Neutral Citation: 2007 ONFSCDRS 164 FSCO A06-000145

BETWEEN:

SRITHARAN SELLATHAMBY Applicant

and

RBC GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Joyce Miller Heard: February 19 and March 28 and 29, 2007, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received by: April 20, 2007 Appearances: Adam Ezer for Mr. Sellathamby Darrell March for RBC General Insurance Company

Issues:

The Applicant, Sritharan Sellathamby, was injured in a motor vehicle accident on October 27, 2003. He applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ RBC denied Mr. Sellathamby's claim for payment of medical benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sellathamby 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 Mr. Sellathamby entitled to receive a medical benefit for treatment plans in the amount of $2,589, pursuant to section 14 of the Schedule?
Is RBC liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payment to Mr. Sellathamby?
Is either party entitled to their expenses in respect of the arbitration proceeding pursuant to section 282 of the Insurance Act?

Result:

Mr. Sellathamby is not entitled to receive a medical benefit for treatment plans in the amount of $2,589, pursuant to section 14 of the Schedule.
Mr. Sellathamby is not entitled to a special award.
If needed, I may be spoken to the issue of expenses within 14 days of receipt of this decision.

PRELIMINARY MATTERS

Should there be a Preliminary Issue hearing on whether an ANLI Report is a treatment plan?

At the commencement of the hearing, which was scheduled for one day on February 19, 2007, RBC requested that a Preliminary Issue be held to determine whether or not an Activities of Normal Life Intervention (ANLI) Report was a treatment plan.

For the following reasons, I ruled that a Preliminary Issue hearing was inappropriate.

The specific issue in dispute was whether Mr. Sellathamby was entitled to the costs of treatment plans prepared by Downsview Health Recovery Centre ("Downsview"). From this, it follows that the burden of proof rests with Mr. Sellathamby to show on a balance of probabilities that the expenses Mr. Sellathamby is claiming are related to treatment plans prepared by Downsview. This would include proving that the ANLI was a treatment plan. Accordingly, I found that bifurcating the hearing to rule on one of the expenses being claimed, the ANLI Report, to be inefficient on the facts of this case, as this issue could easily be dealt with in the context of the hearing as a whole. To do otherwise would result in the unnecessary duplication in the presentation of evidence.

Should late productions be excluded from the hearing?

RBC asked that the clinical records of Downsview, served on RBC on January 29, 2007, and a report by a chiropractor, Dr. Ventrella, served on RBC on February 5, 2007, 14 days before the hearing be excluded from the hearing as they were not served within the 30 day time limit set out in Rule 39 of the Dispute Resolution Practice Code.

Pursuant to Rule 39 of the Dispute Resolution Practice Code, I held that there were no "extraordinary circumstances" that justified the documents being served less than 30 days prior to the commencement of the first day of the hearing and, accordingly, I excluded these productions.

The hearing, however, did not commence on February 19, 2007, because of the time taken up by the preliminary matters. Accordingly, the hearing was adjourned to commence on March 28, 2007. On February 23, 2007, counsel for Mr. Sellathamby wrote to me, with a copy to RBC's counsel, requesting that I reconsider my order excluding Mr. Sellathamby's productions on the basis that the hearing did not commence on February 19, 2007 and that by the new date for the hearing, March 28, 2007, RBC would have had these productions in excess of 30 days.

At the commencement of the hearing on March 28, 2007, RBC objected to the productions being accepted into evidence on the basis that I had already agreed to exclude these productions. However, I found that RBC knew as far back as February 23, 2007, that Mr. Sellathamby was requesting that I reconsider my order. I found that that there would be no prejudice to RBC in admitting these documents, as they were in RBC's possession for a period of six to eight weeks prior to the commencement of the arbitration. I therefore ruled that these documents would be admitted into evidence.

BACKGROUND

Mr. Sellathamby was involved in an automobile accident on October 27, 2003. He received treatment from Downsview Health Recovery Centre ("Downsview") pursuant to three treatment plans. These plans include:

A Pre-Approved Framework Treatment Confirmation Form, dated October 27, 2003; treatment in the amount $1,600 which was paid by RBC.
A treatment plan dated January 5, 2004, prepared by Dr. Patel, a chiropractor at Downsview, in the amount of $862, which was denied by RBC.
A treatment plan dated January 19, 2005 prepared by Ms. Vaisman, an occupational therapist at Downsview, in the amount $1,250, which was denied by RBC.

Mr. Sellathamby disputed the denied treatment plans and attended a multi-disciplinary medical rehabilitation DAC on January 28 and 29, 2004. Mr. Sellathamby was examined by Dr. Oshidari, a physiatrist, and Dr. Bereznick, a chiropractor/acupuncturist. Paper review assessments were done by David Kaplun, occupational therapist, and J. Yates-Cohen, physiotherapist, on January 30, 2004 and February 13, 2004 respectively. In their report of February 26, 2004, the assessors concluded that:

The treatment plans in dispute, dated January 5, 2004 and January 19, 2005, are not reasonable and necessary.
No further recommendations for the future provision of goods and services for the claimant's treatment or rehabilitation are recommended.

Is the ANLI Assessment Report a treatment plan?

In addition to the two treatment plans in dispute, Mr. Sellathamby submits that an Activities of Normal Life Intervention ("ANLI") Assessment, dated April 15, 2004, is a treatment plan and should be considered as a denied treatment plan in this arbitration. Mr. Sellathamby relies on his interpretation of the Commission's Guideline² (the "Guideline") to support his position that the ANLI is a treatment plan and ancillary goods and services assessment report.

RBC submits that the ANLI is an assessment that occurs prior to treatment plans being created and is not, in itself, a treatment plan.

Although for the reasons given below, I have found that Mr. Sellathamby is not entitled to his claim for medical benefits, for the sake of completion I am including my finding on the issue of whether or not an ANLI assessment is a treatment plan.

For the following reasons, I find that the ANLI report is not a treatment plan.

Downsview, in its invoice for the second and third treatment plans characterizes and invoices the ANLI Report as an "Assessment" as opposed to a treatment plan. For the following reasons, I find that Downsview's characterization of the ANLI Report as an assessment is consistent with the Guideline.

It is clear from the Guideline³ that the ANLI is an assessment that is considered to be "ancillary goods or services"⁴ and may be requested "... in order to identify and evaluate areas of functional difficulty or barriers to recovery due to the WAD II or back pain and to implement strategies for recovery."

The Guideline distinguishes the "ancillary goods or services" ANLI assessment from being used for other benefits, other than medical/rehabilitation benefits, when it states: "An ANLI is not an assessment for the purpose of determining eligibility for housekeeping, attendant care or weekly benefits."

The Guideline distinguishes an ANLI assessment from a Treatment Plan, when it states "If, upon completion of the ANLI, the regulated health professional identifies a need for further goods and services, she or he will complete a Treatment Plan and submit the request to the insurer."⁵

Succinctly, while the ANLI Report does have a section which allows the assessor to "implement strategies for recovery," the Guideline clearly distinguishes the ANLI Report from a Treatment Plan and considers it to be ancillary goods and services.

Accordingly, for these reasons, I find that the ANLI Report cannot be considered to be a treatment plan for the purposes of this arbitration as it is not, as Mr. Sellathamby submits, an additional treatment provided further to the two treatment plans already in dispute, but a distinct "ancillary goods or services" assessment report.

ANALYSIS AND FINDINGS

The burden of proof rests with Mr. Sellathamby to prove on a balance of probabilities that the treatment he received was as a result of the car accident on October 27, 2003 and that this treatment was reasonable and necessary pursuant to section 14 of the Schedule.

For the following reasons, I find that Mr. Sellathamby has not met his burden of proof.

In the case of Faryna v. Chorny⁶, Justice O'Halloran made the following remarks in assessing the credibility of an interested witness, which I rely on:

... The real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

I did not find Mr. Sellathamby to be a credible witness. I did not find his story that he suffers from debilitating pain as a result of the car accident to be plausible or credible.

I do not find it plausible that a person who alleges to have been so seriously injured as a result of the car accident, that he could no longer work, and that he needed the assistance of a caregiver and housekeeper for 20 months, would not seek any medical help except for three months of treatment at Downsview following the accident. Although Mr. Sellathamby alleges he "lost his life" as a result of accident, he provided very little medical evidence to support his story.

The clinical notes and records of Mr. Sellathamby's family doctor, Dr. Andrew Lam, show that he has been Mr. Sellathamby's family doctor since May 1991. The clinical notes and records also show that Mr. Sellathamby visited Dr. Lam about a week after the car accident, on November 3, 2003. This is the first time he is seeing Dr. Lam since December 16, 2002, when he received the requisite shots for a six week trip to Sri Lanka he was taking.

In Dr. Lam's notes for November 3, 2003, he states that Mr. Sellathamby's "Past History [is] unremarkable" and that Mr. Sellathamby is working as a cook. There does not appear to be any specific reason why he was seeing Dr. Lam that day, except for a general check up. While Dr. Lam's notes show that he examined Mr. Sellathamby, there is no indication in his notes that Mr. Sellathamby was suffering from any musculoskeletal problems. Significantly, there is no indication in Dr. Lam's clinical notes that Mr. Sellathamby had told him he was in a car accident and that he was receiving treatment at Downsview for injuries received in the car accident.

About 10 days later, on November 24, 2003, Mr. Sellathamby saw Dr. Lam again. There are only two notes in Dr. Lam's clinical notes for that date. One note states: "Now –[ illegible word which appears to be the word" immune"] – to HepB." The other note is a prescription. Again, even though Mr. Sellathamby alleges he was getting treatment at Downsview for injuries received in the car accident, there is nothing in Dr. Lam's clinical notes that Mr. Sellathamby had informed his long time family doctor of his car accident and alleged injuries.

The next time Mr. Sellathamby visited Dr. Lam is over two years later, on February 25, 2006. On this day, the clinical notes indicate the reason for the visit was because Mr. Sellathamby was suffering from a "cough/cold." There were no other physical complaints to Dr. Lam. Dr. Lam notes that Mr. Sellathamby is working as a cook, contrary to Mr. Sellathamby's testimony that, three months after the car accident, he was unemployed because of his injuries from the car accident.

In his physical examination, the only symptom that Dr. Lam notes is that Mr. Sellathamby's blood pressure is elevated. Again there is no indication in Dr. Lam's notes that Mr. Sellathamby was suffering from any musculoskeletal problems.

Mr. Sellathamby saw Dr. Lam a month later, on April 26, 2006, complaining that he still had a cold which was diagnosed, by Dr. Lam, as being viral.

The next time Mr. Sellathamby saw Dr. Lam was on October 10, 2006. The reason for the visit appears to be that Mr. Sellathamby has run out of his blood pressure medication. Dr. Lam notes that Mr. Sellathamby has "recently returned from Germany" and that he was "unemployed." Again there is no mention that Mr. Sellathamby was suffering from any musculoskeletal problems.

The final entry in Dr. Lam's clinical notes and records is on January 23, 2007. There are two diagnoses in Dr. Lam's notes, one, that Mr. Sellathamby has a cough and two, that he has myopia. The words "glasses" and "optometrist" are noted. Again there is no mention that Mr. Sellathamby was suffering from any musculoskeletal problems or in such debilitating pain that he could not work. There is no mention in Dr. Lam's clinical notes of a visit Mr. Sellathamby claims he made to Dr. Lam, complaining of heel pain as a result of the accident.

Mr. Sellathamby's testimony and Dr. Lam's clinical notes and records lead me to make the following findings with respect to Mr. Sellathamby's lack of credibility.

I do not find it plausible or credible that Mr. Sellathamby, who alleges he was injured in the accident, would immediately attend at Downsview clinic, which is far from his home, based on the recommendation of someone he does not know, instead of seeing his long time family doctor who he has been seeing since 1991. Mr. Sellathamby failed to provide a reasonable, or any explanation, why he would take the advice of a stranger to attend, Downsview, a clinic he was not familiar with, instead of seeing his own family doctor who knew him very well.
I find that Mr. Sellathamby failed to provide a reasonable, or any explanation, in respect to an obvious contradiction in his testimony. Although Mr. Sellathamby testified that he attended Downsview clinic the day after the accident, the documentary evidence, however, shows that, not the next day, but on the same day as the accident, October 27, 2003, Mr. Sellathamby attended at Downsview for treatment. This is supported by a Disability Certificate signed on October 27, 2003, by a chiropractor at Downsview, Dr. Manish Patel, which described Mr. Sellathamby's injuries as "cervical spine sprains/strains WAD II; lumbar spine sprains/strains and headaches." As well, the invoices from Downsview show that Mr. Sellathamby received treatment on October 27, 2007 as well as on October 29, 2007. No explanation was given for this contradiction in Mr. Sellathamby's evidence.
I do not find it credible that Mr. Sellathamby suffered such back pain as a result of the car accident that it forced him to stop working three months after the accident. There is no objective medical evidence to support Mr. Sellathamby's testimony. Dr. Lam's clinical notes and records show that on February 25, 2006, over two years after the accident, Mr. Sellathamby was employed as a cook. His only complaint to Dr. Lam on that day was that he had a cold. If Mr. Sellathamby was in such debilitating back pain and unemployed as he alleges, it is not plausible his only complaint to the doctor on February 25, 2006 would be he had a cold.
I do not find it plausible that if Mr. Sellathamby was as injured as he claims to be and required the treatment he claims, he would not tell his family doctor he had been injured in a car accident. Although Dr. Lam's clinical notes were provided by Mr. Sellathamby, he did not offer any explanation as to why he did not tell his family doctor about his car accident at any of his half dozen visits with Dr. Lam after the accident. The most glaring omission being his visit to Dr. Lam the week after the car accident. In his clinical for that visit, Dr. Lam notes Mr. Sellathamby's "Past History [is] unremarkable".

In addition to his testimony, Mr. Sellathamby presented Dr. Patel as a witness on his behalf, as well as a report from a chiropractor, Dr. Antonio Ventrella.

I give little, if any, weight to Dr. Patel's testimony that Mr. Sellathamby treatment was reasonable and necessary. Aside from the fact that Dr. Patel failed to provide his clinical notes and records, Dr. Patel did not provide any supporting documentary evidence, (e.g., a medical report outlining why the treatment was reasonable and necessary with respect to the treatment plans in dispute) or any reasonable explanation whatsoever for his conclusion. The invoice for the treatment plans in dispute show that, except for three chiropractic manipulations and some minor treatment, (applying a muscle stimulator and hyperthermy), Dr. Patel had minimal contact with Mr. Sellathamby in respect of the treatment plans in dispute.

I give no weight to Dr. Ventrella's two and a half page report and conclusion that the treatment plans are reasonable and necessary. Dr. Ventrella never examined Mr. Sellathamby. Except for a one paragraph conclusion, Dr. Ventrella's report is completely based on a repetition of Dr. Patel's progress reports which do not provide any conclusion as to whether the treatment plans were reasonable and necessary. Accordingly, I give no weight to Dr. Ventrella's report.

Accordingly, for all of these reasons I find that Mr. Sellathamby has failed to provide any credible or cogent evidence in support of his claim for the two treatment plans in dispute. Accordingly, I find that pursuant to Section 14 of the Schedule the treatment plans in dispute are not reasonable or necessary.

Is Mr. Sellathamby entitled to a Special Award?

As I found Mr. Sellathamby not to be a credible witness and not to be entitled to any benefits, accordingly, I find that he is not entitled to a special award.

EXPENSES:

If needed, I may be spoken to the issue of expenses within 14 days of receipt of this decision pursuant to Rule 79 of the Dispute Resolution Practice Code.

August 28, 2007

Joyce Miller Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The arbitration is dismissed.
If needed, I may be spoken to the issue of expenses within 14 days of receipt of this decision pursuant to Rule 79 of the Dispute Resolution Practice Code.