in the amount of $1,100 representing the outstanding accounts" of Dr. Young. Dr. Young is a psychologist. His report dated April 20, 1999 is addressed to Allstate. He billed Allstate $1,206.25. The documents include an authorization in which Ms. Wong directs her counsel to deduct from any settlement all amounts owing to Dr. Young. Ms. Wong testified that after the motor vehicle accident she was a little depressed and that Dr. Young helped her relax by teaching her deep breathing exercises and by thinking of peaceful scenes and by listening to music. In his report, Dr. Young does not mention treating Ms. Wong. He recommends 35 sessions.

I find it likely that the assessment was done at Ms. Wong's request in order to determine if she required psychological treatment. The psychological assessment was performed one year after the accident and after other treatments had not helped Ms. Wong's headaches. Since nothing else had helped Ms. Wong with her headaches, I find it that it was reasonable for her to undergo a psychological assessment to determine whether a psychologist could help her.

Dr. Young charged $180 per hour for six hours plus $76.25 for a "plan fee" and $50 for a service fee. The account refers to three assessment hours on two dates. I heard no evidence to explain what was done for the other three hours. I find it likely that Dr. Young had to review test results, think about his opinion and then write a report. In the absence of any other evidence, I find six hours at $180 per hour reasonable. I also find that $76.25 for a treatment plan is reasonable. I do not know what the $50 service fee is for. I therefore allow the account less the $50 service fee which amounts to $1,156.25.

Account of DEAHY:

Dr. Alpert is an orthopaedic surgeon who prepared a report for Dr. Chang on the letterhead of DEAHY Medical Assessments Inc. Ms. Wong argued that she "participated in medical assessments in a good faith attempt to alleviate her pain and consequently seeks recovery for these expenses." Dr. Chang and Dr. Ko referred Ms. Wong to over 12 pain and headache specialists who prepared consultation reports for Dr. Chang. Although I heard no evidence on the matter, I expect that these specialists were paid by OHIP. DEAHY's account is for $1,227.50. I heard no evidence why after a number of referrals through the OHIP process to pain and headache specialists, Dr. Chang decided to refer Ms. Wong to DEAHY Medical Assessments Inc. I heard no evidence as to whether Dr. Chang or DEAHY decided that an orthopaedic surgeon should assess Ms. Wong. I find it likely that the DEAHY report is more accurately described as a report Ms. Wong intended to use for this proceeding. As such, if it is recoverable, it is as an expense of the arbitration proceeding within the meaning of subsection 282(11) of the Insurance Act and not the cost of an examination within the meaning of section 24 of the Schedule or a medical or rehabilitation expense. I therefore dismiss this claim.

Toronto Assessment Centre:

Ms. Wong underwent a functional capacity evaluation at the Toronto Assessment Centre on the referral of Dr. Chang on February 11, 2000. Ms. Wong claims $1,000 for this assessment. Ms. Wong underwent a functional capacity evaluation two years earlier as part of the disability DAC process. At the time of this second evaluation Ms. Wong was working part time and had worked part time for over a year. I heard nothing to suggest that Dr. Chang thought Ms. Wong could do more than this. I do not know why Dr. Chang wanted another functional capacity evaluation. I do not know what, if anything, Dr. Chang did with the functional capacity evaluation when she received it. Accordingly, I do not find that Dr. Chang made this referral for the purposes of the Regulation. The expense is more properly characterized as an expense for a report to be used in the arbitration proceeding, and therefore, if it is recoverable, it is recoverable as an expense of the arbitration proceeding within the meaning of subsection 282(11) of the Insurance Act.

Columbia Rehabilitation Centre:

Ms. Wong submitted an account of $50 for an arthritis aquatic program at Columbia Rehabilitation Centre undertaken in April 1999. I have found that Ms. Wong could exercise on her own after she was discharged by Sports Rehab in June 1998. Accordingly, I find that this expense is not a reasonable rehabilitation expense under section 15 of the Schedule. I therefore dismiss this claim.

Housekeeping:

Ms. Wong testified that two friends helped her with housekeeping after the accident and she paid them a total of "about $215." She did not remember what she gave to each person or how she calculated the payment. I accept that she paid her friends something, but I cannot determine on the evidence how much. I therefore dismiss the claim for housekeeping expenses under section 22 of the Schedule.

Special Award:

Under section 282(10) of the Insurance Act I am required to make a special award where I find that the insurer has unreasonably withheld or delayed payments. Mr. Zwiebel raised the issue for the first time in his submissions. The issue of entitlement to income replacement benefits was a question of judgment, largely dependent on the credibility of Ms. Wong. I do not find that Allstate acted unreasonably in withholding income replacement benefits. I found that Allstate need only pay a portion of the expenses claimed for chiropractic and rehabilitation treatment. Accordingly, its refusal to pay the expenses as claimed was not unreasonable.

EXPENSES:

If the parties cannot agree on the issue of entitlement to the arbitration proceeding they may make written submissions to me on the issue within 60 days from the date of this decision.

September 22, 2000

William J. Renahan Arbitrator

Date