Chor Fong Chung v. Intact Insurance Company, 2012 ONFSCDRS 107

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 107

FSCO A10-002750

BETWEEN:

CHOR FONG CHUNG

Applicant

and

INTACT INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: John Wilson

Heard: January 16, 17, 18, 19 and 20, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Miguel Maruszki for Mrs. Chung Anna-Marie Musson for Intact Insurance Company

Issues:

The Applicant, Chor Fong Chung, was involved in a motor vehicle accident on August 22, 2008. She applied for and received certain statutory accident benefits, including costs of examinations, housekeeping, attendant care and medical benefits from Intact Insurance Company (“Intact”), payable under the Schedule¹, while eventually others were refused. The parties were unable to resolve their disputes over benefits through mediation, and Mrs. Chung 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 referred to this hearing are claims for:

housekeeping
medical benefits
attendant care benefits
cost of examinations

Principal among these were the cost of examinations and various treatments. The Insurer, from the start of the dispute, characterized the surprising number and cost of examinations as abusive. Indeed, it called into question the bona fides of many of the examiners, and questioned whether the examinations themselves were conducted as claimed.

At the outset of the hearing, counsel for Mrs. Chung advised that a variety of medical claims and assessments were being withdrawn, leaving principally treatment and assessment by Toronto Healthcare Inc., Fairview Assessment Centre, and a rehabilitation claim by Pacific Assessment Centre.

I note that even with the unilateral withdrawal of issues from arbitration, without the consent of both parties elements of those claims may remain before an arbitrator. In this case, the Insurer was not consulted on the withdrawal of any issues, and did not consent to the withdrawal. In the aim of efficiency, however, the hearing concentrated on those issues remaining in dispute as identified by counsel.

Result:

All issues, including those purportedly withdrawn at the outset of the arbitration and contained in Schedule “A” of the Application for Arbitration, are hereby dismissed.

EVIDENCE AND ANALYSIS:

There is no issue that Mrs. Chung was involved as a passenger in a relatively serious motor vehicle accident. Indeed, the real issue driving this hearing was whether Mrs. Chung is rightfully entitled to payment for a plethora of assessments and treatment that was claimed subsequent to the accident.

Costs of Examinations:

Although the Insurer claims to have received some forty-one OCF-22s and paid around $121,000 for assessment costs to date (on both Mrs. Chung’s and her daughter’s cases), the Application for Arbitration lists some thirty-eight further claims ranging from $63.72 to $2,463.72. (These were reduced significantly at the hearing itself.)

The Insurer characterized these assessment claims as not only excessive and unreasonable, but also inappropriate and an abuse of process. Counsel for Mrs. Chung on the other hand presented the claims as simply a reasonable and necessary response to Mrs. Chung’s problems that arose from the undisputed accident.

Although the accident in question was far from minimal – two vehicles collided at road speed in an intersection − Mrs. Chung was spared major injury. She was able to be helped from the vehicle by passers-by, and indeed, according to her daughter, assisted her in leaving the vehicle as well. An ambulance and the fire department were called however. Paramedics put ice on her hand, which was swollen, and then she was taken to hospital for examination.

Subsequent to the accident, Mrs. Chung complained of hand pain, pain in the upper, lower back and pain in the mid-back. She also mentioned headache and jaw pain, as well as numbness in the neck.

While her knee and ankle resolved quickly, she stated that she continued to have general pain and difficulty sleeping for some time after the accident. However, she did return to work within three weeks of the motor vehicle accident.

In the broad spectrum of accident-related injuries, Mrs. Chung’s longer term, accident-related problems were relatively minor.

A significant number of the assessments were provided as rebuttal reports in accordance with section 42.1 of the Schedule as it read at that time. Rebuttal reports deserve some mention. Black’s Law Dictionary² defines rebuttal as the “contradiction of an adverse party’s evidence.” Indeed, section 42.1 of the Schedule expressly provides that a rebuttal report is limited to those portions of the section 42 report that an insured calls into question. It is not a starting point for a new round of assessments unrelated to the points in dispute.

The purpose of a rebuttal report then is to address any faulty logic or conclusions in an insurer’s report. While it may point to different evidence than that considered by an insurer’s report, it should derive its form and function from the report it intends to critique. Simply filing a new report outlining an opinion that does not relate in any substantive way to the report being critiqued does not necessarily constitute a compensable rebuttal for the purposes of the Schedule.

On August 23, 2010, Drs. D’Onofrio and Grossi, both medical doctors associated with the Pacific Assessment Centre, conducted a rebuttal assessment of an insurer’s report declining to fund Aqua Massage Therapy.

Their report merely cites the Insurer’s assessor’s comments that 22 months after the accident Mrs. Chung’s soft tissue injuries should have resolved, and states “it is my clinical opinion that the treatment of aqua massage therapy as recommended would help Mrs. Chung restore her physical self to the activities she was able to do prior to the accident.” Totally absent was any recognition that Mrs. Chung had been able to work almost without interruption for much of the previous two years, and her comments to other assessors as early as November 28, 2008 that she had resumed all pre-accident activities, albeit with some pain at that time. I see little utility in a rebuttal that blithely ignores Mrs. Chung’s actual condition and functionality and merely contradicts an assessor’s finding rather than providing informed criticism.

Unfortunately, this rebuttal report is typical of the many filed on behalf of Mrs. Chung, and for which she claims compensation.

In Mrs. Chung’s case, a single assessment, or indeed none at all, could generate multiple claims for reports. A typical example was a single in-home assessment which was undertaken by Dr. Tamir of the Pacific Assessment Centre. This generated both a housekeeping report and an attendant care report, both of which are similar and both of which were separately billed to the Insurer.

At the hearing, no further evidentiary context was given to these reports. Mrs. Chung appeared to have no useful recall of them. Neither Dr. Tamir nor anyone from Pacific Assessment testified as to the utility of further housekeeping and attendant care reports at a time when Mrs. Chung was working and dressing herself to prepare for work each day without assistance.

Mrs. Chung also claimed for a “follow-up psychological assessment” through Pacific Assessment.

Avi Davis, a psychometrist, wrote the report, while some actual services were carried out by a treating social worker (later noted as Steve Terris). The notes of the session produced however were said to be those of a Mr. Ayal Senior who does not figure anywhere in the treatment plans or reports.

The invoices from Pacific Assessment listed Mr. Davis as a treatment provider for Mrs. Chung, and billed Intact for his services. Mr. Davis admitted in his testimony, however, that he did not see Mrs. Chung for any treatment or evaluation sessions. However, he explained the invoices away with the observation that “if I’m supervising then I’m responsible.”

Mr. Davis was directed to a series of invoices from April to June 2010 which billed for extensive services in his name, and confirmed that he had not provided any of the services that were billed.

In many cases, the presence of a properly documented bill for services rendered by a treatment provider might be considered prima facie evidence that the work was done in the manner and over the time outlined in the bill.

In this case, however, there are so many discrepancies between what was billed for assessments and what actually took place that I am loathe to give any evidentiary value as such to the accounts submitted by Toronto Healthcare, Fairview Assessment, Pacific Assessment, and their various assessors.

In fact, they cry out for corroborating evidence of their validity which was not provided. While Mrs. Chung testified, her recall was so vague as to provide no corroboration at all. The absence of the assessors from the hearing does not dissipate any suspicions of the accuracy and, indeed, the bona fides of the examination expenses submitted by Mrs. Chung.

In the absence of any such credible evidence, I find that the examination expenses referred to arbitration by Mrs. Chung have not been shown to be either reasonable or necessary in the context of this motor vehicle accident benefit claim.

Medical Treatment Claims

Mrs. Chung referred eleven different medical claims to arbitration, of which nine were “withdrawn” during the arbitration hearing.

The remaining claims, which included a course of massage, chiropractic exercise, passive modalities and acupuncture at Toronto Healthcare, and custom orthotics at Pacific Assessment, received some attention at the hearing, while other evidence dealt with discrepancies between services billed and those actually provided by the various service providers.

Mrs. Chung attended treatment at a facility shortly after the accident. She said that she was referred by her lawyer, whom she appeared to have consulted before her own family physician.

As noted, the course of treatment provided to Mrs. Chung, together with the assessments performed or proposed to be performed, constituted the heart of this dispute.

Unfortunately Mrs. Chung had little recall of either the assessments or the treatment given to her. Nor did she call treatment providers or assessors to fill the factual void created by her limited memory.

She did recall being treated for about a year following the accident, although she could not recall the identity of the treatment providers. Some were accessed through Toronto Healthcare where she believed that she signed in for each treatment. However, no copies of any sign-in sheets were produced by Mrs. Chung.

Mrs. Chung believed that her treatment helped in temporarily relieving her pain complaints, although her condition varied with treatment. Indeed, her evidence is basically that “It helps every time I visit Toronto Healthcare.” Unfortunately, her recall is not specific enough to go further.

A copy of a treatment plan from Toronto Healthcare was filed by Mrs. Chung. It showed that on December 30, 2008 there was a recommendation for six weeks of massage, exercise and passive treatment, for a total of $1,583.72.

This was followed by a subsequent treatment plan dated February 13, 2009 for electrotherapy, massage therapy and exercise. This was also $1,583.72.

Although neither treatment plan mentioned acupuncture, an OCF-21 (billing), submitted by Toronto Healthcare related to these two treatment plans, claimed reimbursement for some 34 minutes of acupuncture, and 23 minutes of chiropractic therapy in addition to the modalities listed in the treatment plans.

A subsequent treatment plan dated April 6, 2009 did include acupuncture, as well as massage and exercise, for a total of $763.72.

Toronto Healthcare submitted a further treatment plan on June 3, 2009, including twelve weeks of massage and exercise, also in the amount of $783.72.

While a further treatment plan was filed on August 18, 2009 for chiropractic home exercises and an exercise mat, the records of Toronto Healthcare as filed show no further treatment sessions after August 11, 2009.

While Mrs. Chung’s recollection was that treatment sessions were about one hour at a time, the treatments described in the clinic’s billing (OCF-21s) are not congruent with such a pattern. Indeed, it is unclear whether one can rely on the billing statements put forward by Toronto Healthcare as being reflective of the actual services provided.

Mrs. Chung, of course, has the burden of proving her entitlement to benefits and, in the case of both treatment and examinations under section 24 of the Schedule, the reasonableness and the necessity of such treatment/examinations and the fact that the need for such arose as a consequence of a motor vehicle accident.

Mrs. Chung’s testimony about her course of treatment was somewhat vague, which was somewhat understandable since she was speaking without notes of events more than two years past. In addition to her own testimony, she also provided some documentary evidence relating to the treatments and assessments including, for the most part, billings and apparently incomplete clinical records for the service providers.

Although she initially proposed calling some of the treatment providers and assessors, none were called on her behalf. Rather, one appeared for cross-examination at the instance of the Insurer. Without the testimony of specific treatment providers, and in light of Mrs. Chung’s vague memory, it is hard to determine either the reasonableness or necessity of most treatments.

An example of treatment claimed was the relaxation CDs provided by Dr. Steiner and for which Intact was billed. Mrs. Chung had no specific recall of Dr. Steiner although “his name is kind of familiar to me.” Nor could Mrs. Chung remember how many CDs were provided by Dr. Steiner. Although Mrs. Chung stated that they helped her, there was very little detail as to how and why the relief they provided was related to the accident.

Presumably Mrs. Chung had some difficulty falling asleep, and the CDs seemed to help her overcome that challenge. It should be noted that Mrs. Chung required the use of an interpreter throughout her testimony and clearly had serious challenges in English. There was, as well, no explanation as to how CDs, said to consist largely of the spoken word in English, would be of use to an apparently unilingual Cantonese speaker.

Likewise, for the treatment plan for orthotics recommended by Dr. Calicchia, Mrs. Chung has no recall of seeing Dr. Calicchia in connection with this treatment plan. Dr. Calicchia’s recommendation shows some inconsistencies since he notes that Mrs. Chung is not working and complained of foot problems, when indeed she was back to work within a few weeks of the accident and, in her testimony, did not mention any accident-related problems with her feet.

The OCF-21 issued on October 5, 2009 dealt with the orthotics. However, the invoice for the orthotics and Mrs. Chung’s testimony would place delivery of the orthotics around September 5, 2009, a month before the supporting documentation was issued. Under the scheme created by the Schedule, there is no obligation on an insurer to pay for devices or treatment supplied in advance of a treatment plan. Such would appear to be the case here.

While deference should be given to the principle that something that improves function or reduces pain may be reasonable even without clinical improvement, in this case the total absence of evidence relating to the function and manner in which the CDs were to work leads necessarily to some scepticism about their utility.

Even if I were I to accept that the CDs and the orthotics were useful to Mrs. Chung, there is an absence of evidence supporting whether the condition addressed by the devices in any way relates to the accident.

There is no need to bring into question the credibility of Mrs. Chung as such, when her recall of the treatments is so slight. In such circumstances, even her firm belief that a particular treatment may have been helpful is not highly probative.

It is important to note that Mrs. Chung is a witness who was even unaware as to whether there was a difference between Pacific Assessment and Toronto Healthcare and, on her own evidence, just went where she was told to go. Initially, according to Mrs. Chung, at least the party telling her where to go was her lawyer. Other directions appeared to come from the treatment providers once she began attendance.

Mrs. Chung made no reference to referrals or directions to attend treatment or assessments by any other disinterested medical practitioner such as a family physician.

While I draw no specific negative inference from the failure to call the specific treatment-providers or the persons who recommended each treatment as witnesses, given Mrs. Chung’s limited recall, their presence might well have been helpful in meeting her evidentiary burden.

I find that the documentary records of the treatments being given, flawed as they appear to be, together with Mrs. Chung’s testimony, do not alone satisfy me on the balance of probabilities that each and every proposed treatment was reasonable and necessary.

In fact, given the generalized scope of errors and misstatement in the billings and supporting documentation, I am unable to find any credible supporting evidence that the claims for further treatment contained in the Application for Arbitration have any validity.

Housekeeping

Mrs. Chung claimed housekeeping benefits from August 23, 2008 until August 23, 2010.

The maximum payable under the housekeeping benefit is $10,400 over a period of 2 years. Since Intact paid a full benefit from August 23, 2008 to November 27, 2008 and a reduced benefit from that date, Mrs. Chung can only claim at most to August 23, 2010 in the absence of a catastrophic designation.

As with the treatments discussed above, Mrs. Chung’s recall of the circumstances surrounding her housekeeping claim is a little sketchy.

Mrs. Chung, in her testimony, initially stated that she hired Ms. Yip to do her house cleaning on the Monday following the accident, after having called several acquaintances to ask them to do the work. She did not recall the names of the acquaintances.

Mrs. Chung’s recall of the amount of housekeeping she did prior to the accident is faulty at best. Her memory of the housekeeping services provided after the accident is not much better.

When confronted with an invoice that included a billing for Ms. Yip’s services from the Saturday immediately after the accident, Mrs. Chung corrected herself and stated that the invoice must be right.

According to Mrs. Chung, Ms. Yip attended at the house seven days of the week on a flexible schedule. Most of the cleaning took place while Mrs. Chung was at work.

Some of the invoices filed with the Insurer which are supposed to reflect the work done by Ms. Yip are not congruent with Mrs. Chung’s testimony. Ms. Yip invoiced for services on August 23, 2008, the day of Mrs. Chung’s return from the hospital, while in testimony Mrs. Chung stated that it took her several days to arrange for the housekeeping services.

While Mrs. Chung was unable to clearly identify the hours worked by Ms. Yip, she did recall that the hours worked weekly diminished at some point in the two-year period subject to the claim. The invoices submitted, however, appear to reflect an ongoing claim for the maximum benefit of $100 per week throughout the claims period.

While Mrs. Chung returned to work shortly after the motor vehicle accident, it is not inconceivable that the provision of housekeeping services with its physical demands would have been reasonable and indeed necessary. In Mrs. Chung’s case, however, it should be recalled that aspects of her employment would have been at least as physical as any housework tasks that she would undertake.

As noted, Intact first reduced and then ceased paying benefits on the basis of medical reports from its assessors. The first reduction came as a result of a report by Sharon Gabison on November 16, 2008. Ms. Gabison opined that limited assistance with the heavier tasks only was needed and estimated this assistance at 2.33 hours per week.

A further assessment took place on April 7, 2009. In this assessment, Ms. Gabison noted an ongoing reduction in neck mobility as well as a reduced bending of the back. Ms. Gabison tested Mrs. Chung on the use of various cleaning tools and operations and concluded that the residual symptoms would not interfere with the housekeeping tasks as performed prior to the accident.

Once again, the service provider, in this case Ms. Yip, was not called to testify at the hearing. Although arbitrations encourage parties not to be profligate in the calling of unnecessary witnesses, given the limited recall of Mrs. Chung, her admitted failure to keep records, and the apparent discrepancies in the billings submitted concerning Ms. Yip’s services, it is surprising that she was not called to confirm the work done and the hours claimed.

Given the above, and statements to assessors such as Dr. Souter on July 13, 2009 that light housekeeping had been resumed, not to mention those given to Dr. West on February 1, 2010, I find that Mrs. Chung has simply not made out a case that housekeeping services, beyond those paid, were reasonable and necessary rather than just convenient.

Attendant Care Benefits

Mrs. Chung has claimed for attendant care services in the amount of $98.22 per week from August 23, 2008 until November 21, 2010 in accordance with the Form 1.

Dr. Sole provided a Form 1 for attendant care following an assessment on September 8, 2008. The form listed attendant care needs for assistance with dressing and undressing, hair brushing, shampooing and toenail trimming, as well as bathing and applying lotion. While Mrs. Chung cannot remember Dr. Sole, it is her evidence that Ms. Yip also provided these services in addition to housekeeping.

Intact paid for services at that rate until November 21, 2008, when, on the recommendation of its assessor Ms. Gabison, it terminated benefits. Ms. Gabison’s report concluded that Mrs. Chung was independent in most of her activities of daily living, and that with assistive devices she could undertake all the essential tasks.

Once again Ms. Yip was claimed to be the service provider for the delivery of attendant care services. In her testimony, Mrs. Chung was unable to identify when the attendant care services were provided. She also conceded that she received no assistance from Ms. Yip prior to going to work in the morning, leaving an inference that she was able to dress and undress, and otherwise prepare for work in the mornings without assistance.

There are no supporting records filed establishing the times and duration of attendant care services. Indeed, the comments made by Mrs. Chung in the context of housekeeping that Ms. Yip was given a key and that Mrs. Chung was unaware of when Ms. Yip started or finished her shift (whether it was mornings, afternoons or evenings), suggests that personal contact, a precondition to significant personal assistance in this case, was mainly lacking.

As noted, Intact did pay in accordance with the initial Form 1 for some three months after the accident, even though Mrs. Chung was working for most of the period.

Ms. Gabison’s attendant care report in November 2008 noted that “she was independent with most of her personal care activities” with certain minor exceptions

A subsequent Form 1, prepared on November 25, 2008 by Dr. Heisel in conjunction with Fairview Assessment, noted a need for assistance in transferring to and from her bed to a bathtub or shower. (This at a time when Mrs. Chung was working without accommodation.)

A December 9, 2008 assessment by Dr. Tamir also notes continued difficulty dressing and undressing of her upper body and difficulty with showering, grooming and cleaning her bathroom and changing bedsheets. This at a time when Mrs. Chung by her own admission was putting in a full day’s work and dressing and preparing for work without assistance on a daily basis.

A further in-home assessment by Dr. Sole on March 9, 2009 acknowledged Mrs. Chung’s statement that she was independent with regard to self-care activities.

Given the lack of useful and credible documentation recommending ongoing attendant care, Mrs. Chung’s limited and contradictory recall of the attendant care services actually provided, and the Insurer’s assessments that suggest that Mrs. Chung no longer required attendant care services after November 2008, I find that Mrs. Chung has not met the onus of proving that the payment of further services beyond November 21, 2008 would be either reasonable or necessary.

Conclusion:

In this arbitration, I am struck by the fact that the overwhelming amount of the claims brought forward to arbitration deals with treatment and assessment costs that will be payable to the various treatment providers, and not Mrs. Chung herself.

Given Mrs. Chung’s own testimony and limited recall of her attendant care and housekeeping claim, it is tempting to succumb to the impression that these elements of her claim were only advanced to provide context and support for the range of treatment and assessment claims advanced by Toronto Healthcare, Fairview and Pacific. Indeed, the absence of Mrs. Chung from the majority of the hearing process might suggest a certain personal detachment from her claims.

It must be remembered, however, that despite the hints of the practices of certain treatment providers in “flooding insurers with treatment plans and Section 24 expenses,” no treatment provider is a party to this arbitration. The insured and claimant is Mrs. Chung alone. There is no dispute that Mrs. Chung was in a bona fide motor vehicle accident and suffered some consequential damage. That is the foundation upon which an accident benefit claim is built.

What is not clear however is the duration and the extent to which any sequelae of the accident contributed to any disability, or generated a need to provide treatment or assistance to address such. Since Intact accepted the early claims at face value and indeed paid them, the timing of Mrs. Chung’s recovery from the after-effects of the accident is at least as relevant as the accident-related injuries themselves. Mrs. Chung’s claims in this arbitration are all for a period of time when Intact believed on the advice of its assessors, that further assistance was no longer required.

Each of Mrs. Chung’s claims for each individual benefit must be shown to be reasonable and necessary in the context of those post-accident sequelae and, more importantly, to meet the legislative criteria for each individual benefit.

As noted in my findings on the individual benefits, Mrs. Chung’s evidence was weak and often contradictory. It should be remembered that although Mrs. Chung returned to work rapidly, Intact paid attendant care and housekeeping benefits for some months after the accident, as well as extensive treatment expenses. These are not in issue. No repayment is claimed.

What is at issue is a claim for further benefits beyond the refusal of Intact to pay more. It is with regard to this further claim that I find that Mrs. Chung has not met the burden of demonstrating her entitlement on a balance of probabilities.

Despite the inherent frailties of the assessment process, Intact had credible evidence that Mrs. Chung was no longer entitled to housekeeping and attendant care benefits before it terminated those benefits. Neither subsequent reports nor Mrs. Chung’s rather vague and flexible evidence come near to rebutting the soundness of Intact’s decision in refusing to pay further benefits.

With regard to the various medical expenses and assessment fees put forward, principally by Toronto, while “papered” in most cases with the appropriate forms, these just do not seem credible. It is of some significance that Mrs. Chung does not recall most of the treatments and that, when she has recall, there is usually a serious discrepancy between the invoiced information and Mrs. Chung’s testimony.

It is also important to look at the some forty assessments referred to arbitration and the precipitate withdrawal of many of those issues at the outset of the arbitration. While parties should be commended for not wasting the tribunal’s time on issues that have no substance, the timing of the withdrawals was questionable in this case.

The pre-hearing in this matter took place on March 9, 2011 while the mediation took place prior to April 29, 2010. Mrs. Chung had more than adequate time to decide which issues to bring forward without waiting until the very commencement of the hearing.

Given the vague and conflicting evidence I have heard concerning the examinations and treatments that were dealt with at the hearing, I can only conclude that the entire blocks of withdrawn billings from Toronto Healthcare, Fairview, Pacific, Dr. Steiner and others have even less substance than those which were the subject of testimony at this hearing.

Certainly Mrs. Chung, or those acting on her behalf, was not shy about bringing virtually unsupported claims to arbitration.

Inevitably the credibility of the entirety of the claims by the treatment providers is put into question by the referral to arbitration of spurious claims, as many of these appear to be.

In any event, no evidence was brought forward concerning the “withdrawn” issues. Since Rule 70 of the Dispute Resolution Practice Code does not grant a party the right to unilaterally withdraw all or part of an arbitration once the process is underway, out of an abundance of caution I will also make a finding that all issues, including those purportedly withdrawn at the outset of the arbitration and contained in Schedule “A” of the Application for Arbitration, are hereby dismissed.

EXPENSES:

If the parties are unable to agree on expenses I may be spoken to on that issue.

July 11, 2012

John Wilson Arbitrator

Date