Zully Tello-Medina v. State Farm Mutual Automobile Insurance Company, 2010 ONFSCDRS 49

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 49

FSCO A09-000033

BETWEEN:

ZULLY TELLO-MEDINA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: William J. Renahan

Heard: February 16 and 17, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mark Phillips for Ms. Tello-Medina Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Zully Tello-Medina, was injured in a motor vehicle accident on July 30, 2006. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company, payable under the Schedule.¹ State Farm refused to pay for treatment provided by Finch-Weston Rehabilitation Clinic described in treatment plans dated April 17, 2008 and October 23, 2008. The parties were unable to resolve their dispute through mediation, and Ms. Tello-Medina 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 Ms. Tello-Medina entitled to $2,261.56 for treatment provided by Finch-Weston Rehabilitation Clinic?
Is either party entitled to expenses of the arbitration proceeding.

Result:

The application for arbitration is dismissed.
The issues of entitlement to and amount of expenses of the arbitration hearing are deferred.

EVIDENCE AND ANALYSIS:

Background:

On July 30, 2006, Ms. Tello-Medina was moving to a new house and helping with the unloading of a truck. As she was walking across the street to return to the truck, she was struck on the left side by a motor vehicle. An ambulance took Ms. Tello-Medina to the hospital and after the staff determined that she had not suffered any broken bones, she returned home.

In January 2009, Arbitrator Lee dealt with some of her accident benefit claims arising out of this accident. Although both Mr. Phillips’ firm and Mr. March appeared at the earlier arbitration, neither could provide any information as to why the Finch-Weston services were not dealt with at the earlier hearing.

Ms. Tello-Medina attended therapy at another clinic for eleven months before State Farm terminated payments in about the summer of 2007. The referral to Finch-Weston was made following arthroscopic surgery on Ms. Tello-Medina’s left knee in March 2008.

Dr. A. Tountas performed arthroscopic day-surgery on the left knee to treat “chondromalacia patella, type 3, involving the patellar side of the joint.” Ms. Tello-Medina’s family doctor, Dr. P. Safieh, described the operation as scraping and cleaning the bony and ligamentous surfaces.

After the surgery, Dr. Tountas gave Ms. Tello-Medina a slip of paper referring her to physiotherapy. Ms. Tello-Medina gave the paper to Dr. Safieh, and he referred Ms. Tello-Medina to Finch-Weston.

The issues include whether the knee injury and resultant operation were caused by the accident and whether the treatment performed by Finch-Weston was reasonable and necessary within the meaning of section 14 of the Schedule.

Rulings:

Issues:

Mr. Phillips raised treatment under a third treatment plan dated March 3, 2009 as an issue in this hearing. Mr. March objected to me hearing this issue because he was not aware that this would be an issue. The arbitrator who conducted the pre-hearing on July 30, 2009 identified treatment rendered under the first two treatment plans as issues. She did not identify treatment rendered under the third plan as an issue. It was not raised as an issue until the first day of this hearing. In view of Mr. March’s claim that he was not prepared to address the additional treatment and since it was never identified as an issue, I will not deal with it.

Admissibility of documents:

Mr. Phillips tendered as evidence, documentary exhibits Ms. Tello-Medina relied on at the first hearing. Mr. March objected to their admission on the grounds that the evidence was not served on him 30 days prior to the hearing as required by Rule 39 of the Dispute Resolution Practice Code, Fourth Edition. Mr. Phillips was not able to prove service or extraordinary circumstances to justify me granting permission to serve the documents less than 30 days before the first day of the hearing. I refused to admit the documents.

On the second day of the hearing, Mr. Phillips tendered a letter dated January 11, 2010 to Mr. March and faxed to Mr. March more than 30 days before the hearing, which stated:

In anticipation of the upcoming arbitration, please find enclosed the Supplementary Arbitration Brief and previously Arbitration Brief [sic] of the applicant, served upon you pursuant to the Dispute Resolution Code.[sic]

Mr. March said he did not receive the letter. Mr. March had sent Mr. Phillips a similar letter which indicated that he was relying on the brief filed in the earlier arbitration hearing.

Mr. March’s assertion that he did not receive Mr. Phillips’ letter until the hearing is irrelevant. The issue is whether the letter was served on him 30 days prior to hearing. I find that the letter was sent and received and that the Applicant’s documentary brief was properly served and is admissible.

Adjournment:

Mr. March asked for an adjournment to allow him time to review what he called new material and consider whether he wanted to cross-examine Ms. Tello-Medina on the new material. I declined the request for an adjournment because Mr. March’s failure to review the material was due to his own failure to read Mr. Phillips’ letter to him indicating that the Applicant was relying on that material.

Causation:

Ms. Tello-Medina testified that she has had left knee pain since the accident. The ambulance call report notes that she was complaining of left knee and ankle pain. A week after the accident, Ms. Tello-Medina’s family doctor at that time recorded that Ms. Tello-Medina had two large haematomas above the left knee. She had a normal x-ray of both knees on October 12, 2006. Ms. Tello-Medina changed family doctors to Dr. P. Safieh who ordered an x-ray of the left knee which was normal. He referred Ms. Tello-Medina to Dr. A. Tountas, an orthopaedic surgeon. In his consultation report to Dr. Safieh, Dr. Tountas wrote that Ms. Tello-Medina was complaining of pain in the left knee since the motor vehicle accident six months earlier. He ordered an MRI which revealed “There is some high signal within the patella bone consistent with bony edema with associated cartilage fissuring consistent with advanced chondromalacia patella.” Dr. Tountas performed arthroscopic surgery on the knee on March 20, 2008.

The only opinion evidence of the issue of causation is that of Dr. Bereznick, a chiropractor, who assessed Ms. Tello-Medina for State Farm in November 2008 and wrote:

I further recognize that Ms. Tello-Medina underwent surgery of her left knee, however the surgery in my view would be unrelated to the date of loss but rather related to pre-existing degenerative changes.

I found no evidence that Ms. Tello-Medina suffered from knee pain prior to the accident. The area around the left knee was bruised when the vehicle struck her on the left side. She continued to complain of knee pain and undergo investigations of her knee from the time of the accident until the operation. In coming to his opinion on causation, Dr. Bereznick does not deal with Ms. Tello-Medina’s history of knee pain and investigations. Other than Dr. Bereznick’s unsubstantiated opinion, I heard no explanation of what caused the “chondromalacia patella, type 3, involving the patellar side of the joint” which Dr. Tountas found. Having regard to Ms. Tello-Medina’s history, I find it likely that her knee problem and need for surgery were caused by the trauma of the accident.

The referral:

In his letter to Dr. Safieh following the surgery, Dr. Tountas said that Ms. Tello-Medina was feeling better since the surgery and that he had sent her for a period of physiotherapy. Ms. Tello-Medina testified that Dr. Tountas gave her a prescription paper for physiotherapy which she gave to Dr. Safieh. She testified that Dr. Tountas did not explain why he sent her to therapy. Dr. Safieh said that he sent her upstairs to the Finch-Weston clinic in his building. The referral note was not in evidence.

The treatment:

The treatment was performed by Dr. Adam Skolnik, a chiropractor at the Finch-Weston Rehabilitation Clinic.

In his first treatment plan, dated April 17, 2008, Part 7 asks for a description of the injuries and sequelae listing the most significant first. Dr. Skolnik answered Part 7 as follows:

Chronic post-traumatic headache

Dizziness and giddiness

Whiplash associated disorder [WAD 2] with complaint of neck pain with

Low back pain

Sprain and strain of lateral collateral ligament of knee

Other sleep disorders.

The second treatment plan dated October 23, 2008, is similar with the omission of the WAD 2 injury.

Ms. Tello-Medina testified that the treatment focussed on her knee and lower back. She had electro massage on the back and ultrasound on the knee. She said that Dr. Skolnik treated her lower back because he asked her where the pain was. She said that at the completion of the therapy her knee was a lot better and that her back still hurts.

In his report, Dr. Bereznick described the therapy as “20 minute sessions of T.E.N.S. applied to her lower back, 15 minute sessions of ultrasound applied to her left knee, resisted leg extension, lower back stretching and no other therapy.”

Dr. Bereznick had Dr. Tountas’ referral for physiotherapy in his “Documentation Listing” and other than writing that the knee surgery was unrelated to the accident, he does not specifically deal with the referral for physiotherapy.

Whether therapy was reasonable and necessary:

Dr. Bereznick concluded that the therapy Ms. Tello-Medina received was passive and that after two years and three months, providing passive therapy creates the risk of developing physician dependency and pain focussing which outweighs the likelihood of achieving therapeutic gain. He also concluded that the knee operation was unrelated to the accident.

I place little weight on Dr. Bereznick’s opinion because he did not demonstrate an understanding of Ms. Tello-Medina’s history of knee complaints and he did not deal with Dr. Tountas’ referral for physiotherapy.

Dr. Skolnik listed Ms. Tello-Medina’s knee problem as fifth in her priority list of injuries, although it was the sole reason she was referred for physiotherapy. He describes her injury as a “sprain and strain of lateral collateral ligament of knee.” This description has no relationship between Dr. Tountas’ post-operative diagnosis of “chondromalacia patella, type 3, involving the patellar side of the joint.” Dr. Skolnik’s records do not demonstrate any knowledge of Ms. Tello-Medina’s problem or reason for attending his clinic. I find that the treatment he provided was neither reasonable or necessary.

EXPENSES:

If the parties cannot resolve the issue of entitlement to expenses, they may make written submissions. The party requesting expenses shall make submissions within 30 days of the date of this decision and the other party has 20 days to respond. If necessary, I will deal with the amount of any expenses after entitlement is agreed or determined.

April 19, 2010

William J. Renahan Arbitrator

Date