Neutral Citation: 2001 ONFSCDRS 164

FSCO A97-001776

BETWEEN:

BLANKA SIMECKOVA

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Shari Novick

Heard:

July 30, 31 and August 24, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Brian Sherman for Ms. Simeckova

Ian D. Kirby for Allstate Insurance Company of Canada

The Applicant, Blanka Simeckova, was injured when she was struck by a motor vehicle as she was crossing the street on February 6, 1997. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹

She received chiropractic treatment at Sheppard-Leslie Chiropractic Clinic ("Sheppard-Leslie clinic") and active rehabilitation therapy at Target Rehabilitation Centre ("Target") from February 10, 1997 to May 1, 1997. The Insurer disputes the reasonableness of the treatment received, as well as the fees charged by both clinics.

The parties were unable to resolve their disputes through mediation, and Ms. Simeckova applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

This application was filed in October 1997 but was held in abeyance, pending the release of the decision in Amoa-Williams and Allstate Insurance Company of Canada² Although the facts of this case differ from those in Amoa-Williams, much of the parties' focus during the hearing was on the issues raised in that case, including the reasonableness of hourly rates charged for the services of a kinesiologist as well as the general billing practices of these clinics.

The issues in this hearing are:

Is Ms. Simeckova entitled to payment of chiropractic expenses incurred in the amount of $2,502.14 for treatment she received at Sheppard-Leslie Chiropractic Clinic?
Is Ms. Simeckova entitled to payment of rehabilitation expenses incurred in the amount of $6,400 for treatment she received at Sheppard-Leslie Chiropractic Clinic?

Ms. Simeckova is entitled to chiropractic expenses of $1,080.50 for the treatment she received at the Sheppard-Leslie Chiropractic Clinic.
Ms. Simeckova is entitled to rehabilitation expenses of $635 for the treatment she received at the Target clinic.

Background:

Blanka Simeckova was walking across Avenue Road on February 6, 1997 when she was struck by a car making a left turn through the intersection. The vehicle struck her left knee, and the impact resulted in a fracture of the tibia bone in her left leg, just below the knee. Her left elbow also struck and broke the car's windshield.

Despite being advised by the ambulance attendant who arrived at the scene of the accident that she should go to hospital, Ms. Simeckova felt that her injuries were not sufficiently serious and decided to go home. However, when the pain in her left knee increased overnight, she attended the emergency department at Sunnybrook Hospital the following day. X-rays were taken and the tibia fracture was confirmed. Her knee was put in a splint and she was provided with crutches. She was also referred to the fracture clinic at the hospital for follow-up.

Ms. Simeckova returned to Sunnybrook on February 8 and saw Dr. J. Schatzker at the fracture clinic. His note of this visit indicates that he advised her that she had sustained a "major intra-articular fracture" which could displace with disastrous results, and that she must not bear any weight on her knee.

Ms. Simeckova first attended the Sheppard-Leslie clinic on February 10, 1997 on the advice of a friend who worked in the building in which the clinic is located. She was seen by Dr. Roshan Ahmad, a chiropractor, and was referred by Dr. Ahmad to the Target clinic for active rehabilitation therapy. She was assessed by Dr. Gianni Maistrelli at Target on that same day. Dr. Maistrelli completed a Treatment Plan in which he recommended two months of "active physical rehabilitation," for five days each week.

Dr. Ahmad subsequently also submitted a Treatment Plan recommending chiropractic care and "soft tissue therapy, ultrasound and electrotherapy" for eight to ten weeks. She suggested that Ms. Simeckova attend for this treatment five times per week for the first two weeks, tapering off to three times per week thereafter.

Ms. Simeckova attended both clinics on a regular basis for approximately 12 weeks. She also attended the fracture clinic at Sunnybrook Hospital on five occasions during the months of February, March and April. Allstate has not paid any of the costs associated with the treatment she received at the clinics, other than the 15 sessions of chiropractic treatment it is required to pay under subsection 38(16) of the Schedule.

A medical/rehabilitation DAC assessment was conducted on April 8, 1997 at Columbia Assessment Centre, during which the Applicant was assessed by a chiropractor, an occupational therapist and a physiotherapist. Their report was released on April 18, 1997.

Ms. Simeckova completed her therapy by May 1, 1997, after which she left for Europe for the summer.

The Insurer specifically disputes the reasonableness of the treatment received by Ms. Simeckova at both clinics, given the injuries she suffered. Allstate also takes the position that the fees charged by Target for its treatment were excessive and unreasonable in the circumstances, and that the charges levied for assessments by Dr. Maistrelli were not reasonable. It does not dispute the rate charged for the chiropractic treatment provided by the Sheppard-Leslie clinic, but questions the reasonableness of various fees charged by that clinic for reassessments, the preparation of a disability certificate and the review of the DAC report and other medical reports.

Was the treatment provided to Ms. Simeckova reasonable?

General principles

Section 14 of the Schedule requires an insurer to pay a medical benefit for all reasonable and necessary expenses incurred for chiropractic and physiotherapy services as a result of an accident. Subsection 14(h) extends the obligation to pay for "other goods and services of a medical nature that the insured person requires." Section 15(2) obliges an insurer to pay a rehabilitation benefit for reasonable and necessary measures undertaken by an insured person to "reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market."

As stated by Arbitrator Sapin in the Amoa-Williams decision, whether or not the treatments in issue met these goals must be considered when determining whether the expenses incurred were reasonable. She also found that other factors to consider include whether the treatment complied with accepted professional protocols, whether they provided a benefit to the insured person and whether they helped relieve pain.

Finally, Arbitrator Sapin adopted the oft-cited definition of "reasonable" set out in the Plows and Jevco Insurance Company case,³ namely, "within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair." Arbitrator Sapin also stated that applying that definition in this context would mean that treatments with a frequency, duration and cost "not greatly more or less than might be expected" would meet the reasonableness test.

I agree with this approach. And, while the facts of this case differ significantly from those in Amoa-Williams, I find that it is appropriate to apply these general principles when considering whether the treatment in issue meets the reasonableness test.

Evidence

Ms. Simeckova was 25 years old at the time of the accident and was employed as a live-in nanny. She testified that it was a priority of hers to keep physically fit, and that physical activity has always been an important part of her life. She stated that she had decided to pursue therapy after fracturing her tibia because she wanted to maintain muscle strength in her leg. She explained that she felt that this would assist her in recovering quickly and hasten her return to work and to her normal daily activities.

Ms. Simeckova testified that on the days she attended for therapy, she went to the Sheppard-Leslie clinic first, and spent approximately 15 minutes with Dr. Ahmad, the chiropractor. She stated that Dr. Ahmad examined her knee and placed a cold pack over the affected area, and used ultrasound over the area at the same time. She explained that she would then go to the Target clinic, located downstairs in the adjacent plaza, where she exercised under the supervision of a kinesiologist, Allison Wallace. She estimated that she spent between 20 to 30 minutes at Target, during which Ms. Wallace oversaw her exercise routine that focussed on strengthening her leg muscles. She testified that none of the exercises required her to bear any weight on her knee.

Ms. Simeckova stated that there would usually be two or three other people exercising at the Target facility under Ms. Wallace's supervision when she was there, but that she received direct supervision from her for most of the time. When asked specifically what Ms. Wallace did during these sessions, she testified that she showed her exercises to do for both her knee and shoulder, which was sore after the accident, and that she supervised her while she did the knee exercises so that she would not hurt herself. She recalled that both the type of exercises she performed, as well as the number of repetitions per exercise increased slowly as time passed.

Ms. Simeckova stated that the pain and stiffness in her knee decreased after two weeks of treatment, as did the swelling. She also noticed that her range of motion improved. She testified that she found the treatment that she received at both clinics to be generally beneficial to her condition.

The "chart" kept at Target which recorded the exercises and number of repetitions performed by Ms. Simeckova, indicates that she performed exercises for her hip, ankle, shoulder and knee. When cross-examined about what exactly Ms. Wallace helped her to do, Ms. Simeckova explained that she helped her bend her knee when she sat on the floor to ensure that she would not bend it too far, and that she helped her lift her leg during another series of exercises. Ms. Simeckova conceded that she could have done the exercises for her hip, ankle and shoulder on her own after initially being shown what to do.

The Applicant also explained that the doctors she saw at the fracture clinic at Sunnybrook Hospital were aware that she was attending the clinics for treatment. She stated that she kept them informed about what she was doing, and that they wrote notes endorsing her therapy, setting out the restriction not to bear weight on her knee.

There are a few references to physiotherapy in the Sunnybrook fracture clinic records filed. On February 21, 1997, approximately ten days after Ms. Simeckova began her treatment at the clinics, one of the doctors made the following notation:

At this point she should have four weeks of physiotherapy which was prescribed at the previous visit. No weight bearing as yet.

On March 21, a month later, another note from the same doctor states that Ms. Simeckova should remain non-weightbearing for another four weeks. It also states -

In the meantime, she wants to go to physiotherapy for muscle strengthening. I wrote a note, specifically stating that she should not weight bear.

The note referred to is an outpatient referral form that indicates a referral to "physio." It also indicates that she could do "ROM exercises and muscle strengthening but not weight bearing for 4 weeks".

On April 18, 1997 a further note from a resident doctor at the fracture clinic notes that she has been attending physiotherapy. It states that the range of motion in her knee is excellent, that she has no tenderness and that the knee is "stable to varus/valgus stressing." It also records that Ms. Simeckova was advised that she could begin to bear some weight on her knee at that point, while still using crutches. There is a further referral note to "physio" on the same date, advising "may be 50 lbs. weight bearing - otherwise continue with present regime."

There is no reference in the Sunnybrook records to the chiropractic treatment Ms. Simeckova was receiving at the Sheppard-Leslie clinic or to "active rehab exercises." I note that Dr. Schatzker's initial note after he first saw the Applicant on February 8, 1997 refers to the fact that she did not comprehend the serious nature of her injury and that he spent "a great deal of time explaining to her that she has a major intra-articular fracture which could displace and result in a disaster, that she must stay off weightbearing and not take the cavalier attitude she has to the fracture." The latter part of his comment referred to the fact that Ms. Simeckova had apparently appeared with only one crutch at her first appearance at the fracture clinic, partially weight bearing.

Ms. Simeckova's treatment at the clinics ended in early May 1997. She explained that she was advised by her doctors at Sunnybrook around that time that she could fully weight bear. She also stated that she had decided to visit her family in Czechoslovakia and spend the summer in Europe. She testified that she did a lot of walking while there, and continued doing some exercises on her own. She stated that her injury was completely resolved approximately one month following the completion of her therapy at the clinics.

None of the doctors or therapists who were involved in Ms. Simeckova's treatment at the clinics testified at the hearing. The records from Target were filed into evidence. They indicate that Dr. Maistrelli, an orthopaedic surgeon, conducted an initial assessment of Ms. Simeckova on February 10, 1997 and reported to Dr. Shahidi, a chiropractor and the owner of the clinic, that she was unable to perform her normal duties of daily living and that he expected her to be off work for approximately 12 weeks.

Dr. Maistrelli advised that she would be "started on a gentle exercise program to strengthen her quads and preserve the range of motion of her hips and ankles. She also requires stretching type exercises for the left elbow to regain full extension." He advised that she would be reassessed in three weeks time. I note that the chart recording Ms. Simeckova's exercises do not refer to any elbow exercises. Dr. Maistrelli wrongly provided a diagnosis at that time of a fractured fibula, just below knee level.

A further report from Dr. Maistrelli to Dr. Shahidi in early March advises that he had received an x-ray report and note from Sunnybrook and that Ms. Simeckova had in fact sustained an undisplaced fracture of the left lateral tibial plateau. Dr. Maistrelli's note is confusing in that it states that rehabilitation treatment should be discontinued until repeat x-rays are taken, but then says "she is to continue with weight bearing exercises". All of the other evidence clearly indicates that Ms. Simeckova was prohibited from weight bearing at that stage. Further, the account from Target indicates that Ms. Simeckova attended three therapy sessions there prior to the date provided in the letter for further x-rays.

Two additional reports from Dr. Maistrelli are contained in the Target materials. They are brief and essentially record what the treating doctors at Sunnybrook had advised Ms. Simeckova.

Two other reports were relied on by the parties. A Job Site Analysis was conducted by an Occupational Therapist in late March 1997, at the request of Allstate's adjuster. While the focus of the assessment was Ms. Simeckova's duties as a nanny and was presumably undertaken in the context of her claim for income replacement benefits, the therapist's first recommendation was that she participate in a 4-6 week program of active strengthening exercises of her left knee, "under the supervision of a Physiotherapist or a Kinesiologist." The therapist opined that Ms. Simeckova would be able to return to work following this program.

Dr. Peter Welsh, an orthopaedic surgeon, conducted an Insurer's Examination on April 7, 1997. Again, the focus of the report appears to be on Ms. Simeckova's functional abilities and restrictions with regard to performing her job duties. Dr. Welsh does note, however, that she is receiving therapy at Target and attending for chiropractic treatments, and expresses the opinion that there "should not be requirement [sic] for more active treatment".

Several months later, after the mediation on this issue failed and the Applicant applied for arbitration, Dr. Welsh was specifically asked to provide an opinion on the appropriateness of the treatment received by Ms. Simeckova at the Target clinic. He reported that for an individual with the type of fracture that she sustained, the treatment received was "zealous, expensive and far in excess of that which one would normally as a treating orthopaedic surgeon have prescribed for a patient under similar circumstance." It was not evident what materials or documentation Dr. Welsh was provided with either prior to the assessment conducted in April 1997, or the additional opinion he provided in November 1997.

Ms. Simeckova attended a medical/rehabilitation DAC assessment on April 8, 1997 to determine whether the treatment she was receiving at the two clinics was reasonable and necessary. She was evaluated by a chiropractor, an occupational therapist and a physiotherapist. Ms. Simeckova was still on crutches at the time, under instructions not to bear weight on her left knee. The assessment summary contains the following passage -

It is further the opinion of all examiners that all therapies including chiropractic treatment and physiotherapy be discontinued at this time. There is some concern about the use of ultrasound over a fracture site and the apparent duplicity of treatment at her current clinic. We recommend Ms. Simeckova be instructed in strengthening exercises for the knee once she has been given the go ahead by her orthopaedic surgeon. This will require 3-4 instructional sessions provided by a physiotherapist over a two-week period. Ms. Simeckova can then continue with these exercises on an independent basis while she is in the Czech Republic.

The individual assessors also provided separate opinions in the body of the DAC report. The physiotherapist questioned the application of ultrasound to a fracture site as well as the necessity for the Applicant to undergo treatment with both a chiropractor and a physiotherapist for a knee injury. The chiropractor, Dr. Sandra O'Connor, stated that there was no indication that the therapy was of any benefit to Ms. Simeckova, and recommended that it be discontinued. She went on to state:

Ms. Simeckova should follow the advice of her orthopaedic surgeon when she attends for reassessment in two weeks. I recommend that she be provided with instruction on performing exercises to increase strength and muscle tone in the left knee following her orthopaedic assessment.

Dr. O'Connor also testified at the hearing. She stated that the type of fracture sustained by Ms. Simeckova usually heals on its own within six to twelve weeks, and that it is not usual for individuals with this injury to receive this type of treatment. She added that chiropractic treatments of the type received do not generally accelerate recovery. She allowed that ice therapy could be useful, but stated that that could be done by a patient at home.

Dr. O'Connor also provided the opinion that it was not appropriate to treat a fracture with ultrasound, in the acute phase. When cross-examined on this point, she conceded that there was no prohibition against using ultrasound over fracture sites in the practice guidelines established for chiropractors, although it was not the standard of practice to do so. She allowed that it might be used in the area around a fracture site if soft tissue injuries or swelling caused by haemorrhage are present.

Dr. O'Connor was questioned about the documents and medical records the DAC team had reviewed prior to providing their opinion. She testified that the assessors were not provided with any records from the Sunnybrook fracture clinic or any of Dr. Maistrelli's reports. They were also not provided with the therapy logs or any records from the clinics. Dr. O'Connor stated in her report that Dr. Schatzker, the Applicant's treating orthopaedic surgeon at Sunnybrook, "did not recommend that she attend for any therapy." In the opinion section of the report, she further states that Ms. Simeckova was "advised by her orthopaedic surgeon to stop rehabilitation several weeks ago." When questioned about these statements at the hearing, she stated that they were based on what Ms. Simeckova had told her at the assessment.

Dr. O'Connor was then shown the referrals to therapy from the Sunnybrook doctors and the references in their records to her attending therapy, and acknowledged that her statements in the report were incorrect. She responded that if Ms. Simeckova had received the go ahead from her treating orthopaedic surgeon, she would "have said yes to exercise." When asked what treatment would have been appropriate, she stated that in her view it was not necessary for Ms. Simeckova to attend daily sessions with a kinesiologist, but that range of motion exercises for pain control and the commencement of some strengthening exercises that did not require any weight bearing would have been appropriate. She added that these could have either been performed in a clinic setting or independently at home, after appropriate instruction was provided.

Rod Hare, a certified kinesiologist and owner of an assessment facility called Profile Evaluations, was called to testify on the Applicant's behalf. Mr. Hare was qualified as an expert who could provide opinion evidence in the areas of physical therapy and the fees charged by kinesiologists in Ontario. Mr. Hare testified generally about the usefulness of the type of therapy received by Ms. Simeckova in the healing stages of a fracture. He stated that the use of ice and controlled movement helps accelerate the healing process and minimizes secondary complications that may arise. He explained that exercising the affected area also helps reduce scar tissue, which causes stiffness and difficulty with movement. He also testified that ultrasound treatment could be effective to reduce inflammation within a joint.

Mr. Hare conceded that he had never spoken with Ms. Simeckova, or either Dr. Maistrelli or Allison Wallace at Target. He was also not aware of which strengthening exercises the Applicant had performed in the course of her treatment. In light of this, I find Mr. Hare's evidence to be of limited use in determining whether the treatment at Target was reasonable.

Finally, the Insurer requested in May 1999 that a file review be conducted by Canadian Utilization Review ("CUR") to provide an opinion on what treatment, if any, would have been reasonable in the circumstances of Ms. Simeckova's injury. They were also asked to address the duration, frequency and cost of any treatment found to be reasonable.

The review was carried out by Heather MacDonald, a Registered Physiotherapist and Paula Stern, identified as a Chiropractic Clinical Specialist. They note that Dr. Schatzker had made it clear that Ms. Simeckova needed reinforcement regarding her non-weight bearing status, and conclude as follows:

In a general sense, it is clear that Ms. Simeckova required education regarding the management of her injury, safe methods of reducing and controlling swelling/pain and maintaining joint range of motion and strength. Therefore, intervention for the above goals was reasonable and necessary from the time of Dr. Schatzker's recommendation (about week 2) until she achieved full weight bearing status, likely at the end of April.

The reviewers go on to provide the opinion that there was an overlap in the services provided, and that treatment should have been provided by either a physiotherapist or a chiropractor. They state that some of the treatment received, such as the application of ice, could have been done by the patient at home, and that the frequency with which she attended the clinics should have decreased over time. They opined that three attendances per week would have been reasonable during the initial two weeks of intervention, to reinforce Ms. Simeckova's weight bearing status and gait safety, establish safe performance of exercises and answer any questions she had. From that point forward, they opined that one attendance per week would have been reasonable to assist with the progression of exercises and weight bearing status in accordance with Dr. Schatzker's recommendations. The total number of sessions recommended was 14.

The reviewers also concluded that the modalities used by Dr. Ahmad for pain control in the acute phase of Ms. Simeckova's injury were reasonable. They stated that five attendances per week for two weeks was appropriate, and that the frequency of visits should have then decreased to three times per week for the following four weeks. They recommended a total of 22 chiropractic visits for this purpose.

Findings

On the basis of the evidence set out above, I am persuaded that it was reasonable for Ms. Simeckova to have obtained treatment to "reduce or eliminate the effects of disability...and to facilitate...reintegration into...the labour market", as set out in section 15 of the Schedule. I also find that her claim for a medical benefit under section 14 is reasonable. She was unequivocal in her testimony that the treatment at the clinics was helpful in reducing the pain and swelling in her knee and in assisting her to fully recover from her fracture. And, despite the fact that it may not be common for someone with this type of fracture to seek out treatment, none of the medical evidence tendered seriously questions the usefulness or appropriateness of performing exercises to maintain muscle strength around the fracture site or to receive treatments to control pain.

Further, it is evident that Ms. Simeckova's treating doctors at Sunnybrook Hospital were aware of and sanctioned her participation in therapy, despite the fact that there does not appear to have been any direct communication between them and Dr. Maistrelli or Dr. Ahmad.

I discount the DAC assessors' statement in their report questioning the usefulness of the treatment provided, given the fact that they had not been provided with the records from the fracture clinic. Their comments indicate that they were clearly of the view that Ms. Simeckova should follow the advice of her treating orthopaedic surgeons, and their records make various references to Ms. Simeckova attending for treatment. I note that Dr. O'Connor acknowledged in her evidence that her statements in the DAC report were incorrect as they were based on inaccurate information, and that after being shown the clinical notes from Sunnybrook she endorsed the idea of Ms. Simeckova receiving treatment.

In my view, nothing turns on the fact that her exercise program was supervised by a kinesiologist as opposed to a physiotherapist. I am satisfied that there is a degree of overlap between the services provided by a physiotherapist and a kinesiologist in the realm of active rehab therapy. Ms. Simeckova did not require the passive type of treatment often provided by physiotherapists, such as moving or manipulating joints. The focus of her short exercise program was the strengthening of certain muscles, and I find that it was appropriate for a kinesiologist to have supervised her in doing so.

Was the duration and frequency of the treatment reasonable?

Having determined that it was reasonable for Ms. Simeckova to have attended for treatment, I must now consider whether the period of time during which she attended the clinics and the frequency with which she received the treatments were reasonable.

Ms. Simeckova began her treatment at the clinics shortly after the accident, two days after her first attendance at the Sunnybrook fracture clinic. She attended regularly for approximately 12 weeks, until she left for Europe in early May. She was first permitted to partially bear weight on her knee on April 18, and while I was not provided with the discharge note from the fracture clinic at the hospital, the evidence suggests that she was permitted to bear full weight approximately two weeks later.

I find it was reasonable for her to have pursued treatment at Target over the 12 week period that she did. I note that the reviewers from CUR concluded that her attendance for active treatment until the end of April was reasonable, although they opined that the treatment should not have commenced until two weeks after the accident. This appears to be based on their belief that the doctors at Sunnybrook had first recommended that she attend for physiotherapy on February 21. I note, however, that the February 21 note prescribes four weeks of physiotherapy "which was prescribed at the previous visit." Her only previous visit to the fracture clinic there was on February 8, two days following the accident. Based on this, I conclude that her doctors were of the opinion that therapy would be beneficial to her from that early stage, and I find that it was therefore reasonable for her to have begun treatment when she did.

I have a different view regarding the duration of her chiropractic treatments. As the goal of this treatment was to reduce the pain associated with her fracture, the need would have been greater at the acute stage of her injury, when her knee was swollen. I note that the records kept of Ms. Simeckova's progress at the Sheppard-Leslie clinic confirm the CUR reviewers' opinion that fracture pain typically diminishes after approximately four weeks as swelling decreases. The reviewers concluded that six weeks of chiropractic treatment would have been reasonable. The treatment plan submitted by Dr. Ahmad states that eight to ten weeks of treatment would be required. Upon review of the chiropractor's notes I am persuaded that it was reasonable for Ms. Simeckova to pursue treatment at the Sheppard-Leslie clinic for seven weeks, until the end of March 1997.

The question then becomes what frequency of treatment was reasonable in the circumstances. I find that the frequency with which Ms. Simeckova attended treatments at each clinic was excessive. At the outset, she attended both clinics five times per week. After the first two weeks she reduced her attendances at Sheppard-Leslie clinic for chiropractic care to three times per week and continued attending at that frequency until early May. The materials filed from the Target file indicates that she attended five times per week for the first three weeks, did not attend at all for two weeks, and then attended either three or four times per week for the next six weeks. I am prepared to allow Ms. Simeckova five attendances per week over the course of the first two weeks, and three attendances per week for five more weeks at the Sheppard-Leslie clinic. This accords more or less with the opinion of the CUR reviewers, and amounts to 25 visits in total.

I also find the CUR reviewers' approach with regard to the frequency of her attendances at Target for active rehab therapy to be reasonable. They opined that she would have needed to attend three times per week initially to reinforce proper gait safety and the introduction and safe performance of exercises. After two weeks at that frequency, the reviewers were of the view that attendances once per week to assist with the progression of exercises would have sufficed.

It is clear from the fracture clinic notes cited above that Dr. Schatzker was concerned about Ms. Simeckova's level of compliance with medical advice, given that she had appeared at the fracture clinic initially without one of her crutches and partially weight bearing. In light of this, as well as the serious nature of her injury, I accept that she initially required more supervision than might usually be required in these circumstances. I find that attendances for three times per week for the first two weeks would have been reasonable.

Ms. Simeckova belonged to a fitness club and seemed by all accounts to be genuinely motivated to perform her muscle strengthening and range of motion exercises on a regular basis. For these reasons, I find that once-weekly attendances at Target for the following ten weeks of treatment would have been sufficient. Ms. Simeckova acknowledged that she could have done the ankle, hip and shoulder exercises on her own once shown how to do them, and Ms. Wallace's direct involvement in her exercise program was limited to lifting her leg during one set of knee exercises. As stated above, she did not attend at all for two weeks in early March and although it is not clear why that was, this should be taken into account in calculating the total number of attendances. I therefore find that 14 sessions of active rehab therapy at the Target clinic were reasonable.

What fees are reasonable for the treatment received at Target?

The evidence indicates that Target billed Allstate $150 for each session of active rehab therapy that Ms. Simeckova attended. Brian Leila, the manager of the Target clinic, testified that the clinic's billing practices were based on a "block billing" approach. He explained that a block fee of $150 per session was charged each time an insured person attended the clinic for therapy, and that this was meant not only to include the time spent with the kinesiologist, but also any time that the therapist might spend consulting with Dr. Maistrelli about the treatment, as well as the time it took to complete progress reports and any other paperwork involved.

Mr. Leila explained that this approach was based on the assumption that an appropriate hourly rate for the kinesiology services provided was $120, and that the average patient attended the clinic for between one and one-half hours. He stated that the underlying theory was that different patients have different treatment needs, which translate into different time requirements for therapy, and that the benefit of this approach is that the time required by each patient did not matter, as it would average out in the end. He expressed the view that the "theory of the no-fault system is that it all averages itself out."

Mr. Leila testified that Target's billing practice was commensurate with what other clinics offering similar services charged at the relevant time. He estimated that the fees charged in the Greater Toronto Area for active therapy in 1997 ranged from $75 to $170 per hour. He stated that the Canadian Back Institute, the largest employer of kinesiologists in Ontario at the relevant time, charged $80 per therapy session and charged additional fees for any other services provided.

Mr. Leila also explained that each patient at Target was initially assessed by Dr. Maistrelli, after which he or she could attend at any point during the day that was convenient. He stated that there are usually two or three patients exercising at the facility at any given point in time, and that if a patient needs personalised attention and the therapist is busy assisting someone else, they typically wait until she is free.

Ric Fleury also testified on the Applicant's behalf. Mr. Fleury is involved in the management of the Target clinic, although he did not begin working there until late 1997, approximately six months after Ms. Simeckova completed her treatment. Prior to joining Target, Mr. Fleury was a claims adjuster with State Farm Insurance Company for 27 years. He stated that in that capacity, he monitored the cost of therapy at various clinics, and was especially familiar with the billing practices of the Canadian Back Institute. He testified that the rates charged for active therapy treatment in 1997 varied from $80 to $170 per session, and confirmed that CBI charged $80 for a one-hour session. He stated that although there might be seven to ten patients attending for therapy at the same time under the supervision of one kinesiologist at CBI, each patient was charged $80 and the fee was not pro-rated.

I was also provided with a copy of the Ontario Kinesiologist Association ("OKA") 1997 Recommended Fee for Service Guidelines. This document specifies that the guidelines are based on surveys conducted by the association regarding fees charged by its members. It states that the association recommends that certified kinesiologists charge an hourly rate of between $95-$110 per hour for their services.

Rod Hare has been a member of the executive of the OKA and represented the association in discussions held with the insurance industry about professional fees after the advent of Bill 59. He testified that he assisted in compiling the fee guidelines. He acknowledged that the range of fees set out in the guidelines represents fees recommended by the association, and that they have not been agreed to by the insurance industry or approved by the Financial Services Commission of Ontario in the manner in which the physiotherapy guidelines have been.⁴

Mr. Hare noted that the OKA fee guidelines refer to the possibility of billing in 15-minute increments. He acknowledged that if Ms. Simeckova's exercises took only 15 minutes to complete, it would be appropriate for the clinic to have charged $27.50 per visit ($110 divided by 4).

While I appreciate that there are efficiencies involved in a clinic pursuing a "block billing" approach, and that there may be some merit to Mr. Leila's speculation that things "average out over time," I must consider whether or not the fees charged for the services rendered by Target to Ms. Simeckova in this case were reasonable. I have no hesitation in finding that a charge of $150 for a 20 to 30-minute session of active rehab therapy is not reasonable.

The evidence disclosed that Ms. Wallace, the therapist supervising the treatment in question, had 14 months of experience working as a certified kinesiologist at the relevant time, and earned $13 an hour. She also supervised an average of two or three patients at the same time. I am also mindful of the fact that the OKA fee guideline is a unilateral publication of that organisation, and as such, is a less reliable indicator of a reasonable professional fee.

In my view, a reasonable rate for the services provided by Target is $80 per hour. That is the rate charged by the Canadian Back Institute, the largest employer of kinesiologists in Ontario in 1997, and has been accepted by arbitrators as a reasonable rate for comparable services in other cases.⁵ Arbitrator Sapin found in Amoa-Williams that the CBI divided its hourly rate by the number of patients under the supervision of one therapist, based on the uncontradicted testimony of a kinesiologist that testified at that hearing. That decision was not appealed. However, the evidence I heard on this issue was inconsistent with that finding, and I accordingly do not find that the hourly rate of $80 should be pro-rated or divided by the number of other patients present while Ms. Simeckova was exercising at the clinic.

I do find, however, that the hourly rate should be divided in half to reflect the fact that the duration of Ms. Simeckova's sessions was between 20 to 30 minutes. Accordingly, I find that a reasonable fee for each of her attendances at the Target clinic is $40.

The evidence indicates that a block fee of $550 was charged by Target for Dr. Maistrelli's role in the process. I was advised that this was meant to include an initial and all follow-up consultations, and the writing of reports and treatment plans. I do not find this fee to be reasonable. Ms. Simeckova's progress was closely monitored by her treating orthopaedic doctors at the Sunnybrook fracture clinic. They assessed her condition and the state of her fracture on a regular basis over the relevant period, and I find that it was accordingly not necessary for another orthopaedic surgeon to be involved. I also note that Dr. Maistrelli's reports essentially record what Ms. Simeckova advised him she had been told by her Sunnybrook doctors.

I am prepared to allow a charge of $75 to the clinic for Dr. Maistrelli's preparation of a treatment plan.

Were the charges for miscellaneous items by the Sheppard-Leslie clinic reasonable?

The Insurer disputed the following charges levied by the Sheppard-Leslie clinic:

$125 for preparation of treatment plan
$250 for review of DAC report
$315 for 7 reassessments conducted by Dr. Ahmad
$450 for 6 reviews of medical reports

I did not hear much evidence in support of the charges set out above. The Insurer submitted that Dr. Ahmad's treatment plan was identical to that completed by Dr. Maistrelli and should not attract a separate fee. I have reviewed both documents and am not persuaded that it is identical. I award the usual rate of $75 for the preparation of the treatment plan.

I am not prepared to allow the charge of $250 for Dr. Ahmad's review of the DAC report. There is no indication in the material filed that any aspect of the report was discussed with either Ms. Wallace or the Applicant, or that her treatment changed as a result of its review.

I find that it was excessive for seven reassessments to have been conducted by Dr. Ahmad over the course of Ms. Simeckova's chiropractic treatment. On the basis of Dr. Ahmad's progress notes I am prepared to allow a charge of $45 for the reassessment conducted on February 24 and another $45 for the one conducted on March 10, for a total of $90.

Finally, I find that it was not reasonable for the clinic to charge an additional $450 for the review of six medical reports by Dr. Ahmad. Again, I heard no direct evidence in support of this aspect of the claim. I presume that this relates to the Sunnybrook fracture clinic notes and to Dr. Maistrelli's reports, all of which are very brief and did not impact materially on the treatment provided by Dr. Ahmad.

Conclusion:

In summary, I find that Target is entitled to the following amounts:

14 sessions @ $40 per session

$560.00

Prep treatment plan (Dr. Maistrelli)

75.00

$635.00

I find that the Sheppard-Leslie clinic is entitled to the following amounts:

25 sessions @ $36.62 per session

$915.50

Prep treatment plan (Dr. Ahmad)

75.00

Reassessment charges

90.00

$1,080.50

Interest:

The Applicant's representative submitted that if I determined that any of the amounts claimed were reasonable, interest would run on the outstanding amounts from the date they first became owing. Counsel for the Insurer disagreed, claiming that interest on any amounts found to be owing would only be payable from the date of the decision, given the DAC assessors' finding that the treatment was not reasonable.

For the reasons I expressed in the supplementary decision in Khaledi and Allstate Insurance Company of Canada,⁶ I agree with the Applicant on this point. This decision had not yet been issued when the parties made their submissions in this case. Briefly, I found that in view of the remedial nature of the interest provisions, if an amount incurred for treatment is ultimately determined to be reasonable by an arbitrator, it is implict that it was reasonable all along. I made this finding despite the reference in subsection 38(14)(b) of the Schedule that an insurer is not required to pay a treatment expense if a DAC report assessing that expense provides an opinion that it is not reasonable and necessary.

Consequently, I find that the Applicant is entitled to interest on the benefits found to be owing, at the rate prescribed in the Schedule, from the date they first became owing. I leave it to the parties to calculate the exact amount of interest owing, in accordance with my findings above.

EXPENSES:

If the parties are unable to agree on expenses, they may contact the Commission within 30 days and a hearing on the issue will be arranged.

November 16, 2001

Shari L. Novick Arbitrator

Date