Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 200

Appeal P06-00011

OFFICE OF THE DIRECTOR OF ARBITRATIONS

TERESA RITORTO

Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Respondent

Before:

David Evans

Representatives:

Bhim Goordial for Mrs. Ritorto

John D. Dean for Allstate

Hearing Date:

October 23, 2006

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The arbitrator’s decision of March 3, 2006, corrected March 13, 2006, is varied by adding the following paragraph:
Mrs. Ritorto is not entitled to a special award.
The appeal is otherwise dismissed.

December 20, 2006

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mrs. Ritorto was awarded a number of benefits in the arbitrator’s decision of March 3, 2006 (corrected on March 13, 2006). However, she appeals his finding that she is not entitled to payment for digital motion x-ray (DMX) under section 24 of the SABS–1996.¹ She also appeals his failure to consider whether or not she is entitled to a special award and that he awarded less than she claimed with respect to other claims.

II. BACKGROUND

The arbitrator found that Mrs. Ritorto sustained moderate neck/shoulder whiplash injuries when the automobile she was driving was rear-ended by another vehicle on October 20, 2003. At that time and until the spring of 2004, she was living with her husband and their 11 month old child and her siblings in part of her mother’s four-bedroom home. The arbitrator found that Mrs. Ritorto was the full-time caregiver for her baby daughter at the time of the accident, and was also doing household chores that she shared with other family members.

Mrs. Ritorto’s chief complaints following the accident consisted of back pain throughout her lumbar, thoracic and cervical regions, headaches and resulting depression. She went to her family doctor on October 21, 2003, who referred her for physiotherapy at the Gateway Rehabilitation and Health Institute (Gateway). Gateway treated Mrs. Ritorto for her accident injuries with massage, traction, heat and electrical therapy, chiropractic and exercises under the supervision of her treating chiropractor from the October 2003 referral into March 2004.

The arbitrator first considered Mrs. Ritorto’s claims for housekeeping expenses and caregiver benefits. The arbitrator concluded that Mrs. Ritorto experienced modest limitations with respect to her child care and heavier-duty housework as a result of her soft tissue injuries from this accident. However, her admitted recovery in December 2003 and failure to provide time and duty details persuaded him that the amounts claimed were exaggerated. He noted that this complicated Allstate’s initial assessment of the claim but found that the generally supportive health care evidence entitled her to 50 percent of those claims.

The arbitrator next considered whether the $1,100 December 2003 in-home assessment conducted by Dr. Steven Simone, her treating chiropractor, was a reasonable expense under section 24 of the SABS. He allowed the 4.5 hours approved by Dr. Arthur Ameis in a November 2003 Designated Assessment Centre (“DAC”) assessment at a $95 per hour rate (totaling $427.50) because he found the report helpful to document Mrs. Ritorto’s functional level at that time.

The arbitrator then considered whether Mrs. Ritorto established that all or some of the $3,533.77 expense for the balance of the 5 months of treatment she received with Dr. Simone at Gateway was reasonable and necessary to treat her accident injuries. First, he rejected Allstate’s argument that the Pre-approved Framework Guideline for Whiplash Associated Disorder Grade II Injuries² applied. Second, he did not accept Dr. Ameis’ opinion expressed in that same November 2003 DAC because Dr. Ameis failed to consider Mrs. Ritorto’s poor posture. By way of contrast, Dr. Garson Conn, an orthopaedic surgeon who examined Mrs. Ritorto on behalf of Allstate in February 2004, cautioned that Mrs. Ritorto’s posture may well have predisposed her to enduring symptoms. The arbitrator relied on Dr. Conn’s verification that Mrs. Ritorto continued to experience symptoms outside the normal healing period as support for Dr. Simone’s full treatment with both active and passive therapy up to Dr. Conn’s examination. The arbitrator deducted the passive therapy after that date, and he also deducted the home assistive devices for which he heard no substantive evidence.

Finally, the arbitrator considered the claim under section 24 of the SABS for digital motion fluoroscope imaging or “DMX,” which he described as a driving force in the hearing. DMX uses multiple pictures of the patient moving through a series of neck positions to determine the stability of neck vertebrae.

Dr. John Baird, the chiropractor who performed this test, gave the only expert evidence supporting the use of DMX. He testified that the test showed Mrs. Ritorto’s cervical spine has lost the ability to maintain its functional integrity, using the phrase “loss of motion segment integrity” to describe that instability as a 25 percent whole body impairment. Neither Dr. Ameis nor Dr. Conn agreed with that diagnosis. The arbitrator gave their opinions more weight because of their more extensive training and experience in the use of technical diagnostic tools with orthopaedic injuries.

The arbitrator did not preclude a claim for DMX testing. However, he found Dr. Simone’s generalization that DMX offers potential to confirm or pinpoint a diagnosis had little strength. He noted that neither Dr. Ameis nor Dr. Conn supported it. He found that Dr. Baird, as its chief investor and promoter, was not an expert with sufficient independence to support DMX. The arbitrator accepted Dr. Ameis’ testimony that conventional x-rays together with magnetic resonance imaging (MRI) are more powerful and cheaper tools for detecting these types of underlying problems. He found that Dr. Baird offered no satisfactory defence to the criticism he should have first relied on conventional diagnostic tools.

More importantly, the arbitrator found that the test in this case did not meet the criteria of s. 24:

The DMX test must bear some reasonable relationship to Mrs. Ritorto’s medical condition at the time of her testing or in relation to her potential accident benefits.³ Dr. Baird’s test and diagnosis occurred almost one year after Mrs. Ritorto stopped her treatment at Gateway in March 2004, and there is no health care record establishing she received further treatment thereafter. The cessation of her treatment program together with the evidence that she resumed most of her normal child care and housekeeping activities during the spring of 2004 persuade me that the DMX test is too remote to any potential benefits Mrs. Ritorto might be entitled to receive.

III. ANALYSIS

At the appeal hearing, the appellant made virtually no submissions with respect to the housekeeping and caregiver claims rejected by the arbitrator. In any event, the arbitrator weighed the parties’ evidence regarding Mrs. Ritorto’s capabilities and awarded a portion of what she claimed, despite his finding that she had exaggerated her claim. No error of law is evident.

I heard little with respect to the December 2003 in-home assessment conducted by Dr. Simone. Again, the arbitrator weighed the evidence and reached his conclusion. I have no reason to interfere.

The appellant presented a number of technical arguments with respect to the medical and rehabilitation claims, suggesting that, due to errors in the DAC process or other errors by the insurer, Mrs. Ritorto should have received all the benefits claimed. However, Mrs. Ritorto was awarded a large portion of those claims, as the arbitrator only deducted the home assistive devices and the passive therapy after the date of Dr. Conn’s examination. He did not rely on the DAC to any great extent. I fail to see how or why in these circumstances Mrs. Ritorto should be entitled to further payments.

That leaves the claim for the DMX examination. The arbitrator’s fundamental point was that, in this case, the DMX test was not used by anybody for anything. As such, it fails the most minimal s. 24 standard set out in the cases to which the arbitrator referred. I see no error of law.

The one area where the arbitrator did make an error was in failing to consider Mrs. Ritorto’s claim at the arbitration hearing for a special award (s. 282(10) of the Insurance Act). It is unnecessary to return this issue to the arbitrator. Nowhere in the arbitrator’s findings did he criticize the insurer’s handling of the case. The arbitrator found that the insurer had difficulty assessing the housekeeping and caregiver claims, and he either reduced or denied Mrs. Ritorto’s other claims. In these circumstances, I find it highly unlikely that the arbitrator would impose any special award. His decision will accordingly be varied⁴ by adding the following paragraph:

Mrs. Ritorto is not entitled to a special award.

The appeal is otherwise dismissed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.