Neutral Citation: 2004 ONFSCDRS 72

FSCO A03-000288

BETWEEN:

GIUSEPPE LICATA

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Lawrence Blackman

Heard:

March 25, 2004, in Hamilton, Ontario.

Appearances:

Alan Wynperle for Mr. Licata

Chris Blom for Gore Mutual Insurance Company

The Applicant, Mr. Giuseppe Licata, was injured in a motor vehicle accident on August 8, 2001. He applied for and received statutory accident benefits from Gore Mutual Insurance Company ("Gore Mutual"), payable under the Schedule.¹ The parties agree that at the time of this accident Mr. Licata was employed as a foreman/electrician with Ramco Electric Ltd. and that Gore Mutual has paid Mr. Licata weekly income replacement benefits ("IRBs") from one week post-accident (in accordance with the Schedule) to present.

The Applicant submitted a report of Mr. Terry Pearce to the Insurer for payment. Mr. Pearce is a social worker. It is agreed that Mr. Pearce's area of specialty includes reintegrating individuals into the labour market, the family and the rest of society. Gore Mutual refused payment of Mr. Pearce's report, arguing that it was not reasonable. The parties were unable to resolve this dispute through mediation. Therefore, Mr. Licata applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Accordingly, the issues in this arbitration are:

Is Mr. Licata entitled to payment of $1,219.80 for a rehabilitation assessment prepared by Mr. Terry Pearce, dated August 12, 2002, claimed pursuant to section 24 of the Schedule?
Is Mr. Licata entitled to interest on any overdue payment of benefits, claimed pursuant to subsection 46(2) of the Schedule?
Is either party liable to pay the other party's legal expenses in respect of this arbitration, pursuant to subsection 282(11) of the Insurance Act.

Gore Mutual shall pay Mr. Licata $321, inclusive of G.S.T., in respect of Mr. Terry Pearce's August 12, 2002 report, plus interest in accordance with subsection 46(2) of the Schedule.
If the parties cannot agree on the expenses of this arbitration, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

Section 24 of the Schedule provides that insurers shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of the Schedule for, amongst other things, fees charged by a person who conducts an assessment and/or provides a report.

The arbitration case law at the Commission highlights the following pertinent considerations:

The report must have been reasonably obtained for the purpose of the Schedule. In determining the question of reasonableness, one must ask whether the request was reasonable in light of the benefits in issue and the information available at the time of the request.

Tesfai and Allstate Insurance Company of Canada (FSCO P00-00048, December 21, 2001), Director's Delegate Makepeace.

The cost of the report must be reasonable in light of the value of the report in the sense of the time, care and expertise that went into the conduct of the assessment and the preparation of the report. The focus of the inquiry should emphasize the process over the value of the ultimate opinion of the report.

Tsimidis and Liberty Mutual Insurance Company (FSCO P99-00013, August 28, 2000), Director's Delegate McMahon.

"In general . . . it is appropriate to discount the assessment fee where the 'quality and value of [the] assessments and reports do not justify the expense.'"

Director's Delegate Makepeace in Tesfai, referring to Director's Delegate McMahon's decision in Tsimidis.

1. Was Mr. Pearce's report reasonably obtained for the purpose of the Schedule?

I find that Mr. Pearce's report was reasonably obtained for the purpose of the Schedule.

By letter dated January 19, 2002, Mr. Licata's counsel, Mr. Michael Lamont, requested Mr. Pearce's "assistance in identifying the accident benefits to which Mr. Licata may be entitled on account of this accident." Mr. Lamont specifically identified the Applicant's difficulties in performing pre-accident home maintenance and housekeeping services as well as returning to work. With this letter, Mr. Lamont provided Mr. Pearce with various documentation, which was mainly medical in content. By further letter dated April 24, 2002, Mr. Lamont provided Mr. Pearce with further documentation, largely pertaining to Mr. Licata's training and education.

Based on both the documentation provided to Mr. Pearce in this correspondence, as well as the concurrent clinical notes and records of treating practitioners filed into evidence, I find that the benefits in issue and the information available at the time of these letters were as follows:

Mr. Licata had been injured in an August 8, 2001 motor vehicle accident; the diagnosis of the Henderson General Hospital Emergency Department was that he had sustained a soft-tissue muscle strain;
at the time of the accident, Mr. Licata had been employed for more than four years with Ramco Electric Ltd. ("Ramco"); his position was Lead Electrician-Construction and Maintenance Electrician;
Mr. Licata's education included completion of the electrical systems engineering technology program at Mohawk College;
the vast majority of Mr. Licata's daily shift at the time of the accident involved installing conduit and junction boxes, primarily overhead, which required neck extension and constant use of his arms above shoulder level, holding and installing pipes and holding tools overhead (based on the Physical Demands Analysis of Ms. T. Rankine dated November 9, 2001, commissioned at the request of Gore Mutual);
Mr. Licata's position at Ramco was still available to him; the employer, however, required the Applicant to return to his full duties and full hours (Monday to Thursday 7:00 a.m. to 3:30 p.m. and Friday until 12:30 p.m.). This was a physically demanding job; the employer could not accommodate modified duties (Ms. Rankine's Physical Demands Analysis);
Mr. Licata had made unsuccessful attempts to return to his pre-accident employment (clinical note of Dr. J. Corsini, family doctor, August 31, 2001);
Mr. Licata's persistent neck and back pain and tenderness caused him to be quite limited; when he tried to do some household chores, he would become quite stiff and sore and would be unable to continue (clinical note of Dr. Corsini, family doctor, October 4, 2001). A disability interview conducted August 31, 2001, however, indicated that pre-accident household and home maintenance activities were conducted either by Mr. Licata's wife or by his townhouse. Mr. Pearce, however, testified as to his understanding that Mrs. Licata is legally blind, and requires the assistance of her husband regarding housekeeping duties;
the Applicant was undergoing a work hardening program (Dr. Corsini's clinical note, January 10, 2002);
an EMG revealed evidence of moderately severe C6, C7 and C8 nerve root lesions in the neck and severe L5 (i.e. low back) nerve root lesion with probably mild involvement of the S1 root as well (notwithstanding the purported December 2001 opinion of Dr. Darracott, a specialist in Physical Medicine and Rehabilitation, that there was no evidence of neurological dysfunction and that the Applicant's problems were related to deconditioning, with a voluntary and non-organic component. It was Dr. Darracott who had purportedly recommended a work hardening program and a graduated return to work);
Mr. Licata was continuing to experience a lot of problems with his back and especially his neck and was still having symptoms of nerve root irritation with paresthesia of his hands. His family doctor thought that he would have great difficulty doing any heavy work or prolonged walking or climbing, and should continue with his conditioning program (Dr. Corsini's clinical note, April 18, 2002); and,
Mr. Licata was still receiving weekly IRBs from Gore Mutual.

Thus, at the time of the referral letters sent by Mr. Lamont, the evidence before me persuades me:

that Mr. Licata had specific educational qualifications;
that Mr. Licata had a stable work history with his pre-accident employer;
that the essential duties of Mr. Licata's pre-accident employment were physically demanding;
that those job duties could not be modified;
that Mr. Licata had sustained objectively confirmed injuries in this motor vehicle accident which impeded his return to work;
that notwithstanding his ongoing problems, Mr. Licata had endeavoured to return to work and was continuing to participate in a return-to-work program;
that it appeared very uncertain that the return-to-work program would make significant progress in returning Mr. Licata to his former employment in the near future; and,
there was also a question as to Mr. Licata's possible entitlement to housekeeping benefits (which were subsequently submitted in 2003).

Section 15 of the Schedule provides that the insurer "shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into . . . the labour market." Section 55 of the Schedule states that an insured person entitled to weekly benefits such as IRBs "shall obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary" to, amongst other things, shorten the period the benefit is payable.

In light of these provisions and Mr. Licata's significant continuing impairments at the time of the referral letters, I find that it was entirely reasonable for the Applicant to be referred to an agreed expert in reintegration into the labour market, the family and the rest of society to determine what further or other entitlement Mr. Licata might have to statutory accident benefits, specifically in addressing his employment and household disabilities.

The Insurer argues that retaining Mr. Pearce was not reasonable because other health care practitioners were involved in this claim and were able to make the recommendations set out in Mr. Pearce's report. First, it is well established that insureds are entitled to assessments from medical practitioners of their own choice, as long as such assessments are reasonable and necessary. Secondly, while, it may have been reasonable for a similar report to have been requested from one of Mr. Licata's current treating health care providers, that does not prohibit one from instead retaining a new expert to review the relevant information and documentation.

The Insurer further argues that requesting a report from Mr. Pearce was premature, given that there was an ongoing return-to-work program. In fact, Mr. Pearce put his review on hold, pending Mr. Licata's further attempt at returning to work. Mr. Pearce again met the Applicant in August 2002. In or about that time, the following further information was available:

Mr. Licata had not been able to return to work and was undergoing further assessments;
Mr. Licata was experiencing a lot of stress, tension and anxiety related to his work assessment (which was causing additional pain) and his inability to perform (which was probably elevating his blood pressure to 160/100). Mr. Licata was concerned about not being able to return to his former work (clinical note of Dr. Corsini, August 22, 2002);
upon consideration of, amongst other things, a right shoulder ultrasound and an April 2002 MRI, a specialist in physical and rehabilitation medicine opined that Mr. Licata "may not be able to return to [work] as an electrician because it is a significantly demanding job where he has [to use] his right dominant arm. He may have difficulty in activities that require reaching above the shoulder level and with pulling, pushing, lifting and carrying activities" (Dr. A.T. Ghouse, July 23, 2002 consultation note to Dr. Corsini);
Mr. Licata's psychological diagnoses included a Chronic Pain Disorder and a moderate to severe Depressed Mood (Dr. Gouws, June 4, 2002); and,
Gore Mutual was proceeding with a return to work program, evidently in accordance with the advice of Dr. Darracott.

Given this further information that was available at or about the time of Mr. Pearce's report, I am persuaded that the type of treatment being pursued by the Insurer was in issue, that is, whether Mr. Licata would be able to return to his former employment or whether it was reasonable to begin exploring other options, as permitted by the Schedule, concurrent with or as an alternative to the return-to-work program. While keeping in mind the admonition of Director's Delegate Naylor in Salvaggio and Simcoe & Erie General Insurance Company (FSCO P97-00062, January 21, 1999) that "the reasonableness of the expense should not be judged solely with the benefit of hindsight," I do note that ultimately the return-to-work program was not successful, and that Mr. Pearce is presently revisiting Mr. Licata's future (non-physically demanding) vocational options.

2. Was the cost of Mr. Pearce's report reasonable?

I am not persuaded that the submitted cost of Mr. Pearce's August 12, 2002 report was reasonable.

Mr. Pearce produced a four-and-a-half page report. The first three-and-a-half pages were largely a recitation of highlights obtained from the documentation provided or the information garnered from Mr. Licata. Little, if any, analysis is provided. A page of recommendations follow, numbering six in total. They are specifically:

Homemaking and housekeeping assistance for outside maintenance activities, estimated at $1,800 per year.

As the Insurer noted, there is no analysis in the report as to what specific housekeeping and home maintenance services Mr. Licata normally performed before the accident (as required by the Schedule), and I note, more specifically, the pre-accident division of such duties in the context of the Applicant's wife being evidently legally blind. Nor is there any indication as to how Mr. Pearce costed these supposedly additional expenses (using the wording of the Schedule) at $100 to $200 a month.

Possible vocational exploration if Mr. Licata's physicians recommend that he not return to his prior physically-demanding employment.

There is no indication in the report that Mr. Pearce sought the advice of any treating practitioner, which would seem to be a crucial first step in any meaningful assessment. Absolutely no guidance is provided as to what vocational exploration might be appropriate, other than "short term upgrading" without indicating what should be upgraded. It hardly takes an expert to simply opine that if someone cannot return to their prior employment, that they might benefit from vocational exploration.

That Mr. Licata continue seeing Dr. Gouws, psychologist, for counselling regarding coping with pain and making difficult decisions.

There is no indication in the report as to how seeing a counsellor would assist Mr. Licata to cope with pain, nor is there any indication as to what difficult decisions Mr. Licata was being called upon to make.

That Mr. Licata continue with his strengthening and exercise program at the Aim Clinic as appropriate.

There is no indication in the report as to the specifics of this program, why such treatment was appropriate, what realistic goals should be sought nor how long the treatment should last. Mr. Pearce agreed that he was not qualified to make a referral for such treatment.

That as some individuals who suffer persistent pain feel uneducated and unable to make informed decisions, it might be reasonable for Mr. Licata to have a further re-evaluation of his shoulder to determine whether further medical intervention was required.

There was no evidence that Mr. Licata was feeling uneducated, nor as to what precisely he was unable to make an informed decision about; nor was it at all clear as to how a further evaluation was going to educate Mr. Licata or assist him in making an informed decision about some unknown thing that he was allegedly presently unable to decide.

That individuals with persistent pain sometimes become "lost in the system," and that Mr. Pearce supported any efforts made to assist the coordination of Mr. Licata's rehabilitation.

There was no evidence that Mr. Licata was "lost in the system," as Mr. Pearce agreed on cross-examination. There is little indication in the report as to what, if any, efforts should be made to coordinate Mr. Licata's rehabilitation.

Mr. Pearce charged $1,219.80 for this report, including G.S.T. Mr. Pearce testified that he charges $200 an hour. I was not provided with Mr. Pearce's rough notes. I was not provided with Mr. Pearce's time sheets. I accept that Mr. Pearce met twice with Mr. Licata. I accept that he reviewed, to some extent, the documentation provided. However, the product Mr. Pearce produced did not, in my view, reflect significant time, care and expertise, especially of what one would expect of an expert in reintegrating individuals into the labour market, the family and into the rest of society.

Mr. Pearce's August 12, 2002 report was generally superficial and vague, providing little thought or analysis, with occasional reliance on motherhood statements of questionable relevance. It struck me as the kind of report one would see dictated, in assembly line manner, following a cursory review of submitted documentation and possibly a somewhat more in-depth interview.

It may be that the time logged by Mr. Pearce (of which I have no supporting evidence) may be of greater value in light of any further report that might be forthcoming concerning future rehabilitation. However, I was not provided with any such further documentation, other than a brief letter from Mr. Pearce dated August 15, 2003, promising another report, which I was not given, nor which, as far as I understand, has been written.

Mr. Pearce's hourly rate was not disputed. I find 1.5 hours reasonable, representing the approximate quality and value of his August 12, 2002 report. At $200 an hour, plus G.S.T., I find that the Applicant is entitled to $321 from Gore Mutual for this report, plus interest in accordance with subsection 46(2) of the Schedule.

EXPENSES:

Having now determined the substantive issue in dispute, if the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).

I would, however, like to express my appreciation for the expertise, professionalism, preparation, efficiency and courtesy throughout of both Mr. Wynperle and Mr. Blom.

May 11, 2004

Lawrence Blackman Arbitrator

Date