Teresa Ritorto v. Allstate Insurance Company of Canada, 2006 ONFSCDRS 38

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 38

FSCO A04-001395

BETWEEN:

TERESA RITORTO

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

*Minor error corrected on March 13, 2006 in accordance with the Dispute Resolution Practice Code and section 21.1 of the Statutory Powers Procedure Act.

Before: Fred Sampliner

Heard: July 4, 5, 6, 7 and November 2, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Bhim Goordial for Mrs. Ritorto John D. Dean for Allstate Insurance Company of Canada

Issues:

The Applicant, Teresa Ritorto, sustained moderate neck/shoulder whiplash injuries when the automobile she was driving was rear-ended by another vehicle on October 20, 2003. Allstate Insurance Company of Canada ("Allstate") paid some of her claims for statutory accident benefits under the Schedule¹, but denied her claims for other benefits. The parties did not resolve their disputes through mediation, and Mrs. Ritorto 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 Mrs. Ritorto entitled to payment of $4,500 for caregiver benefits under Part IV of the Schedule?
Is Mrs. Ritorto entitled to payment of $1,555 for housekeeping expenses under section 22 of the Schedule?
Is Mrs. Ritorto entitled to payment of $1,100 for an in-home assessment under section 24 of the Schedule?
Is Mrs. Ritorto entitled to payment of $4,500.30 for her treatment at Gateway Rehabilitation and Health Institute under Part V of the Schedule?
Is Mrs. Ritorto entitled to payment of $3,084 for digital motion x-ray (DMX) under section 24 of the Schedule?
Is Mrs. Ritorto entitled to interest on any overdue benefits under subsection 46(2) of the Schedule?
Is either party entitled to their expenses of the arbitration under subsection 282(11) of the Insurance Act?

Result:

Mrs. Ritorto is entitled to $1,750 for caregiver benefits under Part IV of the Schedule.
Mrs. Ritorto is entitled to $575 for housekeeping and home maintenance expenses under section 22 of the Schedule.
Mrs. Ritorto is entitled to $427.50 for the in-home assessment under section 24 of the Schedule.
Mrs. Ritorto is entitled to $2,688.77 for her treatment at Gateway Rehabilitation and Health Institute under Part V of the Schedule.
Mrs. Ritorto is not entitled to payment for digital motion x-ray (DMX) under section 24 of the Schedule.
Mrs. Ritorto is entitled to interest on the above awarded benefits under subsection 46(2) of the Schedule.
The issue of the parties' entitlement to the expenses of this arbitration is deferred until after they determine whether the issue can be resolved on their own.

EVIDENCE AND ANALYSIS:

Mrs. Ritorto's chief reported complaints following the accident consist of back pain throughout her lumbar, thoracic and cervical regions, headaches and resulting depression. She went to her family doctor the day after the October 20, 2003 accident, began taking non-prescription pain relievers and was referred by her physician 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 her October 2003 referral into March 2004. The evidence is that she suffered 50% limitation of her neck movement, the same limited range of motion in her low back, with pain in both areas and occasional tingling down her arms.

At the time of this accident Mrs. Ritorto was living with her husband and their 11 month old child in part of her mother's four-bedroom home, while the couple awaited completion of their new home. Mrs. Ritorto's three adult siblings also lived in this crowded and busy 2,200 square foot household until she and her husband moved into their new house during the spring of 2004.

There is no evidence to contradict that Mrs. Ritorto was in good health at the time of the accident. Based on the undisputed testimony, I find 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 and her sister gave evidence in support of her claim that, as a result of the Applicant's accident injuries, she was unable to take care of her newborn child and perform her housework through February 2004. Allstate disputes that Mrs. Ritorto meets the requisite entitlement test and paid her no benefits.

Housekeeping Expenses and Caregiver Benefits:

Mrs. Ritorto can receive up to $250 per week for the substitute caregiver expenses she incurred for her child as a result of her accident injuries during the period she establishes she suffered a substantial inability in performing her caregiver duties.² Expenses for substitute housekeeping and home maintenance services are similarly provided at a maximum $100 per week under the same "substantial inability" entitlement test in respect of her pre-accident housekeeping.³

Mrs. Ritorto claims in her evidence that her younger sister, Ms. Brunella Crimeni, provided child care and housekeeping services post-accident. In her evidence, Ms. Crimeni supported the time/services sheets that she and her sister prepared for Allstate, which show 10 hours of housework per week, along with 25 hours of child care at $10 per hour until early December 2003. Her child care hours remained the same throughout the claim period, but housekeeping was reduced beginning in December 2003 from 10 to 8 and then to 6 hours per week by month's end.

From the end of December 2003, Ms. Crimeni's housekeeping expense sheets were submitted at $15 per hour, showing between 4 and 6 hours a week until the end of February 2004. Ms. Crimeni and Mrs. Ritorto insist the $5 per hour pay raise was reasonable, but neither offer a plausible explanation for a 50% hourly rate increase, except it would financially help Ms. Crimeni.

Ms. Crimeni is not a professional housekeeper or child care worker with specialized skills that might support a higher wage. I find that $15 per hour is unreasonable, and that Ms. Crimeni is entitled to reimbursement at the $10 hourly rate.

Mrs. Ritorto testified that with therapy she slowly returned to her pre-accident household and child care duties, while her sister did most of the cleaning, shopping, child care and laundry for her. She gave no specific evidence when she recovered enough to perform any of her various household and child care functions during the claim period.

Mrs. Ritorto and her sister gave no specific evidence about her pre-accident outdoor chores at her mother's house or what post-accident outdoor services Ms. Crimeni performed for her, comprising the 25 hours billed Allstate for fall cleanup. Mrs. Ritorto has not established any substantive basis to award her $250, and I entirely deny that amount for fall cleanup.

Ms. Crimeni lived at the family home while attending full-time classes at Humber College weekday mornings and also worked 12-20 hours a week as a pharmacy cashier at the time of the accident. Her evidence is that Mrs. Ritorto could not help with anything during the immediate period following the accident. She shared child care with Mrs. Ritorto's husband, who worked afternoons as a hairdresser. Ms. Crimeni explained how she delayed her homework and cut her work hours in order to take on the child care and additional housework while Mrs. Ritorto recuperated.

While Ms. Crimeni provided a reasonable explanation about the division of child care and housework in order to establish that she rendered services to her sister and the baby after the accident, she provided little justification for the hourly summaries she sent Allstate. Her insistence that the billed 35 hours total for weekly housework and child care through early December 2003 is not broken down on paper or substantiated by testimony about particular duties or task times. Ms. Crimeni did not retain her original daily records to show the specific hours for her work or explain to my satisfaction how she could attend classes, complete her home work, maintain her part-time job and still help her sister on average 5 hours a day.

Ms. Crimeni and Mrs. Ritorto prepared the claim forms in batches at the office of her representative subsequent to several months of services, but the lack of either written or oral evidence about those specific services and times does not support the accuracy of these documents. Therefore, I am persuaded that the claim forms are simply rough estimates prepared and submitted afterwards through her representative.

The first assessment of Mrs. Ritorto's in-home abilities was conducted by Dr. Steven Simone, her treating chiropractor. During Dr. Simone's visit to her home in December 2003, he recorded her admission that she was 50% improved with therapy. Her principle symptoms were neck, low back and shoulder stiffness, aggravated by breastfeeding and sustained postures in child care. Mrs. Ritorto estimated needing 20 hours of child care per week at a time when she claimed 25 hours of child care to Allstate. That conflict establishes Mrs. Ritorto inflated her claim for caregiver benefits to Allstate.

Dr. Simone likewise reported on Mrs. Ritorto's housekeeping abilities. She was limited to light cleaning duties, including dusting, wiping counters, preparing light meals, straightening beds, washing dishes or loading a dishwasher, folding clothes and driving short distances. She could not vacuum, mop, carry laundry/shopping bags or perform heavier cleaning. Dr. Simone's evidence that she was doing most of the light household duties conflicts with Ms. Crimeni's evidence that her sister was doing little housework during this period. This evidence undermines Mrs. Ritorto's claim for 10 hours housekeeping a week, and establishes it is inflated.

Dr. Simone did not substantiate in either his report or his oral evidence why he concluded Mrs. Ritorto required 10 hours housekeeping plus 25 hours for child care. While his evidence confirms Mrs. Ritorto was limited performing heavier duties, it does support his conclusion respecting the hours.

Allstate's orthopaedic surgeon, Dr. Garson Conn, found Mrs. Ritorto suffered residual neck and right shoulder stiffness, with some pain at the end range of motion and mild restricted back flexion. His February 2004 report concluding that Mrs. Ritorto had no disability is premised on the assumption that most soft tissue injuries usually heal within three months. In his evidence at the hearing, Dr. Conn accepted that Mrs. Ritorto suffered symptoms outside the normal recovery period, and I reduce the weight of his opinion because he failed to explain the reasons why her symptoms and restrictions do not support any disability whatsoever.

Dr. Conn's and Dr. Simone's findings of neck and shoulder symptoms, together with Mrs. Ritorto's reports to them that she had problems feeding/comforting her child and was unable to do heavy housework, persuade me, on balance, that she 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, Mrs. Ritorto admitted recovery in December 2003 and failure to provide time and duty details persuades me that the amount of her housekeeping and caregiver claims is exaggerated.

By "gilding the lily" Mrs. Ritorto and Ms. Crimeni have made Allstate's job in initially assessing the claims and my own work in assessing the evidence more difficult. While I could deny her any benefits because she submitted inaccurate claims, I am loath to do that because the health care evidence generally supports her claims.

The fairest result is to make a reasonable inference, based on the comparison between Ms. Crimeni's evidence that her sister could not do anything, and its contradiction with the health care evidence that Mrs. Ritorto was 50% recovered and performed light duties during the same period of time. On that, I am prepared to reduce Mrs. Ritorto's housekeeping and caregiver claims by that same 50%.

On housekeeping expenses, I find that Mrs. Ritorto suffered a substantial inability with her pre-accident housekeeping duties until February 28, 2004 as a result of her soft tissue accident injuries because she was unable to perform heavier housework during this time period. I further find that Mrs. Ritorto's sister, Ms. Crimeni, performed the heavier housework for her.

I find that Mrs. Ritorto's reasonable and necessary replacement housekeeping expenses are calculated as follows:

Total Housekeeping Hours to February 28, 2004 (invoices without fall cleanup):

Half of 115 hours claimed = 57.5 hours x $10/hour = $575

Based on Dr. Conn's report that Mrs. Ritorto said she was managing to take care of her baby in early February 2004, I find that Mrs. Ritorto suffered a substantial inability with respect to her pre-accident caregiver duties as a result of the accident because she could not hold or feed her baby for longer periods of time until February 1, 2004. I further find that Ms. Crimeni provided half the reasonable and necessary caregiver services she invoiced to Allstate, calculated as follows:

Total Caregiver Hours to February 1, 2004 (invoices):

Half of 350 hours claimed = 175 hours x $10/hour = $1,750

In summary, I find that Mrs. Ritorto is entitled to $1,750 for caregiver benefits under Part IV of the Schedule and $575 for housekeeping expenses under section 22 of the Schedule.

In-Home Assessment:

Mrs. Ritorto claims that the $1,100 December 2003 in-home assessment conducted by Dr. Simone is a reasonable expense under section 24 of the Schedule. Allstate argues that Dr. Simone was not professionally trained to determine child care and homemaking needs, thereby reducing the value of his report.

The chief commenting health professional on this issue is Dr. Arthur Ameis, who conducted a review of Mrs. Ritorto's claim for this service in November 2003 at a Designated Assessment Centre. He approved 4.5 hours to assess Mrs. Ritorto's attendant care and homemaking needs, so long as it was completed by a professional trained in this area, such as an occupational therapist.

Dr. Simone gave little evidence he has either training or the acquired skills in assessing Mrs. Ritorto's home or child care abilities, equating him with occupational therapists or kinesiologists that usually perform this function. However, I am prepared to allow him the recommended 4.5 hours time for the assessment and report at the agreed $95 per hour rate because his report is helpful to document Mrs. Ritorto's functional level at that time.⁴ I find that the December 2003 in-home assessment was reasonable, and Mrs. Ritorto is entitled to $427.50 for its reasonable expense.

Medical and Rehabilitation Benefits:

Mrs. Ritorto must establish, on balance, 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 both reasonable and necessary to treat her accident injuries.⁵ Allstate argues that Mrs. Ritorto cannot recover for the expense of her extended treatment with Gateway beyond the limited number of weeks provided in the Pre-approved Framework Guideline for Whiplash Associated Disorder Grade II (Guideline)⁶

The purpose of this Guideline is set out in its introduction:⁷

This Guideline is effective October 1, 2003, and is intended to set out what goods and services may be provided without insurer approval to an insured person who has sustained a Whiplash Associated Disorder Grade II as described below, with or without back pain, and the cost of such services payable by the insured person's insurer.

This introduction to the Guideline⁸ directs adjusters in their immediate consideration of funding for initial treatment of soft tissue injuries,⁹ through the application of the general experience that most people recover from these episodes within a defined time period. The adjuster's initial decision about the delivery of benefits bears no similarity to an adjudicator's legally binding determinations following a formal hearing and critical analysis of evidence and law.

There is no expressed intention of the Legislation to suggest a health practitioner's diagnosis of a particular whiplash grade usurps this critical adjudicative role, and it is most important that subsection 268.3(2) of the Insurance Act and case law make it quite clear that Guidelines should be considered, but are not binding on adjudicators.¹⁰ I reject Allstate's position, and instead rely on the evidence in this case.

Dr. Simone treated Mrs. Ritorto with a combination of massage, chiropractic, active and passive physiotherapy between early December 2003 and mid-March 2004. He testified Mrs. Ritorto still complained of pain at the time Allstate denied further treatment funding in early December 2003, even though her strength and range of motion had increased and the tingling in her arms had stopped. By the end of January 2004, he was still seeing her twice a week, when Mrs. Ritorto reported that she had no neck complaints and his evidence is that her symptoms were within normal limits.

In mid-November 2003, a Designated Assessment Centre reviewed Dr. Simone's proposal to continue Mrs. Ritorto's therapy. Dr. Ameis relied on the recommended time periods for treatment in the Guideline protocols for his opinion that the plan expense was not reasonable or necessary. In his testimony, he agreed with the underlying theory that no further healing or pain control results from treating soft tissue injuries of this nature beyond six weeks.

Dr. Ameis did not examine Mrs. Ritorto and therefore did not have the opportunity to assess her pre-existing condition or the possibility that her symptoms might fall outside usual norms that would take her out of the Guideline's treatment protocols. The undisputed evidence is that Mrs. Ritorto's poor posture aggravated her accident-related symptoms, and Dr. Ameis failure to address her poor posture is my reason not to rely on his opinion about Gateway's treatment.

Dr. Simone's testimony that Mrs. Ritorto was not fully recovered at the time he submitted his second treatment plan is consistent with Dr. Conn's February 2004 examination. Dr. Conn found that Mrs. Ritorto's trapezius (neck/shoulder) muscles were stiff, particularly on the right side, and that she experienced pain towards the end range of motion. He cautioned that while these types of injuries normally heal within three months, Mrs. Ritorto's slouching posture may well have predisposed her to persistent symptoms well beyond this period. Dr. Conn agreed that Mrs. Ritorto required active treatment plus instructions to continue her exercises at home.

I rely 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 February 2004 examination. Dr. Conn reduced his support for Mrs. Ritorto's treatment, recommending active therapy only during this latter stage of her recovery. This coincides with the evidence that she resumed child care and all but the heavier household chores.

Considering Mrs. Ritorto's pre-existing poor posture and this evidence, I find that the Guideline does not apply. I find that Gateway's treatment of Mrs. Ritorto with active and passive therapy is reasonable and necessary through January 2004, as well as her active therapy from February 2004 until March 11, 2004. I do not accept that the passive chiropractic portion of the treatment plan ($570) is reasonable or necessary.

Mrs. Ritorto, her sister and the health care professionals did not provide any concrete substantive evidence in support of Gateway's late January 2004 recommendation that Mrs. Ritorto receive funding for a variety of home assistive devices. Therefore, I find that the recommended step stool, light vacuum, body pillow, jet mop and hot/cold pack included in the Gateway statement are not reasonable and necessary expenses as a result of Mrs. Ritorto's accident injuries.

Deducting the passive chiropractic portion of the treatment ($570) and assistive devices ($275) from the agreed total outstanding ($3,533.77), I find that Mrs. Ritorto is entitled to payment from Allstate of $2,688.77 for her treatment at Gateway.

Digital Motion X-Ray:

One of the driving forces in this hearing concerns Mrs. Ritorto's claim under section 24 of the Schedule for payment of digital motion fluoroscope imaging, a newer diagnostic method than conventional x-rays, CT scans or MRI. Dr. John Baird, the chiropractor who performed this test, gave the sole supporting expert evidence, along with articles he selected, about the use of video fluoroscopy or, as it is more commonly referred to, "DMX".

Dr. Baird testified that the DMX test clearly shows Mrs. Ritorto's cervical spine has lost the ability to maintain its functional integrity, and concludes from his examination that she suffers a 25% whole body impairment as a result of her accident injuries. He stated that the fluoroscope pictures establish that the flexion and extension movements of Mrs. Ritorto's vertebrae joints at the C5, C6, and C7 levels of her neck geometrically measure greater than normal standards. Dr. Baird used the phrase "loss of motion segment integrity" (LMSI) to describe Mrs. Ritorto's instability in her cervical area as a basis for determining her percentage disability and category of her soft tissue injury.

Video fluoroscopy uses multiple pictures of the patient moving through a series of neck positions to determine the stability of neck vertebrae. While this technique is approved in the United States by the chiropractic profession, DMX has not received approval for general diagnostic use by any professional health care body in Canada. It remains classified as under investigation by the Chiropractic College of Radiologists (Canada).

Lack of approval by a professional health organization for general diagnostic use does not necessarily preclude coverage for a non-conventional examination tool under section 24, in my view. It depends on whether there is sufficient evidence. This should minimally consist of:

independent opinion from a qualified and experienced specialist (for example, a radiologist, physiatrist or orthopaedic surgeon) and,
persuasive explanation why the treatment or test (DMX) is reasonably likely to or advances an insured's diagnosis, services or treatment and,
comparison of the effectiveness and cost of the proposed treatment or test with conventionally accepted technology or treatment methods.

Dr. Simone offers little support for DMX. He has seen the technique performed, but is not a specialist in diagnostic imaging and has no specific expertise in DMX. His generalization that DMX offers potential to confirm or pinpoint a diagnosis has little weight.

Dr. Ameis differentiated Dr. Baird's diagnosis from his own view of Mrs. Ritorto's condition. He explained LMSI as a dangerous condition resulting from extremely torn soft tissues that cause the discs and bones around the spinal cord to lose their normal structural integrity. The condition can easily damage the spinal cord, and often leads to paralysis or death.

Dr. Ameis and Dr. Conn agree that Mrs. Ritorto's symptoms do not support Dr. Baird's diagnosis of serious neck instability. Mrs. Ritorto would require immediate neck immobilization if she suffered from LMSI. They disagree with Dr. Baird's diagnosis and his resulting conclusion she suffers a 25% whole body impairment.

Dr. Ameis also testified that conventional x-rays together with magnetic resonance imaging (MRI) are more powerful tools for detecting these types of underlying problems than DMX because they have better resolution. Dr. Ameis stated that the cost of the DMX assessment at close to $3,000 does not reasonably compare to the more effective CAT scan at about $200 or an MRI costing between $600 to $700.

Dr. Baird offered no satisfactory defence to the criticism he should have first relied on conventional diagnostic tools. Moreover, he is not an expert with anything approaching sufficient independence to support DMX when he admits being the chief investor and promoter of this new technique.

Dr. Baird's opinion carries less weight than either Dr. Conn or Dr. Ameis in the use of technical diagnostic tools with orthopaedic injuries due to the latters' more extensive training and experience in this area. Dr. Ameis and Dr. Conn explained their opinions about diagnostic imaging more clearly than Dr. Baird, and I rely on their diagnoses that Mrs. Ritorto suffered a moderate soft tissue neck injury as a result of the accident.

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.¹¹ 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. I find the DMX test is not a reasonable expense, and that Mrs. Ritorto is not entitled to reimbursement for it under section 24 of the Schedule.

EXPENSES:

I trust the parties to attempt to resolve the entitlement to and amount of the expenses of the arbitration on their own while considering Rules 75 through 78 of the Dispute Resolution Practice Code (Fourth Edition, Updated October 2003) (DRPC). If the parties cannot resolve this matter, please follow the process in DRPC Rule 79 before contacting the caseworker to arrange an assessment of expenses.

March 3, 2006

Fred Sampliner Arbitrator

Date

Financial Services Commission of Ontario