Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 128

FSCO A04-002136

BETWEEN:

KRYSTYNA WASYLEWYCZ Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA Insurer

REASONS FOR DECISION

Before: Robert A. Kominar

Heard: December 13, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: David F. Longley for Ms Wasylewycz Jennifer Kent for Guarantee Company of North America

Issues:

The Applicant, Krystyna Wasylewycz, was injured in a motor vehicle accident on December 22, 2001. She applied for and received statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under the Schedule.¹ Guarantee denied certain medical treatment benefits. The parties were unable to resolve their disputes through mediation, and Ms Wasylewycz applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms Wasylewycz entitled to payment for physiotherapy treatment provided by Bloor West Clinic ("the Clinic") pursuant to treatment plans dated March 1, 2002 in the amount of $2,130.00, and April 15, 2002 in the amount of $2,310.00.

2. Is Ms Wasylewycz entitled to payment for acupuncture treatment provided by Just Relax Clinic in the amount of $462.24?

3. Is Ms Wasylewycz entitled to interest pursuant to section 46(2) of the Schedule?

4. Is either party entitled to expenses of the hearing?

Result:

1. Ms Wasylewycz is entitled to payment for physiotherapy treatment provided by the Clinic, pursuant to the treatment plan dated March 1, 2002 in the amount of $2,130.00.

2. Ms Wasylewycz' claims for payment of treatment at the Clinic pursuant to the treatment plan dated April 15, 2002 in the amount of $2,310.00 and for acupuncture provided by Just Relax Clinic are dismissed.

3. Ms Wasylewycz is entitled to interest on the sum of $2,130.00, at the statutory rate, commencing from the date of this decision.

4. If the parties cannot resolve the issue of hearing expenses an expense hearing may be arranged with the Case Administrator, as provided for in the Dispute Resolution Practice Code (Fourth Edition, Updated — October 2003).

BACKGROUND AND EVIDENCE:

Ms Wasylewycz was injured in a motor vehicle accident when she fell from a Mississauga Transit bus on December 22, 2001. She testified that suffered injuries to her back and neck as well as to her left side and left hip. Ms Wasylewycz was 72 years old at the time of her accident. The dispute in this arbitration relates to her claims that Guarantee pay for treatment provided to her after the accident by the Clinic as well as by Just Relax Clinic.

At the hearing, Ms Evelyn Brett, the owner of the Clinic, testified as to the services which her clinic provided to Ms Wasylewycz. Her evidence was that three treatment plans were submitted to Guarantee: January 8, 2002 in the amount of $4,510.00, March 1, 2002 in the amount of $2,130.00, and April 15, 2002 in the amount of $2,310.00. She further stated that Guarantee accepted and paid for the services rendered under the January 8th treatment plan, thus it is not in dispute in this arbitration. The proposed modalities of treatment in all three treatment plans consisted of ultrasound, muscle stimulation for the spine and hypothermia treatment for her shoulder. Ms Wasylewycz was ultimately discharged from treatment at the Clinic on May 17, 2002.

Ms Brett testified that she was aware that Guarantee had denied the March and April treatment plans which her clinic submitted on behalf of Ms Wasylewycz. She confirmed that they received a copy of an independent medical examination conducted by Dr. Saplys on April 24, 2002, and that she knew that his report concluded that the proposed continuation of passive treatment of Ms Wasylewycz was not reasonable and necessary. Following the denials of the treatment plans by Guarantee, a Medical Rehabilitation Designated Assessment (DAC) also concluded that neither of the March or April treatment plans were reasonable and necessary. Ms Brett stated that she was fully aware of the Medical Rehabilitation DAC's conclusions.

The modalities of treatment the Clinic offered to Ms Wasylewycz did not change between treatment plans, only the frequency of treatments. They started out treating her five days per week then reduced that to three days and ultimately to two days per week. Ms Brett was asked how the Clinic determines how much treatment a patient needs. Her answer was a completely unhelpful and opaque comment to the effect that "we assess them and then decide what they need." Ms Brett did not provide me with any useful evidence which clarified the criteria that were used to make clinical decisions regarding Ms Wasylewycz' physiotherapy treatment.

Ms Brett also testified that her clinic explained to Ms Wasylewycz that, if Guarantee declined to pay for any treatment, she would be personally responsible for paying the account. She stated that they continued to treat Ms Wasylewycz after the March and April treatment plans were denied and that they again, at that time, advised her that the account would be her personal responsibility if the insurer did not pay it on her behalf. I note here that Ms Wasylewycz speaks and reads some English, but that her first language is Polish. Her evidence was that the therapist whom she worked with at the Clinic also spoke Polish.

Ms Wasylewycz testified that her family physician, Dr. Chan, recommended she that get physiotherapy after the accident and that the Clinic was across the street from his office. Her treatment consisted of what she described as electric massage and application of hot packs. She stated that no one ever manipulated her body or touched her during her treatments, nor was she ever asked to do any form of exercise. She stated that she stopped taking therapy at the Clinic because she was "feeling tired and exhausted." Her evidence was that she continued to experience much of the same pain she had immediately after the accident right up to the time of the arbitration hearing, despite the physiotherapy.

Ms Wasylewycz lives with her son and her granddaughter, who both speak English. She testified that she was aware of correspondence sent to her by Guarantee regarding her treatment, but that she does not specifically recall any documents stating that they were going to stop paying for her treatment. However she also testified that she took some documentation which she had received from Guarantee to an appointment with Dr. Chan, and that he told her he was aware of the situation and that there was nothing to discuss. She stated that neither her son or grand daughter were involved in the matter. From Ms Wasylewycz' evidence, it also appears reasonable to infer that Dr. Chan was not actively involved or interested in monitoring Ms Wasylewycz' physiotherapy treatment.

Ms Wasylewycz' evidence was that no one at the Clinic told ever told her about personally having to pay for the treatment if Guarantee did not do so. She was told it was going through her insurer. She also stated that, had she been told that she had to pay, she would have discontinued the treatment.

ANALYSIS

It is common ground that section 14(2) of the Schedule only requires an insurer to pay for medical treatment which is reasonable and necessary at the time it is proposed and that is applied for through submission of a treatment plan. Ms Wasylewycz bears the burden of proof in this arbitration to establish, on the balance of probabilities, that the treatment in dispute here was in fact reasonable and necessary as a result of her accident and that it was applied for through a treatment plan.

The evidence on behalf of Guarantee is that Ms Wasylewycz' family physician sent her for therapy after her accident. She attended at the Clinic for about five months, starting at five days per week, and ultimately weaning down to two days per week. Initially her treatment was approved by Guarantee. The nature of the treatment was completely passive throughout. She testified that while at the clinic taking therapy she generally felt some relief but as soon as she got home that her pain returned. She stated that she was never advised by anyone at the Clinic that she would be personally responsible for paying for the treatment. She also stated that she did take some documentation regarding the denial of the treatment plans in question to her family doctor, who simply told her he was aware of the situation and that he had been sent the documents as well.

The evidence on behalf of Guarantee is that Ms Wasylewycz was treated with only passive modalities of therapy for the full period she attended at the Clinic. They have an independent medical examination and a Medical Rehabilitation DAC which both conclude that, after the first treatment plan, such passive modalities, especially at the frequency she was receiving them, were inappropriate and thus not reasonable and necessary under the Schedule.

Ms Brett, of the Clinic, testified that Ms Wasylewycz was made aware that she would be held personally responsible for payment if the insurer did not pay the account. Supporting Guarantee's case is Ms Wasylewycz' evidence that the treatment she was receiving at the Clinic only provided short lived symptom relief to her while she was actually at the clinic, which supports the independent medical examination's and the Medical Rehabilitation DAC's conclusions that continuation of passive therapy was not particularly helpful to her.

As I noted above, it is uncontroversial that Ms Wasylewycz is responsible to prove her case on the balance of probabilities. Assessing whether a disputed treatment in this case was both reasonable and necessary requires a balancing of both objective professional medical opinions with the subjective views of the applicant herself. Both of these perspectives are important and neither can reasonably be discounted by an arbitrator. Although it is true that no one but the injured person can really know whether they experience physical or psychological pain which impairs their abilities and life experiences in a significant way and whether any particular treatment is helpful or not, it is also true that the accumulated collective human experience which lies at the root of good health care practices has to be considered in assessing whether any particular treatment regimen has enough probability of helping the injured person in some meaningful way to warrant requiring the insurer to pay for it.

Having considered all of the evidence before me my conclusion is that the treatment plan of March 1, 2002 in the amount of $2,130.00 was, on the balance of probabilities, reasonable and necessary at the time it was submitted. However, the treatment plan of April 15, 2002, was neither reasonable nor necessary.

The specific grounds for this conclusion are that there is no evidence before me that, as of March 1, 2002, Ms Wasylewycz had fully recovered from her injuries caused by the accident. The independent medical examination prepared by Dr. Saplys for Guarantee concludes that Ms Wasylewycz was only 50% improved at the time. I concur with Mr. Longley's submission that the most reasonable inference from Dr. Saplys' conclusion is that the treatment which she had been receiving was providing her with "some" benefit. I also find that the gradual reduction of frequency of treatments reflects "some" acknowledgment on the Clinic's part that, for the most part, physiotherapy treatment is not intended to become a life time preoccupation for most accident victims I find that the gradual reduction in frequency of treatments was a reasonable response in the second treatment plan and that the therapists at the Clinic reasonably, even if incorrectly, concluded, at that point in time, that a little more therapy in the same modality would likely end up helping Ms Wasylewycz' recovery.

Notwithstanding my finding that the March 1, 2002 treatment plan was reasonable and necessary, I cannot extend that finding to the April 15, 2002 treatment plan. Given that Ms Wasylewycz testified that the treatment she was getting at the Clinic ultimately did nothing more than relieve her pain while at the clinic, as well as the fact that there seems to have been no consideration by anyone at the Clinic given to recommending her to more active modalities of treatment, including exercise, the only reasonable conclusion which I can draw is that the treatment plan of April 15, 2002, which simply recommended "more of the same" but at a reduced rate, was neither reasonable nor necessary.

I have concluded that it was reasonable for the Clinic to recommend more treatment in March, but surely by April they ought to have ascertained from Ms Wasylewycz' feedback that she was not deriving any significant benefit from their ongoing therapeutic interventions. I find that, with regard to the April 15, 2002 treatment plan, the Clinic was simply gambling that they would ultimately get paid by the insurer and so continued to treat Ms Wasylewycz. This was their choice and my conclusion is that they should bear the responsibility of any costs associated with this uninformed decision.

Ms Brett, who never had anything to do with the actual treatment of Ms Wasylewycz, specifically testified that the Clinic "would have" told her that she was responsible for payment if the insurer did not. Ms Wasylewycz testified that she was never told this by anyone at the Clinic. Having considered the testimony of both Ms Brett and Ms Wasylewycz, I find that it is more likely that the Clinic did not meaningfully advise Ms Wasylewycz that she would be responsible for paying the account if her insurer did not. Specifically, I find that, if any such discussion had taken place, it most likely would have been, or should have been, conducted with the assistance of the Polish speaking therapist at the Clinic. This therapist was not called as a witness in the arbitration and would have provided the best evidence for The Clinic's position, and from that I draw the inference that the discussion likely never took place. I believe Ms Wasylewycz when she stated that, had she been advised of her personal liability risk, she would have discontinued treatment which was not in fact really providing her with any sustained pain relief. I also note that no documentary evidence was supplied confirming that Ms Wasylewycz was advised that she would be personally responsible for paying The Clinic's account if Guarantee did not. I regard this lack of documentation as plausible confirmation that no such discussion ever took place. It seems to be a significantly important issue between someone seeking treatment and a treatment provider and I believe that it is fair to assume that some record of an agreement or documentation of discussion of the terms of payment should exist. The absence of any such documentation in evidence supports Ms Wasylewycz' testimony that she was not advised in any clear way that the clinic would seek recourse against her if Guarantee did not pay the account.

In addition, I find that Ms Brett's evidence leads me to conclude that The Clinic's policy in this case was simply to continue to treat Ms Wasylewycz as they deemed appropriate, notwithstanding requirements that they submit treatment plans in advance of treatment, or what independent examinations or designated assessments might have had to say. The most salient aspect of Ms Brett's testimony, to my mind, was that she did not even appear to care what the information which Guarantee was sending to the clinic said. She simply dismissed the relevance of the information and her clinic continued to treat Ms Wasylewycz irrespective of what other medical professionals opined.

There is no reason to believe that the opinions which insurers rely on are infallibly correct, but a complete failure of a treatment provider to take contrary or alternative views into account, and at least discuss them with their patient, leads to the conclusion that their treatment recommendations fail to meet the test of being "reasonable" as the Schedule requires. I find that The Clinic's continued treatment of Ms Wasylewycz is much more consistent with a business decision that they "might" get paid some day, than it is with any informed therapeutic decision they made that Ms Wasylewycz still required more of the same treatment which she had been receiving all along. As I noted above, it would have helped if Ms Brett had been able to shed some light on the criteria used in making the treatment decisions in Ms Wasylewycz' case.

JUST RELAX TREATMENT

Ms Wasylewycz has also asked that Guarantee reimburse her for acupuncture treatment she had at Just Relax. It is ironic that Ms Wasylewycz testified that this treatment seemed to provide her with more sustained pain relief than any of the treatment she received at The Clinic. However, there is no evidence before me that a treatment plan was ever submitted to Guarantee for this treatment. Ms Wasylewycz paid for the treatment herself and it seems that no thought was ever given to having Just Relax prepare a treatment plan. I do not even have any evidence that there is anyone at Just Relax who is professionally competent to sign a treatment plan under the Schedule. Section 38 of the Schedule, requires that treatment plans be submitted if one wants an insurer to pay for the expense. I find that no treatment plan was ever prepared or submitted to Guarantee for this treatment and therefore that Guarantee is not responsible for paying for it.

INTEREST

I have found that the March 1, 2002 treatment plan was reasonable and necessary. However I also find that The Clinic did not either advise Ms Wasylewycz of her responsibility for personally paying the account, nor did they take into account in any meaningful way the results of the independent medical examination of Dr. Saplys or the Medical Rehabilitation DAC. As a result of this, I do not find that Guarantee should be required to pay interest on the account up to the date of this decision. My conclusion is that Ms Wasylewycz is entitled to interest, at the statutory rate, on the amount of $2,130.00, commencing on July 28, 2006.

EXPENSES

I heard no submissions on expenses. If the parties are unable to resolve the issues of entitlement to or quantum of expenses, an expense hearing, pursuant to section 79 of the Dispute Resolution Practice Code (FourthEdition, Updated —October 2003) can be arranged with the Case Administrator.

July 28, 2006

Robert A. Kominar Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 128

FSCO A04-002136

BETWEEN:

KRYSTYNA WASYLEWYCZ Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA Insurer

ARBITRATION ORDER

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

1. Guarantee shall pay Ms Wasylewycz $2,130.00 for physiotherapy treatment provided by The Clinic pursuant to a treatment plan dated March 1, 2002, as well as interest on that amount at the statutory rate commencing July 28, 2006.

2. If the parties cannot resolve the issue of hearing expenses an expense hearing may be arranged with the Case Administrator, as provided for in the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

July 28, 2006

Robert A. Kominar Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.