Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 56 FSCO A05-002563
BETWEEN:
LOURDES URGILES Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA Insurer
REASONS FOR DECISION
Before: David Snider
Heard: July 24 - 27, 2006 and August 18, 2006, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received up to August 22, 2006
Appearances: Richard Gordon, SABS Representative, for Mrs. Urgiles Richard Horst, Counsel, for Allstate Insurance Company of Canada
Issues:
The Applicant, Lourdes Urgiles, was injured in a motor vehicle accident on December 17, 2004. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.1 Allstate denied payment on three medical treatment plans and Mrs. Urgiles disputed these denials. The parties were unable to resolve their dispute through mediation, and Mrs. Urgiles applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:
Is Mrs. Urgiles entitled to receive a medical benefit for treatment by Dr. Cam Simone at Gateway Rehabilitation and Health Institute in the amount of $2,067.00 for a treatment plan dated January 3, 2005, $3,387.00 for a treatment plan dated February 16, 2005 and $12,000.00 (reduced from over $20,000.00 due to the removal of a request for a hot tub installation) for a treatment plan dated April 15, 2005, all claimed pursuant to section 14 of the Schedule?
Is Allstate liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mrs. Urgiles?
Is Allstate liable, under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, to pay Mrs. Urgiles' expenses in respect of the arbitration?
Is Mrs. Urgiles liable, under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, to pay Allstate's expenses in respect of the arbitration?
Result:
Mrs. Urgiles is not entitled to receive a medical benefit for treatment by Dr. Cam Simone at Gateway Rehabilitation and Health Institute in the amount of $2,067.00 for a treatment plan dated January 3, 2005, $3,387.00 for a treatment plan dated February 16, 2005 and $12,000.00 for a treatment plan dated April 15, 2005.
Allstate is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mrs. Urgiles.
Each party shall bear their own expenses in this matter.
BACKGROUND:
Lourdes Urgiles was born December 13, 1968. On November 5, 2003, when she was 34 years old, she was involved in a motor vehicle accident in which she injured her left arm, neck and lower back. After that accident she applied to Allstate for various statutory accident benefits under the Schedule and a certain number of her medical benefit claims to Allstate concerning that motor vehicle accident came into dispute. There have been a number of arbitration hearings held and decisions rendered with regard to her disputed medical claims stemming from the 2003 motor vehicle accident. In particular, the areas of dispute have involved medical assessments of her injuries carried out by Dr. John Baird and chiropractic services provided by Dr. Cam Simone, among various other issues.
Mrs. Urgiles was unfortunate enough to be involved in a second motor vehicle accident on December 17, 2004, just after her 36th birthday. At the time of the second accident she was still under the care of Dr. Simone and had been receiving intermittent chiropractic treatments at his clinic, which I shall refer to as Gateway Rehab. She was again assessed by Dr. Baird concerning the injuries she received from the second motor vehicle accident. The assessment provided by Dr. Baird after the second motor vehicle accident suggested that her pre-existing injuries had been exacerbated and as a consequence Dr. Simone began a new regime of treatments for her, submitting a number of treatment plans to Allstate. Three of those treatment plans were denied by Allstate and they became the subject of this Application for Arbitration.
The Legal Test:
Under section 14 of the Schedule an insured person who sustains an impairment is entitled to a medical benefit to pay for all reasonable and necessary medical expenses experienced as a result of a motor vehicle accident.
EVIDENCE AND ANALYSIS:
During the course of the hearing I heard from four witnesses; Lourdes Urgiles, Dr. Cam Simone, Phylis Roman and Dr. Irving Pisarek. I also viewed surveillance evidence and examined extensive medical documentation. A significant percentage of the evidence was directed toward the nature of the assessments carried out by Dr. Baird and the treatment plans which Dr. Simone prepared as a consequence of his understanding of Dr. Baird's assessments. The Applicant also sought to demonstrate that the manner in which Allstate dealt with the treatment plans did not meet the standards required by the Schedule. I found this evidence interesting, but not overly on point with regard to the bottom-line issue I have to determine in this matter, which is the reasonableness and necessity of the treatment plans in question.
When Mrs. Urgiles was asked about the type of treatment she received from Gateway Rehab she described attending at the clinic for between 30 and 45 minutes on most occasions. She stated very firmly that she received a massage on each occasion but that she only saw Dr. Simone occasionally and for short periods each time. She made no mention of having ever met with a physiotherapist at Gateway Rehab. The surveillance evidence obtained on January 10, 2005 shows that the length of her visit on that occasion was 37 minutes. This appears to be consistent with Mrs. Urgiles' description of a typical treatment visit at Gateway Rehab.
When I examined the invoice created by Dr. Simone with regard to the January 10th treatment date it is clear that he billed for two hours and five minutes of time on that, and all, occasion(s).
When asked about his billing practices on cross-examination Dr. Simone was vague, inaccurate and completely unable to explain or justify the amounts of time or the rates which he was charging for each visit. To compound matters he also had no record whatsoever from any massage therapist or physiotherapist working in his clinic and treating Mrs. Urgiles. I determined that the invoices which he had created with regard to the treatment plans he alleged to have been consumed were all produced on the same date, had never been delivered to the Applicant and that they did not reflect in any way the actual time spent with or treatment given to Mrs. Urgiles. The "invoices" were simply restatements of the estimated time set out in the original treatment plans at the maximum amount for each date of treatment. I find that there is absolutely no way to determine the cost or justifiable expense for any treatment received by Mrs. Urgiles at Gateway Rehab. Accordingly, I am left without the means to determine the reasonableness of these claimed medical expenses.
Turning now to the necessity of the medical treatments provided by Gateway Rehab, it appears to be undisputed amongst all of the witnesses that the nature of the treatments received by the applicant were strictly passive and palliative in nature. The applicant suggested that palliative care, in other words the alleviation of pain without any other rehabilitative benefit, was justified in and of itself since it made Mrs. Urgiles feel better and accordingly bettered her life. Most of the medical assessors, however, including the DAC assessors, considered this type of palliative care to be harmful to Mrs. Urgiles because it only made her more dependent upon the clinic for pain relief rather than giving her any improved function or better coping skills. This point was admitted even by Dr. Simone, effectively, because he admitted that he supported the referral of Mrs. Urgiles to a pain management clinic as an alternative to his proposed treatment plan(s) for continuing palliative care. I conclude that Dr. Simone was alone in his approach to Mrs. Urgiles' treatment at the time he was preparing his treatment plans and that there is no way from his testimony to conclude that the DAC and other medical assessors were incorrect when they determined that the treatment plans in question in this arbitration were not medically reasonable or necessary.
One further point with regard to the third, and largest, treatment plan was made by Dr. Pisarek, a chiropractor with over thirty years experience. He stated emphatically that he could never have approved this plan because it was for 52 weeks of weekly, continuous, unchanging treatment. This runs contrary to the Ontario Chiropractic Association Guidelines, which indicate that no treatment plan should exceed 24 sessions, after which a reassessment is necessary. Clearly Dr. Simone was not aware of, or else chose not to comply with, this Guideline. He stated in his testimony that he made it for the 52 week period specifically to avoid the need for constant reassessments and preparation of new treatment plans. This was another indication of the problems with his approach and his lack of professionalism, in my opinion.
Turning briefly to the question of whether Allstate did not deal properly with the treatment plans, I must say that the reasons given for denying the treatment plans and sending them to a DAC were not of much use, since they did not state any specific fault with the proposed plans, but merely stated that they were to be referred for a medical opinion, which was the reasoning the adjuster used. This type of vague refusal may not be in strict compliance with the Schedule, but they do not, in and of themselves, constitute wrongful behaviour by the Insurer, in my opinion.
The Insurer was, at the time of these refusals, entitled to send all treatment plans to a DAC for assessment, and in fact they were required to do so if they did not accept a given treatment plan for any reason. They were in compliance with this requirement with regard to the first and third treatment plans herein, and since the second treatment plan was identical to the first one (for our purposes) it was not unreasonable for the Insurer to rely upon the DAC referral and result from the first with regard to the second. I find that although the adjuster was perhaps somewhat "fuzzy" in her understanding of the legal requirements under the Schedule for her handling of an accident benefits file, her errors were not fatal and not unusual as a standard in the Ontario insurance industry as it stood in 2005.
CONCLUSIONS:
The first and foremost requirement of section 14 of the Schedule is for me to determine the reasonableness and necessity of medical treatment plans. If I cannot find a given plan to be reasonable and/or necessary then I clearly cannot order the Insurer to pay for the claimed medical expense(s) set out in the plan.
In the case of the treatment plans prepared by Dr. Simone I cannot find any of them to be reasonable due to the fact that his billing practices were utterly invalid in all of the cases before me. The "consumed" treatment plans were never invoiced except for purposes of this hearing, and were for all intents and purposes false billings which could not be verified in any way. The proposed treatment plan was for a far lengthier period than that allowed by the Ontario Chiropractic Association and was not based upon valid principles or medical justification.
Accordingly, I cannot find that Allstate has any obligation to pay for these treatment plans.
I have also found that the Insurer's behaviour in its handling of these treatment plans was not indicative of bad faith or egregious error. I would not, under these circumstances, have ordered a special award in this case even if I had found some amount of money to be owed by the Insurer to the Applicant, which I have not.
EXPENSES:
Due to the fact of the ongoing dispute between Mrs. Urgiles and Allstate and various rulings being under appeal, this Application for Arbitration was not without merit, despite the result. Accordingly, I have concluded that each side shall bear their own expenses in this matter.
March 19, 2007
David Snider Arbitrator
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 56 FSCO A05-002563
BETWEEN:
LOURDES URGILES Applicant
and
ALLSTATE 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:
The Application for Arbitration is dismissed.
Each party shall bear their own expenses in this matter.
March 19, 2007
David Snider Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.