Neutral Citation: 2000 ONFSCDRS 96

FSCO A97–001864

BETWEEN:

SETH AMOA-WILLIAMS

and

AMA AMOA-WILLIAMS

Applicants

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Susan Sapin

Heard:

December 12, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Theodore P. Charney for Mr. and Mrs. Amoa-Williams

Ian D. Kirby for Allstate Insurance Company of Canada

The Applicants, Seth and Ama Amoa-Williams, were injured in a motor vehicle accident on January 18, 1997. They applied for and received statutory accident benefits from Allstate Insurance Company of Canada (Allstate), payable under the Schedule.¹ Allstate refused to pay the full amounts billed by the Sheppard-Leslie Chiropractic Clinic and Target Rehabilitation Centre for services provided to the Applicants. The dispute was not resolved at mediation, and the Applicants 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:

Are Mr. and Mrs. Amoa-Williams entitled to payment of chiropractic expenses of $1,457.18 and $1,967.79, respectively, pursuant to paragraph 14(2)(b) of the Schedule?
Are Mr. and Mrs. Amoa-Williams entitled to payment of rehabilitation expenses of $4,660 and $5,110, respectively, pursuant to subsection 15(1) of the Schedule?
Are Mr. and Mrs. Amoa-Williams entitled to a Special Award?
Is either party liable to pay the arbitration expenses of the other?
Mr. and Mrs. Amoa-Williams claim interest on overdue payments, in accordance with section 46 of the Schedule.

Mr. Amoa-Williams is entitled to chiropractic expenses of $453.80 Mrs. Amoa-Williams is entitled to chiropractic expenses of $1,323.52.
Mr. Amoa-Williams is entitled to rehabilitation expenses of $215. Mrs. Amoa-Williams is entitled to rehabilitation expenses of $1,295.
Mr. and Mrs. Amoa-Williams are not entitled to a Special Award.
Mr. and Mrs. Amoa-Williams are entitled to interest on overdue payments, in accordance with section 46 of the Schedule.

A) Introduction

This case is about the reasonableness and necessity of the nature, frequency and cost of chiropractic and rehabilitation treatments provided to the Applicants by the Sheppard-Leslie Chiropractic Clinic (the Clinic) and Target Rehabilitation Centre (Target).

It is one of several cases involving Allstate and these two facilities, which are owned by Dr. Esmail Shahidi, a chiropractor. In her preliminary issue decision² dismissing the Insurer's request that the cases be heard together, Arbitrator Baltman suggested that the arbitrator hearing the Amoa-Williams case provide guidance on common issues to enable the participants to either resolve them or reconsider their positions in subsequent cases. My decision, therefore, contains general comments in addition to my findings where possible.

B) Factual background

Mr. Amoa-Williams injured his neck, low back and knee in a relatively minor collision with another vehicle as he was about to drive his wife home from work on Saturday, January 18, 1997. Mrs. Amoa-Williams, the front-seat passenger, injured her neck, upper and mid back. I find no dispute that the couple's injuries were both classified as straightforward, moderate soft tissue or "Whiplash Associated Disorder II" (WAD II) injuries.³

At the time of the accident, Mrs. Amoa-Williams was a 39-year-old recently graduated Registered Nurse (RN) and the mother of three children aged 16, 7 and 6. She worked about 70 hours every two weeks by taking available casual and call-in shifts as either an RN, a Registered Practical Nurse (RPN), or Health Care Aide (HCA) caring for the elderly in two nursing homes.

This was physically demanding work. Some of her patients were ill, frail or disabled. Two or three times a day, as an RN or RPN, Mrs. Amoa-Williams dispensed medications one at a time from a large, heavy cart that she pushed along several floors. She would roll and lift patients to dress ulcers and sores and would trim fingernails and toenails. This work involved a great deal of walking and bending, and some lifting. Even more demanding was the HCA work every second weekend, when Mrs. Amoa-Williams transferred patients, without assistance, from bed to wheelchair to dining room or toilet throughout her shift. She bathed them and changed diapers. Mrs. Amoa-Williams testified that she had to give up the HCA shifts as a result of the accident, because of the heavier bending and lifting demands. She has since found full-time RN work.

Mr. Amoa-Williams, 44 at the time of the accident, had recently completed training as a videographer and was trying to set up his own video production company. However, as he had no camera, he was not having much success. He characterized himself as an artist. He stated that he looked after the two youngest children, taking them to and from school, bathing them and fixing light meals such as sandwiches.

He completed an "Activities of Normal Life" (ANL)⁴ form for the Insurer indicating that he performed all of the household chores prior to the accident, but testified that he and his wife shared them. His testimony on that point was vague and unconvincing. Mrs. Amoa-Williams testified that she did most of the cooking and housework at home prior to the accident, and that after the accident she required the assistance of her eldest son. This information is consistent with her completed ANL form, and I find that she, and not her husband, performed the bulk of the household chores prior to the accident.

Mrs. Amoa-Williams could not afford to miss work following the accident. She took some Tylenol and returned to work the following Monday despite pain and stiffness in her neck and back.

The Amoa-Williams did not visit their family doctor but went instead to the Sheppard-Leslie Chiropractic Clinic on Mrs. Amoa-Williams' first day off, Thursday, January 23, five days after the accident. They had both received 3-4 months of treatment there from Dr. Esmail Shahidi, a chiropractor who owned and operated the clinic, for similar injuries due to a car accident in 1994. They had both recovered completely. Pleased with that treatment, they decided to return.

As Dr. Shahidi had by then shifted his activities from chiropractic care to administrative duties, the Amoa-Williams were assessed and treated by Dr. Roshan Ahmad, a first year chiropractic graduate employed by Dr. Shahidi. Dr. Ahmad completed Disability Certificates and Treatment Plans for both patients, as required by the Schedule, and submitted them to Allstate. She recommended 6-8 weeks of chiropractic treatments for Mr. Amoa-Williams for his neck, low back and knee injuries, five times a week for the first three weeks and three times a week thereafter, at a cost of $2,000. She recommended an undetermined number of weeks of treatments for Mrs. Amoa-Williams for lumbar and cervical pain, at the same cost. She advised Mrs. Amoa-Williams to refrain from heavy lifting, twisting or bending and to give up her weekend shifts as a Health Care Aide.

Dr. Ahmad referred both patients to Target Rehabilitation Centre, located downstairs in the same building, for active rehabilitation, and to an orthopaedic surgeon. Target is also owned by Dr. Shahidi, which fact the Insurer argues raises a conflict of interest. This will be dealt with below. At the time, Target had an orthopaedic surgeon on its staff, Dr. Gianni Maistrelli. Dr. Maistrelli examined the Applicants and completed Treatment Plans for the couple dated January 27, 1997. He listed Mrs. Amoa-Williams' injuries as neck, upper and lower back strain, and her husband's as neck, upper and lower back strain and knee contusion. He classified their injuries as "moderately severe" and recommended for both of them active rehabilitation exercises five times per week for two months, at a cost of $5,500 each. These costs reflected Target's $150 per session per person fee. The couple began their exercise sessions at Target the same day.

Allstate received the Treatment Plans February 13, 1997. On February 26, it wrote to both Dr. Ahmad and Dr. Maistrelli indicating that the treatments were excessive, that it would not pay for treatments beyond the minimum required by the Schedule,⁵ and that it required both Applicants to undergo medical/rehabilitation assessments at a Designated Assessment Centre (DAC).

Mr. Amoa-Williams' solicitor wrote to Allstate on March 24, 1997, advising that his client was almost fully recovered from his injuries, had completed his treatment, and would not be attending the scheduled DAC assessment. At the hearing, Mr. Amoa-Williams confirmed that he was "all better" by that time.

Mrs. Amoa-Williams attended the April 7, 1997 assessment. On April 22, 1997 the DAC reported that she rated herself as 50 percent better but had persistent pain and stiffness between her shoulder blades and in her neck which restricted her from doing her full duties at work. However, it concluded that she did not require either ongoing chiropractic care or a supervised exercise program, but rather a structured work hardening program for her back by an occupational therapist, twice a week for four weeks, a worksite assessment, and a self-directed exercise program. The DAC chiropractor added that "there may be a functional impairment in terms of lifting mechanics and confidence which may be related to her technique and style."

Mrs. Amoa-Williams continued to attend the Clinic and Target until May 15, 1997.

C) Were the chiropractic treatments and rehabilitation services reasonable and necessary?

1) General principles

The Schedule requires the Insurer to pay for, among other things, all reasonable and necessary chiropractic and physiotherapy services incurred as a result of the accident.⁶ It also describes treatment goals: the Insurer must pay for reasonable and necessary rehabilitation measures "... undertaken by an insured person to reduce or eliminate the effects of any disability resulting from [an impairment caused by the accident] or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market."⁷

At best, this means restoring insured persons to their pre-accident level of functioning. In Mrs. Amoa-Williams' case, the goal would be to return her to the job and domestic duties she performed prior to the accident, without physical restrictions, and ideally without pain or fatigue. For Mr. Amoa-Williams, it would be to return him to his job-seeking and caregiving duties.

Therefore, whether the treatments met these goals, and at what point they did so, are factors to consider in evaluating whether the expenses incurred by the Applicants were reasonable and necessary.

In addition to the above, one must apply the principles developed in the jurisprudence to determine whether chiropractic or physiotherapy treatments, or rehabilitation measures such as those provided at Target, are reasonable. I adopt the definition articulated by Arbitrator Rotter⁸and followed by many arbitrators since, that reasonable means: "within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair."

I would consider treatments with a frequency, duration and cost "not greatly more or less than might be expected," to be reasonable. As "what might be expected" is derived in part from what is actually available, this definition invites comparison of the treatment provided to the Applicants with others that might be available. It is therefore legitimate to consider evidence of similar treatment and the costs thereof, available "in the market." With respect to actual cost, professional fee guidelines, if any, are relevant. I will deal with the reasonableness of the treatment fees charged separately, below.

Other factors considered by arbitrators in determining what is reasonable include whether the treatment complied with accepted professional protocols, the subjective benefit to the insured person, or if a treatment helped to relieve pain. I agree with Arbitrator Alves⁹ that pain relief in and of itself can be a legitimate medical and rehabilitative goal, and therefore reasonable and necessary, even if it does not promote recovery. I would qualify this, however, by adding that pain relief measures should not encourage an inappropriate or indefinite dependency, or interfere with other aspects of rehabilitation.

In addition, arbitrators have consistently stated that the choice of the modality of treatment is that of the insured person and of his or her health practitioner. I accept the Applicants' argument that as long as a particular program has some medical validity it is reasonable, irrespective of the particular medical model or treatment philosophy employed, provided that it meets the criteria stated above.

These criteria are not exhaustive. Every case must turn on its own unique circumstances.

2) Chiropractic treatments received by Mr. Amoa-Williams

I accept Mr. Amoa-Williams' testimony that pain in his neck, low back and left knee as a result of the accident prevented him from prolonged sitting and standing, and that he could not bend down to bathe his two youngest children, shovel snow, vacuum or carry the laundry basket down to the basement. I do not see how his injuries would hinder his looking for work, as the evidence indicates he was able to attend for daily chiropractic therapy and exercise on a treadmill beginning five days after the accident. I find that his pre-accident level of physical activity was minimal, certainly compared to that of his wife.

Between January 27 and March 26, 1997, Mr. Amoa-Williams received chiropractic treatments as follows: daily for two and a half weeks, four times a week for two weeks, three times a week for four weeks, and two treatments in the last week, for a total of 35 treatments in 9 1/2 weeks.

He testified that these treatments consisted of 20 -30 minutes of ultrasound and massage for his neck, and "stretching on a table," which I understand to be some form of traction. He maintained that these treatments helped him to exercise at Target immediately following his chiropractic sessions. He stated that he was gradually able to resume his regular activities without pain and that he was "all better" by March 26, 1997, about two months post accident. He testified that neck and knee injuries from two previous motor vehicle accidents in 1994 and an unrelated pinched nerve in 1996 had healed completely by the time of the January 1997 accident.

A computer printout of Dr. Ahmad's detailed clinical notes indicates that Mr. Amoa-Williams was assessed at every visit, and that he received one or more of the following treatments each time: soft tissue therapy, ultrasound, electrotherapy, chiropractic mobilization and spinal manipulations, or "adjustments." Dr. Shahidi testified that the purpose of the first three or four treatments was to relax the muscles so that adjustments and exercises could then be performed.

3) Were the chiropractic treatments received by Mr. Amoa-Williams reasonable and necessary?

I find that Mr. Amoa-Williams has not established that 35 chiropractic treatments over 9 1/2 weeks were necessary or reasonable, for the following reasons.

No explanation was provided as to why Mr. Amoa-Williams would need more than one particular treatment modality in each session to relax his muscles. As will be discussed below, the number of treatments per session appears to exceed the chiropractic association's guidelines, which was not explained. Furthermore, no explanation was provided as to why Dr. Ahmad, as the treating professional, was not available to testify.

Dr. Ahmad re-evaluated Mr. Amoa-Williams on February 7, 20, March 7 and 24, 1997, recording her findings on a one-page, standard form report. These reassessments do not include any information that would assist in determining the patient's functional ability. Her June 16, 1999 report also states that she reviewed progress reports from Target. Those records consistently show Mr. Amoa-Williams' pain and range of motion as improved and his progress as "excellent." However, no functional reassessment was done and there is no record of what, or when, normal daily activities were resumed. This was true even up to the time of Dr. Ahmad's last reassessment on March 24, when Mr. Amoa-Williams maintained that he had recovered completely. This evidence, or rather the lack of it, together with Mr. Amoa-Williams' level of pre-accident activity and the minor nature of his injuries, suggests to me that 9 1/2 weeks of treatment was excessive.

Additional facts support such a conclusion. Firstly, Dr. Ahmad's original January 29, 1997 Treatment Plan proposed daily treatments for the first two and a half weeks, to be reduced to three times a week thereafter. Instead, however, the treatments decreased from daily to four times per week for the next two weeks. She did not implement her February 7 reassessment report recommendation to reduce treatments from 4 to 3 times per week until over two weeks later, on February 24. Had she followed her original Treatment Plan, Mr. Amoa-Williams would have received fewer treatments. No justification, medical or otherwise, was provided to explain why Dr. Ahmad chose not to follow the Treatment Plan she had submitted to Allstate, or her own subsequent recommendations.

Secondly, and more troubling, are Dr. Ahmad's notes for April 1, 1997, which indicate that she received a letter from Mr. Amoa-Williams' solicitor stating that his client was better and would not be attending the DAC, and that she then called Allstate and told Phyllis Roman, the adjuster, "that the patient was not discharged, lawyer is not doctor." The note indicates that Dr. Ahmad then called Mr. Amoa-Williams the same day, summing up her conversation with him as follows: "not coming in for treatment any more, feeling better, discharged." The note continues: "Left message for adjuster, tell her that spoke to Seth, not economically feasible for him to attend, but medically necessary."

This last entry contradicts her patient's own statement to her, as well as his testimony at this hearing, that he was recovered by March 24. It also contradicts Dr. Ahmad's statement in her report that "The patient was discharged on March 26, 1997, when he reached his pre-accident condition."

I find that these contradictions undermine Dr. Ahmad's stated professional opinion that Mr. Amoa-Williams' treatment was reasonable and necessary. In fact, in the absence of any evidence to the contrary, I find that her notes clearly show that Dr. Ahmad was prepared to continue to treat her patient beyond the nine weeks initially recommended in her own treatment plan, despite his assertions that he was better and without any documented assessment of his functional abilities, provided Allstate continued to pay.

Lastly, as Dr. Ahmad's reassessments contain no measure of her patient's activity level, or how or if pain interfered with activity, there was no way for Allstate, or anyone else, to tell whether the treatment was necessary or effective, or how long it might be expected to continue. Not only is this unreasonable, but it goes against key principles of the only two published treatment guidelines for whiplash associated disorders, the Commissioner's Guideline mentioned previously, and the Physiotherapy Utilization Guidelines, discussed below and in Footnote #16.

Three chiropractors in addition to Dr. Shahidi provided evidence on behalf of the Applicants.

Zoltan Szaras has been a chiropractor since 1974. He is a faculty member of the Canadian Chiropractic Memorial College and a fellow of the College of Chiropractic Rehabilitation Sciences.¹⁰ He practices in and is part owner of a multidisciplinary chiropractic rehabilitation centre, which he describes as similar to Target except that it is directed by two chiropractors and has no medical doctor on site.

Rocco Guerriero is President and Chief Executive Officer of North York Rehabilitation Centre Inc. Designated Assessment Centre and Canadian MedRehab and Disability Assessments Inc., and has his own private chiropractic practice. He provided a report and testified on behalf of the Applicant.

Carlan Stants provided a report. He is Clinic Director and owner of the Mississauga Physical Rehabilitation Centre, a Medical/Rehabilitation Assessment Centre, and is also a Designated Disability Assessor.

Despite the fact that none of these chiropractors examined either of the Applicants, I accept that all were qualified to offer opinions on the nature, frequency, duration and cost of treatment, based on file reviews. In fact, this is true of all the experts who testified, including the Insurer's.

Dr. Shahidi defended Dr. Ahmad's statement in her June 16, 1999 report that Mr. Amoa-Williams' treatment was "... in keeping with the guidelines generally accepted in the Rehabilitative and Insurance Industry, the Quebec Taskforce for Whiplash and the Canadian Memorial Chiropractic College and Canadian Chiropractic Association for these types of [WAD II] injuries." The Applicants' expert witnesses agreed. However, these guidelines were not provided to me, and so I could not evaluate these assertions.

However, I did review the Commissioner's Guideline On The Management Of Claims Involving Whiplash-Associated Disorders, which is based on the recommendations made by the Quebec Task Force and which forms part of the Commission's Dispute Resolution Practice Code. It states that it "is intended to help insurers, claimants, and providers understand what is a reasonable medical and rehabilitation expense for a person who has sustained a whiplash injury in an auto accident." Although it is only a guideline and therefore not determinative, and moreover appears to set out a minimum standard, it does provide a helpful starting point in evaluating the Applicants' claims that their treatments were within established guidelines, and therefore reasonable.

The Guideline defines the term "Whiplash-associated disorder" (WAD), grades injury by severity, and recommends how the various degrees of injury should be managed. There was no dispute that both Applicants' injuries were properly classified as "Grade II," defined in the Guideline as "Neck complaint and musculoskeletal sign(s) including decreased range of motion and point tenderness." Grade II is distinguished from Grade I in that physical signs are present, and from Grade III in that there are no neurological signs.

I note that a return to usual (i.e. pre-accident) activities as soon as possible is key. Passive modalities (electrical stimulation, ultrasound) are optional adjuncts for Grade II injuries in the first three weeks. The test of whether an injury is considered to be resolved or not is whether the person is able to resume his or her usual activities, and periodical evaluation of this is required. The Guideline further states that "A patient who still has residual pain or limitation of range of motion but who is able to resume work and other usual activities is considered to have resolved WAD." (This does not mean, of course, that the patient with "resolved WAD" no longer requires treatment aimed at relieving pain or increasing range of motion).

How to manage a particular injury is not a matter of strict adherence to a particular guideline, but must be a clinical decision in every case. However, there are sufficient unexplained departures from this particular guideline, at least, that I am reluctant to accept, at face value, the assertions of Dr. Ahmad and the chiropractors who testified on the Applicants' behalf, that Mr. Amoa-Williams' treatment was within guidelines or protocols accepted by their profession, particularly where, as will be seen, the Insurer's equally qualified experts disagree with those assertions.

Both parties' experts did agree that passive care to control pain and maintain mobility, including daily chiropractic care, was appropriate in the first two and half weeks after the accident, with gradual tapering off after that. Opinions differed as to what degree of tapering off was reasonable.

I also heard evidence from both sides that treatment protocols require practitioners to justify treatment that is more frequent or prolonged than recommended, or which otherwise exceeds the protocols. Dr. Szaras felt that Mr. Amoa-Williams' 9 1/2 weeks of treatment was longer than one might normally expect, but that this was justified due to the "red flag" of his previous injuries. I reject this opinion because Mr. Amoa-Williams was absolutely clear in his recorded dealings with the Clinic and with Target, as well as at the hearing, that he had completely recovered from any pre-existing injuries prior to his treatment. I find that Dr. Szaras' testimony simply confirms that 35 chiropractic treatments over 9 1/2 weeks was already unjustifiably prolonged, and therefore neither reasonable nor necessary.

Had Dr. Ahmad followed her own Treatment Plan, the Applicant would have received treatments as follows: 2 1/2 weeks at 5x per week (13), 2 weeks at 3x per week (6), and 2 or more weeks at 2x (4), for a total of 23 treatments in 6 1/2 weeks, or 25 in 7 weeks, or 27 in eight weeks.

Dr. Carlan Stants stated in his report that the chiropractic care received was reasonable because the type of care provided (spinal manipulation and active exercises)¹¹ fell within the Quebec Task Force Guidelines and "unpublished Ontario Chiropractic Association guidelines."¹² That general statement may be true; however, it does not justify the frequency or duration of treatments, which Dr. Stants did not comment on.

I was not persuaded by the Applicants' experts that Mr. Amoa-Williams' 9 1/2 weeks of chiropractic treatment was justified.

I prefer the evidence of the Insurer's expert witnesses, Carolyn Vandyken, a Registered Physiotherapist with particular credentials in the diagnosis and treatment of spinal disorders, and Bruce Makos, a chiropractor, both of whom prepared reports and testified for the Insurer. Ms. Vandyken worked for the Canadian Back Institute (CBI) for many years and now is co-owner of Physiotherapy Associates of Cambridge. Dr. Makos is also a Fellow of the Chiropractic College of Rehabilitation Sciences and owner of Richmond Hill Rehabilitation Centre, which is also a licensed Medical and Rehabilitation DAC. Both witnesses recommended considerably fewer treatments. Ms. Vandyken concluded that a total of 24 visits of combined chiropractic treatment and progressive active exercise over six weeks, was reasonable; Dr. Makos said 22.

Dr. Hamilton Hall, an orthopaedic surgeon and Medical Director of The Canadian Utilization Review, also testified for the Insurer. He stated that the total amount of treatment Mr. Amoa-Williams received was unnecessary given the straightforward nature of his injury, and that his ability to comply with the exercise program at Target indicated minimal impairment due to pain. These compelling arguments are based on the evidence and I accept them.

I find that there was no disagreement among the experts, on both sides, that the average or standard chiropractic care recommended for straightforward soft tissue injuries is between six to eight weeks of combined passive and active therapy. I also find that there was no evidence that Mr. Amoa-Williams' straightforward soft tissue injuries required anything more than this standard of treatment.

Given that Mr. Amoa-Williams reached his maximum level of exercise at Target (discussed below) by the sixth week, and accepting his evidence that chiropractic care helped him do so, I find that 23 chiropractic treatments over 6 1/2 weeks, which includes 13 daily treatments in the first 22 weeks, and gradual tapering off thereafter, was reasonable in this particular case.

4) Chiropractic treatments received by Mrs. Amoa-Williams

After the accident, Mrs. Amoa-Williams could not do the heavier lifting and bending required on her HCA shifts. Increased fatigue and pain and stiffness in her neck and upper back slowed her down considerably on her nursing shifts. She had difficulty climbing stairs and needed help from her eldest son with the housework.

Mrs. Amoa-Williams received 34 chiropractic treatments and made 33 visits to Target for active exercise therapy in the 16 weeks between January 22 and May 15, 1997. Except for the third and fourth weeks of treatment, where she visited both facilities four times per week, she attended each facility on average twice a week, and occasionally only once a week, organizing her attendances around her work schedule. She testified that she went first for chiropractic treatment, which relieved her pain and stiffness, enabling her to exercise at Target right afterwards. She stated that she felt good after these combined sessions, that her strength and endurance gradually improved, and that she would not have been able to continue working without the treatments.

Mrs. Amoa-Williams impressed me as an honest, motivated and hard-working woman, who sincerely believed that the treatments helped her. I have no reason to doubt her testimony.

Nevertheless, I have two concerns about the treatments she received from the Clinic. First, Mrs. Amoa-Williams was very clear in her testimony, and the pain diagrams and subjective reports she completed throughout her treatment confirm this, that she did not injure her lower back in the accident. No record of any clinical findings of lumbar strain was provided. Yet Dr. Maistrelli diagnosed it, and Dr. Ahmad treated it. Neither testified to explain this discrepancy, leaving Mrs. Amoa-Williams to provide her own common-sense explanation, that pain in the upper back would naturally affect the lower back. This neither excuses the professional inaccuracy nor justifies the treatments provided for her lower back.

Secondly, I find Dr. Maistrelli's diagnosis of Mrs. Amoa-Williams' soft tissue injuries as "moderately severe," to be without supporting clinical findings and incompatible with Mrs. Amoa-Williams' immediate return to work, albeit not to her more physically demanding week-end shifts, and her ability to undertake an active exercise program.

5) Were the chiropractic treatments received by Mrs. Amoa-Williams reasonable and necessary?

Despite these concerns, and despite the DAC's conclusions to the contrary, discussed below, I find, on the strength of her testimony, that all of Mrs. Amoa-Williams' chiropractic treatments were reasonable and necessary. I heard no evidence that the frequency (15 treatments in the first six weeks after the accident) offended any treatment protocol.

Furthermore, I find that after the first six to eight weeks, Mrs. Amoa-Williams continued to require the treatments for the legitimate medical and rehabilitation goals of pain relief and continuing to work. As the DAC confirmed that she had persistent pain and stiffness in her upper back, I see no reason why she should be deprived of treatment that relieved it. The DAC chiropractor felt that her discomfort was due in part to improper lifting techniques, and recommended four additional weeks of work-hardening under the supervision of an occupational therapist. Presumably, this would include instruction on proper lifting at work. Continued chiropractic care for pain relief in support of this initiative would have been perfectly reasonable.

6) Rehabilitation services provided by Target

Mrs. Amoa-Williams described her exercise routine at Target as 10-15 minutes of warm-up, or stretching exercises for her neck, shoulders, and back, followed by 10-15 minutes of cardiovascular exercise on a treadmill, and then a series of strengthening exercises with weights performed on a universal gym with 5 or 6 stations, for 20-30 minutes. Her routine therefore required from 40 minutes of exercise at Target in the beginning, increasing to a maximum of one hour per session towards the end of the treatment period. She stated that the treadmill exercise helped her to walk and stand at work for longer periods. Mrs. Amoa-Williams testified that she stopped going to Target when she got better, and was given a booklet of exercises that she knew she could do at home on her own.

Mr. Amoa-Williams' exercise routine was almost identical, but for one warm-up exercise for his knee, and different weights and repetitions on the universal gym. In fact, Allison (Wallace) Bailey, the certified kinesiologist who set the exercises, showed the couple how to do them, and ensured that they continued to do them correctly, testified that the warm-up exercises were standard for patients with neck and back injuries. Dr. Corrado Morana, a general practitioner employed by Target, also testified that the exercise routines were standard. The Amoa-Williams confirmed that their routines were basically the same as they had followed at Target after their 1994 motor vehicle accident.

Dr. Shahidi testified that Target billed Allstate $150 per patient for each active exercise session, on the basis that each patient received one-on-one supervision from the kinesiologist throughout the entire session. The Insurer argued that the $150 fee is excessive. I will discuss this, and other fees charged by Target, in more detail below.

Ms. Bailey testified that she and her assistant, "Vera," were present when the Applicants exercised.¹³ Based on the testimony of the Applicants and Ms. Bailey, and the Progress Reports for each Applicant, I find that although Ms. Bailey was present in the room while they exercised, Mrs. Amoa-Williams required little, if any, supervision once being shown the exercises. Although it may have taken her husband slightly longer to learn the routines, he attended almost every day for the first month, performing the same exercises every day, and I find that he could not possibly have required continual supervision after being shown how to do them. I also find that the number of patients exercising in the room at any one time varied from 5-10, indicating that the Applicants did not receive exclusive one-on-one attention from a certified kinesiologist.

7) Was Mrs. Amoa-Williams' rehabilitation program reasonable and necessary?

The Applicants' expert witnesses were of little assistance in determining whether the Target sessions were reasonable or necessary. Dr. Stants declared that he had insufficient information to be able to assess the nature or quality of care. Dr. Szaras did not review Mrs. Amoa-Williams' file in detail and based his opinion that her treatments were reasonable in part on the inaccurate assumption that her exercises were modified to mimic what she did at work, which was not the case. For both Applicants, his opinion was based on a superficial review of the treatment process rather than its actual content. I do not rely on it.

I prefer the detailed analysis provided by Carolyn Vandyken, the physiotherapist, who challenged the reasonableness of the Target program on several grounds. Firstly, she noted that the written reports and the pain diagrams completed by Mrs. Amoa-Williams over the course of therapy showed little change in the location and intensity of her pain. She concluded from this that it was not appropriate to continue the same treatment in the face of so little reported subjective benefit. Dr. Hall came to the same conclusion based on his review of written statements prepared by both Applicants which revealed little change in their symptoms over time.

Secondly, Ms. Vandyken agreed that reducing Mrs. Amoa-Williams' fatigue at work, increasing her endurance and restoring her former pace were reasonable treatment goals. However, she found that the cardiovascular exercise on the treadmill at Target was insufficient to meet these goals, as Mrs. Amoa-Williams needed at least 20 minutes of treadmill exercise, instead of the average of 12 minutes that she actually spent. In addition, she never reached the target heart rate required to achieve a conditioning effect and so increase her endurance. Dr. Szaras agreed with these facts on cross-examination.

Thirdly, no functional capacity evaluation was done after six weeks to assess what, if any, additional exercise therapy might be needed, or if the treatment goals were being met. Regular FCE's are key components of the two treatment guidelines that I reviewed.¹⁴

I find that although Ms. Vandyken was not aware of the full extent of Mrs. Amoa-Williams' disability with respect to lifting and bending, this did not detract from the validity of her opinion, which was based on an analysis of the actual program content provided by Target.

It would, however, incline me to find that Mrs. Amoa-Williams perhaps required more sessions at Target than Ms. Vandyken was prepared to recommend.

A review of Mrs. Amoa-Williams' exercise chart shows that, in contrast to her husband, there were no increases in weights or repetitions in the first five strengthening exercises between February 11, when she started those exercises, until the last two days of her program. In fact the only notable modification to her program was the addition of five new exercises on March 26. No increases to these 5 exercises were made until May 7.

I find little objective evidence that Mrs. Amoa-Williams' exercise program at Target was effective. The objective evidence and Mrs. Amoa-Williams' contemporaneous pain diagrams showing no improvement in symptoms are difficult to reconcile with her testimony at the hearing that the combined chiropractic and exercise sessions relieved the pain and stiffness brought on by her duties, and her statement that she would not have been able to continue working without them. Were it not for her diligent and regular attendance despite the demands of work, two young children and the lengthy travelling distance from home or work, I might have reason to question the motivation behind her testimony. However, in the circumstances, I find it unlikely that she would be so committed to her sessions if they were of no actual benefit to her, albeit subjective. I accept her testimony. Consequently, I find that the first 26 Target sessions from January 28, 1997 until the final DAC report was issued April 22, 1997, were reasonable in number and, at twice a week, were reasonable in frequency.

The DAC recommended a further 8 twice-weekly sessions of work-hardening, which Mrs. Amoa-Williams did not receive. She testified that she wanted to finish her course at Target, and attended for seven more sessions, ending May 15, 1997, when she felt she was better. I find that it is clear from the evidence of Ms. Bailey and Ms. Vandyken that Mrs. Amoa-Williams' exercises were injury-specific, that they did not constitute "work-hardening"¹⁵ as recommended by the DAC, and that the nature of her documented pain complaints required specific work-related therapy.

I heard no evidence that anyone at Target (or the Clinic, for that matter) turned their mind to the recommendations in the DAC report, or discussed it with Mrs. Amoa-Williams. Dr. Morana testified that he was unaware of the report when he assessed her on April 24. I could accept that Target staff might disagree with the DAC report for valid clinical reasons, advise Mrs. Amoa-Williams of her alternatives and perhaps suggest that she continue with Target's program instead. In that case, of course, I would expect Target to apprise both Mrs. Amoa-Williams and Allstate of this, and advise their patient of the risk that Allstate might not agree to pay for further sessions at Target. Furthermore, I would expect Target to present evidence at the hearing of their discussions with Mrs. Amoa-Williams. However, I heard no evidence that Target did any of these things. I find that it failed to address the DAC report with Mrs. Amoa-Williams at the time, without explanation, and that it is not entitled to charge for any exercise sessions after receiving it. Allowing two weeks for the parties to receive the report dated April 22, 1997, I find that Allstate is not required to pay for Mrs. Amoa-Williams' exercise sessions on May 7, 9 and 16.

8) Was Mr. Amoa-Williams'rehabilitation program reasonable and necessary?

Mr. Amoa-Williams' exercise charts show that he progressed steadily, and that weights and repetitions were progressively increased until he reached a maximum at the start of the sixth week, March 3, 1997. He stayed at this level, attending 3x per week, for two weeks, then returned to his previous level until March 26, his last day, by which time he was fully recovered. Given that he could exercise so diligently at the maximum level, and given the straightforward nature of his injuries, I find it more likely than not that he was able to resume his daily activities as early as the beginning of the sixth week, and that further sessions at Target thereafter were not necessary.

As I accepted Mr. Amoa-Williams' evidence that his chiropractic treatments prepared him to exercise, I find that a similar frequency of exercise sessions as chiropractic treatments is justified. This would be 10 sessions at Target in the first two weeks, up to and including February 7, and 3 sessions per week for the next 4 weeks for a total of 23 active exercise sessions over 6 1/2 weeks.

D) Were the fees charged for the chiropractic treatments and rehabilitation services reasonable?

1) Factors to consider:

a) Professional fee guidelines and protocols

Bill 59 is the first no-fault automobile legislation to specifically provide, under subsections 14(4) and 15(6), that the insurer is not liable to pay a 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 by the Financial Services Commission. At the present time, only one guideline has been published, the Professional Fee Guidelines-Physiotherapists.¹⁶ Although no physiotherapy expenses are claimed in this case, and the guideline was published after the accident, I agree with Arbitrator Palmer, who discussed the document in similar circumstances, that, as a document issued following joint recommendations of the Ontario Physiotherapy Association and a committee of insurers, it is worth considering on the issue of what constitutes reasonable fees.¹⁷

In contrast, the fee schedules of the Ontario Kinesiology Association (OKA) and the Ontario Chiropractic Association (OCA), relied upon by the Applicants to establish the reasonableness of chiropractic and rehabilitation fees charged by the Sheppard-Leslie Clinic and Target Rehabilitation, are unilateral publications of the respective professional organizations. They have been subjected neither to the legal requirement nor to the "market test," as it were, of negotiations with insurers, and do not represent agreement on fees.¹⁸ This being the case, I find these guidelines to be less reliable indicators of what are reasonable professional fees.

b) Cost of comparable services

Professional fees charged must reflect value. At least one arbitrator has held that comparing fees to the market price for similar services is a factor to consider, and evidence of this is helpful although not determinative.¹⁹

I heard little useful evidence of this nature to assist me in making an informed finding on that basis. Counsel for the Applicants argued that, as Allstate receives treatment plans and invoices from every treatment facility in the province, it was in a better position than the Applicants to provide this type of evidence at arbitration if it wished to establish that the fees charged by the Clinic and Target were absurd or greatly more than what might be expected. Allstate provided no evidence apart from the testimony of Bruce Makos, Carolyn Vandyken and Dr. Hall about their own fees.

However, in my view, valuing medical and rehabilitation services in this manner in the absence of relevant and coherent expert evidence is a complicated and possibly futile undertaking, given the number of unquantified variables involved. It would be unfair to impose what could turn out to be an onerous evidentiary burden on one party without a clear understanding of what is involved. It is beyond the scope of this arbitration, particularly as there already exists a forum for health professionals, through their professional organisations, to negotiate fees directly with the insurance industry and have them published in The Ontario Gazette, pursuant to subsection 14(4) of the Schedule.

Furthermore, Bill Gold, a Staff Claim Consultant with Allstate, testified at the hearing. Dr. Shahidi testified that he believed Mr. Gold to be the person behind Allstate's refusal to pay his accounts. Mr. Gold was not asked by either party for his opinion about what fees he considered to be reasonable, or on what basis.

I considered the possibility of comparing the recommended fees for physiotherapists and kinesiologists, as set out in the guidelines of their professional associations, on the assumption that they perform similar duties in setting and supervising rehabilitation exercise sessions. However, as explained below, I received insufficient evidence to be able to do this.

c) Overhead

Clearly, the cost of delivering rehabilitation services will vary across the province. Conceivably, relevant and accurate information about the cost of operating a facility, together with intelligible information about reasonable profit margins and reasons why one facility might be superior to others in terms of quality or type of services, could justify fees charged. Dr. Shahidi and Brian Leila, Target's business manager, provided evidence of operating expenses at the hearing. However, it was imprecise and incomplete, and there was nothing to compare it to. It was not clear what conclusions I was expected to draw from this information. As a result, it was not helpful.

2) Were Target's fees reasonable?

a) Exercise session fee of $150:

Target billed Allstate $150 per person per exercise session, irrespective of the exercises performed, the time spent at the facility, or the number of people exercising at one time. Dr. Shahidi testified that this fee was for the use of the facility under the direct supervision of a certified kinesiologist. He testified that his fee was reasonable on two grounds. First, that he was entitled to charge $110 per hour as recommended by the OKA 1998 Recommended Fee for Service Guidelines²⁰ for the services of a kinesiologist, and second, that his fee was within the "OCA Guidelines for Chiropractic Rehabilitation Facilities," which recommend a fee of $150-$180 per half day for use of a chiropractor-supervised rehabilitation facility. I received no evidence that either guideline has been the subject of any negotiations between service providers and insurers. Neither guideline has been published in The Ontario Gazette.

i) Testimony supports an hourly fee of $80 for kinesiologists:

Ms. Bailey, the only certified kinesiologist to testify, was paid $13 per hour by Dr. Shahidi and did not know the rate at which he billed her services, or those of her assistant, who was not a certified kinesiologist. Ms. Vandyken, who has worked with kinesiologists for several years, testified that the market will not bear the $120 ($110 in 1998) hourly fee for a kinesiologist claimed by the OKA and Dr. Shahidi. She stated that both her own company and The CBI, which Dr. Hall testified was the largest employer of kinesiologists in Ontario, charge $80 per hour for one-on-one care by a kinesiologist, and that this fee is divided by the number of patients actually seen at one time. This uncontradicted testimony was the only evidence put before me about the actual fees charged, as opposed to recommended fees, for the services of a kinesiologist, and, as such, I accept it.

ii) Professional fee guidelines do not support Target's $150 per session fee

The Professional Fees Guideline - Physiotherapists, provides in part:

"The range of fees for services provided by physiotherapists is $95 per hour to $120 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 guidelines also provide for a range of fees per unit of 15 minutes of $23.75 to $30.00.

Apart from the actual hourly rate,²¹ I find these guidelines helpful because they are detailed, comprehensive, and well thought out. They set out a rational, easily understood and easy to administer method of charging for professional services. They clearly specify what is and what is not included in the hourly rate. Together with the Physiotherapy Utilization Guidelines ("PUGS"), they provide a workable and reasonable scheme for treating WAD-type injuries and billing for the treatment. I find they provide the best model of how (if not what) Target ought to charge for some of its services.

The OKA guidelines, on the other hand, are too vague to be of much assistance. I find that they do not support the $150 fee charged by Dr. Shahidi for the services of a kinesiologist at Target. In the absence of any other reliable evidence, I accept the evidence of Ms. Vandyken and I find that the appropriate hourly fee for a kinesiologist in this case is $80.²²

iii) The hourly fee should be pro-rated where there is no direct one-on-one supervision

There was disagreement among the expert witnesses about whether a certified kinesiologist should be "billed out" at the full hourly rate only for one-on-one supervision of clients, or whether the fee should be prorated or otherwise reduced where one kinesiologist supervised the activities of more than one patient at a time. The OKA guideline is of no assistance on that point, and efforts on the part of Allstate to obtain clarification have been unsuccessful.²³

I find the definition of "direct one-on-one treatment time" in the Professional Fees Guideline - Physiotherapists to be particularly useful in this case, and I apply it to Ms. Bailey’s supervision of one patient at a time performing rehabilitation exercises designed by her for that patient, in consultation with treating health professionals. Target is entitled to charge $80 per hour for all of these services, and $20 for each part of an hour that is 15 minutes or less.

I find that a kinesiologist who purports to provide the services described above for more than one patient at a time must divide the $80 hourly fee by the number of patients.

As explained below, I cannot determine precisely how many patients exercised at the same time as the Applicants from the evidence provided. However, for the most part, Mr. and Mrs. Amoa-Williams attended Target together.²⁴ I find that they received direct one-on-one instruction and supervision from the kinesiologist during the same session, and I find that this was reasonable for the first five sessions only. Once they had learned how to do the exercises, the evidence was quite clear that they were very motivated to exercise and that they were both able to do so with minimal supervision.

The records and testimony also indicate that they each spent less than an hour exercising for the first five sessions. I find that the appropriate fee is $80 per hour divided by two, or $40 per Applicant for the first five sessions.

iv) A fee of $50 per hour should apply where there is no direct one-on-one supervision

I find that, after the first five sessions, the Applicants exercised independently, in the company of other patients who, like the Applicants, did not have fixed appointments but came and went as convenient. In this situation, I find that an hourly rate separate from the kinesiologist's hourly rate, for patients exercising with a kinesiologist present but not receiving direct one-on-one supervision, is simpler, fairer and more practical than an hourly kinesiologist's rate divided by the number of patients present. This is so for three reasons. Firstly, although Target provided evidence of the number of patients attending on a particular day, it was not possible to determine how many were in fact present at any one time. Secondly, it was clear that patients did not exercise in prearranged groups. And, lastly, dividing the kinesiologist's hourly rate by the number of patients present would lead to widely varying fees.²⁵

I find that an hourly fee of $50 per person, divided into 15-minute units, is reasonable for use of the facilities where no direct one-on-one supervision is provided.

v) The Ontario Chiropractic Association Guidelines for Chiropractic Rehabilitation Facilities do not apply

Dr. Shahidi maintained that the "OCA Guidelines for Chiropractic Rehabilitation Facilities" were relevant, even though Target did not qualify as a facility as defined in these guidelines, because it is not supervised by a chiropractor. These guidelines suggest a fee of $150-$180 per half day of active rehabilitation exercise. Dr. Shahidi explained that he should be able to apply this fee at Target, because he made his facility available to his patients on a half day basis, regardless of how much time they spent there. I reject this argument for several reasons. Firstly, I have no basis to compare Target, which is supervised by a kinesiologist, to a "Chiropractic Rehabilitation Facility" supervised by a chiropractor, or to determine if similar fees should apply. Secondly, as the Applicants rarely spent more than an hour exercising at Target, nor could they, given the exercises they were prescribed, I find that this fee would be excessive in their case. Thirdly, I heard no evidence that the half day fee is consistently applied.²⁶ I find that this guideline is not very helpful and, in any event, does not apply.

Even if this guideline were applicable, I would prorate the half-day fee on an hourly basis. It is clear from the Professional Fee Guideline - Physiotherapists that this practice is acceptable. Furthermore, Dr. Makos testified that he charged $50 per hour for active exercise, divided into tenths of an hour. Assuming a half day equals three to four hours, prorating the $150-$180 half day chiropractic rehabilitation facility fee would still result in an hourly fee in the range of $37.50 - $52 per Applicant, which I find is reasonable.

Dr. Szaras' opinion that Target's $150 fee for an hour and half of exercise was reasonable because it reflected "a composite relationship of supervisory responsibility, regular evaluations and modifications" was based on two mistaken assumptions. The Applicants did not spend an hour and a half exercising, and "regular evaluations" at Target were carried out by physicians. They were billed separately and not included in the exercise fee. I do not rely on Dr. Szaras' opinion.

vi) Total amount that may be charged for rehabilitation exercise sessions

Based on the above reasoning, I find that Target is entitled to charge for the exercise sessions as follows:

Mr. Amoa-Williams:

The Target exercise records for Mr. Amoa-Williams indicate that his first 9 attendances there were for warm-up exercises, and 10 to 20 minutes of treadmill work only. I find that these were half hour visits, and that Ms. Bailey showed Mr. Amoa-Williams how to do the exercises and that she watched to see that he did them correctly. Mr. Amoa-Williams testified that Ms. Bailey took his pulse before and after the treadmill sessions, which he could not do himself, and that he required assistance with the treadmill. I find therefore that Target is entitled to bill half an hour of Ms. Bailey's time, for each of these 9 sessions, or $40 per session, for a total of $360.

Work with weights was added on February 7. I find it reasonable that Mr. Amoa-Williams required the equivalent of a half hour of one-on-one instruction and supervision for the first five weight sessions, at $40 per half hour, for a total of $200. The remaining 9 visits should be billed at $50 per session, or $450.

This amounts to a total of $1,010 for the exercise sessions.

Mrs. Amoa-Williams:

Mrs. Amoa-Williams testified that, as a nurse, she was able to take her own pulse. I find that she required the equivalent of a half hour of one-on-one supervision by Ms. Bailey ($40) for the first four sessions of warm-up and treadmill exercise, and a half hour for the first five full exercise sessions with weights, which amounts to $360 for nine sessions. She was able to exercise without direct supervision for the next 11 sessions ($50 per session, total: $550) until March 26, 1997 when five new exercises were added to her routine. I would allow two half hour sessions of instruction for that, in addition to the $50 hourly rate for each session (2 x $40 plus 2 x $50 = $180). The remaining 14 sessions would be at $50 per session, or $700.

This amounts to a total of $1,790 for the exercise sessions.

b) Fitness test conducted by the kinesiologist - $185

Allstate was billed $185 for a fitness test conducted by Ms. Bailey, which she testified took from half to one hour, and for which she had no idea what Target charged. Dr. Guerriero compared it to the more extensive two-hour fitness test provided by kinesiologists at his facility for which he charged $150. I find a fitness test to be the type of one-on-one activity by a kinesiologist for which Target is entitled to charge a fee of $80 an hour. Having heard the evidence and reviewed the report, I find that Ms. Bailey spent one hour testing each Applicant and writing up the report.

c) Fee for medical examinations - $550

Allstate was billed $550 for three medical examinations for Mrs. Amoa-Williams (one by Dr. Morana, a general practitioner, and two by Dr. Maistrelli, orthopaedic surgeon) and $550 for two examinations of Mr. Amoa-Williams by Dr. Maistrelli. Dr. Shahidi testified that the fee represented had a flat rate of $550 per patient regardless of which doctor examined them, and that the fee included as many medical examinations as necessary. Dr. Morana testified that he was on site at Target about one day per week, for 4-6 hours per day, that Dr. Maistrelli’s hours were similar, and that a patient could see either doctor interchangeably, depending on convenience and availability. Dr. Shahidi reasoned that having an orthopaedic surgeon on staff avoided delays that might occur if patients had to wait for referrals to specialists from their family doctors.

This might be helpful in some cases but I find that, given that the Applicants injuries were uncomplicated and I heard no evidence of why they would be required to be followed by an orthopaedic surgeon, this level of service was not necessary and it is not reasonable to require the Insurer to pay for it. It is also not reasonable for Allstate to be billed for a visit to an orthopaedic surgeon simply because Dr. Maistrelli might have been available to see a patient on a day when Dr. Morana was not. I am not satisfied that the visits could not have been billed to OHIP. Had the Applicants visited their own family doctor, the cost would have been covered by OHIP, as would the cost of a visit to an orthopaedic surgeon and any consultation report provided by him or her to the family doctor or referring physician. Dr. Hall testified 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 find that Dr. Maistrelli and Dr. Morana examined patients in a treating capacity at Target.

Although I can accept that the medical doctors at Target performed an additional service in that they also consulted with the kinesiologist about appropriate rehabilitation exercises, if Dr. Shahidi's exercise session fee was intended to cover the cost of attending the facility, as he claimed, then the cost of staff consultations or "team meetings" should be included in that fee, and not billed separately by each health professional involved.

In any event, I find that a fee of $550 for two or three 15 minute medical examination resulting in medical reports of no more than 20 lines each is clearly excessive.

I find that Allstate is not required to pay any part of this fee for either Applicant in this particular case.

d) Total rehabilitation expenses payable for each Applicant

Allstate is required to pay rehabilitation expenses of $1,090 for Mr. Amoa-Williams, less $875 already paid, or $215, and expenses of $1,870 for Mrs. Amoa-Williams, less $575, or $1,295.

3) Were the Sheppard-Leslie Chiropractic Clinic's fees reasonable?

a) The 1997 OCA Recommended Service Codes & Fee Schedule applies

Dr. Shahidi testified that he set the Clinic's fees based on a draft Ontario Chiropractic Association (OCA) Recommended Fee Schedule, which was not actually published by the Association, and therefore not effective, until June 1997. At the time the Amoa-Williams received their chiropractic treatments, the recommended fee schedule in force dated from January 1, 1994. Neither fee schedule was ever published in The Ontario Gazette.

I find the three-page 1994 OCA fee schedule to be out of date and too general to accurately reflect the full range of services provided by Dr. Shahidi, and chiropractors in general, as of 1997. It has only one fee of $15 for "Treatment/Management," which is defined as "Including but not limited to manipulation of one or more joints, supportive or adjunctive therapy, advice, education, and counselling."

The 1997 OCA fee schedule, in contrast, is, at 27 pages, considerably more detailed and comprehensive. I accept the evidence of Dr. Makos that it was intended to reflect the full range of services that chiropractors were actually providing and permit them to charge appropriately. Under the 1997 fee schedule, each type of treatment is described and assigned a separate code and fee. For example, "supportive or adjunctive therapy" is further broken down as myofascial therapy ($15), ultrasound ($8), electrical current therapy ($10), and mobilization ($10). I find that the 1997 fee schedule better captures the services provided by the Clinic and accept the evidence of Dr. Guerriero and others that fees based on this schedule are reasonable.

I also accept Dr. Makos evidence that chiropractors may choose to adopt one of two billing schemes, individual billing for services ( "unit billing"), or a set fee that incorporates a number of services, known as "block billing."

b) Fees charged by the Clinic

The following chart summarizes the services Mr. and Mrs. Amoa-Williams received from the Sheppard-Leslie Chiropractic Clinic and the fees billed for each service:²⁷

Mrs. Mr. Billed to Allstate Billed to OHIP

Initial visit

$77.17

$11.75

$46.27

Subsequent treatment visits

$36.62

per visit

$ 9.65 per visit²⁸

Disability Certificate

$75.00

$125.00

Medical/Rehabilitation Report Review

$75.00

Minor Exam/Reassessment

$45.00

DAC Report Review

$125.00

c) The $46.27 per treatment visit fee

I understand that Dr. Shahidi's $46.27 fee per treatment visit was a block fee. He testified that he set it with the 1997 OCA schedule in mind and after consulting colleagues who were providing the same or similar services as his Clinic. He testified that this block fee covered the following individual services or treatments at his Clinic:²⁹

A brief exam, or interactive assessment (code 1206)

$12

A spinal adjustment (code 2101)

$16

as well as therapies that he included under the code "STT," or "soft tissue therapy," in patient clinical notes and records:³⁰

Myofascial therapy (code 2201)

$15

Trigger point (code 2202)

$10

Ultrasound (code 2205)

Electrical Current Therapy (code 2206)

$10

Manual traction (code 2207)

$10

Mobilization (code 2210)

$10

IFC³¹ (code 2404)

Dr. Shahidi testified that the $46.27 fee was reasonable because it was less than if the services provided by Dr. Ahmad were billed separately. Dr. Rocco Guerriero agreed with this approach, using the following example in his report to show how the block fee was less than if the fees for each individual service were charged separately:

1206 interactive assessment

$ 12

2101 spinal manipulative therapy

$ 16

2206 electrical current therapy

$ 10

2201 myofascial therapy

$ 15

TOTAL

$ 53

I find Dr. Guerriero's example and analysis to be flawed for several reasons.

Firstly, the 1997 OCA fee schedule states that typically, one service from the 2200 series is employed per visit, except that "In complicated cases more than one of these services may be utilized in a single office visit. However, a maximum of two services per office visit may be billed." Dr. Shahidi’s flat fee of $46.27 assumes the maximum of two 2200 services per office visit, every visit. As I found it to be clear from the evidence that both Applicants' injuries were straightforward, and therefore not "complicated cases," I find that two "2200" services at each visit exceeds the OCA guideline for these two Applicants, and, in the absence of any explanation to justify this, I find that $46.27 is not a reasonable fee where it purports to include two "2200" services per visit. Applying the OCA fee schedule to Dr. Guerriero's example, and including only one "2200" service (for argument's sake, the most expensive, myofascial therapy at $15), the maximum fee under the OCA guideline for the Applicants at any visit should be $43.

Secondly, the 1997 OCA fee schedule gives examples of typical billings, and seems to suggest that an assessment ($12) or an adjustment ($16) is not necessary at every visit.³² In fact, Dr. Ahmad’s notes indicate that adjustments were not necessary, or possible, at every visit. Yet, according to Dr. Shahidi's testimony, the $46.27 fee includes an assessment and an adjustment at each visit. If that is the case, Dr. Shahidi’s fee does not accurately reflect the services provided and is not a reliable "block fee." This is not reasonable. I note also that the examples of combining service codes and fees set out in the OCA schedule show 'per visit fees considerably less than the flat fee charged by Dr. Shahidi.

Thirdly, if, as the guideline suggests, only one "2200" service should be charged at each visit in addition to the minor assessment and spinal adjustment in uncomplicated cases, the total fee per visit would range from $36 to $43. The fee would be even less if no assessment or spinal adjustment were performed. For example, on January 31, 1997, the Clinic records for Mr. Amoa-Williams show that Dr. Ahmad performed only myofascial therapy ("STT" - $15) and "mobilization" ($10), which adds up to $25. Although on some visits the value of the individual services provided exceeded $46.27, more than one (and sometimes more than two) of these services were "2200" services, which I have found to be excessive in the case of these two Applicants.

This billing practice is not reasonable. It does not conform to the OCA’s own recommendations, it could easily result in excessive costs to the Insurer over time, and it would also be difficult for the Insurer to tell from the billing information provided to it, exactly what services were provided, or whether the fee schedule was being followed. As noted above, I heard no evidence to explain why so many procedures were thought to be necessary at each visit. The possibility arises of a chiropractor providing medically unnecessary treatments during a visit, simply to justify a high block fee.

Finally, Dr. Makos testified that he also used the block billing system and that he billed $29.65 per visit, which also included many different types of treatments. I find that this would be on the low end if Dr. Makos used the 1997 OCA schedule and provided as many treatments per visit as did Dr. Ahmad.

Based on all of the above information, and in the absence of any other evidence, I find that a fee of $40 per treatment visit, inclusive of OHIP,³³ is reasonable in this particular case..

d) Initial visit fee - $88.92

The Clinic’s initial visit fee of $88.92 (which includes $77.17 billed to Allstate and $11.75 billed to OHIP) is reasonable, as it corresponds to the lowest OCA recommended fee.

However, it is not reasonable to also charge a treatment fee of $46.27 at this first visit, as the detailed description of an initial visit in the OCA Recommended Fee Schedule clearly includes an interactive assessment, for which the fee is $12. According to Dr. Shahidi’s explanation, the treatment fee included $12 for an assessment at each visit. I find that the $12 fee was duplicated on the Applicants' first visit to the Clinic.

The clinical notes and records of the Applicants initial visits on January 22, 1997, unlike the notes for subsequent visits, do not list the treatments purportedly provided that day, only that "upon pt's agreement with fee structure tx started." Based on the records of subsequent treatments and my reasoning above, and, in the absence of any other evidence and assuming that the first treatment included an adjustment ($16) and one "2200" code service, myofascial therapy ($15), for example, a fee of $31 for the first visit could be justified for each Applicant.

e) Disability Certificate fee of $75 and Treatment Plan fee of $125

Health care professionals are entitled to charge for filling out these standard forms. The consensus of the experts is that $75 is a reasonable fee for each of these items.

f) Medical/Rehabilitation Report Review - $75

The Clinic billed Allstate for six report reviews for Mrs. Amoa-Williams and five for her husband. Dr. Shahidi testified that Dr. Ahmad spent fifteen minutes to review progress reports and physician’s assessments and reassessments prepared by Target staff and discuss them with the Applicants. Dr. Shahidi based the $75 fee on fifteen minutes of the chiropractor’s time, billable at $250 per hour for "other professional activities" under the 1997 OCA guideline.

Dr. Makos' evidence was that the 1997 OCA fee guideline did not have a recommended fee for this type of service and that this type of billing was not usual or customary among chiropractors. He felt the fee was excessive in any event, as the physician's reports in question consisted only of twenty lines each.

Dr. Guerriero did not comment on this fee in his report.

I find that although the reports were produced by Target staff, there is no indication in Dr. Ahmad's notes that she reviewed or discussed them with either Applicant at any time. Mrs. Amoa-Williams testified that she did not know if Dr. Ahmad saw the reports prepared by Target staff. She could not remember if Dr. Ahmad discussed them with her. Mr. Amoa-Williams was not asked about this at the hearing.

In the absence of any evidence to justify any of these billings in this case, I find that Allstate is not required to pay them.

g) Minor Exam/Reassessment - $45

The Clinic billed Allstate for five reassessments for Mrs. Amoa-Williams and four for her husband. Dr. Shahidi testified that he thought it was a reasonable charge for this service and that it was permitted under the 1997 OCA Recommended Fee Guideline, which describes a reassessment as a 10-15 minute "Evaluation of a patient at periodic intervals of weeks or months, or upon an unexpected change in the patient’s condition, to determine the need for continued care, modified care, cessation of care, or referral."

Dr. Guerriero felt the $45 fee was reasonable, as did Dr. Szaras. However, Dr. Szaras testified that he himself did not charge a reassessment fee at his own clinic. He was unaware if other clinics charged for reassessments.

I agree that the fee is reasonable, provided that the exams are justified and not overly frequent. Where a minor assessment was performed at every visit, as was the case here, I find it difficult to justify frequent "reassessments" at the higher fee.

Dr. Ahmad reassessed Mr. Amoa-Williams approximately every two weeks. The first reassessment was after 12 visits, subsequent ones after 6 visits. None appeared to be in response to any "unexpected change in the patient’s condition." No explanation was provided about how often or on what basis the Clinic conducted reassessments in general or these in particular. Each treatment visit itself contained a minor assessment.

In light of the evidence discussed above, I find no reason that more than two reassessments at $45 would be necessary for Mr. Amoa-Williams, or one a month.

Dr. Ahmad reassessed Mrs. Amoa-Williams after every 5 - 8 visits, on February 5 and 20, March 19, April 23 and May 9, 1997. Again, for the same reasons as above, I find no reason that more than one reassessment per month was necessary. I find four reassessments between the first treatment visit on January 22, 1997 and the last on May 15, 1997, to be reasonable.

h) DAC Report Review - $125

Dr. Shahidi testified that the Clinic billed Allstate $125 for a half hour of the chiropractor's time to review the DAC report and interpret it to the client. Dr. Guerriero did not comment on this fee in his report. Dr. Makos reported that, as for the medical/rehabilitation report reviews under f) above, this type of billing was not usual or customary among chiropractors.

I find this fee to be reasonable. DAC reports can be lengthy, particularly if they are multidisciplinary or contain a comprehensive functional abilities evaluation or other detailed assessment. The Schedule provides for a DAC assessment as a very important step in the dispute resolution process. Applicants and treatment providers who fail to take DAC recommendations into account, or who ignore them completely, risk being unable to recover the cost of treatment from insurers. Treatment providers therefore should be entitled to be compensated for a careful review of these reports and for time spent discussing them with their patients. As the complexity of DAC reports varies, I find that it is reasonable for a treatment professional to charge a reasonable hourly rate for this service.

I heard no evidence that the hourly rate charged by Dr. Ahmad was unreasonable. I find the $125 fee charged for a half hour to review the DAC report and discuss it with Mrs. Amo-Williams reasonable. However, as no evidence was presented that Dr. Ahmad actually did either, I disallow the fee in this particular case.

i) Summary of reasonable fees owing for chiropractic services

The Clinic is entitled to charge the following fees, inclusive of OHIP:

Mrs.

Mr.

Fee

Initial visit

$ 88.92

$ 31.00

Subsequent treatment visits

$ 40.00

Disability Certificate

$ 75.00

Medical/Rehabilitation Report Review

$ 0.00

Minor Exam/Reassessment

$ 45.00

DAC Report Review

n/a

$ 0.00

Allstate has already paid $786.12 to the Clinic for Mr. Amoa-Williams' treatments and $566.40 for Mrs. Amoa-Williams. The balance owing to the clinic is therefore $453.80 for Mr. Amoa-Williams and $1,323.52 for Mrs. Amoa-Williams:

Total Fees

$1,889.92

$1,239.92

Less amounts paid

566.40

786.12

Balance Owing

$1,323.52

$ 453.80

E) Conflict of interest

Section 38 of the Schedule requires health professionals who prepare Treatment Plans to declare any conflict of interest. Insurers are also required to disclose any conflict of interest relating to Treatment Plans. No breach of this section is alleged by either party. However, the Insurer’s argument, if I understand it correctly, is that a conflict of interest nevertheless exists, in a general sense, because Dr. Shahidi owns both his chiropractic clinic and Target and employs the staff at both facilities, who refer patients from one to the other. The perception is that the staff may be influenced to perhaps make treatment decisions based on considerations other than medical necessity alone. If this were so, it might affect the reasonableness and necessity of treatment recommended. However, the drafters of the Schedule must have turned their minds to this issue, because employees are specifically exempted from the conflict of interest provisions. As unsatisfactory as the Schedule may be in assisting to curb financial self-interest in the provision of rehabilitation services, that is the extent to which the drafters have chosen to go. Arbitrators must deal with alleged conflicts of interest in the context of whether treatment provided was reasonable and necessary in each case.

There was no evidence of improper motivation on the part of Dr. Shahidi's employees who testified in this particular case. Poor judgment is another matter and has been considered where relevant.

Both parties also raised the issue of conflict of interest in the context of treatment providers who own treatment facilities and/or facilities designated as Designated Assessment Centres. Many of the witnesses at this hearing fell into one or the other of these categories. Obviously, it is not unusual in the rehabilitation field for health professionals to own and operate their own facilities, and to provide paid opinions to insurance companies and/or applicants, and their lawyers, to be used in proceedings before the courts or the Commission. It is also not unusual for insurance companies to hire away qualified former owners or employees of private treatment facilities, and vice versa. It goes without saying that situations could arise where practitioners and insurers might find themselves in a conflict of interest between potential financial gain or savings, and the actual treatment needs of insured persons. Whether a conflict of interest arises in such situations is a question of fact in each case and I heard no evidence to persuade me that there was such a conflict in this case.

F) Special Award

The Applicants claim a special award pursuant to section 282(11) of the Insurance Act on the basis that Allstate's decision to deny payment of chiropractic and rehabilitation expenses as outlined in the Treatment Plans was arbitrary. I find no evidence that Allstate acted contrary to any provision of the Schedule in this regard.

The Applicants also allege that the adjuster's notes reveal that Allstate's main concern was to settle their claim and close its file, rather than pay the treatment providers directly for needed ongoing treatment. They argue that this decision was made prior to Allstate even meeting them, and that this was improper.

I find that the adjuster’s notes refer to Allstate’s previous experience with the Applicants and that, provided that the Schedule's provisions requiring early funding of treatment are respected, as they were in this case, there would be nothing improper in an insurer wanting to meet the claimants as part of the normal process of adjusting the claim.

For these reasons the claim for a special award is denied.

EXPENSES:

If the parties are unable to agree on expenses, either one may contact the Commission to make arrangements to speak to the matter.

June 5, 2000

Susan Sapin

Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 96

FSCO A97–001864

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

AMA AMOA-WILLIAMS

and

SETH AMOA-WILLIAMS

Applicants

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Allstate shall pay to Mr. Amoa-Williams chiropractic expenses of $453.80. Allstate shall pay to Mrs. Amoa-Williams chiropractic expenses of $1,323.52.
Allstate shall pay to Mr. Amoa-Williams rehabilitation expenses of $215. Allstate shall pay to Mrs. Amoa-Williams rehabilitation expenses of $1,295.
Mr. and Mrs. Amoa-Williams are entitled to interest on overdue payments in accordance with section 46 of the Schedule.

June 5, 2000

Susan Sapin

Arbitrator

Date

Footnotes

The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
Seth and Ama Amoa-Williams, Shahram Asadi-Dehdezi, Felice and Immacolata Colangelo, Giuseppe Gatto, Thomas Gordon Henderson, Luigi Rosvelti, Haeideh Sherkat, Blanka Simeckova, Kourosh Yektamanesh and Allstate Insurance Company of Canada and State Farm Mutual Automobile Insurance Company (FSCO/OIC A97-001864, A98-000238, A98-000209, A98-000324, A99-000063, A98-001295, A97-002146, A97-001776, A98-000022, July 21, 1999)
"Whiplash" is defined in the Financial Services Commission's Guideline On The Management of Claims Involving Whiplash-Associated Disorders, Commissioner's Guideline No. 5/96, as an "acceleration-deceleration mechanism of energy transfer to the neck which may result from rear-end or side impact, predominantly in motor vehicle collisions...The energy transfer may result in bony or soft tissue injuries (whiplash injury), which in turn may lead to a wide variety of clinical manifestations (whiplash-associated disorders) p. B-7-1. The injuries are graded from I to IV by severity. "Grade II WAD" is described as "Neck complaint and musculoskeletal signs including decreased range of motion and point tenderness." Grade I is limited to neck pain, stiffness or tenderness only, with no physical signs; Grade III includes neurological signs p. B-7-3.
Or OCF-12, completed January 30, 1997
Section 38(16) requires the Insurer to pay for the least expensive of: the first 15 chiropractic or physiotherapy sessions; or for all chiropractic treatment or physiotherapy within the six weeks after the accident. In either case, the insured person must have submitted a treatment plan. This subsection is subject to subsection 38(14) and is therefore a "pay-pending dispute" provision.
Section 14(2)(b) of the Schedule.
Section 15(2)
Plows and Jevco Insurance Company (OIC A-000175, A-000588, January 16, 1992)
Violi and General Accident Assurance Co. of Canada (FSCO A98-000670, August 20, 1999)
A fellowship accorded after 300 hours of specialized study in rehabilitation.
Report dated June 17, 1999, Exhibit 2, Tab 5, p.3
These Guidelines will be discussed below.
Ms. Bailey and Dr. Shahidi testified that "Vera" was not a certified kinesiologist. Ms. Bailey believed that she had medical qualifications from another country.
See footnotes #3 and #16
The Physiotherapy Utilization Guidelines for Soft Tissue Disorders of the Spine, Ontario Insurance Commission, Commissioner's Guideline No. 2/97, November 24, 1997 ("PUGS") discussed in more detail below, contain useful working definitions that distinguish between various types of therapy. According to these guidelines, "Work-hardening uses real or simulated activities to progressively improve the injured person's ability to return to work, in conjunction with physical conditioning tasks. Work hardening is highly structured, goal-oriented and individualized and provides a transition between acute care and return to work while addressing...productivity, safety, physical tolerances and work behaviours. A distinction can be made between clinic-based work hardening that simulates jobs, and employer based work hardening that facilitates work adjustment."
Published in the November 22, 1997 edition of The Ontario Gazette under s.268.3 of the Insurance Act, R.S.O. 1990, c.I.8, as amended. It applies to expenses incurred on or after November 22, 1997.
Carrie Adamson and Guarantee Company of North America (FSCO A97-002169, February 26, 1999)
In fact, documentary evidence filed indicates that the OKA has been unsuccessful in fee negotiations with the insurance industry, and that this has been a source of some bitterness and frustration. (Letter dated August 12, 1999 to Accident Benefits Analysis Unit, Financial Services Commission of Ontario, from Rod Hare, Certified Kinesiologist and Vice-President of External Affairs & Communication for the OKA, member of the OKA Automobile Insurance Sub-committee and author of the OKA Association 1997 Recommended Fee for Service Guidelines; letter dated July 28, 1998 to Allstate Insurance from Paul Fernandez, Certified Kinesiologist and President, Ontario Kinesiology Association, suggesting that the Insurer use its Bill 59 Committee to negotiate with the OKA for the "credible and consistent approach to invoicing that we both hope for." Both in Exhibit 4.)
Arbitrator Leitch's decision Suong Nguyen and Allstate Insurance Company of Canada (FSCO A97-001778, March 11, 1999), submitted by the Applicants.
Exhibit 13, Tab 5. The 1999 OKA Guidelines raised this fee to $120 (Exhibit 4, Tab 2, at p. 4).
As I did not hear sufficient evidence to allow me to make a finding that physiotherapists and kinesiologists provide equivalent services, I do not apply the physiotherapist’s hourly rate to kinesiologists.
I also assume that this is the rate billed by Ms. Vandyken's clinic and The CBI for the services of kinesiologists employed by them and paid a similar hourly wage to Ms. Bailey, as opposed to kinesiologists employed on a fee-for-service basis. If that is not the case, then the hourly fee of $80 may need to be adjusted accordingly.
In a letter dated May 26, 1998 addressed to the OKA, Brad Barber, a Casualty Claim Manager with Allstate, asked whether the hourly rate for kinesiologists suggested by the OKA Guideline applied on a "one-on-one" basis or whether it should be prorated where a kinesiologist supervised more than one patient in a session. The July 28, 1998 response received from Paul Fernandez, President of the OKA, was not very helpful: "Provided that they have fulfilled all of their professional responsibilities, they may charge for their service as they deem appropriate...At present, our recommended Fee for Service Guidelines does not preclude any Certified Kinesiologist from negotiating a particular fee for their service, outside of our guidelines with an Insurer." Exhibit 4, Tabs 5 & 6.
The records indicate that Mr. and Mrs. Amoa-Williams attended both the Sheppard-Leslie Chiropractic Centre and Target Rehabilitation on the same days up to and including Friday, March 7, 1997.
Another reasonable approach would be to adopt the practice that Ms. Vandyken testified is used by physiotherapists, which is to charge a flat fee per patient for group sessions, or divide the physiotherapist's hourly rate by the number of patients. However, there is no evidence that the Applicants were part of "group sessions" per se, so this approach is not helpful in this case.
In fact, one of the exert witnesses testified that, after a time, he allows patients to use the exercise equipment at no charge, because they do not require supervision.
These figures are taken from the invoices at Tab 11 of Exhibit 12 and include information provided by the Applicants from the invoices missing from the exhibit and relating to Mr. Amoa-Williams treatments for February 11-21, 1997.
Until February 27, 1997, at which point OHIP coverage expired and Allstate was billed the full fee of $46.27 for each visit.
The codes are those used in the 1997 OCA Recommended Fee Schedule.
The 1997 OCA Recommended Fee Schedule refers to these services as "physical therapy procedures;" Dr. Ahmad's clinical notes and records indicate the Applicants received one or more of the services listed here at each visit.
I understood Dr. Shahidi to testify that he included Interferential Current Therapy under his "STT" code in Clinic records; the OCA code is 2404, electrical stimulation.
OCA Recommended Fee Schedule and Service Codes, June 1997, Exhibit 4, Tab 3, p. 3
i.e. $30.35 billed to Allstate and $9.65 billed to OHIP