Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 68

FSCO A05-001857

BETWEEN:

WESTLEY WILLIAMS

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

Before: Denise Ashby

Heard: December 12 and 13, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Nureen Shariff for Mr. Williams Darrell March for RBC General Insurance Company

Issues:

The Applicant, Westley Williams, was injured in a motor vehicle accident on December 25, 2004. He applied for and received statutory accident benefits from RBC General Insurance Company ("RBC"), payable under the Schedule.¹ RBC denied medical benefits claimed by Mr. Williams. The parties were unable to resolve their disputes through mediation, and Mr. Williams 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 Mr. Williams entitled to receive a medical benefit for treatment provided by East Sheppard Rehabilitation Company Ltd., claimed pursuant to section 14 of the Schedule?
Is RBC liable to pay Mr. Williams' expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Williams liable to pay RBC's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Is Mr. Williams entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

Mr. Williams is not entitled to receive a medical benefit for treatment provided by East Sheppard Rehabilitation Company Ltd., claimed pursuant to section 14 of the Schedule.
RBC is not liable to pay Mr. Williams' expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Mr. Williams is liable to pay RBC's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8.
Mr. Williams is not entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

EVIDENCE AND ANALYSIS:

On December 25, 2004, Mr. Williams was a passenger in a car driven by a friend which was rear-ended. As a consequence, he was taken by ambulance to Humber River Regional Hospital where he was examined and discharged.²

Mr. Williams claims a medical benefit for chiropractic, massage and active rehabilitation treatment provided by East Sheppard Rehabilitation Company Ltd. (East Sheppard). RBC disputes that the treatment costs incurred by Mr. Williams were reasonable and necessary expenses. It submits that it has paid all reasonable and necessary expenses identified by the Medical Rehabilitation DAC and incurred by Mr. Williams.

Mr. Williams has the onus of proving his claim on a balance of probabilities. He did not attend the hearing. Ms Tamara Zak, an accounts payable clerk employed by East Sheppard, testified on Mr. Williams' behalf. She testified that she recognized Mr. Williams' name but did not know him. Ms Zak testified that she generated invoices based on sign-in sheets signed by the patients. Her evidence was of no probative value in determining whether the treatment was reasonable and necessary. Ms Zak could not link the signatures on the sign-in sheets she relied upon to generate invoices in respect of Mr. Williams as being his. Therefore, her evidence was of no assistance in determining what treatment expenses had been incurred.

Dr. Alyea's Treatment Plans:

On January 12, 2005, Dr. Grant Alyea, a chiropractor at East Sheppard, diagnosed Mr. Williams as follows:

Mr. Williams appears to have suffered from sprain/strain of the ligaments and joints in the cervical spine with facet irritation (WAD II), thoracic sprain/strain with facet irritation, and lumbar sprain/strain with facet irritation worse on the right.

He recommended a six-week course of treatment as follows: 4 weekly treatments for 3 weeks; 3 weekly treatments for 2 weeks and 2 treatments during the last week. Dr. Alyea completed a Disability Certificate setting out his diagnosis and his opinion that Mr. Williams was substantially disabled from carrying on a normal life pursuant to the non-earner benefit category of benefits and that he was substantially disabled from performing his pre-accident housekeeping and home maintenance services. Dr. Alyea also completed a OCF-23/198 in support of his recommended treatment.³

On June 5, 2005, Mr. Williams was assessed by Dr. Len Herman, a chiropractor, who conducted a Medical/Rehabilitation DAC in respect of two Treatment Plans dated February 16, 2005. Only Dr. Alyea's treatment plan is in dispute at this arbitration hearing. In Dr. Herman's opinion 4 of the 6 weeks of treatment recommended by Dr. Alyea, was reasonably necessary as follows: 6 chiropractic treatment sessions at $30.00 per session; 6 massage sessions at $40.00 per session; 6 laser sessions at 15.00 per session; 6 hot pack sessions at $5.00 per session and 8 sessions of active rehabilitation at $47.50 per session. Dr. Hansen was of the opinion that there was insufficient emphasis on active rehabilitation. He therefore recommended two sessions with a certified kinesiologist to assist Mr. Williams in undertaking self-directed care.⁴

Dr. Alyea's report, dated February 16, 2005, is very limited. It provides no analysis of how his recommended treatment would advance Mr. Williams beyond what had previously been achieved or why a self-directed program would not be indicated. His subsequent reports are similarly flawed. Dr. Hansen on the other hand, provides a rationale for the partial approval of treatment in the context of providing a transition to self-directed care. I prefer Dr. Hansen's opinion to that of Dr. Alyea. Therefore, I find that the additional treatment recommended by Dr. Alyea in his Treatment Plans dated February 16, May 18 and June 27, 2005 not reasonable and necessary pursuant to Section 14 of the Schedule.

Dr. Kuch's Treatment Plan:

RBC relied on Dr. Herman's DAC assessment in denying treatment recommended by Dr. Wil Kuch, a chiropractor employed by East Sheppard, dated November 4, 2005. Dr. Kuch's Treatment Plan refers to LBP; T/S pain and R knee pain and recommends various treatment modalities.⁵

On July 18, 2005, Mr. Williams attended the Platinum Medical Clinic. The medical note refers to sudden right knee pain. The note states: "Was at party dancing last p.m. otherwise no injury." A previous note dated June 13, 2005 refers to the accident on December 25, 2004. On November 10, 2005, Mr. Williams underwent an ultra-sound of his right knee which was found to have no bone or joint abnormality.⁶ I infer from these notes that the doctor examining Mr. Williams was aware of the motor vehicle accident and did not attribute the right knee pain to the accident. Therefore, I find that the right knee pain was unrelated to the accident and is not compensable pursuant to Section 14 of the Schedule. In the absence of reliable and credible evidence upon which to determine what is meant by "LBP; T/S pain", I find that they are not impairments as defined by subsection 2(1) of the Schedule. Therefore, I find that Mr. Williams is not entitled to be compensated for treatment provided by East Sheppard pursuant to Dr. Kuch's Treatment Plan.

CONCLUSION:

On the basis of the foregoing, I find that Mr. Williams has failed to meet the burden of proving, on a balance of probabilities, that the treatment provided by East Sheppard pursuant to Treatment Plans prepared by Dr. Alyea is reasonable and necessary pursuant to Section 14 or that treatment in respect of Dr. Kuch's Treatment Plan relates to an impairment as defined by subsection 2(1) of the Schedule.

EXPENSES:

The parties made no submissions with respect to expenses. I encourage them to resolve the issue on their own, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

April 3, 2007

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario