Neutral Citation: 2002 ONFSCDRS 90

FSCO A00-000065

BETWEEN:

ELMER LANGDON Applicant

and

PAFCO INSURANCE COMPANY LIMITED Insurer

REASONS FOR DECISION

Before: Suesan Alves

Heard: January 29, 30, 31, February 1, March 23, 26, 27, May 4, August 17, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Brian Sherman for Mr. Langdon Mr. Joel Levine for Pafco until March 27, 2001 Ian D. Kirby for Pafco on May 4 and August 17, 2001

The Applicant, Elmer Langdon, was injured in a motor vehicle accident on March 12, 1999. He applied for and received statutory accident benefits from Pafco Insurance Company Limited ("Pafco"), payable under the Schedule.¹ In this arbitration, Mr. Langdon claims payment of medical and rehabilitation benefits, interest, a special award and his expenses in respect of the arbitration. Pafco disputes all of Mr. Langdon's claims. The parties were unable to resolve their disputes through mediation, and Mr. Langdon applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

On April 30, 2002, I issued my Order in this matter, with reasons to follow. These are my reasons.

The issues are:

Is Mr. Langdon entitled to the cost of treatment and four treatment plans prepared by Target Rehabilitation Centre in the amount of $12,575?
Is Mr. Langdon entitled to interest on overdue amounts under section 46 of the Schedule? If yes, when does interest begin to run?
Is Mr. Langdon entitled to a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8 as amended?
Is Mr. Langdon entitled to his expenses in respect of the arbitration?

Pafco Insurance Company shall pay Mr. Langdon $5,940 as the cost of treatment for 99 sessions at the rate of $60 per session at Target Rehabilitation Centre. Pafco Insurance Company is entitled to a credit of $2,700 for the amounts already paid in relation to Mr. Langdon's treatment at Target Rehabilitation Centre. Pafco Insurance Company shall also pay the cost of four treatment plans at the rate of $75 each.
Pafco Insurance Company shall pay Mr. Langdon interest at the rate of 2% per month compounded monthly on the benefits owing, from the date the amounts first became overdue. If the parties are unable to agree on the amount, I remain seized of the calculation.
Pafco Insurance Company shall pay Mr. Langdon a special award in the amount of $1,000 inclusive of all interest.
If the parties are unable to agree on expenses, that issue may now be addressed.

Background:

Elmer Langdon was injured in a motor vehicle accident on March 12, 1999. He was driving on Highway 404, at about 100 km per hour when, due to traffic which had stopped in front of him, he abruptly came to a stop and was rear-ended. It was a significant collision, which caused his vehicle to be turned around 180 degrees. Mr. Langdon's car was written off.

Mr. Langdon heard the loud bang of the crash, and briefly lost consciousness. After one or two minutes, he regained consciousness, and found people banging on his window who asked him if he was okay. On regaining consciousness, Mr. Langdon had immediate symptoms of headache, and later developed neck and upper back pain. I find that Mr. Langdon sustained a concussion, developed post-traumatic headaches, and mechanical headaches. I also find he sustained a strain to his neck and upper back and required treatment to address those impairments.

At the time of the accident, Mr. Langdon was 34 years of age, receiving unemployment insurance benefits, and due to start work at his brother's business, TNT Removals, at the end of March 1999. About 80% of his job involved demolition work preparing various sites for renovation. About 20% of his job involved the sale of reusable building materials. Mr. Langdon's work might involve taking down ceilings, walls, lights, wiring, removing wooden and ceramic floors or carpeting, removing roofs, gutting bathrooms, removing concrete patios or verandas. He dug by hand, with shovels and picks. He used a sledgehammer, jackhammer, skil saw, wheelbarrows, samurai, excavator, forklift and loader as appropriate. I find this was heavy work. I also find that for most of his adult life, Mr. Langdon has performed heavy work, such as working as a labourer at foundries. I find that although Mr. Langdon had pre-existing injuries, they did not pose a significant problem for him at the time he was involved in the March 1999 accident.

A Pafco adjuster, with whom Mr. Langdon spoke, encouraged him to obtain early treatment for his injuries. Since Mr. Langdon was unfamiliar with any rehabilitation facility, the adjuster suggested the Canadian Back Institute ("CBI"). The adjuster made the arrangements, and Mr. Langdon was assessed by a physiotherapist who recommended treatment. CBI recommended that Mr. Langdon stay off work for a week. Mr. Langdon followed this advice and then began working at TNT Removals. After attending CBI for about a week, Mr. Langdon decided that he would instead pursue an active treatment program at Target Rehabilitation Centre ("Target") in conjunction with chiropractic treatment.

Pafco rejected the Target treatment plan. Pafco stated, "The treatment is deemed to be unnecessary and unreasonable based on the information we have on file." Under the Schedule, when an insurer rejects a treatment plan it is obliged to give reasons. I find that this was an assertion of Pafco's position, not reasons for Pafco's rejection of the plan. No one reading that statement would know what information Pafco had on file, or how that information led the adjuster to conclude that the treatment plan should be rejected.

Pafco arranged for an insurer examination as well as a medical and rehabilitation assessment by a designated assessment centre ("DAC"). In June 1999, the DAC assessors were of the opinion that Mr. Langdon required a further two weeks of treatment, emphasizing a self-directed home exercise program. Target continued to submit treatment plans and to treat Mr. Langdon until his discharge in December 1999. Based on the DAC, Pafco concluded that it would pay for some of the treatment and one of the treatment plans.

Mr. Langdon seeks payment for 99 treatment sessions at the rate of $150 per session, payment of four treatment plans, interest, a special award and his expenses in respect of the arbitration. Pafco disputes all of Mr. Langdon's claims.

Medical and rehabilitation treatment

Section 14 of the Schedule provides for payment of medical benefits, while section 15 of the Schedule provides for payment of rehabilitation benefits. Both benefits pay for "reasonable and necessary expenses" incurred by or on behalf of the insured person to treat impairments sustained in an accident.

Target's goal for Mr. Langdon's program was to return him to his pre-accident level of function, namely his ability to perform heavy work. Both Mr. Rod Hare, a certified kinesiologist who reviewed Target's records on behalf of the Applicant, and Ms. L. Hatt, a physiotherapist who reviewed Target's records on behalf of the Insurer, agreed that this was a reasonable and appropriate rehabilitation goal. I accept their evidence. I find the treatment goals in each of the four treatment plans in issue to be reasonable.

Mr. Langdon's representative agreed that the amount of $75 which Pafco paid for one treatment plan was an acceptable amount to be paid for each of the remaining treatment plans, instead of the amount claimed. I find that amount reasonable and conclude that Pafco should pay $75 for each of the four remaining treatment plans which Mr. Langdon claimed.²

In the case of State Farm Mutual Automobile Insurance Company and Walker (OIC P96-000036, December 9, 1996), Director's Delegate Draper held that:

The focus of these sections is on providing reasonable medical and rehabilitation services. If the proposed treatment or rehabilitation plan is reasonable, the goods and services necessary to carry out the plan are to be provided, as long as the cost of those goods and services is also reasonable. The fact that the insured person might recover eventually without treatment does not disqualify him or her from receiving reasonable medical and rehabilitation expenses.

Although Director's Delegate Draper's ruling was made with respect to the Bill 164 Schedule, the successor Schedule, Bill 59, provides for the payment of reasonable and necessary medical and rehabilitation expenses. Accordingly, I find the ruling equally apt in relation to the Bill 59 Schedule which governs this case.

The question in this case is whether the cost of the goods and services was reasonable, having regard to Mr. Langdon's injury, the need for supervision, the presence of other patients during the treatment sessions, the duration of the program, and the rate charged per session.

The Target program

Mr. R. Fleury, the clinic manager at Target, and Dr. E. Silverstein, an orthopaedic surgeon who assessed Mr. Langdon at Pafco's request, testified that about ten years ago, persons who needed rehabilitation from soft tissue injuries were frequently treated with rest and passive modalities. The current view within the rehabilitation community is that, while such treatment is appropriate during the initial stages following an injury, active rehabilitation is the preferred treatment to accelerate the recovery of a person who sustains soft tissue injuries.

The active rehabilitation program at Target was designed by Dr. R. Chow, a physiatrist, and is delivered by therapists under the direction and supervision of the manager and director of the clinic and of Dr. J. Teitel, a general practitioner.

Target is a 1,400 square foot facility, which is generally open Mondays through Fridays between 9:00 a.m. and 5:00 p.m. Clients do not make appointments for their rehabilitation therapy at Target. They drop in during business hours for their sessions. According to Mr. B. Leila, Target's clinic director, these sessions might last between 1 hour to 2.5 hours. The facility is equipped with treadmills, bicycles, mats, weights, therabands, and a Hanoun Gym System (a specifically designed multi-station, weight-bearing apparatus which can be used in different ways and positions to allow multi-directional exercise). In the opinion of Ms. L. Hatt, the facility had adequate equipment to provide appropriate active therapy for Mr. Langdon. I accept her opinion.

In March 1999, Dr. Teitel assessed Mr. Langdon and recommended an exercise regime consisting of stretching and strengthening exercises for his neck and shoulder, cardiovascular training and muscle retraining using the Hanoun Gym System. Initially, Dr. Teitel recommended that Mr. Langdon attend the program daily. In June, he recommended attendance three times per week; in October he decreased this to once a week; and in December 1999, Dr. Teitel discharged Mr. Langdon from the program.

Mr. Hare testified that the goal of the exercise therapist was to try to get Mr. Langdon to 75% of his predicted heart rate, through an exercise regimen of 12 minutes. With that capacity the therapist can then start to achieve the physiological goals of increasing the patient's capacity to work with his pain.

Active rehabilitation, supervision & exercise compliance

Mr. Hare testified that scar tissue forms in muscle as it heals. Active rehabilitation therapy is designed to promote the laying down of scar tissue in the direction of stress to make the best possible repair of the tissue. When persons begin to get active through exercise or returning to work, they often experience pain. The person who supervises an active exercise program must use clinical judgment at such times to adjust the program.

The person who supervises such a program should ensure that the injured person does not strain vulnerable joints or sustain further injury in the course of the program. Injured persons develop abnormal muscle substitution patterns in response to an injury. The exercise supervisor must identify and correct such patterns before these patterns are repeated to injurious levels.

Motivating persons to exercise is not an easy task. Persons who have not been injured and who wish to improve their health, fitness or appearance frequently do not exercise regularly. For some people, a facility with adequate equipment provides a conducive location for regular exercise, and they are able to build in an exercise program as a part of their day. Others buy a gym membership and seldom attend. Others are able to incorporate exercise into their day on a regular basis without the use of a gym. Mr. Hare testified that exercise compliance is a measure of a person's ability to manage and maintain his or her own exercise program, and that individuals can be tested to determine whether they are likely to be exercise compliant.

Mr. Hare testified that in an active rehabilitation program, persons who have been injured and who are already in pain, are asked to perform exercises which may cause additional pain. The gains from that pain may not be immediately apparent. A person supervising an active rehabilitation program therefore also needs to coach, motivate and reassure the injured person through this process. The exercise supervisor often maintains charts and progress notes. These can be useful in tracking a patient's progress, as a tool to show the injured person concrete progress over time. Such records also serve to document the rationale for changes or adjustments in the patient's program.

Both Mr. Hare and Ms. Hatt agreed that persons who have been injured in motor vehicle accidents are amongst the least compliant persons with exercise regimens and hence need supervision. I accept their evidence. In Mr. Langdon's case, although he is described in Target's progress reports as being self-motivated, needing minimum instruction, encouragement and supervision, for the reasons given above, I nevertheless find that he required supervised exercise therapy.

A wide range of health practitioners prescribe and provide active rehabilitation therapy to persons who have been injured in motor vehicle accidents. These include physicians in the general practice of medicine, specialists such as rheumatologists, physiatrists, orthopaedic surgeons, physiotherapists, occupational therapists, nurses, massage therapists and kinesiologists.

Mr. Hare testified that kinesiology is a multi-disciplinary science which encompasses four primary areas of study: anatomy, biomechanics, physiology and psychomotor behaviour. In active rehabilitation therapy, kinesiologists apply exercise to treat a medical condition or injury. They may have studied the psychology behind persuading and coaching a person to perform exercise. Ms. Hatt agreed that the kinesiologists who worked at her clinic were very skilled at motivating patients.

It appears, however, that there is no ownership in the name kinesiologist, and anyone may use such a title. The term appears to have no legal significance. Target indicated to Pafco that Ms. Vera Marinkovic, the person who supervised Mr. Langdon's exercise program at Target, is a kinesiologist. Persons who can use the title of certified kinesiologist are trained in four primary areas of study. They apply to the Ontario Kinesiology Association, pay a membership fee, obtain liability insurance, are subject to discipline and are encouraged to engage in continuing education. Neither kinesiologists nor certified kinesiologists are a regulated health profession. Further, the provision of active exercise therapy in and of itself is not regulated. I conclude that many but not all of the providers of active rehabilitation therapy are members of regulated health professions.

Ms. Marinkovic qualified as a medical doctor in Yugoslavia, after attending the University of Belgrade, a sister university of the University of Toronto. Her courses included human anatomy, human physiology, pathological physiology, pathological anatomy, orthopaedic surgery and physical medicine and rehabilitation. She successfully completed Part I of the medical licensing exams from the Medical Council of Canada and is entitled to practise medicine in any province in Canada, but Ontario.

Mr. B. Leila testified that in his opinion Ms. Marinkovic had appropriate academic qualifications for the work she was hired to perform. In addition, she had worked side by side with a certified kinesiologist at Target for a year, and the doctors were satisfied with the manner in which she progressed patients. She had the interpersonal and coaching skills necessary to deal with a wide range of injured persons and he had not received any patient complaints.

I find patient feedback is helpful in relation to interpersonal skills. However, patients for the most part are not able to assess whether their exercise therapist is technically competent. In Mr. Leila's opinion, patients believe what Ms. Marinkovic tells them and listen to her. In his opinion, motivation in active therapy with a patient is 90%. He testified that it is not difficult to hire someone who is a certified kinesiologist. I find that while formal qualifications indicate that a person has a certain standard of education or experience, the absence of such qualifications does not necessarily imply an absence of knowledge or competence in an area.

Mr. Hare testified that based on the two résumés filed in relation to Ms. Marinkovic, she had completed academic courses in three of the four component areas of kinesiology. He was uncertain whether she also had studied psychomotor training. He was therefore unable to say that she would meet the criteria of the Ontario Kinesiology Association to call herself a certified kinesiologist without further training. He was of the opinion that she had good qualifications and should be paid no less than a kinesiologist or a physiotherapist.

In this case, I find, based on Ms. Marinkovic's education and working side by side with a certified kinesiologist, the reports of her communication and interpersonal skills, and her satisfactory progression of patients through their exercise programs, that Ms. Marinkovic had sufficient skill to coach and deliver the active exercise program which had been designed by Dr. Chow.

Target's records

Dr. J. Teitel, a general practitioner who works at Target, conducts an initial assessment of the patient. A kinesiologist also conducts a fitness assessment. The kinesiologist and the doctor then discuss the treatment plan. Target also maintains a chart or therapy log on each patient, which is supposed to be completed by the exercise therapist on the same day as the activities which are charted take place. After every ten sessions, the therapist completes a summary narrative progress report. Periodically Dr. Teitel reviews such reports, reassesses the patient and makes further recommendations to the exercise therapist as to the nature and duration of treatment.

In this case I find that the inaccuracies in the records suggest that they were not prepared on a timely basis, and that there was little communication between the physician and the exercise therapist. A few examples will suffice.

Ms. Hatt and Mr. Hare both expressed the view that treatment records should be kept in such a manner that another person who reviews them can determine what was done, the rationale for various steps, and could pick up the program and carry it out. Neither Ms. Hatt nor Mr. Hare found the records were kept in a manner which allowed them to do this.
In a note dated August 10, 2001 the exercise therapist recorded, "He states he doesn't perform the biceps curls or upright row. (I am sure he has done these in the past)." I find it unlikely that a therapist who was maintaining accurate records made contemporaneously with the events described in such records would make such a note.
In cross-examination Mr. Hare was asked if he could reconcile an apparent discrepancy in the records. According to the therapy log, as of May 5, 1999, Mr. Langdon attended 19 treatment sessions. According to the summary progress report dated May 5, 1999, which is a handwritten document, Mr. Langdon had completed 10 sessions. Mr. Hare responded: "Either she's not writing the progress report on the day she is supposed to be writing it or he has completed 10 sessions and she marked him down for 19."
According to the Target records, after the DAC was conducted in June 1999, Mr. Langdon developed back pain. Dr. Teitel reported this was lumbar pain, that is to say pain in Mr. Langdon's low back. Mr. Langdon denies ever having experienced lumbar pain following this accident. The progress notes from the therapist reflect that Mr. Langdon experienced interscapular pain, or pain in his upper back

During his testimony, Mr. Langdon expressed doubt that he developed interscapular pain as late as the Target records suggest. According to the progress reports, Mr. Langdon developed upper back pain between June 8 and June 30. According to the therapy log, back exercises to treat that pain are first noted on June 25 in the chart. Mr. Langdon testified that he believes he developed interscapular pain about a month after the accident, not in June 1995. Dr. Silverstein assessed Mr. Langdon on May 10, 1999. At that time, Dr. Silverstein noted that Mr. Langdon's chief complaint was interscapular pain. The DAC report by Dr. Tibbles, chiropractor of an assessment performed on June 9, 1999, also supports Mr. Langdon's version. In that report, Dr. Tibbles stated: "At this point he is most concerned with his interscapular complaint which is described as an ache and has only had limited improvement." This supports a finding that Mr. Langdon's memory, at least in this instance, is more accurate than the Target records.

These problems with the records leave me with little confidence that the records are accurate and as helpful as they ought to be. They make it difficult to determine why Mr. Langdon's treatment was carried out in the manner set out in the records.

Treatment Rates

Target bills a sessional fee of $150, regardless of the services provided during a patient's session. Patients spend between 1 to 1.5 hours on average, and at times as long as 2.5 hours at a Target treatment session. Ms. Marinkovic is paid at the rate of $19 per hour.

Mr. Leila testified that Target's fee has not changed since the clinic began operating in January 1994. The insurance industry's response to Target's bills has varied depending on the applicable Schedule. He testified that most insurers accept their rate, however, there are some disputes concerning the duration of treatment and about the extent of treatment provided following a DAC assessment. Allstate and Zurich, however, deny every account Target submits.

I heard evidence as to a range of charges for active rehabilitation therapy with little rationale for charges at the low or high end. The Applicant filed a letter from the program co-ordinator of Backcare & Sport Injuries Rehabilitation Centre in Scarborough. According to the letter, that facility charges $150 per session for a functional restoration program and for a muscle conditioning program. A session lasts at least one hour, on average.

Backcare & Sport Injuries employs kinesiologists in their active rehabilitation therapy sessions, in conjunction with supervision by a chiropractor, physiotherapist and/or occupational therapist. It is common for that facility to have at least one therapist dealing with one or more patients at a time who are at various stages of their active program. The facility does not prorate fees based on the number of patients.

Mr. Hare testified that in 1999 he operated his own clinic. He testified that the rates for active rehabilitation therapy in the Greater Toronto area ranged between $85 to $90 per hour at the lower end and up to $200 per hour. Work hardening rates ranged from a low of $150, and, at the high end were between $200 and $300. He testified that the suggested billing rates in the Ontario Kinesiology Association fee schedule for a kinesiologist in 1998 through 1999 was between $95 and $110 per hour. Once the 1999 schedule was ratified, the suggested hourly rate for a certified kinesiologist in 1999 became $120 per hour. In Mr. Hare's opinion, Ms. Marinkovic had good qualifications, and her services should be billed at no less than a kinesiologist or a physiotherapist of $120 per hour.

Mr. Hare testified that he has performed functional capacity evaluations and has lectured on how they should be conducted. He testified that assessment and treatment require identical skills on the part of the therapist. In his opinion the effective hourly rate charged by the medical and rehabilitation DAC for the services of the physiotherapist and kinesiologist was $248.75 per hour, while that charged for similar services in relation to the FAE during the second DAC was $195 per hour. In Mr. Langdon's submission, insurers pay these rates to DACs without hesitation and should therefore be willing to pay the much lower rate billed by Target in the amount of $150 per session.

Ms. Hatt testified that the market billing rate for kinesiologist's services was between $60 to $80 per hour in 1999. She based this on telephone calls she had made to various clinics, as well as the brochures provided by some of the larger group of treatment providers, such as Life Mark, the CBI and P.A.T.H. Mr. Hare was of the opinion that such low fees are billed only where the treatment providers make volume deals with insurers. He suggested that CBI made such deals. Ms. Hatt testified that she had been the manager of a CBI clinic and to her knowledge CBI was not party to any such arrangements. Most patients had been referred by their physicians.

Under the Physiotherapy Utilization Guidelines a physiotherapist's time is billed on an hourly rate of between $95 and $120 per hour. At the Canadian Back Institute, Mr. Langdon's treatment sessions were estimated to be 45 minutes long, at a cost of $90 per session. His final visit in that treatment plan was estimated to be 30 minutes at a cost of $60 per session. According to a brochure provided by CBI Rehabilitation Services, CBI bills registered physiotherapists at $100 per hour, occupational therapists at $90 per hour and kinesiologists at $80 per hour. The Applicant noted, and I accept, there can be a difference between the fees published in a brochure and the actual fees charged by a treatment facility.

Ms. Hatt was of the opinion that a physiotherapist would provide one-on-one supervision of sessions lasting half an hour, at a cost of $60 per session. However, given Mr. Langdon's headaches, a somewhat longer session of 45 minutes might be necessary at a rate of $90 per session. Ms. Hatt testified that the market in Ontario charges $80 per hour for one-on-one care by a kinesiologist.

A brochure from the Active Physiotherapy Rehabilitation Group reflects a fee of $55 to $110 per treatment, although it is not clear who supervises the sessions. Additional fees are charged for progress reports.

Thus, there appears to be a wide range in the fees charged in the active rehabilitation therapy industry, with little rationale for charges at the low end or the high end of the spectrum.

Prorating and one-on-one therapy

There was evidence as to the meaning of one-on-one therapy and whether prorating of the bill was appropriate. Mr. Fleury and Mr. Leila testified that while they worked as adjusters they never received a prorated bill from a treatment facility. However, neither Mr. Fleury nor Mr. Leila was working for an insurer in November 1997, when The Physiotherapy Utilization Guidelines took effect. Under those Guidelines physiotherapists may bill up to $125 per hour for direct one-on-one treatment only.³

Mr. Leila testified that there was no consensus as to what the term "one-on-one therapy" means in kinesiology. Mr. Langdon testified that at Target two to four patients usually attended at the same time as he did and were supervised by the same therapist.

Mr. Hare testified that a therapist makes both a business and a clinical decision as to the number of persons he or she can competently supervise. Each patient should be charged for the product delivered. Thus, if a therapist supervises a group of patients, each of whom is at the facility for an hour, each patient is billed for a full session.

Mr. Hare testified that there could also be motivational benefit in having a group of people with similar injuries attend treatment together. The individuals could interact, see others with similar injuries exercising despite pain and could therefore become more motivated to do their exercises. This rationale is unlikely to apply at Target because patients attend at that facility for treatment when they are ready to do so, not on the basis of an appointment. Thus, the group is arranged randomly, at the instance of the patients, not by the therapist's design.

Physiotherapy Active Treatment towards Health prepared a document called "P.A.T.H. MVA Fee Guidelines, Clarification for Adjuster Inquiries." According to that document,

Treating More than One MVA Client at a Time:

The key point to interpreting the set fees is that it is impossible for the therapist to be in two places at one time. If there are 60 minutes (or four 15 minute units) of time available to see clients each hour, it is inappropriate to bill more than 4 units at the maximum hourly rate, regardless of the number of clients that may be scheduled and present in the clinic in that hour.

This only applies to MVA clients!! It is reasonable that the therapist would be supervising or treating other non-MVA clients at the same time. However, if the therapist is treating more than one MVA client, make sure the units match the time spent directly with each client. [emphasis added]

As I understand this clarification, from the point of view of the author of the P.A.T.H. document, this is strictly a billing issue, which becomes important only when a therapist treats more than one client who is injured in a motor vehicle accident. The concern being addressed in this document is not whether such a therapist is providing a reasonable degree of supervision.

I am prepared to accept that it is not uncommon in the active rehabilitation industry for one therapist to supervise groups of patients. However, I am not persuaded that this is true one-on-one care. In my view, one-on-one care involves one therapist working exclusively with one patient throughout a session.⁴ There is a quantitative difference in the amount of attention available to the patient. I find a qualitative difference in the ability to observe one patient versus several patients at the same time. I also find that the quality of the relationship which can develop between the therapist and the patient to be different. There is also a difference in the rate of remuneration received by the clinic for an hour of the therapist's time. In my view, there should be some reflection of this in the rate charged for treatment.⁵

I conclude that treatment facilities bundle the services they offer in different ways. I accept that the fees vary widely, and that little rationale was presented to justify the wide variation in charges for active rehabilitation therapy.

In the circumstances of this case, in determining the appropriate rate to be paid, I have considered the unsatisfactory state of Target's records in relation to Mr. Langdon. I have considered that there is a qualitative difference between services rendered by one therapist to one patient during a session, and services rendered by one therapist to a group of two to four patients during a session. I have also considered that some regard should be had to the fees which physiotherapists are permitted to charge for rehabilitation services. In all the circumstances, I find that a reasonable rate for the services which Target rendered to Mr. Langdon is $60 per session. I am not of the view that any outstanding balance should be paid by Mr. Langdon.

Amount of Treatment

Mr. Langdon seeks payment for 99 treatment sessions during an eight-month period at Target. Pafco submits this amount of treatment was excessive. There was a range of opinions as to what amount of treatment was appropriate in Mr. Langdon's circumstances.

The preponderance of the evidence is that Mr. Langdon's injury is appropriately classified as a WAD II. However, Mr. Hare testified that because of his concussion, and his pre-existing injuries — a fracture of his fibula and of his wrist, sustained in a 1997 accident, which had largely resolved — Mr. Langdon fell outside of the Guidelines. The Guidelines do state that they only apply in cases where no other injury applies, and Mr. Hare would therefore appear to be correct, at least in relation to Mr. Langdon's concussion.

If the Physiotherapy Utilization Guidelines for soft tissue disorders of the spine are applicable, they provide for up to 100 sessions of one-on-one treatment, lasting between 15 and 30 minutes, delivered over 36 weeks during acute, sub-acute and chronic phases of injury in relation to someone who is classified as having sustained a WAD II injury.

The WAD guidelines are intended to help insurers, claimants and service providers understand what is a reasonable medical and rehabilitation expense for a person who sustains a whiplash injury in a motor vehicle accident. I find that a Guideline is not a protocol. I accept that patient response to treatment and clinical judgment remain critical factors in determining whether treatment is reasonable and necessary. In this regard I note that in Iravani-Fard and Zurich Insurance Company (FSCO A97-001958, December 17, 1999), Arbitrator Renahan accepted the opinions of health practitioners who testified that the Guidelines had to be approached with clinical judgment. I also find that the relief of pain and a restoration of pre-accident function remain valid medical and rehabilitation goals.

Ms. Hatt and Mr. Hare agreed with the rehabilitation goal of returning Mr. Langdon to his pre-accident function. Dr. Silverstein stated that this would be a reasonable goal in an ideal world, however, after six to eight weeks of treatment the only person further treatment benefits is the treatment provider. I prefer the evidence of Ms. Hatt and Mr. Hare on this point.

The CBI recommended six weeks of physiotherapy treatment. Mr. Langdon followed the advice he received from the CBI to stay off work during the first week after his injury. While he was off work, Mr. Langdon found that with minimal stressing of his neck, and by performing his neck exercise routine, he could experience up to three hours without pain. However, he found that once he began his heavy demolition work, this exacerbated his pain and headaches and he also experienced upper back pain. Mr. Hare and Dr. Silverstein both agreed that it was not uncommon for upper back pain to develop in these circumstances. Dr. Silverstein testified that interscapular pain is a very common area of referred pain from the neck. Mr. Langdon also found that he was not able to attend work on a consistent, reliable basis. Eventually Mr. Langdon received medical advice that the heavy work he was performing was probably interfering with his recovery.

In July 1999, Mr. Langdon switched to performing light work involving sales of furniture reupholstering and furniture refinishing services. Mr. Langdon testified that this made a great difference in his pain levels.

Dr. Teitel signed five treatment plans in which he recommended the entire course of treatment as reasonable and necessary. Mr. Langdon testified that he thought his discharge from Target in December 1999 was premature because he continued to experience pain. Mr. Hare agreed with Mr. Langdon that his discharge to a self-directed program was premature, because he was still experiencing pain and it was likely that he would not be exercise compliant.

Dr. Silverstein was of the opinion that six weeks of treatment was reasonable and necessary. He testified that Mr. Langdon was very straightforward and, in hindsight, if Mr. Langdon had returned to him at the end of that time, he would have authorized another six weeks. However, it was not absolutely necessary, and "that would be enough." Dr. Silverstein expressed concern that further treatment would encourage treatment dependency. He agreed, however, that this risk was not present in Mr. Langdon's case. In his opinion, another six months of treatment was excessive and inappropriate.

Dr. Silverstein was of the opinion that a supervised exercise program at Target was not necessary for someone like Mr. Langdon. In his opinion, "If someone has got their normal faculties, they can carry on exercises that they have been shown. They can do it at home or go to the Y or gym." In my view, Dr. Silverstein considered only one of the reasons why a person may be exercise compliant, namely the capacity to remember and follow an exercise routine. However, I find that consideration should also be given to the factors of pain, coaching, the need for reassurance and motivation outlined earlier in this decision in the section dealing with exercise compliance.

Mr. Langdon testified that he told Dr. Silverstein that he had dysphagia, or difficulty swallowing following the accident. Dr. Silverstein testified that based on his notes, Mr. Langdon had no complaints of dysphagia. The WAD II Guidelines note that dysphagia may be present in any WAD case. Dr. Silverstein testified that he always asks this question and makes a note of this. In his opinion such a complaint is indicative of the severity of the neck strain, because the difficulty swallowing arises when there is a stretching of the ligaments in front of the vertebrae in the neck which causes swelling, and hence difficulty swallowing. Whether there was an error or miscommunication on the part of Mr. Langdon or Dr. Silverstein, I note that the clinical notes and records of the CBI of March 25, 1999 state that Mr. Langdon "Related over the last week, I've noticed some trouble swallowing; it's sore when I swallow." Accordingly, I find that Mr. Langdon's neck strain was more serious than Dr. Silverstein appreciated.

Mr. Langdon testified that he found that the exercises he did were helpful. He believed that the machines in the weight room were helping him. He did exercises off and on at home for a few days, and then gave up the program for a few months. He found he was not able to do the program on a regular basis, because there was always something else to do. Mr. Langdon testified that he did not agree with Dr. Silverstein's opinion. While he had been using equipment at Target, in particular the Hanoun system, he had no such equipment of his own.

The medical and rehabilitation DAC did not specifically comment on the reasonableness or necessity of Mr. Langdon's past treatment at Target. That DAC recommended a further two weeks of treatment which would be tapered, and which would emphasize a home-based, self-directed program. However, the DAC assessed Mr. Langdon based on the Dictionary of Occupational Titles ("D.O.T.") description of a salvage labourer requiring medium-strength work, when his actual work involved mostly demolition which I have found was heavy labour. Mr. Hare noted that the DAC did not perform any tests to determine whether Mr. Langdon was likely to be exercise compliant. He described the DAC's failure to take this step while recommending a self-directed exercise program as "almost negligent on their part."

Mr. Langdon's response to the DAC report was that he had no equipment, and needed treatment for his pain. Mr. Langdon followed the advice of his treatment providers and continued his treatment at Target.

Although the medical and rehabilitation DAC recommended that Mr. Langdon increase his fitness levels and flexibility conditioning, the assessors did not indicate how he should or could do this or what equipment he would need to accomplish these goals. Mr. Langdon had been receiving treatment in an environment in which his blood pressure and heart rate were being monitored. He had the benefit of equipment such as the Hanoun Gym System and a treadmill. Both types of equipment could be adjusted to vary the intensity of the exercises.

It is not terribly persuasive to an injured person to be told to do a self-directed exercise program, without also addressing how that could be done, and the question of what equipment if any is necessary to accomplish these goals. Target's goal from the outset has been stated as one of graduating Mr. Langdon to a home-based exercise program. With an appropriately detailed exercise plan which addressed his exercise needs and his equipment needs, Mr. Langdon would then have been in a position of having adequate information to consider this as a realistic alternative either on his own, or in conjunction with Target staff.

Mr. Langdon noted the lack of accuracy of a number of statements in the reports. He believed that he needed treatment because of his pain and was prepared to take the risk of having to pay for his own treatment, stating that he had been "bombarded with rejection letters from day one, so this was nothing new."

According to the reports of a disability DAC conducted in August 1999, Dr. H. Platnick was of the opinion that this sort of injury usually resolves in three months, that Mr. Langdon had residual complaints, and in his opinion these would subside on their own. At this point Mr. Langdon was five months post-injury. Although the FAE on this occasion assessed Mr. Langdon's ability to perform heavy work, Mr. Langdon does not appear to have been tested in relation to his complaints of his neck pain and upper back pain with sustained flexion after bending for an hour.

Mr. Langdon then returned to see his family physician, Dr. A. Poldes, for her advice and a referral to a specialist who would be able to provide him with independent advice. In November 1999, Dr. Poldes reported that Mr. Langdon had been her patient since March 1995. Dr. Poldes reported that Mr. Langdon had worked in physically demanding jobs for many years with no major complaints. However, since the motor vehicle accident, he has suffered from considerable pain and has been unable to be consistent in his work in demolition. With respect to the FAE, Dr. Poldes observed that "Each of these tests were done once only during the testing procedure; but the reality in a work environment is that these maneuvers may have to be performed repeatedly with varying weights; therefore he would develop pain by the end of the day or even during the day sometimes and had to go home early on some occasions. He wasn't always able to work the next day having had a strenuous day the day before; thus he was unreliable and had to leave the physically demanding job for one less demanding where he could function on a more reliable basis."

Dr. Poldes also referred Mr. Langdon to a physiatrist, Dr. V. Kekosz, because of his persistent neck and upper back pain, some seven months following the motor vehicle accident. Mr. Langdon saw Dr. Kekosz in January 2000. He testified that this was the earliest appointment he could obtain. In Dr. Kekosz's opinion Mr. Langdon should be involved in an active exercise program. She strongly urged him to seek a fitness membership at a facility such as Variety Village where hydrotherapy as well as swimming (which would be most beneficial for his upper back and neck symptoms) would be available to him. In Dr. Kekosz's opinion, while he should be able to continue working at a sedentary job, his pains in his neck and upper back are related to muscle tension and possibly due to muscle fatigue. Heavy manual labour may prove to be quite painful for his neck and shoulders. Pafco refused to pay $374.50 per year for the cost of a general membership at Variety Village.

In August 2000, Mr. Langdon attended another medical and rehabilitation DAC to assess the reasonableness and necessity of ongoing chiropractic care. The assessor once again was Dr. A. Tibbles, chiropractor. Dr. Tibbles reported: "Mr. Langdon has undergone some deconditioning with respect to the gains he had made at Target Rehab through last fall. At the end of his time at Target, Dr. Teitel examined him and found only mild tenderness in his right lower paraspinal cervical musculature." Dr. Tibbles noted that Mr. Langdon has sheets with neck and back exercises for home use, but does not do them as frequently as he should. Dr. Tibbles recommended that Mr. Langdon reinstitute his self-directed active care. Mr. Langdon agreed to do so.

Ms. L. Hatt, a physiotherapist in a private practice and medical and rehabilitation DAC assessor for St. Mary's Wellness Centre, reviewed Mr. Langdon's course of treatment at Target, along with the medical briefs. In her opinion the billing rate, frequency and duration of treatment in this case were all excessive. She was of the opinion that Mr. Langdon sustained a WAD II injury and, after some initial passive therapy for pain control, was a candidate for an active rehabilitation program. Based on the documentation she reviewed, she concluded that a reasonable amount of treatment in this case would have been 18 visits over an 8 week period, 3/4 hour per session. The cost of a physiotherapist supervising such a program at the rate of $120 per hour would have been $1,440. This would be followed by a home exercise program, or a community based program. If Mr. Langdon was unsure of the equipment at the new facility, a few sessions with a kinesiologist would have been appropriate.

Ms. Hatt was of the opinion that since Mr. Langdon had a full, active range of motion on May 20, 1999, further treatment would have been unnecessary as there was no longer an impairment. In reaching that conclusion, however, Ms. Hatt did not apply the definition of impairment contained in the Schedule.

I accept Mr. Langdon's testimony that the treatment he received from Target assisted him in his rehabilitation. I also find that it provided pain relief from his neck and upper back pain which were exacerbated by his heavy work at TNT Removals. The program was an active one and not therefore likely to cause treatment dependence.

I find that Mr. Langdon worked hard at his rehabilitation program and was compliant with treatment and the advice he received while he attended the Target program. I find he pursued this rehabilitation program in good faith. Mr. Langdon was a credible and candid witness. His actions of finding light work when he believed that his heavy work was interfering with his recovery, support his position that he was experiencing a significant exacerbation of his pain while working. I also find that his actions support his belief that as long as he continued to perform heavy work, it would stir up the pain in his back and prevent him from a total recovery.

I do not accept that Mr. Langdon would have continued to take the time off work and incur a financial loss in order to obtain treatment at some financial risk if he was not experiencing the benefit of pain relief. I also accept that he had a genuine desire to have an opinion from an independent expert. For all these reasons I find the duration of the Target program was reasonable.

Interest

Mr. Langdon claims interest on overdue benefits under section 46 of the Schedule.

(1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Part.

(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.

The parties disagree as to when the benefits became overdue. Mr. Langdon submits that these benefits became overdue 30 days after they were invoiced. Pafco informed Target: "We refuse to pay the interest charges found in this invoice since we did not agree to fund the services proposed in the original treatment plan."⁶

In Khaledi and Allstate Insurance Company of Canada Supplementary Decision (FSCO A99-001072, September 27, 2001), Arbitrator Novick reviewed the arbitral case law with respect to the question of when interest is payable under the 1990 and 1994 Schedules. She concluded that under the Bill 59 Schedule "when an amount is subsequently determined by an arbitrator to be reasonable, it is implicit that it was reasonable all along. It would then follow that an applicant would be entitled to interest on the benefits owing at the prescribed rate from the date the amount first became owing."

In Glinka and Dufferin Mutual Insurance Company (FSCO A99-000849, November 21, 2000), Arbitrator Joachim took a different approach and concluded that benefits become due as of the date of the decision. In both Glinka and Khaledi the arbitrators were dealing with a situation in which the DAC concluded that treatment was not reasonable and necessary, while the arbitrators at a later stage concluded that treatment was reasonable and necessary. In this case the DAC recommended an additional two weeks of treatment, and implicitly found that treatment to date was reasonable and necessary. I prefer the approach taken by Arbitrator Novick, for the reasons she gave in Khaledi.

According to the September 25, 2000 Statement of Account, Target Rehab Centre issued invoices to Pafco dated April 21, 1999, May 10, 1999, June 15, 1999, June 28, 1999, July 5, 1999, July 7, 1999, August 18, 1999, September 17, 1999, October 28, 1999, November 5, 1999 and September 25, 2000. I find that benefits became overdue 30 days after each of the invoices was received by Pafco, and attract interest pursuant to section 46 of the Schedule from each of those dates, on the overdue amount "for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month, compounded monthly." I remain seized of the calculation if the parties are unable to agree on the amount.

Special Award

Mr. Langdon claimed a special award. The authority to order a special award is found at section 282(10) of the Insurance Act, which provides:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Based on the medical and rehabilitation DAC assessment, Pafco paid Mr. Langdon's treatment $2,700 for 54 sessions at the rate of $50 per session. Pafco took the position that it would only pay at that rate "as we now realize no registered or qualified physiotherapist was in attendance for these work conditioning sessions."

When a designated assessment centre opines that treatment is reasonable and necessary, section 38(14) of the Schedule obliges an insurer to pay the cost of that treatment pending resolution of the dispute. Pafco paid for 54 treatment sessions, including an amount for the future treatment. However, instead of paying at the rate of $150, it decided it would pay an amount which it believed was reasonable, namely $50 per session.

I find that in failing to make the payment required by the Schedule in relation to Mr. Langdon's benefits, Pafco's basis for withholding payment was unreasonable. Pafco is required to pay a special award with respect to those benefits which I have found it unreasonably withheld. A mitigating factor is that Pafco did make a payment following the DAC report, and also paid for future treatment based on the DAC's recommendation. This is therefore not as egregious a breach as it might otherwise have been and calls for a relatively small special award. I find it appropriate in all the circumstances of this case that Pafco should pay a lump sum special award, inclusive of all interest, in the amount of $1,000.

EXPENSES:

I heard Pafco's submissions with respect to expenses. Mr. Langdon's representative requested an opportunity to address this issue at a later date. If the parties are unable to agree on expenses, that issue may now be addressed.

June 7, 2002

Suesan Alves Arbitrator

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