Neutral Citation: 2004 ONFSCDRS 88
FSCO A03-001161
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SHELLEY NEWMAN
Applicant
and
PEMBRIDGE INSURANCE COMPANY (PAFCO INS. CO.)
Insurer
REASONS FOR DECISION
Before:
Catherine Skinner
Heard:
April 19, 2004, in Stoney Creek, Ontario.
Appearances:
Alan Wynperle for Ms. Newman
Stuart Aird for Pembridge Insurance Company (Pafco Ins. Co.)
Issues:
The Applicant, Shelley Newman, was involved in a motor vehicle accident on November 17, 2002. She applied for and received statutory accident benefits from Pembridge Insurance Company (Pafco Ins. Co.) ("Pembridge"), payable under the Schedule.1 Pembridge denied payment of an EMG assessment and report prepared by Dr. McComas dated February 20, 2003. The parties were unable to resolve this dispute through mediation, and Ms. Newman 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:
- Is Ms. Newman entitled to $1,284, plus interest, for the cost of an EMG and diagnostic assessment, conducted and prepared by Dr. Alan McComas, claimed under section 24 of the Schedule?
Result:
- Ms. Newman is entitled to $749, plus interest, for the cost of an EMG and diagnostic assessment conducted and prepared by Dr. Alan McComas.
EVIDENCE AND ANALYSIS:
Ms. Newman was involved in a motor vehicle accident on November 17, 2002. On February 20, 2003, Ms. Newman was seen by Dr. Alan McComas, a recognized expert in neurophysiology with special expertise in conducting clinical electro miography assessments, or EMGs. Dr. McComas conducted an EMG of Ms. Newman and issued a written assessment on February 20, 2003.
Pembridge denied payment of the $1284 cost of Dr. McComas's assessment on the basis that the EMG and report were not completed for the purpose of the Regulation and that the cost of an EMG is covered by OHIP.
In deciding whether the cost of Dr. McComas's report is recoverable under section 24 of the Schedule, I refer to the Director's Delegate's decision in Tesfai and Allstate Insurance Company of Canada (FSCO, P0-00048, December 21, 2001), in which she comments as follows: "...whether the analysis is focussed on the purpose requirement or reasonableness, I find that the key questions are "what benefits were at issue at the relevant time?" and "what other relevant information was available at the time? Answering these questions usually involves going beyond the report itself to enquire into the insured person's circumstances at the time." The Tesfai decision also stands for the principle that an insured person must provide evidence that the assessment was obtained for the purpose of the Regulation.
Accepting that these are the applicable principles in a consideration of claims under section 24 of the Schedule, I find that Dr. McComas's assessment and report were conducted for the purpose of the regulation.
At the time of the EMG, Ms. Newman had begun complaining of numbness and tingling in her arm, and fatigue in her legs. Ms. Newman's family doctor's notes of December 17, 2002 indicate parasthesia2 in her right arm. Ms. Newman's chiropractor, Dr. Sandra Malpass, identified nerve root impingement as one of Ms. Newman's principal impairments in both a disability certificate and a treatment plan, dated November 28, 2002.
Given Ms. Newman's complaints and the opinion of Dr. Malpass, I find it reasonable that Ms. Newman's advisors would want to investigate whether Ms. Newman suffered from any nerve damage as a result of the accident. An EMG was indicated as a means to investigate Ms. Newman's complaints.
The referral to Dr. McComas came from Ms. Newman's lawyer. In the referral letter, dated January 24, 2003, Mr. Lamont writes as follows: "My purpose in writing to you is to request your assistance in determining what services and benefits Ms. Newman may be entitled, pursuant to the Statutory Accident Benefits Schedule attached to the auto policy. I am requesting, specifically, a Section 24 report, and any comments that you may have for further assessments, investigations and/or treatment."
Although the referral is from Mr. Lamont, and not Ms. Newman's family doctor, I find it reasonable that Ms. Newman would want to investigate the numbness and tingling in her arm and to explore her treatment options and limitations. I was given no evidence about what issues, if any, were in dispute between the parties on February 20, 2003.
In light of Ms. Newman's circumstances on February 20, 2003, I am satisfied that Dr. McComas's report was prepared for the purpose of the Schedule. The referral letter inquires about further treatment, and I was persuaded by Ms. Newman's submission that the EMG and report were intended to form part of an overall rehabilitation plan.
I am also satisfied that the results of the EMG were used by Ms. Irene Reinhold, physiotherapist, in her treatment of Ms. Newman. In a letter dated March 11, 2004, Ms. Reinhold writes that the EMG was essential to confirm her own findings. She indicates that her treatment was shaped by the results of the EMG: "As Ms. Newman had confirmed neurological findings, aggressive physiotherapy techniques, such as manipulation, would be contraindicated and I confined her manual therapy to mobilization and exercises which would not aggravate neurological tissues."
Ms. Reinhold's treatment plan of April 23, 2003 was confirmed as reasonable and necessary by a Medical Rehabilitation Assessment conducted by Hamilton Hospitals Assessment Centre on May 29, 2003.
Pembridge submitted that the cost of the EMG is covered by OHIP and should therefore not be borne by the insurer, pursuant to section 60 of the Schedule. Dr. McComas testified that OHIP does pay for a type of EMG, but that the EMG he conducts is much more detailed and comprehensive and takes much longer. OHIP would only cover a more abbreviated EMG.
I find that Pembridge has the onus of proving that the EMG assessment is covered by OHIP. In this case, it adduced no evidence in support of its claim. It did not bring direct evidence to establish the extent of OHIP coverage in these circumstances. I accept Dr. McComas's testimony that the EMG he conducted would not be covered by OHIP and in the absence of evidence to the contrary, I find that Pembridge is not relieved of its obligation under section 24 to pay for the reasonable cost of Dr. McComas's EMG and assessment.
Although I have little difficulty concluding that Dr. McComas's assessment and report were undertaken for the purpose of the Regulation, I am not satisfied that his fee is reasonable. Dr. McComas was specifically asked to comment on future treatments, investigations and assessments of Ms. Newman. He did not do so. His report consists largely of a numeric recitation of the results of the EMG, together with a half page of his own background and qualifications. His conclusion is ten lines long and does nothing more than recite the results of the EMG in narrative form.
I find that Dr. McComas's EMG and report were less than useful in assisting in the development of a rehabilitation plan for Ms. Newman. Although the results were used by a future treatment provider, Dr. McComas did not comment on any further treatments, or indicate what treatments might be counter-indicated by the results.
Dr. McComas testified that his hourly rate is $350 and that it took him 1¼ hours to take a history from Ms. Newman and conduct the EMG. Given the limitations of Dr. McComas's report, I find that a reasonable rate for the assessment and the report would be based on 2 hours of work.
Pembridge is therefore ordered to pay $700 plus G.S.T. for Dr. McComas's February 20, 2003 EMG and report. The total amount ordered is $749, plus applicable interest.
The parties made no submissions with respect to expenses. If they are unable to agree on entitlement or amount, they may request an appointment with an arbitrator for that purpose.
June 10, 2004
Catherine Skinner
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 88
FSCO A03-001161
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
SHELLEY NEWMAN
Applicant
and
PEMBRIDGE INSURANCE COMPANY (PAFCO INS. CO.)
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Pembridge is ordered to pay Ms. Newman $749, plus applicable interest, for the cost of an EMG and assessment conducted by Dr. McComas on February 20, 2003.
June 10, 2004
Catherine Skinner
Arbitrator
Date
Footnotes
- The 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.
- Paresthesia is defined in Dorlands Pocket Medical Dictionary as "an abormal sensation, as burning prickling.."