Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2001 ONFSCDRS 195

Appeal P00-00068

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ALLSTATE INSURANCE COMPANY OF CANADA

Appellant

and

JEANNETTE PUTTER

Respondent

Before:

Nancy Makepeace, Director’s Delegate

Counsel:

Mr. Ian D. Kirby (for Allstate)

Mr. Brian Sherman (for Jeannette Putter)

APPEAL ORDER

Under s.283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed and the arbitrator’s order, dated November 7, 2000, is confirmed.
The parties agreed that the matter of appeal expenses should be deferred. I may be approached if the parties are unable to agree.

December 21, 2001

Nancy Makepeace Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Allstate appeals from the arbitration order dated November 7, 2000. The arbitrator found that Mrs. Putter is entitled to rehabilitation expenses of $3,655.41, pursuant to s.15 of the SABS-1996,¹ relating to her assessment and treatment at Target Rehabilitation Centre (“Target”). For purposes of the appeal, Allstate does not dispute the arbitrator’s finding that Mrs. Putter was entitled to 68 treatment sessions at Target, or that $80 per hour is the appropriate fee for one-to-one kinesiology services. However, Allstate submits that the arbitrator erred in law in finding that Target provided “one to one” treatment, and asks that I reduce the fee payable to $50 per session. Allstate also disputes the arbitrator’s finding that Target’s assessments of Mrs. Putter were not recoverable from OHIP.

II. BACKGROUND

There is no dispute about the background facts, which are set out in the arbitration decision. Mrs. Putter suffered a fracture of her left ankle in a motor vehicle accident on March 25, 1998. She was eighty years old at the time. She had fractured her right arm and right hip in another motor vehicle accident two years earlier, necessitating two hip surgeries, including a total hip replacement in 1997. She had also had coronary artery bypass surgery in 1987. Despite these problems, Mrs. Putter was reasonably independent in her daily activities before the accident. She walked with a cane at home and used a walker outdoors. After the accident, her mobility was significantly reduced, and she required a walker to get around in her apartment. Round the clock attendant care was required for several months. Mrs. Putter’s age and pre-existing problems complicated her recovery from her ankle fracture.

Mrs. Putter was initially treated at Sunnybrook Hospital, and then by Dr. Noel A. Rosen, her family doctor. Although the arbitrator appears to have received no evidence about who initiated the referral, Dr. Rosen filled out and signed a Target form on June 2, 1998, stating that Mrs. Putter could begin a rehabilitation exercise program for her left ankle fracture. Mrs. Putter was assessed at Target by Dr. C.G. Morana on May 19, 1998. In his report to Dr. Rosen, Dr. Morana recommended an active exercise program including range of motion, stretching and strengthening exercises. Mrs. Putter attended at Target three times a week to do exercises and use a stationary bicyle. She also had hydrotherapy at Baycrest Geriatric Centre once a week.

Allstate denied Target’s treatment plan and gave notice that it required Mrs. Putter to be assessed at a Medical-Rehabilitation Designated Assessment Centre (“DAC”), pursuant to s.43 of the SABS-1996.

Mrs. Putter was reassessed by Dr. J. Teitel, another Target doctor, on July 24, 1998. He reported that she was feeling “a little better.” On his recommendation, she continued with her therapy program at Target.

The DAC assessment was performed by a neurosurgeon, physiotherapist and chiropractor in mid-August 1998, and the report was released on August 31, 1998. The consensus of opinion was that Target’s first treatment plan, which had already been completed, was “reasonable and necessary.”² Because of Mrs. Putter’s age and prior medical conditions, the assessors recommended an additional six weeks of supervised treatment three times a week, emphasizing strengthening and conditioning exercises and progressive weight-bearing, designed to allow her to return to her former level of mobility. They concluded that no further treatment at Target would be reasonable or necessary beyond the six weeks. They also recommended that Mrs. Putter should continue with her hydrotherapy and receive instructions for a home exercise program.

Mrs. Putter was discharged from Target at the end of December 1998. Dr. Teitel reported that she had plateaued in her recovery by that time.

Target invoiced Allstate directly. The clinic charged $450 for the initial and follow-up assessments by Dr. Morana and Dr. Teitel, $125 for each of four treatment plans, and $150 for each of 68 treatment sessions, for a total of $11,250 exclusive of interest. Allstate paid $2,300.47 of this amount on September 28, 1998.

At the arbitration hearing in July 2000, Allstate disputed whether Target’s treatment “was reasonable and necessary as to type, frequency and quantum of billing.”³ The arbitrator heard oral evidence from Mr. Brian Leila (the clinic’s manager), Ms. Vera Marinkovic (who treated Mrs. Putter), Ms. Tona Abrams (Mrs. Putter’s daughter) and Ms. Georgina Lebi (a physiotherapist who assessed Mrs. Putter as part of the Med-Rehab DAC assessment). The arbitrator rejected Allstate’s suggestion that Mrs. Putter did not need supervised treatment and could exercise at home, finding that Allstate “was not mindful that it was dealing with an eighty-year-old woman with a heart condition, a problem hip, and past fractures.”

The arbitrator found that the treatment offered by Target was consistent with the recommendations of the DAC. She concluded that it was reasonable for Mrs. Putter to continue treatment beyond the additional six weeks recommended by the DAC, in the hope that she would have further functional gains. On appeal, Allstate does not dispute that Mrs. Putter’s treatment at Target was a reasonable and necessary rehabilitation measure under s.15.

Turning to the question of Target’s fees, the arbitrator found that Mrs. Putter attended for one-hour sessions, where she was seen by Ms. Vera Marinkovic or a Target kinesiologist. Although Ms. Marinkovic is not a certified kinesiologist, the arbitrator accepted that her qualifications exceed those of a kinesiologist (Ms. Marinkovic qualified and practised as a doctor in Yugoslavia). The arbitrator also found that the kinesiology supervision provided by Target was suitable for Mrs. Putter. Allstate disputes none of these findings on appeal.

Although Target invoiced $150 per session, the arbitrator awarded only $80 per session. In reaching this conclusion, she considered the Commission’s Professional Fees Guideline - Physiotherapists, which provides that:

The range of fees provided by physiotherapists services is $95.00 per hour to $120.00 per hour for direct (one on one) treatment time (including administrative time such as report writing, treatment plan preparation, inter-professional and professional-insurer consultations)⁴

She also considered previous arbitration decisions dealing with therapy fees, including Amoa-Williams and Allstate Insurance Company of Canada,⁵ Adamson and Guarantee Company of North America,⁶ Suong Nguyen and Allstate Insurance Company of Canada,⁷ and Iravani-Fard and Zurich Insurance Company.⁸ Allstate relied on a letter from CBI Health stating it charges $80 per hour for one-on-one clinical care by a kinesiologist. This was also the hourly fee accepted by Arbitrator Sapin in Amoa-Williams, based on evidence she received about the market rate for kinesiology services. The arbitrator accepted that Target “is entitled to bill at the rate of $80 per hour, which appears to be the ‘market rate’ for kinesiologists, for each of Mrs. Putter’s 68 treatment sessions for a total of $5,440.”

In addition to the treatment costs, the arbitrator allowed $210 for Target’s assessments. Subsection 60(2) of the SABS-1996 says:

Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part VI is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.

The arbitrator found that OHIP could not be billed for the Target assessments, and therefore they were payable under s.15.

III. ANALYSIS AND FINDINGS

A. Target’s Fees for Kinesiology Services

The arbitrator accepted the evidence of Mrs. Putter, Ms. Abrams and Ms. Marinkovic that “Mrs. Putter spent about an hour per session at Target. The one-hour session consisted of warm up, rest, weight-bearing exercises with rest periods, time to get on and off the stationary bicycle, and leg exercises.” She also accepted evidence that “there may have been one or more patients being supervised in the gym at the same time [as Mrs. Putter].” This finding was not challenged on appeal. The arbitrator concluded with the following discussion:

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

In reaching this conclusion, the arbitrator also relied on the CBI letter, which says that the CBI’s hourly fee for kinesiology services is not divided by the number of patients actually seen at one time. However, the letter also states, “CBI patients are seen on a one-to-one basis at a rate of $20 per 15-minute units of time. The number of time units prescribed is dependent upon the individual needs of the patient and generally range from one to four 15-minute units of time.” The letter does not indicate how much the CBI charges for services other than “one-to-one” services. The arbitrator’s task was complicated by receiving little evidence about guidelines or practices in setting kinesiology fees.⁹

On appeal, Allstate submits that the arbitrator gave the phrase “one-on-one” a “tortured” interpretation. Allstate submits that the arbitrator erred in departing from the approach taken by Arbitrator Sapin in Amoa-Williams and Allstate. In that case, the arbitrator concluded that Target is entitled to charge $80 per hour for “direct one-to-one treatment time,” defined as “supervision of one patient at a time performing rehabilitation exercises designed by her for that patient, in consultation with treating health professionals,” and $20 for each part of an hour that is 15 minutes or less. For treatment other than one-to-one treatment, Arbitrator Sapin found the kinesiology fee must be divided by the number of patients treated. Where it was not practical to determine the number of patients present, she awarded a fee of $50 per hour:

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.¹⁰

Arbitrator Sapin’s approach has much to recommend it. It relieves the insured person from the need to provide detailed evidence about how much time she spent privately with a kinesiologist, how much time she spent exercising in a gym, and whether and for how long she was supervised. And it frees the treating clinic from the need to provide a minute-by-minute account of kinesiology services and gym attendance.

Although FSCO adjudicators are mandated to determine whether claimed rehabilitation expenses are “reasonable and necessary” under s.15(5) of the SABS-1996, there are certain risks in fixing recoverable professional fees in an adjudicative setting. A purely case-by-case approach may lead to inconsistent decisions from different adjudicators, which can create uncertainty for insured persons, insurers and treatment facilities. On the other hand, attempting to finally resolve systemic issues in a single “test case” involving only two parties may produce a result that is unfair or impractical in other situations. As the arbitrator stated in the decision below, “each case must be decided on the basis of its particular facts and circumstances.”¹¹ Arbitrators are not bound by previous arbitration decisions, although development of a coherent jurisprudence depends on adjudicators giving reasons for departing from previous decisions. In the absence of a negotiated or prescribed guideline, I find that the principles developed in Amoa-Williams and other FSCO decisions provide useful guidance to the parties.

In this case, the arbitrator did not follow the Amoa-Williams approach of awarding $50 per hour for kinesiology treatment involving an indeterminate number of patients. Although the arbitrator’s finding that Ms. Marinkovic provided “one-on-one care” is problematic, I am not satisfied it amounts to an error of law.

The ultimate issue before the arbitrator was whether the benefits claimed were “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,”¹² and whether the expenses were “reasonable and necessary.”¹³ The arbitrator’s conclusion turned on the facts of this case. Mrs. Putter’s ankle fracture was complicated by her age, frailty and pre-existing conditions. The arbitrator found that Mrs. Putter required more supervision and a longer period of treatment because of the severity of her impairment. These factual findings were the key factors in the arbitrator’s decision to allow an hourly fee of $80 per hour. I find that the evidence supports the arbitrator’s conclusion that Target’s fee of $80 an hour was a reasonable and necessary rehabilitation expense.

B. Is the Target Assessment Fee Recoverable from OHIP?

Mrs. Putter submits that the arbitrator’s finding that the Target assessments could not be billed to OHIP rests on a factual finding and does not raise a question of law. The arbitrator’s brief reasons suggest the parties gave this issue little attention:

Although Allstate claimed that assessment charges should have been billed to OHIP, Allstate did not present any contrary evidence to that of Mr. Leila who testified that he had been informed that OHIP distinguishes between assessments and treatments and will not reimburse for assessments. Allstate relied on the testimony of Dr. Hamilton Hall, an orthopaedic surgeon, who was a witness in the case of Amoa-Williams and Allstate Insurance Company of Canada¹⁴ that A ... it was in fact his practice to bill OHIP, and not the Insurer, when he examined patients in a treating capacity where he worked.” I accept Mr. Leila’s testimony that OHIP could not be billed for the assessments in question which could be distinguished from Dr. Hamilton Hall’s reference to billing OHIP for his work at CBI Health in a “treating” capacity.¹⁵

The arbitrator’s comments must be understood in the context of the issues in dispute. Allstate did not take the position that the assessment costs should have been claimed under s.24 of the SABS-1996, which provides for payment of the cost of certain assessments and reports, or as arbitration expenses under s.282(11) of the Act. The dispute was about coverage for assessments under s.15 of the SABS-1996 and the Health Insurance Act¹⁶ and regulations made under it.¹⁷

The SABS-OHIP interface has been considered in several cases about whether assessment fees are recoverable under s.24. Although arbitrators have received conflicting information about the scope of OHIP coverage, the decisions are consistent in holding that the cost of assessments obtained to advance a benefit claim are not recoverable from OHIP, but may be claimed from the insurer under s.24, if the entitlement criteria in that section are satisfied.¹⁸ The issue in this appeal is whether insurers are responsible for assessments conducted by a treating facility in the course of treatment.

Section 15 does not include any express provision for payment of examinations, assessments and reports, apart from vocational assessments.¹⁹ Nor is there any provision for these expenses in s.14, which deals with medical benefits. However, following the list of enumerated benefits in each section is found a “catch-all” provision — s.15(5)(l), “other goods and services that the insured person requires, except services provided by a case manager,” and s.14(2)(h), “other goods and services of a medical nature that the insured person requires.” Mrs. Putter claims that s.15(5)(l) applies to Target’s assessments and reports.

The catch-all provisions of ss.14 and 15 are similar to s.6(1)(f) of the SABS-1990,²⁰ which provided “other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident,” as well as the enumerated medical and rehabilitation benefits. Subsection 6(4) permitted an insurer to require a statement from the insured person’s health care practitioner stating that the claimed medical or rehabilitation expense is necessary for the insured person’s treatment or rehabilitation, but s.6 did not include any special provision for benefits relating to the cost of assessments and reports. Nevertheless, these claims were often allowed under s.6(1)(f), apart from medical-legal reports considered as arbitration expenses, and disability and other certificates required under s.23. Although a special entitlement for assessments and reports was introduced in s.57 of the SABS-1994, few decisions addressed the scope of that provision, and many parties continued to treat these claims as medical and rehabilitation benefits under ss.36(1)(h) and 40(5)(e) of that Schedule.²¹

Since the introduction of the SABS-1996, FSCO has had a number of opportunities to consider the scope of s.24 coverage for assessments obtained for the purpose of advancing a claim for accident benefits. Less attention has been given to whether the cost of assessments and reports obtained for treatment purposes are recoverable as medical and rehabilitation benefits.²² In my view, the plain words of ss.14 and 15 are broad enough to embrace assessments for planning and monitoring treatment. However, claims for medical and rehabilitation benefits are subject to the mandatory process set out in s.38 of the SABS-1996. The cost and complexity of that process suggest that the legislature intended assessment and report claims to be dealt with under s.24, along with treatment plans. An additional complication is that many reports serve both treatment and insurance purposes.²³ The application of s.24 was not an issue in the arbitration or in the appeal. In any event, I do not find it necessary to decide the point because if the expense is payable under OHIP, Allstate is relieved of the responsibility of paying it, whether it is properly claimed under s.15 or s.24.²⁴

The effect of s.60(2) of the SABS-1996 is that an insurer need not pay for any rehabilitation expense, or portion of an expense, that is reasonably available under OHIP or any other insurance plan or law. Mr. Sherman submits that Target’s assessment and report fees are not billable to OHIP for two reasons. First, he says that the service was provided by Target, not Drs. Morana or Teitel, and that Target cannot bill OHIP because it is “a private clinic.” As most physicians work in private or group practice, Mr. Sherman’s approach would allow a simple means of avoiding the billing restrictions of the OHIP schedule of benefits. I was offered no authority for this proposition and I do not accept it.

Mr. Sherman’s second submission is that OHIP only pays for treatment, not assessments. I do not accept this argument either. The Health Insurance Act and the regulations made under it do not exclude assessments from the definition of “insured services.”²⁵ In fact, the prescribed schedule of benefits expressly includes many types of assessments and consultations.²⁶ As Allstate’s counsel pointed out, Mrs. Putter’s OHIP records reflect numerous medical assessments that were paid for by OHIP since the accident.²⁷ Moreover, assessments are not excluded from OHIP coverage just because they are required as a result of a motor vehicle accident, although reports prepared in relation to a claim for insurance benefits are excluded.²⁸ Apart from such excluded services, OHIP remains the primary payer for accident-related treatment and assessments.

The arbitrator heard conflicting evidence about whether Target could bill OHIP for its assessment services, and she preferred the evidence of Mr. Leila that it could not. That finding was open to her, and I find no error of law in her conclusion. The arbitrator’s reasoning also made practical sense in the context of the issues before her. This was a case about treatment expenses under s.15 of the SABS-1996, and the disputed assessments were claimed as part of the package of services provided by Target. I am not persuaded the arbitrator erred in concluding that Allstate was responsible for paying those assessment costs. She allowed $515.88 for the treatment plans and assessment reports. This is a generous amount, but I find no error in her conclusion that the expenses were reasonable and necessary, “considering [Mrs. Putter’s] frailty and complicated past medical history.”²⁹

IV. EXPENSES

The parties agreed that the question of appeal expenses should be deferred pending my decision on the merits. I may be contacted if the parties are unable to agree.