Financial Services Commission of Ontario

Commission des services financiers de l'Ontario

Neutral Citation: 2007 ONFSCDRS 191

Appeal P06-00008

OFFICE OF THE DIRECTOR OF ARBITRATIONS

PILOT INSURANCE COMPANY Appellant

and

JAGDEEP RATTAN Respondent

BEFORE: David Evans

REPRESENTATIVES: Joseph Griffiths for Pilot Insurance Company Stephen Braithwaite for Ms. Rattan

HEARING DATE: October 19, 2006

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Subject to paragraph 2, the appeal is dismissed and the arbitration order dated January 18, 2006 is confirmed.
Pilot Insurance Company is entitled to deduct the amount it paid for the work conditioning program that Ms. Rattan received at Sportsplex Rehab from the cost of the treatment plan dated September 22, 2003. If the parties cannot agree on the amount, within 30 days of this decision, they may request an appearance before me to determine it.
If the parties are unable to agree about expenses of the arbitration and the appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

October 5, 2007

David Evans Director's Delegate Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Pilot Insurance Company (Pilot) appeals the arbitrator's order of January 18, 2006. Pursuant to the SABS–1996,¹ the arbitrator awarded Ms. Rattan the expenses of two treatment plans dated September 22, 2003 and October 29, 2003, as well as housekeeping benefits from May 23, 2003 to September 10, 2003. Pilot also seeks its expenses of the appeal and the arbitration.

II. BACKGROUND

Ms. Rattan was injured in a motor vehicle accident on May 23, 2003, in which she suffered soft tissue injuries to her back. She received income replacement benefits until December 29, 2003, when she returned to work. Pilot disputed four of the seven treatment plans submitted by Mr. I.A. Qureshi, a physiotherapist at Total Care Management (TCM), two of which were submitted before and two after Ms. Rattan's return to work. She also claimed housekeeping benefits for the two years after the accident at the maximum $100 per week.

The arbitrator first set out the history of the treatment plans, which involved both passive and active treatment. Plans 1 and 2 (May 28 and August 5, 2003) were approved by Pilot — although plan 2 was "deemed" approved because Pilot failed to give a dispute notice. Pilot disputed plan 3 of September 22, 2003, referred to as the "first disputed plan" by the arbitrator, and plan 4 of October 29, 2003, the "second disputed plan." The kinesiologist and the physiotherapist who prepared the Medical and Rehabilitation Designated Assessment Centre (Med-Rehab DAC) report, dated December 18, 2003,² found the plans unreasonable and unnecessary (except for a work conditioning component in plan 3 that was performed at Sportsplex Rehab, as discussed below). Like treatment plan 2, plan 5 (December 9, 2003) was also deemed approved. Finally, Pilot disputed plans 6 and 7 (March 25 and May 25, 2004), and the Med-Rehab DAC of June 14, 2004, agreed they were not reasonable and necessary, as did the arbitrator.

The arbitrator found in favour of plans 3 and 4. He commented that he found it "perplexing" that Pilot challenged plans 3 and 4 but failed to challenge plan 5, even though all three recommended physical therapy and exercises. In any event, he found that the December 2003 Med-Rehab DAC report did not provide an adequate foundation for Pilot's position. The arbitrator found that the kinesiologist's opinion was of no assistance because she did not understand the question she was required to answer. The arbitrator found that, although the physiotherapist's opinion was directed to the question she was required to answer, it was an "educated guess" and "highly speculative." The arbitrator found a functional abilities examination (FAE), conducted by a kinesiologist, and an insurer's examination (IE), conducted by a chiropractor, on September 18, 2003, "did not deny the existence of Ms. Rattan's ongoing problems," despite their finding that she needed no further treatment. He also found that Mr. Qureshi's treatment plans provided positive support for Ms. Rattan's position. Accordingly, he gave the information in the treatment plans greater weight than the opinions expressed in the FAE and IME reports dated September 18, 2003, and the Med-Rehab DAC report dated December 18, 2003, and awarded those expenses.

With respect to the housekeeping claim, the arbitrator found the expense claim forms completely unreliable. However, he accepted that Ms. Rattan needed housekeeping assistance based on an in-home assessment of the kinesiologist, Ms. Sylvia Atkinson (May 30, 2003), conducted on behalf of Ms. Rattan, and three in-home assessments conducted by an ergonomist named Ms. Nancy Vranic on behalf of Pilot. Based on his review of the reports, he determined the duration and the amount of assistance required, finding that Ms. Rattan was able to return to her pre-accident housekeeping activities by September 10, 2003. As to the housekeeping benefit rate, the arbitrator noted a number of examples of the general unreliability of the expense forms. He held:

Nevertheless, the date of submission of the first expense form, June 6, 2003, confirmed that Ms. Rattan was made aware of her right to claim housekeeping benefits soon after the accident. I do not, therefore, doubt that she received, and undertook to pay some member of her family to provide, housekeeping services at least equivalent to those which I have determined she required. To that extent, I conclude that Ms. Rattan incurred reasonable and necessary housekeeping expenses as a result of the accident.

The arbitrator awarded benefits at $7.14 an hour based on the hours he calculated from the reports, but due to the unreliability of the information he found interest did not start to run until the end of her period of eligibility on September 10, 2003.

III. ANALYSIS

The Disputed Treatment Plans

Pilot submits that the arbitrator made a reversible error if one considers his findings cumulatively. Pilot submits that the arbitrator erred in commenting on its failure to challenge plan 5, as that is irrelevant in determining whether plans 3 and 4 should have been funded. It submits that the arbitrator erred in criticizing the report by Ms. Mark, the kinesiologist, especially regarding her language, but was less strict with Mr. Qureshi, who had not even provided a recent assessment. It submits that the arbitrator dismissed the report by Ms. Van Wart, the physiotherapist, merely because of the passage of time. It submits that in his review of these assessments, the arbitrator appears to have gone out of his way to do the applicant's job in finding flaws in them, which was unfair. It submits that, in preferring Mr. Qureshi's treatment plans over the DAC and insurer assessments, the arbitrator appears to have started from the premise that the treatment plans must be reasonable and necessary because they were submitted.

I do not find reversible error. The arbitrator's comment about Pilot's failure to challenge plan 5 was made only in passing, and considering that he devoted several pages to assessing and weighing the various reports, I find nothing turned on it. As to Pilot's other submissions, they essentially reflect its disagreement with the findings the arbitrator made on the evidence before him. More to the point, I reject the idea that the arbitrator is limited to considering the evidence based on the submissions. Rather, he is entitled to look at all of the evidence and consider its quality as well as its quantity. Turning to the particular submissions, I note that with respect to Ms. Van Wart's physiotherapy report, while little more than five weeks separated plan 4 (October 29, 2003) and the assessment (December 4, 2003), the arbitrator's concern was not just with the passage of time but also with the effect of the treatment Ms. Rattan had received on the reliability of the assessment. That is what I take to be the meaning of the arbitrator's comment about the speculative nature of the assessment. Similarly, the arbitrator was entitled to parse Ms. Mark's kinesiology report to see if it addressed the issues to his satisfaction. There is no rule that an arbitrator is prevented from considering the content of a treatment plan itself in determining its reasonableness and necessity, which is what the arbitrator did here. Considered as a whole, I do not read his decision as finding that treatment plans are reasonable and necessary unless proved otherwise by the insurer.

Accordingly, Pilot's appeal of the award of plans 3 and 4 is rejected, except in one respect. The parties agree that Pilot is entitled to a deduction from the cost of plan 3 for the work conditioning program that the DAC found reasonable and necessary and that Pilot funded at Sportsplex Rehab.

The Housekeeping Benefit

Pilot submits, as it did with respect to the treatment plans, that the arbitrator erred in his criticism of the insurer's reports. Pilot suggests as a legal principle that, where one party files a report and the other party does not cross-examine on it or files no competing reports, the unopposed evidence should be accepted at face value. However, as already discussed, the arbitrator's role was not so limited. His role was to examine the sufficiency and strength of the evidence, and he was not limited to relying on only one report or the other. In this case, the arbitrator carefully reviewed and compared the reports of both Ms. Aktinson, the kinesiologist who prepared a report for Ms. Rattan, and Ms. Vranic, the ergonomist who prepared several reports for the insurer. In fact, he accepted Ms. Vranic's conclusion that Ms. Rattan needed no further housekeeping assistance beyond September 10, 2003. However, he also adjusted the amount of housekeeping that he found Ms. Rattan reasonably required after considering the report of Ms. Atkinson. He rejected the expense forms filed by Ms. Rattan with respect to the amount of housekeeping needed, and effectively awarded $100 per week ($7.14 x 14 hours) from May 23, 2003 to July 30, 2003 and $50 per week ($7.14 x 7 hours) from July 31, 2003 to September 10, 2003. This was considerably less than the amount claimed by Ms. Rattan, who had sought $100 a week for the full two years post-accident.

Pilot submits that the arbitrator erred in that, despite finding the housekeeping expense forms completely unreliable, he found Ms. Rattan was still entitled to housekeeping. That is, Pilot submits, despite the lack of any reliable evidence of services received, the arbitrator simply assumed Ms. Rattan would have paid somebody to do something. However, while the arbitrator could have stated it more directly, it is clear from the context that he found no glaring difficulties with the credibility of the witnesses that housekeeping was performed for Ms. Rattan. That assessment of credibility is a key arbitral finding, and is not for me to second-guess absent an error in the fact-finding process or other error of law. In any event, the evidence from the reports merely assisted in his determination of the amount of housekeeping. In these circumstances, I do not find the arbitrator erred in awarding Ms. Rattan housekeeping benefits.

Accordingly, although the award of housekeeping benefits may have been generous, the insurer's appeal of the housekeeping benefits award is denied.

IV. EXPENSES

If the parties are unable to agree about expenses of the arbitration and this appeal, a hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.