Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 137

FSCO A04-002444

BETWEEN:

ROBERTO MASCIARELLI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

Before:

William J. Renahan

Heard:

April 24, 25, 26 and 27, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Bhim Goordial for Mr. Masciarelli

John D. Dean for Allstate Insurance Company of Canada

The Applicant, Roberto Masciarelli, was injured in a motor vehicle accident on November 19, 2001. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada, payable under the Schedule.¹ Allstate refused to pay for certain medical benefits and assessments. The parties were unable to resolve their disputes through mediation, and Mr. Masciarelli 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:

Is Mr. Masciarelli entitled to $8,485 pursuant to section 14 of the Schedule for treatment received at Al-Ver Rehabilitation Centre ("Al-Ver Rehab")?
Is Mr. Masciarelli entitled pursuant to section 14 of the Schedule to $13,210 for chiropractic treatment and massage treatment incurred at Gateway Rehabilitation and Health Institute ("Gateway Rehab") from March 30, 2005 to March 30, 2006?
Is Mr. Masciarelli entitled to the cost of a hot tub proposed by Gateway Rehab in a treatment plan pursuant to section 14 of the Schedule?
Is Mr. Masciarelli entitled to the following costs of examinations pursuant to section 24 of the Schedule: testing by A.D.I.O. Diagnostic Services $1,266.80 incurred and $2,999 proposed; physiatry assessment $2,100 suggested by Dr. Ranney; chronic pain assessment $2,100 suggested by Dr. G. D. Gale; physiatry assessment $1,862 suggested by Vista Assessments: and functional abilities evaluation $967 prepared by Gateway Rehab.

I permitted Mr. Masciarelli to withdraw the issue of treatment at Al-Ver Rehab.
Mr. Masciarelli is not entitled to compensation for treatment incurred at Gateway Rehab from March 30, 2005 to March 30, 2006.
I permitted Mr. Masciarelli to withdraw the issue of the proposed hot tub.
I permitted Mr. Masciarelli to withdraw the issue of entitlement to the cost of examinations.

At the outset of the hearing, the parties advised me that the only issue in dispute was Mr. Masciarelli's entitlement to $12,015 for chiropractic and massage treatment he received at Gateway Rehab from March 30, 2005 to March 30, 2006.

The legal test:

Under section 14 of the Schedule, an insured is entitled to a medical benefit to pay for all reasonable and necessary chiropractic and physiotherapy services.

Services provided by Gateway Rehab:

The services provided by Gateway Rehab are set out in a Treatment Plan (OCF-18) dated March 30, 2005 and are described as 104 hours of chiropractic procedure, 104 hours of massage and 4 hours of assessment. The total invoice for services from March 30, 2005 to February 15, 2006 is $11,409.

The main participants:

Roberto Masciarelli:

Mr. Masciarelli is 43 years old, married with two children. At the time of the accident he was 39 years old. He worked as a general labourer putting fuel into GO trains. At the time of the accident he was receiving a 15% partial permanent Workplace Safety and Insurance Board ("WSIB") disability pension due to a low back injury. He stopped work in January 2005 due to complaints of chest pains and he currently receives a disability pension from work on account of his chest pains.

Dr. John Baird:

Dr. Baird is a chiropractor who assessed Mr. Masciarelli on three occasions. For his first two assessments, Dr. Baird used Digital Radiographic Analysis. He performed his last assessment with a video fluoroscopy machine. In all three assessments he diagnosed "Loss of Motion Segment Integrity." This is a condition defined in the Guides to the Evaluation of Permanent Impairment published by the American Medical Association ("AMA Guides"). "Loss of Motion Segment or Structural Integrity" is defined as abnormal back-and-forth motion (translation) or abnormal angular motion of a vertebrae with respect to an adjacent vertebrae. Dr. Baird did not testify. Although Dr. Baird did not express any opinion on the issue of treatment for Mr. Masciarelli, Mr. Goordial directed many questions to the witnesses on the value of Dr. Baird's assessments.

Richard Gordon:

Mr. Masciarelli could not pay Dr. Baird for his assessments. Dr. Baird told Mr. Masciarelli that he knew someone who could help him and he referred him to Mr. Gordon in the summer of 2004. Mr. Gordon is a non-lawyer representative. Mr. Gordon took over carriage of Mr. Masciarelli's claims against Allstate from another non-lawyer representative. Mr. Gordon appeared at the hearing. Mr. Dean objected to his participation on the grounds that Mr. Gordon had an interest in promoting the technology used by Dr. Baird which conflicted with his duty to represent Mr. Masciarelli. Mr. Gordon agreed not to ask questions or make submissions. He sat with Mr. Goordial and spoke to him through the hearing. He did not testify.

Dr. Steven Simone:

Mr. Gordon referred Mr. Masciarelli to Dr. Simone in the fall of 2004. Dr. Simone is a chiropractor and it is the one year of treatment that he rendered at his clinic that is in issue in this hearing. Dr. Simone testified.

Dr. Don Ranney:

Dr. Ranney is an orthopaedic surgeon who examined Mr. Masciarelli at the request of Mr. Gordon. Dr. Ranney's background includes performing hand operations on lepers in India. He also has an interest in chronic pain. He filed a report and testified. He did not know that Dr. Baird and Mr. Gordon promoted the use of video fluoroscopy and he admitted that it was a conflict of interest to accept a referral from Mr. Gordon where Mr. Gordon had an interest in the process upon which he was asking Dr. Ranney to express an opinion.

Dr. Daniel Proctor:

Dr. Proctor is a chiropractor who examined Mr. Masciarelli as part of an assessment of the reasonableness of the treatment carried out by Dr. Simone. He was part of a team at the Designated Assessment Centre ("DAC"). He testified and Allstate filed the DAC report.

History:

The vehicle Mr. Masciarelli was driving was struck from the rear on November 19, 2001. I heard conflicting evidence on the severity of the impact, from a high speed collision which pushed Mr. Masciarelli's stationery vehicle ahead 30 feet, to a low speed impact in stop and go traffic. The vehicle sustained damage in the amount of $2,543. The preponderance of evidence was that it was a low speed impact. Dr. Ranney viewed three photographs of damage to Mr. Masciarelli's vehicle and he testified that he would not expect any injuries would result from this collision. I find that the impact occurred at low speed.

Mr. Masciarelli left work the following day and went to see his family doctor who diagnosed shoulder, neck and back strain. He advised Mr. Masciarelli to stop working and referred him to a rehabilitation clinic named Al-Ver Rehab. About a month later, Dr. Baird performed his first assessment and reported that the loss of motion integrity at the C-5 vertebrae was 4.3mm, well beyond the normal of 3.5mm referred to in the AMA Guides. He reported that the impairment represented a 25% impairment of the whole person, similar to the loss of a foot or eye.

In March 2002, four months after the accident, Al-Ver Rehab reduced treatment because Mr. Masciarelli had responded very well to treatment. The same month, Dr. I. B. Schacter, a neurosurgeon, reported to Mr. Masciarelli's family doctor that Mr. Masciarelli's neck and shoulder complaints had improved significantly but that the neck was occasionally uncomfortable on extension.

About two months later, Mr. Masciarelli returned to work and continued to work until February 2003 until he had what he described as a heart attack.

He was involved in two further motor vehicle accidents which caused damage to his vehicle similar to that of the November 2001 accident. He claimed that he did not suffer any injury in either of these accidents.

Mr. Masciarelli returned to work in about May 2004. In the summer of 2004, Dr. Baird referred him to Mr. Gordon for assistance with collection of Dr. Baird's account and Mr. Gordon referred Mr. Masciarelli to Dr. Simone. Allstate paid for twelve weeks of treatment with Dr. Simone.

Mr. Masciarelli's symptoms got worse and his chest pains got worse.

In January 2005, Mr. Masciarelli stopped work due to chest pains and he has received a disability pension from work since then. He received treatment from Dr. Simone until March 2006. Allstate refused to pay for the treatment from March 2005 to March 2006.

Mr. Gordon referred Mr. Masciarelli to Dr. Baird for a third assessment in June 2005.

Analysis:

Mr. Masciarelli's evidence:

Mr. Masciarelli believes Dr. Simone and Dr. Baird who have told him that he has torn ligaments in his neck from which he will never recover. He said you have to believe someone. He has massive headaches which cause him to throw up, neck, shoulder and back pain. Some examiners have noted that he exaggerates his symptoms and that he perceives himself as bed-ridden.

Mr. Masciarelli testified that his health was good before the accident.

On November 5, 2001, two weeks before the motor vehicle accident, Mr. Masciarelli's family doctor wrote to the WSIB that Mr. Masciarelli complained of constant pain in his low back, day and night. The OHIP records indicate that in the twelve months before the accident, Mr. Masciarelli attended doctors on 28 occasions for 70 insured services. One of those attendances was with a neurologist who had seen Mr. Masciarelli six years earlier for anxiety. Eight months before the accident the neurologist wrote:

... He often has mild headaches but two and a half weeks ago had a severe pain which started in the afternoon and within an hour became a throbbing pain over the top of the head not relieved by Tylenol extra strength taken every few hours. There was a definite light and noise intolerance. He laid down in a quiet room. He also vomited and as he did so had a conjunctival haemorrhage .... He gets them very infrequently.

The same neurologist also recorded numbness in the right hand involving mainly the middle finger.

Mr. Masciarelli testified that he had a heart attack in February 2003. He has told other examiners he has had a heart attack. He has attended the emergency departments of hospitals on several occasions complaining of chest pains. The only expert evidence concerning Mr. Masciarelli's heart is a note from Dr. Menashe Waxman to Dr. R. Choi dated February 23, 2004 with a copy to Mr. Masciarelli's family doctor. The referral was because of recurrent episodes of syncope [a transient loss of consciousness due to inadequate blood flow to brain]. Dr. Waxman wrote:

Mr. Masciarelli is 42 years old and he began to experience chest pain in September 2003 and he has presented to St. Joseph's Hospital on 2-3 occasions with those symptoms. He underwent investigations and no specific diagnosis was ever arrived at. The ECG's with or without chest pain never disclosed any abnormalities ....

He underwent coronary angiography at the TWH by Dr. John Ross. The coronary arteries were entirely normal, but there was mild anterior apical hypokinesis and overall normal left ventricular ejection fraction and normal left ventricular end-diastolic pressure. Dr. Ross concluded that the pains were non-cardiac .... He has also presented to the Humber Hospital and YFH on several occasions because of chest pain.

Dr. Waxman recommended that Mr. Masciarelli undergo tests for tachyarrhythmia [irregular heartbeat combined with rapid rate]. If he had the condition, he had a 90+ per cent chance of a cure. I heard no evidence on whether Mr. Masciarelli underwent the test, has the condition or has received treatment for the condition.

The only evidence I have is that Mr. Masciarelli complains of chest pains and he thinks he had a heart attack. The only expert evidence I have is that Mr. Masciarelli's complaints do not relate to his heart.

The only psychological evidence I heard was a note from Dr. Sara Aaron to Mr. Masciarelli's family doctor and representative in April 2002. She concluded that because of Mr. Masciarelli's psychological symptoms and low level of motivation and energy, he was a poor candidate for a self-administered exercise programme and needed psychological treatment. She found:

... The client's tendency to rely overwhelmingly on emotional pre-occupation strategies should be addressed during his treatment, as this approach is associated with poorer outcome in clients recovering from injuries.

Mr. Masciarelli believes he is in severe pain and he blames it on this accident and Allstate. His medical history in the twelve months before the accident contradicts his claim that he was in good health before the accident. As well, his pre-accident history and his claim that he suffered a heart attack, despite the absence of expert evidence that he suffered a heart attack, reinforce the psychologist's opinion that he is pre-occupied with his health.

Further, even if Mr. Masciarelli sustained a neck injury in the accident, his own evidence does not support the allegation that Dr. Simone's treatment has helped him. He improved with the Al-Ver Rehab treatment and returned to work. He stopped work in February 2003, not because of accident-related pain, but because of his belief that he had a heart attack. He returned to work and stopped in January 2005, again, not because of accident-related complaints but because of chest pain. He changed representatives on Dr. Baird's recommendation that Mr. Gordon would help collect Dr. Baird's account. After an absence of chiropractic treatment of about two years, Mr. Masciarelli returned to chiropractic treatment on the advice of his new representative. Mr. Goordial could not point to any documentary evidence of Mr. Masciarelli complaining of accident-related complaints during this two year period without treatment. After treatment recommenced with Dr. Simone, Mr. Masciarelli's own pain drawings indicate that his pain stayed the same or got worse.

I find that Mr. Masciarelli's pre-occupation with his health and this accident is so great, that in the absence of other reliable evidence, his claims that he has pain caused by this accident are not reliable.

Dr. Baird's opinion:

Mr. Goordial argued that Dr. Baird’s assessments were objective evidence that Mr. Masciarelli suffered an impairment to his neck which required treatment.

In his first report to Roland Spiegel dated December 27, 2001, Dr. Baird wrote:

Stress study radiographs were taken on December 10, 2001 ... which were suitable for Digital Radiographic Analysis.

Digital Radiographic Analysis was performed on the above noted radiographs using Spinalyzer v2.01 software on a PC compatible computer. I have performed over 1000 such analyses over the past 7 years.

Of the various measurements and calculations performed in the Spinalyzer software, the most significant finding in the case of Mr. Masciarelli is Loss of Motion Segment Integrity at C5 in translation. The measurement of 4.3 is well beyond the normal limit of 3.5mm ....

In his second report to Angelika Vicar dated July 23, 2003 he wrote:

Stress study radiographs were taken ... on July 18, 2003. The images were of a quality suitable for Digital Radiographic Analysis.

Digital Radiographic Analysis was performed on the above noted radiographs using Spinalyzer v2.01 software on a PC compatible computer ...

Of the various measurements and calculations performed in the Spinalyzer software, the most significant finding in the case of Mr. Masciarelli is Loss of Motion Segment Integrity at C2 angular (12.2°), C3 in translation (4.6mm) and C4 in translation (3.9mm). The measurement of 4.6mm. is well beyond the normal limit of 3.5mm ...

I heard no explanation why the first report finds slippage at C5 and the second report finds slippage at C2 and C4. This is particularly odd when Dr. Baird describes the impairment as similar to the loss of a foot or eye.

Further, the AMA Guides define what loss of motion segment integrity is and how to measure it. The cervical spine is radiographed in flexion and extension and the two pieces of x-ray film are superimposed to measure any slippage. I heard no evidence why this was not done for Mr. Masciarelli.

It is not sufficient to simply say that Dr. Baird's analysis is better because it is computerized. Dr. Ranney testified that it would take him six months of study to confirm the reliability of Dr. Baird's process. I do not find Dr. Baird's assessments reliable evidence that Mr. Masciarelli suffers an impairment which requires chiropractic treatment.

Dr. Simone's opinion:

Dr. Simone testified that no one could cure Mr. Masciarelli and that chiropractic and massage treatment helped Mr. Masciarelli by releasing pressure on overburdened ligaments.

The notes and records Dr. Simone produced cover the period August 10, 2005 to January 23, 2006. He could not explain why he did not bring all his notes for the period March 30, 2005 to March 30, 2006. The notes do not contain, and I was not directed to, any assessments by Dr. Simone.

Dr. Simone testified that Mr. Masciarelli's history was unremarkable. This is contrary to the evidence I heard. Dr. Simone was unaware of the numerous medical attendances in the twelve months before the accident which I have referred to. Nor was he aware that Mr. Masciarelli was receiving a WSIB disability pension for a low back injury, one of the conditions Dr. Simone thought arose out of the motor vehicle accident. I find his history taking particularly careless when I consider that WSIB gave Mr. Masciarelli a TENS machine to use at home and Dr. Simone knew that Mr. Masciarelli had the machine but he never asked him why.

Nor did Dr. Simone know Mr. Masciarelli's work history. He did not know that Mr. Masciarelli returned to work after the accident.

Dr. Simone testified that traction performed by a chiropractor or physiotherapist provided the most relief to Mr. Masciarelli, followed by inferential current applied by the chiropractor.

Mr. Masciarelli testified that massage provided the most relief, followed by the TENS machine.

The expert opinion I heard was that Dr. Simone should not have prescribed a hot tub for

Mr. Masciarelli when Mr. Masciarelli was complaining of cardiac problems, diabetes and high blood pressure.

Other than Mr. Masciarelli's evidence that Mr. Gordon referred him to Dr. Simone, I heard no reasonable explanation why Mr. Masciarelli recommenced chiropractic treatment two years after his last treatment.

Dr. Simone admitted that the pain diagrams that Mr. Masciarelli submitted indicated that his pain stayed the same or got worse while he treated him.

Mr. Masciarelli testified that Dr. Simone did not tell him why he needed treatment for a year. The only discussion concerning payment for the treatment was that Dr. Simone told Mr. Masciarelli that he would go to arbitration if Allstate refused to pay.

Dr. Simone testified that Mr. Masciarelli needed treatment for life and he was not concerned that Mr. Masciarelli might become dependent on treatment.

Dr. Simone testified that he tried to contact the Allstate adjuster several times without success, however, he could not point to one instance in his notes to confirm these complaints.

Dr. Simone admitted that on some occasions he charged Allstate for one hour of chiropractic treatment and one hour of physiotherapy treatment even though Mr. Masciarelli was only at his clinic for one and a half hours. He admitted that one-third of his treatment was for Mr. Masciarelli's low back injury which he should have charged WSIB instead of Allstate.

Dr. Simone did not understand Mr. Masciarelli's medical history, he provided treatment for one year with little evidence that it helped Mr. Masciarelli, his note taking and written assessments were deficient or totally absent, he did not understand what treatment helped Mr. Masciarelli, he did not know whether Mr. Masciarelli returned to work, he prescribed hot tub treatment which was contraindicated, he was not concerned that Mr. Masciarelli might become dependent on treatment and he overcharged Allstate. I have little confidence in his opinion.

Dr. Ranney testified that he did not know that Dr. Simone's treatment was the issue in dispute. He mostly defended Dr. Baird's assessments. He testified that he had qualms about chiropractors treating people like Mr. Masciarelli and that he questioned Dr. Baird's recommendation for chiropractic treatment. He testified that he does not agree with much of what chiropractors say. He admitted that Mr. Masciarelli was at risk of becoming dependent on chiropractic treatment. When asked in examination in chief whether he thought Mr. Masciarelli's "personal choice" of chiropractic and massage treatment was reasonable, he answered that he would come back to it. Only after pressed by Mr. Goordial did he testify that chiropractic treatment and massage was reasonable.

Conclusion:

I found no reliable evidence that the chiropractic and massage treatment that Mr. Masciarelli received at Gateway Rehab was reasonable or necessary.

The evidence that Mr. Masciarelli suffers from a serious vertebrae instability is contradictory as to whether it is at C5 or C2 and C4 and therefore unreliable.

Dr. Ranney testified that Mr. Masciarelli is past the time of healing. He testified that Mr. Masciarelli's cervical ligaments have healed in a lengthened position and that he disagrees with Dr. Baird's opinion that you can shorten those ligaments. He reported that Mr. Masciarelli needs neck strengthening exercises to support the injured ligaments which had healed in a lengthened position. Dr. Proctor testified that the majority of patients will improve with exercise and that Mr. Masciarelli could not demonstrate any strengthening exercise. Mr. Masciarelli testified that he did do neck exercises. In view of Dr. Aaron’s opinion that Mr. Masciarelli was a poor candidate for a self-administered exercise programme because of his low level of motivation and energy, I prefer Dr. Proctor’s opinion that Mr. Masciarelli was not exercising.

Dr. Ranney testified that Mr. Masciarelli never had counselling for pain and that he needed counselling and behavioural therapy to improve his mental attitude. He testified that Mr. Masciarelli would need less physical therapy if he received more cognitive therapy. He supported Mr. Masciarelli attending a multi disciplinary chronic pain programme.

Dr. G. D. Gale, a pain management specialist, assessed Mr. Masciarelli for Mr. Gordon while he was attending Gateway Rehab. He reported that the pain relief modalities Mr. Masciarelli was receiving were probably inadequate and he recommended referral to a chronic pain management programme.

Dr. Proctor agreed that transitory relief of pain was a reasonable objective of treatment, but that after four to six weeks of treatment, something else should be tried in order that the patient not become dependent on treatment. Dr. Ranney testified that the question is whether the treatment is getting the patient somewhere in his life.

I find these opinions reasonable. I find that Mr. Masciarelli did not benefit from treatment at Gateway Rehabilitation and that other treatment options, such as behavioural and cognitive therapy, were reasonable options that Mr. Masciarelli should have tried before embarking on one year of chiropractic treatment massage therapy at Gateway Rehab.

EXPENSES:

Mr. Dean asked me not to consider the issue of entitlement to expenses of the arbitration at this time. If the parties cannot agree on the issue of entitlement to expenses, they may make written submissions within 30 days of the date of this decision. If they cannot agree on the amount of expenses, they may make written submissions within 30 days from the date of any order awarding expenses.

August 16, 2006

William J. Renahan Arbitrator

Date