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

Neutral Citation: 2013 ONFSCDRS 12

FSCO A10-001218

BETWEEN:

NADIYA KHAMO Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Susan Sapin Heard: October 8, 2011, at the offices of the Financial Services Commission of Ontario in Toronto Appearances: Marko Djukic for Ms. Khamo Nicholaus de Koning for Economical Mutual Insurance Company

Issues:

The Applicant, Nadiya Khamo, was injured in a motor vehicle accident on October 7, 2008. She applied for statutory caregiver, attendant care, housekeeping, medical and other benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Economical disputed her claims and Ms. Khamo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the start of the hearing, counsel advised that Ms. Khamo was not pursuing her claims for caregiver, attendant care or housekeeping benefits. In addition, counsel for Economical submitted that it had paid several of the remaining medical treatment and assessment claims in dispute the week before the arbitration. The only remaining issues relating to those claims would then be interest and, possibly, a special award as claimed by Ms. Khamo.

The disputed claims under sections 14 and 24 of the Schedule are:

1. From Osler Rehabilitation: a. $302.50 for a Treatment Plan (OCF-18) dated December 16, 2008; b. $600 for a Treatment Plan dated December 22, 2008; c. $1,520.16 for a Treatment Plan dated November 17, 2008; d. $200 for an assessment by Andrew Greszczyszyn on November 17, 2008, and 63.72 for the preparation of a Treatment Plan dated Novmeber 17, 2008; e. $477 for a TENS unit; f. $140.25 for a Treatment Plan dated June 5, 2009; $200 for a related reassessment by Dmitry Taranov; and $63.72 for preparation of the Plan; g. $450 for a rebuttal report dated August 26, 2009.

2. From Physiomed Burhamthorpe:

   1. $821.44 for a Treatment Plan dated November 3, 2008;

3. From Assessment Direct:

   1. $1,063.38 for an In-Home Assessment and Report, January 13, 2009.
   2. $1,996.50 for a Neurological Assessment and Report, September 26, 2009
   3. $775 for a rebuttal dated August 9, 2009.

4. Interest for the overdue and late payment of benefits under ss. 46(2).

5. A special award under ss. 282(10) of the Insurance Act R.S.O. 1990, c.I.8, on the basis that Economical unreasonably withheld or delayed payments to Ms. Khamo.

6. Each parties’ expenses of the arbitration under ss. 282(11) of the Insurance Act R.S.O. 1990, c.I.8.

Result:

1. From Osler Rehabilitation:

   1. This amount has been paid. Ms. Khamo is not entitled to interest.
   2. This amount has been paid. Ms. Khamo is entitled to interest of 1 per cent per month, compounded, from March 9, 2010 to November 3, 2011 on the $600 for the Treatment Plan dated December 22, 2008.
   3. Ms. Khamo is not entitled to $1,520.16 for a Treatment Plan dated November 17, 2008;
   4. Ms. Khamo is not entitled to $200 for an assessment by Andrew Greszczyszyn on November 17, 2008; she is entitled to $63.72 for the preparation of a Treatment Plan dated Novmeber 17, 2008;
   5. Ms. Khamo is not entitled to $477 for a TENS unit;
   6. Ms. Khamo is not entitled to $140.25 for a Treatment Plan dated June 5, 2009 or $200 for a related reassessment by Dmitry Taranov. She is entitled to $63.72 for preparation of the Plan;
   7. This amount has been paid. Ms. Khamo is entitled to interest of 1% per month compounded between the date Economical received the invoice and the date it was paid.

2. From Physiomed Burhamthorpe:

   1. Ms. Khamo is not entitled to $821.44 for a Treatment Plan dated November 3, 2008.

3. From Assessment Direct: a. This amount has been paid. Ms. Khamo is entitled to interest from the date Economcal received the invoice until the amount was paid, at 1% per month. b. This amount has been paid. Ms. Khamo is entitled to interest of 1% per month from the date Economical received the invoice from Assessment Direct, until the amount was paid. c. Ms. Khamo is not entitled to $775 for a rebuttal dated August 9, 2009.

4. Interest under ss. 46(2) has been calculated where applicable.

5. Ms. Khamo is not entitled to a special award.

6. Each party shall bear its own expenses of the arbitration proceeding.

EVIDENCE AND ANALYSIS:

Background and Key Facts:

Ms. Khamo states she was the rear right-side passenger in a vehicle with four others when the driver, intending to reverse, accidentally sped forward instead and slammed into a concrete divider on his way into a parking garage at the Yorkdale Shopping Centre. This resulted in claims for statutory accident benefits from all five occupants.

Ms. Khamo developed a headache the next day, as well as pain in her arm which spread gradually into her whole body, especially her neck and back. She first sought medical attention from Physiomed two days after the accident. She switched from there to Prime Health Recovery for a month or so, as travel to Physiomed was difficult. After Prime Health, Ms. Khamo attended Osler Rehabilitation from mid-November or December, 2008, because it was closer to where she lived at the time. Economical paid some of her claims and denied others for various reasons.

There were significant irregularities and factual inconsistencies regarding Ms. Khamo’s claims such that I find she was not able to prove them on a balance of probabilities. For example, Ms. Khamo was involved in two more accidents on June 22, 2009 and September 11, 2009, and she submitted claims for caregiver, attendant care, and housekeeping expenses to State Farm Insurance Company, while submitting the same claims to Economical. Yet these accidents are not noted in any of the clinical notes and records, assessments or Treatment Plans submitted to Economical on Ms. Khamo’s behalf. This considerably affects the reliability of those documents.

Another example of factual inconsistency is that Ms. Khamo’s significant pre-existing history of arthritis in her knees, migraines, chronic and severe pain, and depression, which she admitted at the hearing, was also not noted by any of her treatment providers or assessors in the assessments and Treatment Plans they submitted to Economical. Ms. Khamo insisted she explained her medical history to her treatment providers. However, none of them testified to either corroborate her testimony or explain why this important information was not included in documents they authored. Consequently, I do not have reliable evidence to determine that the treatment claimed was reasonable or necessary as a result of the October 7, 2008 accident.

Finally, when directly questioned on cross-examination about two previous legal representatives whose names appear on documents regarding her various claims, and about evidence that she attended other treatment facilities than the ones involved in the matter before me, Ms. Khamo denied any recollection of those facts.

Findings:

1. Claims related to Osler Rehabilitation:

a. Treatment Plan December 16, 2008, massage therapy, $302.50, deemed approved.

b. Treatment Plan December 22, 2008, acupuncture: $600, approved by Economical.

Economical conceded these claims were not paid in a timely manner through oversight, and advised it paid them on November 3, 2011, a week before the arbitration. Sandra Reid, who took over Ms. Khamo’s file from the previous adjuster in July, 2009, testified that although she reviewed the file when it was first assigned to her, she missed these invoices because there were so many claimants and the file was voluminous. I am satisfied from her evidence that the claims have been paid.

As these amounts are overdue, Ms. Khamo is entitled to interest under subsection 51(1) of the “new” Schedule, i.e. the Statutory Accident Benefits Schedule — Effective September 1, 2010, O. Reg. 34/10.² Subsection 51(1) provides for interest at the rate of 1 per cent per month, compounded monthly from the date the amounts became overdue until they are paid.

Osler invoiced Economical for the December 22, 2008 Treatment Plan on March 9, 2010.³ In this case, I find that these medical benefits should be payable from the date they are actually invoiced, not the date the Treatment Plan was approved or deemed approved. The Insurer has no way of knowing if or when treatment claimed has been consumed, or expenses actually incurred, until it receives an invoice. It is up to the facility to bill the Insurer in a timely manner. Ms. Khamo is entitled to interest of 1 per cent per month, compounded, on $600, from March 9, 2010 to November 3, 2011. Economical shall calculate the amount of interest and pay it forthwith.

I was not directed to any evidence of when Osler invoiced Economical for the outstanding balance of $302.50 that was deemed approved. The only mention of this amount appears to be a handwritten note on an incomprehensible document entitled “Osler Rehabilitation Centre Inc. Account Activity” for Ms. Khamo, which is not an invoice. I find Osler’s record-keeping and invoicing system, where invoices do not necessarily correspond to approved items on specific Treatment Plans, and are not presented in a timely manner, to be confusing. I further find it unreasonable for the facility to expect prompt payment when its documents are not straightforward. Economical is not required to pay interest on this amount.

I find, under the circumstances, Ms. Khamo is not entitled to a special award. A special award is payable under subsection 282(10) of the Insurance Act if an arbitrator finds that an insurer has unreasonably withheld or delayed payment of benefits to an insured person. I do not so find in this case. There was no evidence of bad faith or blameworthy conduct on Economical’s part, nor prejudice to Ms. Khamo. I accept Ms. Reid’s evidence that no one from Osler ever contacted her about any overdue payments. I find Ms. Reid’s oversight to be understandable. She simply made an error and mitigated it when it was brought to her attention. That is not conduct deserving of a special award.

c. Treatment Plan November 17, 2008, physiotherapy: $1,520.16

Economical denied this Treatment Plan because Ms. Khamo did not attend an insurer’s examination (IE). I find Ms. Khamo did not have a reasonable explanation for not attending and did not establish, on a balance of probabilities, that the treatment claimed was reasonable or necessary.

The Schedule requires that insured persons be given reasonable notice of a required attendance at an IE. Economical mailed a notice to Ms. Khamo on December 23, 2008 (a Tuesday), to attend an IE on December 30. Counsel for Ms. Khamo maintained this was unreasonable, as Ms. Khamo would have gotten the notice at the last possible moment due to the holidays. But Ms. Reid testified that when Economical contacted Ms. Khamo the night before the examination, Ms. Khamo said she would attend. Ms. Khamo testified she did not attend because she was not feeling well and had been ill for three days with back pain. According to Ms. Reid, Economical felt this contradicted Ms. Khamo’s previous statement that she would attend, and in any event it was not a good enough excuse without a supporting doctor’s note. Besides, this excuse was inconsistent with her later explanation that she did not attend due to “personal circumstances.” ⁴

Although it is conceivable that a notice to attend an IE might be unreasonable given the holidays, I do not find it was so in this particular case, and I am not persuaded Ms. Khamo’s inconsistent explanations add up to a reasonable explanation for not attending.

Ms. Khamo’s evidence was that the physiotherapy offered by Osler “was helpful but the pain was still there,” the same evidence she gave with respect to all of the disputed treatment in this proceeding. I do not find this testimony, unsupported by any objective medical evidence, sufficiently detailed or compelling to conclude that the treatment was reasonable or necessary as a result of the accident, even on a balance of probabilities. Furthermore, as there was no IE, Economical was deprived of its right to a timely independent medical assessment of the reasonableness of the treatment. I find Economical is not required to fund this Treatment Plan.

d. Initial Assessment by Andrew Greszczyszyn, D.C. November 17, 2008: $200 Preparation of November 17, 2008 Treatment Plan: $63.72

According to Superintendent’s Guideline 01/08: Professional Services Guideline:⁵

The expense for completion of an Application for Approval of an Assessment or Examination (OCF-22) is payable only following the approval by the insurer of any assessment or examination proposed in the OCF-22, or a final determination by a Court or arbitrator that any assessment or examination proposed in the OCF-22 is reasonably required.

The voluminous briefs tendered in evidence did not contain any evidence that Economical was presented with an OCF-22 for an assessment on November 17, 2008. Consequently, I find Economical is not required to pay for the assessment. Ms. Khamo is entitled to be paid the $63.72 for the preparation of the Treatment Plan.

e. TENS Unit – Treatment Plan March 3, 2009: $477

Economical refused this claim because Ms. Khamo did not attend an IE scheduled for April 21, 2009 to determine whether a TENS unit was reasonable or necessary. Ms. Khamo described a family emergency which prevented her attending that day. I find she had a reasonable excuse for not attending. However, as above, there was no evidence either from Ms. Khamo herself or from any other source, that previous treatment in the form of “something electrical” was helpful, and that a TENS unit was reasonable or necessary. There is no evidence she received a TENS unit. I find Economical is not required to pay this amount.

f. Treatment Plan June 5, 2009⁶, massage therapy: $140.25 incurred out of $565.25 claimed; Preparation of Treatment Plan: $63.72; Related Re-assessment by Dmitry Taranov: $200.

I find the massage therapy treatment and the related assessment are not payable for a number of reasons. The first is that, as explained above, the Treatment Plan did not identify any of Ms. Khamo’s extensive pre-accident medical history, which makes it impossible to determine the important issue of whether the treatment was reasonable and necessary as a result of the accident.⁷

The second reason is that Ms. Khamo’s testimony about the benefit of the massage treatment was the same as for physiotherapy, above – it was “helpful but the pain was still there,” which, without more, does not meet the test of being either reasonable or necessary.

Lastly, in an IE conducted on July 9, 2009, Diane Grondin, DC, noted that her mild objective findings were not consistent with Ms. Khamo’s severe subjective complaints. She noted that Ms. Khamo reported very little benefit from massage therapy, and that Ms. Khamo stated she was not involved in any active exercise programme. Ms. Grondin concluded that Ms. Khamo’s pain complaints 8 months after the accident could no longer be reasonably linked to the accident, and that passive therapies so long after the accident were not reasonable. I accept this evidence.

I find Economical is not required to pay the $140 outstanding that it did not approve, nor the $200 re-assessment by Mr. Taranov, the treatment provider. As the re-assessment was presumably conducted to complete and submit the Treatment Plan, which failed to mention relevant pre-existing conditions, it was not based on accurate information. The $63.72 for completion of the Treatment Plan itself is payable.

g. Rebuttal Report dated August 26, 2009: $450

The parties agree that the maximum payable for this report is $450, under ss. 42.1(8)1 of the Schedule. I also understand from the parties that Economical paid this amount to Ms. Khamo on a goodwill basis. Consequently, this item is no longer in dispute. Ms. Khamo is entitled to interest of 1% per month compounded between the date Economical received the invoice and the date it was paid.

2. Claim related to Physiomed Burnhamthorpe: $821.44

Economical’s position was that this claim has been paid and should not be in dispute. Sandra Reid, an adjuster with Economical who took over the file from the previous handler in July 2009, testified that she paid this amount to Physiomed and her records, filed as Exhibit 7, indicate the cheque was cashed on November 1, 2011. Counsel for Ms. Khamo submitted that the facility did not receive a cheque, and raised the possibility that, as there were more than 30 divisions of Physiomed, it was not Physiomed Burnhamthorpe that received or cashed the cheque. As the cheque was made out to Physiomed directly, identified the claim number, and has been cashed, I find it is the responsibility of Physiomed to find out what happened to it.

I find that Economical has paid the amount owing and has discharged its responsibility to Ms. Khamo.

3. Claims related to Assessment Direct:

a. In-home assessment report dated January 13, 2009: $1,063.38

Ms. Reid testified that although Economical approved this assessment, it refused to pay for it on the basis that the health professional who completed the OCF-22 (Application for Approval of an Assessment) and signed the conflict of interest statement on that form, was not the same as the person who conducted the assessment and prepared the report (Mikhail Shteynberg, DC). Economical submitted this is contrary to s. 38.2 (2) of the Schedule, which requires that the person who signs the conflict of interest provision and the person who conducts the assessment should be one and the same. This is in fact what s. 38.2(2) says, and I find it was not unreasonable for Economical to rely on it at the time.

Ms. Khamo’s position is that Assessment Direct was not in breach of ss. 38.2(2) because of a 1997 Commission Guideline⁸ stating the conflict of interest provision does not apply in the case of co-workers in the same treatment facility, a position Economical submits defeats the purpose of the Guideline. This Guideline was already long out of date by the time of Ms. Khamo’s accident. Since 2008, conflict of interest issues to do with the completion of OCF-18’s and 22’s, treatment delivery and the conduct of assessments, have been addressed in Professional Services Guidelines updated from time to time. These Guidelines appear to permit an exception to ss. 38(2) where co-workers of the same treatment facility may sign the conflict of interest provisions. However, as stated above, I find it was not unreasonable for Economical to rely on the wording of ss. 38.2(2).

I find the most important considerations in this case are that Economical approved the assessment; ss. 38.2 does not contain any provision allowing Economical to deny payment based on conflict of interest concerns; and Ms. Reid testified she has in fact paid the amount to Assessment Direct. Economical should pay interest from the date of the invoice until the amount was paid, at 1% per month.

For the reasons stated above, I find there are no grounds for a special award related to this claim.

b. Neurological assessment report September 26, 2009: $1,996.50

Economical concedes this assessment was deemed approved on April 20, 2009. Exhibit 2⁹ contains an invoice from Assessment Direct to Economical dated September 30, 2009, but there is no evidence about when Economical actually received it. Ms. Reid testified she paid this amount. Ms. Khamo is entitled to interest of 1% per month from the date Economical received the invoice from Assessment Direct, until the amount was paid. Given the confusing record-keeping and billing practices of this facility, I find there are no grounds for a special award due to delayed payments on the part of Economical.

c. Rebuttal assessment for attendant care, housekeeping and caregiving benefits dated August 9, 2009, by Ilya Gladshteyn, psychololgist: $775

Ms. Reid testified that this was the second of two rebuttal reports Economical received on behalf of the Applicant under subsection 42.1 of the Schedule, regarding the same denial of attendant care, housekeeping and caregiving benefits. Emilio Castaldi, DC, of Assessment Direct, conducted an in-home assessment of Ms. Khamo’s attendant care, housekeeping and caregiving needs on August 4, 2009 and the report was submitted to Economical. Ms. Reid paid for that report.

The second disputed assessment was conducted five days later by Mr. Gladshteyn, a psychologist, to rebut a psychological assessment conducted on behalf of Economical. The August 4 and August 9 assessments overlap in content as both Mr. Castaldi and Mr. Gladshteyn address Ms. Khamo’s chronic pain and anxiety.

I find that under section 42.1(2)5, an insured person is not entitled to more than one rebuttal assessment relating to a particular denial of benefits. The legislation is silent about whether an insured person is entitled to multiple rebuttals by different medical specialties in response to insurer denials based on multidisciplinary insurer examinations. I was not persuaded that I should depart from the plain wording of the legislation in this case. I find it was not unreasonable for Ms. Reid to deny payment of the August 9, 2009 psychological rebuttal report.

EXPENSES:

Ms. Khamo was only partially successful in a case that I find should have been resolved at mediation or at the pre-hearing stage. The Commission is not a collection agency for treatment facilities. The parties had ample opportunity to resolve their accounting, paperwork and technical disputes in advance of the arbitration hearing. Each party shall bear its own expenses of this arbitration proceeding.

January 18, 2013

Susan Sapin Arbitrator

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

Neutral Citation: 2013 ONFSCDRS 12

FSCO A10-001218

BETWEEN:

NADIYA KHAMO 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:

1. Economical shall pay to Ms. Khamo the following amounts: a. Interest of 1 per cent per month, compounded, from March 9, 2010 to November 3, 2011 on the $600 for the Treatment Plan dated December 22, 2008. b. $63.72 for the preparation of a Treatment Plan dated November 17, 2008; c. $63.72 for preparation of a Treatment Plan June 5, 2009; d. Interest of 1% per month compounded on $1,063.38 for an In-Home Assessment and Report dated January 13, 2009 from the date Economical received the invoice until it was paid, under subsection 51(2) of the Schedule; e. Interest of 1% per month compounded on $1,996.50 for a Neurological Assessment and Report dated September 26, 2009 from the date Economical received the invoice until it was paid, under subsection 51(2) of the Schedule.

January 18, 2013

Susan Sapin Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2As provided for under subsection 3(1) of the “Old Regulation,”— the Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, as amended by O. Reg. 35/10, s. 1.
3. 3OCF-21 (Auto Insurance Standard Invoice) dated March 9, 2010, Exhibit 2, Tab 4, p 108.
4. 4A January 8, 2009 letter outlines Ms. Khamo’s reasons. Exhibit 3, Tab 6, p 60.
5. 5The version of the Guideline in force at the time of Ms. Khamo’s accident.
6. 6Exhibit 1, tab 3, p. 65
7. 7Under Part 8 of the Treatment Plan, “Prior and Concurrent Conditions,” the response to the question, “Prior to the accident, did the applicant have any disease, condition or injury that could affect his/her response to treatment for the injuries identified in Part 7,” is “No.” As noted, this is untrue.
8. 8“Guideline Respecting Conflict of Interest in the Provision of Medical and Rehabilitation Services,” August 26, 1997, Commissioner’s Guideline No. 1/97. This Guideline was out of date by the time of Ms. Khamo’s accident.
9. 9P. 118