Neutral Citation: 2000 ONFSCDRS 224

FSCO A99-001072

BETWEEN:

KOLSOM KHALEDI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Shari Novick

Heard:

October 2 and 3, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Lorne Climans (October 2) and Dr. Saeid Sarrafian (October 3) for Mrs. Khaledi

Marianne Davies for Allstate Insurance Company of Canada (October 3)

The Applicant, Kolsom Khaledi, was injured in a motor vehicle accident on February 8, 1999. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate declined to pay caregiver benefits as well as various other benefits claimed by Mrs. Khaledi. The parties were unable to resolve their disputes through mediation, and Mrs. Khaledi applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the commencement of the hearing I was advised that the parties had resolved all of the issues in dispute just before the hearing, except for the outstanding account for treatment that Mrs. Khaledi had received at Recovery Rehab. Mr. Climans, counsel for the Applicant, advised that he intended to withdraw as Mrs. Khaledi's representative and that Dr. Saeid Sarrafian, the director of Recovery Rehab, would pursue the remaining claim on her behalf.

No one appeared on the Insurer's behalf on the first day of hearing. The Commission's file indicates that Mr. Todd McCarthy had been retained by Allstate, and had acted as their representative throughout the proceeding. I was advised by Mr. Climans at the commencement of the hearing that Mr. McCarthy was in Peterborough, conducting a trial. While the parties had engaged in settlement discussions during the prior week which ultimately led to a resolution of the issues outlined above, it was evident by Friday afternoon that a final settlement had not been reached and that counsel would be required to attend to address the remaining issue at the commencement of the hearing on Monday morning. Notwithstanding this fact, and Mr. McCarthy's knowledge that the hearing had not been adjourned, he did not advise the Commission either in writing or by telephone prior to the hearing that he would not be in attendance. No one from his office or from Allstate appeared at the hearing to request that the matter be adjourned, or to provide a reason for Mr. McCarthy's non-attendance.

In light of the failure of anyone representing Allstate to appear on the morning in question, I ruled that the matter would be adjourned, and that the hearing on the remaining issue of Mrs. Khaledi's entitlement to payment for the treatment account would reconvene the following day.

Both Dr. Sarrafian and the Applicant returned on the second day of the hearing. Marianne Davies, another lawyer from Mr. McCarthy's office, appeared on the Insurer's behalf and requested that the matter be adjourned on the basis that Mr. McCarthy had been called to trial unexpectedly in Peterborough. I denied the adjournment request and the matter proceeded.

The issues in this hearing are:

Is Mrs. Khaledi entitled to payment of the outstanding account of Recovery Rehab for physiotherapy treatment she received?
Is Allstate liable to pay Mrs. Khaledi's expenses of the arbitration under section 282(11) of the Insurance Act?

Mrs. Khaledi also claimed interest on any amount found to be owing.

Mrs. Khaledi is entitled to payment for part of the outstanding account of Recovery Rehab, as set out below.
Mrs. Khaledi is entitled to her expenses of the arbitration.

Mrs. Khaledi's evidence was provided with the assistance of a Farsi interpreter, Mozhgan Nazemi of All Languages.

Background:

Mrs. Khaledi was a front seat passenger in a vehicle driven by her husband that hit another vehicle head-on, after the latter vehicle failed to stop at an intersection. Her head hit the windshield of the car, which shattered as a result of the impact. Her left knee struck the dashboard. Mrs. Khaledi was taken by ambulance to Toronto East General Hospital where x-rays of her cervical spine and her leg were taken. She was prescribed pain medication and subsequently released. She saw her family doctor the following day and complained of severe neck pain, headaches, dizziness, low back pain, pain in her left shoulder and a bruised left knee.

At the suggestion of her family doctor, Mrs. Khaledi attended the Recovery Rehab clinic for physiotherapy. Her first attendance was on February 16, 1999. The physiotherapist who conducted the initial assessment recommended a course of treatment consisting of active and passive modalities over the course of six to eight weeks, at an initial frequency of five times per week for the first four weeks and gradually tapering off after that. A treatment plan to this effect, dated February 26, 1999, was submitted to Allstate. Some massage therapy was also recommended, and a separate treatment plan was submitted on the same date for that. The estimated cost of the physiotherapy treatment was between $3,000 and $3,200, and the cost of the massage therapy was estimated at between $420 and $560.

On March 16, 1999, the claims representative from Allstate wrote to Recovery Rehab and advised that they were not prepared to pay the amounts set out in the treatment plans, as they had not yet received a completed Application for Benefits from Mrs. Khaledi, and because the "treatment duration and cost appears to be excessive." The letter went on to advise that the Insurer required Mrs. Khaledi to be assessed at a medical/rehabilitation DAC in accordance with section 43 of the Schedule.

In the interim, Mrs. Khaledi attended the clinic regularly for physiotherapy and massage treatments. A second treatment plan recommending further physiotherapy and massage was forwarded to Allstate on April 4, 1999. It suggested four to six weeks of active and passive physiotherapy, at a frequency of three sessions per week. The estimated cost was between $1,600 and $1,950.

Mrs. Khaledi attended the AIM Clinic at Scarborough General Hospital in late April 1999 for a medical/rehabilitation DAC. She was assessed by a physiotherapist, an orthopaedic surgeon, a chiropractor, and an occupational therapist for the purpose of determining whether the treatment set out in the treatment plan was reasonable or necessary. The assessors concluded that the treatment proposed in the February 26, 1999 treatment plan submitted by Recovery Rehab was not "reasonable or necessary," and that she should discontinue wearing the cervical collar recommended by the physiotherapist there. They also recommended that a psychiatric assessment be undertaken as part of the DAC. That assessment took place in early May 1999. The psychiatric diagnosis arrived at was that Mrs. Khaledi was suffering from both a severe major depressive disorder and severe post-traumatic stress disorder. The psychiatrist recommended anti-depressant medication as well as other medication for the treatment of her symptoms.

In all, Mrs. Khaledi attended for treatment at Recovery Rehab on 70 occasions between February 16 and June 23, 1999. The amount charged per session was $100. Allstate paid for the 15 sessions referred to in subsection 38(16) of the Schedule, but at a reduced rate of $60 per hour. The Insurer made a further payment of $1,929 to Recovery Rehab, representing payment for a further 32 sessions at $60 per hour.

Was the treatment provided reasonable?

Mrs. Khaledi testified that she suffered from neck and back pain, headaches, nausea and knee pain in the aftermath of the accident. She testified that the treatment provided by Recovery Rehab was helpful to her, and that she felt "much better than before" by the end of June when she stopped attending for treatment. She explained that she felt less pain, and was able to be more active at home after each session. She stated that her sessions lasted one hour, and that she received one-on-one attention from a few different physiotherapists while she was there.

Mrs. Khaledi estimated that her condition improved by 90 percent as a result of the treatment she received.

Dr. Sarrafian also testified at the hearing. He is a registered physiotherapist and chiropractor, and owns the Recovery Rehab clinic as well as six other treatment facilities in Ontario. Dr. Sarrafian participated in Ms. Khaledi's treatment and supervised the other therapists who treated her. He testified that his clinic charges $100 per session for one-on-one physiotherapy treatment, explaining that this is the amount recommended by the Ontario Physiotherapy Association and is within the guidelines published by the Financial Services Commission of Ontario.²

Dr. Sarrafian explained that the treatment program followed by Mrs. Khaledi consisted of the application of heat and the use of ultrasound, as well as mobilization of joints and active exercise. He stated that as she progressed through the program, less time was spent on applying heat and ultrasound and more time spent on active exercises. The clinical notes and records filed in evidence include a record of the exercises she performed, and bear this out.

The notes also indicate that Dr. Sarrafian re-evaluated Mrs. Khaledi's progress on March 23, 1999, five weeks after she began physiotherapy treatment. He noted that her pain had decreased and her range of motion had increased. Dr. Sarrafian testified that on that basis he prepared and submitted the second treatment plan, dated April 4, 1999. This plan proposed continued treatment for 4 to 6 weeks, at a frequency of three visits per week with a re-evaluation of her condition in 4 weeks. However, despite the proposed reduction in the frequency of her visits to three times per week, the clinical records indicate that Mrs. Khaledi continued to attend for treatment five times per week for the next three weeks.

When asked why Dr. Sarrafian continued to treat Mrs. Khaledi in the face of Allstate's refusal to fund two treatment plans and its decision to arrange a DAC assessment to determine whether or not the treatment was reasonable, he responded that he believed that she continued to require treatment.

Dr. Sarrafian was cross-examined about the frequency of Mrs. Khaledi's visits, having regard to the recommendations regarding treatment outlined in the physiotherapy utilization guidelines. The guidelines set out the goals and recommended frequency of treatment during the acute phase (up to six weeks post-accident) and sub-acute phase (six to twelve weeks post-accident) for patients suffering from WAD I, II and III type injuries.³ The physiotherapist who initially assessed Mrs. Khaledi at Recovery Rehab diagnosed her as suffering from WAD grade III injuries, due to numbness and tingling she reported in her left arm. Dr. Bushuk, the orthopaedic surgeon who assessed Mrs. Khaledi as part of the DAC process, opined that her injuries were more consistent with a mild WAD II condition. The guidelines recommend significantly more frequent treatment sessions for those suffering from WAD III injuries.

Dr. Sarrafian disagreed with both of the above diagnoses. He pointed out that while Mrs. Khaledi suffered from soft tissue injuries as a result of the accident, she had been involved in a head-on collision, as opposed to a rear-end or side-impact collision which typically causes the rapid acceleration-deceleration movement resulting in "whiplash." He stated that her soft tissue injuries were thus of a different nature, and that the guidelines referred to above did not apply. He also stated that while the recommended frequency of treatment set out in the guidelines is appropriate for patients who experience neck pain, Mrs. Khaledi’s treatment was more complicated as it also focussed on the symptoms associated with her lower back and knee injuries.

The guidelines incorporate recommendations made by the Ontario Physiotherapy Association ("OPA") and representatives of the insurance industry. Dr. Sarrafian claimed that as he is not a member of the OPA, he is not bound by the guidelines.

The Insurer did not call any witnesses. As stated above, the invoice from Recovery Rehab indicates that in addition to paying for the cost of preparing two treatment plans and an occupational therapy assessment and report, Allstate made one payment of $900 in late April 1999 for 15 physiotherapy sessions at the rate of $60 per hour, and a subsequent payment at the end of May for $1,920. This latter amount equates to 32 additional sessions at the same hourly rate of $60. No evidence was submitted to explain why this additional payment was made by Allstate, nor why it chose to use an hourly rate of $60.

The Insurer referred to certain comments made by the DAC assessors in their report in its submissions. The physiotherapist who assessed Mrs. Khaledi on April 27 noted that she only began doing exercises as part of her treatment at Recovery Rehab one week prior to attending the DAC assessment, and that she reported no improvement in her condition. The therapist noted that there was no muscle wasting in the upper torso area. Dr. Bushuk, the orthopaedic surgeon who assessed the Applicant on the same date, recorded Mrs. Khaledi as stating that her complaints of neck pain, headaches and left knee symptoms had only each improved 5 percent since the accident. Dr. Bushuk also stated that the notes provided from Recovery Rehab indicate that Mrs. Khaledi had been doing active stretching and strengthening exercises since the end of March, three weeks earlier than the time noted by the physiotherapist. In fact, the clinical records filed indicate that Mrs. Khaledi performed regular exercises as part of her treatment throughout the month of March.

Dr. Bushuk also commented in various places in his report that Mrs. Khaledi exhibited significant pain behaviour, including significant symptom magnification and self-limiting behaviour.

I must weigh Mrs. Khaledi's testimony and Dr. Sarrafian's opinion that the treatment she received at Recovery Rehab was helpful and reasonable against the opinions of the DAC assessors that the treatment was not reasonable and that no further physiotherapy treatment was required. The DAC assessors did not provide an opinion on the reasonableness of the treatment proposed in the second treatment plan submitted on April 4, 1999, but based on their findings with respect to the first treatment plan, it is fair to presume that they would have reached a similar conclusion.

The physiotherapist involved in the DAC assessment was clearly under the impression that Mrs. Khaledi had only started doing exercises and participating in other active forms of treatment one week prior to the DAC assessment, and that her treatment had not led to any improvement in her condition. Her recommendation that Mrs. Khaledi should not receive any more passive treatment must be seen as having been made in that context. It is not clear to me what the physiotherapist based these impressions on, but they are false. It is clear from the records of the clinic that the exercise component of Mrs. Khaledi's program began to a limited extent in February and increased throughout the month of March. As well, Dr. Sarrafian's evaluation in late March 1999 noted a significant improvement in Mrs. Khaledi's range of motion and mobility and a decrease in her pain. I must consequently discount the opinion provided by the physiotherapist, given the faulty factual premise that it is based on.

I note several other inconsistencies between Mrs. Khaledi's evidence, that of Dr. Sarrafian and what is indicated in the DAC report. I am left to speculate about whether these arise from difficulties associated with the translation of Mrs. Khaledi's responses to the assessors, her psychological symptoms or some other factor. It is clear that her psychological symptoms were significant and played a role in the DAC assessment. As stated above, all of the assessors recommended that a psychiatric assessment be carried out as part of the DAC. Dr. Bushuk, the orthopaedic surgeon, suggested this most forcefully. He raised the possibility of her having developed a "major reactive depressive somatoform pain type disorder" as a result of the accident and strongly recommended that a psychiatric evaluation be carried out. He stated that in the absence of a psychiatric diagnosis to explain Mrs. Khaledi's "bizarre presentation," he would be concerned about "a volitional component to her symptom complex for secondary gain reasons."

In fact, after conducting an assessment, the psychiatrist found that Mrs. Khaledi was suffering from a Major Depressive Disorder, rated as severe, and a Post-traumatic Stress Disorder, which was also rated as severe, both of which were precipitated by the accident. He reported that she noted a marked correlation between feelings of anxiety and an increase in her pain. He also noted that Mrs. Khaledi experienced a severe classical hyperventilation syndrome, with accompanying neck spasm during their interview. This lasted for 20 minutes and could only be relieved by her breathing into a plastic bag. The psychiatrist concluded that her symptoms were too severe to be treated by psychotherapy alone, and recommended various anti-depressant medications, and a possible follow-up with some trauma-related therapy.

I conclude from the above that Mrs. Khaledi's psychological state contributed significantly to the symptoms she complained of at the time of the DAC assessment. I find that in light of the psychiatrist's findings and recommendations that she be treated with anti-depressant medication and possibly psychotherapy, it was not reasonable for her physiotherapy treatment to continue after the DAC report was received. I am aware that physiotherapy and medication for psychiatric disorders address different symptoms, and are not necessarily contraindicated or approached in an "either/or" manner. I find in this case, however, that given the correlation between Mrs. Khaledi's level of anxiety and her pain, it would have been reasonable to halt the physiotherapy treatment being provided and have her condition assessed after the recommended course of medication and possibly psychotherapy had been completed.

While the DAC report is dated May 13, 1999, I note that it is date-stamped as having been received by the Insurer on May 18, 1999. Presumably, Mrs. Khaledi and her family doctor, Dr. Chin, would have also received a copy by that date.⁴ This time frame is also consistent with the "five-day mailing rule" set out in section 7.3(b) of the Dispute Resolution Practice Code — Third Edition. I note that Mrs. Khaledi attended for physiotherapy treatment on 15 occasions after this date. I find that the treatment provided by Recovery Rehab after May 18, 1999 was not reasonable.

The Insurer did not raise the issue of Dr. Sarrafian being in a position of conflict, given his testimony regarding the reasonableness of the treatment provided to Mrs. Khaledi and the financial benefit that would accrue to him, as owner of the clinic, if that evidence were accepted. I have considered this matter however, in weighing his evidence. In the absence of any contradictory evidence being provided by the Insurer, and in light of Mrs. Khaledi’s evidence that the treatment both reduced her pain and increased her functioning, I accept his evidence in this regard. A review of the clinical records of the clinic also indicate that her condition was improving, albeit fairly slowly. Accordingly, I find that aside from six sessions that she attended in April (discussed below), the treatment provided by Recovery Rehab up to May 18, 1999 was reasonable.

I accept Dr. Sarrafian’s statement that due to the nature of the impact experienced by Mrs. Khaledi, her injuries cannot be classified as "whiplash" or a WAD-type disorder. I note, however, that the introduction to the guidelines sets out that they are intended to assist in understanding what services should be provided to a patient "who has sustained a soft tissue disorder of the spine in an auto accident." The introduction goes on to state that the guidelines are not to be used to dictate treatment in any particular case. By definition, guidelines provide general rules or guidance. The guidelines for WAD II injuries suggest that up to 18 visits are appropriate within the first six weeks of the injury, and up to 30 visits in the period between 6 and 12 weeks post-injury. Mrs. Khaledi attended Recovery Rehab on 24 occasions within the first six weeks of the accident. Given her neck, low back and knee injuries, I find that this frequency of visits was reasonable. She then attended on 25 occasions during the following six weeks, which I also find to be reasonable, again with the exception of six sessions in April as noted below.

Dr. Sarrafian submitted a second treatment plan on April 4, 1999. He testified that the proposal for Mrs. Khaledi to reduce the frequency of her attendances for treatment to three times per week resulted from the evaluation he had conducted on Mrs. Khaledi on March 23, in which he noted some improvement in her condition. I note, however, that for the three weeks following April 4, she continued to attend for treatment five times per week. Dr. Sarrafian did not provide any explanation for this in his testimony. Accordingly, I find that these six extra sessions were not reasonable and that Allstate need not pay for these.

Finally, I find that the $100 fee per session charged by the clinic was reasonable. Allstate provided no evidence in support of its decision to fund the treatment it did at the rate of $60 per hour. The fee charged by Recovery Rehab falls within the range of recommended rates of between $95 and $120 per hour for one-on-one treatment specified in the fee guidelines. In summary, I find that the treatment provided by Recovery Rehab to Mrs. Khaledi from February 16 to May 18, 1999 was reasonable, save for six sessions in April following the submission of the second treatment plan. I also find that the fee charged of $100 per session is reasonable. I leave it to the parties to calculate the exact amount that remains to be paid by Allstate. The payments made on account by the Insurer should be deducted from the overall amount found to be owing.

Interest would also accrue on any amount owing, in accordance with the provisions of the Schedule.

EXPENSES:

In light of the Applicant's relative success at the hearing and the Insurer's non-attendance on the first day of the hearing, I find that Mrs. Khaledi is entitled to her reasonable expenses of the hearing. I leave the determination of the exact amount of expenses to be paid to the parties. If they are unable to agree on an amount, the hearing can be reconvened for that purpose.

December 13, 2000

Shari L. Novick Arbitrator

Date