Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 79
FSCO A06-001439
BETWEEN:
TAUSIF AHMED SIDDIQUI
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
REASONS FOR DECISION
Before:
Fred Sampliner
Heard:
November 3, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mr. Siddiqui was present without representation.
Norma Priday for TTC Insurance Company Limited
Issues:
The Applicant, Tausif Ahmed Siddiqui, sustained soft tissue injuries as a TTC passenger on December 5, 2005. Mr. Siddiqui's claims with TTC Insurance Company Limited ("TTC") for medical and rehabilitation benefits and a health care examination, payable under the Schedule,1 were not resolved through mediation. He 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. Siddiqui entitled to $13,639.99 for his treatment expenses under Part V of the Schedule?
Is Mr. Siddiqui entitled to $500 for the cost of Dr. Cirone's examination under section 24 of the Schedule?
Is Mr. Siddiqui entitled to a special award under subsection 282(10) of the Insurance Act?
Result:
Mr. Siddiqui is entitled to payment of four treatment sessions, totalling $380, plus applicable taxes, under Part V of the Schedule.
Mr. Siddiqui is not entitled to payment for the cost of Dr. Cirone's examination under section 24 of the Schedule.
Mr. Siddiqui is entitled to a $200 special award under subsection 282(10) of the Insurance Act.
The parties' claims for their expenses of this arbitration are deferred, and I have awarded interest on the benefits in accordance with subsection 46(2) of the Schedule.
EVIDENCE AND ANALYSIS:
Mr. Siddiqui's Treatment Claim:
Mr. Siddiqui must establish, on a balance of probabilities, that as a result of the December 5, 2005 accident the treatment he received from Dr. Samuel Cirone at the Victoria Park Chiropractic Rehabilitation Centre (Victoria Park) from January 2006 to October 2006 was reasonable and necessary.2 The evidence consists of documents, three surveillance videos and the testimony of one witness, Dr. Cirone.
The accident occurred as Mr. Siddiqui was a standing passenger in a TTC streetcar. The TTC vehicle hit a truck, and Mr. Siddiqui was jostled back and forth by the impact. His mid-back was struck by another passenger, but he did not fall or contact any other objects.
Mr. Siddiqui's initiating application to TTC for accident benefits states that he suffered neck/back pain, psychological trauma and sleep deprivation from the accident. His written statement taken by the TTC shortly afterwards indicates he had pain all over his body.
TTC paid Mr. Siddiqui's first month of treatment at the Yonge and Centre Chiropractic Rehabilitation and Health Clinic. Mr. Siddiqui began seeing Dr. Cirone for treatment at Victoria Park in mid-January 2006, and it was then that the TTC denied responsibility to cover his expenses.
Victoria Park's records show that Mr. Siddiqui received fairly continuous treatment (physiotherapy/exercise, TENS, massage, ultrasound), approximately three times weekly, until mid-October 2006. Dr. Cirone's two treatment plans total the $13,639.99 claimed in this matter.
Victoria Park Treatment:
Mr. Siddiqui relies on the evidence of Dr. Cirone to support his claim for treatment at Victoria Park. Dr. Cirone's first treatment plan and the accompanying disability certificate reported that Mr. Siddiqui suffered severe constant pain throughout his spine, numbness/tingling in his right arm, severe left knee pain, depression, sleeplessness, muscle spasms and restricted movements. In June 2006, Dr. Cirone updated that Mr. Siddiqui's neck and back pain had become chronic, qualifying his whiplash injuries at the most severe grade (WAD III). Dr. Cirone stated that Mr. Siddiqui suffered a permanent work disability as well as an inability to perform his normal daily pre-accident activities.
Dr. Cirone's clinical notes and records chiefly consist of his treatment plans and record of the chiropractic manipulations he performed on Mr. Siddiqui. His records after the initial visit do not note Mr. Siddiqui's symptoms on examinations nor do they include progress notes. Dr. Cirone's lack of clinical records weakens his opinion that Mr. Siddiqui suffered severe permanent injuries because there is little supporting historical evidence.
In his testimony, Dr. Cirone did not offer a reasonable excuse for the absence of historical records, and he did not provide an adequate basis for his opinion that Mr. Siddiqui suffers severe permanent injuries. Dr. Cirone's evidence that he would ignore surveillance that shows Mr. Siddiqui is not completely disabled undermines his ability to provide a considered independent evaluation. I do not rely on Dr. Cirone's evidence.
TTC denied Mr. Siddiqui's treatment claim based on a February 2006 insurer examination. Dr. Ernest White, the orthopaedic surgeon who examined Mr. Siddiqui in conjunction with a neurologist and psychologist, concluded that he probably sustained a WAD II soft tissue, low and mid-back strain with a possible minor dorsal spine contusion. He did not find any substantial impairments that would prevent him from performing any activities. The neurologist and psychologist cleared Mr. Siddiqui of any complications, with radiology images detecting no underlying organic problems.
The TTC's occupational therapist evaluated Mr. Siddiqui at his two-bedroom apartment shortly afterwards. Mr. Andrew Phillips reported that Mr. Siddiqui complained of being unable to lift heavier objects, bend over or stand upright for extended time periods. He performed some housework by altering the way he bent over.
After Mr. Siddiqui disagreed with TTC's denial of treatment, an assessment was scheduled at St. Michael's Hospital's Designated Assessment Centre (DAC) in March 2006. Dr. Harold Vernon, a chiropractor, relied on expected normal recovery times for soft tissue injuries, the lack of objective determinants showing an organic injury, along with the inconsistency between Mr. Siddiqui's testing and his informal presentation. Dr. Vernon suggested two additional weeks (four sessions) of treatment was reasonable, at $95 per session.
Mr. Siddiqui reported to the DAC's examining massage therapist that his neck problems had resolved, but his upper and lower back pain continued. Mr. Slawomir Swierzbinski agreed with Dr. Vernon that Mr. Siddiqui should have recovered within three months of the accident, contradictorily noting on examination he had decreased forward flexion, bending, rotation and extension, with localized pain in the mid-thoracic spine and tenderness in his back muscles. Mr. Swierzbinski's observations do not support his and Dr. Vernon's reliance on the three month expected recovery time.
However, there is no reliable evidence disputing the surveillance of Mr. Siddiqui in June 2006. He appears to be working at an electronics store. He briskly walks, jogs to cross the street and otherwise acts without any difficulty for considerable time periods. Mr. Siddiqui did not testify to explain his activities, and I infer from the surveillance videos that he had fully recovered.
The disparity between Mr. Siddiqui's informal presentation and formal examinations is supported by a comparison of his activities in the June 2006 surveillance with his presentation at Dr. White's June 2006 re-examination. Mr. Siddiqui made severe complaints to Dr. White. He used a cane to support himself. He denied any work since the accident, and said he was unable to bend more than a few degrees. This evidence establishes that Mr. Siddiqui significantly exaggerated his injuries and disability to the treating and examining health care professionals, strongly contradicting the assertion he suffered pain necessitating treatment.
Conclusion on Treatment:
I find that Mr. Siddiqui sustained a mild soft tissue neck and back injury as a result of the accident. Although he is entitled to treatment for ongoing pain and disability, I find that he has exaggerated the extent of his condition to health care examiners and treating professionals, and has not provided them with a reliable basis to determine his treatment needs.
Mr. Siddiqui did not testify to explain why he needed the treatment, and his exaggeration reduces the weight of Mr. Phillips' February 2006 note of bending problems and Mr. Swierzbinski's March 2006 examination findings of localized low and mid-back pain.
Dr. Cirone's evidence is not reliable, and there is no reliable health care opinion supporting Mr. Siddiqui's claim, except for Dr. Vernon's recommendation for four additional chiropractic sessions over two weeks at $95 per session. I rely on Dr. Vernon's recommendations to establish the entitlement period and confirm the rate per session, finding that four additional treatment sessions at Victoria Park were reasonable and necessary. I find that Mr. Siddiqui is entitled to payment at $95 per session, totalling $380 for his treatment under Part V of the Schedule.
Dr. Cirone's Examination:
Mr. Siddiqui claims $500 for the cost of Dr. Cirone's July 24, 2006 rebuttal to the Insurer's Examination and the DAC reports, under section 24 of the Schedule, as reasonably required in connection with his claimed treatment. However, Dr. Cirone's report simply reiterates his view that the injuries are severe, the treatment is reasonable, arguing that the other examiners are wrong and that Mr. Siddiqui has made progress at his clinic.
Dr. Cirone's report does not give supporting diagnostic information, clinical data or analysis. His report supplies nothing different than his previous unsupported conclusions. I find that Dr. Cirone's report lacks usefulness and is not reasonably required in respect of the claimed treatment. Mr. Siddiqui is not entitled to payment for Dr. Cirone's report.
Special Award:
Mr. Siddiqui claims that TTC unreasonably denied or delayed payment of his claimed treatment, and he is therefore entitled to a special award under subsection 282(10) of the Insurance Act. In this case, TTC tendered little evidence disputing the DAC opinion that four additional treatments are reasonable and necessary. I find that TTC unreasonably denied paying $380 for those sessions, and it is appropriate to award Mr. Siddiqui an additional $200 as a special award. This modest sum sends the message that a more dramatic figure might attach where the proposed treatment awarded is significantly greater.
EXPENSES:
Although Mr. Siddiqui is largely unsuccessful in this matter, it is balanced by the short, efficient presentation of the case and TTC's refusal to abide by the DAC recommendation. My inclination is to leave each party to handle their own expenses of this arbitration. However, if the parties wish to make an issue of their claims for the expenses of this arbitration (refer to Rules 75 through 79 of the Dispute Resolution Practice Code), they should identify their specific differences on entitlement and quantum before contacting the caseworker to arrange an assessment within 30 days of this order.
April 20, 2007
Fred Sampliner
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 79
FSCO A06-001439
BETWEEN:
TAUSIF AHMED SIDDIQUI
Applicant
and
TTC INSURANCE COMPANY LIMITED
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
TTC shall pay Mr. Siddiqui $380 for his treatment at Victoria Park under Part V of the Schedule, together with interest in accordance with subsection 46(2) of the Schedule.
Mr. Siddiqui's claim for Dr. Cirone's assessment under section 24 of the Schedule is dismissed.
TTC shall pay Mr. Siddiqui $200 as a special award under subsection 282(10) of the Insurance Act.
The parties' claims for their expenses of this arbitration under subsection 282(11) of the Insurance Act are deferred for 30 days.
April 20, 2007
Fred Sampliner
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Part V of the Schedule