Neutral Citation: 2004 ONFSCDRS 132

FSCO A03-001558

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FRANK CROCCO

Applicant

and

PILOT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Joyce Miller

Heard:

Written submissions were received from both parties by May 27, 2004.

Appearances:

Frank Van Dyke for Mr. Crocco

Susan Bromley for Pilot Insurance Company

Issues:

The Applicant, Frank Crocco, was injured in a motor vehicle accident on February 24, 2000. He applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ Pilot denied Mr. Crocco's claim for the payment for the cost of an examination pursuant to section 24 of the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Crocco applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Is Mr. Crocco entitled to payment for the cost of an examination conducted by Dr. David Symington in the amount of $2,500 claimed pursuant to section 24 of the Schedule?

Result:

1. Mr. Crocco is not entitled to payment for the cost of an examination conducted pursuant to section 24 of the Schedule.

2. Within 30 days of receipt of this decision, the parties may speak to me, if needed, on the issue of expenses.

BACKGROUND:

Mr. Crocco is 43 years old, married and has three children. Mr. Crocco was injured in a car accident on February 24, 2000 when the motor vehicle he was driving was rear ended. As a result of the accident Mr. Crocco suffered injuries to his neck, back and left shoulder. As well, he suffers from severe headaches.

At the time of the accident, Mr. Crocco was a cook-kitchen manager. Because of his injuries, Mr. Crocco was unable to return to his employment. He was paid weekly income replacement benefits until June 5, 2000 when he returned to work after being discharged from physiotherapy. After he returned to work he continued to experience pain from his injuries and underwent further physiotherapy and massage therapy.

In August 2001, Mr. Crocco again stopped working because of his injuries from the car accident. After a mediation was held in November 2001, Pilot reinstated his weekly benefits, retroactive to August 8, 2001. Pilot also retained a rehabilitation case manager, Mr. Marcel Quenneville.

As the result of his injuries from the car accident Mr. Crocco received treatment and was assessed by a a number of physicians. These included:

Dr. Paolucci

Family physician

Dr. Bagg

Physiatrist

Dr. Cancelliere

Neuropsychologist

Dr. Nogrady

Psychologist

Dr. French

Psychologist

Dr. Oxlade

Psychiatrist

Dr. Carlile

Sleep Disorder Specialist

Dr. Taylor

Orthopaedic surgeon

In addition, Mr. Crocco underwent a functional abilities evaluation by the Ontario March of Dimes on March 26 and 27, 2002. The results of this evaluation determined that Mr. Crocco was not able to pursue competitive employment and recommenced further assessments, treatments and assistive devices. As well, on June 24 and 26, and July 3 and 5, 2002, Mr. Crocco underwent a vocational assessment by the Ontario March of Dimes. The results of this assessment were that there were no occupations that matched Mr. Crocco's functional abilities and level of education. An academic upgrading and work hardening was recommended.

In the fall of 2002, Pilot funded an academic upgrading and work hardening program. At the time of this arbitration, Mr. Crocco is still receiving a weekly income replacement benefit. According to Pilot and not disputed by Mr. Crocco, housekeeping and maintenance entitlement has been settled on a lump sum basis. Physiotherapy and psychological counselling has been discontinued at the request of Mr. Crocco and his health providers and there are no outstanding treatment plans.

Mr. Crocco's Submissions

Mr. Crocco submits that in the past Pilot had funded four Section 24 assessments requested on his behalf. These included the reports by Dr. Cancelliere on April 5, 2002; Dr. Bagg on June 4, 2002 and Dr. Paolucci on May 4, 2003, as well as the above noted Functional Capacity Evaluation by the Ontario March of Dimes on March 27, 2002.

Mr. Crocco submits that the assessment of Dr. Symington was reasonable and obtained in accordance with the regulation as a number of treatment options are identified in the report. These include:

• an MRI of head and cervical spine and CT and MRI of lumbar spine.
• a spect scan of brain
• an assessment of balance problems by the ear, nose, and throat clinic and by the physiotherapist at St. Mary's of the Lake
• injections of local anaesthetic and cortisone to treat the occipital nerve neuralgia
• a neurosurgical consultation with respect to his left hemi-sensory, balance and reflex abnormalities and anosmia.

Mr. Crocco further submits "that the assessment of Dr. Symington was both reasonable and obtained in accordance with the regulation as evidenced by Dr. Symington forwarding the report to the Applicant’s family physician, Dr. Paolucci and by the fact that he was seen a second time by Dr. Symington as evidenced in a letter from Dr. Symington dated May 9, 2003."

Mr. Crocco submits that in a letter from Pilot dated May 28, 2003, Pilot's adjuster indicates the reason for denying payment is that the information provided in Dr. Symington's report is not objective as it is based upon other medical reports and that she considers the report flawed due to the fact that Mr. Crocco Sr. was present and interjected. Mr. Crocco submits that no mention is made in this letter of any of the reasoning presented by Pilot Insurance company in their Section 24 written submissions.

Pilot's Submissions

Pilot submits that Dr. Symington's assessment was not incurred "for the purpose of this Regulation" as required by subsection 24(1) of the Schedule. Pilot submits that Dr. Symington's report was not used by anyone for any purpose associated with the Statutory Accident Benefits Schedule. Pilot further submits that Mr. Crocco has failed to provide evidence to show the reasons that the report was requested and the use to which it was put.

Pilot submits that the referral letter to Dr. Symington by Mr. Van Dyke, counsel for Mr. Crocco, makes no reference to statutory accident benefits and that the tone of the letter suggests that Dr. Symington's report may have been requested for the purpose of an ongoing tort claim.

Pilot submits that the written submissions on behalf of Mr. Crocco fails to identify any reason for the assessment being requested. Moreover, at the time that the request was made to Dr. Symington to assess Mr. Crocco, there were no benefits in issue. In its written submissions Pilot states that at the time the request was made to Dr. Symington:

Pilot continued to pay weekly benefits, and to fund vocational upgrading and case management. Housekeeping and home maintenance had previously been settled on a lump sum basis. Although physiotherapy and psychological counselling had recently been discontinued, this was as the request of Mr. Crocco and his health care providers, and there were no Treatment Plans outstanding. At this point in time, in the early spring of 2003, Mr. Crocco continued to attend with Dr.Oxlade. As well, Pilot continued to fund case management, which was being provided by Marcel Quenneville.

... as well, the Functional Abilities Evaluation Report from the Ontario March of Dimes, dated Mar. 26, 2002 had determined that Mr. Crocco was unable to pursue competitive employment. The Vocational Assessment Report, dated July 31, 2002 had determined that there were no occupations that matched Mr. Crocco's functional abilities and level of education, and had recommended academic upgrading and work hardening, which had commenced in the fall of 2002. This academic upgrading was being funded by Pilot.

Pilot further submits that even if Dr. Symington's report was obtained for the purpose of the Schedule, which it does not admit, then it is Pilot’s further submission that the assessment was not reasonable in the circumstances.

Pilot notes that Dr. Symington's "Summary Opinion" in his report is broken down into four parts:

• Diagnosis
• Recommended investigations
• Employability
• Prognosis

Pilot points out that regarding Dr. Symington's diagnosis there was nothing new in his report as Mr. Crocco's injuries and impairments had been diagnosed extensively by the time Dr. Symington saw him three years after the accident. Regarding Dr. Symington's recommended investigation, Pilot states that "some had already been carried out, some had been recommended by other health care providers, and others have still not been followed-up on by Dr. Paolucci." As well, Pilot points out that "the referral to Dr. Symington does not request input on treatment options or recommendations, but requests a medical-legal opinion with respect to employability." Moreover, Pilot submits there is no evidence that Dr. Symington's report was used by Dr. Paolucci or by any other treatment provider for treatment purposes or to amend or prepare new treatment plans.

Regarding the issue of employability, upon which Dr. Symington was asked to comment on, Pilot submits that this was not an issue at the time the referral was made. Pilot points out that other assessors had previously given their opinions that Mr. Crocco was unable to return to his previous employment and required vocational retraining and that at the time of the referral Pilot was paying Mr. Crocco an income replacement benefit.

Pilot submits that for these reasons "it was not reasonable to refer Mr. Crocco to a physiatrist, whom he had never seen before, for an opinion on employability given that there were no benefits in dispute and given the other medical information available with respect to diagnosis, recommended interventions, employability and prognosis."

Accordingly, Pilot submits that Dr. Symington's report was not a reasonable expense incurred for the purpose of the Regulations, and asks that the claim for reimbursement for the cost of Dr. Symington's report be dismissed with costs.

THE LAW

Subsection 24(1) of the Schedule provides in part:

The insurer shall pay 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...

ANALYSIS AND FINDINGS

The burden of proof rests with Mr. Crocco to show on a balance of probabilities that pursuant to section 24 of the Schedule the assessment by Dr. Symington was a reasonable expense incurred for the purpose of this Regulation.

For the following reasons I find that Mr. Crocco has not discharged his burden.

The report by Dr. Symington, a physiatrist, was requested by Mr. Crocco's counsel, Mr. Van Dyke, on March 12, 2003. In his letter to Dr. Symington, Mr. Van Dyke requested a medical report with respect to Mr. Crocco's injuries as a result of the motor vehicle accident. More specifically he stated: "In particular, I would ask that you please provide your opinion as to whether Mr. Crocco is able to complete any occupation which is reasonably suited by education, training and experience." Mr. Van Dyke went on to write:

Since medical reports tend to vary in their content and the courts are unpredictable in their requirements for admitting these reports into evidence, I am taking the liberty of suggesting the following format for your consideration:

Mr. Van Dyke then listed a number of headings: "dates of visits; description of injuries and pain on each visit; results of physical examination and/or diagnostic tests (in chronological order);

prognosis, including duration of pain and the period of partial or total disability; and causal relationship between the accident and injury."

In considering whether pursuant to section 24 of the Schedule an assessment was reasonably obtained for the purpose of the Regulation, Director’s Delegate Makepeace in the appeal case of Tesfai and Allstate² stated that the key questions to be asked by an Arbitrator in determining the purpose of the report are: "what benefits were at issue at the relevant time?" and "what other relevant information was available at the time?"

With these questions in mind, I find that it is clear from the referral letter noted above that Dr. Symington was being asked to comment on Mr. Crocco's employability and for no other purpose. It is also clear from the evidence at the time the referral was made to Dr. Symington, that Pilot was paying Mr. Crocco an income replacement benefit based on numerous medical assessments provided by other assessors. Moreover, there was no evidence presented that the assessment by Dr. Symington was in response to an insurer’s medical or a DAC³ report regarding Mr. Crocco's employability or that Pilot was intending in the near future to terminate his income replacement benefit.

In my view, the fact that there were no outstanding benefits in issue at the time that Mr. Crocco's counsel requested this medical-legal report from Dr. Symington, and considering the numerous medical assessments that supported Mr. Crocco's position that entitled him to benefits under the Schedule, and the fact that Pilot had paid and was continuing to pay benefits to Mr. Crocco based on these other assessments, I find that the assessment by Dr. Symington was not reasonable for the purpose of the Schedule.

Accordingly, for these reasons, I find that pursuant to section 24 of the Schedule Mr. Crocco is not entitled to the expenses of Dr. Symington's report dated April 22, 2003.

EXPENSES:

Within 30 days of receipt of this decision, the parties may speak to me if needed on the issue of expenses.

September 10, 2004

Joyce Miller

Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 132

FSCO A03-001558

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FRANK CROCCO

Applicant

and

PILOT INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. The arbitration is dismissed.

2. Within 30 days of receipt of this decision, the parties may speak to me if needed on the issue of expenses.

September 10, 2004

Joyce Miller

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, 114/00 and 482/01.
2. 2Tesfai and Allstate Insurance Company of Canada (FSCO P00-00048, December 21, 2001).
3. 3Designated Assessment Centre