minicounsel

Neutral Citation: 2002 ONFSCDRS 37

FSCO A01-000200

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HEN VAN DO

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

November 6, 7 and 8, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Al Pace for Mr. Do

Colin S. Jackson for Allstate Insurance Company of Canada

Issues:

The Applicant, Hen Van Do, was injured in a motor vehicle accident on February 18, 2000. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate terminated weekly income replacement benefits ("IRBs") on March 24, 2001. Other benefits claimed by Mr. Do are disputed by Allstate. The parties were unable to resolve their disputes through mediation, and Mr. Do 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:

Did Mr. Do sustain an impairment within the meaning of section 2 of the Schedule as a result of the accident?
Is Mr. Do entitled to receive a weekly income replacement benefit pursuant to section 4 of the Schedule from March 24, 2001 and ongoing? Mr. Do was paid IRBs of varying amounts until March 24, 2001.

The parties agree that the quantum of IRB that Mr. Do would be entitled to is $291.23 per week and the outstanding benefit at the time of termination was $1,226.90, plus interest.

Is Mr. Do entitled to receive a medical benefit $838.02 for acupuncture provided by Dr. Sokol, $1,928.15 for treatments provided by DN Physiotherapy (DN Physio), $2,025 for a work conditioning program provided by BC Rehabilitation, and $37.16 for cough medicine, all claimed pursuant to sections 14 and 15 of the Schedule?
Is Mr. Do entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule? He claims $1,200 for 12 weeks of housekeeping from February 19 to May 13, 2000.
Is Mr. Do entitled to payments for the cost of examinations conducted by Dr. Wu, Dr. Celinski and Rosemount Medical Assessment Centre (Rosemount), interpretation services provided for the assessments by Dr. Wu and Rosemount, as well as two medical certificates provided by Dr. Sokol on July 13 and October 25, 2000, pursuant to section 24 of the Schedule?
Is Mr. Do entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is Mr. Do entitled to a special award in accordance with subsection 282(10) of the Insurance Act because benefits were unreasonably delayed or denied?

Result:

Mr. Do suffered an impairment as a result of the motor vehicle accident.
Mr. Do is entitled to weekly income replacement benefits from March 24, 2001 to the date of the hearing and ongoing. He is also entitled to the amount outstanding at the time of the termination of benefits. The parties agree that the quantum of IRB that Mr. Do would be entitled to is $291.23 per week and the outstanding benefit at the time of termination was $1,226.90, plus interest.
Mr. Do is not entitled to a medical benefit of $838.02 for acupuncture provided by Dr. Sokol, $1,928.15 for treatments provided by DN Physio, $2,025 for a work conditioning program provided by BC Rehabilitation, and $37.16 for cough medicine, all claimed pursuant to sections 14 and 15 of the Schedule.
Mr. Do is entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule. Mr. Do is entitled to 4 hours per month valued at $80 per month from the time of the accident to April 17, 2000.
Pursuant to section 24 of the Schedule, Mr. Do is entitled to payments for the costs of examinations conducted by Dr. Wu and Dr. Celinski, and interpretation services for Dr. Wu's assessment. He is not entitled to the cost of the Rosemount assessment and interpretation services related to the Rosemount assessment. Mr. Do is entitled to the cost of Dr. Sokol's two medical certificates of July 13 and October 25, 2000.
Mr. Do is entitled to interest on all outstanding payments to which I have found he is entitled.
Mr. Do is entitled to a special award because the manner in which Allstate terminated his weekly income replacement benefits was unreasonable. Mr. Do is entitled to a special award of 10 percent together with interest on the amount of the order in respect of income replacement benefits calculated in accordance with subsection 282(10) of the Insurance Act.

Preliminary Issues:

Prior to the commencement of the merits of the proceeding, two procedural issues were raised:

Mr. Do sought to have included in the joint brief of documents, a medical certificate of Dr. Sokol dated November 1, 2001. The hearing was scheduled to commence on November 6, 2001. No explanation was offered for the late production of the certificate. Dr. Sokol was not expected to be a witness at the hearing. Allstate submitted that the document ought not be admitted as it was a clear violation of the Dispute Resolution Practice Code for which no other appropriate remedy was available. At the hearing I ruled that the document in question would not be admitted in the hearing.

Mr. Do served a summons to witness on Ms. Francine Tremblay, an employee of Allstate who had carriage of Mr. Do's claim until it was referred to arbitration. The summons was served on her on or about November 1, 2001 approximately a week prior to hearing. Allstate claimed that Ms. Tremblay ought to be excused. At the hearing I rejected Allstate's submissions and declined to excuse this witness.

Evidence:

Mr. Do was involved in a car accident on February 18, 2000. He was driving on Highway 50 in heavy snow. His vehicle was struck head on by an on-coming vehicle and was spun around by the impact. There is no indication that any part of his body struck the inside of the vehicle. Mr. Do testified that he felt drowsy but otherwise all right immediately after impact. Mr. Do remained in his vehicle until the police and other emergency services arrived. He was asked if he wished to take the ambulance to hospital but declined. His son was called and drove him home and he went to bed. Mr. Do's vehicle was written off as a result of the accident.

Mr. Do lives in a one bedroom, 400 square-foot apartment which he shares with another adult male. Mr. Do testified that prior to the accident he would spend at most one to two hours per week doing his housekeeping and homemaking tasks. These tasks included laundry, sweeping, cleaning the bathroom, and making his bed. In the weeks after the accident Mr. Do felt unable to perform some of the heavier housekeeping tasks. Mr. Do contracted with a Mr. Binh, who agreed to come to Mr. Do's residence and clean the apartment for $500 per month. This sum was not based on any estimate of the time it would take to perform the required tasks. Mr. Do testified that Mr. Binh attended virtually every day and would spend much of the day at Mr. Do's apartment. On weekends Mr. Binh would come and see whether Mr. Do needed any assistance, and according to Mr. Do, he and Mr. Binh would prepare a meal which they would eat together.

Fulcrum Consultants conducted an in-home assessment of Mr. Do's housekeeping needs on April 17, 2000. Mr. Do is reported to have said at that time that he was able to perform all of his housekeeping and homemaking tasks. Mr. Do testified that he had no difficulty in understanding what was being asked of him at that assessment and that he would have accurately reported his needs at that point.

Mr. Do was employed in a carpentry shop at the time of the accident. Mr. Do testified that he would be unable because of pain to his right shoulder to perform the lifting and reaching above-shoulder work required in his pre-accident employment.

The best evidence of the essential tasks of that employment is contained in an Occupational Therapy Job Site Analysis conducted by Fulcrum Consultants in April 2000. That report described Mr. Do's duties as follows:

manufacturing of kitchen cabinetry, assembly of 5-piece doors, checks parts for quality, applies glue to the doors, assembles doors to the determined specifications, clamps doors in the vice, fasten door parts with pin nails using nail gun/staple gun, remove excess glue from the doors using the soft rag, check quality of assembled product, and lift and place assembled product on the skid of conveyor which is then pushed onto the next department. The client is required to stack the completed product on a skid or conveyor. The lift ranges from below knee to overhead.

Below knee to above shoulder the client would be required to lift a maximum of 30 lbs. The client would be required to lift 70-100 parts daily.

This latter task is described as being required on a frequent basis or 34-64% of the work day.

At another point in the report the stacking of the completed product is said to be required on an occasional basis. "Occasional" is defined in the report as being from 1% to 33% of the day or up to 2 hours and 40 minutes of an 8-hour day.

Fulcrum Consultants reported that the employer required that Mr. Do be "job ready" when he returned to work and that there were no modified duties available.

Mr. Do was seen by his family doctor, Dr. Buu, the day after the accident. Mr. Do claims that Dr. Buu declined to treat him but sent him home with a prescription for some painkillers. He was later referred by an acquaintance to Dr. Sokol, who examined Mr. Do on March 6, 2000.

Mr. Do attended at DN Physio on February 23. In treatment plans of massage and chiropractic submitted by DN Physio on February 23 and 24 respectively, diagnoses of cervical strain, Wad II, and lumbar strain are recorded.

The treatment plan of February 23 was rejected in a letter from Allstate dated March 16, 2000. Ms. Tremblay rejected the treatment plan because it was not reasonable or necessary. At the hearing Ms. Tremblay added little to that explanation. She did testify that she was unable to make medical assessments and she relied on the DAC process to advise her about the medical necessity or reasonableness of a treatment plan. The treatment plan of chiropractic therapy dated February 24, 2000 was rejected by Ms. Tremblay because the "duration of treatments appears excessive." In rejecting the February 23 and 24 treatment plans, Allstate acknowledged its obligations under section 38(16) of the Schedule to fund the lesser of the first 15 treatments with a physiotherapist or chiropractor or total expenses incurred in the six weeks after the accident for physiotherapy and chiropractic treatments.

A further treatment plan of massage therapy from DN Physio dated April 10, 2000 was submitted. It too was rejected.

Dr. Sokol prepared a disability certificate dated March 13, 2000 recording diagnoses of cervical dorsal and lumbar sprain, knee and shoulder sprain, WAD II. An attachment to that document describes Mr. Do's complaining of headaches; dizziness; pain at both sides of front of neck; pain radiating from base of neck to low back; left knee pain; insomnia.

Dr. Sokol submitted a treatment plan for a course of acupuncture to Allstate on or about March 16, 2000. That treatment plan was rejected. In a letter dated March 17, 2000 Ms. Tremblay for Allstate gave as her reason for rejecting the plan:

we cannot consider authorization [sic] the treatment plan as we have to question the reasonableness and necessity of the treatment.

At the hearing Ms. Tremblay added that she was unfamiliar with acupuncture as a treatment in these kind of circumstances. Because she had no ability to assess the treatments' usefulness to Mr. Do, she rejected the plan and referred it to a Med-Rehab DAC. The acupuncture was found to be reasonable and necessary and was paid in accordance with the DAC's recommendation. Mr. Do claims the difference between the recommendations of the DAC and the amount billed by Dr. Sokol.

Mr. Do was assessed at the Orthopaedic and Arthritic Institute at the request of Allstate on May 30, 2000. Dr. Marks, an orthopaedic surgeon, diagnosed right shoulder strain and lumbar strain, bilateral anterior knee pain. Dr. Marks reported that Mr. Do had no medical restrictions for physical activity, but that he may have some "tolerance limitations for reaching at or above shoulder height, for bending and for low level activities. Dr. Marks recommended a functional capacities evaluation to determine Mr. Do's ability to perform his pre-accident job duties.

The recommended functional abilities evaluation (FAE) was conducted in mid July 2000 at the instance of Allstate. The report dated August 8, 2000 stated that Mr. Do was eager to return to work and it was felt by the assessors that he could do so. Despite this conclusion, the report also notes that he did not have the tolerance to perform "reaching and strength" tasks at, and above shoulder height. The report recommended that Mr. Do return to work on a graduated basis over an 8 to 12 week period

A graduated return to work was not available to Mr. Do. In a letter dated September 5, 2000 Allstate offered Mr. Do the choice of three work-hardening programs. Mr. Do responded on November 27 to Allstate's suggestions but, after selecting the program at the Canadian Back Institute ("CBI"), did not attend. The records indicate that Allstate and the CBI made a number of attempts to contact Mr. Do in December and January 2001with no success. There is no record of Mr. Do contacting Allstate or the CBI about the work-hardening program — instead, a further treatment plan for a work-hardening program at BC Rehabilitation was submitted to Allstate in February 2001.

A Med-Rehab DAC was conducted in July 2000 to consider the treatment plans submitted by Mr. Do to that time. In the opinion of Dr. G.S. Conn, the orthopaedic surgeon who examined him, Mr. Do had suffered a strain to his neck, back and right shoulder area. Mr. Do reported that most of his symptoms related to his neck and his knees were resolving. He still complained of pain in his right arm and shoulder. In the opinion of Dr. Conn, Mr. Do continued to have "some problems" with his right shoulder, but otherwise was not limited in his activities.

The chiropractic assessor, I. Steinman, concluded that it was possible that the chiropractic treatment plan of Dr. C. Raymond (February 24, 2000) was reasonable, although it was also considered probable that Mr. Do would not have required more than three treatments per week in the second three weeks of the six-week treatment period. Similar conclusions were reached in respect of the massage treatments recommended by Dr. Raymond and J. Wiersbicki (February 23, 2000). The treatment plan of massage (April 10, 2000) was determined not to be reasonable or necessary.

Ms. Tremblay testified that the DN Physio account was paid directly in January 2001. Ms. Tremblay testified that she discussed the account with a representative of DN Physio and she believed that this was a final payment based on Allstate's obligations under the Schedule including the results of the DAC assessment. There is no other evidence about the status of the account with DN Physio.

Mr. Do maintains claims in respect of some of these treatment plans. The evidence with respect to those issues is considered below in the discussion of his special award claim.

Mr. Do was assessed at the Orthopaedic and Arthritic Institute again in May 2001, at the request of Allstate. The medical assessment was conducted by Dr. Marks who reported that Mr. Do might still have some tolerance limitations for overhead activity. It was considered reasonable and necessary that Mr. Do was "to have attended a work conditioning program for regional conditioning and work simulation activities focussing on his right upper extremity."

A second functional abilities evaluation was conducted as part of this insurer's assessment in May 2001 which concluded that Mr. Do could return to his pre-accident work activities, but should avoid sustained above-shoulder work.

In a letter dated March 8, 2001, Allstate rejected the claim for the benefit of the BC Rehabilitation treatment plan because it questioned the need for work conditioning more than six months after that recommendation had first been made. In the same letter Mr. Do was advised that Allstate would terminate his income replacement benefits effective March 24, 2001 on the basis of the BC Rehabilitation treatment plan which, it was claimed, suggested that disability would not continue beyond that date.

Mr. Gold took over Mr. Do's claim in February 2001. At the hearing, he gave a somewhat different explanation for the termination of the income replacement benefits. He testified that given the passage of time since the FAE of July 2000 which indicated that Mr. Do would be able to perform his job duties with a program of work hardening, he had no idea whether Mr. Do was still disabled. Accordingly, he indicated Allstate's intention to terminate the benefit. Mr. Gold testified that he was not concerned about the impact on Mr. Do if he needed the treatment to safely return to work because in his experience almost all treatment programs are continued despite a refusal by the insurer to fund them.

The BC Rehabilitation treatment plan was referred to a Med-Rehab DAC in July 2001. Mr. Do was assessed by Dr. T. Levy, a physician, who found evidence of right rotator cuff tendinitis and for that reason the treatment plan was considered reasonable for the treatment of Mr. Do's right shoulder, but not any treatments for cervical or lumbar strain. Mr. J. McLachlan, a kinesiologist, concluded that Mr. Do was able to perform the majority of his pre-accident job demands, but would have difficulty performing overhead reaching with his right shoulder.

Subsequent to the termination of the IRBs, Mr. Do's representatives referred him to several health care professionals for assessments.

Mr. Do was referred to Rosemount Medical Assessment Centre. This assessment was conducted on June 22, 2001. Allstate refused to pay for the assessment and relied on Mr. Do's failure to attend a DAC assessment which included a functional capacities evaluation.

Mr. Do was referred to Dr. Wu, a family physician who claims expertise with the treatment of chronic pain and the use of therapeutic nerve block. Dr. Wu examined Mr. Do on July 5, 2001. He concluded that Mr. Do suffered a right rotator cuff impingement, with possible signs of early frozen shoulder and possible minimal brain injury. Dr. Wu recommended that Mr. Do see a psychologist for a psych/cognitive assessment. He also recommended that he consult a shoulder specialist.

Mr. Do was referred to Dr. Celinski, a psychologist. Although much of Mr. Do's medical documentation was provided to Dr. Celinski, the report of Dr. Wu was not. Dr. Celinski concluded that Mr. Do suffered from a pain disorder due to his medical condition and that this was a direct result of injuries suffered in an accident.

Analysis:

Income Replacement Benefit

Mr. Do claims that as a result of the automobile accident he is unable to work at his pre-accident employment. In order to establish entitlement to income replacement benefits, he must establish that he is substantially unable, as a result of impairments sustained in the automobile accident, to perform the essential tasks of his employment. I note that the provision speaks of a substantial and not a complete inability to perform the essential tasks of the pre-accident employment.

I find that Mr. Do sustained impairments as a result of the accident of February 18, 2000. I find that these impairments largely resolved over time, but as of the date of the hearing, he still suffered an impairment in his right shoulder which affected his ability to function as he had prior to the accident.

I also find that it was an essential task of Mr. Do's employment that he place completed components on a conveyor or skid and that this task required the ability to reach and lift up to 30 pounds at and above shoulder height. These reaching and lifting tasks were required from 70 to 100 times per shift.

Allstate in its submissions placed a good deal of weight on the fact that shoulder height and above-shoulder work was described as occasional in at least one functional evaluation. It is not only the duration of time required by a task that is determinative, but whether or not the task is essential to the work process. A task only required on an infrequent basis will be an essential task if it is essential to the work process. In this case the evidence is that the employer required Mr. Do to be "job ready" if he was to return to work and that no modified work was available. I find that this task would routinely and continuously throughout the work day require at shoulder and above shoulder reaching and lifting. I find for these reasons that the task of stacking the completed product on the conveyer or skid was an essential task of Mr. Do's pre-accident employment.

I accept Mr. Do's evidence that he would be unable to perform this task. Mr. Do's view of his physical ability to perform the at and above shoulder work is uncontradicted in any significant way by the medical evidence, all of which points to his difficulties with reaching and lifting at or above shoulder height. In particular, I note that the assessment conducted by the Orthopaedic and Arthritic Institute in May 2001 indicated that Mr. Do ought to avoid sustained over-shoulder reaching with his right extremity as well as the DAC report of July 27, 2001 which reported that Mr. Do would have difficulty performing overhead reaching with his right shoulder.

Housekeeping and Home Maintenance

Mr. Do claims $1,200 for housekeeping and home maintenance. Allstate rejected the claim on the basis of an in-home assessment conducted by Fulcrum Consultants in April 2000 which concluded that Mr. Do was not substantially disabled from completing his pre-accident homemaking duties.

The amount claimed for housekeeping is clearly exorbitant given Mr. Do's evidence of the amount of housekeeping required to maintain his apartment. I find that Mr. Do spent at most four hours per month maintaining his apartment prior to the accident.

Mr. Do, who I find to be generally truthful, testified that he needed some assistance with the heavier housekeeping tasks in the weeks after the accident. There is no evidence to contradict his claims until the Fulcrum Consultants in-home assessment.

On the basis of this evidence, I find that Mr. Do was entitled to four hours of assistance per month, which I would value at $80 per month, from the time of the accident to April 17, 2000 when it is uncontradicted that he was able to perform all of his pre-accident housekeeping tasks.

Medical Benefits:

A number of benefits are claimed:

Cough Syrup

No evidence was led with respect to the claim for cough medicine. I find that Mr. Do is not entitled to a payment of $37.16 for cough medicine.

Treatment Plan of Acupuncture - Dr. Sokol

This claim is for the difference between the fee charged by Dr. Sokol ($50 per treatment) and the $30 per treatment paid as recommended by the Med-Rehab DAC based on the fee schedule of the Ontario Kinesiology Association.

I heard no evidence of a corresponding Ontario Medical Association fee guideline for acupuncture, or why a higher fee might be appropriate when the treatment is provided by a medical doctor rather than another health professional. In these circumstances I can find no reason why a higher fee ought to be payable, solely because the person administering the treatment is a medical doctor and not another person trained in its use.

DN Physio Treatment Plans

Allstate has made payments in partial satisfaction of the DN Physio account (see Special Award below). The amount outstanding in the submission of Mr. Do is $1,226.90. Mr. Do lead no evidence that would cast light on the relationship between the amounts paid and the determinations of the DAC assessment.

I find that Mr. Do is entitled to no further payments in respect of the treatment provided by DN Physio. On the facts as presented, the amount owing can be no more than that found to be reasonable and necessary by the Med-Rehab DAC. The only evidence of what that might be is the evidence offered by Ms. Tremblay. I accept her evidence. I find therefore that the payments owing to Mr. Do in respect of the DN Physio were paid in January 2001 directly to the service provider.

BC Rehabilitation

Mr. Do claims an amount in respect of the BC Rehabilitation work-hardening program. Mr. Do testified that he began the program and attended 12 sessions. Each session would last between 2.5 and 3 hours and consisted of a period of walking, a period of deep bending and squatting, wall walking, tightening of bolts and screws with both hands and lifting from floor to table height. He was supervised in some of his activities

The BC Rehabilitation treatment plan was considered by Med-Rehab DAC as previously discussed. Mr. McLachlin concluded that the BC Rehabilitation program was reasonable and necessary for injuries to the right shoulder, although the cost of the program was excessive. No further formal treatments were recommended

Allstate paid one third of the amount invoiced on the somewhat arbitrary basis that the work-hardening program at BC had included treatment for his cervical and lumbar spine as well as his right shoulder and that one third of the invoiced cost would be appropriate.

Although Allstate's calculation of the benefit payable was somewhat arbitrary, Mr. Do has provided no basis on which to challenge Allstate's assessment. The evidence does not support any particular conclusions about the efficacy of the program or whether a resumption of the program would be beneficial. The evidence that Mr. Do is limited in his use of this right arm and shoulder does not establish that any further payments for this rehabilitation program will benefit him.

Accordingly, I find that Mr. Do has not met his burden of establishing entitlement to any further payments in respect of the BC Rehabilitation work-hardening program.

Section 24 Benefits:

Mr. Do claims the cost of several assessments conducted at the instance of his representatives, as well as the cost of two certificates provided by Dr. Sokol.

Allstate takes the position that none of the claims were proper section 24 claims, primarily because they were not reasonably required in the circumstances. Allstate relied on the appeal decision in M.D. and Halifax Insurance Company (FSCO P00-00049, May 16, 2001) in support of its position regarding these claims.

Mr. Do argues that these are proper section 24 claims or, in the alternative, expenses of the arbitration.

Rosemount FAE

Allstate declined to pay for this assessment because it considered it unreasonable to conduct a functional abilities evaluation when a DAC including a functional capacities evaluation was imminent.

Mr. Do is not entitled to this expense as a section 24 claim. In the absence of any evidence at all as to the purpose of this assessment, it is not clear why this assessment would have been undertaken almost simultaneously with a DAC which included a functional capacities evaluation.

Dr. Wu

Allstate declined to pay for this referral because it was considered unreasonable for Mr. Do to be assessed by another family physician, while a DAC report was pending.

I find that the referral to Dr. Wu and his report was a reasonable step to take and, accordingly, the expenses associated with it are a reasonable section 24 expense. I find that the investigation of the possibility that Mr. Do was suffering from chronic pain by a physician with expertise in that area was a valid rehabilitative exercise and not something that had been specifically addressed to that point.

Dr. Celinski

Allstate declined to pay for this report because in its view it was a legal opinion and did not address Mr. Do's treatment needs.

I find that Mr. Do is entitled to the payment of this account pursuant to section 24 of the Schedule. The investigation of Mr. Do's psychological status was an obvious issue that had been raised on at least one occasion by Dr. Sokol.

Dr. Sokol

At the conclusion of the hearing, Mr. Do added a claim for two medical certificates provided by Dr. Sokol on July 13 and October 25, 2000. There is no record of a response to these claims. At the hearing Allstate submitted that the reports were not requested by it and also that they were prepared for another proceeding. Although this is not clear on the evidence, it was suggested that one of the two reports was prepared for purposes of resolving the collateral benefits issues.

I find that Mr. Do is entitled to payment for the medical certificates of Dr. Sokol dated July 13 and October 25, 2000.

Interpretation services

Mr. Do also claims for interpretation services provided for the assessments by Rosemount and Dr. Wu. Mr. Do's entitlement to these expenses follows the result of the substantive claims. Accordingly, Mr. Do is entitled to the interpretation expenses for the assessment conducted by Dr. Wu, but not for those related to the Rosemount assessment.

Special Award:

Evidence and Analysis

Section 282 of the Insurance Act requires an arbitrator to make a special award where the payment of a benefit to an insured is unreasonably delayed or withheld. The amount of a special award should reflect the overall conduct of the insurer including any mitigating circumstances. It is well established that the conduct of the insured person ought to be considered as well in assessing the amount of a special award.²

Although no claim was made in respect of the account, Mr. Do relied on the non-payment by Allstate of an assessment fee charged by Dr. Sokol for the disability certificate provided on March 13, 2000. An invoice for the examination and the disability certificate in the amount of $117.33 was submitted for payment. Allstate paid $75 of the account, claiming in the Explanation of Benefits form that because Dr. Sokol was Mr. Do's treating physician, it would only pay for the disability certificate and not the related assessment. Allstate claimed the assessment fee should be billed to OHIP, notwithstanding the OCF-3 form which indicates that assessment fees are not billable to the public health insurance plan and should be paid by the insurer. Ms. Tremblay had no explanation for Allstate's position.

I find that the refusal of Allstate to pay Dr. Sokol's fee for an assessment of Mr. Do in March 2000 was unreasonable.

Similarly, the manner in which Allstate refused Dr. Sokol's treatment plan of March 16 and the DN Physio treatment plan of February 23, 2000 were unreasonable. It is not a reason for a refusal of a benefit to merely recite the language of the Schedule. The Insurer is also required to elaborate on the reason for its view that the treatment is not reasonable or necessary.

Allstate's denial of the other DN Physio treatment plans (February 24 and April 10) were not unreasonable in the circumstances. The reason given was that the program seemed excessively lengthy. This was not an unreasonable position to take at the time and, in any event, Allstate's view was in large part vindicated by a subsequent DAC.

Mr. Do relies on the lengthy delay in making the payments toward the DN Physio account that were required by operation of section 38(16) of the Schedule as well as the recommendation of the DAC. There were lengthy delays in the payment of this account. I find however that the delays were not the fault of Allstate. As indicated earlier, Allstate, in rejecting the treatment plans submitted by DN Physio, acknowledged its obligations to fund some treatments notwithstanding its position that some or all of the proposed treatment was not reasonable or necessary. DN Physio submitted an invoice to Allstate on or about May 12, 2000 for services provided from February 23 to May 9. Ms. Tremblay replied by asking for further information, including the complete clinical notes and records of the treatment in order that she could assess the reasonableness of the fees charged for the services provided. I find that Allstate was entitled to request this information.

A similar exchange of letters was made in July 2000. DN Physio did not provide the requested information.

Subsequent to the Med-Rehab DAC report, Allstate wrote to Mr. Do and acknowledged its obligation to pay in accordance with the DAC, however the issue of the DN Physio treatments became part of the parties' discussion of a resolution of all the disputes between the parties. Mr. Do did not contradict Ms. Tremblay's evidence in this regard. As I have previously determined, the account was ultimately paid directly to DN Physio in early 2001.

While lengthy, the delay in the payment of the DN Physio account is not the responsibility of Allstate. It was entitled to the information it requested of DN Physio. A significant part of the delay occurred because of the parties' attempts to resolve their disputes without reference to mediation. Mr. Do participated in these discussions without pressing for payment of this particular account. I find that any delay attributable to these discussions is also not the responsibility of Allstate.

Mr. Do also relied on the termination of his income replacement benefits. At the time the decision was made, Allstate had little or no evidence that Mr. Do was ready to return to his full pre-accident job duties. While Mr. Do was able to perform most of his job duties without difficulty, the consensus of opinion was that Mr. Do would have difficulty lifting and reaching at or above shoulder height. In order for Mr. Do to safely return to his job duties, a graduated return to work had been recommended. Because no workplace accommodations were available, Allstate had offered Mr. Do the alternative of a work-hardening program. Allstate had no other evidence of Mr. Do's physical status after the assessments conducted in July 2000, when it chose to terminate his benefits in March 2001. Mr. Gold was frank in testifying that he had no idea whether or not Mr. Do was rehabilitated when he made the decision to terminate his weekly benefits.

In taking the decision to terminate Mr. Do's weekly benefits, Allstate sought to have it both ways. In terminating income replacement benefits, it relied upon BC Rehabilitation's prognosis for recovery assuming the implementation of the treatment plan, while at the same time denying the treatment plan intended to assist in meeting the prognosis.

I find that the decision to terminate Mr. Do's weekly benefits was unreasonable both in substance and in the manner in which it was done. It is primarily on the basis of this decision that I find that Mr. Do is entitled to a special award.

There are significant mitigating factors in this case, particularly in respect of the termination of weekly benefits. While the decision taken to terminate the weekly income replacement benefit on the basis of the prognosis in a rejected treatment plan was entirely inappropriate, in the circumstance of this case, the lengthy delay in getting Mr. Do into a work-hardening program must be considered. I find that virtually all of the delay can be attributed to Mr. Do's failure to respond promptly and appropriately to Allstate's offer of the CBI work-hardening program. Having finally chosen the CBI after many weeks, Mr. Do declined to attend and, instead of consulting with Allstate about any difficulties that he might have had with that facility, responded with the further treatment plan from BC Rehabilitation in February 2001. In the circumstances, Allstate's misgivings about Mr. Do's true functional status were not entirely without basis, however inappropriate its response to the situation.

In light of these circumstances I find that Mr. Do is entitled to a special award of 10% on the weekly income replacement benefits that I have found are payable to him. I heard no submissions on the manner of calculating the special award. The parties may speak to this issue if unable to resolve it themselves.

EXPENSES:

The parties may speak to the issue of expenses if unable to resolve it themselves.

February 18, 2002

David Muir Arbitrator

Date