Neutral Citation: 2002 ONFSCDRS 185

FSCO A01-000956

BETWEEN:

UYEN-BAN DONG

Applicant

and

COACHMAN INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: David Leitch

Heard: September 23, 25 and 26, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Sue Chen for Ms. Dong Jay Stolberg for Coachman Insurance Company

Issues:

The Applicant, Uyen-Ban Dong, was injured in a motor vehicle accident on January 8, 1999. She applied for and received statutory accident benefits from Coachman Insurance Company ("Coachman"), payable under the Schedule.¹ Disputes arose which the parties were unable to resolve through mediation and Ms. Dong 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 Ms. Dong entitled to income replacement benefits under section 4 of the Schedule for the period May 20, 1999 to August 28, 1999?
Is Ms. Dong entitled to medical benefits under section 14 of the Schedule in respect of physiotherapy and chiropractic treatment beyond that already paid by Coachman?
Is Ms. Dong entitled to recover expenses under section 24 of the Schedule in an amount beyond that already paid by Coachman for the preparation of a treatment plan?
Is Ms. Dong entitled to recover expenses under section 24 of the Schedule in respect of fees charged by her family physician?
Is Coachman entitled to an order under the authority of section 282(11.2) of the Insurance Act requiring Ms. Dong to repay its assessment fee?
Is either party entitled to an order authority of section 282(11) of the Insurance Act requiring the other party to pay her/its hearing expenses?

Result:

Ms. Dong is not entitled to income replacement benefits under section 4 of the Schedule for the period May 20, 1999 to August 28, 1999.
Ms. Dong is not entitled to medical benefits under section 14 of the Schedule for physiotherapy and chiropractic treatment beyond that already paid by Coachman.
Ms. Dong is not entitled to recover expenses under section 24 of the Schedule in an amount beyond that already paid by Coachman for the preparation of a treatment plan.
Ms. Dong is not entitled to recover expenses under section 24 of the Schedule in respect of fees charged by her family physician.
Coachman is not entitled to an order under the authority of section 282(11.2) of the Insurance Act requiring Ms. Dong to repay its assessment fee.
If the parties cannot resolve the issue of hearing expenses in light of this decision, they will follow the procedure stipulated by the Dispute Resolution Practice Code. If necessary, I will issue a separate decision on hearing expenses.

Background:

On January 8, 1999, Ms. Dong was travelling in the front passenger seat of a vehicle when it collided with another vehicle. She testified that she hit her head against the door and experienced headaches and pain in her neck, shoulder and low back. As a result of the injuries sustained in this accident, Ms. Dong stopped work as a button coverer and started receiving treatment at D.N. Physiotherapy & Rehab. Clinic Inc. (D.N. Physio). Coachman did not dispute either Ms. Dong's initial entitlement to income replacement benefits or the cost of her initial treatment at D.N. Physio.

In March 1999, Coachman² took the position that Ms. Dong was no longer entitled to income replacement benefits, that it would only pay for some of the additional treatment recommended by D.N. Physio and that it would not pay for psychological treatment recommended by Dr. Kathleen Lung, a clinical psychologist. As a result, in early May 1999, Ms. Dong was assessed at four Designated Assessment Centres (DACs), one which assessed her disability and three which assessed her need for treatment.

Ms. Dong challenged the Disability DAC's finding that she was fit to return to work and Coachman's reliance on this finding to confirm its earlier decision to terminate her income replacement benefits. She did not seriously challenge the two MedRehab DAC findings that post-DAC treatment from D.N. Physio was neither reasonable nor necessary. Ms. Chen acknowledged that, based on these reports, Ms. Dong discontinued such treatment. However, Ms. Chen maintained that Coachman failed to pay for pre-DAC treatment rendered by D.N. Physio. The findings of the third MedRehab DAC report were not disputed either: it found that the psychological treatment recommended by Dr. Lung was reasonable and necessary and Coachman then agreed to pay for this treatment. The findings of all three MedRehab DACs will be considered in relation to Ms. Dong's claims for income replacement and medical benefits.

With respect to the cost of a treatment plan, Coachman disputed the amount it is required to pay, not its obligation to pay. With respect to the consultation fees charged by Ms. Dong's family physician, Dr. B. Wong, Coachman argued that these should have been paid by OHIP.

Issue 1: income replacement benefits between May 20 and August 28, 1999

Coachman's decision to terminate Ms. Dong's income replacement benefits was based, initially, on a report it obtained from Dr. Michael C. Hall, an orthopaedic specialist, dated March 16, 1999.³ After conducting an insurer's medical examination, Dr. Hall concluded that Ms. Dong no longer suffered from "an inability to perform her pre-accident employment," despite her complaints of neck and back pain.⁴ Dr. Hall was not called to testify at the hearing.

Ms. Chen questioned the validity of Dr. Hall's opinion, submitting that he failed to appreciate the nature of Ms. Dong's employment duties. In making this submission, Ms. Chen did not point to any particular difference between Dr. Hall's written description of Ms. Dong's employment duties and Ms. Dong's oral description at the hearing. I acknowledge that Dr. Hall's report indicates that his interpreter had problems understanding Ms. Dong on this point. His report also refers exclusively to Ms. Dong's button-covering tasks, whereas she testified that she also made badges. Nevertheless, there was substantial similarity in the two descriptions of Ms. Dong's essential tasks. Those tasks involved reaching out with both hands at about eye level to manipulate machines which were then activated by foot from either a standing or a sitting position. In addition, Ms. Dong acknowledged that button-covering was both the primary and the most physically difficult part of her pre-accident work. I, therefore, find that Dr. Hall's opinion retains evidentiary value which I must consider.

Ms. Dong was examined at the Disability DAC by Dr. Hugh U. Cameron, also an orthopaedic specialist, and again with the assistance of an interpreter. Dr. Cameron did not testify at the hearing. His report, dated May 5, 1999,⁵ indicates that Ms. Dong told him that she had not struck her "head or limbs with the interior of the vehicle" and that her back complaints were not in the low back but in the upper to middle range. Dr. Cameron's report summarizes the report of Dr. Lung to Dr. Wong dated March 15, 1999.⁶ According to Dr. Cameron's report:

The psychologist felt that not working and social isolation had contributed to her general state of malaise. She indicates the insured does not meet the diagnostic criteria for a posttraumatic stress disorder and is not clinically depressed. Nonetheless, she feels that eight to ten cognitive behavioural psychotherapy sessions are required.

Dr. Cameron concluded his report by stating his own opinion as follows:

In my opinion this lady was involved in an accident which resulted in various strains and contusions. She continues to complain of pain in the neck and upper back. She has no complaints suggestive of nerve root tension, compression, irritation. She has a full range of movement in both sites with no spasm and she is neurologically normal. She shows some signs of symptom exaggeration with complaints of wide spread skin tenderness.

In my opinion this lady has largely recovered from the effects of this accident. Any residual effects are minimal and are of nuisance value only. In my opinion she is fit to carry out her normal activities of daily living and can return to her occupation should she so desire.

In an attempt to counter the opinions of Drs. Hall and Cameron, Ms. Chen relied on Ms. Dong's complaints of pain. Evidence of these complaints was entered in two ways, first through Ms. Dong's testimony at the hearing and second, through the complaints of pain recorded in Dr. Wong's clinical notes⁷ and in the two MedRehab DAC reports which considered the treatment recommended by D.N. Phsyio.⁸

Ms. Dong testified that she wanted to return to work earlier but that she was in too much pain to do so until the end of August 1999 and then, only on a part-time basis. She also testified that since she was afraid of getting her fingers cut in the machine, she initially returned to modified duties, cutting the cloth used to cover the buttons or doing quality control. Insofar as I can read copies of Dr. Wong's handwritten clinical notes dated May 12, May 31, June 9, June 16, July 28 and August 18, 1999,⁹ they appear to contain references to Ms. Dong's complaints of headaches, neck, back and shoulder pain. The two MedRehab DAC reports also confirm that Ms. Dong made similar complaints when asked to describe her current condition.

However, Ms. Chen's argument ignores other evidence related to Ms. Dong's complaints of pain First, Dr. Wong's later clinical and referral notes dated September 15 and October 29, 1999 and February 14 and March 24, 2000 indicate that Ms. Dong continued to complain of similar pain even after returning to work in August 1999. This suggests that it was not pain alone which prevented Ms. Dong returning earlier than she did.

Second, the third MedRehab DAC report, the one that considered the psychological treatment recommended by Dr. Lung, contains the following observations with respect to Ms. Dong's complaints of pain:

With respect to pain, Ms. Dong continues to report intermittent pain in multiple body sites (i.e. head, neck, right shoulder, upper back and mid-back). Despite her reports of pain, she did not exhibit any outward signs of discomfort or pain behaviours. Psychological testing indicated that she is not feeling threatened or preoccupied by pain or physical health problems. She does not suffer from a psychologically based pain disorder and she does not require psychologically based pain management treatment.¹⁰

Third, Dr. Wong's clinical notes and the other two MedRehab DAC reports do nothing more than record Ms. Dong's complaints of pain. They do not state that Ms. Dong was unable to return to work. They do not, therefore, contradict the opinions of Drs. Hall and Cameron that Ms. Dong was able to return to work despite the complaints of pain she also made to those doctors.

In my view, Ms. Chen's argument based on Ms. Dong's complaints of pain must be rejected.

I note, however, that Ms. Chen failed to make another argument which deserves my consideration. The opinions of Drs. Hall and Cameron were the opinions of orthopaedic specialists and, as such, focussed on Ms. Dong's physical injuries. Dr. Hall's report of March 16, 1999 makes no reference to Dr. Lung's report dated March 15, 1999. Dr. Cameron's report does refer to Dr. Lung's report, as noted above, but it summarizes that report inaccurately and incompletely. It is clear from Dr. Lung's report that it was Ms. Dong herself, not Dr. Lung, who "felt that not working and social isolation had contributed to her general state of malaise." Nor was it Dr. Lung's opinion that Ms. Dong exhibited no post-traumatic psychological symptoms, as Dr. Cameron's summary suggests. Dr. Lung's own summary of her opinion reads as follows:

Summary and Recommendation

I would like to defer to Ms. Dong's family doctor and physical therapist to comment on the prognosis of her physical injuries and confine my comments to the psychological aspects below.

This 26-year-old woman presents herself clinically with symptoms of irritability, hypervigilance, lethargy, difficulty staying asleep, chills and hot flashes, loss of appetite, loss of weight, difficulty concentrating, absent mindedness, and pain. This assessment indicates that she is presently not suffering from any DSM-IV disorder, but that she does manifests [sic] some significant post-traumatic stress symptoms which warrant immediate treatment. According to the history she provided, the current onset of these symptoms appears to be a direct result of the subject accident rather than the contribution of any pre-existing factors. In my opinion, her post-traumatic stress symptoms are disturbing enough to exacerbate her pain experience if they remain untreated. Therefore, I would like to recommend a brief course of 8 to 10 sessions of cognitive-behavioural psychotherapy to help her cope with the symptoms.¹¹ [emphasis in original]

This treatment was accepted as reasonable and necessary by Dr. M. Gadon, the MedRehab DAC assessor who considered it, and by Coachman. In his report dated May 17, 1999, Dr. Gadon noted that "formal testing of malingering was negative." He provided a diagnosis of "motor vehicle anxiety, irritable and depressed mood (severity not at the level of an Axis disorder)."¹²According to Dr. Lung's clinical notes,¹³ Ms. Dong attended for psychological treatment on June 2, 9 and 15, 1999 and sometime in August 1999. Based Dr. Lung's note of June 15 and Ms. Dong's own evidence, I find that the break in treatment between June 15 and August 1999 was caused, in part at least, by Ms. Dong's trip to Vietnam to visit a sick relative.

In other words, despite a gap in treatment, the evidence establishes that Ms. Dong was undergoing psychological treatment during the period May to August 1999, roughly the same period for which she is claiming income replacement benefits. This raises the question as to whether Ms. Dong was unable to return to work during this period due to the treatment she was receiving for accident-related psychological symptoms. However, in order for me to make a finding to this effect, the evidence would have had to have included the supporting opinion of a qualified expert, most logically Dr. Lung. In the absence of such an opinion, I can only speculate about the limitations imposed on Ms. Dong by her psychological symptoms and treatment.

In the result, I reject Ms. Dong's claim for income replacement benefits beyond May 20, 1999.

Issue 2: medical benefits for physiotherapy and chiropractic treatment

For undisclosed reasons, Ms. Chen did not enter any of the relevant treatment plans into evidence. Nevertheless, Coachman's correspondence and Explanation of Benefits forms confirm that it did receive three treatment plans recommending physiotherapy and chiropractic treatment at D.N. Physio. The first treatment plan, dated January 12 or January 14, 1999, recommended treatment for six weeks and was approved.¹⁴ The second, dated February 24 or March 3, 1999, recommended a further five weeks of treatment but Coachman only approved and paid for an additional three weeks. By Coachman's calculations, this included treatment up to March 26, 1999.¹⁵ The third, dated April 14, 1999, recommended a further four weeks of treatment and was denied.¹⁶ In short, a total of fifteen weeks of treatment were recommended and Coachman paid for nine weeks of treatment up to March 26, 1999.

Again for undisclosed reasons, Ms. Chen did not enter D.N. Physio's treatment records and accounts into evidence. The only D.N. Physio record entered into evidence was a "Re-assessment Report" describing Ms. Dong's symptoms as of April 6, 1999.¹⁷ This report says nothing about the treatment recommended or provided at D.N. Phyio. Nor did Ms. Dong testify about the number of weeks of treatment she received at D.N. Physio or when she stopped receiving treatment there. The only evidence on this point is contained in the reports of Dr. Cameron and of the three MedRehab DACs. These reports were all based on assessments conducted in early May 1999 and it is clear that the relevant information was provided in each case by Ms. Dong herself through an interpreter. Dr. Cameron's report states: "She tells me she still goes [for physiotherapy] two to three times a week."¹⁸ One MedRehab DAC report states: "she attended physiotherapy for two or three sessions a week over a four month period."¹⁹ Another states: "Ms. Dong has received approximately 10 weeks of therapy thus far, consisting of both active and passive modalities."²⁰ The third states: "now attends 2 days per week."²¹

Assuming that all the pre-DAC treatment being referred to was provided by D.N. Physio and that it was all reasonable and necessary, these imprecise and divergent accounts do not, in my view, establish the amount of pre-DAC treatment Ms. Dong actually received, when she received it, or the cost of such treatment. If, for example, Ms. Dong actually received only nine weeks of treatment at D.N. Physio, rather than the ten weeks as approximated in one of the MedRehab DAC reports, then Coachman has already paid for all of her pre-DAC treatment at D.N. Physio.

Assuming that it was reasonable and necessary, Ms. Dong bore the onus to prove that Coachman failed to pay for the pre-DAC treatment in respect of which she claims payment. She might have discharged that onus by entering the relevant treatment plans and D.N. Physio's records and accounts. Her failure to do so leaves me with no alternative but to dismiss her claim for physiotherapy and chiropractic treatment expenses beyond those already paid by Coachman.

Issue 3: treatment plan expense

The documentary evidence confirms that Ms. Dong's agent sent Coachman an invoice from Dr. Wong in the amount of $160 in respect of the first treatment plan and that it agreed to pay "$76.47 as per the OMA guideline."²² Ms. Dong claims the difference of $83.53.

In her submission, Ms. Chen pointed out that Ms. Dong did not dispute the amount payable to Dr. Wong under the OMA guideline; she claimed the additional amount of $83.53 in respect of D.N. Physio's contribution to the preparation of the treatment plan.

Having not received the treatment plan in evidence, I am unable to find that D.N. Physio contributed anything to its preparation. I reject this claim.

Issue 4: Dr. Wong's invoices

Based on the documentary evidence, it would appear Ms. Dong's agent sent Coachman invoices from Dr. Wong in the total amount of $730 in respect of "office visits."²³ In its first correspondence on this issue, Coachman responded that these invoices were covered by OHIP but added "if...these expenses are not covered by OHIP, please re-submit your invoices to this office with the supporting document from OHIP for our consideration."²⁴ Coachman maintained this position as it received additional invoices.²⁵

At the hearing, Ms. Chen limited Ms. Dong's claim to $480; it was not clear why the total amount of $730 was not claimed. In support of Coachman's refusal to pay any of Dr. Wong's invoices, Mr. Stolberg relied upon section 60(2) of the Schedule, dealing with an insurer's right to deduct collateral benefits. He cited the case of Allstate Insurance Company of Canada and Putter in which a Director's Delegate observed: "The effect of s. 60(2) of the SABS-1996 is that an insurer need not pay for any...expense, or portion of an expense, that is reasonably available under OHIP. ...Apart from ...excluded services, OHIP remains the primary payer for accident-related treatment and assessments."²⁶

As the reference to "excluded services" in the above quote implies, OHIP is not obliged by the Health Insurance Act and regulations to pay for all accident-related treatment and assessments. Moreover, in the last paragraph of the Putter decision, the Director's Delegate clearly deferred to the arbitrator's factual finding that OHIP would not pay for the assessments in question. She wrote: "The arbitrator heard conflicting evidence about whether [a service provider] could bill OHIP for its assessment services, and she preferred the evidence of [a certain witness] that it could not. That finding was open to her, and I find no error of law in her conclusion."²⁷

In the present case, I heard no argument that Dr. Wong's services would have been excluded from the definition of "insured services" under the Health Insurance Act and regulations. I received no evidence that Dr. Wong's invoices were submitted to OHIP and denied. Nor did I receive evidence that OHIP would have refused to pay Dr. Wong's invoices had they been submitted.

Ms. Dong bore the burden of proving that she was entitled to benefits for the disputed invoices under either section 14 or section 24 of the Schedule. In my view, Ms. Dong could not discharge that burden without first establishing how much OHIP would contribute towards the payment of those invoices. In this respect, I agree with the arbitrator in the case of Pereira and Allstate Insurance Company of Canada²⁸ who held that once the existence of a collateral carrier of medical or rehabilitation benefits is established, it is the insured person, not the insurer, who bears the burden of proving how much is reasonably available in collateral benefits. The arbitrator observed:

In general, this obligation would not impose a heavy burden for any Applicant. He or his agent... submits treatment invoices to the collateral insurer, which examines them, issues an explanation and pays any amounts available under its policy. The Applicant or his agent then submits the invoices, along with the collateral insurer's explanation, to the automobile insurer as proof of what was reasonably available to the insured person under the primary plan.²⁹

This was, of course, the very procedure proposed by Coachman in its first response to Dr. Wong's invoices. I acknowledge that this procedure might have resulted in some delay in the full payment of these invoices. However, a finding that Coachman was, and still is, required to pay these invoices in their entirety pending any OHIP reimbursement, would have left, and would still leave, Coachman with little means to encourage Ms. Dong and Dr. Wong to apply for an OHIP reimbursement. I reject this outcome. I find that by failing to prove how much OHIP would contribute towards the payment of Dr. Wong's invoices, Ms. Dong failed to prove that she is entitled to any medical benefits from Coachman in respect of these invoices. Her claim in respect of these invoices is, therefore, dismissed.³⁰

Issue 5: Coachman's assessment fee

Section 282(11.2) of the Insurance Act reads as follows:

If an insured person commences an arbitration that, in the opinion of the arbitrator is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

In the case of Richard and Lombard General Insurance Company of Canada,³¹ Arbitrator McMahon held that section 282(11.2) is intended to return to the insurer the filing fee which it should not have been required to pay because the Application for Arbitration was "so devoid of merit" that it should not have been filed in the first place. Using the same logic in the case of Nguyen and Scottish & York Insurance Company Limited,³² I found that, unless it is established that the Application for Arbitration was frivolous, fraudulent, vexatious or an abuse of process when commenced or filed, the applicant should not be liable to pay an award under section 282(11.2) of the Insurance Act.

In my opinion, the evidence in this case does not support a finding that Ms. Dong's Application for Arbitration was frivolous, fraudulent, vexatious or an abuse of process when commenced or filed. As previously indicated, I might have viewed Ms. Dong's claim for income replacement benefits differently had I received an opinion from Dr. Lung about Ms. Dong's ability to return to work while undergoing psychological treatment. As for Ms. Dong's claims in respect of physiotherapy and chiropractic treatment, the cost of the treatment plan and the invoices of Dr. Wong, I have no hesitation in observing that these claims were all incompetently presented at the hearing.

In short, Coachman may have succeeded in defeating all of Ms. Dong's claims not because any of them was frivolous, fraudulent, vexatious or an abuse of process from the outset, but because they were not supported by cogent evidence. In any event, based on the limited evidence before me, I am not able to find that Ms. Dong's Application for Arbitration was one which should never have been commenced in the first place. Accordingly, I reject Coachman's request for the return of its assessment.

EXPENSES:

I was informed that settlement offers were exchanged prior to the commencement of the hearing, but I was not informed what those offers were.

If the parties cannot resolve the issue of hearing expenses in light of this decision, they will follow the procedure stipulated by Rule 77.5 of the Dispute Resolution Practice Code. If necessary, I will issue a separate decision on hearing expenses.

November 22, 2002

David Leitch Arbitrator

Date