Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 67

FSCO A04-001424

BETWEEN:

LOURDES URGILES

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Rosemary Muzzi

Heard: June 20, 21, 22, 23 and August 29 and 30, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Bhim Goordial for Ms. Urgiles John D. Dean for Allstate Insurance Company of Canada

Issues:

The Applicant, Lourdes Urgiles, was injured in a motor vehicle accident on November 5, 2003. She applied for and received some statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ Allstate ultimately terminated those benefits. The parties were unable to resolve their disputes through mediation, and Ms. Urgiles 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. Urgiles entitled to income replacement benefits (IRBs) of $341.90 per week from January 21, 2004 and ongoing?

2. Is Ms. Urgiles entitled to payment of $5,111 for her treatment at Four Winds Physiotherapy Clinic (Four Winds) and of $4,679.85 for her treatment at Gateway Rehabilitation and Health Institute (Gateway)?

3. Is Ms. Urgiles entitled to payments of $2,765 for housekeeping expenses from December 18, 2003 to June 25, 2004?

4. Is Ms. Urgiles entitled to payments for the costs of the following two assessments performed by Dr. John Baird, chiropractor:

• Impairment Assessment - $2,156.50
• Digital Motion X-ray Analysis - $2,084?

5. Is Ms. Urgiles entitled to a special award pursuant to section 282(10) of the Insurance Act?

6. Is Ms. Urgiles entitled to interest on all outstanding amounts in accordance with section 46(2) of the Schedule?

7. Are the parties entitled to their expenses of the arbitration process?

Result:

1. Ms. Urgiles is not entitled to payment of IRBs of $341.90 per week from January 21, 2004 to November 30, 2004.

2. Ms. Urgiles is not entitled to payments for treatment at Four Winds. Ms. Urgiles is only entitled to payments for treatment incurred at Gateway to the end of August 2004.

3. Ms. Urgiles is entitled to payments for housekeeping expenses at $100 per week from December 18, 2003 to January 20, 2004.

4. Ms. Urgiles is not entitled to payments for the costs of the two assessments performed by Dr. Baird.

5. Ms. Urgiles is not entitled to a special award.

6. Ms. Urgiles is entitled to interest on all outstanding amounts in accordance with section 46(2) of the Schedule.

7. The parties should make efforts to agree on expenses, failing which either party may request an assessment of expenses before me, pursuant to Rule 79 of the Dispute Resolution Practice Code.

Background

Following the accident of November 5, 2003, Ms. Urgiles saw her family doctor, Dr. Sussman, complaining of pain in her neck and back. He diagnosed muscle strain and prescribed Tylenol and anti-inflammatory medication. He also recommended therapy. She intially saw Dr. Cabrasi, a chiropractor, for an assessment and for some treatment. She then saw Dr. Tong who took x-rays, which disclosed no significant problem but showed some muscle spasm. At his recommendation, Ms. Urgiles commenced chiropractic, massage and other therapy. She did approximately eight weeks of this therapy with Dr. Kalsi at Four Winds and then continued with Dr. Stephen Simone at Gateway. She continues to attend at Gateway twice per week.

Ms. Urgiles testified that she had been steadily employed before the accident. For sixteen years, she had been a machine operator at a factory but had been promoted to a supervisory position just three weeks before the accident. After the accident, Ms. Urgiles never returned to work and quit her job finally in November 2004.

She testified that, because of the accident, she has had persistent neck and low back pain, numbness, ringing in her ears, memory problems, changes in her mood and dizziness, in addition to suffering sleep interruptions on a regular basis. Furthermore, she said that she has experienced limitations in her ability to do housekeeping, going out with her children, her personal relationship with her husband, climbing stairs and walking, and her social life.

Income Replacement benefits

In order to be entitled to IRBs, Ms. Urgiles must show that as a result of the accident, she suffers a substantial inability to perform the essential tasks of her employment.

Ms. Urgiles testified that she had been promoted to a supervisory position from that of a sewing machine operator just three weeks before the accident. The supervisory job was lighter in terms of the physical requirements but had more responsibility in that she had to deal directly with the operators and ensure that their jobs were done properly and on time. Infrequently, some heavier tasks were also required in the supervisory job.

Allstate paid Ms. Urgiles IRBs of $341.90 per week to January 20, 2004. Allstate argues that it properly terminated benefits based on the conclusions of Dr. Paitich, an orthopaedic specialist, who examined Ms. Urgiles in mid-December 2003. In his report, Dr. Paitich identified evidence of impairment with respect to the range of motion of Ms. Urgiles' cervical spine, but he did not find this impairment disabling. He concluded that the detected impairment was not of sufficient magnitude to disable her either with respect to her housekeeping tasks or with respect to her occupational tasks.

The only medical evidence presented by Ms. Urgiles was that of Dr. John Baird, chiropractor, who conducted two assessments in March 2004 and January 2005. Dr. Baird's evidence was directed primarily to identifying an impairment but he offered no opinion and made no conclusions about Ms. Urgiles' ability to work or perform the other tasks in her life.

While I find Ms. Urgiles' reports of pain to be credible, she has failed to show that she meets the test for entitlement to IRBs, especially given the medical evidence presented by Allstate and the medical evidence contained in the various DAC reports. I am not satisfied that her pain complaints alone caused her to be unable to perform her job. The ensuing DACs clearly indicate that Ms. Urgiles could work with some modifications and training.

Dr. Paitich's orthopaedic assessment was in December 2003 and Ms. Urgiles underwent three DAC assessments between then and October 6, 2004. While virtually all of the assessors noted some degree of impairment and that maximum medical recovery had not been achieved in her case, they all concluded that Ms. Urgiles was not substantially unable to work. The first DAC assessment, a Disability IRB Assessment, took place over three days, February 20, 24 and March 8, 2004. The DAC orthopaedic specialist noted that neither the symptomatology nor the restricted cervical movements would prevent Ms. Urgiles from being employed with reasonable training and some modification (vis-a-vis lifting) (my emphasis). Significantly,

Ms. Urgiles never attempted a return to work with training or modification even though her employer apparently informed her that her job was available for her when she wanted to return.

Dr. Viscomi, who conducted the two Med-Rehab DAC assessments (one in August and the other in late September, 2004), found Ms. Urgiles to be credible with respect to her reports of pain even though he found very little pathology. He concluded that her chiropractic therapy should have been discontinued because it did not provide any significant benefit and it may have been reinforcing the belief that her pain was caused by the diagnosis. Therefore, he recommended achange in her treatment - two visits to a kinesiologist, who would encourage a better understanding of the body and muscles, and a gym membership to assist with the de-conditioning that had resulted because of the pain and was now contributing to it. Again, significantly, and perhaps unfortunately for Ms. Urgiles, there was no change in her treatment or rehabilitation regimen.

When all of this evidence is considered together, I find that Ms. Urgiles has not demonstrated that she was substantially unable to perform her work tasks, especially given the fact that her job had changed from one that was predominantly physical to one that was essentially not physical in nature.

Medical Benefits

Section 14(2)(b) of the Schedule requires that an insurer pay for all reasonable and necessary chiropractic and physiotherapy services incurred as a result of the accident. Ms. Urgiles seeks payment for the following treatment expenses, incurred as a result of the accident:

1. Four Winds - three treatment plans - $5,111

2. Gateway - treatment up to December 17, 2004 - $4,679.75

Ms. Urgiles must establish, on balance, that the expenses for the treatment she received at Four Winds and at Gateway were both reasonable and necessary to treat the injuries she sustained in the accident.

Four Winds treatment expenses

Allstate argues that the outstanding Four Winds expenses should not be paid because the invoices detailing the treatment and its associated expenses are unreliable evidence. Furthermore, Allstate contends that a conflict of interest existing between Dr. Tong, Ms. Urgiles' referring physician, and Four Winds precludes payment of the treatment expenses.

Only Dr. Kalsi, formerly of Four Winds, testified. Dr. Kalsi testified that he put Ms. Urgiles on a treatment plan according to the Pre-Approved Framework Guidelines for Whiplash Associated Disorder Grade II (Guideline). He said that he found her to be pain-focussed and unable to manage her pain even after the completion of that first treatment plan. He concluded that she probably needed further treatment, but because he left Four Winds shortly thereafter, he could not recommend further treatment or diagnostic testing.

Dr. Kalsi also examined copies of the invoices submitted in respect of the treatment he had provided. He testified that he did not recognize these invoices. He said that while he was not responsible for preparing the invoices, they should have been based on his clinical notes but that in fact the invoices did not accurately itemize the treatment in which Ms. Urgiles had engaged while under his care. He also indicated that the Guideline treatment program that he put Ms. Urgiles on would have been charged as a block fee and that also did not appear to be reflected in the invoices submitted. No other evidence was led to authenticate the invoices and verify their accuracy.

In light of Dr. Kalsi's evidence and in the absence of any other evidence attesting to the authenticity and accuracy of the invoices, I find that the invoices are untrustworthy and unreliable evidence of the expenses for treatment. Consequently, Ms. Urgiles has failed to show that the expenses for her treatment at Four Winds are reasonable and I do not award them.²

Gateway treatment expenses

Dr. Simone testified about the treatment he has provided to Ms. Urgiles since June or July 2004. He admitted that the goal of her treatment at Gateway has been to provide palliative care. By the time he commenced treating her, Ms. Urgiles had already had seven months of chiropractic treatment and, in his view, she was therefore well past the threshold for permanent injury. In other cases, he would normally have encouraged his patient to admit to the injury, accept its impact on her life and engage in activities and exercise despite the injury. He would have also suggested some degree of palliative treatment and even orthopaedic intervention.

Dr. Simone testified that he was unable to take this usual approach with Ms. Urgiles because she was afraid to be active and was reluctant to do physical training because of her pain. On the other hand, the palliative care seemed to provide her some transient relief and he was prepared to continue with it until some further diagnostics and intervention were suggested by her family doctor.

Allstate argued that Ms. Urgiles' circumstances did not entitle her to treatment expenses for palliative care in light of the tests enunciated in arbitral decisions on this issue.

Arbitrators at FSCO have found that expenses for palliative treatment are reasonable and necessary³ where pain relief measures do not encourage an inappropriate or indefinite dependency; interfere with other aspects of rehabilitation⁴, or where the pain relief factor is not outweighed by factors such as frequency, duration and cost of treatment, efficacy of treatment, and availability of other effective treatments.⁵

It is clear to me that many of the assessors determined that chiropractic and other passive therapies were not a good long-term treatment option for Ms. Urgiles. Even Dr. Simone, Ms. Urgiles' current treating chiropractor, agreed and indicated that in other circumstances he would have encouraged a physical fitness regimen and lifestyle adaptation, precisely the kinds of recommendations made by Dr. Viscomi. Further, some practitioners expressed a concern that Ms. Urgiles appears to have developed a dependence on palliative treatment without it affording a real improvement in her condition, and that her efforts should really be directed to conditioning her body. Ms. Urgiles' reluctance to move forward with her rehabilitation seems to be the only obstacle to perhaps more reasonable and effective treatment for her injuries. However, the first real recommendation for Ms. Urgiles to engage in physical training did not come until the report of Dr. Viscomi, after his August 2004 assessment. In my view, it was at that point, that further palliative treatment should have been discontinued in favour of active, rehabilitative treatment. Therefore, I find that Dr. Simone's treatment to the end of August 2004 was reasonable and necessary to treat Ms. Urgiles' impairments, that is, to help her cope with her pain complaints. Allstate shall pay any amounts outstanding to that point.

From that point forward, given the medical evidence and the conclusions of Dr. Viscomi, other forms of treatment were reasonable and necessary for Ms. Urgiles and should have been pursued.

Housekeeping Benefits

Ms. Urgiles claims payments for the following housekeeping expenses:

• from December 18, 2003 to March 31, 2004 - $1,400;

• for April 1, 2004 to June 25, 2004 - $1,365

Expenses for housekeeping and home maintenance services are paid during the period that Ms. Urgiles can establish she suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident, to a maximum of $100 per week.

Allstate argues that the housekeeping invoices that Ms. Urgiles submitted are not credible and do not support her claims and that Dr. Paitich's report and the Disability DAC report also do not support her claims beyond December 17, 2003, when Allstate terminated payments for housekeeping. Ms. Urgiles argues that she is entitled to payments for housekeeping until July 2004, when she resumed a number of her duties with the help of her husband and sister.

Ms. Urgiles testified that her aunt, Olinda Calle, had to assist her with housekeeping chores in the months following the accident. For the first three weeks, in fact, Ms. Calle stayed with Ms. Urgiles. In the next six to eight months, she came five days a week. Ms. Urgiles paid her aunt $100 to $120 per week.

Ms. Calle testified about the services she provided to her niece. She said that Ms. Urgiles required housekeeping services because she was both physically and psychologically unable to cope with her household chores. Ms. Calle described her niece's situation as a difficult one: she wore a collar for a long time; she spent a lot of time lying down; she would only leave the house for physiotherapy; and, she was very sad and cried a lot of the time. Consequently, Ms. Calle did most of the heavy work: laundry, cooking, taking out the garbage, and shopping with her niece's husband. She said that she worked at her niece's home all day long.

I find that Ms. Calle is a credible witness and I am satisfied that she assisted Ms. Urgiles with her housekeeping tasks for a significant period of time. I have before me only the expense sheets for housekeeping services that were performed from January 22, 2004 to March 31, 2004.⁶ Furthermore, as was the case for her IRB claim, Ms. Urgiles' medical evidence was directed primarily to identifying an impairment but contained no opinion and made no conclusions about her ability to perform her housekeeping tasks. Again, in this regard, I must rely on the insurer's examinations and the DAC reports. Allstate relied on Dr. Paitich's orthopaedic assessment of December 2003 to terminate payments for housekeeping expenses. This report also founded Allstate's decision to terminate IRBs, which it did on January 20, 2004. It is not clear to me why Allstate paid IRBs to January 20, 2004 but cut off payments for housekeeping as of December 18, 2003, except perhaps for the lack of housekeeping expense claims. Given the credible evidence of Ms. Calle and in light of the other evidence before me, I am satisfied that Ms. Urgiles was substantially unable to perform her normal housekeeping tasks and that she incurred expenses in that regard until January 20, 2004. Therefore, I find that she is entitled to payments of $100 per week from December 18, 2003 to January 20, 2004 for housekeeping expenses.

Cost of Assessments

Ms. Urgiles seeks payments for the following assessments that she underwent, both of which were conducted by Dr. Baird:

• Impairment Assessment - $2,156.50

• Digital Motion X-ray Analysis - actual cost of $2,084

Section 24 of the Schedule says that an insurer shall pay reasonable fees that are charged by a member of a health profession for conducting an assessment or examination and preparing a report, if the assessment or examination and the report are reasonably required in connection with a benefit claimed or the preparation of a treatment plan, disability certificate, assessment of attendant care needs in Form 1 or application for the determination of a catastrophic impairment.

Therefore, Ms. Urgiles must show that these assessments bear some reasonable relationship to her medical condition at the time of her testing or in relation to her potential accident benefits.⁷ Ms. Urgiles claims that her injuries were such that they justified undergoing these comprehensive assessments in order to determine the cause of her pain and the problems with her neck.

Allstate argues that neither assessment should be paid for because they are purely investigational in nature; no reliable evidence was presented to support the use of them in Ms. Urgiles' case; they were not done for the purposes of the Schedule; and there exists a conflict of interest between the Applicant's former representative, Mr. Richard Gordon (who referred Ms. Urgiles to Dr. Baird), and Dr. Baird.

Dr. Baird testified about these assessments. Drs. Kalsi, Simone, Viscomi and Pisarek also addressed the assessments in their oral testimony.

The first test Dr. Baird conducted consisted of stress study radiographs of Ms. Urgiles'cervical spine. He found a loss of motion segment integrity (LMSI) (Dr. Baird referred to this interchangeably as instability) of 3.5 mm at the C4 and C5 vertebrae. An LMSI is defined as an antero-posterior motion or slipping of one vertebra over another greater than 3.5 mm of a cervical vertebra.⁸ It appears, then, Ms. Urgiles showed signs of some degree of impairment but even Dr. Baird admitted that it was a borderline impairment. Dr. Baird recommended the clinical interventions of chiropractic care and massage therapy to manage the injury. He also suggested that rehabilitation in a multi-disciplinary facility offering pain management could be helpful. Finally, Dr. Baird recommended re-evaluation of Ms. Urgiles' impairment with digital radiographic analysis, at the point of maximum therapeutic benefit, to confirm the status of the C4 and C5 vertebrae.

From all of the medical evidence, it appears that Dr. Baird's initial finding of borderline impairment came as no surprise to any of Ms. Urgiles' treating practitioners and their treatment of her did not change in any way as a result of Dr. Baird's findings. For example, while Dr. Kalsi recalled discussing with Dr. Baird the findings of LMSI and considered Dr. Baird's comments, he also testified that he had not done any adjustments on C3, C4 or C5 anyway. Later, Dr. Simone made his own diagnosis of LMSI and consequently did not engage in adjustment of Ms. Urgiles' cervical spine as part of his treatment. Neither Dr. Kalsi nor Dr. Simone altered their therapy for Ms. Urgiles in any way.

Furthermore, some of the doctors questioned Dr. Baird's diagnosis. Dr. Kalsi testified that he would have checked for instability and did not detect any on a physical exam. In particular, he would have looked for decreased reflexes and some neurological signs of instability. Dr. Viscomi testified that Dr. Baird's finding of LMSI is, in fact, not a finding of instability but rather akin to the more accepted diagnoses of hypo- or hyper-mobility and indicates a change in the bio-mechanics of certain segments of the spine - not instability. Bio-mechanical problems can be measured through an examination for hypo- or hyper-mobility (something chiropractors are taught in chiropractic college). Dr. Viscomi said that any instability would not be treated by a chiropractor and would require the immediate intervention of an orthopaedic specialist and perhaps even surgical intervention to ensure stability and prevent any neurological problems.

Moreover, it appears that Dr. Baird's assessments in general may have been done prematurely, making them an unreasonable and unnecessary expense. Despite the alleged sophistication of the Impairment Assessment (and subsequent Digital Motion X-ray), Dr. Baird himself recommended that an MRI be done to confirm or add to the diagnosis obtained from the first assessment. I think it unreasonable, if not, in fact, contradictory, to assert that this kind of assessment provides a benefit not realizable from other, more accepted forms of assessment, like an MRI, and then recommend an MRI to confirm or add to the diagnosis.

Dr. Pisarek, who conducted the Fast Track DAC in relation to the second assessment, concluded that it was not reasonable in this case because the fee was exorbitant and it was not an appropriate procedure in a case where there were other less expensive options available. While a comprehensive imaging assessment is a good idea, the second assessment was too comprehensive an imaging assessment for this type of case.

When all of this evidence is considered as a whole, given the accepted nature of Ms. Urgiles' impairment and the fact that the assessments did not really assist either with diagnosis or treatment, I am not satisfied that either of the assessments were reasonably required in connection with any of the benefits claimed by Ms. Urgiles or the preparation of a treatment plan or disability certificate. Consequently, Allstate is not required to pay these expenses.

In fact, having heard all of the evidence, it is not clear to me for what purpose Mr. Gordon referred Ms. Urgiles to Dr. Baird for these assessments. Neither Dr. Baird's diagnosis nor his simple recommendation for treatment appear to have added any value to resolution of Ms. Urgiles' case. Furthermore, Dr. Baird's tests, in my view, proved to be premature and excessive in nature given the impairments found in Ms. Urgiles' case.

SPECIAL AWARD:

In addition to awarding the benefits and interest to which an insured person is entitled under Schedule, if an arbitrator finds that an insurer has unreasonably withheld or delayed payments, she shall make a special award.

In order to make a special award, then, an arbitrator must find that the insurer has unreasonably withheld or delayed payments. It is not enough to find that the insurer's decision to withhold or delay payments is wrong. There was insufficient evidence to satisfy me that the behaviour of the Allstate adjuster's case was in any way unreasonable. Therefore, I find that a special award is not appropriate in this case.

INTEREST:

In light of my findings that amounts are overdue, interest is payable on those amounts in accordance with section 24(4) of the Schedule.

EXPENSES:

The parties did not argue the issue of expenses before me. The parties should attempt to resolve their claims for the expenses of this arbitration process by reviewing Rules 75 to 79 of the Dispute Resolution Practice Code. If the parties are unable to resolve the issue of expenses, either party may request, within 30 days of receipt of this decision, an appointment before me to determine expenses.

May 8, 2006

Rosemary Muzzi Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 67

FSCO A04-001424

BETWEEN:

LOURDES URGILES

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.1.8, as amended, it is ordered that:

1. Allstate Insurance Company of Canada shall pay Ms. Urgiles for treatment expenses incurred at Gateway to the end of August 2004.

2. Allstate Insurance Company of Canada shall pay Ms. Urgiles for housekeeping expenses at $100 per week from December 18, 2003 to January 20, 2004.

3. Allstate Insurance Company of Canada shall pay Ms. Urgiles interest on all outstanding amounts, in accordance with section 46(2) of the Schedule.

4. If the parties cannot agree on the issue of expenses, they may request an appointment before me, within 30 days of receipt of this decision, to determine expenses, in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 8, 2006

Rosemary Muzzi Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2In light of my conclusion, I find it unnecessary to deal with Allstate's argument that there is a conflict of interest between Dr. Tong and Four Winds.
3. 3In the case of Violi and General Accident Assurance Company of Canada (FSCO A98-000670, August 20, 1999), the arbitrator concluded that pain relief in and of itself can be a legitimate medical and rehabilitative goal, and therefore reasonable and necessary, even if it does not promote recovery.
4. 4Amoa-Wi 11 iams and Allstate Insurance Company of Canada, (FSCO A97-001864, June 5, 2000); Violi and General Accident Assurance Company of Canada, (FSCO P99-00047, September 27, 2000)
5. 5Driver and Traders General Insurance Co. (FSCO A01-000841, January 8, 2003) and confirmed on this point on appeal (FSCO P03-00006, November 18, 2003)
6. 6Exhibit 18
7. 7Aleman and State Farm Mutual Automobile Insurance Company (FSCO A00-000501, March 6, 2001),
8. 8See Exhibit 22