Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 89

FSCO A04-000274

BETWEEN:

AGNIESZKA LESNIAK

Applicant

and

PEMBRIDGE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Edward Lee

Heard:

May 2, 3, 4, 5, 2005, and August 15, 16, 17, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on September 20, 2005.

Appearances:

Ms. Michele Roy for Ms. Lesniak

Eric K. Grossman for Pembridge Insurance Company

Issues:

The Applicant, Agnieszka Lesniak, was injured in a motor vehicle accident on September 19, 2001. She applied for and received statutory accident benefits from Pembridge Insurance Company ("Pembridge"), payable under the Schedule.¹ Other benefits she claimed were denied. The parties were unable to resolve their dispute through mediation, and Ms. Lesniak 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 Ms. Lesniak entitled to receive the following medical benefits:

(a) physiotherapy treatment provided by SMRC in the amount of $11,500.00;

(b) chiropractic treatment in the amount of $3,040.00;

(d) translation services in the amount of $4,050.00;

all pursuant to section 14 of the Schedule?

Is Ms. Lesniak entitled to the payment of medical benefits in the form of prescriptions for high blood pressure and heart medications in the amount of $635.99, pursuant to section 14 of the Schedule?
Is Ms. Lesniak entitled to receive payments for the cost of reports and assessments in the amount of $25,110.56, pursuant to section 24 of the Schedule?
Is Pembridge liable to pay a special award pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8 because it unreasonably withheld or delayed payments to Ms. Lesniak?
Is Pembridge liable to pay Ms. Lesniak's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Lesniak liable to pay Pembridge's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Ms. Lesniak entitled to interest for the overdue payment of the benefits pursuant to section 46(2) of the Schedule?

Result:

Ms. Lesniak is entitled to receive the following medical benefits provided by SMRC:

(a) $3,600.00 for physiotherapy treatment;

(b) $1,530.00 for chiropractic treatment;

(d) $0.00 for translation services.

The total amount owed is reduced by $4,255.00 which represents a misdirected payment made by Pembridge to Ag-Med, which had not been credited to the account.

Ms. Lesniak is entitled to the payment of medical benefits in the form of prescriptions for high blood pressure and heart medications in the amount of $635.99, pursuant to section 14 of the Schedule.
Ms. Lesniak is entitled to the payment of $13,478.10 for the cost of reports and assessments pursuant to section 24 of the Schedule.
Pembridge is not liable to pay a special award pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8 because it unreasonably withheld or delayed payments to Ms. Lesniak.
Pembridge is liable to pay Ms. Lesniak's reasonable expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Ms. Lesniak is not liable to pay Pembridge's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Ms. Lesniak is entitled to interest for the overdue payment of the benefits pursuant to section 46(2) of the Schedule.

FACTS:

Ms. Lesniak was forty-nine years old when she was involved in an automobile accident on September 19, 2001. She testified that while driving toward an intersection, she was rear-ended by another car. She described the impact of the collision as "huge". Her seatbelt and that of her daughter were ripped out, and her daughter was thrown to the back of the car. The impact moved her both forward and backward, and she remembered contacting the steering wheel although she could not say for certain whether she hit her head.

She reported a headache after the accident but drove home and slept badly that night. The next day her headache had not healed and she also had neck pain. On September 21, 2001, she went to see Dr. Marciniak (a physician) at the Sports Medicine and Rehabilitation Clinic (SMRC). In the first ten days after her accident she stated she had severe headaches, neck pain, pain in her right arm and shoulder, and in her back.

Dr. Marciniak, completed a Disability Certificate that day and diagnosed Ms. Lesniak with cervical spine radioculopathy, aggravation of right shoulder injury, and a sleep disorder. He also noted post traumatic stress headaches.

After the initial visit, Dr. Marciniak commenced treating Ms. Lesniak in October 2001 and continued to do so until May 2003. During the course of approximately eighteen months, Ms. Lesniak received physiotherapy, chiropractic treatment, and massage. She received other therapies, such as electrical stimulation, acupuncture, TENS, hot and cold treatments, and ultrasound. She was also the subject of numerous reports, assessments and examinations, including a number of Insurer's Medical Examinations, and a DAC assessment dated March 18, 2002, which approved the first three treatment plans for physiotherapy, chiropractics and massage, but determined that no subsequent treatment, apart from at-home exercise, was reasonable or necessary.

EVIDENCE AND ANALYSIS:

Section 14(1) of the Schedule states that the "Insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit." Section 14(2) states that the medical benefit "shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for ... (b) chiropractic, psychological, occupational therapy, and physiotherapy and ... (h) other goods and services of a medical nature that the insured person requires."

Is Ms. Lesniak entitled to the following medical benefits pursuant to section 14 of the Schedule:

i. physiotherapy treatments provided by Sports Medicine Rehabilitation Clinics from October 12, 2001 to May 25, 2003 in the amount of $14,750.00;

ii. chiropractic treatment provided by SMRC from October 17, 2001 to April 1, 2003 in the amount of $3,040;

iii. massage therapy treatments provided by SMRC from October 12, 2001 to April 1, 2003 in the amount of $3,680.00?

Many arbitral decisions have examined the question of reasonable and necessary treatments in the context of section 14, and the case law has developed of a set of general criteria, well-summarized in the decision of Chan and CAA Insurance Company (Ontario)²:

The treatment goals must be identified; they must be reasonable; and they must be met to a reasonable degree.
The treatment must be appropriate to the goals and to the person.
The frequency, cost and duration of the treatment itself must be reasonable.
With respect to cost, arbitrators consider not just the financial expense, but whether the investment of time, effort and expertise required to achieve treatment goals are reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.
Where treatment is lengthy and continues indefinitely, one must also consider whether the treatment is promoting dependency or interfering with other aspects of rehabilitation.
"Compelling evidence": Where the goal of therapy is not rehabilitation but pain relief alone, additional factors must be considered, most particularly in cases such as Ms. Chan's, where treatment is of prolonged and indefinite duration and where, contrary to expectations, symptoms persist and the patient appears to be getting worse than better.

In my view, the "compelling evidence" required to meet the statutory test of reasonableness lies somewhere in between the balance between subjective belief and generalised assertions on the one hand, and the type of objective evidence that approaches "scientific certainty" on the other.

In the past, arbitrators have considered both subjective and objective evidence in the form of clinical notes and records and periodic progress reports prepared by treatment providers, results of formal testing obtained from functional capacity evaluations, the observations and opinions of medical experts, and the observations of family, friends, caregivers and housekeepers as persuasive evidence in support of an insured person's assertions that a particular treatment is reasonable.

Ms. Lesniak's Testimony

Ms. Lesniak testified at length about the treatment she received both before and after her accident from SMRC and other health providers. Before her accident, she had experienced serious problems with her right shoulder which were caused by a fall in 1991. As a result, she had a "frozen shoulder" and was diagnosed with osteoarthritis. One physician had previously suggested that she undergo a shoulder replacement, but she had not followed through with this solution. She had severe eczema, but she had never suffered from neck pain and had only experienced infrequent headaches. Further, she described her pre-accident emotional state as normal.

Following her accident, she experienced pain in her arm, shoulder, neck, and severe headaches that occurred two or three times a day and sometimes seven times a week. She also suffered from high blood pressure and heart palpitations. She described the pain in her shoulder as horrible.

Ms. Lesniak's treatment commenced at Sports Medicine and Rehabilitation Clinics on or about October 12, 2001 and terminated in May 2003. Dr. Marciniak was her treating physician. Initially, she attended the clinic three times a week for one-and-a-half to two hours on each occasion. Later in the treatment, her attendance at the clinic decreased to two times per week, and then to about once a week. In testimony, Ms. Lesniak stated that the treatments were not always identical and over the course of her treatment, varied in frequency and composition.

During her visits, she typically received a multi-disciplinary treatment, composed approximately of a thirty minute chiropractic component which included manipulation, mobilization and traction, usually in the area of her cervical spine and back. She also received physiotherapy treatment, including active and passive modalities, such as electro-therapy, hot and cold packs, and ultrasound, usually in the upper back and right shoulder and arm area. The physiotherapy sessions lasted approximately thirty minutes. Sometimes she underwent acupuncture treatments. She also received approximately thirty minutes of massage therapy. At one stage in her treatment she was given exercises to practice at home.

She testified that the massage initially caused her to feel more pain but then it felt a "little bit better", although she was not able to articulate when this change took place. She also stated that the treatments helped her headaches, lessening their intensity and occurrences approximately a year after the accident. At some point, her shoulder began to return to its pre-accident state, and the massage, chiropractic therapy and physiotherapy also improved her neck and right shoulder pain. It was noteworthy that a-year-and-a-half after her accident, she identified her major health problems as her heart and her blood pressure.

Dr. Moddel, a Neurologist, prepared an Insurer's Medical Report of August 23, 2002 which chronicled the improvements in her complaints of headaches and neck ache, noting that her headaches had decreased in frequency from two to three times per week to once a month. That report also noted the continued problems with her high blood pressure, and the significant musculoskeletal difficulties of her right shoulder, and recommended that she continue to receive "specific therapy" for her blood pressure and her right shoulder.

Overall, I found Ms. Lesniak was a credible witness who was straightforward in her answers. English was clearly not her maternal tongue, but she was able to make herself understood in English, asking for translation of the odd word or phrase. I did not find that she tailored her responses to her counsel's questions. She was somewhat vague and disjointed in regard to the frequency and type of treatments she had received at SMRC, but this was understandable given that the treatments had continued for approximately one-and-a-half years and that they had ended over two years before.

Doctor Savvidou's Testimony

Dr. Savvidou was the applicant's family physician, and had been treating Ms. Lesniak for various problems from as early as November 1996. She had a long-term knowledge of Ms. Lesniak's medical history and antecedents, and she continued to see Ms. Lesniak on a semi-regular basis during the course of her treatments at SMRC. Dr. Savvidou was candid in her responses to both the Applicant's and the Insurer's Counsel. Of the medical witnesses, she was the least self-interested and I found her testimony helpful in resolving many of the apparent contradictions in the opinions expressed by the other witnesses. My impression was that her treatment recommendations had been made with the Applicant's benefit in mind and not to bolster reports or statements or a sense of professional pride in a previous diagnosis.

Dr. Savvidou reported that prior to the accident, Ms. Lesniak had not suffered from neck problems, or headaches, or cervical spine strain. She had experienced some low back pain and lumber spine sprain; and the frozen right shoulder due to a previous fall was well documented. Ms. Lesniak had experienced some hypertension before the accident but Dr. Savvidou had never prescribed blood pressure medication for this difficulty. She stated that Ms. Lesniak was hyper-thyroid.

On October 10, 2001, following the accident, Dr. Savvidou observed that the applicant had high blood pressure, frozen right shoulder, and cervical spine strain. Ms. Lesniak also had decreased range of motion for the right shoulder. Dr. Savvidou diagnosed cervical spine strain and suggested physiotherapy of the cervical spine, and rehabilitation for the right shoulder.

Dr. Savvidou agreed with the October 10, 2001 Preliminary Report of Dr. Marciniak. She also approved of the occupational therapy home assessment for Ms. Lesniak, finding that it was necessary because Ms. Lesniak had experienced fainting and dizziness after the accident. Dr. Savvidou also agreed with the psychological consultation suggested in that preliminary report. Overall, Dr. Savvidou stated that although some of the Applicant's conditions had been pre-existing, they had probably been aggravated by the accident, and that patients in Ms. Lesniak's position sometimes needed to continue with physiotherapy for long periods of time.

Dr. Savvidou classified the applicant's injuries as WAD I or II, but qualified this statement by adding that she had not always fully examined Ms. Lesniak and thus could not confirm that Ms. Lesniak had not been a WAD III. Further, although she was familiar with the guidelines prepared by the Quebec task force for WAD patients, she felt that patients had to be treated on an individual basis.

Dr. Savvidou's note of November 22, 2001 (Exhibit I-3, Tab 44) recommended that Ms. Lesniak continue the "treatments she was receiving to date at SMRC and that all future plans would be reasonable and necessary." At that time, she was referring to the October 17, 2001 chiropractic report (Exhibit I-2, Tab 6), which recommended chiropractic treatments, passive modality treatments, active exercise therapy, and massage therapy. There was no doubt that she endorsed all the initial treatment plans submitted by SMRC.

Six months after the accident in March 2002, Dr. Savvidou recommended that Ms. Lesniak continue with physiotherapy and rehabilitation for the right shoulder, because of Ms. Lesniak's on-going problems. Dr. Savvidou was aware of all the treatment Ms. Lesniak was receiving at that time from SMRC and was receiving notes from the physiotherapist. Her opinion was that SMRC was "quite a respectable clinic".

On April 24, 2002, Dr. Savvidou recorded Ms. Lesniak's blood pressure at 190/120, noted an irregular heartbeat, and referred her to a cardiologist. She noted that Ms. Lesniak had never experienced irregular heartbeat before her accident. In May 2002, Dr. Savvidou observed continued blood pressure problems. Before the accident, she had recorded blood pressure levels of 160/90 or 160/1000, but in June 2002, Dr. Savvidou prescribed Inhibase, after measuring blood pressure levels as high as 220/110. In September 2002, Ms. Lesniak's blood pressure was recorded at 200/100.

The most striking parts of Dr. Savvidou's testimony were the following: she testified that the multi-disciplinary treatments used at SMRC, and the frequency and length of Ms. Lesniak's treatment (three visits per week and then twice per week from October 2001 until the end of 2002), were justified given the distances travelled by Ms. Lesniak to attend at the clinic. She felt that receiving three treatments per week was a bit much, and that two times per week might have been more appropriate.

Dr. Savvidou also felt that it was reasonable for a patient such as Ms. Lesniak to receive long term physiotherapy and that such treatment should be cut back slowly and continue until the patient reached a chronic pain situation. At that time, the patient should still receive maintenance treatment. Further, this would continue when the patient had reached a stable condition, one or perhaps two years post accident [emphasis mine].

Further, Dr. Savvidou stated that attendance for physiotherapy or massage or for active exercise for reinforcement of home exercise was not unreasonable even past the two-year stage [emphasis mine]. When the patient reached a steady state she could then be advised of home exercises and provided with occupational therapy and home aids. Reinforcement might be provided once every week or two.

Dr. Savvidou last saw Ms. Lesniak in February 2003 and observed hypertension ("not controlled"), hyperthyroid and blood pressure ("not controlled"). Dr. Savvidou referred Ms. Lesniak to Dr. Cherry, a cardiologist who also noted Ms. Lesniak's post accident psychological state. Dr. Savvidou confirmed that the blood pressure problem was exacerbated after the accident.

MichaelDrinkwater and the DACAssessment

The DAC assessment, dated March 18, 2002, was conducted by a chiropractor, physiotherapist, massage therapist, kinesiologist, and physiatrist. The assessments were completed in early February of 2002, and Michael Drinkwater, the physiotherapist, was the primary evaluator. The DAC's conclusion was that the three initial treatment plans were reasonable and necessary but no further treatments (other than home exercises) were recommended.

Mr. Drinkwater testified that the DAC consensus was that the Applicant had suffered a WAD II myofascial type of injury to the soft tissue of the neck, supporting structures, and soft tissues because of the forces transmitted through the cervical region. Both Dr. John (the physiatrist) and Dr. Herman (the chiropractor) also diagnosed low back myofascial strain.

Mr. Drinkwater testified that such injuries go through a progression of stages leading to a gradual increase in motion, decrease in stiffness and pain, and eventual functional recovery. More importantly, Mr. Drinkwater and the DAC assessors stated that Ms. Lesniak's subjective observation of pain had not "changed" during her treatment and that she displayed "guarding" during her testing. His report noted her active avoidance of using her right arm and shoulder and her extreme emotion when attempting to use it. According to him, her pain behaviours were extreme in nature. He also noted the Applicant perceived herself as a crippled person, and he was not convinced that her low back pain injury was correlated to the mechanism of injury and the medical information provided.

Overall, it was clear that Mr. Drinkwater found that Ms. Lesniak was pain-focussed and that he and the other DAC assessors believed her responses to the testing were guarded and exaggerated. He believed that her pain factors were outside of the "organic domain", and were unrelated to the accident. In terms of the treatment provided, the approximate $50,000.00 cost of treatment was excessive. Further, he stated that to continuously and repetitively apply the same treatment (as SMRC had done over the course of the treating period) was against his clinical judgement. As the treatments were not providing the desired outcome of decreasing pain and increasing function, they were not reasonable or necessary. He also found it unreasonable that a person in such pain would take a long subway ride to the SMRC Clinic.

In cross-examination, Mr. Drinkwater stated that he had not reviewed the medical notes and reports of Dr. Savvidou before the conducting the assessment. He had not reviewed the X-rays of the right shoulder or cervical spine before the accident and that he had not known that Ms. Lesniak had a pre-existing frozen right shoulder. He was also unaware that Ms. Lesniak had been on the Ontario Disability Support Program since 1988 and that she had been considered disabled.

Despite his assertions, Mr. Drinkwater noted that some degree of improvement had been reported by the Applicant during her treatments, and as of August 2002, the Insurer's Medical Examination reported that there had been a decrease of both headaches and neck pain. He agreed that pre-existing medical conditions, such as Ms. Lesniak's frozen right shoulder, could prolong recovery. Further, psychological condition could also affect recovery, and the DAC physiatrist had noted post traumatic anxiety and depression. The DAC massage therapist, Ross Cunningham, had reported agitation and nervousness.

Finally, in regard to the WAD II or WAD III diagnosis, Dr. Herman stated that a WAD III diagnosis could not be made without "some form of objective measurement", and suggested that an MRI might be such a measurement. An MRI had not been prepared at the time of the DAC or had not been made available to the DAC assessors before they rendered their report. When questioned, Mr. Drinkwater stated that he was not the right person to determine if the Applicant's spinal stenosis had been caused by the accident or by degenerative changes over time and that the MRI was outside of his area of expertise. Nevertheless, when later presented with the MRI, he pronounced that it confirmed his belief that the spinal stenosis had been caused by degenerative changes over time.

Overall, Mr. Drinkwater was a credible witness, but I found that some of his assumptions and the DAC conclusions were unfounded because they had not been based upon objective fact or on complete evidence. It was also clear that Mr. Drinkwater and the DAC assessors were convinced that Ms. Lesniak's reactions to their testing were exaggerated, or pain-focussed. They placed a great reliance on her own pain reporting and its lack of improvement over the course of her treatments.

In my opinion, they put too much emphasis on these points. Their belief that Ms. Lesniak was pain-focussed or guarded pervaded all of their assessment to the point that they seemed to discount her complaints. I also noted that Ms. Lesniak's command of the English language was not perfect, and I was not convinced that she had always been able to express herself adequately before the DAC assessors. Mr. Drinkwater indicated that an interpreter had been available at the assessment, but he did not remember if he had been used.

I was also surprised by Mr. Drinkwater's assertion that he felt it was unlikely that a person as injured as Ms. Lesniak would have taken the long bus ride to attend at the clinic. Ms. Lesniak testified that one of the reasons she attended at SMRC was because she could express herself in Polish. I found this to be a wholly credible and understandable concern for a person whose mother tongue was not English. Also, I find that it was understandable that Ms. Lesniak considered herself a "crippled" person, merely because she had been on the Ontario Disability programme for years previous to her accident.

It was also noteworthy that the DAC assessors had only a partial understanding of Ms. Lesniak's pre-accident injuries and pre-existing conditions. Mr. Drinkwater, the lead evaluator, had not read all of Dr. Savvidou's notes previous to drafting the report, and I found it striking that he failed to note the serious extent of the pre-accident injury to her right shoulder which was described as "necrotic" or "dead" by Dr. Savvidou. In fact, some of his criticism of Ms. Lesniak was in relation to her guarding of her right shoulder.

Although the DAC assessors stated that they believed her injuries should have been resolved within the established time frames for this type of injury (as set out by the Quebec Guidelines), I find it entirely plausible that Ms. Lesniak's recovery was prolonged, because as suggested by Mr. Drinkwater, she had pre-existing problems and because her psychological state had been adversely affected by the accident.

These problems, in addition to the unavailability of the MRI to the DAC assessors, convince me that the DAC assessment was flawed and not as reliable as some of the other medical evidence presented to me.

Dr. Marciniak's Testimony

On September 21, 2001, Dr. Marciniak completed a Disability Certificate, diagnosing Ms. Lesniak with cervical spine radioculopathy, and aggravation of a pre-existing right shoulder injury, post traumatic stress headaches and sleeping disorder. Soon after he also noted heart palpitations and cardiac related complaints.

In a subsequent Disability Certificate dated November 23, 2001, Dr. Marciniak diagnosed "right shoulder disorder, motor and sensory impairment, neck pain, cervical spine radioculopathy, post-traumatic headaches and a WAD II-III".

In his preliminary report of October 10, 2001, he diagnosed her with post traumatic headaches, neck injury, right shoulder injury (pre-existing problem, aggravated by the accident), and psychological problems.

Dr. Marciniak testified that he used a multi-disciplinary, concurrent approach to the treatment of Ms. Lesniak wherein he incorporated chiropractic treatment, physiotherapy, and massage therapy. He used a combination of different techniques and approaches and included medication to release muscle spasm, increase activities and return to function. He also particularized his treatment for each patient, stating that each patient had to have "specific recommendations for that particular patient for their particular injuries". At different times, Ms. Lesniak also received electro-therapy, hot and cold packs, ultrasound, and acupuncture.

Her treatment at SMRC started on October 12, 2001, and initially she attended his clinic three times per week for one-and-a-half to two hours per session, but later the sessions decreased to twice a week. During the approximate eighteen months of treatment at SMRC, she received as many as 118 sessions of physiotherapy, 120 sessions of massage therapy, and 87 sessions of chiropractic treatment. He added that Ms. Lesniak often dropped by to speak to him about her personal problems, discussing her stress and anxiety as a result of the accident, the accident's psychological effects upon her daughter, and the stress Ms. Lesniak felt as a result of the procedures she had to undergo in regard to her claim for accident benefits. Dr. Marciniak saw her so often he felt that he had undercharged for the services rendered.

The gist of Dr. Marciniak's testimony was that all the treatments she received from SMRC were reasonable and necessary to control her symptoms and improve function. In the physiotherapy Treatment Plan of September 21, 2001, the short term goals were to improve mobility and to control symptoms. The long term goals were to eliminate symptoms, restore structural strength and to return to normal life.

Many of the treatment plans prepared over the course of Ms. Lesniak's treatment listed similar long and short term goals, but Dr. Marciniak testified that he reviewed each treatment plan as drafted to see if changes were necessary, or whether there were new problems, or different symptoms. Over the course of her treatment, he noted changes such as her spiking blood pressure and responded by sending her for tests for these problems. He stated he would not sign any treatment plans he believed unnecessary.

The DAC assessment endorsed the first three treatment plans, but denied further treatment. In reply, Dr. Marciniak justified the prolongation of Ms. Lesniak's treatment as an extension of the previous treatment because of Ms. Lesniak's continued problems. The November 26, 2001 treatment plan for chiropractic treatment had, as an anticipated benefit, a "decrease in inflammation and pain." This treatment could relieve muscle spasm and lessen pain. There were subsequent treatment plans. Five months after the accident, Dr. Marciniak signed another treatment plan on February 18, 2002 for more chiropractic treatment. He justified the frequency and continuation of treatment because she experienced aggravations and flare-ups which caused her symptoms to re-occur. He described her progress six months after the accident as "... slow and poor, with flare-ups, her blood pressure going crazy, and her headaches and stress and problems with all the paper work". He attributed her slow response partly to her psychological status, and on the stress induced by the process of responding to the Insurer's representatives. Contrary to the recommendations of the DAC, he did not believe Ms. Lesniak was capable of self-exercise at home, mainly because of her psychological state.

As of April 16, 2002, Ms. Lesniak was still complaining of headaches, neck pain, right shoulder problems, and nervousness and dizziness. Dr. Marciniak noted the aggravation of pre-existing abnormalities as shown in the radiological evidence, and because of the continuing problems (both physical and psychological), recommended a psychological assessment. According to him, the MRI showed spinal stenosis and post traumatic degenerative changes as a result of the accident. The MRI, X-ray and EMG reflected her symptoms of weakness in the arms, and headaches, muscle spasms and trigger points.

In the Update Report of September 17, 2002, Dr. Marciniak noted the need for continuing physiotherapy and massage but also chronicled blood pressure problems. Dr. Marciniak's report of April 10, 2003 emphasized endocrine, blood pressure and nose bleed problems, but did not note headache complaints. By the end of Ms. Lesniak's treatments in May 2003, Dr. Marciniak testified that some of her symptoms had shown improvement and that she was able to do more things. Had he stopped treating Ms. Lesniak, as required by the DAC, she would have had more symptoms, and would have been stuck at home or in an institution. She would have risked stroke, heart problems, perhaps suicide, and she might have developed chronic pain syndrome and disability.

I found Dr. Marciniak a credible witness and was convinced that he had spent much time with Ms. Lesniak. Nevertheless, in cross-examination Dr. Marciniak was unable to produce any records of actual visits by Ms. Lesniak to the clinic or to provide any written confirmation of the treatment she had received on specific dates. He was also unhelpful when seeking to explain how much time he had spent in preparing the many reports and assessments that are disputed in this application. I found that his record keeping was abysmal, but I was satisfied that Ms. Lesniak had indeed attended often and at a very regular basis at the clinic over a one- and- a- half-year period. I am also convinced that she received the treatments listed in the application.

Analysis:

The treatment goals listed in the three treatment plans for physiotherapy, chiropractics and massage that were approved by the DAC were as follows: "mobility improvement, symptoms control, symptoms elimination, restoration of structural strength, return to normal life"; decrease muscle spasm, pain, inflamation, myofascial restriction, increase range of motion, strength, return to pre-accident status"; "decrease pain, inflamation, increase flexibility, range of motion, eliminate symptoms, increase strength, agility, co-ordination, return to pre-accident level of function".

The other treatment plans prepared by SMRC listed similar long and short term goals. Applying the tests set out in Chan, I find that the treatment goals were identified and reasonable. Based upon the reports and assessments prepared by Dr. Marciniak over the course of the treatment, it was obvious that he had examined Ms. Lesniak on numerous occasions, and had noted changes, developments in her condition, and changing diagnoses in his reports and assessments. I accept Dr. Marciniak's testimony that he reviewed the treatment plans as they were drafted and adjusted them in response to Ms. Lesniak's condition.

Although Michael Drinkwater testified that it had been inappropriate for Dr. Marciniak to use massage, physiotherapy and chiropractic treatments concurrently, Dr. Marciniak stated that this combination of treatment could be used advantageously. Dr. Savvidou did not contradict Dr. Marciniak's statement, and suggested it was the best method, given the long distance Ms. Lesniak travelled for her therapies. No other evidence was adduced by the Insurer to lead me to conclude that these types of treatment could not, or should not, be used concurrently. In fact, when reviewing the case law presented to me by both sides, I noted that other practitioners had prescribed and used very similar treatments or courses of treatments when treating patients with similar symptoms. Thus, I found that it was appropriate for SMRC to use the multi-disciplinary approach to treat Ms. Lesniak.

What was less obvious in the present case was whether the treatment goals were met to a reasonable degree, and whether the investment of time, effort and expertise required to achieve the treatment goals were reasonable, taking into consideration both the degree of success and the availability of treatment alternatives.

All three medical witnesses testified that recovery could be prolonged by pre-existing conditions and psychological status. Each witness testified that Ms. Lesniak had indeed suffered from pre-existing conditions in her shoulder and her spine and in regard to her blood pressure. Dr. Savvidou and Dr. Marciniak testified that Ms. Lesniak had experienced psychological problems following her accident. Based on this testimony, I am convinced that Ms. Lesniak's recovery was indeed slowed by these two factors.

Nevertheless, a slow recovery does not amount to no recovery. Ms. Lesniak could not remember the exact instant when she felt she began to improve, yet she testified that she experienced improvement over the course of her treatment. Approximately a year after the accident, she was experiencing fewer headaches and less neck pain and shoulder pain. One-and-a-half years post accident, she listed her major problems as her heart and blood pressure; the headaches, shoulder and neck pain had decreased. She also stated that she had experienced numbness in her hand which lessened during the course of the treatment.

Based on her testimony, I found that the treatments she received reduced her pain and alleviated some of the symptoms experienced following her accident. Counsel for the Insurer argued that the treatments provided by SMRC continued for too long and provided no actual benefit to Ms. Lesniak, but arbitral decisions have determined that pain relief can be a valid end to treatment or a legitimate treatment goal so long as it does not encourage inappropriate or indefinite dependency or interfere with other aspects of rehabilitation.³ I did not find that the treatment encouraged an inappropriate or indefinite dependency or interfered with other aspects of her rehabilitation. In fact, Ms. Lesniak's treatments accorded long term rather than temporary relief.

In addition to this, a comparison of two occupational therapy assessments⁴ prepared one year apart by Sophie Biewlawski (an Occupational Therapist) clearly demonstrates a discrete and measurable increase in Ms. Lesniak's range of motion and flexibility in her spine and shoulders. Even Ms. Lesniak's right shoulder showed improvement. These reports and the testimony of Dr. Marciniak convince me that the treatment goals of the therapy were being met to a reasonable degree that went beyond the realm of mere pain relief.

Nor was I convinced that the length of the treatment was inappropriate. I accepted Dr. Savvidou's testimony that it was appropriate for Ms. Lesniak to be treated for a long period following her accident, and then to have maintenance treatment to prevent further deterioration. In fact, Dr. Savvidou testified that such treatment might continue as long as a two years post-accident. I accept Dr. Savvidou's comments that the Quebec Guidelines on treatment for whiplash injuries are but general guidelines that do not necessarily apply to each and every individual. These comments seem self-evident, and I am not convinced that the "one size fits all" approach used by the DAC assessors is the most appropriate method. I preferred Dr. Marciniak's approach that treatment must be tailored appropriately to each individual.

The only other treatment alternative suggested by Michael Drinkwater and the DAC Assessors was home exercise. They stated that this would have been sufficient for Ms. Lesniak following the completion of the first three treatment plans. Again, based on the testimony of Dr. Savvidou and Dr. Marciniak, I was not satisfied that this was a reasonable treatment alternative. Given their testimony, I doubt that even if Ms. Lesniak had undergone a regime of home exercise, she would have obtained the same relief as obtained through her continued attendance at SMRC.

I also find that her medical condition was more serious than believed by Michael Drinkwater and the other DAC assessors who were convinced that Ms. Lesniak was falsifying or exaggerating her pain reactions. By his own admission, Michael Drinkwater was not qualified to give an opinion in regard to an MRI. Dr. Marciniak's analysis of the MRI was that her accident had caused, or led to, or contributed to the spinal stenosis.

This opinion is supported by some of the Insurer's own medical evidence. Dr. Stein's (a Rheumatologist) Insurer's Medical Report of August 20, 2002 described the degenerative changes shown on the MRI, and concluded that "... the trauma from the motor vehicle accident superimposed on the degenerative changes was most likely the cause of her symptoms."

Dr. Conn (an Orthopaedic Surgeon), in his Insurer's Medical Report of August 28, 2002, found that Ms. Lesniak had an impairment of 25% limitation in the extension of her neck that had been a direct result of the motor vehicle accident. In his addendum report of October 10, 2002, Dr. Conn added that "... the pathology [of the degenerative changes in the spine as demonstrated in the MRI] may have been aggravated by the motor vehicle accident and would help to explain the prolongation of her symptoms."

In Ms. Lesniak's case, the treatment goals of the multi-disciplinary course of therapy (physiotherapy, massage and chiropractics) provided at SMRC were met to a reasonable degree, taking into account the investment of time, effort and expertise required. Nevertheless, I also accept the Insurer's submission that such treatments cannot go on indefinitely. Based upon the evidence discussed above, I am convinced that the treatment goals were met to a reasonable degree up to December 31, 2002.

The three initial treatment plans were approved and paid. After the completion of the initial plans, Ms. Lesniak underwent another seventy-two sessions of physiotherapy to the end of December 31, 2002. I accept the evidence of Michael Drinkwater, a licenced physiotherapist, that the reasonable cost for one hour of physiotherapy is $125.00. In the present case, Ms. Lesniak testified that her physiotherapy sessions lasted approximately thirty minutes and she was one of two patients treated concurrently. Her therapist at SMRC was Bozena, a kineisiologist and not a physiotherapist, but I accept Dr. Marciniak's testimony that her work would be equivalent to that given by a physiotherapist. For these reasons, I find that $50.00 per session of physiotherapy is a reasonable cost. The balance owing for physiotherapy treatments is $3,600.00.

Ms. Lesniak underwent another ninety-two sessions of massage. At $40.00 per session, the balance owing for massage is $3,680.00. Ms. Lesniak had another thirty-four sessions of chiropractics which would amount to $1,530.00.

The total balance owing for these therapies is $8,810.00.

4. Is Ms. Lesniak entitled to receive as a medical benefit

(d) translation services in the amount of $4,050.00, pursuant to section 14 of the Schedule?

Ag-med claimed $4,050.00 for translation services it had provided to Ms. Lesniak. No representative of Ag-med appeared before me to testify in regard to the documents that were translated or when the translations occurred, although the letter (Exhibit I-4, Tab 55) from Ag-Med, dated January 10, 2002, refers to translations of "... all the correspondence and reports to her insurance and her legal representatives, and her doctors...".

Ms. Lesniak was unable to shed light on this matter, and gave no testimony in regard to translations that had been made to her, although she stated that her reading in English was "horrible". Dr. Marciniak did not know who had done the translations at Ag-Med, and testified that as many as twenty people at the clinic could have provided such services. According to him, the translation services were for the following:

"They usually mentioned what she had done, information, the letters from the insurance, from I don't know, different reports of assessments. We like the patient to review all the medical records to see if we got all the medical information that she went to see some of her doctors, because we would like to get a complete file, all the information from them, and she didn't really understand."

Neither counsel provided me with any arbitral jurisprudence and little argument was made as to whether translation services could properly fall within section 14 of the Schedule, although it was held in the decision of Hey Van Do and Allstate Insurance Company of Canada⁵ that interpretation services could be successfully included in a claim for a Section 24 assessment.

In the present case, Dr. Marciniak could not even clarify how the fee for interpretation had been assessed at Ag-med. In fact, the translation was charged at "$50.00 per unit", although no evidence was adduced in regard to whether that referred to an hourly rate, a rate per document, a rate per page, or a rate per inquiry. No one who had made a translation appeared before me, and Ms. Lesniak did not elucidate this matter. Apart from the bare invoices, there was no evidence to substantiate what was translated, by whom, and when. Given this lack of proof, I do not find it necessary to decide whether translation services can properly fall under Section 14. The claim for the translation services is denied.

Is Ms. Lesniak entitled to payment of medical benefits in the amount of $635.99 pursuant to section 14 of the Schedule for prescriptions for high blood pressure and other heart medications?

Although Dr. Savvidou noted that Ms. Lesniak had some high blood pressure readings and hyperthyroidism before the car accident, Ms. Lesniak had never registered blood pressure readings greater than 170/100. In the period following her accident, Dr. Savvidou noted readings as high as 200/160 and 210/160. She also noted irregular heartbeat and recommended that Ms. Lesniak attend a cardiology examination. These high blood pressure problems were confirmed by Dr. Marciniak who testified that her blood pressure problems were exacerbated by the accident, and the stress and anxiety she experienced following the accident. I find that the motor vehicle accident materially contributed to Ms. Lesniak's high blood pressure and cardiac problems. I find that Ms. Lesniak is entitled to the payment of these medicines to treat her high blood pressure and cardiac problems.

Is Ms. Lesniak entitled to receive payments for the cost of reports and assessments in the amount of $25,110.56, pursuant to section 24 of the Schedule?

Numerous reports and assessments were conducted and prepared by Dr. Marciniak and other medical professionals during the course of Ms. Lesniak's treatment. Arbitral decisions have held that a two-part analysis may be used to determine whether an insurer should be required to pay for an assessment or report. The first question to ask is whether it is reasonable that the assessment was conducted, and the second is whether the cost of the assessment was reasonable.⁶The test has been further refined by applying three factors: whether it was reasonable in the circumstances for the insured to have been referred for the assessment, whether the report was ultimately useful or helpful, and whether the cost was justified having regard to the time, care and expertise involved in conducting the assessment and preparing the report.⁷ It has also been held that a report may be requested by a family doctor to assist management of a patient and the question of reasonableness does not turn on whether the report is reasonable or useful or comprehensive to the insurer.⁸

In regard to his billing procedures, Dr. Marciniak stated that he based his fee for report preparation upon the number of documents he reviewed, the various test assessments done, from discussions with other providers, review of various notes, assessments of the patient, and discussions with her and her husband. Nevertheless, he gave no evidence on the amount of time it took him to draft the various reports, and in fact, none of the report writers appeared before me to provide an understanding of the time element involved in report preparation.

Dr. Marciniak's October 10, 2001 report includes a detailed accident history, past history, present complaints, physical assessment on the headaches, cervical spine, right and shoulder, and involves the conduct of various tests, orthopaedic tests, palpatations, observations, neurological examinations, and tests of range of motion. It also reviews assessments done on September 21, 2001, October 1, 2001, October 2, 2001 and October 10, 2001. I find that this report is detailed, comprehensive, and provides useful information for the continued treatment for Ms. Lesniak, but without testimony in regard to the amount of time required to produce it, I do not find that its $1,500.00 cost is reasonable. Instead, I find that a cost of $1,000.00 is reasonable.

The November 26, 2001 update report is shorter and does not include any active testing except for a cardiac assessment. As such, it seems to be a rehash of statements made by Ms. Lesniak to Dr. Marciniak. I find that this report is useful and reasonable, but the cost of the report is more accurately placed at $200.00.

The Comprehensive Report of April 16, 2002 is another detailed overview of Ms. Lesniak's visits and consultations before various medical professionals. As such, I find that it is useful to aid her continued treatment, but over half of this report had been reproduced verbatim, from other previously prepared reports. Therefore I am allowing the cost of $750.00 for this report.

The Update Report of September 17, 2002 is detailed and reports various findings based on electro-diagnostic tests and conclusions. This report is clearly helpful in determining the applicant's condition and in planning her treatments. Its cost of $900.00 is reasonable.

The report of October 17, 2001, by Dr. Patel (a Chiropractor) is reasonable, as is its cost of $300.00. The MRI radiology report prepared by AIAC and its cost of $800.00 are reasonable.

The October 5, 2001 report of Dr. Grzyb (a psychologist) comprises tests, scores, and assessment results, a history, and a patient examination. This report and its cost of $1,010.00 are reasonable, given that both Dr. Savvidou and Dr. Marciniak had commented on the applicant's psychological status. The Psychological Report of February 10, 2003 is an update of the Applicant's psychological status approximately one-and-a-half years post accident. I find that it and a cost of $1,010.00 are also reasonable. Dr. Grzyb's subsequent Psychological Report of February 11, 2003 is a rebuttal of the Dr. Saunders psychological report of December 2, 2002. As such, I find it a reasonable report and useful for the continued treatment of Ms. Lesniak, but the cost appears excessive as no active testing had been done. I would cost it at $540.00.

The report of Sophie Bielawski is reasonable given that it aided Dr. Marciniak to assess Ms. Lesniak's injuries and her complaints of dizziness and fainting. Dr. Savvidou also believed that this report was required. I find that a cost of $1,000.00 is reasonable. Sophie Bielawski's Update Report of September 18, 2002 is also reasonable given the elapsed period of time since the initial accident. Again, a cost of $1,000.00 is reasonable. Both reports were very helpful to me in that they provided quantitative measurements of the patient's range of motion and flexibility in her spine and shoulders.

The reports of Dr. Marciniak dated December 14, 2001 and March 11, 2002 were not filed in the evidence and claims for those reports are denied. I am also not prepared to allow the claims for the reports of January 23, 2003, February 3, 2003, March 18, 2003, April 10, 2003 and July 21, 2003, as I have decided that the multi-disciplinary treatments provided by SMRC after December 31, 2002 were no longer reasonable and necessary.

The reports of Dr. Pruzanski (a Rheumatologist), dated May 31, 2002 and September 13, 2002, are reasonable and I am allowing $475.00 and $300.00 for their costs of preparation. The report of April 11, 2003 is disallowed as it was prepared after the cut-off date of December 31, 2002.

I find the cost incurred for the preparation of a treatment plan by Sophie Bielawski ($85.88), dated September 18, 2002, is reasonable.

I also find that some of the reports prepared by Dr. Marciniak were reasonable but their costs were exaggerated. I am prepared to allow $200.00 each for the reports of July 26, 2002, November 22, 2002, and December 12, 2002. The reports of October 24, 2001, October 26, 2001 and March 13, 2002 are allowed at $75.00 each. The reports of January 30, 2002, February 18, 2002 and June 14, 2002 are allowed at $150.00 each. The reports of May 31, 2002, July 3, 2002 and July 26, 2002 are allowed at $350.00, $600.00 and $200.00 respectively. The report of October 23, 2002 is allowed at $700.00. In these cases, the complexity of the reports prepared, the tests and assessments made, or documents reviewed, did not merit the amount claimed for their preparation. In total, I am allowing $6,075.00 for the eighteen reports prepared by Dr. Marciniak and Dr. Patel.

I am allowing $1,268.10 for the preparation of fifteen treatment plans by SMRC. I have applied the cost of $83.87 or $85.88 per treatment plan as set out in the Applicant's materials at Ex-I-1 and I-2. The three treatment plans prepared after December 31, 2002 were not allowed.

I am not allowing any further amounts for the two disability certificates prepared by SMRC. The evidence I heard was that the amount paid for the first disability certificate, $86.19, was in accordance with the Ontario Medical Association Guidelines. I was not convinced that I should allow more than this.

In summary, I am allowing $6,075.00 for the eighteen reports prepared by Dr. Marciniak and Dr. Patel;

$1,268.10 for the fifteen treatment plans prepared by SMRC;
$0.00 for disability certificates prepared by SMRC;
$2,560.00 for the three psychological assessments;
$1,000.00 for the first occupational therapy assessment of Sophie Bielawski;
$1,000.00 for the second occupational therapy assessment of Sophie Bielawski. In regard to the assistive devices, they are not assessments or reports and I am not allowing this part of the claim;
$775.00 for the reports of Dr. Pruzanski;
$800.00 for the radiology review prepared by AIAC;
nothing is allowed for the kinesiology report or the report prepared by Dr. Savvidou as I was unable to locate them in the materials.

The total balance owing for the seventeen reports and sixteen treatment plans is $13,478.10.

Re: OHIP

Pembridge argued that SMRC had charged both OHIP and the Insurer when Ms. Lesniak attended at SMRC for intermediate assessments. The Insurer directed me to Exhibit I-3, Tab 46 (page 14), where over twenty charges are made to OHIP during a month-long period by Dr. Marciniak in regard to visits by Ms. Lesniak to his clinic. Approximately half the charges are for psychological therapy. Clearly, there is nothing improper about those charges as no payments have been billed to the Insurer in regard to psychological treatments. In fact, these entries support Dr. Marciniak's testimony that he saw Ms. Lesniak on numerous occasions and was required to deal with her psychological issues and complaints.

Despite Pembridge's suggestions, I am not convinced that Dr. Marciniak was charging both OHIP and the Insurer separately for the same intermediate assessments or therapies. Clearly, Dr. Marciniak saw Ms. Lesniak on numerous occasions over the course of her treatment, but this was consistent with their testimony. Arbitral case law has held that the cost of an assessment obtained to advance an accident benefit claim is not recoverable from OHIP⁹. Dr. Marciniak's evidence was that he billed OHIP for some services for which he had not billed the Insurer and vice versa. I accept this evidence.

Re: $4,255.00 Misdirected Payment

Pembridge adduced evidence that they had paid Ag-Med $4,255.00 in error when they had in fact been attempting to make a payment to the DAC assessment centre. Dr. Marciniak testified that Ag-Med had indeed received this payment and that the amount had been credited to the Pembridge account. I find that this amount had been paid to Ag-Med, but the amounts claimed in this application do not reflect this payment because no credit has been attributed to Pembridge for it. Therefore I am crediting Pembridge with this payment of $4,255.00 against any amount I am ordering.

Is Pembridge liable to pay a special award pursuant to section 282(10) of the Insurance Act, R.S.O. 1990, c. I.8 because it unreasonably withheld or delayed payments to Ms. Lesniak?

Section 282(10) of the Insurance Act provides the authority to grant a special award:

If an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which the insured person is entitled under the Statutory Accidents Benefits Schedule, shall award a lump sum t of up to 50 per cent of the amount the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Unreasonable behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, or immoderate.¹⁰

The most compelling argument raised by Ms. Lesniak in the present matter is that Pembridge unreasonably withheld or delayed payments when they terminated medical benefits in the face of substantial evidence that Ms. Lesniak continued to suffer significant symptoms as a result of the motor vehicle accident.

Although there was evidence to support Ms. Lesniak's position in the form of numerous reports prepared by SMRC and others, there was also significant evidence in the form of the DAC report and various Insurer's Medical Examinations to counter Ms Lesniak's argument. Based on the testimony of Marcia McEwan, the claims adjuster from Pembridge, and the medical evidence amassed by Pembridge, I was not convinced that the Insurer's behaviour in relying upon its own medical reports was unreasonable. I also noted that the Insurer had indeed sent Ms. Lesniak to Insurer's medical examinations in response to some of the reports prepared by Dr. Marciniak. Therefore I do not find that a special award is warranted in this case.

5. Interest

Ms. Lesniak is entitled to interest on all overdue payment of benefits, pursuant to section 46(2) of the Schedule.

EXPENSES:

I find that Ms. Lesniak is entitled to her expenses for this hearing. The parties are encouraged to agree on the amount of the expenses. If they are unable to do so, they may apply for an expense hearing before me, according to the provisions of the Dispute Resolution Practice Code.

June 2, 2006

Edward Lee Arbitrator

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