Elena Borissenko v. RBC General Insurance Company, 2007 ONFSCDRS 152

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2007 ONFSCDRS 152

FSCO A05-002801

BETWEEN:

ELENA BORISSENKO

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before: Richard Feldman

Heard: May 14, 2007, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Meenaz Jaffer, student-at-law, for Ms. Borissenko Darrell March for RBC General Insurance Company

Issues:

The Applicant, Elena Borissenko, was injured in a motor vehicle accident on January 19, 2005. She applied for and received statutory accident benefits from RBC General Insurance Company (“RBC”), payable under the Schedule.¹ Disputes arose between the parties concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation and Ms. Borissenko applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The hearing of this matter was held on May 14, 2007. The only witness to testify at the hearing was the Applicant. She was assisted at the hearing by an interpreter in the Russian language.

At the outset of the hearing, the Applicant (through her representative), requested that she be permitted to withdraw her claim for caregiver benefits, payments for housekeeping and home maintenance services and claim for a special award. The Insurer did not oppose this request on the condition that it be permitted at some point to speak to the matter of its expenses related to the issues that were being withdrawn. On this condition, I granted the Applicant’s request.

The parties agreed that the remaining issues in this hearing are as follows:

Pursuant to section 14 of the Schedule, is Ms. Borissenko entitled to receive a medical benefit for treatment provided by Prime Health Recovery Centre pursuant to a treatment plan (Form OCF-18) from Dr. Larry Feldman dated July 26, 2005?
Pursuant to section 24 of the Schedule, is Ms. Borissenko entitled to payment in the amount of $869.50 for the cost of an in-home assessment conducted by Dr. Jeff Sole (chiropractor) of Century Assessment and Diagnostic Centre on April 5, 2005 and the report resulting therefrom?
Is Ms. Borissenko entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is RBC liable to pay Ms. Borissenko’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Ms. Borissenko liable to pay RBC’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

Pursuant to section 14 of the Schedule, Ms. Borissenko is entitled to receive $502.00 for treatment provided by Prime Health Recovery Centre pursuant to a treatment plan (Form OCF-18) from Dr. Larry Feldman dated July 26, 2005.
Ms. Borissenko is entitled to interest for the overdue payment of this benefit pursuant to section 46(2) of the Schedule.
Ms. Borissenko is not entitled to payment for the cost of an in-home assessment conducted by Dr. Jeff Sole (chiropractor) of Century Assessment and Diagnostic Centre on April 5, 2005 and the report resulting therefrom.
The decision on expenses is deferred at the request of the parties.

EVIDENCE AND ANALYSIS:

Cost of Treatment (s. 14)

(a) Overview

Section 14 of the Schedule requires an insurer to pay an insured person for reasonable and necessary medical expenses incurred by or on behalf of the insured person as a result of an accident.

In this case, the Applicant received treatment for her impairments at Prime Health Recovery Centre (“Prime Health”). Prime Health submitted to RBC the following four treatment plans:

Plan No.	Date	Amount
1	February 14, 2005	$2,532.50
2	April 4, 2005	$2,012.00
3	June 6, 2005	$1,232.00
4	July 26, 2005	$1,082.00

The first three plans were approved by RBC and were paid for in full. In fact, for the period up to July 25, 2005, Prime Health provided and billed for services in excess of those described in its first three treatment plans.

RBC denied the fourth treatment plan. It is only the treatment that was provided pursuant to that fourth plan (dated July 26, 2005) that is in dispute.

The services that were actually provided by Prime Health under that fourth plan are as follows²:

Date	Service	Amount Charged
July 26, 2005	Assessment	$ 120.00
	Follow-up Report	$ 90.00
	Completion of Treatment Plan	$ 62.00
August 4, 2005	Massage Therapy	$ 45.00
	Functional Exercise Program	$ 70.00
August 20, 2005	Massage Therapy	$ 45.00
	Functional Exercise Program	$ 70.00
TOTAL		$ 502.00

This fourth plan represented a continuation (but a tapering off of) the type of treatment that Prime Health had been providing since February 2005 (and that had been approved by RBC under the first three plans).

On or about August 10, 2005, RBC denied the fourth treatment plan. Shortly thereafter, RBC scheduled a Medical Rehabilitation DAC assessment of the Applicant to determine whether the proposed treatment was reasonable and necessary. At the request of the Applicant, the DAC assessment was postponed several times. The Applicant finally attended for the Medical Rehabilitation DAC on November 11, 2005 but she refused to do many of the required tests. Ms. Borissenko testified that she refused to do some of the tests because: (1) she had a headache and was afraid that the activities she was being asked to do might make the headache worse; (2) she did not feel the tests were necessary; and (3) she did not want to waste her time. RBC has asked that I draw a negative inference from the Applicant’s failure or refusal to fully participate in this DAC assessment.

(b) Was the treatment proposed in the treatment plan of July 26, 2005 reasonable and necessary?

The onus is upon the Applicant to establish that the medical expenses she incurred as a result of the accident were reasonable and necessary.

In the Follow-up Progress Report that accompanied the fourth treatment plan, Dr. Feldman indicates that Ms. Borissenko reported that she was still suffering from intermittent headaches, that she was still experiencing pain in her neck and upper and lower back and that this pain was aggravated by physical activity. Nevertheless, the pain was described by Ms. Borissenko as being relatively mild and she demonstrated that she could perform exercises without risk of aggravating her injuries. Dr. Feldman recommended tapering off the treatments to one session every two weeks (for a total of six more sessions) with emphasis on restoring muscle length, strength and endurance and restoring joint range of motion to pre-accident functional capacity. He proposed therapeutic massage, exercises, chiropractic treatments and other forms of therapy. Based upon this report, and in the absence of any evidence to the contrary, I infer that Dr. Feldman was of the opinion that the treatment he proposed in the fourth treatment plan was reasonable and necessary for the Applicant.

Ms. Borissenko testified that the treatment she received at Prime Health helped to reduce her pain, to reduce the number of headaches she suffered and to increase her functionality. She stopped going for treatment about seven months after the accident (i.e., in August 2005) because she felt better and no longer required treatment. She did not claim that she stopped going for treatment because of RBC’s denial of the fourth treatment plan or because she could not afford treatment.

I find that by the end of August 2005, the Applicant was no longer in need of formal treatment. This is consistent with her testimony that she was generally feeling better by that point in time and with the fact that she stopped going for treatment as of August 20, 2005. Therefore, her failure to fully participate in the DAC assessment on November 11, 2005 is not determinative of the issue at hand.

The available evidence, while by no means overwhelming, is sufficient to prove on a balance of probabilities that the medical expenses she incurred between July 26, 2005 and August 20, 2005 (pursuant to the fourth treatment plan) were reasonable and necessary. Based upon the finding that she did not require treatment after August 20, 2005, I do not find the cost of the entire treatment plan to be reasonable and necessary – only that part that was actually incurred by the Applicant.

(c) Has RBC already paid for some or all of the services in question?

RBC submits that, to the extent that any treatment provided on or after July 26, 2005 is found to be reasonable and necessary, RBC ought to be given credit for the excess amounts it paid for treatment that the Applicant received prior to July 26, 2005.

The cost of the first three treatment plans from Prime Health totalled $5,776.50. RBC submits that it paid $5,776.50. It also submits that it is entitled to credit for $1,203.00 paid by a collateral insurer for treatment of the Applicant at Prime Health. This matter has been complicated by the fact that the invoices from Prime Health are not for exactly the same services and time periods covered by the treatment plans and no witness was called from Prime Health or from the Insurer to help clarify either the amounts charged by Prime Health or the amounts paid by RBC.

Assuming, without finding, that RBC paid more than it was required to for services that RBC had approved or that it paid for services that were not approved as part of the first three treatment plans (i.e. for the period up to July 26, 2005), that would not, in my view, relieve RBC of the obligation to pay for the expense of treatment that was reasonable and necessary under the fourth treatment plan.

RBC has not paid for any of the services provided to the Applicant pursuant to this fourth treatment plan (dated July 26, 2005). I find that the Applicant incurred $502.00 for reasonable and necessary services under this plan and is entitled to recover that expense.

Assessment and Report of Dr. Sole (s. 24)

The relevant facts are not in dispute.

The Applicant was claiming caregiver benefits and payments for housekeeping and home maintenance services. To assess Ms. Borissenko’s condition and her entitlement to these benefits, pursuant to section 42 of the Schedule, RBC scheduled an in-home assessment of the Applicant to take place on March 15, 2005. Around the same time (i.e. on or about February 24, 2005), the Applicant requested that the Insurer approve a virtually identical in-home assessment pursuant to section 24 of the Schedule. RBC referred the Applicant’s request for a section 24 in-home assessment for a “fast-track” assessment at a designated assessment centre (DAC).

Dr. Mathieson of the William Osler Health Centre reviewed the relevant documents and concluded in his fast-track DAC report, dated March 14, 2005, that the requested section 24 assessment was not reasonable and necessary as it represented a duplication of the assessment that had already been arranged by RBC. RBC proceeded to have an occupational therapist (Christine Frizzell) from Independent Rehabilitation Services Inc. (IRSI) complete the section 42 assessment of Ms. Borissenko at her home on March 15, 2005.

In her report of March 29, 2005, Ms. Frizzell found that the Applicant had demonstrated that she was able to manage all pre-accident caregiving activities independently but that she required 7.25 hours per week of assistance with housekeeping. Based upon this report, RBC terminated payment of caregiver benefits (effective April 19, 2005) but paid housekeeping and home maintenance benefits in accordance with the recommendations of Ms. Frizzell. Also, in accordance with the recommendations of Ms. Frizzell, a follow-up in-home assessment was scheduled for May 9, 2005.

On April 5, 2005, despite the refusal of RBC to approve the section 24 assessment, despite the opinion of the DAC report that such an assessment was not reasonable at that time and despite the generally favourable outcome of the section 42 in-home assessment that had been done just a few weeks earlier, the Applicant proceeded to have her own in-home assessment conducted by a chiropractor (Dr. Sole) from Century Assessment and Diagnostic Centre. In his (undated) report, Dr. Sole recommends 8 hours per week of housekeeping assistance and a follow-up assessment in 2-3 months. He makes no recommendations with respect to caregiving. The cost of this report was $869.50.

The issue before me is whether, pursuant to section 24 of the Schedule, Ms. Borissenko is entitled to payment in the amount of $869.50 for the cost of the in-home assessment conducted by Dr. Sole on April 5, 2005 and the report resulting therefrom. In order to establish entitlement to this amount, the Applicant must prove, on a balance of probabilities, that the assessment and report in question were “reasonably required in connection with a benefit claimed”.

At the time this assessment was conducted and the report was prepared, there had (just 3 weeks earlier) been a virtually identical assessment. The DAC concluded that the proposed duplicative assessment was not reasonable. The Applicant adduced no evidence to explain whether the assessment by Dr. Sole was in any meaningful way different from the one conducted by Ms. Frizzell or to provide any medical reasoning for why a second in-home assessment so close in time to the first was reasonable. Dr. Sole did not testify before me.

The only argument advanced on behalf of Ms. Borissenko with respect to this matter is that an applicant has a prima facie right to obtain a section 24 assessment even if it is virtually identical to, and contemporaneous with, one being conducted at the request of an insurer (under section 42) because insurer examinations are likely to be biased and unreliable and an applicant should be able to get a second opinion from a medical professional of his or her own choice. Mr. Jaffer could not point out any specific provision of the Schedule to support this position nor could he provide me with any case law to this effect.

Had the Applicant waited until she received the report from Ms. Frizzell and then found that the assessment was somehow flawed or deficient, it may then have been reasonable to have requested funding of another assessment at that point in time. In the circumstances of this case, however, I find that the in-home assessment by Dr. Sole on April 5, 2005 and the report generated therefrom were not “reasonably required”. This part of the application is dismissed.

EXPENSES:

At the conclusion of the hearing, the parties asked that I defer the issue of entitlement to expenses of this application. If the parties cannot agree on the issue of entitlement or amount, they may now make submissions on both issues in accordance with Rule 79 of the Code.

August 8, 2007

Richard Feldman Arbitrator

Date