Neutral Citation: 2001 ONFSCDRS 73

FSCO A99-000961

BETWEEN:

DESMOND HUGHES

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

Before:

Judith Killoran

Heard:

January 8, 9, 10 and 11, 2001, at the Offices of the Financial Services Commission of Ontario in Toronto.

Written submissions on motion to reopen filed on January 23, February 1 and February 6, 2001.

Decision on motion released on February 9, 2001.

Appearances:

Brian Sherman for Mr. Hughes

Ian D. Kirby for Allstate Insurance Company of Canada

Issues:

The Applicant, Desmond Hughes, was injured in a motor vehicle accident on January 26, 1998. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ However, he received further exercise therapy at Target Rehabilitation Centre ("Target") from August 20, 1998 to April 23, 1999 for which Allstate denied payment. The parties were unable to resolve their disputes through mediation, and Mr. Hughes 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:

Is Mr. Hughes entitled to receive a medical benefit, in the amount of $10,855.00, for exercise therapy received at Target claimed pursuant to section 14 of the Schedule?
Is Allstate liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Hughes?
Is either party liable to pay the other party's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R S.O. 1990, c.I.8?

Result:

Mr. Hughes is not entitled to receive a medical benefit for exercise therapy at Target claimed pursuant to section 14 of the Schedule.
Allstate is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
The issue of expenses may now be spoken to.

The Legal Test:

Mr. Hughes has applied under section 14 of the Schedule for payment of his Target account. Subsection 14(1) reads:

The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.

Subsection 14(2) states that the medical benefit includes all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for, among other things, occupational therapy and physiotherapy services.

In order to qualify for payment of a medical benefit, Mr. Hughes must establish that he has sustained an impairment as a result of an accident. "Impairment" is defined as "a loss or abnormality of a psychological, physiological or anatomical structure or function." Mr. Hughes must also prove that the exercise therapy services provided by Target were reasonable and necessary expenses incurred by him as a result of the accident.

EVIDENCE AND ANALYSIS

Background:

Desmond Hughes is 53 years old. In September, 1996, he decided to attend Maplewood High School in Scarborough for educational upgrading as he had been unemployed since 1994. However, he had some past experience working in many different autobody shops. At school, Mr. Hughes was taking mathematics, autobody repair, autobody mechanics and a course called Entrepreneur.² In his autobody classes, he assisted the teacher by showing the other students how to use equipment such as rivetting guns and sanders. School started at 9:00 a.m. and ended at 3:00 p.m. from Monday to Friday. Mr. Hughes attended school for two years and graduated in June of 1998. He received a high school diploma and two certificates in autobody repair and autobody mechanics.

On January 26, 1998, Mr. Hughes was driving home from school in his 1989 Toyota Corolla. He was travelling north on Birchmount Avenue at approximately 2:45 p.m. When he came to a stop behind vehicles in the passing lane, his car was hit in the rear. Mr. Hughes' head hit the head rest and his knees hit the dashboard.³The damage to his car was fairly minor⁴ and he drove to the Collision Reporting Centre on Howden Road to file a report.

After completing his report, Mr. Hughes drove to see his family doctor, Dr. Fingrut, who had been his physician for more than 10 years. In his statement to Allstate, Mr. Hughes stated: "Before the accident I last saw him maybe a year earlier but I cannot recall for what reason."⁵ Mr. Hughes testified that, after the accident, he experienced pain in his head, neck, left shoulder and left arm and right knee. In his statement, he insisted that: "I have never seen Dr. Fingrut in the ten years he has been my doctor for the symptoms I have now. I have never been injured by slipping or falling ..."⁶

Did Mr. Hughes sustain an impairment as a result of the accident?

Mr. Hughes was involved in a modest rear-end collision resulting in injury to his neck, lower back, and left shoulder of a kind where health practitioners rely on the accuracy and honesty of the patient when diagnosing the injury, ascribing it to the accident, and dealing with the prognosis and treatment required. There were many inconsistencies in Mr. Hughes' evidence which eroded his credibility as a patient and as a witness. Where there were contradictions in Mr. Hughes' evidence and any of the other evidence, testamentary or documentary, I have accepted the conflicting evidence.

In both Mr. Hughes' statement to the adjuster and his testimony at the hearing, he insisted that he had no problems with his neck, back or shoulder prior to the accident. According to Dr. Fingrut’s clinical notes and records, Mr. Hughes had a history of back, neck and shoulder pain. Dr. Fingrut reviewed his clinical notes and records and testified that he began seeing Mr. Hughes in 1987. Dr. Fingrut's records indicated that he saw Mr. Hughes with respect to three motor vehicle accidents prior to the one in question and a slip-and-fall in a parking lot. On June 28, 1996, Dr. Fingrut prescribed an anti-inflammatory for Mr. Hughes' left shoulder. On November 11, 1997, Mr. Hughes complained to Dr. Fingrut of stiffness in his left shoulder.

Dr. Fingrut completed Mr. Hughes' disability certificate on February 11, 1998, and listed injuries involving his neck, knee, lumbar left shoulder and cervical spine. Although it was not factually accurate for Dr. Fingrut to state in the disability certificate that Mr. Hughes was not treated for similar problems prior to the accident, Dr. Fingrut was of the view that nothing in Mr. Hughes' prior history was relevant to the injuries sustained in the accident. However, Dr. Fingrut agreed that there had been previous neck and shoulder complaints, mostly in Mr. Hughes' joints and muscles. As well, Dr. Fingrut admitted that he had to rely on the information given to him by Mr. Hughes to diagnose a frozen shoulder after the accident.

Although Mr. Hughes reportedly attended for more than 100 treatments of his left shoulder at Target, he testified that it was for his right shoulder, and indeed, pointed to his right shoulder, not his left shoulder. However, all of Target's records indicated that treatment was for the left shoulder. As well, after the accident on January 16, 1998, Mr. Hughes was able to attend school and successfully completed all of his courses, some of which had demanding physical requirements.

Based on all the evidence, I was not persuaded, on a balance of probabilities, that the accident on January 26, 1998 resulted in an impairment of Mr. Hughes' left shoulder. Further, I was not convinced that if there were an impairment of Mr. Hughes' left shoulder, that it was causally linked to the accident. However, in the event that I am incorrect in finding that Mr. Hughes' left shoulder problems did not constitute an impairment and were not attributable to the accident, I have considered the question of whether the expenses incurred for exercise therapy at Target were reasonable and necessary.

Were the expenses for exercise therapy incurred at Target reasonable and necessary under section 14 of the Schedule?

The fundamental issues are whether the treatments at Target, their frequency, and the hourly rates were reasonable and necessary.

On January 26, 1998, Dr. Fingrut referred Mr. Hughes to physiotherapy, which he attended at Pro-Physiotherapy. The Initial Physiotherapy Report dated February 4, 1998 noted that Mr. Hughes had sharp pain at the left shoulder, a constant dull ache at the neck down to the shoulder and interscapular area, pain at both knees on mounting stairs and a dull ache at the low back on bending over.⁷ Mr. Hughes received ultrasound, heat, massage and ice packs on the neck, left shoulder and knee and lower back. The Pro-Physiotherapy records indicated that Mr. Hughes had said that he had no neck or back problems previously. He did inform them of a motor vehicle accident 10 years previously but he claimed that there were no continuing problems associated with that accident.⁸

Allstate telephoned Mr. Hughes and recommended that he attend Wilcox Physiotherapy and Sports Injury Clinic ("Wilcox"). On February 16, 1998, Mr Hughes was examined at Wilcox which noted that the patient was no longer claiming that his knees were a problem. However, Mr. Hughes was still experiencing pain in his neck and left shoulder with movement.⁹ In its first treatment plan, Wilcox estimated that Mr. Hughes' period of disability would be from January 26 to March 5, 1998.

Dr. Fingrut arranged for an x-ray of Mr. Hughes' left shoulder in April 1998, three months after the accident. The x-ray report read: "The bones and soft tissues of the left shoulder joint appear normal, and I see no evidence of old or acute injury, arthritis or soft tissue calcification. No cause for pain is seen."¹⁰

Dr. Fingrut also referred Mr. Hughes to Dr. Orsini, an orthopaedic specialist. On May 25, 1998, Dr. Orsini recommended treatment involving a local anaesthetic and rotation of the shoulder which Mr. Hughes did not want to have. Instead, he returned to Wilcox for more therapy.

In its second Treatment Plan dated May 22, 1998, Wilcox extended its estimate of the period of disability to July 1, 1998 because Mr. Hughes 'left shoulder had not responded to passive and active physiotherapy. Allstate accepted the treatment plan and agreed to pay for continued physiotherapy treatments three times per week for a period of four weeks. On June 29, 1998, Mr. Hughes was discharged from Wilcox with the recommendation that he continue with home exercises to strengthen his left shoulder and attend an assessment and follow-up with an orthopaedic surgeon.¹¹

By the time that Wilcox discharged Mr. Hughes, their records indicated that he had regained 80 per cent of the function in his left shoulder. Although Mr. Hughes testified, at first, that he agreed with the Wilcox records, he later retracted and said he misunderstood. Rather, in his opinion, he had very little function in his shoulder and had not improved at all. Mr. Hughes also testified that when he went to Target, it was for therapy relating to his neck, shoulder and lower back. However, there was no mention of his lower back in the treatment records at Target.

Mr. Hughes' main complaint continued to be pain in his left shoulder. An accident consultant advised him to attend Target, where he worked out on a treadmill and did weight training. Under the supervision of Vera Marinkovic, he also did stretches and exercises to improve the mobility of his shoulder.

Ms. Vera Marinkovic testified that she was a medical doctor in Yugoslavia and practised medicine for almost three years. In her view, she has superior qualifications to kinesiologists in Ontario because she attended courses for five years rather than four and the courses were in anatomy, physiology, biochemistry, biophysics, rehabilitation and physical medicine, orthopaedics, and radiology.

Ms. Marinkovic has been doing kinesiology work at Target since 1996. However, she is not a certified kinesiologist in Ontario. She reviewed her records for Mr. Hughes¹² and testified that at his initial fitness test on August 21, 1998, which took about 40 minutes, he rated the pain in his left shoulder as a 6 to 7 on a scale of 1 to 10. It was not until October 9, 1998 that he was into his full program of exercises, treadmill, stretching, weights, strengthening and cardio so that his entire visit would be around one hour and 20 minutes.

According to Ms. Marinkovic, Mr. Hughes was doing exercises for his neck and shoulder but not his back. He improved in his neck from the beginning and after ten sessions had reached maximum improvement. The left shoulder remained the main issue after the first 10 sessions. Even though his range of motion improved, his pain level remained the same. The last progress report on March 9, 1999 indicated a pain level of seven which was the same as when he started.

According to Ms. Marinkovic, improvement stopped for Mr. Hughes by the end of February 1999. Dr. Morana began as Mr. Hughes' treating physician at Target and was succeeded by Dr. Teitel. In Target's first treatment plan for Mr. Hughes dated August 20, 1998, Dr. Morana diagnosed a frozen shoulder and cervical strain. He recommended work conditioning with active therapy and a weight-bearing component. The anticipated benefits were to help restore a range of motion and strength while reducing pain in the affected areas. Four to six weeks of active therapy were recommended at an estimated cost of $3,500.¹³

In the first progress report dated September 16, 1998,¹⁴ Ms. Marinkovic stated that Mr. Hughes' progress had been great, his attendance excellent and he was well motivated. Nonetheless, Ms. Marinkovic recommended another 50 sessions and then a reassessment. In each and every one of the six progress reports which were done at 10-week intervals, Ms. Marinkovic indicated that Mr. Hughes needed minimum supervision and minimum encouragement. She testified that she did not know if Mr. Hughes had any prior treatment elsewhere.

Dr. Rathbun, an orthopaedic surgeon, was qualified as an expert dealing with neck and cervical spine injuries to the shoulder area and designing active rehabilitation therapy programs. He testified that Mr. Hughes had told him at the medical/ rehabilitation DAC assessment on September 28, 1998 that he had no previous shoulder problems before the accident in question. The Wilcox records were consistent with Dr. Rathbun's finding that Mr. Hughes had pretty good motion in his left shoulder with some restriction above 90 degrees, which represented minimal resistance to full abduction. Dr. Rathbun's evidence was that, if at one time Mr. Hughes had a frozen left shoulder, it was not an impairment because Mr. Hughes was able to continue at school full time until graduation.

In Dr. Rathbun's opinion, Mr. Hughes did not need weight machines to do the general stretching and strengthening required for his rehabilitation. Dr. Rathbun testified that the treadmill was good for the heart but not for the shoulder. In his opinion, Mr. Hughes did not have an impairment when he assessed him but may have had a frozen shoulder in early to mid-August. However, by September 28, 1998, the shoulder was not frozen. Certainly, Dr. Rathbun was of the view that Mr. Hughes did not need any therapy at the time that he examined him, other than a home exercise program.

Dr. David Bereznick gave opinion evidence in his areas of expertise: kinesiology and chiropractic. He examined Mr. Hughes on September 25, 1998 as part of the medical/ rehabilitation DAC assessment. When he examined Mr. Hughes, Dr. Bereznick testified that Mr. Hughes may have had the residual effects of a frozen shoulder but had full passive range of motion in all directions with the exception of the humeral rotation region of the capsule which had shrunk so that there was restricted rotation of 10 degrees from full abduction.

At the DAC assessment, Mr. Hughes only complained of shoulder pain and not neck or lower back pain. Dr. Bereznick did not support the idea of a clinical environment to deal with Mr. Hughes' residual shoulder problem. He did not agree that a treadmill offered any therapeutic benefit to his shoulder. Instead, he believed that Mr. Hughes should exercise in a non-clinical setting and become independent from health care practitioners. In his opinion, it is not necessary for someone to have therapy until there has been full resolution of complaints since, if it is a musculoskeletal injury, it will heal eventually anyway.

Dr. Bereznick reinforced the testimony of Dr. Rathbun that a frozen shoulder does not come and go. It usually develops slowly and resolves slowly. It is not unreasonable to conclude that the causality mechanism of a frozen shoulder comes on insidiously which makes frozen shoulders elusive for diagnostic purposes. Therefore, Dr. Bereznick agreed that Mr. Hughes' left shoulder problems may not have been related to the motor vehicle accident.

The evidence from Drs. Rathbun and Bereznick is consistent that a patient can not have a frozen shoulder one day, have it disappear and then have it come back suddenly. In Dr. Rathbun's view, the kinds of things that Mr. Hughes was doing with weights at Target would be inconsistent with a frozen shoulder. Perhaps most importantly, Drs. Rathbun and Dr. Bereznick both agreed that Mr. Hughes did not have a frozen shoulder "when they saw it."

A Treatment Plan from Target was sent to Allstate and received on September 3, 1998. On September 8, 1998, Allstate disputed the treatment plan and Target was informed promptly. This was seven months following the accident after 45 physiotherapy sessions. The original treatment plan from Wilcox had advised 4 to 6 weeks of physiotherapy before Mr. Hughes was to be reassessed. However, Target set Mr. Hughes up in a sixty treatment plan which the evidence indicated was "standard." There is no evidence that anyone at Target gave consideration to Allstate's rejection of the treatment plan or talked to Mr. Hughes about it. Instead, Target carried on with the disputed treatments.

Dr. Fingrut did not discuss with Mr. Hughes the type of treatment he was receiving at Target. No massage, ultrasound or heat packs were used at Target, although Dr. Fingrut testified that they should all be considered as part of the treatment for a frozen shoulder.

Mr. Hughes sought to qualify Mr. Rod Hare as an expert witness in two areas: in kinesiology, particularly as it relates to the treatment of injury victims; and as an expert with respect to fees for kinesiology as a result of his history as a kinesiologist, a business owner and his work with the Ontario Kinesiology Association.

I declined to allow Mr. Hare to give opinion evidence relating to kinesiology and the treatment of accident victims with respect to Mr. Hughes. This ruling was not due to Mr. Hare's lack of qualifications but rather, based on the particular circumstances of this case and the lack of relevance of his potential testimony. Mr. Hare had never dealt with Mr. Hughes; that is, he had never examined him, had never assessed him and had never treated him. When I questioned whether he had reviewed any of the medical records, the answer was "no," except for the therapist's logs at Target. As well, Mr. Hare conceded that he did not have much, if any, idea of what was involved in terms of the services provided to Mr. Hughes. I did permit Mr. Hare to offer opinion evidence about fees for active rehabilitation kinesiology in the latter part of 1998 and 1999.

CONCLUSION:

On June 29, 1998, when Wilcox discharged Mr. Hughes, their records indicated that he had regained almost all of the mobility in his left shoulder. In Mr. Hughes' opinion, he had very little mobility in his shoulder and had not improved at all. I accept the conclusions in the Wilcox report.

The Target records indicated that there had been significant progress when Mr. Hughes finished his treatment sessions in February 1999 but Dr. Fingrut acknowledged that he still required a significant anti-inflammatory a year and a half after beginning treatment at Target. It appears that the very goal for which the exercise therapy program was purportedly designed by Target was not achieved.

At the hearing, Drs. Rathbun and Bereznick heard for the first time that Mr. Hughes had prior medical complaints associated with his left shoulder. It was only then that they were in a position to question seriously the causal relationship between Mr. Hughes' problems with his left shoulder and the accident. It does not appear that Mr. Hughes was forthright with any of his health care practitioners.

I find that the exercise therapy provided by Target to Mr. Hughes was not reasonable and necessary. I preferred the evidence of Drs. Rathbun and Bereznick to any contrary evidence and accept that Mr. Hughes did not have an impairment when they examined him. I accept the diagnosis from Wilcox that Mr. Hughes had regained almost full mobility in his left shoulder when he was discharged as of June 29, 1998. Therefore, none of the treatment sessions at Target were reasonable and necessary, including those from August 20, 1998 to the dates of the medical/rehabilitation DAC assessment in September.

As my finding is that the exercise therapy provided by Target to Mr. Hughes was not reasonable and necessary, I will not move to the next area of inquiry about the reasonableness and necessity of the number of treatments and the fees.

SPECIAL AWARD:

I reject the claim for a special award on the basis that I have made a finding that the medical treatment claims do not fulfill the requirements of the Schedule as being "reasonable and necessary." Subsection 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. This is not a case where the insurer has refused to pay for treatment. Allstate paid for an extensive course of physiotherapy for Mr. Hughes. I also do not find it unreasonable that Allstate offered some money to settle the entire claim near the conclusion of Mr. Hughes' treatment. I find that no benefits are overdue because I have found that no benefits are owed.

EXPENSES:

The parties are encouraged to resolve the issue of arbitration expenses. If the parties are unable to agree, an expense hearing may be scheduled.

May 18, 2001

Judith Killoran Arbitrator

Date