Lourdes Urgiles v. Allstate Insurance Company of Canada, 2007 ONFSCDRS 205

Financial Services Commission of Ontario

Neutral Citation: 2007 ONFSCDRS 205

Appeal P06-00017

OFFICE OF THE DIRECTOR OF ARBITRATIONS

LOURDES URGILES Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA Respondent

BEFORE: David Evans

REPRESENTATIVES: Richard Gordon for Ms. Urgiles John D. Dean for Allstate

HEARING DATE: January 29, 2007, with additional written submissions provided through to March 8, 2007

APPEAL ORDER

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

1. The appeal of the arbitrator’s order, dated May 8, 2006, is dismissed.

2. Allstate Insurance Company of Canada is awarded appeal expenses of $3,000.00.

3. Mr. Richard Gordon will personally pay those expenses, pursuant to s. 282(11.2) of the Insurance Act.

October 26, 2007

David Evans Director’s Delegate

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ms. Urgiles appeals the arbitrator’s decision which awarded her only some of the statutory accident benefits she had claimed under the SABS–1996.¹

II. BACKGROUND

As set out by the arbitrator, following the accident of November 5, 2003, Ms. Urgiles saw her family doctor, Dr. Sussman, complaining of pain in her neck and back. He diagnosed muscle strain and prescribed Tylenol and anti-inflammatory medication. He also recommended therapy. She initially saw Dr. Cabrasi, a chiropractor, for an assessment and some treatment. She then saw Dr. Tong who took x‑rays, which disclosed no significant problem but showed some muscle spasm. At his recommendation, Ms. Urgiles commenced chiropractic, massage and other therapy. She did approximately eight weeks of this therapy with Dr. Harwinder Kalsi at Four Winds Physiotherapy Clinic (Four Winds) and then continued with Dr. Stephen Simone at Gateway Rehabilitation and Health Institute (Gateway) twice per week. She claimed payment of $5,111 for her treatment at Four Winds and of $4,679.75 for her treatment at Gateway.²

Ms. Urgiles testified that she had been steadily employed before the accident. For sixteen years, she had been a machine operator at a factory, but had been promoted to a supervisory position just three weeks before the accident. After the accident, Ms. Urgiles never returned to work and quit her job finally in November 2004. She claimed income replacement benefits (IRBs) of $341.90 per week from January 21, 2004 and ongoing.

Ms. Urgiles testified before the arbitrator that, because of the accident, she has had persistent neck and low back pain, numbness, ringing in her ears, memory problems, changes in her mood and dizziness, in addition to suffering sleep interruptions on a regular basis. Furthermore, she said that she has experienced limitations in her ability to do housekeeping, going out with her children, her personal relationship with her husband, climbing stairs and walking, and her social life. She claimed payments of $2,765 for housekeeping expenses from December 18, 2003 to June 25, 2004.

Allstate paid Ms. Urgiles’ IRBs of $341.90 per week to January 20, 2004 – a period of less than three months. It terminated benefits based on the conclusions of Dr. C.B. Paitich, an orthopaedic specialist, who examined Ms. Urgiles on December 10, 2003. In his report, Dr. Paitich concluded that the detected impairment was not disabling either with respect to housekeeping or occupation.

The only medical evidence presented by Ms. Urgiles was that of Dr. John Baird, chiropractor, who conducted two assessments, one on January 9, 2004 and set out in a report dated March 3, 2004, and again on January 31, 2005 and set out in a report signed March 16, 2005. However, the arbitrator found that Dr. Baird’s evidence was directed primarily to identifying an impairment, but offered no opinion and made no conclusions about Ms. Urgiles’ ability to work or perform the other tasks in her life. I note that Ms. Urgiles also claimed for the costs of Dr. Baird’s March 2004 impairment assessment ($2,156.50) and his March 2005 Digital Motion X-ray Analysis ($2,084).

With respect to the IRBs, the arbitrator noted Ms. Urgiles’ testimony that her new supervisory job was lighter in physical requirements than her previous job as a sewing machine operator. The arbitrator reviewed the three disability assessment centre (DAC) assessments carried out through October 6, 2004. The first DAC assessment, a Disability IRB Assessment Report by the York Active Rehab DAC, took place over three days, February 20, 24 and March 8, 2004. The DAC orthopaedic specialist, Dr. Chris Watson, noted that neither the symptomatology nor the restricted cervical movements would prevent Ms. Urgiles from being employed with reasonable training and some modification. The arbitrator found it significant that Ms. Urgiles never attempted a return to work with training or modification even though her employer apparently informed her that her job was available for her when she wanted to return.

Although Dr. Sal Viscomi, the chiropractor who conducted the two Med-Rehab DAC assessments at the York Active Rehab DAC (one on August 10, 2004, and the other on September 23, 2004), found Ms. Urgiles to be credible with respect to her reports of pain, he found very little pathology. He concluded that her chiropractic therapy should have been discontinued because it did not provide any significant benefit and it may have been reinforcing the belief that her pain was caused by the diagnosis. Therefore, he recommended a change in her treatment – but there was none.

The arbitrator concluded that Ms. Urgiles had not demonstrated substantial inability to perform her work tasks, especially given the change in her job.

With respect to the medical and rehabilitation benefits claimed pursuant to s. 14 of the SABS, the arbitrator dismissed the Four Winds claims because she found, based on the testimony of Dr. Harwinder Kalsi, chiropractor, formerly of Four Winds, that its invoices were untrustworthy and unreliable evidence of the expenses for treatment. As for the Gateway treatment expenses, Dr. Simone testified that he largely provided palliative care. Although as the arbitrator noted, palliative care may be recoverable in certain circumstances, she found that in this case many of the assessors determined that chiropractic and other passive therapies were not a good long-term treatment option for Ms. Urgiles. She noted that even Dr. Simone agreed and indicated that in other circumstances he would have encouraged a physical fitness regimen and lifestyle adaptation, similar to the kinds of recommendations made by the med-rehab DAC assessor, Dr. Viscomi. Accordingly, the arbitrator awarded expenses at Gateway only up to the point where Dr. Viscomi recommended physical training in his August 2004 assessment.

With respect to housekeeping, Ms. Urgiles testified that her aunt, Olinda Calle, had to assist her with housekeeping chores in the months following the accident. The arbitrator found that Ms. Calle was a credible witness and was satisfied that she assisted Ms. Urgiles with her housekeeping tasks for a significant period of time. However, the arbitrator found that, as was the case with the IRB claim, Ms. Urgiles’ medical evidence was directed primarily to identifying an impairment, but contained no opinion and made no conclusions about her ability to perform her housekeeping tasks. On the other hand, the arbitrator was unclear why the insurer had terminated the benefit immediately on the basis of the report by Dr. Paitich in mid-December 2003, whereas it paid the IRBs to January 20, 2004. Accordingly, she awarded housekeeping through to that date.

The arbitrator then considered and rejected the two assessments by Dr. Baird, claimed under s. 24 of the SABS–1996. The arbitrator described the first assessment as follows:

The first test Dr. Baird conducted consisted of stress study radiographs of Ms. Urgiles’ cervical spine. He found a loss of motion segment integrity (LMSI) (Dr. Baird referred to this interchangeably as instability) of 3.5 mm at the C4 and C5 vertebrae. An LMSI is defined as an antero-posterior motion or slipping of one vertebra over another greater than 3.5 mm of a cervical vertebra.³ It appears, then, Ms. Urgiles showed signs of some degree of impairment but even Dr. Baird admitted that it was a borderline impairment. Dr. Baird recommended the clinical interventions of chiropractic care and massage therapy to manage the injury. He also suggested that rehabilitation in a multi-disciplinary facility offering pain management could be helpful. Finally, Dr. Baird recommended re-evaluation of Ms. Urgiles’ impairment with digital radiographic analysis, at the point of maximum therapeutic benefit, to confirm the status of the C4 and C5 vertebrae.⁴

However, the arbitrator found that Dr. Baird’s initial finding of borderline impairment was of no surprise to Ms. Urgiles’ treating practitioners, nor did their treatment change as a result of this assessment. Furthermore, several of the practitioners doubted the diagnosis expressed by Dr. Baird. Finally, the arbitrator found that the assessment was premature, as Dr. Baird himself suggested that an MRI be carried out to confirm the diagnosis. The arbitrator found it “unreasonable, if not, in fact, contradictory, to assert that this kind of assessment provides a benefit not realizable from other, more accepted forms of assessment, like an MRI, and then recommend an MRI to confirm or add to the diagnosis.”⁵

The second assessment, referred to as a “DMX assessment,” was sent to a fast-track DAC, again at York Active Rehab, where Dr. Irving Pisarek, chiropractor, found it to be neither necessary nor reasonable because “the fee was exorbitant and it was not an appropriate procedure in a case where there were other less expensive options available. While a comprehensive imaging assessment is a good idea, the second assessment was too comprehensive an imaging assessment for this type of case.”⁶

The arbitrator concluded that, as the assessments did not really assist either with diagnosis or treatment, they were not reasonably required in connection with any of the benefits claimed by Ms. Urgiles or the preparation of a treatment plan or disability certificate and Allstate was not required to pay them, adding:

In fact, having heard all of the evidence, it is not clear to me for what purpose Mr. Gordon⁷ referred Ms. Urgiles to Dr. Baird for these assessments. Neither Dr. Baird’s diagnosis nor his simple recommendation for treatment appear to have added any value to resolution of Ms. Urgiles’ case. Furthermore, Dr. Baird’s tests, in my view, proved to be premature and excessive in nature given the impairments found in Ms. Urgiles’ case.⁸

Finally, the arbitrator found that Ms. Urgiles was not entitled to a special award but was entitled to interest on the outstanding benefits.

III. ANALYSIS

This appeal has no merit. The appellant wants me to revisit the findings of the arbitrator and substitute my own – which is not my role, unless, for instance, the arbitrator made findings in the absence of evidence. In this case, however, she had ample evidence to support her findings, as set out clearly in her decision. Having said that, I will briefly review Ms. Urgiles’ rather lengthy submissions, which focus almost exclusively on the merits of Dr. Baird’s assessments.

Ms. Urgiles submits that the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, are incorporated by reference into the SABS, relying on statements to that effect in Desbiens v. Mordini, 2004 CanLII 41166 (S.C.J.). The arbitrator therefore erred because the Guides supposedly provide for the use of x-ray images in assessing LMSI. However, that incorporation is only with respect to the determination of catastrophic impairment as set out in ss. 2(1.1) and (1.2) of the SABS–1996. Those Guides were not incorporated to the extent suggested by Ms. Urgiles. More fundamentally, the arbitrator found that the assessments were of no practical use to anybody, which was a finding she was entitled to make on the evidence in front of her. She correctly addressed herself to the law and applied it, based on the evidence.

Ms. Urgiles submits that the first assessment should have been deemed approved because it was required in an emergency. Although s. 24 assessments require prior approval, s. 24(1.2)1. provides that prior approval is not required “in circumstances in which an immediate risk of harm to the insured person or a person in the insured person’s care makes obtaining the prior approval of the insurer impractical.” Considering that other practitioners did not even agree with Dr. Baird’s diagnosis, and that Ms. Urgiles had already been examined by other practitioners who saw no such danger, this submission is without merit and Allstate was under no compunction to pay.

As for the rest of the submissions, they all revolve around whether the arbitrator erred in preferring one chiropractor over the other. That was clearly within her role to assess their evidence, and I find nothing in her decision or the evidence to suggest that she arrived at her decision in a capricious way. For instance, Ms. Urgiles submits that the LMSI findings were “uncontradicted” and that the evidence she obtained was stronger and more helpful than the DAC reports. Aside from the fact that an arbitrator is not required to automatically accept any evidence simply because it is supposedly “uncontradicted,” the arbitrator committed no error in preferring the DAC reports. She was appropriately exercising her judgment. Similarly, Ms. Urgiles submits that the arbitrator should have discounted the evidence of Dr. Pisarek, the chiropractor for the fast-track DAC, because he is not an expert in the type of assessment Dr. Baird performed. Again, it was the arbitrator’s role to assess his evidence, and I see no reason to doubt her conclusions.

After the conclusion of the appeal hearing, Ms. Urgiles made further submissions with respect to the decision in Satputhiran and State Farm Mutual Automobile Insurance Company, (FSCO A05‑002794 and A05‑002795, February 20, 2007). In that case, the arbitrator ordered the insurer to pay for certain treatments, despite finding they were not reasonable or necessary, because it had not followed the provisions of s. 38. However, I agree with the submissions of Allstate that the case is distinguishable, as Allstate in this case did follow the provisions of s. 38.

In conclusion, I find the arbitrator arrived at a reasoned decision based on the evidence. The appeal is dismissed.

IV. EXPENSES

Both parties made submissions about entitlement to and the amount of expenses. Mr. Dean, counsel for Allstate, presented his bill of expenses at the hearing. Mr. Gordon prepared his bill of expenses and made submissions with respect to them in writing after the conclusion of the hearing.

Allstate was successful on the appeal and is entitled to its expenses. Most of its bill relates to counsel’s preparation and attendance at the hearing, at the Legal Aid rate. The bill was prepared before the hearing and was initially for about $2,800, including preparation time of about 10 hours for Mr. Dean and 8.6 hours for the junior counsel, as well as two hours for the hearing. Since Mr. Gordon insisted on reading through all his written submissions, the hearing lasted longer than expected, so Mr. Dean amended the bill to be about $3,050. I award expenses of $3,000.

Allstate also submitted that the representative and not Ms. Urgiles should bear the costs of the appeal, pursuant to s. 282(11.2) of the Insurance Act:

Liability of representative for costs

(11.2) An arbitrator may make an order requiring a person representing an insured person or an insurer for compensation in an arbitration proceeding to personally pay all or part of any expenses awarded against a party if the arbitrator is satisfied that,

(a) in respect of a representative of an insured person, the representative commenced or conducted the proceeding without authority from the insured person or did not advise the insured person that he or she could be liable to pay all or part of the expenses of the proceeding;

(b) in respect of a representative of an insured person, the representative caused expenses to be incurred without reasonable cause by advancing a frivolous or vexatious claim on behalf of the insured person; or

(c) the representative caused expenses to be incurred without reasonable cause or to be wasted by unreasonable delay or other default.

Opportunity to make representations

(11.4) An order under subsection (11.2) shall not be made unless the representative is given a reasonable opportunity to make representations to the arbitrator.

Although Mr. Gordon objected at the hearing that he had only been advised of this request a few days before the appeal hearing, he was allowed to make further representations after the hearing, as already noted. Accordingly, pursuant to s. 282(11.4), I have jurisdiction to make an order under s. 282(11.2).

I take note of Mr. Gordon’s submissions made at the appeal hearing. He submitted that what he wanted was a decision that recognizes the use of flexion/extension x-rays to assess ligamentous injuries as set out in the AMA Guides since they are part of the legislation by reference. He also would like a decision that informs the public about the risk of harm and the contraindications to applied forces to the spine, in which the assessments by Dr. Baird would clearly play a part. In short, Mr. Gordon was seeking to use the dispute resolution system to validate an assessment method. Mr. Gordon – who had to withdraw from the original arbitration hearing because of his conflict of interest respecting Dr. Baird’s assessments⁹ – clearly stated his personal agenda to have the technique in which he has had an interest validated. I find that in pursuing this appeal he unreasonably caused expenses to be incurred and is thus personally liable for paying the expenses awarded. To that extent, I agree with the submissions Mr. Gordon made in his letter of February 22, 2007: “It is patently unfair for Mrs. Urgiles to pay for either Allstate’s expenses or even her own.”

October 26, 2007

David Evans Director’s Delegate

Footnotes

1. 1The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended. In a further decision dated November 16, 2006, the arbitrator ordered that the parties should bear their own expenses of the arbitration proceeding.
2. 2I note that Ms. Urgiles was injured in a second motor vehicle accident on December 17, 2004. A claim for approximately $14,000 in treatment plans from Gateway was recently rejected in Urgiles and Allstate Insurance Company of Canada, (FSCO A05–002563, March 19, 2007).
3. 3See Exhibit 22. [Footnote in the original decision.]
4. 4Arbitration decision, p. 12.
5. 5Arbitration decision, p. 13.
6. 6Ibid.
7. 7Ms. Urgiles’ former representative at the arbitration hearing, although he represented her at the appeal hearing.
8. 8Ibid.
9. 9I note that a claim for assessments by Dr. Baird was also at issue in Satputhiran – where Mr. Gordon was also the representative – but the claim was allowed to be withdrawn.