Neutral Citation: 2000 ONFSCDRS 202

FSCO A99-000373

BETWEEN:

JEANNETTE PUTTER

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Judith Killoran

Heard:

July 24 and 25, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances:

Brian Sherman for Mrs. Putter

Ian D. Kirby for Allstate Insurance Company of Canada

The Applicant, Jeannette Putter, was injured in a motor vehicle accident on March 25, 1998. She applied for and received some statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate refused to pay for the full cost of treatment at Target Rehabilitation Centre ("Target"). The parties were unable to resolve their disputes through mediation, and Mrs. Putter 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 Mrs. Putter entitled to payment of rehabilitation expenses of $12,593.68 for treatment and interest pursuant to sections 15 and 46 of the Schedule?
Is either party liable to pay the arbitration expenses of the other?

Mrs. Putter is entitled to rehabilitation expenses of $3,655.41.
Mrs. Putter is entitled to interest on the overdue payment in accordance with section 46 of the Schedule.
The issue of expenses may now be spoken to.

Preliminary Issues

The Applicant retained Mr. Brian Sherman as an agent just days before the hearing. Allstate objected that the Applicant had breached the Dispute Resolution Practice Code (the "Code") by not submitting the names of witnesses 10 days prior to the hearing nor the list of documents upon which she intended to rely.

Rule 36.3 of the Code specifies that:

Every party must provide the Commission and the other parties with the names of the witnesses that the party intends to call not less than 10 days before the first day of hearing, or on such terms as the arbitrator considers appropriate.

Rule 36.4 of the Code states:

If a party intends to introduce documents that have not been filed, the party must file the document and the information required by these Rules and serve a copy on the other parties as soon as possible, but not less than 10 days before the first day of hearing, or on such terms as the arbitrator considers appropriate.

Neither Allstate nor the Applicant sought an adjournment. However, Allstate submitted that the Applicant should not be allowed to call any evidence. I was not persuaded that the witnesses to be called or the documents to be relied on by the Applicant were unforeseeable or capable of taking Allstate by surprise in the presentation of its case. Therefore, I was not prepared to sanction the Applicant in the drastic fashion which was requested. Instead, I ordered that the hearing proceed and I retained discretion to make rulings about any production issues which might arise later in the hearing. It is important to note that Rules 36.3 and 36.4 of the Code are not inflexible, but allow the arbitrator to retain discretion as to the terms surrounding production issues of the sort raised in this hearing.

In response, Allstate submitted that my ruling should be committed to writing, that short breaks should be granted for Allstate to prepare for the cross-examination of witnesses, and due to the Applicant's violation of the Code with the resulting, unnecessary work required by counsel for Allstate, that Allstate's assessment fee should be payable by the "real" applicant in this case, Target.

While I do not condone the Applicant's non-compliance with the Code, I was not persuaded that Allstate was prejudiced by proceeding with the hearing. In fact, Allstate did not seek an adjournment of the hearing as a remedy. In my view, Allstate's requests for a ruling in writing and extra preparation time were reasonable and I granted these requests. As for the issue of Allstate's assessment fee, I discuss this later in the section entitled "Expenses".

The Applicant, Mrs. Putter, did not appear although she received notice of the hearing. Her representative, Mr. Sherman, and her daughter, Ms. Tona Abrams, explained that Mrs. Putter is now 82 years old and extremely frail. It was their opinion that attending the hearing would pose a serious hardship to Mrs. Putter. I asked Allstate if it wished to make submissions about the necessity of Mrs. Putter's attendance, perhaps requesting that I summon and enforce her attendance. Allstate declined to make submissions of that nature and I concluded that it was reasonable to conduct the hearing in Mrs. Putter's absence.

Background

Mrs. Putter seeks payment of her account with Target for services from May 19, 1998 to February 5, 1999 plus interest. Mrs. Putter was eighty years old when she was injured on March 25, 1998. She was getting into the back seat of a car with one foot in the car and the other on the ground when the car moved forward. Mrs. Putter sustained a fracture to the left ankle and foot and her leg was put in a cast. She was treated by her family doctor, Dr. Rosen, and Dr. Tile, an orthopaedic specialist at Sunnybrook Hospital.

Mrs. Putter was involved in an earlier motor vehicle accident in Florida on December 27, 1995. She sustained fractures of her right arm and right hip. Subsequently, she needed two operations to the right hip, including a total hip replacement in 1997. As well, her past medical history was significant for a myocardial infarction and coronary artery bypass surgery in 1987.

Mrs. Putter was reasonably independent with her daily activities before the accident. She walked with one cane inside her residence and with a walker outside her residence. After the accident, she was not able to walk with a cane and she had to use a walker. She found that putting the weight of her hands on the walker increased the pain in her formerly fractured right wrist.

Mrs. Putter saw Dr. Morana of Target for assessment on May 19, 1998. Dr. Morana prescribed an active exercise program, including range of motion exercises, stretching and strengthening of the left ankle, foot and left calf muscles. Mrs. Putter attended Target three times a week to do exercises for her legs and back and to ride the stationary bicycle. She continued to do hydrotherapy at Baycrest Hospital one day a week. After two months of treatment, on July 24, 1998, Dr. Teitel of Target assessed Mrs. Putter. He observed that she was making progress with respect to her left ankle injury and should continue to attend Target three times a week with a reassement in one month.

The Legal Test

Under the heading "Rehabilitation Benefit", subsection 15(2) of the Schedule specifies:

The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market.

Although Allstate questioned the term "work conditioning" which was used on the Target invoices for the treatment provided to Mrs. Putter, I am satisfied that "work conditioning," in this case, does not refer to treatment designed to help Mrs. Putter enter the labour market but instead, refers to treatment designed to help Mrs. Putter reintegrate into society in a similar manner to her life prior to the accident.

Subsection 15(6) of the Schedule stipulates that the insurer is not liable to pay a rehabilitation benefit for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Professional Fees Guidelines published in The Ontario Gazette.

Subsection 46(2) of the Schedule specifies:

If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.

The issues in this hearing were the reasonableness and necessity of the type and frequency of rehabilitation treatment and the appropriateness of the hourly fees charged by Target for its rehabilitation services.

Frequency of Treatment

After the removal of her cast, Mrs. Putter attended two clinics, Target and Sheppard/Leslie Chiropractic Clinic. She attended the clinics three times a week for active and passive therapy.

Mr. William Gold, the claims representative from Allstate handling the Putter file, testified that Allstate objected to the Target treatment plan when it was received on June 1, 1998. Allstate did not accept the treatment plan because of the cost and number of individual sessions.

Subsequently, a multi-disciplinary medical/rehabilitation DAC assessment was arranged for Mrs. Putter on August 11, 12, and 13, 1998.

The DAC report which was completed on August 31, 1998 noted that Mrs. Putter had mild stiffness and weakness in the left foot and ankle while walking, as well as significant soft-tissue swelling in both lower extremities, worse on the left. The DAC report concluded that because of the slow rate of progress that Mrs. Putter was making, due in part to her age and prior medical conditions, it would be reasonable to provide her with an additional six weeks of supervised treatment. The report concluded:

The emphasis of treatment should be on general strengthening and conditioning exercises in order to help the claimant improve her strength, as well as progressive weight-bearing from the walker to the single cane, so that the claimant can achieve the same weight-bearing ability that she had prior to the motor vehicle accident. The continuing participation in the hydrotherapy program at Baycrest is also a useful adjunct to assist in her recovery.²

According to the DAC report and the testimony of Ms. Georgina Lebi, a physiotherapist, who was one of the authors, the treatment provided by Target from May 19, 1998 to the date of the DAC report was appropriate. The DAC report recommended that Mrs. Putter should be provided with a further six weeks of treatment. Six weeks of treatment from mid-September, the estimated date of receipt of the DAC report, would end as of November.

After November 10, 1998, Mrs. Putter attended twelve further sessions at Target, which calculated at three sessions per week, would equal approximately four weeks of treatment beyond the amount recommended by the medical/rehabilitation DAC report.

Reasonableness of Hourly Fees

Mr. Brian Leila has been the manager of Target since February 1995. He described the facility as smaller in order to better monitor patients with higher end equipment specifically designed for rehabilitation. He testified about the Applicant's outstanding treatment account at Target of $12,593.68, which was composed of four components: an initial medical assessment of $450, work conditioning of $150 per session for sixty-eight treatments, and four treatment plans, which included an element of medical reporting, plus interest.

Mr. Leila testified that Mrs. Putter's first visit at Target was billed at $450 because a full medical history was taken together with an assessment by a medical doctor. A treatment plan was prepared with the assistance of Dr. Teitel, and included in the initial assessment was the cost of ongoing monitoring by a physician. Further treatment plans and re-assessments were conducted on July 24, 1998, September 23, 1998, November 20, 1998 and February 5, 1999. Although the date of Mrs. Putter's final treatment was December 29, 1998, Target's practice is to do an assessment at the conclusion of treatment. Therefore, a final report on Mrs. Putter was done on February 5, 1999, five weeks after her last treatment session.

According to Mr. Leila, the treatment fee includes the cost of therapeutic exercise for the patient, reports, the meetings between the therapist and the medical doctors and the time spent reviewing reports from the DAC or other medical specialists. As well, any other testing is not billed separately, including progress reports, which are included in the treatment fee.

Although Allstate claimed that assessment charges should have been billed to OHIP, Allstate did not present any contrary evidence to that of Mr. Leila who testified that he had been informed that OHIP distinguishes between assessments and treatments and will not reimburse for assessments. Allstate relied on the testimony of Dr. Hamilton Hall, an orthopaedic surgeon, who was a witness in the case of Amoa-Williams and Allstate Insurance Company of Canada³, that "... it was in fact his practice to bill OHIP, and not the Insurer, when he examined patients in a treating capacity where he worked." I accept Mr. Leila's testimony that OHIP could not be billed for the assessments in question which could be distinguished from Dr. Hamilton Hall's reference to billing OHIP for his work at CBI Health in a "treating" capacity.

Mr. Gold testified that he estimated that both services provided by Sheppard/Leslie Chiropractic and Target might equal $100 per session. As the Schedule required chiropractic services to be billed at $49.65 per visit, the sum remaining for rehabilitation treatment was $50.35 per hour. I do not accept this method of calculating the hourly cost of rehabilitation treatment. It is arbitrary and not based on any of the cost - per-treatment guidelines.

According to Mr. Leila, one of the ways in which Target is unique in its provision of rehabilitation services is that a medical doctor, either Dr. Morana or Dr. Teitel, is on site for a portion of each day. However, Mrs. Putter's active therapy program was supervised by Ms. Vera Marinkovic. Mr. Leila testified that in 1998 there were an average of 15-20 patients a day, including those patients seeing doctors. According to him, from one to two patients per hour at the clinic was the high average. This evidence was reinforced by other witnesses, such as Ms. Tona Abrams, Mrs. Putter's daughter, and Ms. Vera Marinkovic, one of the service providers at Target.

Ms. Vera Marinkovic testified that she was fully qualified as a medical doctor in Yugoslavia. However, she was required to pass qualifying exams in order to be licensed as a doctor in Canada. She consulted with Drs. Morana and Teitel about Mrs. Putter and she supervised her while at the clinic. When Ms. Marinkovic was not present, a kinesiologist would replace her.

Ms. Marinkovic described her supervision of Mrs. Putter. She would show Mrs. Putter how to do the necessary exercises and correct her if she was doing any of the exercises improperly. First, Mrs. Putter did stretching, then she walked with her walker and her session would conclude with some time on a stationary bicycle. Ms. Marinkovic testified that Mrs. Putter first arrived at Target in a wheelchair, then moved to a walker and was later walking without a walker for short periods of time. According to Ms. Marinkovic, Mrs. Putter's condition continued to improve until the beginning of December 1998.

Ms. Tona Abrams, Mrs. Putter's daughter, testified about the homecare that her mother received to assist with laundry and bathing. Ms. Abrams estimated that she attended the Target clinic with her mother on about one-half of the visits. She claimed, as did Ms. Marinkovic, that each visit took approximately one hour. Ms. Abrams explained that she would be concerned about her mother doing rehabilitation at home as she needed supervision and assistance.

Ms. Georgina Lebi, a physiotherapist, was called as a witness by Allstate. Ms. Lebi met Mrs. Putter with her daughter, Ms. Abrams, on August 11, 1998 at the multi-disciplinary medical/rehabilitation DAC assessment. Ms. Lebi's conclusion after the assessment was that Mrs. Putter required six more weeks of supervised treatment at a frequency of twice a week. In her opinion, the treatment should emphasize more general strengthening and conditioning with progressive weight bearing so that Mrs. Putter could move from the walker to a single cane. However, Ms. Lebi conceded that Mrs. Putter had a heart condition, more than normal fragility because of her age and medical history and might take longer to recover as a result. She explained that the number of further treatments that Mrs. Putter required were a projection and the number could vary depending on her medical or health needs.

Ms. Lebi testified that Dr. J. Mayer, the leader of the DAC team, is a neurosurgeon and not an orthopaedic or rehabilitation specialist. The consensus opinion of the team was that Mrs. Putter required a total of 18 supervised treatments, that is, six weeks at three times a week.⁴

Conclusion

The core issues are whether the treatment at Target was reasonable and necessary as to type, frequency and quantum of billing. Mrs. Putter's representative submitted that Mrs. Putter was entitled to seek out medical practitioners of her choosing for her care and it was their right to decide on a course of care without a great deal of hindsight after the fact.

All the evidence, both documentary and testamentary, relating to the first segment of Mrs. Putter's treatment from May 20, 1998 to the end of August agreed about the type and frequency of treatments which were reasonable and necessary. I find that the Insurer's suggestion that Mrs. Putter's treatment need not be supervised and could take place at home is not reasonable. The Insurer was not mindful that it was dealing with an eighty-year-old woman with a heart condition, a problem hip, and past fractures.

The recommendation of the DAC assessors was for 18 further treatments for Mrs. Putter. I find that Ms. Lebi's recommendation that the treatment emphasize strengthening, conditioning, and progressive weight bearing was consistent with the treatment offered at Target. Mrs. Putter attended 12 treatment sessions at Target between November 10 and December 29. Although Ms. Lebi based on a review of Target's progress reports, referred to Mrs. Putter "plateauing" as of December 8, 1999, that was a date beyond the six-week period recommended by the DAC assessors.

I find, based on the evidence, that Mrs. Putter spent about an hour per session at Target. The one-hour session consisted of warm up, rest, weight-bearing exercises with rest periods, time to get on and off the stationary bicycle, and leg exercises. Based on the evidence of Ms. Abrams and Ms. Marinkovic, it appears that Mrs. Putter did benefit from her sessions at Target. I do not find it unreasonable that there were some further treatments past the six-week period recommended by the DAC assessors and indeed, four treatments after December 8, 1999, when the records appear to indicate that Mrs. Putter may have "plateaued" in her progress. I was persuaded by the evidence that further treatments were provided in the hope that more improvements in Mrs. Putter's condition would result.

Although there have been previous arbitration cases which have dealt with similar issues, most notably Amoa-Williams and Allstate⁵, which offered useful guidance for the purposes of my decision-making, it must be remembered that each case must be decided on the basis of its particular facts and circumstances. For example, both Amoa-Williams and Irvani-Fard and Zurich Insurance Company⁶ dealt with applicants who suffered from soft-tissue injuries, which were not the facts in this case. As well, the question of supervision was much more important in this case where the applicant was a frail eighty-year-old woman who first arrived at Target in a wheelchair. I find that it is unrealistic to expect that someone in Mrs. Putter's circumstances could be expected to exercise at home and obtain equivalent benefits to attending at a rehabilitation centre with trained staff and appropriate equipment.

Although Mr. Gold, Allstate's representative, questioned whether any benefits should have been paid in light of the disclosure that Ms. Marinkovic, the service provider, is not a certified kinesiologist or physiotherapist, I accept Ms. Marinkovic's evidence that her qualifications exceeded those of a kinesiologist because of her prior training and experience as a medical doctor in Yugoslavia. Indeed, Ms. Marinkovic testified that she has been qualified to practice medicine in most provinces since 1998. However, Ms. Marinkovic testified that when she was absent for Mrs. Putter's treatment, she was replaced by a kinesiologist. I find that the supervision and guidance offered by Ms. Marinkovic were suitable for Mrs. Putter based on the conclusions of the DAC report and Ms. Abrams' observations of her mother's progress.

At present, only one Professional Fees Guideline has been published in The Ontario Gazette by the Financial Services Commission. This is the guideline for physiotherapists.⁷ I agree with Arbitrators Sapin and Palmer, who discussed the guideline in similar circumstances; that is, as a document issued following joint recommendations of the Ontario Physiotherapy Association and a committee of insurers, it is worth considering when deciding what constitutes reasonable fees.⁸

The Professional Fees Guideline - Physiotherapists, provides in part:

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) ....

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.

Arbitrator Leitch has held that another factor to consider when determining professional fees is the value reflected by comparing fees to the market price for similar services.⁹ When comparing similar services, there was a good deal of disagreement at the hearing about what constitutes one-on-one care for rehabilitation treatment sessions.

The testimony of Ms. Marinkovic was that Mrs. Putter was provided with one-on-one care even though there may have been one or more other patients being supervised in the gym at the same time. I accept Ms. Marinkovic's testimony that in her estimation, one-on-one care in this instance meant that she was according the equivalent amount of attention and supervision to Mrs. Putter as if she were the only patient in the gym. In other words, if while Mrs. Putter was repeating some of her leg exercises, Ms. Marinkovic was able to supervise another patient, this did not detract from the supervision and guidance necessary to provide for one-on-one care for Mrs. Putter.

Documentary evidence from a rehabilitation facility, CBI Health, stated that the fee charged by CBI for one-on-one clinical care by a kinesiologist is based on an hourly fee of $80 per hour. In Amoa-Williams, Dr. Hamilton Hall testified that CBI is the largest employer of kinesiologists in Ontario.¹⁰ However, according to the document submitted, CBI charges different rates for specialty services provided by its kinesiologists. Also, the document indicated that the hourly fee of $80 per hour is not divided by the number of patients actually seen at one time.¹¹

Based on the evidence, I have found that each of Mrs. Putter's treatment sessions was one hour long. As Ms. Marinkovic was replaced by a kinesiologist in her absence and the testimony of Ms. Lebi distinguished between the services provided by kinesiologists and physiotherapists, I find that Target is entitled to bill at the rate of $80 per hour, which appears to be the "market rate" for kinesiologists, for each of Mrs. Putter's 68 treatment sessions for a total of $5,440.

I accept Mr. Gold's evidence that he relied on the Ontario Medical Association guidelines to arrive at a fee of $76.47 for one treatment plan and $210 for an initial assessment. It appears from the documentary evidence; that is, Target's account and Allstate's computer printout of payments, that Allstate paid to Target a total of $2,300.47 on September 28, 1998.¹² I find that assessements for treatment plan purposes on July 24, September 23, November 20, and February 5, 1998 were reasonable and necessary in the particular circumstances of this case, considering the frailty and complicated past medical history of Mrs. Putter. The total amount owed to Target for treatment plans is $305.88 together with $210 for the initial assessment. Therefore, Allstate shall pay to the Applicant $5,955.88, from which $2,300.47, which was previously paid, shall be subtracted, for a total payment of $3,655.41 plus interest, calculated according to section 46 of the Schedule.

EXPENSES:

Allstate made some submissions relating to expenses and asked that any expenses should be borne by Target and not by the Applicant. However, I did not hear complete submissions from both parties and no authority was cited for the proposition that Target should bear the expenses, in the event that any expenses were awarded to Allstate. I would encourage the parties to resolve the question of expenses. However, if the parties are unsuccessful in reaching an agreement about expenses, they may make an appointment with the case administrator for an expense hearing before me.

November 7, 2000

Judith Killoran Arbitrator

Date