Neutral Citation: 2003 ONFSCDRS 34

FSCO A01-000684

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TATIANA MARTINOV

Applicant

and

PRIMMUM INSURANCE CO. (FORMERLY CANADA LIFE CASUALTY)

Insurer

REASONS FOR DECISION

Before:

David J. Evans

Heard:

January 13, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Vadim Malyshev for Ms. Martinov

Jamie Pollack for Primmum Insurance Co.

Issues:

The Applicant, Tatiana Martinov, was injured in a motor vehicle accident on February 21, 1999. She applied for and received certain statutory accident benefits from Primmum Insurance Co. (formerly Canada Life Casualty) ("Primmum"), payable under the Schedule.¹ Primmum denied payment of specific medical benefits claimed under section 14 of the Schedule in relation to treatment expenses incurred at Universal Injury Rehabilitation Centre Inc. ("Universal"), and for the costs of examinations claimed under section 24 of the Schedule. The parties were unable to resolve their disputes through mediation, and Ms. Martinov applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

In an earlier preliminary decision dated June 28, 2002, Arbitrator Skinner held that Ms. Martinov is precluded from proceeding to arbitration on her claim for medical benefits under section 14 of the Schedule in relation to treatment received at Universal from April 5 to June 16, 1999 as a result of her failure to attend an insurer's medical examination and a medical rehabilitation Designated Assessment Centre ("DAC") appointment. However, she was allowed to proceed on her claims with respect to the cost of examinations at Universal under section 24 of the Schedule. Those claims are the subject of this hearing.

The issue is:

1. Is Ms. Martinov entitled to her claim with respect to the costs of examinations at Universal Injury Rehabilitation Centre Inc. under section 24 of the Schedule?

2. Is either party entitled to their expenses of the arbitration?

3. Is Ms. Martinov entitled to interest on the amounts found owing pursuant to subsection 46(2) of the Schedule?

Result:

1. Ms. Martinov's claim for the costs of examinations is denied.

2. I reserve my decision on entitlement to expenses.

EVIDENCE AND ANALYSIS:

Facts:

Ms. Martinov was injured in a motor vehicle accident on February 21, 1999. Ms. Martinov testified that Dr. Richmond was her family physician at the time. He prepared a Disability Certificate. Ms. Martinov then received treatments from Integrated Health Recovery Physical Rehabilitation Services ("Integrated").

Ms. Martinov testified that initially Integrated's treatments seemed to help, but after a month she still felt pain in her left arm and shoulder. She thought she could find better specialists, and "somebody" recommended Universal. She also changed family doctors to Dr. Donskoy, whose office was convenient for her where she worked. However, once her treatments related to the accident ended, she started seeing Dr. Richmond again. Neither of these doctors testified.

Ms. Martinov was first assessed at Universal on April 5, 1999. She was assessed by a woman (presumably Ms. Sharee Mandel, physiotherapist) and by the massage therapist (Roman Denim). She then received some treatments.

Ms. Martinov testified that she was getting better, as the pain in her shoulder was going away and she could lie down and sleep better, when she was involved in a second accident on May 3, 1999. Initially, she did not see Dr. Donskoy again because she did not think it was very important and the pain was very much the same. She continued receiving treatments. At some point she told Roman about the second accident. He then sent her back to Dr. Donskoy for another assessment, and then she was assessed again by Universal.

Ms. Martinov claims the costs of the following assessments at Universal under section 24 of the Schedule:

Item

Author

Date

Amount

February 21, 1999 accident

1. Physiotherapy treatment plan

S. Mandel

05 April 99

48.53

2. Initial physio assessment report

S. Mandel

20 April 99

350

3. Masssage therapy treatment plan

R. Demin

07 April 99

125

4. Psychotherapy treatment plan

S. Mandel

22 April 99

125

5. Mental Health & Disability Assessment

B. DasGupta

23 April 99

1200

Total - February 21, 1999 Accident:

1,848.53

May 3, 1999 accident

6. Physiotherapy treatment plan

S. Mandel

08 June 99

125

7. Initial physio assessment report

S. Mandel

15 June 99

350

Total - May 3, 1999 Accident:

450

Primmum paid $76.47 towards the $125 fee for item 1.

Primmum had arranged medical/rehabilitation DAC assessments after receiving items relating to the first accident. Ms. Martinov did not attend the DACs: her current representative wrote on May 28, 1999 to the adjuster as follows: "Please be advised that due to our client's instructions Treatment Plan [sic] with respect to our client is withdrawn." I find that in the context of the DAC that had been arranged, the only logical conclusion is that the intention was to withdraw all the treatment plans to that point.²

Nonetheless, Ms. Martinov is now claiming the costs of these assessments, as well as those after the May 3, 1999 accident.

Examination expenses are payable under section 24(1) "for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan," including "fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan." [Emphasis added.]

As most recently summarized by Director's Delegate McMahon in the Fenech appeal decision,³the insured person must establish two key points to recover the cost of these assessments:

One, that the assessment was undertaken for the purpose of the SABS. In general, this requires a link between the assessment and a claim for accident benefits. Two, that the expense was reasonable. Reasonableness relates to the decision to undertake the assessment, and to the nature and cost of the assessment.

The only witness who testified was Ms. Martinov. She testified that she never received any copies of the reports, never took them to her family physician, Dr. Donskoy, for him to review, and never paid for any of them. She does not know how many reports there are, never discussed their cost with Universal, and does not know what Universal charged for them. For that matter, she has never paid for the treatment she received at Universal.

Despite this testimony, I will assume for the sake of simplicity that the expenses were "incurred," since Primmum did pay a portion of the first treatment plan (item 1).

As to item 1, Arbitrator Novick in the Simeckova case⁴ stated: "I award the usual rate of $75 for the preparation of the treatment plan." Primmum has paid slightly more than that. The letter of the physiotherapist, Ms. Sharee Mandel,⁵ does not address why a higher amount should be awarded. Accordingly, I do not award any higher amount for item 1 than what Primmum has already paid..

Aside from item 1, I find that where a claimant withdraws a treatment plan, the link between the assessment and a claim for benefits is broken and, normally, a claim for the cost of the assessment will be denied. Thus, I find that the link between the assessments for the first accident and the claims for accident benefits was broken when Ms. Martinov "withdrew" her treatment plans. I fail to see how Ms. Martinov can now pursue the costs of these assessments.⁶On that basis alone, I deny items 2 through 5.

I will nonetheless consider these items. I find item 2, the Initial Assessment Report, unreasonable. It does not refer at all to the very similar report that Integrated wrote on March 8, 1999. I find it unreasonable for such a report to be written so soon after Integrated's.

Ms. Martinov argued that item 2 was reasonable, as at the end of the Integrated report there is a comment that the patient would be reassessed in five weeks "at which time we will update you on her progress." However, I find that a simple reassessment and update would not necessarily require a complete "initial report."

Furthermore, Ms. Martinov argues that Integrated had failed to diagnose her left shoulder problems, so the Universal report was useful in arriving at a proper diagnosis. However, the Integrated report on page 1 notes that Ms. Martinov "had pain in the neck which developed almost immediately and this pain was radiating into her left shoulder." The report also noted complaints "in upper fibres of Trapezius, mainly on the left side." In fact, when her representative put it to her that Integrated had not mentioned anything regarding her left shoulder pain, Ms. Martinov testified that she did not know that, as her shoulder was the "main issue" and "they were massaging my left shoulder." I find that the report added nothing to the assessment of Ms. Martinov. It is disallowed.

I find that the separate treatment plan for massage therapy, item 3, is unreasonable. I heard no evidence on why it was required. Integrated had prepared only one treatment plan, which included massage.⁷ It is disallowed.

I turn now to items 4 and 5, the treatment plan for "psychotherapy" and the "Mental Health & Disability Assessment" for "psychotherapeutic treatment planning."

On its very face, I find the treatment plan — item 4 — troubling. The treatment plan is for "psychotherapy" for depression and driving anxiety to be provided by "Dr. Bikram DasGupta," whose specialty is given as "Psychology." However, in a letter to Ms. Martinov's representative dated December 7, 2000,⁸ Bikram DasGupta clarifies that he is "not registered with the College of Psychologists of Ontario and therefore, not a registered psychologist." He goes on to write: "The services that I offer to my clients are not psychological or psychiatric." [Emphasis in the original.] The treatment plan is therefore incorrect when it states that DasGupta has a specialty in "Psychology."

Furthermore, the plan supervisor and the plan preparer are both given as Ms. Mandel. I do not know how a psychotherapy plan could be drawn up by a physiotherapist. I heard no evidence that Ms. Mandel has expertise in that area.

In any event, I find that the treatment plan was not prepared by Ms. Mandel. I note that what is undoubtedly her physiotherapy plan (item 1) is in quite a different writing style. Given that it was B. DasGupta who prepared the "Mental Health & Disability Assessment" (item 5), that he refers to Ms. Mandel as the "referring clinician," and that his recommendations at the end of that report reappear in item 4, I find that in fact it was B. DasGupta who prepared item 4. The treatment plan form requires the name of a registered health professional to appear as the plan preparer. As defined in s. 2 of the Schedule, "'treatment plan' means, in respect of an insured person who sustains an impairment as a result of an accident, a document prepared by a member of a health profession . . ." I heard no evidence that B. DasGupta is a member of a health profession.

In short, either item 4 was prepared by a member of a health profession who has no expertise in psychotherapy, or it was prepared by someone who is not a member of a health profession. In either case, it is invalid. It is denied.

I note in passing that the adjuster in his letter of May 13, 1999 addressed this very problem: "I can't provide payment for the psychotherapy plan as it was not prepared by a practitioner qualified to prepare this type of plan."

In the same letter, the adjuster denied the "Mental Health & Disability Assessment" (item 5) on the same grounds: that "no documentation has been submitted to support that this service was provided by a regulated health professional, and I have no medical evidence on file suggesting that a referral has been made for this service." On the first point, s. 24 does not strictly speaking require that a person providing a report be a regulated health professional. Therefore, I will consider the general principles discussed above.

Ms. Martinov testified that she was scared to drive after the accident and that she discussed this fear with Dr. Donskoy, although she did not remember if he suggested any type of intervention. Dr. Donskoy did prepare a referral on which Ms. Martinov relies, but this referral was made to a "Dr. Yaroshevsky" and not B. DasGupta. Furthermore, Dr. Donskoy did not tick off the line "please conduct assessment for Entitlement to Benefits and send a report and treatment plan to the patient's insurance company." I find first that the referral was not directed to B. DasGupta and further that the referral was not on its face for the purposes of the Schedule, nor was any evidence led to support that it was for those purposes. Accordingly, this referral does not assist Ms. Martinov.

Ms. Martinov testified that she discussed her fear of driving with the Universal staff, who referred her to B. DasGupta. She had a lengthy discussion with him about the accident and her problems after it. She answered some questions about some pictures and remembers wondering why she was wasting her time with such easy questions. She did not remember discussing his findings with him afterwards, nor did she receive any psychiatric treatment or counselling for him. She denied ever receiving a copy of his report, ever paying for it, or ever discussing it with Dr. Donskoy.

In light of Ms. Martinov's lack of knowledge of the contents and cost of the report and her subsequent failure to seek any of the treatment outline in the report, and in light of the lack of evidence of any referral or oversight or management by her own treating physician of the moment, I find that Ms. Martinov has failed to prove a link between the assessment and a claim for accident benefits. It is denied.

I turn now to items 6 and 7, the physiotherapy treatment plan and second "Initial Assessment Report." I find that these items were self-generated by Universal in its interests. As noted above, reasonableness relates to the decision to undertake the assessments. However, after her second accident, Ms. Martinov had not even reported the accident to Dr. Donskoy but had simply carried on with the treatments she was only receiving. It was only at the instigation of "Roman" that she went back to him in order that he could then refer her back to Universal. In these circumstances, I do not find the decision to undertake the assessments reasonable. They are denied.

As no assessments are payable, neither is any interest.

EXPENSES:

The parties made no submissions with respect to the expenses of this hearing, as they wished me to reserve until I had decided the main issue.

March 7, 2003

David J. Evans Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 34

FSCO A01-000684

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

TATIANA MARTINOV

Applicant

and

PRIMMUM INSURANCE CO. (FORMERLY CANADA LIFE CASUALTY)

Insurer

ARBITRATION ORDER

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

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

1. Ms. Martinov's claim for the costs of examinations is denied.

2. I reserve my decision on entitlement to expenses.

March 7, 2003

David J. Evans Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98 and 114/00.
2. 2The adjuster seems to have reached the same conclusion: see Nora Bedrossian's letter of August 12, 1999 at Exhibit 2, Tab 2.
3. 3Fenech and State Farm Mutual Automobile Insurance Company (FSCO P01-00040, February 5, 2003)
4. 4Simeckova and Allstate Insurance Company of Canada (FSCO A97-001776, November 16, 2001).
5. 5Exhibit 4, Tab 3.
6. 6I include the physiotherapy assessment report, item 2, since it appears to have been written in support of the treatment plan.
7. 7Page 3 of its report.
8. 8Exhibit 4, tab 2.