Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 80
FSCO A10-001220
BETWEEN:
RAMZI DANKHA
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Rosemary Muzzi
Heard: October 17 and 19, 2011
Appearances: Marko Djukic for Mr. Dankha
Nicholaus de Koning for Economical Mutual Insurance Company
Issues:
Ramzi Dankha, the Applicant, was injured in a motor vehicle accident on October 7, 2008. He was in a car with others that was involved in a minor accident in an underground parking garage. There is no dispute that he suffered some injuries and he received some statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.1 Economical denied benefits for the cost of two treatment plans and a psychological assessment. The parties were unable to resolve their disputes through mediation, and Mr. Dankha 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. Dankha entitled to receive $1751.11 for the cost of a psychological assessment conducted by Century Diagnostic and Assessment Centre on December 3, 2008?
Is Mr. Dankha entitled to receive $263.72 for the cost of a November 14, 2008 treatment plan from Osler Rehabilitation Centre Inc. for unknown modalities of treatment?
Is Mr. Dankha entitled to receive $2837.97 for the cost of a December 22, 2008 treatment plan from Chesswood Rehabilitation Centre for chiropractic and other treatment?
Is Mr. Dankha entitled to interest on the amounts outstanding?
Result:
Mr. Dankha is not entitled to receive $1751.11 for the cost of a psychological assessment conducted by Century Diagnostic and Assessment Centre on December 3, 2008.
Mr. Dankha is not entitled to receive $263.72 for the cost of a November 14, 2008 treatment plan from Osler Rehabilitation Centre Inc. for unknown modalities of treatment.
Mr. Dankha is entitled to receive $2837.97 for the cost of a December 22, 2008 treatment plan from Chesswood Rehabilitation Centre for chiropractic and other treatment.
Mr. Dankha is entitled to interest on the amounts owed to be calculated in accordance with the Schedule.
ANALYSIS:
Issue 1: Is Mr. Dankha entitled to receive $1751.11 for the cost of a psychological assessment conducted by Century Diagnostic and Assessment Centre on December 3, 2008?
Whether an insurer should be required to pay for an assessment or report is generally based on two factors
whether it is reasonable that the assessment was conducted
whether the cost of the assessment is reasonable
Arbitrators have refined this test and also make additional inquiries including whether it was reasonable in the circumstances for the insured to have been referred for the assessment.
Having regard to the particular circumstances here, I am not satisfied that a psychological assessment was reasonable and necessary as a result of the accident. It was not reasonable for Mr. Dankha to have been referred for this type of assessment at such an early stage in his rehabilitation. Moreover, there was evidence that Mr. Dankha was already undergoing psychological treatment for issues that pre-dated the accident.
The application for approval for this assessment was submitted less than two months after the accident before Mr. Dankha had even completed his physical therapy. The application for approval of the psychological assessment2 indicated several reasons for the necessity of the assessment including that Mr. Dankha showed signs of tiredness and anger, had headaches, and was nervous and anxious in a vehicle. Mr. Dankha testified that he had pre-existing problems with sleep and anxiety and had been under the medical care of a psychiatrist and receiving counselling for some time before the accident. The application for approval of this assessment does not make reference to any of these significant facts. It does not appear that the recommending professional even knew of Mr. Dankha’s medical history in this regard. One can legitimately question the need for a psychological assessment in circumstances where the intended patient is in consultation with a medical doctor and has been treated for some time for similar psychological issues.
Notwithstanding its denial of the assessment3, Economical did approve a treatment plan specifying four hours of psychotherapy on January 8, 2009. Mr. Dankha submitted that the assessment must have been reasonably required if treatment was approved. However, Mr. Dankha also testified that he had no recollection of ever engaging in the approved psychotherapy but did attend to therapy with his psychiatrist during this time. In my view, these two facts together indicate that Mr. Dankha was not in need of accident-related psychological counselling at all at this time.
Finally, there was very little evidence to demonstrate that the cost of the psychological assessment itself was reasonable.
The timing of the assessment considered in conjunction with the evidence of Mr. Dankha’s pre-existing problems, ongoing psychological treatment for same, and no evidence about the reasonableness of the cost, lead me to find that a psychological assessment was neither reasonable nor necessary.
Issue 2: Is Mr. Dankha entitled to receive $263.72 for the cost of a November 14, 2008 treatment plan from Osler Rehabilitation Centre Inc. for unknown modalities of treatment?
Issue 3: Is Mr. Dankha entitled to receive $2837.97 for the cost of a December 22, 2008 treatment plan from Chesswood Rehabilitation Centre for chiropractic and other treatment?
Mr. Dankha claims the expenses of two treatment plans
$263.72 for remaining expenses from Osler Rehabilitation Centre Inc.
$2837.97 for a treatment plan from Chesswood Rehabilitation Centre
There is no dispute that Mr. Dankha suffered some injuries as a result of the accident and Economical did pay for a significant amount of treatment. Economical denied these particular expenses because its assessors opined that Mr. Dankha did not require further treatment.
In order to be entitled to payment, Mr. Dankha must show that these expenses were reasonable and necessary and incurred by or on behalf of him as a result of the accident.4 Arbitrators have considered numerous factors in deciding whether treatment is reasonable and necessary including the subjective benefit to the person; and whether the goal of returning a person to work or their pre-accident state is being met.
With respect to Issue 2, the outstanding Osler amount, Mr. Dankha claims that this small amount owing was likely an oversight on the part of Economical. It might have been for the completion of an application for the approval of an expense. Economical argues that it should not pay for an amount that cannot be reasonably explained.
There is a history that bears some elaboration to put both Mr. Dankha’s case and Economical’s concerns into context.
Mr. Dankha attended three clinics for treatment as a result of the injuries he suffered in the accident. He attended the first clinic, Royal, for one day only. He then attended at Osler. Mr. Dankha left Osler because he was unhappy with the treatment provided there and went to Chesswood to complete treatment. By the time Mr. Dankha applied for expense reimbursement for his treatment at Chesswood, Economical had already paid significant amounts to Osler: it had approved payment of $5088.64 in total for two chiropractic treatment plans5; $552.50 for a massage treatment plan; and, $600 for acupuncture.6 Osler’s rehab notes indicate that Mr. Dankha attended November 14, 17, 18, 25, 28, December 2, 3, 5, 9, 10, 11, and 16.7
I can find no documentary evidence of an expense from Osler for $263.72 that remained unpaid by Economical. Mr. Dankha provided no evidence about this amount or why it is owing to Osler. There is evidence that $63.72 was charged for the completion of the application for approval of an assessment or examination.8 The chiropractic and other treatment plans were approved in full and there is no evidence before me that any amount from those plans remain outstanding.9
I am unable to attach this amount to any unpaid expense. Besides, I find on the evidence provided by Mr. Dankha that much of treatment at Osler, though approved and paid by Economical, was neither helpful nor even appropriate. In these circumstances, this expense is not payable.
With respect to Issue 3, Economical resists paying the Chesswood treatment plan for three reasons:
(i) This was the fourth treatment plan submitted by Mr. Dankha, with the first three already having been paid for in full.
(ii) There was lack of success with already approved treatment and little evidence that the goals set by this treatment plan could be or were met.
(iii) Economical’s assessor determined that the plan was not reasonable and necessary.
The evidence indicates however that the treatment provided at Chesswood was reasonable and necessary to Mr. Dankha’s recovery. Further, in the circumstances it should not have surprised Economical that Mr. Dankha would seek more treatment and ask for the treatment expenses to be paid.
Mr. Dankha’s treatment at Chesswood included physiotherapy and massage and he attended there from December 22, 2008 to February 24, 2009.10 In early March, Mr. Dankha was informed that the Chess wood treatment plan was not reasonable and necessary and that home exercises should suffice.
Mr. Dankha’s evidence was that of the three clinics he attended for treatment, only Chesswood provided him with reasonable care and therapy that assisted him in his recovery. Mr. Dankha left Osler for Chesswood because he did not like Osler, describing it as “like a café”, and because he did not believe he was receiving reasonable care. His testimony is supported by the other evidence.
Economical’s notes11 show that Mr. Dankha communicated to the adjuster on at least three occasions that his treatment with Osler had been unsatisfactory and he was seeking a new service provider. On December 30, 2008, he reported that Osler looks like a “coffee shop”; he “waits one hour”. He was now going to Chesswood and doing treatment there. Indeed, Mr. Dankha had been assessed by Chesswood in mid-December 2008. On January 30, 2009, Mr. Dankha told the adjuster that Osler was billing for treatment they do not provide and that he was now treating at Chesswood and would be submitting a treatment plan. After the Chesswood treatment plan was denied, Mr. Dankha called the adjuster again, on March 27, 2009, inquiring about the denial and was advised of the statutory dispute resolution process.
Given this evidence, it is also not surprising that Mr. Dankha would have required more therapy to recover. Economical’s assessor, who reported in February 2009,12 admitted that most similarly injured persons resolve in 8-12 weeks and noted that Mr. Dankha had attended therapy for a total of 18 weeks. With Mr. Dankha having spent over four weeks at Osler engaging in treatment he said was unreasonable and unhelpful, it is not surprising that he would have required an additional period of therapy.
Further, the assessor concluded that no further treatment was recommended and seems to have examined Mr. Dankha’s case as one where he was seeking payment for therapy in the future. In fact, the OCF-18 from Chesswood is dated December 22, 2008 and the treatment plan itself had already been completed by the time Economical examined Mr. Dankha. Mr. Dankha was seeking reimbursement for a plan he had already undertaken.
The treatment plan from Chesswood was helpful to Mr. Dankha in his recovery. He testified that Chesswood provided the proper treatment, he felt cared for by the treatment providers, he felt some improvement, and they also provided good direction about home exercises. Economical’s assessor noted that Mr. Dankha was coming along well in recovery. In an independent chiropractic assessment13, Mr. Dankha reported that the treatment improved his condition 30- 40%. All of this evidence indicates that the Chesswood treatment plan was required and proved beneficial to Mr. Dankha.
Based on all of these factors, I find that the Chesswood treatment plan was reasonable and necessary.
EXPENSES:
I encourage the parties to agree on expenses. If they are unable to do so they may request an
appointment before me to determine expenses pursuant to Rules 78 and 79 of the Dispute Resolution Practice Code.
May 15, 2012
Rosemary Muzzi Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2012 ONFSCDRS 80
FSCO A10-001220
BETWEEN:
RAMZI DANKHA
Applicant
and
ECONOMICAL MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Dankha is not entitled to the cost of a psychological assessment by Century Diagnostic and Assessment Centre.
Mr. Dankha is not entitled to $263.72 for the cost of a treatment plan from Osler Rehabilitation.
Mr. Dankha is entitled to $2837.97 for the cost of a December 22, 2008 treatment plan from Chesswood Rehabilitation for chiropractic and massage therapy.
Mr. Dankha is entitled to interest on the amounts owed to be calculated in accordance with the Schedule.
May 15, 2012
Rosemary Muzzi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Exhibit 8
- Economical denied approval for the assessment in late November, early December 2008.
- Section 14 of the Schedule
- Exhibit 1; $3089.72 on December 8. 2008; December 8, 2008 for $1998.92
- All on December 8, 2008
- Exhibit 2, page 61
- Exhibit 2, at pages 35-39
- Exhibit 3: says that this TP was deemed approved and it was for 15 chiropractic sessions, 2 reports and three education sessions for a total of $1998.92 see page 38
- Exhibit 4
- Exhibit 3 - the notes indicate that Mr. Dankha spoke with the adjuster in December 30. 2008 and January 30 and February ll:l. 2009
- Exhibit 5 – report dated February 24, 2009
- Exhibit 6 - Dr. Kazemi – March 10, 2009