Neutral Citation: 2005 ONFSCDRS 92

FSCO A02-000462

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BIKRAM MANN and AMARJIT MANN

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Suesan Alves

Heard: January 28, 2004 at the offices of the Financial Services Commission of Ontario. Written submissions were due by May 20, 2005.

Appearances: Larry Spodek for Mr. and Mrs. Mann Derek Wilson for Allstate Insurance Company of Canada

Issues:

The Applicants, Bikram Mann and Amarjit Mann were injured in a motor vehicle accident on September 2, 2001. They claimed statutory accident benefits from Allstate Insurance Company of Canada, ("Allstate"), payable under the Schedule.¹ In this arbitration they claim medical benefits, the cost of examinations, interest on overdue benefits and their expenses of the arbitration.

Allstate disputes all of Mr. and Mrs. Mann's claims and claims its expenses of the arbitration. Following the hearing, Allstate withdrew its claim for an award in respect of its assessment. The issues are:

1. Is Mrs. Mann entitled to receive a medical benefit under section 14 of the Schedule for: (a) between 34 and 46 chiropractic treatments outlined in treatment plans from Center City Health Clinic dated September 26, 2001 and November 26, 2001, (b) 32 sessions of massage therapy, outlined in treatment plans dated September 26, 2001 and November 29, 2001, (c) a rehabilitation strengthening and instruction on a home stretching program outlined in a treatment plan dated September 26, 2001, (d) 15 acupuncture treatments outlined in a treatment plan dated November 29, 2001?

2. Is Mr. Mann entitled to receive a medical benefit under section 14 of the Schedule for: (a) between 34 and 46 chiropractic treatments outlined in two treatment plans from Center City Health dated September 26, 2001 and November 27, 2001, (b) 32 massage treatments outlined in treatment plans dated September 26, 2001 and November 29, 2001, (c) 16 sessions of a rehabilitation program outlined in a treatment plan dated September 26, 2001, and (d) 15 acupuncture treatments outlined in a treatment plan dated November 29, 2001?

3. Is Allstate entitled to a repayment of amounts it paid for the Applicants' treatment pending resolution of the dispute?

4. Are Mr. and Mrs. Mann entitled to receive a benefit for the cost of mental health assessments conducted by Bikram DasGupta, claimed pursuant to section 24 of the Schedule?

5. Is Mr. Mann entitled to the cost of an in-home assessment, claimed pursuant to section 24 of the Schedule?

6. Are Mr. and Mrs. Mann entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule

7. Which party is liable to pay the other's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

The result is:

1. Mrs. Mann is entitled to receive a medical benefit for 30 chiropractic treatments, six sessions of massage therapy, 16 sessions of a rehabilitation program and five acupuncture treatments.

2. Mr. Mann is entitled to receive a medical benefit for 24 chiropractic treatments, 24 massage treatments, 16 sessions of a rehabilitation program, and five acupuncture treatments.

3. Allstate is not entitled to a repayment in relation to amounts it paid for the Applicants' treatment pending resolution of the dispute.

4. Mr. and Mrs. Mann are not entitled to receive a benefit for the cost of mental health assessments.

5. Mr. Mann is not entitled to the cost of an in-home assessment.

6. Mr. and Mrs. Mann are not entitled to interest.

7. Each party shall bear its own arbitration expenses.

EVIDENCE AND ANALYSIS:

Background

Mr. and Mrs. Mann were passengers in a car driven by their daughter on September 2, 2001. The car was stopped at a red traffic light when it was rear-ended by a SUV. The car was pushed into the middle of the intersection by the force of the impact. The car was a write-off.

Both Applicants sustained soft tissue injuries in the accident and obtained medical treatment at Center City Health Clinic. The clinic submitted a number of treatment plans to Allstate. Allstate denied all the plans and arranged for assessments of the necessity and reasonableness of the treatment by a medical and rehabilitation designated assessment centre ("DAC"). Allstate paid for the benefits recommended by the DAC and invoiced by the clinic, pending resolution of the dispute.

In this arbitration, Mr. and Mrs. Mann each claim the cost of treatment, the cost of mental health assessments, interest and expenses. Mr. Mann also claims the cost of an in-home assessment. Allstate disputes all of the Applicants' claims and claims its expenses of the arbitration. Allstate also asserted a claim for repayment in relation to benefits which it paid pending resolution of the dispute.

For the reasons which follow, I have awarded the Applicants some of the treatment claimed, dismissed their remaining claims and dismissed the Insurer's claim for a repayment. Each party will bear its own arbitration expenses.

I will deal with the Applicants' claims for medical benefits and Allstate's claim for a repayment of those benefits, then the Applicants' claims for mental health assessments, Mr. Mann's claim for an in-home assessment, both Applicants' claims for interest and then the parties' claims for expenses.

Claims for medical treatment by Mrs. Mann and Mr. Mann

Mr. and Mrs. Mann claim the cost of chiropractic, massage and acupuncture treatments and a rehabilitation, strengthening and instruction on a home stretching program provided by Center City Health.

Section 14 of the Schedule requires an insurer to pay for reasonable and necessary treatment required as a result of impairments sustained in an accident. Allstate submits that the treatment the Applicants claimed was not reasonable and necessary. The question then is what treatment was reasonable and necessary for each Applicant and at what rate.

Mrs. Mann's claims for medical benefits

Mrs. Mann's evidence

At the time of the accident, Mrs. Mann was 54 years of age and primarily responsible for housekeeping and homemaking activities inside the home. Mrs. Mann testified that at the time of the accident she had been in excellent health and saw her family physician perhaps once every six months.

Mrs. Mann struck her head on the front seat of the car and reported feeling "weak" and "funny" at the scene of the accident.² She testified that within a few hours of the accident, she began to experience pain in her head and neck. The next day, she went to the Credit Valley Hospital, where she was given a prescription for Tylenol 3 and instructed to see her family physician in follow up within the week. Mrs. Mann saw Dr. B. Nanar, her family physician, who prescribed Tylenol 3 for pain and referred her for physiotherapy and rehabilitation at Center City Health Clinic. Dr. Nanar did not prescribe anti-inflammatory medication due to Mrs. Mann's history of asthma.

Dr. Jong H. Oh, chiropractor at Center City Health, diagnosed her injuries as WAD III, with spinal joint dysfunction associated with paraspinal sprain and strain, lumbar nerve root irritation with associated radiating leg pain and anterior thigh pain, and cervicogenic headache. He recommended massage therapy, chiropractic treatments and a rehabilitation program involving stretching and strengthening. Center City Health submitted additional treatment plans to Allstate signed by Dr. Z. Nazarali, chiropractor, for further chiropractic treatment, acupuncture and massage therapy. At some point in December 2001, Mrs. Mann stopped treatment. The clinic telephoned her to offer her further treatment, however, she declined their offer. She testified she is not seeking further treatment.

Mrs. Mann testified that after the treatments she would feel better for a couple of days and then her pain would start again. She testified that she decided to stop treatment because she was feeling much better. She testified that she feels a lot better now than she did immediately after the accident. Mrs. Mann also testified that she has not gotten much better and did not seek work because she knows she cannot work.³ She has help from her son with the housework and from her daughter with cleaning. She is able to do the cooking.

My sense from this evidence is that Mrs. Mann's condition has improved, when compared to the period shortly after the accident. The treatments she received provided her with short term relief from her pain. She felt sore after the massage therapy sessions. Mrs. Mann continues to experience muscle aches, stiffness and pain in her back, neck and shoulder which she manages with a daily 20 minute exercise program, daily Tylenol, and heating pad or 535 rub. At times she visits her family doctor every two weeks.

Allstate's evidence

Allstate rejected the treatment plans and arranged an insurer's examination by Dr. C. B. Paitich, orthopaedic surgeon. On December 17, 2001, Dr. Paitich reported that Mrs. Mann complained of neck pain and left sided leg pain, that she was unable to or needed to make adjustments in order to vacuum, clean a bathroom, do laundry, sweep a floor, make a bed or wash the dishes.

In Dr. Paitich's opinion, Mrs. Mann had evidence of impairment with respect to the range of motion of her lumbar and cervical vertebrae. In his opinion, Mrs. Mann's treatment was inappropriate because of the number of passive modalities. In his opinion, between 12 and 18 treatments would have been necessary over the course of six weeks. Dr. Paitich recommended that the treatment facility provide Mrs. Mann with pictographs of her exercise program to help her remember the exercises, and that she perform a self-directed program to manage her pain.

The DAC assessment

Allstate arranged for an assessment by a medical and rehabilitation DAC to obtain an opinion as to whether the treatment plans were reasonable and necessary. The DAC assessors were a chiropractor, Dr. D. Dos Santos; a physiotherapist, Ms. D. McKeown; and a massage therapist, Ms. A. Ruebottom. In the opinion of the DAC assessors, the cost of the rehabilitation program and some of the passive treatment was reasonable; however, the fees for each chiropractic and massage treatment were unreasonable.

Although I do not accept it in its entirety, I generally prefer the opinion offered by the medical and rehabilitation DAC assessors, based on the more detailed assessment of each modality of treatment, to the opinion offered by the Applicant's chiropractors at Center City Health and by Dr. Paitich.

Rehabilitation

Mrs. Mann claimed the cost of a 16 session rehabilitation, strengthening and stretching program. Ms. D. McKeown, physiotherapist and member of the team of DAC assessors, was of the opinion that the rehabilitation, strengthening and stretching program Mrs. Mann claimed was reasonable and necessary at a cost of $960. She was also of the opinion that the cost per treatment session of $60 was reasonable. I accept Ms. McKeown's opinion and allow the cost of the rehabilitation program as claimed.

Ms. McKeown noted Mrs. Mann's pain behaviours and opined that Mrs. Mann was limiting her exercise progression as a result of her disability perceptions. In Ms. McKeown's opinion, such issues could not be dealt with appropriately through the physical rehabilitation module. I note that such issues are frequently addressed by psychological intervention alone, or by a combination of psychological intervention and physical rehabilitation measures. This is discussed further under Mrs. Mann's claim for a mental health assessment.

Massage treatment

Mrs. Mann claimed the cost of 32 massage treatments set out in two treatment plans. Ms. Ruebottom, massage therapist at the DAC, concluded that the initial treatment plan for massage therapy was partially reasonable and necessary for a trial period of six massages. However, in her opinion, the treatment should have been discontinued once Mrs. Mann found the massage treatments hurt, were not helpful, and she was not getting any better. Ms. Ruebottom was of the opinion that based on the fee schedule of the Ontario Massage Therapist Association, assuming a half-hour session, $42 was a reasonable fee for a half hour session.

I accept Ms. Ruebottom's opinion. Despite Mrs. Mann's problems with hypertonicity and spasm, as described below under "chiropractic treatment," after the massages, she felt sore. Since the treatments did not provide her with pain relief or provide any other benefit, I am not persuaded that it was reasonable for the clinic to continue the massage treatments.

Acupuncture treatment

The clinic submitted a treatment plan for 15 sessions of acupuncture treatment. Ms. McKeown, the physiotherapist of the DAC, was of the opinion that the acupuncture treatment was unreasonable given the history of passive treatment, Mrs. Mann's limited response and the length of time which had elapsed following the motor vehicle accident. I do not accept Ms. McKeown's opinion with respect to the acupuncture treatment.

The treatment goals stated in the acupuncture treatment plan were to decrease pain and inflammation and increase Mrs. Mann's range of motion. Arbitrators have long accepted that providing pain relief is a reasonable goal of treatment. Since Mrs. Mann had not obtained adequate pain relief with chiropractic, massage and physiotherapy treatments and with a rehabilitation stretching and strengthening program, I find that it was reasonable for Mrs. Mann to try a different type of treatment to see whether she could obtain relief. In this context, I find five sessions of acupuncture treatment at the rate of $40 per session a reasonable trial period. According to the DAC, this was the approach which Mrs. Mann took. I find that $200 was the reasonable cost of that trial.

Chiropractic treatment

According to the initial treatment plan for Mrs. Mann, Center City's fee per chiropractic treatment was between $113.33 and $188.88 per session. Dr. Dos Santos, chiropractor at the DAC, reported that $40 per treatment session was the maximum amount recommended by the Canadian Chiropractic Association, and concluded that the clinic's fees were excessive and unreasonable. I accept Dr. Dos Santos' opinion in this regard. I find that $40 per chiropractic treatment session was a reasonable fee.

Mrs. Mann claimed the cost of between 34 and 46 chiropractic treatments recommended by Dr. J. Oh and Dr. Z. Nazarali, chiropractors at Center City Health. I find the number of treatments recommended by the clinic in a three month period, in conjunction with other treatments excessive, and therefore unreasonable. Dr. Dos Santos was of the opinion that chiropractic treatment would have been reasonable and necessary over a course of six weeks at a rate of three to five treatments per week, or between 18 to 30 treatments. Mrs. Mann did not provide opinion evidence to rebut or respond to Dr. Dos Santos' opinion. However, I find Dr. Dos Santos' opinion problematic. He provides no basis for substituting his opinion—that Mrs. Mann sustained a WAD II—for that of Dr. Oh who concluded that she had a WAD III. Dr. Oh examined Mrs. Mann within weeks of the accident before she received treatment. Dr. Dos Santos examined Mrs. Mann five months post-accident after she received treatment.

Dr. Dos Santos reported that based on his examination of Mrs. Mann there were "minimal findings." The day after Dr. Dos Santos' examination, Ms. Ruebottom, a massage therapist and part of the team of DAC assessors, examined Mrs. Mann. Ms. Ruebottom reported that Mrs. Mann had mild, moderate or severe hypertonicity in her left and right trapezius muscles, upper back, mid-back, and low back area and both buttocks. She also had spasm in her right levator scapulae muscle and in her right hamstring muscle. These are objective findings. In my view, they qualify as impairments within the meaning of the Schedule.⁴

Ms. Ruebottom's examination contrasts with the "minimal findings" which Dr. Dos Santos reported based on his examination a day earlier. The DAC assessors did not attempt to reconcile the contrast in their findings.

I find neither Dr. Oh's opinion nor that of Dr. Dos Santos as to the reasonable amount of treatment entirely satisfactory. I find 30 treatments, the upper end of the treatment range recommended by Dr. Dos Santos, to be a reasonable amount of chiropractic treatment and that $1,200 is the reasonable cost of Mrs. Mann's chiropractic treatment.

In summary, I find that Mrs. Mann is entitled to $2,612 for medical treatment. Mr. Morgan testified that Allstate paid $2,412 for Mrs. Mann's treatment. This leaves a balance outstanding of $200.

Mr. Mann's claims for medical benefits

Mr. Mann claims the cost of 34 to 46 chiropractic treatments, 32 massage treatments, a 16 session rehabilitation program and 15 sessions of acupuncture, outlined in treatment plans from Center City Health dated September 26, 2001, November 27 and 29, 2001. Allstate submits that the treatment claimed was not reasonable or necessary.

Mr. Mann's evidence

At the time of the accident, Mr. Mann was 55 years of age and self-employed fixing VCRs and television sets. In terms of household activities, he was responsible for shovelling snow, taking out the garbage and cutting the grass. He helped with the grocery shopping and housekeeping and homemaking activities inside the home.

In 1990, some eleven years pre-accident, Mr. Mann had a lumbar spine laminectomy/discotomy. Although he has suffered bouts of low back pain since that surgery, at the time of the accident his low back was asymptomatic.

Mr. Mann struck the top of his head on the roof of the car and felt some pain in his lower back at the time of the motor vehicle accident on September 2, 2001. He went to see Dr. B. Nanar, his family doctor when his back pain got worse following the accident. Mr. Mann testified that his family doctor referred him to the Center City Health Clinic where he was assessed by Dr. J. Oh, chiropractor.

Dr. Oh diagnosed Mr. Mann's injuries as a WAD III, with cervical nerve root irritation, lumbar nerve root irritation, lumbar joint dysfunction, paraspinal strain and cervicogenic headaches. He received physiotherapy, chiropractic, acupuncture and massage treatments.

Mr. Mann testified that he felt the treatment helped his back. He was given home exercises which take about 20 minutes in the morning and again in the afternoon. He gets low back pain once in a while and has to lie down. When the pain is severe he takes Tylenol 2. At the time of the medical and rehabilitation DAC assessment he would take the occasional Vioxx tablet. He cannot lift heavy things or do too much bending. His next door neighbour shovels the snow, takes out the garbage and cuts the grass. He is still having pain and intends to make another physiotherapy appointment.

The DAC assessment

Allstate arranged for an assessment by a medical and rehabilitation DAC for an opinion as to whether the treatment plans were reasonable and necessary. The DAC assessment team was the same group of health practitioners who assessed Mrs. Mann's treatment.

In the opinion of the DAC, the rehabilitation program and some of the passive treatment was reasonable and necessary, although the cost per session of the chiropractic and massage therapy was excessive and unreasonable.

Although I do not accept it in its entirety, I generally prefer the opinion offered by the medical and rehabilitation DAC assessors, based on the more detailed assessment of each modality of treatment, to the opinion offered by the Applicant's chiropractors at Center City Health.

The cost of Mr. Mann's treatment

For the reasons given above with respect to the cost of chiropractic, physiotherapy and massage treatments in relation to Mrs. Mann's treatment at Center City Health, I find the reasonable cost per session of Mr. Mann's chiropractic treatment was $40.00; per session of rehabilitation was $60.00; and per session of massage therapy was $42.00.

Rehabilitation program

Mr. Mann claimed the cost of a 16 session rehabilitation, stretching and strengthening program. Ms. McKeown, physiotherapist of the DAC assessment team, opined that sixteen sessions of a program of rehabilitation therapy at a cost of $960 was reasonable and necessary for Mr. Mann. This was an active treatment program. I accept Ms. McKeown's opinion and find that the rehabilitation program was reasonable in its entirety.

Massage treatment

Mr. Mann claimed the cost of 32 massages in two treatment plans. Mr. Mann found the massages would reduce his pain and increase his flexibility for two hours. In Mr. Mann's opinion, he was 50% better overall at the time of the DAC assessment. Ms. Ruebottom, the massage therapist at the DAC, estimated he had had 36 massages. I accept the opinion of Ms. Ruebottom that 24 sessions of massage therapy at a cost of $1,008 was reasonable and necessary treatment for Mr. Mann, and that during the period in question, there was not enough improvement to warrant more of this particular intervention.

Acupuncture treatment

The clinic submitted a treatment plan for 15 sessions of acupuncture treatment for Mr. Mann. The DAC was of the opinion that the acupuncture treatment was unreasonable, given the history of passive treatment. For the reasons given with respect to Mrs. Mann, I find that it was reasonable for Mr. Mann to try a different type of treatment to see whether he could obtain further relief. In this context, I find five sessions of acupuncture treatment at the rate of $40 per session a reasonable trial, and that $200 was the reasonable cost of that trial.

Chiropractic treatment

Mr. Mann claimed the cost of between 34 and 46 chiropractic treatments. As in the case of Mrs. Mann, I find the opinions provided by the chiropractors problematic. I find the recommendation by Center City Health's chiropractors for between 34 and 46 chiropractic treatments in a three month period, in conjunction with other treatments, excessive and therefore unreasonable.

In Dr. Dos Santos' opinion, a reasonable amount of treatment for Mr. Mann was eighteen sessions of chiropractic treatment. Dr. Dos Santos used a different definition of impairment than that found in the Schedule. He noted that there was no accident report to confirm the history of the accident and opined that he was "doubtful that any significant injury was sustained." In his opinion, Mr. Mann's injuries were "consistent with a grade I or at most II, whiplash associated disorder" and a mild sprain/strain injury of his lower back. In Dr. Dos Santos' opinion, Mr. Mann had a resolved sprain/strain injury of his neck and back and non-organic signs.

Dr. Dos Santos' examination and assessment of Mr. Mann appears to contrast with that of Ms. McKeown, physiotherapist, which was done one week later. Both assessors relied on the Waddell scales. Dr. Dos Santos found non-organic signs, while Ms. McKeown noted no non-organic signs and recommended future treatment. Again, there is no attempt to reconcile the apparently conflicting examinations and findings of the DAC assessors. Dr. Oh's assessment was done shortly after the accident. Dr. Dos Santos provides no persuasive basis for substituting his opinion based on an examination done following three months of treatment.

Dr. Dos Santos reported that in his opinion, after six weeks of treatment, in the absence of substantial improvement, further treatment was not likely to have "a significant impact on his perception of injuries" and that after that period he would have achieved "maximum therapeutic recovery." Dr. Dos Santos appears to ignore the goal of providing pain relief. For these reasons, I reject Dr. Dos Santos' opinion in relation to the amount of chiropractic treatment which was reasonable and necessary for Mr. Mann. In the context of the other passive treatment measures, I find 24 chiropractic treatments reasonable and necessary.

For these reasons, I conclude that Mr. Mann is entitled to 24 chiropractic treatments, five acupuncture sessions, 24 massage treatments, 16 sessions of a rehabilitation program, in relation to the medical benefits in dispute under section 14 of the Schedule. I also conclude that the reasonable cost of this treatment is $3,128. Mr. Morgan testified that he paid $1,728 for Mr. Mann's treatment. Allstate therefore owes Mr. Mann a balance of $1,400.

The DAC recommendations for future treatment

When Ms. Mc Keown, physiotherapist at the DAC, examined Mr. Mann, she noted signs of myofascial tension involving the left upper fibres of his trapezius and levator scapulae muscles. She also noted significant evidence of weakness and imbalance affecting his postural stabilization muscles, and faulty recruitment patterns involving the axioscapular and deep neck flexor muscle groups on the left side of his body.

In terms of his lumbar spine, Ms. McKeown noted mild restriction in his range of movement, stiffness and tenderness. In her opinion, there was no evidence of a non-organic component to Mr. Mann's symptoms, based on Waddell's non-organic low back pain tests and observations. A medical and rehabilitation DAC is required to include in its report recommendations as to the future provision of goods and services for the rehabilitation of the insured person.⁵ On this basis, Ms. McKeown opined that Mr. Mann would benefit from four to six sessions of exercise instruction with a physiotherapist, an exercise ball and a theraband for home use. It is unclear whether that treatment and equipment were claimed or provided. Given the way the issues were framed, I would exceed my jurisdiction to order their provision or payment. However, if they have not been provided, Mr. Mann should receive them to address the specific impairments which the DAC identified.

Allstate's claims for repayment

Allstate claimed repayment of medical benefits it paid pending resolution of the dispute, in an unspecified amount. The request was based on the discrepancies between the frequency of treatment set out in the DAC reports and the Applicants testimony. Allstate submitted that there had been a possible overpayment of benefits, since it paid benefits pending resolution of the dispute based on the frequency of treatment contained in the DAC report.

I accept that there were discrepancies, however, it seems to me that Allstate paid benefits based on the amount of treatment the DAC recommended at the rate it recommended and once the treatment was invoiced. I will nevertheless deal with the discrepancy in the evidence.

According to the DAC assessment, Mrs. Mann attended chiropractic treatments three times per week and she attended her last treatment at the end of December 2001. Mrs. Mann testified that she attended Center City Health for treatment once per week. Mrs. Mann testified she did not remember attending the DAC or making some of the statements attributed to her in the DAC report.

Similarly, Mr. Mann's testimony at the hearing minimized the frequency of his attendance at Centre City Health. Mr. Mann testified that at the beginning of his treatment he went twice per week; a long time afterwards his treatments decreased to once per week.

According to the DAC assessment Mr. Mann attended various treatments two, three or five times per week. According to the in-home assessment report in relation to Mr. Mann, in mid-November, 2001, Mr. Mann reported attending treatment regularly, 4 times per week. Clinical notes and records of Center City Health, which might have shed some light on the frequency of the Applicants treatment were not filed.

At the outset of the hearing, Mr. Spodek, a paralegal retained on the eve of the hearing by the treatment facility, Center City Health, advised that Mr. and Mrs. Mann had been notified only the day before that they were required to attend the hearing. Thus, both Applicants were giving evidence with the benefit of perhaps a day to recollect details of events which had taken place years ago. On a number of occasions during their testimony, Mr. and Mrs. Mann stated that they were doing their best to be accurate, but could not remember, or were unsure. When I asked Mr. Spodek to assist them by producing and showing documents to them which might have assisted their recall, he was unable to do so.⁶

I accept that on a number of points Mr. and Mrs. Mann were simply doing the best they could, on short notice, to recollect details of events which had taken place years before the hearing. The DAC reports, particularly the portions prepared by the physiotherapist, Ms. McKeown, contain specific references to which portions of the various treatment plans had been consumed and which had not. At least some of that information came from the Applicants. The DAC reports are stated to have been prepared within months of the treatment from Center City Health. In these circumstances, I find that the DAC reports, although hearsay, are likely to provide a more accurate reflection of the amount and frequency of treatment provided to the Applicants than either Applicant's memory of those details at the hearing. For these reasons, I dismiss Allstate's request for a repayment of benefits.

Mrs. and Mrs. Mann's claim for mental health assessments

Dr. J. Oh, chiropractor, recommended a psychological assessment for each of Mr. and Mrs. Mann to assist him in the management of their treatment. The clinic referred Mr. and Mrs. Mann to Bikram DasGupta, Ph.D., who prepared two reports. Mr. and Mrs. Mann claim the cost of these assessments. Allstate submits it has never received a treatment plan or an invoice in relation to these assessments, and disputes that the assessments were prepared by a psychologist.

Section 24 of the Schedule provides for the payment of all reasonable expenses incurred within the amounts prescribed in the Professional Fees Guideline "for the purpose of this Regulation" in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan.

Mr. D. Morgan, a senior staff claims representative with Allstate, testified that he was unable to obtain confirmation from the Ontario College of Psychologists that the author of the assessments, Bikram DasGupta, was a registered psychologist. I offered Mr. Spodek an adjournment to rebut this evidence, however, he declined the offer. The Applicants did not adduce evidence of the cost of the assessments and I find this claim fails for want of proof.

I dismiss this claim as Dr. Oh requested psychological assessments and there is no evidence that the assessments were performed by a psychologist. The cover sheet of the reports on the letterhead of Metro Assessment is entitled "Psychological Assessment." Each report is called a "mental health assessment." Mr. DasGupta's reports do not state that he is a psychologist. I also find no evidence that Mr. DasGupta is a health practitioner within the meaning of section 2 of the Schedule. On the evidence before me, I am unable to conclude that the reports are reasonable within the meaning of section 24 of the Schedule, and dismiss this claim.

I find it troubling that the manner in which Center City Health arranged to have Mrs. Mann's psychological impairments assessed prevented her from obtaining payment for an assessment and treatment, particularly where the physiotherapist at the DAC has indicated that such issues are interfering with her physical rehabilitation.

As in the case of Mrs. Mann, I am concerned that the clinic prevented Mr. Mann from obtaining a psychological assessment and funding for treatment for psychological impairments, which appear to arise from the motor vehicle accident, because it chose to document his claims in an unorthodox manner. Mr. Mann is receiving treatment through an OHIP funded psychiatrist, at a frequency of once per month.

Mr. Mann testified that his post-accident complaints include anxiety and nightmares for which he is seeing a psychiatrist and taking medication. He testified that prior to the accident he did not experience anxiety or depression, and that he continues to have these problems. Once Mr. Mann completed his testimony, he left the hearing to attend his appointment with a psychiatrist that afternoon.

Mr. Mann's claims for an in-home assessment

Mr. Mann claims the cost of an in-home assessment in the amount of $1,147 under section 24 of the Schedule. Allstate submitted that it was not reasonable to conduct the assessment because it was done while the insurer was paying a housekeeping benefit, and while waiting for the report of an insurer's examination.

An in-home assessment may be appropriately conducted to confirm entitlement to a benefit, such as caregiving, housekeeping or attendant care benefits. In my view, there may also be a rehabilitative and restorative focus to such assessments, in that barriers to function can be identified, tasks may be modified, tasks may be identified for simulation in the rehabilitation setting and aids may be identified which may improve the insured person's level of function.

In this case, Mr. Mann had a pre-accident condition involving his low back. He also had household duties and post-accident impairments. In these circumstances, I find it would have been reasonable to conduct an in-home assessment with a view to ensuring appropriate rehabilitation and restoration of his pre-accident level of function.

Prior to the accident, Mr. Mann's household duties involved shovelling snow, taking out the household garbage and mowing the lawn. He lifted bags of groceries for the household and carried them from the car into the house. He also assisted his wife with laundry and cleaning. Mr. Mann testified that he was not able to help his wife post-accident with laundry and cleaning for two to three months. The accident took place on September 2, 2001; the assessment on November 15, 2001. If Mr. Mann returned to helping his wife in two months, the assessment with respect to his in-home household activities would not have been reasonable. However, the assessment would still be reasonable with respect to his outdoor household activities.

Allstate submits that Mr. and Mrs. Mann were both assessed in their home, and Allstate was presented with invoices of $1,147 for each of the assessments. Mr. Morgan testified that he paid one such invoice, but didn't pay the other. Mr. Morgan testified that the facility was asked to provide a breakdown of the cost of the assessments but this information was not provided. He also noted that the wording in each of the reports was quite similar. Essentially, Allstate objected to paying twice for the same report.

I agree with the Insurer's submission that there was a good deal of duplication in the two reports. In my view, it would not be appropriate to charge twice for work or activities which were performed only once. The Applicants did not offer evidence with respect to the hourly rates, time expended in conducting either of the assessments, of the additional time involved in interviewing and assessing Mr. Mann, in considering his complaints and impairments in relation to his chores, and for writing the portions of the report which specifically related to him. In the absence of any evidence as to how the cost of this report was calculated, this claim fails for want of proof.

Interest

Mr. and Mrs. Mann claim interest on overdue benefits. Based on the case law in relation to interest where a medical and rehabilitation DAC has conducted an assessment, I find none of the benefits are overdue and therefore no interest is payable.

There are two components to the benefits awarded to the Applicants. One portion consists of benefits which I find reasonable and necessary which the DAC rejected. In Mrs. Mann's case that amount is $200; in Mr. Mann's it is $1,400. In Langdon and Pafco Insurance Company Limited (FSCO P02-00017, July 17, 2003), Director's Delegate McMahon concluded that such payments do not attract interest before the date of the decision, as they become due only when the dispute is determined by the arbitrator or judge. On this basis, these benefits do not attract interest before the date of the decision.

The second component to the benefits awarded to the Applicants consists of benefits which were reasonable and necessary in the opinion of the DAC, which were payable pending resolution of the dispute, which I accepted were reasonable and necessary.

In Mrs. Mann's case $2,412 of the award consists of such benefits and in Mr. Mann's case $2,688. In Langdon, the Director's Delegate concluded that when the DAC opines benefits are reasonable and necessary, they become overdue and attract interest if they are not paid within 30 days of receipt of an invoice. Since the Applicants are asserting a claim for interest, they have the burden of establishing the dates on which invoices were sent and payments received in relation to the benefits which the DAC opined were reasonable and necessary. They did not provide that evidence.

Mr. Morgan testified that Allstate paid $2,412 pending resolution of the dispute based on the report of the medical and rehabilitation DAC. This evidence was not disputed. In Mr. Mann's case, the DAC opined that $2,688 was reasonable and necessary. Mr. Morgan testified that Allstate paid $1,728 pending resolution of the dispute based on the report of the medical and rehabilitation DAC. Given Mr. Morgan's testimony that he intended to pay in compliance with the DAC report, I sought clarification by written submissions from the parties as to the $960 amount which Allstate had not paid, pending resolution of the dispute.

Allstate responded that it paid for the treatment which the DAC found reasonable and necessary for which it received invoices. Center City Health went bankrupt, and no further invoices were submitted to Allstate. The Applicants representative was given an opportunity to respond to Allstate's submissions, and did not do so. I therefore accept the Insurer's advice as correct. For these reasons I dismiss the Applicants claims for interest on overdue benefits.

Expenses:

Section 282(11) of the Insurance Act gives an arbitrator discretion to award to the insured person or the insurer, all or part of their incurred arbitration expenses as may be prescribed in the regulations, to the maximum set out in the regulations. The criteria applicable to the issue of expenses in this arbitration are those set out in O.Reg.275/03, namely, the degree of success, the existence of offers to settle, the novelty of the issues, the conduct of the parties and their representatives, and whether any aspect of the proceeding was improper, vexatious or unnecessary.⁷

In this case, success was divided. I was not informed of any offers to settle. Allstate complained of the conduct of the Center City Health's representative, Mr. Simkaev, who commenced eleven separate mediations with respect to the treatment plans at issue in this case. For the reasons given by the Director of Arbitrations in Howden, supra, I have no authority to award expenses in relation to mediation proceedings.

The Applicants commenced two separate arbitration applications; however, they were combined by the pre-hearing arbitrator at Allstate's request, subject to any objection by the parties. Neither party objected. In terms of the hearing, Mr. Spodek, who was retained by the treatment facility on the eve of the hearing, did what he could to shorten the hearing.

I accept that the Applicants sustained impairments in the accident and that Mr. and Mrs. Mann continue to suffer from them. I am particularly concerned that their psychological impairments were not appropriately addressed. Mr. and Mrs. Mann are the nominal Applicants in this case, while the clinic is the guiding mind behind this arbitration. While the clinic pursued its interests in this arbitration, I do not think that Mr. and Mrs. Mann's interests were well served. In my view, treatment providers who bring claims to arbitration in the names of their patients have an obligation to advance their patients interests in these proceedings. I find the appropriate award in this case is that each party should bear its own expenses.

June 29, 2005

Suesan Alves Arbitrator

Neutral Citation: 2005 ONFSCDRS 92

FSCO A03-000149

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BIKRAM MANN and AMARJIT MANN

Applicants

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Mrs. Mann is entitled to payment of $2,612 as a medical benefit under section 14 of the Schedule. Allstate has paid $2,412 pending resolution of the dispute. Allstate Insurance Company of Canada shall pay Mrs. Mann a further sum of $200 in relation to her claims for medical benefits. Allstate's claim for a repayment of Mrs. Mann's medical benefits is dismissed. Mrs. Mann's claims for the cost of a mental health assessment and interest are dismissed. Each party shall bear its own arbitration expenses.

2. Mr. Mann is entitled to payment of $3,128 as a medical benefit under section 14 of the Schedule. Allstate has paid $1,728 pending resolution of the dispute. Allstate Insurance Company of Canada shall pay Mr. Mann a further sum of $1,400 in relation to his claims for medical benefits. Allstate's claim for a repayment of Mr. Mann's medical benefits is dismissed. Mr. Mann's claims for the cost of a mental health assessment, the cost of an in-home assessment and interest are dismissed. Each party shall bear its own arbitration expenses.

June 29, 2005

Suesan Alves Arbitrator

(a) a statement of whether, in the opinion of the person or persons who conducted the assessment, an expense in respect of the benefit is reasonable and necessary for the insured person's treatment or rehabilitation; and (b) recommendations on the future provision of goods and services to the insured person for his or her treatment or rehabilitation.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Report of Dr. C. B. Paitich
3. 3A few months before the accident, Mrs. Mann had been laid off from her job of some twenty years as a light duty assembler of small parts for block heaters, when the firm went out of business.
4. 4Under the Schedule, "impairment" means a loss or abnormality of a psychological, physiological or anatomical structure or function;
5. 5Subsection 43(6) of the Schedule provides: If the assessment is required under section 38 in respect of a claim for a medical or rehabilitation benefit, the report shall include,
6. 6I asked Mr. Spodek if he was seeking an adjournment. He advised that he was not. Mr. Spodek was hamstrung as he attempted, but was unable to have witnesses from the clinic attend to give evidence. I offered Mr. Spodek adjournments to allow him to call evidence with respect to the reasonableness, need for and frequency of treatment and rebut Allstate's evidence that the person who performed the mental health assessments on Mr. and Mrs. Mann was not a psychologist or health practitioner. Mr. Spodek declined those offers.
7. 7Pembridge Insurance Company and Howden, (FSCO P02-00031, May 17, 2004)