Sudah Sivanesan v. CIBC Insurance, 2001 ONFSCDRS 2

Neutral Citation: 2001 ONFSCDRS 2

FSCO A99-000872

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUDAH SIVANESAN

Applicant

and

CIBC INSURANCE

Insurer

REASONS FOR DECISION

Before: Tanja Wacyk

Heard: October 11, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Altor Shields for Ms. Sivanesan Hans Engell for CTBC Insurance

Issues:

The Applicant, Sudah Sivanesan, was injured in a motor vehicle accident on November 30, 1998. She applied for and received statutory accident benefits from CIBC Insurance ("CTBC"), payable under the Schedule¹ Claims for payment of four medical assessments and reports were refused by the Insurer. The parties were unable to resolve their dispute through mediation, and Ms. Sivanesan 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:

1. Is Ms. Sivanesan entitled to payment for the cost of the assessments and reports provided by Dr. Wong, Dr. Ogilvie-Harris, Dr. Lau, and Horizon Healthcare, pursuant to section 24 of the 1996 Schedule?

2. Is Ms. Sivanesan entitled to a special award pursuant to subsection 282(10) of the Insurance Act because CIBC unreasonably withheld or delayed payments to her?

3. Is either party entitled to its expenses of the arbitration pursuant to section 282 (11) of the Insurance Act?

4. Is Ms. Sivanesan entitled to interest on any amounts owing?

Result:

1. Ms. Sivanesan is entitled to payment for the cost of the assessments and reports provided by Dr. Wong ($1,284), Dr. Ogilvie-Harris ($1,284), Dr. Lau ($1,250), and Horizon Healthcare ($2,366.50), plus interest.

2. Ms. Sivanesan is entitled to a special award of 25 percent of the $916.50 she is owed for the Home Assessment/Report and Job Site Analysis/Report, conducted by Horizon Healthcare, calculated from September 4, 2000.

3. Ms. Sivanesan is entitled to her reasonable expenses of the Arbitration.

EVIDENCE AND ANALYSIS:

(i) Background

The parties called no witnesses and made oral argument only. However, the documents filed reveal the following.

Ms. Sivanesan was involved in a motor vehicle accident on November 30, 1998. Her family physician at the time, Dr. L. Ingber, issued a Disability Certificate in early December, 1998, indicating that Ms. Sivanesan suffered from whiplash injuries to the cervical spine, lumbar spine, soft tissue injuries, skull, sternum and chest wall, and soft tissue strain to her right leg and right forearm.

A treatment plan prepared by Dr. H. Waiser, psychologist, Metro Orthopaedic Rehab Clinics, on December 28, 1999, described Ms. Sivanesan's impairment as:

1. Adjustment Disorder with Mixed Anxiety & Depressed Mood

2. Pain Disorder

3. Headaches.

The treatment plan recommended 13 weekly sessions of individual psychotherapy, pain management, stress reduction and desensitization.

A subsequent Disability Certificate was completed on February 12, 1999, by Dr. A. Donskoy, Ms. Sivanesan's new family physician. He indicated that Ms. Sivanesan continued to suffer an impairment which prevents her from carrying on substantially all her normal pre-accident activities as well as pre-accident care giving activities.

In March 1999, Ms. Sivanesan underwent a multi disciplinary Medical Rehabilitation DAC Assessment ("Med/Rehab DAC") at the Accident Injury Management Clinic ("AIM Clinic"), which included an assessment by Dr. Bushuk, an orthopaedic surgeon, and a psychological assessment by Dr. Bauer, a neuropsychologist.

Dr. Bushuk's view was that the accident Ms. Sivanesan had experienced was "minor," and that she had sustained "extremely minor soft tissue injuries". He concluded:²

There are no medical indications that [Ms. Sivanesan] requires any physiotherapy, chiropractor treatment, massage therapy, acupuncture or water therapy. She should carry on with her own self-directed exercise programme. Continuing to provide any musculoskeletal rehabilitation would do nothing more than propagate her whole symptom complex and her perceived level of disability at this point in time.

Dr. Bauer found that Ms. Sivanesan's symptoms were "consistent with the diagnosis of post-traumatic stress disorder, which have generalized to situations quite unlike those of the original accident scenario". She recommended that Ms. Sivanesan begin cognitive behavioural psychotherapy for her depression and anxiety, as well as systemic desensitization therapy.

Ms. Sivanesan also underwent an Insurer's Medical Examination at Health Recovery Clinic, in March 1999. This examination was conducted by Dr. English, an orthopaedic surgeon, and Dr. Koepfler, a psychologist, as a team. They found that Ms. Sivanesan presented with a significant psychological impairment that resulted in a temporary disability from resuming her pre-accident work as a bank clerk.³

In late April 1999, Dr. Waiser submitted a new treatment plan recommending 17 weekly sessions of "Individual cognitive behavioural therapy".

Ms. Sivanesan was then referred to Horizon Healthcare by Dr. Donskoy, her family physician. The referral was for a Functional Capacity Evaluation ("FCE"), a Home Assessment, a Work Site Assessment, and a Psychological Assessment. Dr. Donskoy indicated the assessments were required in developing a treatment plan.⁴ The assessments took place on March 25, April 16, and April 23, 1999 and resulted in a range of recommendations. These included strength training, and work conditioning programs, an active therapy program, and the use of assistive devices such as long-handled cleaning tools.

On May 5, 1999, Dr. Donskoy issued another treatment plan for Ms. Sivanesan. It was comprised of occupational therapy-related goods and services.

In May 1999, Ms. Sivanesan was assessed by Dr. S.W. Joseph Wong, a physiatrist, and Dr. D.J. Ogilvie-Harris, an orthopaedic surgeon.

Dr. Wong agreed with Dr. English's findings that Ms. Sivanesan had a soft tissue injury⁵, and with Dr. Koepfler's diagnosis of adjustment disorder and depression problems.⁶

Dr. Wong disagreed, however, with the finding of Dr. Bushuk that Ms. Sivanesan's injuries were minor. Dr. Wong found that Ms. Sivanesan had significant soft tissue injury involving her thoracic and lumbar spine, which has spread to her upper extremities, as well as significant damage to her cervical spine.

Dr. Ogilvie-Harris found there was objective evidence of significant residual pathology as a result of Ms. Sivanesan's injuries. He indicated she had positive Waddell's signs which carry a poor prognosis for recovery and the characteristic features of fibromyalgia. Dr. Ogilvie-Harris' opinion was that Ms. Sivanesan could not return to her pre-accident employment and recommended a comprehensive rehabilitation program.

Ms. Sivanesan was assessed by Dr. Godwin K. Lau, a psychologist, on June 4, 1999. Dr. Lau determined that Ms. Sivanesan was experiencing Chronic Post Traumatic Stress Disorder, Chronic Adjustment Disorder with Depression and Anxiety Features, Chronic Pain Disorder with both psychological factors, and a general medical condition. It was Dr. Lau's conclusion that, given her high level of emotional distress and physical pain, Ms. Sivanesan was not capable of returning to her pre-accident employment as a tracing officer at the CIBC.

Dr. Lau also indicated it was too early to determine whether Ms. Sivanesan requires future vocational retraining — and that that would be determined by her progress.

It is the payment of the assessments of Dr. Wong, Dr. Ogilvie-Harris and Dr. Lau, as well as the one conducted by Horizon Healthcare, referred to above, that are at issue.

It was CIBC's position that the reports were either deficient, or a duplication of the assessments it had already had conducted. CIBC also argued that some of the reports were essentially medical-legal reports. Consequently, CIBC argued that it was not required to pay for the assessments.

The Statutory Context

Section 24 of the Schedule provides in part:

(1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including:

(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan,

(b) fees charged by a designated assessment centre; and

(c) transportation expenses incurred in transporting the insured person to and from an examination or assessment, including transportation expenses for an aid or attendant.

Preliminary Issue:

Although not identified as a preliminary issue per se, an issue arose with regard to whether CIBC was limited in the reasons it could rely upon for the denial of benefits.

In its initial denial of the claim for payment of the Horizon Healthcare assessments,⁷ CIBC took the position that the FCE performed by Horizon Healthcare was not reasonable, as Ms. Sivanesan was already undergoing the Med/Rehab DAC.

CIBC also stated that the assessments were not obtained for the purpose of the Regulation, as the reports were "not required by the insurer, or part of a Designated Assessment Evaluation or the completion of a Treatment Plan."

CIBC maintained this latter position in its Response to the Application for Arbitration, dated October 7, 1999,⁸ regarding payment of all the contested assessments and stated "[m]edical reports not for purpose of Regulation as not for certification, report or treatment plan as required by insurer."

However, as explained below, this position was not pursued by CIBC at the hearing The Applicant, relying on section 45 of the Schedule, took the position that the above was the only reason for denial that could be considered in this hearing, as CIBC was required by that section to provide Ms. Sivanesan with an explanation of how her benefit was determined — and that was the explanation she had been given.

Section 45 is titled "Explanation of Benefit Amounts" and states as follows:

45. When a benefit is first paid or the amount of the benefit is subsequently changed, the insurer shall provide the insured person with a written explanation of how the amount of the benefit was determined.

However, section 41 of the Schedule states:

41(1) If a person is entitled to a death benefit, a funeral benefit or a benefit under Part VI, the insurer shall pay the benefit within 30 days after the insurer receives the application for the benefit.

(2) If the insurer refuses to pay a benefit referred to in subsection (1), the insurer shall give the person notice of the reasons for the refusal within 30 days after the insurer receives the application for benefits. [emphasis added]

Cost of examinations pursuant to section 24 constitute a benefit under Part VI, and the Insurer has refused to pay the benefit. Consequently, I am of the view that while the principle is the same, subsection 41(2) is the more applicable section.

CIBC explained its abandonment of its earlier reason by pointing out that the law had been clarified in the recent decision of Director's Delegate McMahon in Tsimidis and Liberty Mutual Insurance Company⁹ in which he had addressed a similar argument as follows at pages 10-11:

Some of the expenses contemplated by s. 24 relate to reports requested by the Insurer such as certificates and treatment plans, but many of the assessments will be requested by the insured person or his advisors. In a case such as this one where the report was prepared at the request of a family doctor to assist him in the management of his patient, the question of its reasonableness does not turn on whether or not it is useful or even comprehensible to the insurer. Provided that it was appropriate for the family doctor to order the report, and the expenses associated with the report are reasonable, the insurer is bound to pay the fee irrespective of its usefulness to the insurer.

The Insurer took the position that it should now be entitled to rely on new reasons for the denial of the claims.

The Insurer pointed out that its initial denial predated the Tsimidis decision, and that that case had been the first to consider a s.24 assessment expense.

CIBC also pointed out that in Tsimidis, the Insurer had initially also denied the benefit on the ground that it had not requested the assessment — but at arbitration was able to rely on grounds which it had not previously been articulated.

Finding and Analysis:

I am not unsympathetic to Ms. Sivanesan's argument.

Subsection 41 of the Schedule requires insurers to give explanations for their denial of benefits. This enables insured persons to consider the reasons for the denial, and either acquiesce to or challenge the denial. Without reliable reasons, insured persons are placed at a disadvantage, as they have no other means of determining how to respond. As is the case here, the reasons become "a moving target".

That having been said, I do not find the language of section 41 (or section 45) can be interpreted to include a limitation such as the one advanced by the Applicant. The result would arguably be somewhat onerous — particularly as insurers have only 30 days to respond. In my view, in order to find it had been the legislative intent to limit insurer's reasons for denial of benefits to those they gave at "first blush" of assessing the claim, the language would have to more clearly express that intent.

Rather, given the time line of 30 days for a response, the legislative intent appears to have been to encourage insurers to respond to claims quickly, rather than delay by crafting all possible arguments in the event the matter proceeds to arbitration.

Consequently, I find insurers are not precluded by section 41 from expanding the reasons claims ought to be denied, once the denial becomes a dispute.

Before I deal with CIBC's challenge of each of the reports individually, there are two issues which can be dealt with generically at the outset. They are addressed below.

Medical-Legal Reports

CIBC pointed out that the reports of Dr. Ogilvie-Harris, Dr. Wong, and Dr. Lau were addressed to the firm representing the Applicant. Consequently, the Insurer argued that they did not come within section 24 as they had the "character of a medical/legal report". CIBC also argued that these reports could have been billed to OHIP had they not been directed to the office of Ms. Sivanesan's counsel, and had they not dealt with her ability to return to work and "the other issues".

However, Arbitrator Joachim established a useful distinction between assessments which fall within section 24, and medical-legal reports, when she wrote:

There is a difference between arbitration expenses¹⁰ and medical benefits. Medical assessments and reports commissioned and prepared after the commencement of the arbitration, for the primary purpose of proving the claims in dispute in the arbitration, are generally payable as arbitration disbursements. Assessments, treatments, and reports directed at ameliorating the effects of the injuries sustained in the accident are generally payable only as medical benefits... Claims for medical benefits ... must be made directly to [the Insurer] and, if disputed, must be processed in accordance with the dispute resolution process.¹¹

The assessments at issue all took place between March 25 and June 4, 1999. The Application for Arbitration was dated September 9, 1999 and received September 14, 1999. Consequently, I find the assessments cannot be characterized as medical/legal reports, payable only as disbursements.

Ms. Sivanesan is entitled to her own reasonable assessments. The fact that they were requested with a view to making a claim, or in the course of or in anticipation of a dispute with regard to entitlement, does not take them outside of section 24. Nor does the fact the reports may be useful in other contexts, such as a tort action.¹² The critical issues are whether the expenses are reasonable, and the examinations or assessments were undertaken for the purpose of this Regulation" as required by section 24.

These questions are dealt with below.

Were the Examinations or Assessments Conducted "for the purpose of this Regulation"?

The purpose of an examination or assessment can be found in the report itself.¹³An examination of each of the reports at issue shows that they dealt with matters addressed in the Regulation, such as the degree of disability experienced by Ms. Sivanesan, its cause, and/or her need for treatment, rehabilitation, or other benefits. Consequently, I find that the reports were undertaken for the purpose of the Regulation, as required by section 24.

The Test for Determining if the Expenses Incurred were Reasonable

CIBC maintained that the decision in Tsimidis stands for the principle that the "reasonableness" of a report or assessment is determined by whether it was reasonable at the time it was requested — rather than in hindsight.

This was not contested by Ms. Sivanesan.

In Tsimidis, Director's Delegate McMahon stated at page 8:

The arbitrator should be primarily concerned with the process. The correctness of the opinion is principally important to the extent that it sheds light on whether sufficient time, care, and expertise, went into the conduct of the assessment and preparation of the report.

And at page 12:

The appropriate question is; did the report contain sufficient information to make it useful to [the referring physician]?

Director's Delegate McMahon also embraced the approach of Director's Delegate Naylor in Salvaggio and Simcoe & Erie General Insurance Company and Wellington Insurance Company.¹⁴ In that decision, Director's Delegate Naylor reversed the arbitrator's award and ordered the insurer to pay the full amount of the psychologist's account, noting that the arbitrator "may have been overly influenced by his view of the value of the end-result, without giving sufficient consideration to whether the assessment was a reasonable measure in the circumstances at the time it was arranged." [emphasis added]

Delegate McMahon went on to state that Delegate Naylor's reference to value in the sense of the end-result" is synonymous with his reference to value in the sense of its ultimate usefulness in assessing the applicant's condition.

With a view to the above approach, I will now examine each of the reports.

Dr. Wong's Assessment and Report

Dr. Wong is a physiatrist.

CIBC argued that Dr. Wong's report was an unnecessary duplication as he concurs with Dr. English's findings that Ms. Sivanesan had a soft tissue injury,¹⁵ and Dr. Koepfler's diagnosis of adjustment disorder and depression problems.¹⁶

CIBC did concede that Dr. Wong disagreed with Dr. Bushuk's view that Ms. Sivanesan had minor soft tissue injures and that the accident had been very minor.

CIBC also argued that Ms. Sivanesan could have relied on Dr. English's report for ongoing benefits, and did not require an assessment by a physiatrist.

However, as noted earlier, the assessment by Dr. English was conducted jointly with Dr. Koepfler. The summary of their examinations states that:¹⁷

Together the assessment team concluded that Ms. Sivanesan does present with a significant psychological impairment that is interfering with her perception of her physical complaints and her ability to function at pre-accident levels. This impairment does result in a temporary disability from resuming her pre-accident work as a bank teller.

Dr. Koepfler's individual recommendation was that Ms. Sivanesan receive various types of therapies for a period of eight weeks, and opines that "[f]ollowing this intervention, I anticipate that Ms. Sivanesan would be capable of resuming her work as a tracing clerk."

I accept Ms. Sivanesan's position that it was possible that CIBC would have relied on that advice to terminate her benefits following the eight weeks. Dr. Koepfler's report was issued in late March 1999. She was seen by Dr. Wong on May 22, 1999 — approximately eight weeks later. I find it was reasonable for Ms. Sivanesan to see a physiatrist at that point in time, to be reassessed regarding her ability to return to work.

Dr. Wong notes in his report that Ms. Sivanesan had reported two episodes of depression in the past — approximately 6 years prior to the assessment following the loss of her job, and then 4 years prior to the assessment, when she had her second baby, and was advised that she had hypothyroidism. However, she reported that no interventions were required, and that she was totally asymptomatic prior to the accident.

CIBC pointed out that Ms. Sivanesan had denied these prior bouts of depression during her DAC assessment. CIBC argued that Dr. Wong should have commented on Ms. Sivanesan's pre-accident depression as well as the symptom magnification referred to in the DAC report, as the appropriate treatment may be different if the cause of the depression is not solely the accident.

However, in my view, there is no reason to conclude that Dr. Wong, having noted the previous episodes, did not consider them when reaching his conclusions. However, I am not convinced that it would have been appropriate for him to comment further in that regard, as he is a physiatrist rather than a psychologist. Nor am I convinced that his failure to do so renders his report unreasonable in the context of section 24.

I find Dr. Wong's report reasonable in the context of section 24, and that it should be paid for by CIBC.

Dr. Ogilvie-Harris' Assessment and Report

Dr. Ogilvie-Harris is an orthopaedic surgeon.

In challenging Dr. Ogilvie-Harris' report¹⁸ CIBC indicated that it was not asking that I determine what should be in the report, but rather that I draw a negative inference from what was absent.

CIBC pointed out that no referral letter was produced for this report — although it was unclear what conclusion was to be drawn from this.

If the suggestion was that the absence of a referral letter creates confusion with regard to the purpose of the assessment and whether it is for the purpose of this Regulation, then, as indicated above, the purposes can be gleaned from the report itself. In this instance, the report addressed Ms. Sivanesan's post-accident condition, her abilities, and need for treatment and rehabilitation. Consequently, it is clear that the assessment was conducted "for the purpose of this Regulation" as required by section 24.

CIBC pointed out that although Dr. Ogilvie-Harris is an orthopaedic surgeon, who examined Ms. Sivanesan for an "orthopaedic consultation", he made only two references to x-rays. These simply noted that x-rays had been taken following the accident and then at a later stage.¹⁹ CIBC maintained that given Dr. Ogilvie-Harris' specialization, he should have seen the x-rays prior to rendering an opinion.

However, it is possible that the x-rays were included in Dr. Ingber's records, which Dr. Ogilvie-Harris indicates he reviewed.²⁰ In any event, as pointed out by counsel for Ms. Sivanesan, the injuries which were at issue at the time were soft-tissue injuries, compounded by psychological and emotional difficulties — with regard to which x-rays would have been of little if any assistance.

Counsel for Ms. Sivanesan also pointed out that as Dr. Ogilvie-Harris' offices were in the Toronto Western Hospital, where the x-rays were stored, he could easily have ordered them if he felt they would be of assistance.

CIBC also took issue with the fact that Dr. Ogilvie-Harris made only one reference to medication taken by Ms. Sivanesan. He states simply that she is "depressed and emotionally labile" and "is on medications for this". The Insurer asked that this be contrasted with the reports of Dr.Wong and Horizon Healthcare — which both expressly identified medication Ms. Sivanesan was taking.

However, it is not clear that having noted that Ms. Sivanesan is on medication for her psychological/emotional difficulties, anything would have been added by listing the specific medications. In my view, failure to do so does not significantly detract from the report — particularly since this is not Dr. Ogilvie-Harris' area of expertise.

CIBC also pointed out that Dr. Ogilvie-Harris' assessment of Ms. Sivanesan's range of motion on May 26, 1999²¹differed from that assessed by Dr. English in his report, dated March 25, 1999,²² and Dr. Donskoy in his examination on May 7, 1999.²³

Similarly, Dr. Ogilvie-Harris' findings regarding Ms. Sivanesan's flexion and extension of her cervical spine differed from that of Dr. Wong on May 22, 1999,²⁴and Horizon Healthcare in March 1999.²⁵

There were similar differences in other measures of range of motion, such as that in the lumber spine. CIBC argued that the failure to address these differences in Dr. Ogilvie-Harris' report was important, as range of motion impacts on Ms. Sivanesan's other abilities.

However, I do not find that failure to comment on the discrepancies in the range of motion assessed by various physicians on different days to be a significant deficiency. Range of motion in individuals can be affected by a number of different factors, including the amount of rest or activity they have had and how they are feeling psychologically. In my view, the absence of comment on these discrepancies cannot be said to diminish the report so as to render it unreasonable. Rather, Dr. Ogilvie-Harris based his conclusions and recommendations on what he observed in the course of his examination — which I find to be reasonable.

CIBC also maintained that Dr. Ogilvie-Harris made no independent findings, and that much of his summary and conclusions echoed those of Horizon Healthcare.

However, CIBC conceded that this was not the case with regard to the first paragraph of his report. That paragraph indicates that Ms. Sivanesan is not able to return to her pre-accident employment as a tracing officer.

Dr. Ogilvie-Harris also stated that Ms. Sivanesan's adverse psychological and emotional response to the injury would prevent her from competing in the labour market. A view not articulated in the Horizon Healthcare reports.

Furthermore, Dr. Bushuk, who performed the Orthopaedic portion of the Medical/Rehabilitation DAC on March 2, 1999, found that there were no medical indications that Ms. Sivanesan required any physiotherapy, chiropractor treatment, massage therapy, acupuncture or water therapy. He went on to say that "[c]ontinuing to provide any musculoskeletal rehabilitation would do nothing more than propagate her whole symptom complex and her perceived level of disability at this point in time.

Dr. Ogilvie-Harris, on the other hand, who assessed Ms. Sivanesan on May 26, 1999, found that she would benefit from a comprehensive rehabilitation program.

I am of the view that it was reasonable for Ms. Sivanesan to seek an assessment that was more advantageous to her and is entitled to independent medical advice with regard to what her needs are.

As stated by Director's Delegate McMahon in Tsimidis, in determining the reasonableness of the report, "the appropriate question is; did the report contain sufficient information to make it useful to [the referring physician?]."²⁶

In my view, Dr. Ogilvie-Harris' report adds sufficient value to the overall assessment of Ms. Sivanesan to make the request for the report and the report reasonable" for the purposes of section 24.

Finally, CIBC pointed out that Dr. Ogilvie-Harris and Dr. Wong had both billed the same — but that the latter report was far more comprehensive.

I am reluctant to engage in such comparisons as they are not particularly helpful. I have found no significant deficiencies in Dr. Ogilvie-Harris' report. His account of $1,200 (with $84.00 GST) does not seem out of keeping with the fees ordinarily charged by other physicians — as evidenced by Dr. Wong's bill, or significantly higher than the range of fees other arbitrators have found reasonable.²⁷Consequently, there is no compelling reason to find the fee unreasonable, or to reduce it.

I find Dr. Ogilvie-Harris' report to be reasonable in the context of section 24, and that it should be paid for by CIBC.

Dr. Lau's Assessment and Report

Dr. Lau, a psychologist, saw Ms. Sivanesan on June 4, 1999. He explored Ms. Sivanesan's personal and medical history with her and administered a series of psychological tests. Dr. Lau also reviewed the psychological report and treatment plan of Dr. Waiser, the reports of Dr. English and Dr. Koepfler, the DAC report, including Dr. Bauer's Neuropsychological Report, the Medical Report of Dr. Ogilvie-Harris, the report of Dr. Wong, and the Horizon Healthcare Assessment.

CIBC was critical of Dr. Lau's report, as he did not refer to the comments of Dr. Waiser to the CIBC in his letter dated March 17, 1999. Dr. Waiser had indicated he had been meeting with Ms. Sivanesan on a regular basis over the past several months, and that significant gains had been made in her functioning and general level of adaptation to her condition.

However, as pointed out by counsel for Ms. Sivanesan, Dr. Lau's report does note, on page 2, that Ms. Sivanesan has been seeing Dr. Wiser (sic), Psychologist, of the Metro Rehab Centre once a week since December 1998 and that "she finds the psychological treatment helpful in relieving some of her fear in riding in a car."

CIBC also challenged Dr. Lau's report on the basis that it was a duplication of the reports of Dr. Koepfler and English — which made it clear that Ms. Sivanesan had psychological problems.

CIBC argued that it was not reasonable to have a similar report to the one the Insurer had already ordered — particularly when the result was the same.

CIBC further argued that the report was also a duplication of the Horizon Healthcare Report.

However, as with Dr. Wong's report, Ms. Sivanesan argued that it was possible that CIBC would have relied on that advice to terminate her benefits following the eight weeks of treatment recommended in Dr. Koepfler's report, which was issued in late March 1999. Ms. Sivanesan was seen by Dr. Lau on June 4, 1999 — slightly more than eight weeks later. I find that it was reasonable for Ms. Sivanesan to see another psychologist to be reassessed regarding her ability to return to work at that point in time. As the assessment followed the period of time during which it had been anticipated Ms. Sivanesan could return to work, it cannot be seen as a duplication of an earlier assessment.

Nor can it be seen as a duplication of the Horizon Healthcare report which was the result of assessments conducted at another period of time (March-April 1999), for a different purpose — i.e. the completion of a treatment plan by Dr. Donskoy.

I find Dr. Lau's report to be reasonable in the context of section 24, and that it should be paid for by CIBC.

Horizon Healthcare Assessment and Report

As earlier indicated, Ms. Sivanesan was referred to Horizon Healthcare by her family physician for a FCE, a home assessment, a work site assessment, and a psychological assessment, in order to assist him in preparing a treatment plan.

CIBC took issue only with the psychological assessment, which was conducted on March 25, 1999.²⁸

CIBC's primary criticism was that the recommended treatment plan included an "active" therapy program for 10 to 12 weeks, with the advice that Ms. Sivanesan be seen by a physiotherapist or kinesiologist and instructed in and perform stretching, strengthening and postural exercises for her neck and low back, with a focus on regaining strength and addressing her significant lack of range of motion.

CIBC pointed out that active" therapy program was not defined and argued that the recommendation appeared to disregard her ongoing therapy program.

CIBC maintained that this suggested the Metro Orthopaedic Rehab Report ("Metro")²⁹, dated December 14, 1998, had not been reviewed. CIBC argued that the Metro report made it clear that much of the recommended treatment was already in place — and that the recommendations were simply a repetition of the current treatment plan. As there had been no denial by the Insurer of the treatment, CIBC argued that the report was of no value.

However, Ms. Sivanesan's existing treatment was addressed at page 2 of the assessment.³⁰ The report noted that in addition to her twice weekly visits to a physiotherapist, treatment had consisted of "manual therapy,"³¹ electrotherapy (TENS/ultrasound), an exercise program within the clinic, intermittent massages and chiropractic treatments.

Consequently, it appears that the clear intention of the report was that Ms. Sivanesan's therapy be changed from passive to active therapy. The report further makes this distinction in note 5 which states that "[t]he only passive treatment that may be beneficial at this time would be moist heat to reduce any muscle guarding prior to instruction and initiation of specific exercises to control focal neck and back symptoms." This appears to have been understood by Dr. Donskoy for whom the report was commissioned, and who incorporated an "active physiotherapy programme" into his resulting treatment plan.³²

While there was some overlap in what had been recommended by Metro, including both passive and active modalities, the treatment duration recommended by Metro was for "about 10 weeks". Ms. Sivanesan had been assessed at Horizon Healthcare on March 25, 1999, well past the 10 week period of time.

It was also noted in the Horizon Healthcare report³³ that further massage therapy or chiropractic manipulations — both of which had been recommended in the Metro report — would not be reasonable or necessary at this time.

Finally, the Metro report had indicated that a gradual functional recovery was expected in approximately 10-12 weeks. Therefore, it was reasonable to reassess Ms. Sivanesan after that period of time.

As with the report of Dr. Ogilvie-Harris, CIBC also criticised Horizon Healthcare's failure to comment upon the disparate findings regarding Ms. Sivanesan's range of motion. However, as noted earlier, range of motion can be affected by a number of different factors, and I find that the absence of comment regarding the disparate findings in Ms. Sivanesan's case cannot be said to diminish the report so as to render it unreasonable. This is particularly the case as the report was requested expressly for the purpose of developing a treatment plan.

I find the Horizon Healthcare assessment and report to be reasonable in the context of section 24, and that it should be paid for by CIBC.

INTEREST:

In accordance with subsection 46(2), Ms. Sivanesan is entitled to interest on the benefits she is owed and which are overdue, at the rate of 2 per cent per month compounded monthly.

The provision is not discretionary.

SPECIAL AWARD:

Section 282(10) of the Insurance Act provides that a special award is payable if the arbitrator finds that an insurer has unreasonably withheld or delayed payments.

Ms. Sivanesan, focussing primarily on CIBC's initial reasons for denial, argued that as the reasons were unreasonable — in that they did not come within the framework of section 24 — it was patently unreasonable to rely on them for denial of benefits.

The Applicant noted that Director's Delegate McMahon's decision in Tsimidis was dated August 28, 2000 and that the accounts were still outstanding.

Ms. Sivanesan also pointed out that the Insurer had not even paid the Home Assessment/Report or the Job Site Analysis/Report conducted by Horizon Healthcare, and with which it took no issue.

Ms. Sivanesan urged me to issue a special award plus accumulated interest as a deterrent.

CIBC argued that the decision in Tsimidis supports its position that each report must be assessed on its merits. CIBC also asked that if I were to decide for Ms. Sivanesan, that she be compensated through an award of expenses rather than a special award and interest.

It is true that the decision in Tsimidis addressed the initial reasons for denying the claims. However, I have held that CIBC is not limited to those reasons. Consequently, while I found the subsequent reasons relied on by CIBC to be short of compelling, they cannot be said to be so lacking in merit as to trigger an order of a special award — particularly as the jurisprudence in this area is still evolving.

That being said, there was no reason given for the failure to pay the Home Assessment/Report by Occupational Therapist (total $431.60) or the Job Site Analysis/Report by the Occupational Therapist (total $484.90) once the decision in Tsimidis was released (August 28, 2000), as CIBC took no issue with them at the hearing.

Consequently, I find that a special award with regard to those amounts is appropriate. The special award shall be 25 percent of the $916.50 to which Ms. Sivanesan is entitled for the Home Assessment/Report and Job Site Analysis/Report together with interest on all amounts owing (including unpaid interest) at 2 percent per month, compounded monthly, from September 4, 2000, which is one week following the release of the decision in Tsimidis.

EXPENSES:

Ms. Sivanesan has been successful in this arbitration and I find she is entitled to her reasonable expenses of the proceeding. I leave the amount of expenses to the parties to determine, failing which I can be spoken to.

January 4, 2001

Tanja Wacyk Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 2

FSCO A99-000872

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUDAH SIVANESAN

Applicant

and

CIBC INSURANCE

Insurer

ARBITRATION ORDER

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

1. CIBC shall pay the cost of the assessments and reports provided by Dr. Wong ($1,284), Dr. Ogilvie-Harris ($1,284), Dr. Lau ($1,250), and Horizon Healthcare ($2,366.50), plus interest.

2. CIBC shall pay Ms. Sivanesan a special award of 25 percent of the $916.50 to which Ms. Sivanesan is entitled for the Home Assessment/Report and Job Site Analysis/Report together with interest on all amounts owing (including unpaid interest) at 2 percent per month, compounded monthly, from September 4, 2000.

3. CIBC shall pay Ms. Sivanesan her reasonable expenses of the Arbitration.

January 4, 2001

Tanja Wacyk Arbitrator

Date

Footnotes

1. 1The 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.
2. 2Exhibit 2, Tab 13, p. 7
3. 3Exhibit 2, Tab 17, p. 2
4. 4Exhibit 1, Tab 5
5. 5Exhibit 2, Tab 17 (conducted Insurer's examination with Dr. Koepfler for Health Recovery Clinic)
6. 6Ibid (conducted Insurer's examination with Dr. English for Health Recovery Clinic)
7. 7Exhibit 1, Tab 20
8. 8Exhibit 1, Tab 3
9. 9(FSCO Appeal Order P99-00013, August 28, 2000)
10. 10Under which medical-legal reports would fall3
11. 11Turner and Economical Mutual Insurance Company, Decision on Expenses, (FSCO A-012411, August 29, 2000)
12. 12Tesfai and Allstate Insurance Company of Canada (FSCO A99-000321), July 26, 2000, p.5
13. 13Ibid p.4
14. 14(FSCO P97-00062, January 21, 1999)
15. 15Exhibit 2, Tab 17 (conducted Insurer's examination with Dr. Koepfler for Health Recovery Clinic)
16. 16Ibid (conducted Insurer's examination with Dr. English for Health Recovery Clinic)
17. 17Exhibit 2, Tab 17, p. 2.
18. 18Exhibit 1, Tab 11
19. 19Exhibit 2, Tab 27 pps. 2 & 4
20. 20Supra, p.5
21. 21Supra, p.4
22. 22Exhibit 2, Tab 17
23. 23Exhibit 2, Tab 25
24. 24Exhibit 2, Tab 26
25. 25Exhibit 1. Tab 6
26. 26Tsimidis, supra at note 2, p. 12
27. 27See Tsimidis supra and Tesfai (note 10)
28. 28Exhibit 1, Tab 6
29. 29Exhibit 2, Tab 36
30. 30Ibid
31. 31Unusually referred to as "passive" but appears to incorporate the same modalities
32. 32Exhibit 1, Tab 19
33. 33Supra — Note 4 at p. 6