L.G. v. Lombard General Insurance Company of Canada, 2010 ONFSCDRS 119

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 119

FSCO A09-000531

BETWEEN:

L.G.

Applicant

and

LOMBARD GENERAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Jessica Kowalski

Heard: May 20 and 25, 2010, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: L.G. acting in person

Mr. Harry Brown, counsel for Lombard General Insurance Company of Canada

Issues:

The Applicant, L.G., was injured in a motor vehicle accident on January 20, 2003. She applied for and received statutory accident benefits from Lombard General Insurance Company of Canada (“Lombard”), payable under the Schedule.¹ Issues arose concerning benefits claimed by L.G. and the parties were unable to resolve their disputes through mediation. L.G. 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 identified by L.G. in this hearing are:

Is L.G. entitled to a medical benefit of between 5,000 and 7,000 euros for breast reconstruction surgery in Germany?
Is. L.G. entitled to a medical benefit of $21,779.10 for treatments and therapy at the Integrated Health Recovery?
Is L.G. entitled to a further medical benefit, being “all other surgery related to” this accident (where no particulars have been provided)?

Result:

L.G. is not entitled to payment from Lombard of between 5,000 and 7,000 euros for breast reconstruction surgery in Germany involving the reconstruction of nipples that were removed during her November 20, 2001 mastectomy.
Lombard has settled L.G.’s outstanding account for treatments and therapy directly with Integrated Health Recovery so that there is no balance owed by L.G. and this issue is dismissed.
L.G. is not entitled to payment for what she has identified as “all other surgery related to” the January 20, 2003 accident where no particulars have been provided.

PRELIMINARY ISSUES:

I will first address items 2 and 3, above, which I dealt with as preliminary issues at the outset of the hearing.

Cost of rehabilitation treatments by Integrated Health Recovery:

L.G. claims the cost of rehabilitation treatments by Integrated Health Recovery (“Integrated Health”) in the amount of $21,779.10.

At the start of the hearing, Lombard submitted that it had resolved this account directly with Integrated Health.

By fax dated December 22, 2009, Integrated Health made an offer to settle L.G.’s account directly with Lombard, writing the following:

Please be advised that Integrated Health Recovery will accept the sum of $11,200.00 in final settlement of [L.G.’s] account with respect to the [January 20, 2003] loss.

This offer is made on a without prejudice basis and if this offer is not accepted then and this matter proceeds to Arbitration, Integrated Health Recovery will seek the entire amount outstanding.

Kindly provide in writing that you will accept this sum with payment to follow.²

The fax contains a handwritten notation with a reference number. The notation states that $11,200.00 was paid on December 22, 2009. Mr. Bob Lovewell, who attended this hearing on behalf of Lombard, confirmed that Lombard did pay that amount directly to Integrated Health.

L.G. nevertheless continued to raise concerns at the hearing about personal liability to Integrated Health. She feared exposure because Integrated Health’s December 22, 2009 fax was unsigned.

At my request, during a break in the hearing on May 20, 2005, Lombard requested and produced from Integrated Health a further letter, this one from the clinic director Vladimir Levitin. That fax confirms Lombard’s evidence that the account was settled. It reads as follows:

Please be advised that the account for [L.G.] with respect to the above-noted accident regarding treatment received for injuries sustained has been resolved directly with Bob Lovewell of Lombard Insurance. [L.G.] does not owe any monies to Integrated Health Recovery for services received.

This file is now closed.³

Although this fax too, was unsigned, I found that both faxes from Integrated Health, together with Mr. Lovewell’s confirmation at the hearing, were sufficient evidence that Integrated Health’s account for L.G.’s treatment had been satisfied and that this issue was resolved. L.G’s claim for this medical benefit is therefore dismissed.

Medical Benefits – All other surgery related to accident:

In a pre-hearing on January 29, 2010, L.G. added a claim for “All other surgery related to Accident.” In setting out the issue, the pre-hearing letter dated February 2, 2010 notes “No estimate provided.”

Section 281(2) of the Insurance Act provides, among other things, that no person may bring a proceeding in any court or refer the dispute to an arbitrator (under section 282) unless mediation was sought and failed.

I dismissed this claim at the start of the hearing on the grounds that, in absence of particulars and where no specific benefit has been mediated, this amorphous claim could not proceed to arbitration. This dismissal does not preclude L.G. from applying for further benefits, for surgery or otherwise, from injuries arising directly from the January 20, 2003 accident in compliance with the Schedule.

EVIDENCE AND ANALYSIS:

Background

On January 20, 2003, L.G. was a pedestrian crossing at the northeast intersection of Avenue and Davenport roads in Toronto when she was struck by a car turning right. L.G. testified that she was hit on her left side. She engaged an altercation with the driver and later attended Sunnybrook & Women’s College Health Centre’s (“Sunnybrook”) emergency unit as a walk-in patient. An independent witness statement collected by Lombard described the striking car as a slow-moving SUV whose driver stopped immediately to assist L.G. The witness statement (taken April 10, 2003) noted L.G. holding her hands at the scene. Police laid no charges.

An emergency room report dated January 20, 2003 from Sunnybrook where L.G. attended after the accident noted L.G.’s complaints of pain to her left hand, but no concerns about her breasts or implants. An x-ray of her hand disclosed “…no significant soft tissue, bone or joint abnormalities noted” and was “unremarkable”. There were no tests done on L.G.’s breasts.

Some fourteen months before the accident, L.G. had undergone reconstructive surgery on her breasts. A further reconstruction, specifically to deal with the nipples, was to take place some time after the accident. According to L.G. the accident intervened in that she sustained injuries to her neck. Those injuries, says L.G., preclude her from completing her nipple reconstruction in Ontario, where she says the surgery can only be performed under general anaesthesia via endotracheal intubation. She argues that can no longer be intubated because of her neck injuries without serious risk of harm. She claims to have found a doctor in Germany who will reconstruct her nipples under local (or light) anesthesia. She seeks the costs of the procedure in Germany, which she says are estimated to be between 5,000 and 7,000 Euros.

The Breast Reconstruction Surgery

L.G. has suffered from painful and fibrous breasts and cancer phobia. On November 30, 2001, she underwent a bilateral prophylactic mastectomy with immediate reconstruction of her breasts with implants. The surgery included the removal of her nipples and areolas that would be regrafted or reconstructed in a second stage. A date for the second stage surgery was rescheduled multiple times after the November 30, 2001 procedure but was never completed, and the evidence shows that L.G. cancelled multiple follow-up appointments with Dr. Drever, the plastic surgeon who performed the operation, even after the accident.

It was not until January 6, 2004 that L.G. finally met again with Dr. Drever to discuss the second stage surgery (concerning the nipples). By that time and before booking the surgery, Dr. Drever asked for an anaesthesia consultation because he had concerns with a CT scan that showed some spondylosis in L.G.’s neck.

According to L.G., the risks of completing the surgery in Ontario are now too high. She claims she was told that it was impossible for her to have the surgery in Ontario without general anaesthesia administered by endotracheal intubation. She claims that those increased risks, which she says include increased breast pain, paralysis or even death, arise because of the neck injuries she sustained in the accident. She refused to consent to the surgery because of the now increased risk of complications but that general anaesthesia by intubation is the only option available to her in Ontario — an option that she can longer consider.

L.G. argues that a clinic in Germany will perform the procedure under what she called “local” anesthesia (but referred to as “light” in documents). She accordingly seeks an order for the 5,000 to 7,000 euros she says it will cost to have the surgery in Germany.

Lombard relies on the definition of “accident” in section 2(1) of the Schedule: an incident in which the use or operation of an automobile directly causes an impairment. It argues that L.G.’s nipples were removed before the accident. Further, pursuant to section 60(2) of the Schedule, Lombard argues that it is not required to pay for an expense for which payment is reasonably available to L.G. under any insurance plan or law or under any other plan or law, in this case, OHIP. Because OHIP covered the breast reconstruction, the second stage of that surgery – being the reconstruction of the nipples – would also be covered by OHIP.

Finally, Lombard argues that it is not reasonable or necessary, pursuant to section 14(1)(2) of the Schedule, for it to pay for surgery in Germany when the surgery is available in Ontario without endotracheal intubation.

The Evidence:

L.G. claims she felt as though her breast implants might have been ruptured, torn or detached as a result of the accident. Apart from L.G.’s self-reported concerns, there was no imaging contemporaneous with the accident that would support that her implants actually ruptured or were somehow altered as a result of the accident.

In early 2004, after complaints of ongoing pain and concerns of asymmetry, L.G. underwent an ultrasound and MRI of her breasts.

On February 13, 2004, L.G. attended at the North York General Hospital for an ultrasound of both breasts. The imaging report noted the following:

We cannot detect anything on bilateral breast ultrasound today that would explain her symptoms but certainly cannot rule out the possibility of a previous leak from the left implant although no findings to suggest a leak are evident today. An MRI of the left chest wall and left breast might be of help…. [emphasis mine]⁴

On March 29, 2004, L.G. attended at Mount Sinai Hospital for a bilateral MRI of her breasts to exclude leaks. Dr. Marcus Dill-Macky performed the imaging but found no evidence of an intra- or extracapsular leak and no extracapsular silicone. In his report dated March 30, 2004, Dr. Dill-Macky wrote that:

Bilateral subpectoral silicone prostheses are demonstrated in situ. The elastomer shells are clearly demonstrated with prominent radial folds posteriorly. A small amount of water is present within these folds lying between the elastomer shell and fibrous capsule, normal finding. No linear signal abnormalities are identified within the silicone gel to suggest elastomer collapse. No evidence of an intra- or extracapsular leak on either side.

The prostheses appear symmetric in size and position. No distortion to suggest a rent in the fibrous capsule or abnormal fibrous reaction. [emphasis mine]⁵

Dr. Dill-Macky concluded his report, under the heading “Comment”, as follwos:

Symmetric intact subpectoral silicone implants. No evidence of an intra-or extracapsular leak. No extracapsular silicone.⁶

Before the hearing, L.G. met with Dr. Dragan Djordjevic, an anesthesiologist at Women’s College Hospital to discuss surgical options after a referral from her family physician. L.G. submitted his consultation report dated May 11, 2010 as an exhibit at the hearing.

In that report, Dr. Djordjevic considered access to L.G.’s airway, noting an upper denture and no flexion or extension. He assessed her as having a mallimpati score of 3, referring to difficult intubation. He also wrote that L.G.’s nipple reconstruction could be done under general anesthesia without an endotracheal tube. Specifically, Dr. Djordjevic reported that:

[patient] has anxiety about surgery, anesthesia
Nipple reconstruction can be done under general anesthesia, using LMA (Laryngeal Mask Airway) (no endotracheal tube)⁷

L.G. submitted that she did not know that she could have the surgery in Ontario without endotracheal intubation until Dr. Djordjevic’s report was transcribed for the hearing.

The Clinic in Germany

After she was told of the risks of intubation for the nipple reconstruction and second stage breast augmentation, and incredulous that the surgery could not apparently be done in Ontario without intubation, L.G. says she turned to the internet and searched for physicians who could perform the nipple reconstruction under what she described as “local” or light anaesthesia without the need for intubation.

Her search led her to Dr. Dirk Kremer, a plastic surgeon in Germany. L.G. never met or consulted with Dr. Kremer. In fact, the only direct communication she has from his clinic is an email exchange with a “B. Koch, office manager”. In that email exchange on April 9 and 10, 2008, L.G. wrote to Dr. Kremer’s clinic that she needed breast augmentation with implants and nipple restoration. She asked “if this surgery could be performed under light anaesthesia” and asked how much it would cost.

In response to L.G.’s inquiry, B. Koch wrote back that “[i]ndeed this procedure can be performed under light anaesthesia”, that “costs vary depending on the procedure between 5000 and 7000 Euro”, and finally that “[w]e advise you to book a consultation with Dr. Kremer for a careful examination.”⁸

L.G. never booked a consultation, has never met with or been examined by Dr. Kremer (or anyone at his clinic), and has never submitted a request, treatment plan or other document to Lombard seeking approval for or particulars of the procedure. Without even having met the doctor that she proposes will restore her nipples, she has adduced no evidence that she is even a candidate for the surgery under the light anaesthesia referred to in her email. Having provided an estimate based only on a brief inquiry and email exchange with Dr. Kremer’s office manager, L.G. has not demonstrated that it is reasonable or necessary for Lombard to pay for this procedure pursuant to section 14 of the Schedule.

Finally, based on Dr. Djordjevic’s consultation report, I find that the surgery is available to L.G. in Ontario without endotracheal intubation. Even if L.G. had sought approval from Lombard and had met with Dr. Kremer who would have completed a treatment plan or request that was submitted to Lombard, I find it unreasonable to require Lombard to pay for surgery overseas that is available to L.G. here.

L.G.’s application is accordingly dismissed.

EXPENSES:

Lombard submitted at the hearing that, in the event it was successful in this arbitration, it would not seek an order that L.G. pay its expenses. There will be no order for expenses.

October 1, 2010

Jessica Kowalski Date

Arbitrator