Pembridge Insurance Company v. Agnieszka Lesniak, 2007 ONFSCDRS 254

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 254

Appeal P06-00021

PEMBRIDGE INSURANCE COMPANY Appellant Respondent by Cross-Appeal

and

AGNIESZKA LESNIAK Respondent Appellant by Cross-Appeal

BEFORE: Nancy Makepeace

REPRESENTATIVES: Eric K. Grossman for Pembridge Miles Obradovich for Ms. Lesniak

HEARING DATES: March 21, April 18 and April 19, 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 is allowed in part, and the cross-appeal is denied.

2. Paragraph 3 of the arbitration order, dated June 2, 2006, is revoked and replaced with the following:

Ms. Lesniak is entitled to the payment of $11,553.10 for the cost of reports and assessments pursuant to section 24 of the SABS-1996.

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

December 20, 2007

Nancy Makepeace Director’s Delegate Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal is about clinic-driven treatment and assessment claims. Pembridge appeals the arbitrator’s order that it pay $8,810 for physiotherapy, chiropractic and massage therapy, $13,478.10 for assessments and reports, and $635.99 for prescription medicines. Though Ms. Agnieszka Lesniak, who was injured in an automobile accident on September 19, 2001, testified at the arbitration hearing, and she is a nominal party in this proceeding, she settled her claims with the insurer before the arbitration hearing, apart from the medication dispute. The remaining issues in the appeal and cross-appeal relate to services provided by the Sports Medicine Rehabilitation Clinic (“SMRC”), Accident Injury Assessment Centre (“AIAC”) and Ag-Med Management and Medical Services (“Ag-Med”), which are controlled by Dr. Marc Marciniak and his wife, Dr. Agnes Troczynska.¹ The clinics’ assessment, treatment and billing practices were the main issues in the appeal.

The insurer submits that the arbitrator erred in law by relying on Dr. Marciniak’s evidence in awarding medical benefits and the cost of assessments and reports. Ms. Lesniak cross-appeals the arbitrator’s dismissal of Ag-Med’s claims for translation services in the amount of $4,050 and his order that the amount owing to SMRC should be offset by $4,255, the amount of a misdirected payment made by the insurer. I find that the arbitrator erred in law by awarding section 24 expenses with respect to certain reports by Dr. Marciniak, and accordingly the order will be varied by reducing to $11,553.10 the amount payable under section 24. I am not persuaded the arbitrator erred in law in any other respect.

II. THE ARBITRATION DECISION

The arbitrator stated the main facts concisely:

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.²

Ms. Lesniak claimed medical benefits under section 14 of the SABS-1996³ to pay for the outstanding costs of her treatment at SMRC -- $14,750 for physiotherapy from October 12, 2001 to May 25, 2003, $3,040 for chiropractic treatment from October 17, 2002 to April 1, 2003, and $3,680 for massage therapy from October 12, 2001 to April 1, 2003, less amounts already paid – as well as $635.99 for high blood pressure medication. She also claimed $4,050 for translation services provided by Ag-Med and section 24 benefits amounting to $25,110.56 for assessments and reports provided by the clinics. Finally, she sought interest on overdue payments pursuant to subsection 46(2) of the SABS-1996, a special award under subsection 282(10) of the Insurance Act and arbitration expenses under subsection 282(11) of the Act.

The insurer submitted that Ms. Lesniak’s treatment was grossly excessive for a WAD II injury⁴ and that some of her treatment was required because of pre-existing problems not related to the accident (high blood pressure, spinal stenosis, and a frozen right shoulder due to post-traumatic osteoarthritis). The insurer terminated Ms. Lesniak’s medical benefits based on the March 18, 2002 Med-Rehab DAC report prepared by Michael Drinkwater (the physiotherapist who was the primary assessor for the DAC assessment), Mr. Jeff McComb (a kinesiologist), Dr. Len Herman (a chiropractor), Dr. Thomas John, (a physiatrist) and Mr. Ross Cunningham (a registered massage therapist) at the Accident Injury Management Clinic. Dr. Marciniak continued to treat Ms. Lesniak after release of the DAC report, but subsequent treatment plans were denied.

The arbitration hearing was held over seven days in 2005. The arbitrator heard oral evidence from Ms. Lesniak, Dr. Georgia Savvidou (her family doctor), Dr. Marciniak, Mr. Drinkwater, and Ms. Marcia McEwen (the insurer’s adjuster on the file). Dr. Marciniak testified for two and a half days. The arbitration transcripts and the parties’ written submissions at the close of the hearing confirm that the insurer’s main concerns related to the clinics’ treatment, assessment and billing practices.

The arbitrator allowed the claim in part. He ordered the insurer to pay the outstanding invoices, totaling $8,810, for Ms. Lesniak’s physiotherapy, massage and chiropractic treatment until December 31, 2002, but dismissed the claim for ongoing medical benefits after that date because he accepted the insurer’s submission that “such treatments cannot go on indefinitely.”⁵ He also ordered payment of the cost of Ms. Lesniak’s high blood pressure medication because he accepted that the accident exacerbated her pre-existing hypertension. He ordered payment in the amount of $13,478.10 for treatment plans, assessments and reports, rather than the $25,110.56 claimed. He dismissed the claim for translation expenses in its entirety. He also ruled that the total amount payable would be reduced by the amount of a misdirected payment of $4,255. Finally, the arbitrator ordered interest on overdue benefits, dismissed the request for a special award, and found Ms. Lesniak was entitled to her arbitration expenses, as agreed or assessed.

III. ANALYSIS

A. Standard of Review

Subsection 283(1) of the Insurance Act states that either party can appeal the decision of an arbitrator “on a question of law.” Though framed in terms of error of law, the arbitrator’s findings of fact are at the heart of the appeal and cross-appeal in this case.

In Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003), Director’s Delegate McMahon considered the application of Equity

Waste Management of Canada v. Halton Hills (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (Ont. C.A.), and Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 (S.C.C.), to appeals under the Insurance Act. He concluded that an arbitrator’s factual inferences were reviewable “if the appellant can demonstrate the arbitrator made an error of law when he made the findings of fact on which the inference was based, or if the arbitrator made an error of law in the inference drawing process itself.” He also stated, at page 9:

Our courts have long recognized that there is an overlap between questions of law and questions of fact. Or, to put it another way, the types of mistakes a trier of fact can make when considering the evidence lie along a spectrum. Some will be characterized as simple errors of fact; others will be characterized as errors of law. State Farm alluded to the most common example of the latter in its submissions — a finding of fact made in the complete absence of supporting evidence amounts to an error of law.

In Truong and Lumbermens Mutual Casualty Company/Kemper Canada, (FSCO P03-00007, March 9, 2004), at page 4, I accepted the insurer’s submission that an arbitrator’s finding of fact amounts to an error of law if “not supported by the evidence such that a reasonable tribunal acting judicially and properly directed in law could not have made the finding in question.”

More recently, Director’s Delegate Evans discussed the standard of review in Young and Liberty Mutual Insurance Company,⁶ at pp. 7-8, as follows:

The standard in court cases is now that, absent statutory direction to the contrary, appellate courts must defer to all findings of fact made at trial unless the court is satisfied that the finding was the product of a " palpable and overriding" error: Housen v. Nikolaisen , [2002] 2 S.C.R. 235, 2002 SCC 33. Accordingly, in Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201, [2004] O.J. No. 1765 (QL), the Court of Appeal said:

After Housen , appellate courts will not review findings of fact, either primary or those drawn by inference, by asking whether on the totality of the record, those findings are reasonable. Cases from this court such as Keljanovic Estate v. Sanseverino (2000), 2000 CanLII 5711 (ON CA), 186 D.L.R. (4th) 481 at 488-489 (Ont. C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 300 and Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (C.A.) must be taken as overruled to the extent that they contemplate appellate review of findings of fact based on an independent albeit limited appellate reassessment of the reasonableness of the findings of fact made at trial. [paragraph 305]

Housen has also been considered in a number of FSCO decisions. In Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003), the Director’s Delegate noted that Housen stands for the proposition that inferences can be attacked at two distinct levels, namely on the findings of fact on which the inference is based and on errors in the inference drawing process itself:

Applying these principles in the context of an appeal from the decision of an arbitrator, I conclude that inferences can be attacked if the appellant can demonstrate the arbitrator made an error of law when he made the findings of fact on which the inference was based, or if the arbitrator made an error of law in the inference drawing process itself. [footnote omitted]

He also held that errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. The vital distinction is between a conclusion that there was " no evidence" to support a finding and a mere "insufficiency of evidence.

This appeal turns on the standard of review.

B. The Appeal

1. Dr. Marciniak’s Evidence

Pembridge submits that this appeal should be decided on the same basis as the appeal decision in Kanareitsev and TTC Insurance Company Limited, (FSCO P05-00021, September 18, 2006), judicial review pending, in which the arbitrator’s treatment of Dr. Marciniak’s evidence played an important role. The arbitrator in that case awarded $11,000 for the cost of treatment at SMRC and AIAC as well as $15,000 for treatment plans, assessments and reports. I allowed the appeal and remitted the matter for rehearing on the basis that the reasons for decision failed to address the issues at the heart of the insurer’s case:

Though the insurer vigorously challenged Dr. Marciniak’s expertise with respect to neuropathy, his qualifications to interpret an MRI, his knowledge of Mr. Kanareitsev’s pre-accident condition, his findings on physical examination of Mr. Kanareitsev, and especially his impartiality, the arbitrator addressed none of these issues in her reasons. Nor did she address Dr. Marciniak’s evidence about the business relationship between SMRC and AIAC, the qualifications of certain treatment providers at the clinics, or the clinics’ record keeping, reporting and billing practices, issues of direct relevance to the insurer’s reasons for challenging the claims relating to these clinics. (p. 11)

Pembridge submits the arbitrator in the decision below made the same error by accepting Dr. Marciniak’s evidence without taking account of numerous problems identified by the insurer.

In my view, the insurer asked serious and well-founded questions about Dr. Marciniak’s evidence. However, I am satisfied that the arbitrator’s reasons reflect his recognition of these issues. I am not satisfied the arbitrator erred in law in reaching the conclusions he did. Because the insurer’s case focused on Dr. Marciniak’s business practices, the most significant of its submissions are discussed below.

(i) Self-Interest

Dr. Marciniak testified that he is the director of SMRC and that his wife, Dr. Agnes Troczinska, is the director of AIAC and Ag-Med and the owner of all three businesses.⁷ This was confirmed by the business records led by the insurer.⁸ This business structure gave him a substantial financial interest in the outcome of the arbitration, which concerned benefits totaling about $55,000 payable to Dr. Marciniak or the clinics. The insurer submits that the arbitrator erred in law by failing to consider this substantial financial interest in assessing Dr. Marciniak’s credibility.

The insurer also submits that the arbitrator erred by failing to take into account Dr. Marciniak’s admission that he was the source for the referrals to other health care professionals, including Dr. Grzyb, a psychologist, and Dr. Pruzanski, a rheumatologist, who are associated with AIAC.⁹ The insurer submits that Dr. Marciniak would have earned money from these referrals, in addition to the money he earned reviewing the resulting reports, and the funds flowing into the clinics when the insurer was invoiced for the reports, adding to his financial interest in the outcome of the arbitration.

A witness’s interest in the outcome of a proceeding does not preclude a finding that the witness is credible, but is one factor to be considered in assessing credibility. In this case, given the amount of the clinics’ billings and the other questions raised about their business practices, the insurer’s reliance on this point is not surprising. However, I am satisfied the arbitrator considered the issue based on his discussion of Dr. Savvidou’s evidence:

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.¹⁰

The arbitrator also relied on the evidence of Ms. Lesniak, whom he found to be a credible witness, and the insurer does not challenge that finding on appeal. I am not the finder of fact, and as there was evidence to support the arbitrator’s finding, and his reasons reflect his awareness of the issue, I am not satisfied the insurer’s concern rises to an error of law.

(ii) Record keeping

The insurer submits that the arbitrator erred by accepting Dr. Marciniak’s evidence about the services provided, despite his poor record keeping and inability to recall details of his treatment of Ms. Lesniak.

The arbitrator acknowledged the problems with Dr. Marciniak’s record keeping, but accepted that he had provided the treatment for which the insurer was billed:

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.¹¹

The clinics’ inadequate record keeping is difficult to reconcile with the extraordinary amount of treatment and assessment services claimed. Nonetheless, Ms. Lesniak’s evidence supported the arbitrator’s finding that she had in fact received the treatments claimed, and therefore there is no basis for me to intervene on appeal.

(iii) OHIP

The insurer submits that Dr. Marciniak billed the insurer for services for which he also billed OHIP. The arbitrator dealt with these allegations at page 29 of his reasons, as follows:

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 OHIP [footnote omitted]. 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.

This case exemplifies some of the problems related to clinic-driven claims.¹² However, based on the parties’ submissions on appeal, I am not persuaded the arbitrator erred in his conclusion about Dr. Marciniak’s OHIP billings. In any event, it is not within an arbitrator’s expertise or authority to enforce the Health Insurance Act and its regulations. The issue before the arbitrator was whether Ms. Lesniak was entitled to the benefits claimed under the SABS, not whether Dr. Marciniak billed OHIP appropriately. Though the insurer’s evidence and submissions were suggestive, the arbitrator was within his authority to reject them, and I am not satisfied I have any basis to intervene.

(iv) Translation and Administrative Charges

The arbitrator dismissed the claim of $4,050 for translation services provided by Ag-Med on the basis of insufficient evidence: “Apart from the bare invoices, there was no evidence to substantiate what was translated, by whom, and when.”¹³ Administrative charges of $2,955 billed by SMRC and Ag-Med were withdrawn at the start of the hearing.¹⁴ These were charges for preparing invoices for other services provided.

The insurer submits that the arbitrator erred by failing to consider these claims when assessing Dr. Marciniak’s credibility in relation to other claims. I agree these claims tended to undermine the clinic claims, but I am not persuaded this evidence, alone or in combination with the other evidence about the clinics’ billing practices, required the arbitrator to dismiss the claims on credibility grounds.

(v) Dr. Marciniak’s Demeanour

The insurer submits that “Dr. Marciniak’s demeanour, as evidenced by the transcripts, could only be objectively described as condescending, aloof, argumentative, biased and unprepared.” The insurer submits that the arbitrator erred in law by finding Dr. Marciniak to be credible without addressing the problems with his testimony, though he had ample reason to question Dr. Marciniak’s credibility.

The transcripts suggest the insurer had a strong argument. However, I did not have the opportunity to observe Dr. Marciniak and it is not my role to assess his evidence in the context of the evidence as a whole. For these reasons, amongst others, it is trite law that an arbitrator’s finding on credibility is deserving of the greatest deference on appeal. In any event, reading the decision as whole, I have the impression that the arbitrator accepted Dr. Marciniak’s evidence about Ms. Lesniak’s impairments and her treatment at SMRC, which was generally corroborated by Ms. Lesniak and Dr. Savvidou, but was more cautious in considering how long treatment should continue and especially in his approach to the section 24 claims. This was a judgment within his authority, and reflected an appropriate focus on the insured person’s treatment.

I now turn to the arbitrator’s treatment of the medical benefits and section 24 claims.

2. Medical Benefits

As noted by the arbitrator, section 14 of the SABS-1996 requires an insurer to provide a medical benefit “for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident” for specified goods and services. They include medical services, chiropractic, psychological, occupational therapy, and physiotherapy services, medication, and “other goods and services of a medical nature that the insured person requires.”¹⁵

In applying section 14, the arbitrator followed Chan and CAA Insurance Company (Ontario), in which Arbitrator Sapin summarized and expanded upon the principles established in a long line of FSCO authorities on medical benefits as follows:

1. The treatment goals must be identified; they must be reasonable; and they must be met to a reasonable degree.

2. The treatment should be appropriate to the goals and to the person.

3. The frequency, cost and duration of treatment itself must be reasonable.

4. 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.

5. Where treatment is lengthy and continues indefinitely, one must also consider whether the treatment is promoting dependency or interfering with other aspects of rehabilitation.

6. “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 rather than better.

In my view, the “compelling evidence” required to meet the statutory test of reasonableness lies somewhere in 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.¹⁶

Neither party to the appeal challenged the arbitrator’s reliance on Chan and I find that decision is good authority.

In addition to its submissions concerning Dr. Marciniak’s business practices and credibility, the insurer submits that the arbitrator erred in law by preferring Dr. Marciniak’s evidence to that of Mr. Drinkwater, awarding medical benefits to December 31, 2002 rather than some earlier date, awarding benefits for treatment plans submitted after the date of the DAC report, disregarding the WAD II Guideline, which recommends only short-term treatment for a WAD II injury, disregarding evidence about Ms. Lesniak’s pre-accident high blood pressure and frozen shoulder, awarding medication expenses for high blood pressure medication, and awarding physiotherapy benefits at a rate beyond what is authorized by the SABS. Though the insurer challenged the arbitrator’s assessment of evidence and findings of fact in great detail, essentially restating its position at arbitration, a rehearing of the matter is beyond my authority on appeal. The insurer’s main points are considered below.

(i) Dr. Marciniak and Mr. Drinkwater

The arbitrator reviewed Dr. Marciniak’s evidence at pp. 15-18 of his decision. He found Dr. Marciniak “a credible witness” and believed that Ms. Lesniak had attended the clinic often and on a regular basis over a one and a half year period. He was also persuaded that she received the treatments at issue, though he noted Dr. Marciniak’s “abysmal” record keeping.

He then turned to what he found to be the more difficult question – whether the claims satisfied the entitlement test set out in Chan. He concluded that while the SMRC treatment plans listed similar long and short term goals throughout the course of treatment, “the treatment goals were identified and reasonable,” as required. He found that it was “obvious” from Dr. Marciniak’s reports “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.” He also accepted Dr. Marciniak’s testimony “that he reviewed the treatment plans as they were drafted and adjusted them in response to Ms. Lesniak’s condition.”¹⁷

“What was less obvious” to the arbitrator 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.”¹⁸

The insurer submits that the arbitrator erred by preferring the evidence of Dr. Marciniak to that of Mr. Drinkwater, the DAC coordinator who testified about the Med-Rehab DAC. In their report, dated March 18, 2002, the DAC assessors found the first three SMRC treatment plans reasonable, but not the fourth.¹⁹ They found that no further treatment was required beyond home exercise. The DAC consensus was that Ms. Lesniak suffered a WAD II injury to her neck, as well as low back soft tissue strain. The DAC assessors reported “pain behaviours,” “guarding” of neck, shoulder and low back movements, and poor and inconsistent effort on testing. Though they noted objective impairment of the right shoulder, they attributed it to her pre-accident problems.

Mr. Drinkwater expanded on this evidence in his testimony. He did not accept that Ms. Lesniak’s ongoing treatment at SMRC was reasonable, considering the nature of her injuries and her reported lack of improvement.

The arbitrator found Mr. Drinkwater a credible witness but rejected the DAC’s conclusions for several reasons: (i) the DAC assessors discounted Ms. Lesniak’s complaints, which they found were exaggerated, but the arbitrator found her a credible witness; (ii) the arbitrator was not convinced Ms. Lesniak would have been able to express herself adequately in English when speaking with the DAC assessors; (iii) though Mr. Drinkwater thought it unlikely that someone as injured as Ms. Lesniak claimed to be took the long transit ride to attend at SMRC, the arbitrator accepted Ms. Lesniak’s evidence that she went to the clinic because she could speak Polish; (iv) the DAC assessors had a poor understanding of Ms. Lesniak’s pre-accident problems with her right shoulder, which Dr. Savvidou had described as necrotic, and criticized Ms. Lesniak for “guarding” the shoulder; (v) the arbitrator found it “entirely plausible”²⁰ that Ms. Lesniak’s recovery from her accident injuries was prolonged beyond the expected WAD II time-lines because of her psychological problems and her pre-accident conditions, for which she had been on Ontario Disability Support Payments for years; and (vi) the DAC assessors did not have access to the MRI, which Dr. Marciniak said showed that the accident had worsened her spinal stenosis.

With respect to the language issue, the insurer notes that the arbitrator, commenting on Ms. Lesniak’s testimony, found her “a credible witness who was straightforward in her answers” and “able to make herself understood in English, asking for translation of the odd word or phrase.”²¹ With respect to understanding Ms. Lesniak’s pre-accident condition, the insurer submits that Dr. Marciniak changed his evidence about whether he had spoken to Dr. Savvidou about Ms. Lesniak’s pre-accident conditions, and admitted he did not know about her pre-accident hypertension. The insurer’s main point is that the arbitrator, applying the law properly, could not prefer the evidence of Dr. Marciniak to that of Mr. Drinkwater.

Again, the issue before me is whether there was evidence before the arbitrator that supported his finding, and clearly there was. As has often been stated, a DAC report is expert evidence that the arbitrator must assess, like any other expert report, based on accuracy, impartiality, expertise, and completeness, amongst other factors.²² In this case, the arbitrator preferred the evidence of Dr. Marciniak in part because he found it consistent with the evidence of Ms. Lesniak and Dr. Savvidou.

Ms. Lesniak testified that: (i) she experienced pain in her neck, right shoulder and arm, headaches, high blood pressure and heart palpitations after the accident; (ii) she was diagnosed with a frozen shoulder before the accident but did not have the pain she has had since the accident, nor did she suffer from neck pain, headaches or psychological problems before the accident; (iii) she was treated by Dr. Marciniak at SMRC between October 12, 2001 and May 2003; (iv) she initially attended three times a week, but this decreased to twice and then once per week; (v) during her visits, she typically had 30 minutes of chiropractic treatment for her neck and back, as well as 30 minutes of physiotherapy, usually for her upper back and right shoulder and arm, and 30 minutes of massage therapy; (vi) she also sometimes had acupuncture treatment and was once given home exercises; (vii) the treatments helped her feel better, and at some point her shoulder began to return to its pre-accident state. The arbitrator’s comment about her testimony was as follows:

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.²³

The insurer does not challenge the arbitrator’s assessment of Ms. Lesniak’s credibility, which is deserving of the greatest deference. I find no basis to interfere.

The arbitrator also accepted Dr. Savvidou’s evidence, including her approval of Dr. Marciniak’s recommendations:

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”. ²⁴

The arbitrator relied on Dr. Savvidou in preferring Dr. Marciniak’s evidence to that of Mr. Drinkwater. His reasons for doing so were not challenged by the insurer, and I find no basis for second-guessing them:

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.²⁵

Therefore, the arbitrator accepted Dr. Savvidou’s evidence that it was appropriate for Ms. Lesniak to be treated for a long period, followed by maintenance treatment to prevent deterioration, “as long as a two years post-accident [sic].” It was based on Dr. Savvidou’s evidence that the arbitrator rejected the DAC assessor’s opinion on the duration of treatment required:

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.²⁶

Further, the arbitrator rejected Mr. Drinkwater’s evidence that it was inappropriate to use massage, physiotherapy and chiropractic treatment concurrently, preferring the multi-disciplinary approach of SMRC. He also found that Ms. Lesniak’s recovery was delayed by her pre-existing conditions and her psychological problems resulting from the accident. “Nevertheless,” he said, “a slow recovery does not amount to no recovery.”

This case was not unusual in that the insurer relied on the WAD Guidelines and the Med-Rehab DAC report to argue that the claimant was overtreated, while the arbitrator preferred the evidence of the claimant and her doctors that she needed treatment beyond what the DAC assessors recommended. Pursuant to subsection 268.3(2) of the Act, the arbitrator was required to consider the WAD Guideline, but he was not bound by it. Nor was he bound to accept the opinion of the DAC assessors.

Finally, the insurer submits that the arbitrator erred by criticizing the DAC assessors for failing to note the severity of Ms. Lesniak’s pre-accident injury to her right shoulder while awarding benefits for Dr. Marciniak’s treatment of the shoulder. As I read the arbitrator’s decision, his criticism of the DAC assessors related to their observation that Ms. Lesniak was “guarding” her right shoulder, suggesting her complaints were exaggerated.

More fundamentally, the insurer submits that the arbitrator erred by awarding benefits for Dr. Marciniak’s treatment of the right shoulder despite Dr. Savvidou’s evidence that the shoulder was necrotic, that Ms. Lesniak had had two shoulder surgeries before the accident and that joint replacement surgery was the only recommended treatment. The insurer submits there was no evidence that physiotherapy would help a frozen shoulder. However, the evidence of Ms. Lesniak, Dr. Savvidou, Dr. Marciniak and Sophie Bielawski, the occupational therapist who assessed Ms. Lesniak at Dr. Marciniak’s request, supported the arbitrator’s finding that Ms. Lesniak’s shoulder symptoms were aggravated by the accident, and that the physiotherapy treatment helped her shoulder function, beyond “mere pain relief.”²⁷

(ii) The December 31, 2002 Benefit Termination Date

The insurer challenged the arbitrator’s December 31, 2002 “cut-off date” for treatment. The insurer submits there was no evidence that supported this date, rather than some other date, and indeed, the insurer’s position was that none of the claims for treatment at SMRC and AIAC should have been allowed because of the insurer’s general concerns discussed previously.

I agree with the insurer that the SABS, being a periodic benefits scheme, does not allow an arbitrator to pick a random date that reflects some compromise between the parties’ positions. The arbitrator must decide, based on the evidence, whether the claimant has proven entitlement to the benefits claimed for each period for which benefits are claimed. However, precision can be difficult for any number of reasons, including the subjectivity of pain and the reality that claimants may not recover from an injury on a steady predictable progress. For this reason, “there is scope for the arbitrator to consider all of the evidence and reach a result that is fair in the particular circumstances of the case.” ²⁸

This case was not unusual in that Ms. Lesniak and her doctors thought she had improved with treatment, but were not able to state precisely when further treatment was no longer necessary. I find that the arbitrator’s choice of the December 31, 2002 reflected a reasonable assessment of the evidence he heard. For example, after approving of Dr. Marciniak’s multi-disciplinary approach, the arbitrator considered Ms. Lesniak’s testimony about her progress:

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 preexisting 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.²⁹

The arbitrator also noted that Dr. G. Moddel, a neurologist who provided an insurer examination report on August 23, 2002, stated that Ms. Lesniak was reporting fewer headaches and improvements in her neck pain, though her high blood pressure and right shoulder symptoms continued, for which he recommended ongoing therapy.

The arbitrator’s concluding remarks about Dr. Savvidou’s testimony also help explain why he awarded the cost of treatment to the end of December 2002, about 15 months after the accident of September 19, 2001:

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 traveled 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. (pp. 10-11)³⁰

The Arbitrator was not obliged to make an either-or selection between Dr. Marciniak’s position that all Ms. Lesniak’s treatments were payable and the insurer’s position that no treatment should be payable beyond the treatments approved by the Med-Rehab DAC. The arbitrator’s task was to determine Ms. Lesniak’s entitlement to medical and rehabilitation benefits under section 14 of the SABS-1996, based on the entirety of the evidence before him. While the insurer may feel that the December 31, 2002 cut-off is arbitrary, I find it was a conclusion that was available to the arbitrator based on the evidence before him, and therefore I am not persuaded he erred in law.

(iii) Medication Expenses

The insurer submits that the arbitrator erred in law by awarding $635.99 for blood pressure medication despite Dr. Savvidou’s evidence that Ms. Lesniak suffered from hypertension, possibly related to hyperthyroidism, for years before the accident. Dr. Savvidou admitted that her brief note of November 29, 2002, stating that Ms. Lesniak did not have high blood pressure before the accident, was wrong. Dr. Savvidou also testified that she did not prescribe hypertension medication before the accident because she wanted to investigate the hyperthyroidism first, and in the meantime, Ms. Lesniak had to deal with another medical problem and failed to follow up with an endocrinology referral. In addition, the insurer takes issue with the arbitrator’s statement that Ms. Lesniak’s hypertension was “confirmed by Dr. Marciniak who testified that it was exacerbated by the accident, and the stress and anxiety she experienced following the accident.”³¹ The insurer submits the arbitrator ignored Dr. Marciniak’s contradictory testimony as to whether he had Dr. Savvidou’s notes and Dr. Savvidou’s testimony that Dr. Marciniak never called her or requested her opinion about his treatment plans.

If the arbitrator had relied only on the opinion of Dr. Marciniak on this point, his conclusion might be vulnerable. However, I find that Dr. Savvidou’s testimony gave him sufficient evidence to reach this conclusion. Dr. Savvidou testified that while Ms. Lesniak had high blood pressure before the accident, it fluctuated. Further:

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 200/100.³²

When she last saw Ms. Lesniak in February 2003, Dr. Savvidou noted that her hypertension was not controlled, and referred her to Dr. Cherry, a cardiologist who also noted Ms. Lesniak’s post accident psychological state. Dr. Savvidou believed Ms. Lesniak’s blood pressure problem was exacerbated by accident-related stress.³³

I have no basis for disputing the arbitrator’s conclusion that the accident exacerbated Ms. Lesniak’s high blood pressure and related cardiac problems.

(iv) Physiotherapy treatment fees

The insurer submits that Dr. Marciniak made a material misrepresentation by indicating, in his treatment plans, that he would be the service provider for Ms. Lesniak’s physiotherapy treatments and billing $125 per hour for the treatment, a rate that reflects one-on-one treatment by a physiotherapist. Instead, an SMRC employee named Brojana treated Ms. Lesniak. The arbitrator described Brojana as “a kinesiologist, not a physiotherapist,”³⁴ but in fact she was neither; Dr. Marciniak testified she was a physiotherapy assistant.³⁵ The arbitrator accepted Dr. Marciniak’s testimony that Brojana’s work was equivalent to that of a physiotherapist. He also accepted the evidence of Mr. Drinkwater, a physiotherapist, that $125 per hour of physiotherapy would have been reasonable in accordance with the guideline at that time.³⁶ Based on Ms. Lesniak’s evidence that her physiotherapy sessions lasted about 30 minutes and that she was one of two patients treated concurrently, the arbitrator awarded $50 per session.

The insurer does not rely on section 48 of the SABS-1996, but submits that none of Dr. Marciniak’s evidence should be accepted because of this alleged misrepresentation. Dr. Marciniak testified he prepared the treatment plans as the supervising health professional, without claiming he would be the treatment provider. The insurer presented no authority on this point, and I draw no conclusions.

The insurer submits the arbitrator should have awarded a much lower fee per session, considering the length of the sessions, the number of patients treated concurrently, and the provision of treatment by a physiotherapist assistant rather than a physiotherapist. The guideline rate of $95-125 per hour is for “direct (one on one) treatment,” and FSCO decisions have reduced the one-on-one rate in multiple patient situations.³⁷ However, the arbitrator was not bound by the Superintendent’s Guideline, and his reasons make it clear he considered the length of the sessions and the fact that two patients were treated simultaneously. Despite his factual error about Brojana’s credentials, I am not persuaded this rises to an error of law.

(v) Conclusion on Medical Benefits

This was a difficult case. FSCO has a regulatory role in overseeing the accident benefits scheme, and arbitrators are accident benefits experts. Further, the WAD Guideline and the procedural rules for medical benefits in the SABS-1996 (and more recently the PAF rules) reflect the legislature’s intent to prevent over-treatment and other abuses by claimants and third-party treatment providers. The arbitrator’s role, however, was to determine Ms. Lesniak’s entitlement to the specific benefits claimed, not to assess the role or conduct of a doctor or a clinic. Ultimately, the arbitrator must focus on the specific dispute before him, which he did. The arbitrator’s conclusions were generous to Ms. Lesniak and the clinics, but they were his to make, and I am not persuaded he erred in law in his assessment of the evidence.

3. Cost of Treatment Plans, Assessments and Reports

The insurer was invoiced $25,110.56 for assessments, treatment plans, disability certificates and reports prepared by Dr. Marciniak and other health care professionals connected to the clinics.

During the period in dispute, subsection 24(1) of the SABS-1996 required an insurer to pay for “all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan,” including “(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report or treatment plan.”

On appeal, the insurer submits the arbitrator failed to apply the correct test for section 24 expenses. In particular, it relies on DeMartini and ING Insurance Company of Canada, (FSCO A03-000733, March 11, 2004) in which the arbitrator reviewed the principles for deciding disputed section 24 claims:

As set out in Aleman and State Farm Mutual Automobile Insurance Company,³⁸when an assessment account is disputed, the Applicant must prove, on a balance of probabilities, that the assessment meets the applicable criteria set out in the Schedule. Also, as ruled in Tesfai and Allstate Insurance Company of Canada,³⁹ an insured person must provide evidence of the reasons for obtaining the report.

I agree with ING that an arbitrator must give sufficient consideration as to whether the assessment was reasonable in the circumstances at the time when it was arranged.⁴⁰According to Tesfai, the key questions which must be considered are: What benefits were at issue at the relevant time? What other relevant information was available at the time? The purpose of the examination may not be found in the report itself.

In Nunes and St. Paul Fire and Marine Insurance Company⁴¹, the arbitrator ruled that an insured does not have an automatic right to payment for an assessment regardless of injuries. There must be a link between an insured’s need for some benefit under the Schedule and the assessment claimed. In M.D. and Halifax Insurance Company⁴², the Director’s Delegate ruled that section 24 does not give insured persons an unfettered right to obtain medical assessments at the insurer’s cost.

I agree with this statement of the law, but I am not persuaded the arbitrator failed to apply it. At page 25 of his reasons, he set out the test for section 24 benefits as follows:

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.⁴³ The 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.⁴⁴It 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.⁴⁵

There is no error in this statement of the law, which is consistent with DeMartini and the cases cited therein.

The arbitrator then considered each of the assessments and reports for which the insurer was invoiced. With two exceptions, discussed below, the arbitrator denied the claims in respect of assessments and reports after December 31, 2002 in keeping with his finding that the multi-disciplinary treatments provided by SMRC were no longer reasonable and necessary after that date. He returned to the issue of Dr. Marciniak’s inadequate records, this time in connection with the section 24 disputes:

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.⁴⁶

Accordingly, the arbitrator reduced the cost payable for several reports where the report was not filed in evidence, the report was duplicative,⁴⁷ no evidence was provided as to the time taken to prepare it, no active testing was done, or “the complexity of the reports prepared, the tests and assessments made, or documents reviewed, did not merit the amount claimed for their preparation.”⁴⁸ Ultimately, he allowed a total of $13,478.10 for seventeen reports and sixteen treatment plans, broken down as follows:

• $6,075 for the eighteen reports prepared by Dr. Marciniak and Dr. Patel, a chiropractor at SMRC;
• $1,268.10 for the fifteen treatment plans prepared by SMRC prior to December 31, 2002;
• $2,560 for Dr. Grzyb’s psychological assessment dated October 5, 2001 ($1,010), update report dated February 10, 2003 ($1,010) and February 11, 2003 report responding to Dr. Saunders’ insurer examination report ($540);
• $2,000 for the October 22, 2001 and September 18, 2002 occupational therapy assessments by Sophie Bielawski;
• $775 for the May 31, 2002 and September 13, 2002 reports of Dr. Pruzanski; and
• $800 for the June 19, 2002 radiology review prepared by AIAC.

In my view, the arbitrator’s section 24 award was generous, considering Dr. Marciniak’s poor record keeping, amongst other issues raised by the insurer. However, it is not my role to conduct a rehearing of the dispute, and I am satisfied that the arbitrator’s findings were supportable on the evidence before him and therefore that he did not err in law, apart from the following.

I find that the arbitrator erred by awarding payment for Dr. Marciniak’s reports of October 24, 2001 ($75), October 26, 2001 ($75), March 13, 2002 ($75), and June 14, 2002 ($150). On any reading of these reports, they can have served no purpose other than advocacy or case management, and they add nothing to previously provided reports concerning Ms. Lesniak’s ongoing treatment.⁴⁹ The arbitrator gave no reasons for finding these costs were allowable within section 24, and I find they were not. Accordingly, the arbitrator’s order will be varied by reducing the section 24 benefits payable by $375.

I also find that the arbitrator erred by allowing the cost of Dr. Grzyb’s February 2003 reports. He dealt with them this way:

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. ⁵⁰

The insurer asked a number of serious questions about Dr. Grzyb’s February 2003 reports, but it is sufficient for me to find that they were prepared after the arbitrator’s December 31, 2002 cut-off date, and were apparently allowed inadvertently, since the arbitrator’s reasons strongly imply he intended all benefits to end at the end of 2002.

If I am wrong in that reading of the decision, I would find that the arbitrator erred by allowing the cost of these reports, considering the absence of any evidence as to why they were requested, and the questionable evidence that Ms. Lesniak needed psychotherapy. Indeed, Dr. Marciniak’s psychotherapy billings and Dr. Grzyb’s February 10, 2003 report, which states that Ms. Lesniak’s psychological condition has apparently deteriorated dramatically over the last several months” are difficult to reconcile with Ms. Lesniak’s testimony that while psychotherapy was suggested, she decided to deal with the problem by herself, and that she was mainly concerned about her daughter’s psychological state after the accident.⁵¹ The February 11, 2003 report is a medical-legal report. The arbitrator received no evidence that either report had any effect on Ms. Lesniak’s ongoing treatment. Accordingly, the arbitrator’s order will be varied to reduce the amount payable by the cost of these two reports ($1,010 + $540 = $1,550).

Though the insurer had similar objections to Dr. Pruzanski’s reports of May 31, 2002 and September 13, 2002, for which it was ordered to pay $775, I am not satisfied the arbitrator erred because his award is consistent with his finding that Ms. Lesniak suffered ongoing soft tissue pain, amongst other symptoms, for which she required treatment; I note that the arbitrator did not order the insurer to pay for Dr. Pruzanski’s April 11, 2003 report because “it was prepared after the cut-off date of December 31, 2002.”⁵²

With respect to the remainder of the treatment plans and reports for which the arbitrator ordered payment, I am not satisfied the arbitrator exceeded his authority or failed to consider the appropriate factors in determining the amounts to be awarded. For example, the insurer submits that nothing should have been awarded for the reports of Dr. Patel and Ms. Bielawski because they failed to consider Ms. Lesniak’s pre-accident medical history. However, arbitral case-law has established that the focus of the section 24 enquiry is not the ultimate weight given to a report, but whether it was reasonable to request the report and whether the cost was reasonable; the focus is on the process, not the content of the report. In any event, the arbitrator accepted the evidence of Dr. Savvidou and Dr. Marciniak that the accident exacerbated Ms. Lesniak’s pre-existing high blood pressure and right shoulder problems and therefore, she was entitled to medical benefits to treat these problems.

In summary, the arbitrator’s order for payment of section 24 expenses will be varied reflecting the reduction in the costs payable by $1,925.

C. The Cross-Appeal

1. Translation Services

The arbitrator dismissed the claim of $4,050 for translation services provided by Ag-Med on the basis of insufficient evidence:

Apart from the bare invoices, there was no evidence to substantiate what was translated, by whom, and when.⁵³

In addition, the arbitrator was not persuaded that Ms. Lesniak needed translation services, based on her oral evidence at the hearing. He stated that while English was “clearly not” her mother tongue, “she was able to make herself understood in English, asking for translation of the odd word or phrase.”⁵⁴

Given these findings of fact, the arbitrator did not find it necessary to consider whether translation services are payable as a medical benefit under section 14 of the SABS-1996, as held in Do, Hey Van and Allstate, (FSCO A01-000200, February 18, 2002).

On appeal, Ms. Lesniak submits the arbitrator should also have considered whether translation services are provided under section 24 of the SABS-1996. She submits the arbitrator should have accepted Ag-Med’s translation invoices, which were contemporaneously prepared business records, as sufficient evidence of the services provided, and that Ms. Lesniak and Dr. Marciniak also testified that she needed and requested translation services.

Each of Ag-Med’s invoices for translation services “including explanation/review of correspondence” gives a date, “quantity,” rate ($50) and amount owing.⁵⁵ As noted by the arbitrator, no one from Ag-Med testified to explain the basis for billing. Dr. Marciniak was unable to explain what the unit for billing was, or who provided the services.⁵⁶ Ms. Lesniak testified she did not know Ag-Med was billing the insurer for translation services, and that Dr. Troczynska never treated her or provided translation services. At its strongest, Ms. Lesniak’s testimony suggested she preferred dealing with the Polish-speaking staff at SMRC, who sometimes explained documents to her, and that Sophie Bielawski translated some documents for her when they met.⁵⁷

I agree with the arbitrator that this evidence was far from sufficient to support the claim, and therefore there was no need to consider whether translation costs may be recovered under section 14 or section 24, or whether recoverable translation services must be provided by members of the Association of Translators and Interpreters of Ontario.

2. Misdirected Payment

There is no dispute that the insurer’s April 9, 2002 payment of $4,255 to Accident Injury Assessment Centre was made in error. In a demand letter dated June 26, 2002, Ms. McEwen, the insurer’s senior staff claim representative, explained that the payment was actually intended for the Accident Injury Management Clinic, which conducted the Med-Rehab DAC. She stated that the money had “not been returned to us as requested. Please forward your cheque in the amount of $4,255 by July 15, 2002.”⁵⁸ Dr. Marciniak admitted the money was never repaid. In cross-examination, insurer’s counsel suggested the amount was credited against invoices that might not otherwise be payable. Dr. Marciniak testified it was credited to the insurer’s outstanding account against all three clinics.⁵⁹ He explained that no credit appears on the client summary because that document relates only to outstanding amounts, but that document summarizes invoices billed, paid and outstanding.⁶⁰ Though Dr. Marciniak insisted the amount was credited, he was unable to identify any documentation to support this claim and stated that his assistant did the accounts, but she was not called to testify.

On appeal, Dr. Marciniak relies on certain comments made by the arbitrator near the end of Dr. Marciniak’s two and a half days of testimony.⁶¹ As I read the transcript, the arbitrator was concerned to maintain the focus of the cross-examination on the benefits entitlement issues rather than the accounting issues. In any event, as there is no suggestion the arbitrator’s comments limited the evidence or closing arguments of either party, I am not persuaded there is any basis for review.

The insurer identified serious integrity issues with Dr. Marciniak’s accounting practices. In the circumstances, the arbitrator obviously concluded he could not be satisfied that the misdirected payment had been credited to an otherwise payable account. Even if conducting a new fact-finding hearing into the issue were within my jurisdiction, I would find there is no basis for any other conclusion, and indeed, for the reasons given above, I find the arbitrator’s award generous to Dr. Marciniak. I find no error in the arbitrator’s conclusion that the amounts payable shall be reduced by the amount of the misdirected payment.

IV. EXPENSES

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

December 20, 2007

Nancy Makepeace Director’s Delegate Date

Footnotes

1. 1For ease of reference, SMRC, AIAC and Ag-Med will be referred to as the “clinics”.
2. 2Arbitration decision, p. 4.
3. 3The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
4. 4The WAD Guideline is the Superintendent’s Guideline on the Management of Claims Involving Whiplash-Associated Disorders (“WAD”), (Superintendent’s Bulletin A12-96, November 5, 1996). A WAD I injury is characterized by a complaint of neck pain, stiffness, or tenderness without physical signs, WAD II by neck complaint and musculoskeletal signs, including reduced range or motion and point tenderness, WAD III by neck complaint and neurological signs, and WAD IV by neck complaint and dislocation or fracture. In this case, it appears the parties agreed Ms. Lesniak suffered a WAD II injury.
5. 5Arbitration decision, p. 22.
6. 6(P03-00043, June 20, 2005), application for judicial review dismissed, 2006 CanLII 7286 (ON S.C.D.C.)
7. 7Arbitration transcript, May 4, 2005, pp. 123-124.
8. 8Arbitration exhibit I-4, tabs 52-55.
9. 9Arbitration transcript, May 4, 2005, pp. 244-247.
10. 10Arbitration decision, p. 8.
11. 11Arbitration decision, p. 18.
12. 12See, for example, Smith and Citadel General Assurance Company, (FSCO P01-00034, August 20, 2002).
13. 13Arbitration decision, p. 24.
14. 14Arbitration transcript, May 2, 2005, p. 20.
15. 15Respectively paragraphs (a), (b), (c) and (h) of subsection 14(2).
16. 16(FSCO A02-001228, May 3, 2004), at pp. 12-13, footnotes omitted.
17. 17Arbitration decision, p. 18.
18. 18Arbitration decision, p. 19.
19. 19In the first treatment plan, dated September 21, 2001, just two days after the accident, Dr. Marciniak recommended active rehabilitation three times per week for eight weeks., at an estimated cost of $3,000. The second treatment plan, dated October 12, 2001, recommended massage therapy three times weekly for six weeks, costing $600. The third treatment plan, dated October 17, 2001, recommended chiropractic treatment twice a week for six weeks, costing $600. The fourth treatment plan, dated November 28, 2001, recommended twice-weekly massage therapy for six to seven weeks for $560.
20. 20Arbitration decision, p. 14.
21. 21Arbitration decision, p. 8.
22. 22See, for example, Villers and Pilot Insurance Company, (FSCO P05-00010, January 30, 2006).
23. 23Arbitration decision, p. 8.
24. 24Arbitration decision, pp. 9-10.
25. 25Arbitration decision, p. 8.
26. 26Arbitration decision, p. 20.
27. 27Arbitration decision, p. 20.
28. 28Pisani and Simcoe and Erie General Insurance Company and Canadian General Insurance Company, (OIC P-003929, and OIC P-005593, December 11, 1995), at p. 9, followed in Lopez and State Farm Mutual Automobile Insurance Company, (FSCO P98-00031, September 20, 1999), Thompson and Peel Mutual Insurance Company, (FSCO P97-00051, November 30, 1999), Lazareva and Royal Insurance Company of Canada, (FSCO P99-00031, December 17, 1999), Ms. Z and Dominion of Canada General Insurance Company, (FSCO P00-00023, February 14, 2003) and Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01-00022, February 26, 2003).
29. 29Arbitration decision, p. 19.
30. 30Arbitration decision, pp. 10-11.
31. 31Arbitration decision, p. 24.
32. 32Arbitration decision, p. 10.
33. 33Arbitration decision, p. 11.
34. 34Arbitration decision, p. 22.
35. 35Arbitration transcript, May 4, 2005, p. 210, questions 797-800.
36. 36Arbitration transcript, May 5, 2005, p. 62; Professional Fees Guideline – Physiotherapists (Bulletin A12-97, November 24, 1997).
37. 37The leading case is Amoa-Williams and Allstate Insurance Company of Canada, (FSCO A97-001864, February 14, 2001).
38. 38(FSCO A00-000498, March 6, 2001).
39. 39(FSCO P00-00048, December 21, 2001).
40. 40Salvaggio and Simcoe & Erie General Insurance Company and Wellington Insurance Company, (OIC P97-00062, January 21, 1999) and Tsimidis and Liberty Mutual Insurance Company, Aleman supra Note 11.
41. 41(FSCO A00-000501, August 15, 2001).
42. 42(FSCO P00-00049, May 16, 2001).
43. 43Kanareitsev and TTC Insurance Company Limited, (FSCO A02-001225, July 7, 2005), and Smith and Citadel General Insurance Company, (FSCO P01-00034, August 20, 2002).
44. 44Mostajo and Wawanesa Mutual Insurance Company, (FSCO A99-000984, May 28, 2001).
45. 45Tsimidis and Liberty Mutual Insurance Company, (FSCO P99-00013, August 28, 2000).
46. 46Arbitration decision, p. 25.
47. 47For example, Dr. Marciniak invoiced $3,000 for his Comprehensive Report of April 16, 2002, but the arbitrator awarded only $750 because “over half” of it was “reproduced verbatim” from previous reports.
48. 48Arbitration decision, p. 28.
49. 49For example, two of the three paragraphs of Dr. Marciniak’s October 24, 2001 letter responds to the insurer’s request for an application for benefits by stating that she said she sent it in with the help of the translator with various health-care providers;” the remainder of the letter restates material found in the October 10, 2001 Preliminary Report. His March 13, 2002 letter reports Ms. Lesniak being “upset” about treatment plans not being approved. His April 9, 2002 letter differs with the insurer’s understanding of the SABS and restates Ms. Lesniak’s concerns about her daughter. His June 14, 2002 report takes issue with the DAC report, summarizes Dr. Pruzanski’s May 31, 2002 report, which was invoiced and sent to the insurer separately.
50. 50Arbitration decision, p. 27.
51. 51Arbitration transcript, May 2, 2005, pp. 64-65, Q. 146.
52. 52Arbitration decision, p. 27.
53. 53Arbitration decision, p. 24.
54. 54Arbitration decision, p. 8.
55. 55Arbitration exhibit I-3, Tab 56.
56. 56Arbitration transcript, May 4, 2005, pp. 165-166.
57. 57Arbitration transcript, May 2, 2005, pp. 131-134.
58. 58Arbitration exhibit I-4, Tab 55.
59. 59Arbitration transcript, May 5, 2005, pp. 329-330.
60. 60Arbitration exhibit 5.
61. 61Arbitration transcript, May 5, 2005, pp. 330-331.