Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 53

FSCO A05-000722

BETWEEN:

QUAN LIAN JACKY YANG

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Maggy Murray

Heard:

October 23, December 18, 19 and 20, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Sahereh Baghbani, agent, on October 23, 2006;

Mr. Michael Campbell, Student-at-Law, for Mr. Yang on December 18, 19 and 20, 2006

Michelle Mainprize for ING Insurance Company of Canada

Issues:

The Applicant, Quan Lian Jacky Yang, was injured in a motor vehicle accident on September 16, 2003. He applied for and received statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ ING refused to pay for various benefits. The parties were unable to resolve their disputes through mediation, and Mr. Yang applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Yang entitled to payment of $1,828.00 for TENS, hyperthermy, soft-tissue therapy and exercise provided from November 11, 2003 to December 20, 2003 by Optimum Health Clinic claimed as a medical benefit pursuant to section 14 of the Schedule?

2. Is ING liable to pay Mr. Yang's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

3. Is Mr. Yang liable to pay ING's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

4. Is Mr. Yang entitled to interest of 2 per cent per month compounded monthly on the amount of $1,828.00 pursuant to subsection 46(2) of the Schedule?

Mr. Yang also originally claimed $362.60 for an in-home assessment prepared by Nautica Health Management Inc., pursuant to section 24 of the Schedule, but withdrew this claim on the first day of the hearing.

Result:

1. Mr. Yang is entitled to receive $1,828.00 for TENS, hyperthermy, soft-tissue therapy and exercise provided from November 11, 2003 to December 20, 2003 by Optimum Health Clinic claimed pursuant to paragraph 14(2)(b) of the Schedule.

2. Mr. Yang is entitled to interest of 2 per cent per month compounded monthly on the amount of $1,828.00 from December 29, 2003 to October 22, 2006 and also from December 19, 2006 until the benefit is paid in accordance with subsection 46(2) of the Schedule in respect of the medical benefit.

3. I will deal with the issues of entitlement and quantum of a special award at a resumption of this hearing.

4. The issue of expenses is deferred.

EVIDENCE AND ANALYSIS:

Overview:

Mr. Yang was 31 years old when a vehicle in which he was a front-seat passenger was rear-ended by another vehicle. At the time of the accident, he worked part time as a general labourer in a grocery store, a position he held for over two years prior to the accident. He returned to work approximately four months following the accident. His injuries from the accident included soft-tissue injuries to his neck, back, right arm and right shoulder.

Medical Benefit:

Law

Under s.14 of the Schedule, an insurer is required to pay certain medical benefits. Pursuant to s.38(2) of the Schedule,² the insured must submit to the insurer an application for the benefit and a Treatment Plan. If the insured incurs the expense without first submitting the Treatment Plan to the insurer, the insured shall submit to the insurer the expense, along with the Treatment Plan, within 30 days after incurring the expense.³ If the insurer refuses to pay for the medical benefit, pursuant to s.38(12)⁴ of the Schedule, the insurer shall require the insured to be assessed in respect of the services at a designated assessment centre ("DAC"). Under s. 43(8)(a)⁵ of the Schedule, the DAC assessment is to report an opinion on whether the benefit is reasonable and necessary for the insured person's treatment or rehabilitation.

Background

Mr. Yang submitted to ING a Treatment Plan in the amount of $2,302.00 ("Treatment Plan") dated November 11, 2003 prepared by Dr. Au, a chiropractor at Optimum Health Clinic. This Treatment Plan proposed various therapeutic modalities. The Treatment Plan was received by ING on November 28, 2003. Optimum Health Clinic provided $1,828.00 of treatment to Mr. Yang from November 11, 2003 to December 20, 2003. ING denied the proposed Treatment Plan and submitted it to a DAC. Dr. Decina, a chiropractor, and Ms. Irene Oliver, a physiotherapist, performed the DAC assessment on January 12, 2004. Dr. Decina and Ms. Oliver opined that the proposed treatment was not reasonable and necessary.

To establish his entitlement to payment of the expense for the treatment recommended in the Treatment Plan, Mr. Yang must establish that the expense was reasonable and necessary for his treatment or rehabilitation.⁶

Mr. Yang, Dr. Au (chiropractor), Ms. Neva Perrotte (an independent adjuster), Dr. Decina (chiropractor) and Ms. Oliver (physiotherapist) testified regarding the Treatment Plan.

Ruling

Following the closing of Mr. Yang’s case, ING submitted that it was entitled to cross-examine the DAC assessors on the basis that when one party files a document, the other party is entitled to cross-examine that witness. During the hearing, I made an oral ruling with the reasons outlined below in (1) - (4) that ING is entitled to conduct an examination-in-chief of the DAC assessors, not a cross-examination. I advised the parties that I would provide the reasons for my ruling in this decision that: (1) All the cases that ING provided in support of its position⁷ were distinguishable on the basis that documents were "filed" or "tendered" by one party. In this matter, Mr. Yang and ING provided me with various documents that were bound together in a book titled "Joint Documents Brief for Arbitration" that was marked as Exhibit One. The DAC reports were contained in this "Joint Documents Brief for Arbitration" and were not filed or tendered solely by Mr. Yang; (2) The pre-hearing letter dated May 19, 2006 set out a list of who the Insurer intended to call as its witnesses, which list included "possibly" the DAC assessors; (3) ING's letter of September 21, 2006 reiterated the Insurer's list of witnesses which included the DAC assessors; and (4) ING summonsed the DAC assessors.

Evidence

Mr. Yang testified that Dr. Lo, his family doctor, referred him to Optimum Health Clinic for therapy. Mr. Yang found that the therapy he received "helped quite a bit"⁸ and there was "no way" he would have recovered as quickly as he did if he had not received the treatment. Mr. Yang wanted to "get better" so that he could return to work, which he was able to do in January 2004. Mr. Yang felt that when the DAC assessment was conducted on January 12, 2004 (almost one month after his treatment was completed), his injuries, and in particular his right shoulder, were "better" than they were when he was undergoing treatment.

Dr. Au testified that Mr. Yang's prominent complaint when he prepared the Treatment Plan was that of right shoulder pain, in addition to neck and back pain. According to Dr. Au, Mr. Yang injured his shoulder when he outstretched his right arm to brace himself so he would not hit the dashboard during the accident. Dr. Au testified that contrary to the instructions on the Treatment Plan, he did not list Mr. Yang's injuries in the order of severity.

Dr. Au noted in his report dated November 22, 2003 that Mr. Yang had pain in the right shoulder area and the muscles were tight and sore upon palpation. Dr. Au's testimony, which was supported by attendance records at Optimum Health Clinic, was that Mr. Yang's treatment decreased over time (i.e., between September 24, 2003 and December 20, 2003). When determining whether to discharge a patient, Dr. Au considers both a patient's subjective complaints and objective testing. Dr. Au said he continued to treat Mr. Yang after November 11, 2003 because Mr. Yang continued to have problems.

Ms. Neva Perrotte, an independent adjuster, was retained by ING to handle Mr. Yang's accident benefits. ING's adjuster's log note dated October 15, 2003 states that Ms. Perrotte advised ING that she "will work (Mr. Yang's) file aggressively" and that ING was in agreement with this approach. Ms. Perrotte agreed that this statement accurately reflected the way she handled Mr. Yang’s file.

When Ms. Perrotte was cross-examined regarding what she meant by working this file "aggressively", she explained that the file contained the following "red flags" as she put it: (1) there were seven people in the car at the time of the accident; (2) Mr. Yang gave her a cell phone number for the driver of the van but Ms. Perrotte could never get in touch with the driver of the van; (3) the passengers of the van did not get out of the van when the police arrived at the accident scene; (4) Mr. Yang did not know the year or model of the car that rear-ended the van in which he was a passenger; (5) Mr. Yang advised ING that he lived in a one-bedroom basement apartment but ING received housekeeping receipts for $100 per week;⁹ (6) Although Mr. Yang advised ING that he earned $180 net every week, the employer's confirmation of income indicated that he earned $200 gross every week; (7) in her experience, a "connection" exists between Mr. Yang’s legal representative, Dr. Lo, and Optimum Health Clinic. That is, if Dr. Lo is a claimant’s family doctor, he refers his patients to Optimum Health Clinic, and the claimant is thereafter represented by this particular law firm; and (8) Ms. Perrotte initially "had reservations" about whether the accident actually occurred.¹⁰

In Ms. Perrotte’s report to ING dated November 10, 2003 (18 days before Ms. Perrotte received the November 11, 2003 Treatment Plan), she stated: "We are recommending ... any subsequent Treatment Plans be denied and referred to a Medical Rehabilitation Designated Assessment Centre." Ms. Perrotte testified that she recommended the denial of subsequent Treatment Plans based on these "red flags."

In Ms. Perrotte's report to ING dated January 20, 2004 (seven days before she received the DAC report), she stated that although the cost of the Treatment Plan dated November 11, 2003 "is within reason, based on the questions involving this loss, we did not approve the Treatment Plan and proceeded to the Medical and Rehabilitation DAC." Ms. Perrotte explained that "the questions involving this loss" referred to the "red flags."

Dr. Decina (chiropractor) examined Mr. Yang on January 12, 2004 and completed a DAC report on January 23, 2004. Dr. Decina felt that Mr. Yang was cooperative throughout the interview and examination and that Mr. Yang did not exhibit any pain-avoidance or symptom magnification behaviour. In addition, Mr. Yang answered all the questions that Dr. Decina asked in a straightforward manner.

At the time of Dr. Decina's examination of Mr. Yang, Mr. Yang had right shoulder symptomatology and Dr. Decina felt that Mr. Yang would continue to experience increased symptoms with increased activity. Dr. Decina concluded that the Treatment Plan dated November 11, 2003 was not reasonable and necessary at the time it was written. However, Dr. Decina opined in the DAC report dated January 23, 2004 that Mr. Yang "has had adequate formal treatment intervention in order to address the injuries which he sustained in the motor vehicle accident in question."¹¹

Ms. Oliver (physiotherapist) examined Mr. Yang on January 12, 2004. She testified that Mr. Yang's shoulder injury was not resolved at the time of her examination of Mr. Yang and he demonstrated decreased range of motion in the right shoulder. In addition, the strength in Mr. Yang's right shoulder was decreased. Ms. Oliver concluded that the Treatment Plan dated November 11, 2003 was not reasonable and necessary because Mr. Yang had participated in a six to eight week therapy program at the time the Treatment Plan was written.

Both Dr. Decina and Ms. Oliver recommended, in the DAC report, that Mr. Yang would benefit from two to three sessions of instruction for home exercise and that he receive Thera-Bands and/or weights to increase his strength and endurance.

Analysis

I place little weight on Ms. Perrotte’s decision to deny the Treatment Plan because she did not make a decision whether the Treatment Plan was reasonable and necessary for Mr. Yang’s recovery. She decided, before she received the Treatment Plan, to deny all future Treatment Plans based on her perception of "red flags."

I place little weight on the DAC assessment for the following reasons: (1) Although Dr. Decina and Ms. Oliver were both opposed to facility-based treatment, they still felt that at the time of the DAC assessment (which was conducted almost one month after Mr. Yang completed his therapy at Optimum Health Clinic), Mr. Yang required further rehabilitation of his shoulder; (2) In the "Summary Report" that was signed by both Dr. Decina and Ms. Oliver, it states that the Treatment Plan "was delivered ... at a total cost of $2,302.00." (emphasis added) It refers to the "consumed (emphasis in original) Treatment Plan." Both of the aforementioned statements are incorrect because less than 80% of the Treatment Plan was utilized; (3) Dr. Decina's opinion that the Treatment Plan was not reasonable and necessary is not consistent with his statement that Mr. Yang "has had adequate formal treatment intervention." This statement was made after Mr. Yang underwent some of the treatment outlined in the Treatment Plan. The DAC report did not state that Mr. Yang underwent "excessive" treatment, for example. Rather, the DAC report stated that the treatment received was "adequate"; and (4) when cross-examined, Dr. Decina stated that he felt that the treatment Mr. Yang received as recommended in the Treatment Plan was "effective" in assisting in Mr. Yang’s rehabilitation.

I prefer Dr. Au's evidence because he was in a better position than either Dr. Decina or Ms. Oliver to assess the extent to which Mr. Yang required treatment. That is, Dr. Au's Treatment Plan was prepared contemporaneously with Mr. Yang's treatment. Dr. Au decreased the frequency of Mr. Au's treatment over time¹² and I found he was a credible witness.

Mr. Yang's testimony was clear and consistent. He provided a "coherent account"¹³ about the effect of the treatment he received at Optimum Health Clinic. He was motivated to return to work.¹⁴ He did not simply rely on passive modalities, but combined chiropractic treatment with exercise.¹⁵ His evidence was not shaken in cross-examination. Consequently, I find Mr. Yang credible. I find that Mr. Yang's treatment, combined with exercises,¹⁶ at Optimum Health Clinic relieved his pain and contributed to his recovery. Therefore, I find that the $1,828.00 for treatment provided at Optimum Health Clinic from November 11, 2003 to December 20, 2003 was reasonable and necessary for Mr. Yang's treatment and rehabilitation.

Interest:

Pursuant to s.17(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22,

(a) tribunal that makes an order for the payment of money shall set out in the order the principal sum, and if interest is payable, the rate of interest and the date from which it is to be calculated.

Subsection 46(2) of the Schedule provides that interest of 2 per cent per month compounded monthly is payable on overdue payments. An amount is overdue when the insurer fails to pay the benefit within the time required under Part X of the Schedule.

In Coachman Insurance Co. and Hejnowicz,¹⁷ it was determined that "s. 38 imposes a requirement to pay (medical and rehabilitation benefits) within 30 days of receiving the invoice¹⁸ or application for benefits to which the claimant is entitled. This obligation is not displaced by a DAC referral or the commencement of dispute resolution proceedings."¹⁹ The Treatment Plan was received by ING on November 28, 2003.

Due to a death in Dr. Au’s family the week before this hearing commenced, this hearing was resumed almost two months later. Consequently, on the first day of the hearing, Mr. Yang’s representative consented to the suspension of interest from October 23, 2006 to December 18, 2006.

I find Mr. Yang is entitled to interest of 2 per cent per month compounded monthly on the amount of $1,828.00 from December 29, 2003 to October 22, 2006 and also from December 19, 2006 until the benefit is paid in accordance with s.46(2) of the Schedule in respect of the medical benefit.

Special Award:

Although the Applicant did not claim a special award, s. 282(10) of the Insurance Act mandates an arbitrator to order a special award in cases where an insurer has unreasonably withheld or delayed payments to the applicant. Section 282(10) "gives arbitrators authority to impose a special award based on the evidence presented at the hearing."²⁰

A special award may be warranted based on the manner in which ING handled this file. In particular, ING decided to reject further treatment based on the "red flags" before it received a request for further treatment. In addition, although ING agreed that the cost of treatment was reasonable, it denied payment for the treatment based on the "red flags." The "red flags" had nothing to do with the merits of the treatment recommended in the Treatment Plan. I will consider the issues of entitlement and quantum of the special award at a resumption of this hearing to allow the parties to present evidence on a special award.

EXPENSES:

Expenses were not addressed at the hearing. The issues of entitlement to and amount of the expenses are deferred pending the special award hearing.

March 15, 2007

Maggy Murray

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 53

FSCO A05-000722

BETWEEN:

QUAN LIAN JACKY YANG

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Mr. Yang is entitled to receive $1,828.00 for treatment provided from November 11, 2003 to December 20, 2003 by Optimum Health Clinic claimed pursuant to paragraph 14(2)(b) of the Schedule.

2. Mr. Yang is entitled to interest of 2 per cent per month compounded monthly on the amount of $1,828.00 from December 29, 2003 to October 22, 2006 and also from December 19, 2006 until the benefit is paid in accordance with subsection 46(2) of the Schedule in respect of the medical benefit.

3. I will deal with the issues of entitlement and quantum of a special award at a resumption of this hearing. The parties can contact the Case Administrator for this file to arrange the resumption of this hearing to provide evidence regarding a special award.

4. The issues of entitlement to and amount of the expenses are deferred pending a resumption of the hearing to deal with a special award.

March 15, 2007

Maggy Murray

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2As it read prior to March 1, 2006
3. 3Subsection 38(3.1) of the Schedule as it read prior to March 1, 2006
4. 4As it read prior to March 1, 2006
5. 5As it read prior to March 1, 2006
6. 6Section 14(2) of the Schedule
7. 7Briand et al. v. Sutton (1986), 1986 CanLII 2494 (ON HCJ), 57 O.R. (2d) 629, QL at 2, para. 14 refers to "filing of a medical report" (Ont. H.C.J.); Carew v. Loblaw's Limited (1977), 1977 CanLII 1075 (ON HCJ), 18 O.R. (2d) 660, QL at 2 refers to a report that was "tendered" (Ont. H.C.J.); Foster et al. v. Hooerle et. al. (1973), 1974 CanLII 587 (ON HCJ), 2 O.R. 601, QL at 1 refers to the plaintiffs seeking to "file" reports (Ont. H.C.J.); Kapulica v. Dumancic (1968), 1968 CanLII 419 (ON CA), 2 O.R. 438, QL at 1 refers to a medical report "tendered by the plaintiff"; QL at 4 refers to the "tendering" of reports (Ont. C.A.); Reimer et al. v. Thivierge (1999), 1999 CanLII 9303 (ON CA), 46 O.R. (3d) 309, QL at 4, para. 13 refers to reports that were "tendered"; QL at 4, para. 14 refers to a report being "filed" (Ont. C.A.).
8. 8See Violi and General Accident Assurance Co. of Canada, QL at para. 27 (FSCO A98-000670, August 20, 1999, upheld on appeal at FSCO P99-00047, September 27, 2000) for a discussion regarding pain relief.
9. 9Upon further cross-examination, Ms. Perrotte explained that $100 per week in housekeeping expenses was excessive for a "single man living in a basement apartment."
10. 10Ms. Perrotte later testified that "in the end, there was concrete evidence that the accident happened."
11. 11DAC report dated January 23, 2004, Exhibit One, tab 46 at 7
12. 12Violi and General Accident Assurance Co. of Canada, QL at para. 20 (FSCO P99-00047, September 27, 2000)
13. 13El-Saikali and Co-operators General Insurance Co., QL at para. 26 (FSCO P01-00059, March 13, 2003)
14. 14Violi and General Accident Assurance Co. of Canada, QL at para. 20 (FSCO P99-00047, September 27, 2000)
15. 15DAC report dated January 23, 2004, Exhibit 1, tab 46 at 3, line 4
16. 16Violi and General Accident Assurance Co. of Canada, QL at para. 20 (FSCO P99-00047, September 27, 2000)
17. 17QL at para. 54 (FSCO P05-00024, August 3, 2006)
18. 18Pursuant to s.38(11) of the Schedule
19. 19Hejnowicz at 22.
20. 20Clark and Royal Insurance Co. of Canada, QL at para. 32 (FSCO P97-00008, September 26, 1997)