Cecilia Comito v. Economical Mutual Insurance Company, 2013 ONFSCDRS 56

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

Neutral Citation: 2013 ONFSCDRS 56

FSCO A11-000520

BETWEEN:

CECILIA COMITO

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator John Wilson

Heard: December 10, 11, 12 and 13, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Alan Honner for Ms. Comito Nicholaus de Koning and Ashleigh Leon for Economical Mutual Insurance Company

Issues:

The Applicant, Cecilia Comito, was injured in a motor vehicle accident on July 12, 2009. When she applied for statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule¹, she entered the strange world of accident benefits claims in Ontario. Economical paid only some minor medical claims, and refused categorically to pay the balance.

The parties were unable to resolve their disputes through mediation, and Ms. Comito applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

This dispute between Ms. Comito and her insurer encompasses many of the imperfections of the current accident benefit system: the role of “dodgy” service providers, unreliable assessors, and claims for services that lack any tincture of reality. The formal issues in this hearing are however as follows:

Is Ms. Comito entitled to receive a medical benefit for $24,435.43 for treatment provided by Osler Rehabilitation Centre, and $204.50 for assistive devices provided by Assessment Direct?
Is Ms. Comito entitled to attendant care benefits pursuant to section 16 of the Schedule in the amount of $787.30 per month from July 12, 2009 to July 12, 2011?
Is Ms. Comito entitled to payments for housekeeping expenses pursuant to section 22 of the Schedule in the amount of $100 per week from July 12, 2009 to July 12, 2011?
Is Ms. Comito entitled to payments for the cost of examinations pursuant to section 24 of the Schedule?
Is Ms. Comito entitled to a Special Award?

Result:

Ms. Comito is not entitled to receive a medical benefit for $24,435.43 for treatment provided by Osler Rehabilitation Centre, and $204.50 for assistive devices provided by Assessment Direct beyond the “PAF” limit identified by Dr. Saplys in his report.
Ms. Comito is not entitled to attendant care benefits pursuant to section 16 of the Schedule.
Ms. Comito is entitled to payments for housekeeping expenses pursuant to section 22 of the Schedule in the amount of $100 per week from July 12, 2009 until September 11, 2009 and $50 per week from September 11, 2009 until October 27, 2009, plus interest.
Ms. Comito is not entitled to payments for the cost of examinations pursuant to section 24 of the Schedule.
Ms. Comito is not entitled to a Special Award.
If the parties are unable to agree on expenses I may be spoken to on that issue.

EVIDENCE AND ANALYSIS:

The facts of the actual accident are not seriously in dispute. Ms. Comito entered into an intersection when her vision was partly obscured by a neighbouring vehicle and was “t-boned” by an approaching vehicle. Although Ms. Comito’s vehicle was just beginning to move into the intersection, the approaching vehicle was moving at a speed commensurate with an urban roadway. Consequently the resulting accident was not a negligible fender-bender.

Although Ms. Comito complained of neck and back pain and difficulty moving her head and neck, she did not appear to suffer any grievous, physical injury. Indeed, she managed to return to her work as a personal support worker shortly after the accident.

Likewise, what Ms. Comito did after the accident was not seriously in dispute. She sought treatment, not from her family physician, but from a treatment provider known as Osler Rehabilitation Centre. Ms. Comito testified that she found the facility in the Yellow Pages while looking for treatment that would be near to her home. Earlier statements also showed that her husband may have referred her to the facility. Osler immediately started what was virtually daily treatment, mostly of a passive nature.

Ultimately, Ms. Comito visited her family physician, Dr. Christina Dakhil, who worked from a walk-in clinic. Dr. Dakhil appeared to endorse the treatment Ms. Comito was already receiving from Osler, if somewhat cryptically.

Unbeknownst to Ms. Comito, she had chosen a treatment facility that was a lightning rod for insurer complaints about excess treatment and imperfect billing practices. While no direct evidence of financial or ethical misconduct by Osler was provided in this hearing, the continuing references to the professional difficulties of a chiropractor said to be at Osler made it clear at least that Economical viewed Osler as a pariah.

Economical was suspicious of any billing or treatment claim that originated from Osler and a small number of other treatment providers with a similarly tarnished reputation.

Osler, however, is not a party to this arbitration. Ms. Comito, as the insured under a policy of automobile insurance, is. Furthermore, whatever the outcome of this arbitration, Osler and other treatment providers are not restrained from proceeding to collect their fees directly from the person who received treatment – in this case, Ms. Comito.

Economical’s concerns about the treatment proposed and billed by Osler were not assuaged by the circumstances immediately post-accident.

While Economical acknowledged that an accident indeed happened, it characterized it as relatively minor with no airbag deployment. Although the accident happened on July 12, 2009, the first recorded medical interaction was a visit to Ms. Comito’s family physician on July 28, 2009. Notwithstanding this, an application for accident benefits was submitted to Economical on July 23, 2009, filed by Ms. Comito’s lawyer, Alexander Mazin, listing Osler Rehabilitation Centre as Ms. Comito’s health care provider.

As noted at the outset of this decision the bills for Osler’s services were not the only issues in dispute in Ms. Comito’s claim against Economical. Ms. Comito also claimed housekeeping expenses and attendant care benefits, as well as the cost of a variety of assessments performed by Assessment Direct. Perhaps because of the circumstances of the claim, Economical did not pay for the provision of these other services either. Consequently, counsel for Ms. Comito indicated that she would be pursuing a special award under the Insurance Act.

Attendant Care:

The provision of attendant care services is covered by section 16(1) of the Schedule.

(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident an attendant care benefit. O. Reg. 403/96, s. 16 (1).

(1.1) Despite subsection (1), if the accident occurred after April 14, 2004, no attendant care benefit is payable to an insured person whose impairment is a Grade I or Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline. O. Reg. 295/07, s. 3.

(2) The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) services provided by an aide or attendant; or

(b) services provided by a long-term care facility, including a nursing home, home for the aged or chronic care hospital. O. Reg. 403/96, s. 16 (2).

(3) Subsection (2) does not apply to expenses for which payment may be obtained under clause 14 (2) (g), 15 (5) (k) or subsection 24 (1.6). O. Reg. 403/96, s. 16 (3); O. Reg. 533/06, s. 2.

(4) The monthly amount payable by the attendant care benefit shall be determined in accordance with Form 1. O. Reg. 403/96, s. 16 (4).

The only definition of attendant care in the legislation is as follows:

“attendant care benefit” means the benefit provided by section 16; (“indemnité de soins auxiliaires”)

On July 21, 2009, a chiropractor, Dr. Castaldi of Assessment Direct, issued a Form 1 (Assessment of Attendant Care Needs) in which he outlined his opinion of Ms. Comito’s attendant care needs. The services Ms. Comito was said to need, and indeed claimed for, included: shaving, brushing and combing, styling, cleaning toenails, providing assistance in feeding, cleaning the tub, shower and toilet after use as well as assisting with clothing. There was also assistance with exercise, bathing and drying.

Ms. Comito filed attendant care invoices in the amount of $787.30 per month for services rendered by Mr. Cesare Comito, her son. The same amount was invoiced until November 23, 2009, although the claimed treatment provider changed to “Maritza.” As of November 24, the amount invoiced dropped to $600.73 and remained without change until November 28, 2010 when Cesare Comito was said to have taken over attendant care duties once again. Maritza Guiterez is said to have re-started her attendant care duties on December 29, 2010 and continued until April 30, 2011, the date of the last invoice filed.

Ms. Comito and her son testified as to the attendant care services. Neither Dr. Castaldi nor Ms. Guiterez were called as witnesses, although they were listed on Ms. Comito’s final witness list dated November 9, 2012.

Cesare Comito, while admirably loyal to his mother’s interests, displayed less fidelity to the truth. His tale of the services and the circumstances in which they were provided just does not ring true. It would be an unusual son who would relish performing the somewhat personal tasks outlined in the Form 1 and the attendant care invoices. Mr. Comito however stated he pretty much did it all after the accident.

More importantly, while in cross-examination he stated he didn’t really hear about the accident for a week or so, the invoices show him hard at work as early as the day after the accident. Cesare’s testimony defied credibility. While he may well have assisted his mother at some time, any true assistance is lost in a web of falsehoods and cannot be sorted out.

The work allegedly done by “Maritza” is also puzzling. Although there are signed invoices for a “Mauritza” living somewhere on Kipling Avenue, the invoices are identical to those submitted by Cesare, even to a resemblance in the hand in which the form is written. As invoices they surprisingly lack any indication of where a cheque for the services can be sent and indeed any breakdown of hours of service or the rates charged. In short, for something labelled “invoice” at the top of the page, they seem to lack many vital elements common to that type of document.

Once again I note that “Mauritza” did not testify at the hearing, although noted on the witness list. Sadly she was unable to correct any shortcomings in the written evidence by reason of her absence.

Ms. Comito has the burden of proving that the attendant care services she claims are reasonable and necessary, arising from the accident, and calculated with the aid of a Form 1. To this extent, in addition to the testimony of Cesare Comito, she relies on the report of Dr. Castaldi, a chiropractor. While he did not testify, his report was duly served and filed in this arbitration. In that report, Dr. Castaldi notes headache pain that “interferes with various tasks and activities that she used to perform readily prior to the accident” and neck and upper back, as well as shoulder pain that had the same consequence.

Dr. Castaldi concluded:

Ms. Comito suffered a motor vehicle accident related injury to her neck, left shoulder, upper back and lower back which has led to functional deficits resulting in difficulty performing some personal tasks; with assistance, pacing, breaks and planning ahead she will experience less difficulty.

Around the date of this report, (July 21, 2009), Ms. Comito, according to her own testimony, remained working as a personal support worker. For some reason, however, Economical did not insist that Dr. Castaldi be made available for cross-examination, and consequently, any weaknesses in his report were not put to him.

Economical however relied on the reports of Dr. Saplys, an orthopaedic surgeon, and Ms. Delize L. Rollocks-Roberts, an O.T., to suggest that Ms. Comito did not require attendant care services, and hence that the provision of such services was neither reasonable nor necessary.

Dr. Saplys briefly examined Ms. Comito for the Insurer. He testified without the benefit of his notes, since he shredded them shortly after the examination. Ms. Comito was not offered the services of a Spanish interpreter, although she is a native Spanish speaker whose English appears to be variable.

It was Dr. Saplys’ opinion that Ms. Comito:

…suffered uncomplicated soft tissue injuries, that being musculoligamentous strains to the paracervical and paralumbar structures. It is my orthopaedic opinion she has no significant functional orthopaedic impairment as of today’s assessment.

Dr. Saplys in cross admitted that he did not have the family doctor’s records, nor any radiographic images when he made his assessment and did not consider requesting them. Also missing from the documentation to be considered was the actual attendant care report. Nonetheless Dr. Saplys stated that he was satisfied in assessing Ms. Comito without such background information.

That Dr. Saplys took a narrow view of impairment was clear. He did not consider that either pain or a limp such as displayed by Ms. Comito could constitute a functional impairment. Indeed, extension of the aural spine that was 50% of normal was likewise unworthy of comment. In cross-examination, Dr. Saplys was blunt, never willingly conceding anything that ran contrary to his view.

Ms. Comito did not allege that she suffered any fractures or other skeletal injuries. She claimed she suffered from pain arising from the accident. Dr. Saplys would not have known that these reports of pain were endorsed by a family physician some two weeks after the accident and ongoing treatment recommended, since he did not bother to ask for family physician notes.

Sometimes, however, even the most perfunctory assessor can inadvertently be right. I note, however, that while Dr. Saplys rejected attendant care, he recognized that some physical therapy treatment was called for. As such, he agreed (without knowing it) with Dr. Dakhil, the family physician.

More importantly, Economical had the benefit of the O.T. report created by Ms. Delize Roberts. The report dated September 11, 2009, some two months post-accident, evaluated Ms. Comito’s ability to undertake her self-care tasks. Ms. Roberts did not shred her notes and her testimony was able to shed light on her assessment.

Ms. Roberts concluded that Ms. Comito “does not require attendant care assistance.” She consequently issued a Form 1 noting that no care was required. It should be noted that an O.T. assessment is a measure of functionality at specific tasks, in this case the tasks for which Ms. Comito requested attendant care assistance. That is the core of an O.T.’s expertise.

I am willing to accept Ms. Comito’s evidence that she suffered significant pain and discomfort following her automobile accident. However, I find the reports and treatment records of Assessment Direct and Osler decidedly unhelpful in determining whether any duration of attendant care was justified. Since Ms. Comito’s own assessors were not brought forward as witnesses, I have no appreciation of their expertise in evaluating attendant care. Certainly, they were not O.T.s.

To make matters worse, the pre-printed attendant care forms, each a cookie cutter copy of the other, showing that inter alia Ms. Comito’s son helped her with dressing and bathing, just do not ring true. Nor does Mr. Cesare Comito’s testimony help her case.

In this matter, Ms. Comito is required to bring evidence that the attendant care benefits claimed are all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.

While Ms. Comito likely had some difficulties in stretching, lifting and bending following her accident and consequently may have benefited from some assistance, I find that the information submitted in support of her attendant care claims is so divorced from reality as to be of little utility.

Consequently, I find that Ms. Comito has not met the burden of proving that her attendant care claims met the criteria for payment set out in the Schedule.

Housekeeping

While it would make some intuitive sense that Ms. Comito would have required some assistance in performing her housekeeping tasks while suffering the after-effects of the accident, the housekeeping claim is bedevilled with many of the same evidentiary weaknesses as the attendant care claim.

In effect Ms. Comito says she needed help. Her son says she needed help as well. While his testimony as to housekeeping did not hit the same heights on the improbability scale as his supposed attendant care services, it has limited probative value. Then there are the same pre-printed service forms that magically conform to the exact limit of housekeeping support available under the Schedule.

Notwithstanding the formulaic approach taken by Ms. Comito in pursuing her claim for housekeeping, her son’s improbable testimony and the provision of medical documentation from professionals in whose integrity the insurer does not have great faith, Ms. Comito’s own testimony, together with the mechanism of the accident and the strenuous nature of Ms. Comito’s work, make it plausible that housekeeping assistance was helpful, appropriate and likely necessary in the time immediately following the accident.

Unlike the attendant care claim where Ms. Comito noted in the Activities of Normal Life (OCF-12) form that, as of July 23 she was at least partially able to complete her principal tasks, the equivalent boxes related to Housekeeping on that form are unequivocally marked “can not do.”

For what it is worth, the disability certificate completed on July 27, 2009, by Andrew Greszyczyszyn of the Osler clinic, notes a substantial inability to perform housekeeping and home maintenance tasks. I note that while Economical repeatedly referred to Osler’s tarnished reputation, it did not call on Dr. Greszczyszyn to justify his reported findings, nor did it enter any evidence relating to the ability of Dr. Greszczyszyn to professionally assess accident victims. In such circumstances, the findings in the disability certificate must be taken as having enough weight to trigger an initial consideration of benefits.

Dr. Greszczyszyn’s recommendation of housekeeping support was not, however, inconsistent with the contemporary observations of the family physician that Ms. Comito was still having trouble with pain and task completion.

It must be noted in this context that Ms. Comito did her best to mitigate her claim through continuing to work, at what must have been physically challenging work for someone shaken up in an accident, and that supportive housekeeping assistance to keep her active in the work force could make both economic and legal sense. I am not, however, convinced that the necessity of this assistance endured for a significant time, as Ms. Comito appeared to display a robust recovery.

The Insurer, however, did finally assess the housekeeping claim on September 3, 2009, with the report released on September 11, some two months after the accident.

It was an O.T., Ms. Delize Roberts, who examined the need for housekeeping assistance and found that Ms. Comito was “substantially able” to perform those tasks with some minor assistive devices.

The test as outlined in section 22 of the Schedule is actually whether “as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.”

While to some degree the O.T. report mirrors this test, her finding that Ms. Comito was “substantially able” to do her housework distorts the pre-condition for benefits as set out by section 22. A “substantial inability” to do certain tasks is not simply countered by a “substantial ability” to do the same tasks and indeed can be a misleading and confusing observation.

In the French version of the Schedule, it is clear that “importante” when used in the context of “incapacité importante” in section 22 has to do with the scale of the disability not with either the number of tasks or the ability to complete them. I accept that the English version should be interpreted accordingly.

Ms. Roberts, however, testified at the hearing and made it clear that in her opinion, with the appropriate tools, education and work simplification strategies, Ms. Comito would be able to do the assessed tasks.

I accept the report with its conditional endorsement of functionality as reasonable.

Consequently, I find it reasonable to infer that, once Ms. Comito had received the long-handled Swiffers, and other devices specified by Ms. Roberts and education about proper work simplification strategies, she would have no further entitlement to housekeeping benefits.

The second Insurer’s O.T. report, authored by Jayesh Patel and dated October 27, 2009, notes at its outset that Ms. Comito reported receiving a list of assistive devices including a lightweight vacuum, a Swiffer mop, a step-stool, a long-handled duster, dust-pan and broom as well as an “easy reach.”

Thus it is clear that the assistive devices perceived as a prerequisite to functionality had been received. The educational training referred to in the previous report, however, was not completed since Mr. Patel also recommended in the new report “education and training regarding correct body mechanics and the correct use of the previously provided and newly recommended assistive devices.”

Since the report recommended the provision of a one-day educational session, it seems likely that Economical proceeded to implement the recommendations although I see no evidence directly on point one way or another.

Allowing a reasonable time for the implementation of such a recommendation, I can see no reason to suggest the pre-conditions to Ms. Roberts’ conclusions being unfulfilled past November 2009, which would then be the outside range of Economical’s liability for housekeeping benefits.

In summary then, the circumstances of the accident, Ms. Comito’s own testimony as to her difficulties, and the contents of the two O.T. reports justify the payment of some housekeeping assistance following the accident.

Ms. Comito claimed the maximum of $100 per week in housekeeping services. She also filed receipts by the supposed providers of this service. As well, her son testified that he assisted. While neither the receipts nor Mr. Comito’s testimony are highly probative, at least Cesare Comito’s testimony lacks the sense of complete improbability of his evidence of attendant care services.

My understanding is that nothing was ever paid on this housekeeping claim, despite the early provision of some medical evidence of need. Presumably Economical did not adjust this claim promptly and provide an assessment and a determination on a timely basis because it distrusted the source of the medical information. If that was the case, however, there is no correspondence filed to suggest that any such concerns were expressed to Ms. Comito, or that she was encouraged to obtain medical certificates from a more reliable source.

I find that Ms. Comito is entitled to the full housekeeping indemnity of $100 per week, plus interest, until the Insurer took the trouble to have her needs assessed.

From that point on, being “substantially able” to do her housekeeping tasks, but lacking the necessary strategies identified by the Insurer’s expert to complete them fully, I find that Ms. Comito is entitled to $50 per week until the next O.T. report dated October 27, 2009. Following that date I agree with the Insurer’s experts that no further entitlement to housekeeping assistance arose.

Medical Expenses:

Ms. Comito claimed some $24,435.43 in treatment expenses for treatments provided by Osler Rehabilitation. According to the billings submitted by Osler, this amount was generated through the provision of massage, acupuncture, physical rehabilitation, counselling and education over a period that ran from July 20, 2009 to December 24, 2010.

It is. of course. incumbent upon Ms. Comito to demonstrate that the treatment claim was reasonable, necessary and arising from the motor vehicle accident. It is also necessary to demonstrate that the treatment providers complied with the treatment plan protocols created by the Schedule.

The treatments in question were said to be performed by service providers associated with Osler.

In support of the claim for medical benefits, Ms. Comito offered her own testimony, the notes and records of Osler relating to her treatments, the various treatment plans filed on her behalf by Osler and the testimony of Ms. Orselina Alcolado, an accounting representative with Osler, who had no knowledge of the actual treatments provided by the facility.

Economical took the position that, although some 21 treatment plans, “a number of Treatment and Assessment Plans (OCF 18) forms, proposing similar goods and services” were claimed, these requests were properly dealt with by assessments and reviews and that the appropriate denials had been sent on a timely basis to the treatment providers. Economical also took the position that the amount claimed by Ms. Comito bore no direct relation to individual treatment plans, and consequently it was impossible to determine to what extent the amounts claimed related to individual treatment expenses.

At the outset of the hearing, counsel for Ms. Comito, Mr. Honner, advised that rather than some 24 thousand dollars in expenses claimed for treatment by Osler, Ms. Comito was only proceeding on some five treatment plans for massage, chiropractic, acupuncture and physical rehabilitation, the total of which was $5,929.43. The five treatment plans remaining were all relatively early in the process, being dated July 23, 20, August 13, 27 and September 18, 2009.

In effect, Ms. Comito may be seen to have “cherry-picked” the stronger claims and attempted to sweep the balance under the rug, an approach that counsel for Economical did not accept.

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 elements of the medical claims remaining in dispute as identified by counsel for Ms. Comito.

Ms. Comito testified that she went to Osler because it was convenient to her, and she needed treatment due to pain following the accident. She also identified her name on the Osler sign-in sheets and endorsed her attendance on those dates. In response to her counsel’s questions, she confirmed that the massage, acupuncture and physiotherapy she received were helpful.

In response to questioning by counsel for Economical, Ms. Comito confirmed that she did not call an ambulance after the accident, did not attend at emergency, and only attended at a walk-in clinic some time later, indeed some two weeks post-accident. Well before that attendance, she went to Osler, either because it was “convenient” and her husband recommended it or because she found it in the Yellow Pages.

When questioned about sign-in sheets showing attendance at Osler on July 20, 21, 22 and 23, some four days in a row, Ms. Comito was unable to recall any details. She agreed, however, that she was likely attending every day at that time. Her testimony was that it was not necessary to make an appointment and Ms. Comito just turned up at the facility at her convenience. Ms. Comito might however make an appointment for chiropractic treatment.

Indeed, considering the extensive attendance that pre-dated any medical consultation with a family physician, Osler’s approach to treatment was relatively loose and informal. Rather than focussing on needed specific treatment, if Ms. Comito is to be believed, it was left to the patient to come and go at will and attend treatments as she felt so inclined.

The problem with such a client-centred approach is that there is an expectation that treatments will conform with what is proposed in the treatment plan which starts the process. If a variation is to take place, then a new treatment plan should be submitted.

The first treatment plan that Ms. Comito now asks to have considered is that dated July 22, 2009, several days after the sign-in sheets show attendance for treatment at Osler, and the same day that an application for accident benefits was filed by the Mazin law firm on behalf of Ms. Comito.

The plan is for some five massage treatments at $20, nine at $50 and three education sessions at $40.46 per session. This was estimated to last 4 weeks. The treatment plan was signed by Ms. Comito and issued by Andrew Greszczyszyn, chiropractor, and Oleksandr Cromadskyy, massage therapist. It is marked “do not approve” by Sandra Reid on behalf of the Insurer beside a date of August 5, 2009.

Neither treatment provider was called to explain why the treatment was reasonable and necessary and how it related to the motor vehicle accident. Ms. Comito testified, but her recall was limited and she could only state that she thought it was useful. The Osler sign-in sheets filed by Ms. Comito only show a date and a signature. There is no reference to the time allotted to treatment or the nature of the treatment provided.

The clinical notes and records filed contain a “Re-assessment Form” also dated July 22, 2009. It is a pre-printed form with illegible annotations under “Cervical Flex” and “M6265 pelvic/thing.” An equally illegible signature is scrawled under “Examiner.”

The Osler accounting summary for the same period shows invoices related to July 22, namely an initial assessment for massage, and a treatment plan. Subsequently for July and August there are billings for Acupuncture, a further treatment plan (July 23), a disability certificate, education and a TENS unit.

Having reviewed the billings submitted by Osler and compared them with the treatment plans and the sign-in sheet, it is not at all clear to me that Osler was delivering the treatment it proposed in the various treatment plans, and just what time was spent on the various individual modalities of treatment.

Ms. Comito also relies upon the endorsement of her family physician, Dr. Christina Dakhil.

As noted earlier, Ms. Comito saw Dr. Dakhil on July 28, 2009, almost a week after the treatment plan which Ms Comito seeks to have paid, and more than two weeks after the accident.

In her notes, Dr. Dakhil records Ms. Comito’s account of the motor vehicle accident and notes that she did not go to emergency and was not assessed by any medical doctor since the accident. Noting what she considers “MVA-soft tissue strain/injuries”, Dr. Dakhil advised Ms. Comito to continue with massage, physio and gentle home exercises. She concluded, “If symptoms get worse, return to the clinic, or go to emergency.”

The next attendance noted at the emergency clinic is not until February 26, 2010. There are no records to suggest that Ms. Comito attended at any hospital emergency department subsequent to her visit to Dr. Dakhil on July 28. Presumably, Ms. Comito’s symptoms did not “get worse.”

Osler, however, continued to provide treatment plans to Economical and treatment services to Ms. Comito, notwithstanding that each treatment plan appears to have been rejected by Economical.

Ms. Comito confirmed that she was never asked by Osler to pay for the ongoing services directly, and was not informed that the unpaid account had risen to the 20 thousand dollar mark.

By August 24, 2009, Economical had referred Ms. Comito to Dr. Saplys for assessment. While some of the limitations of Dr. Saplys’ approach to assessments have been dealt with earlier, it is noteworthy that he found the July 20, 2009 treatment plan “partially reasonable and necessary as her injuries would fall under WAD I to II PAF Guidelines in my opinion.”

Dr. Saplys also rejected the July 22, 2009 treatment plan. He did so because he rejected the use of a “passive modality (massage) (which is) neither reasonable nor necessary for the uncomplicated soft tissue injuries which she has sustained in my opinion.”

While one might possibly read in an inference from Dr. Dakhil’s notes that the massage was intended as a complement to the administration of pain-relievers, there was no specific evidence provided by Ms. Comito, and certainly no expert evidence provided as to whether massage formed a reasonable pain relief strategy to use to keep Ms. Comito fit to do her day job as a personal care worker.

I am not inclined to speculate as to the reasonableness of passive therapies in Ms. Comito’s case without some positive evidence on point, with the result that I am left finding myself agreeing with Dr. Saplys on this question.

Dr. Saplys does say that Ms. Comito is entitled to at least the amounts covered by the PAF scenario, and which appear to have covered the July 20^th treatment plan, a plan Ms. Comito claims to have removed as an issue in this arbitration.

While accepting Dr. Saplys’ conclusion that some treatment would have been appropriate, I make no finding as to whether the PAF applied to Ms. Comito since this was not directly addressed in this arbitration.

Economical has pointed to the many discrepancies between what was proposed in treatment plans and what appears to have been provided by Osler in terms of treatment. Counsel for Economical also tried to draw out of the only witness from Osler, Ms. Alcolado, a sense of what it obviously considered irregularities in the operation from Osler, a quest that to a large degree was stymied by the witness’s professed ignorance of the service delivery side of the clinic.

While it is apparent that Osler had many aspects of a “treatment mill”, the less savoury side of the clinic, if it exists, was not supported by concrete evidence at the hearing. Economical was entitled to call any witnesses it had who might support their allegations of impropriety, but it contented itself with allusions and aspersions.

This case, however, is not about Osler. It is about Ms. Comito’s entitlement to medical and other benefits.

Given the absence of credible medical evidence as to the reasonableness and necessity of any of the proposed treatments, I find that Ms. Comito has not met the evidentiary burden of demonstrating that any treatments beyond those identified by Dr. Saplys are reasonable and necessary and hence payable by Economical.

I leave it to the parties to address any accounting to determine if the full allocation for treatment identified by Dr. Saplys has been exhausted. I may be spoken to on this issue if required.

Expenses for Examinations:

According to the Application for Arbitration, Ms. Comito claimed reimbursement for a series of examinations and reports mostly performed by Assessment Direct.

The pre-hearing letter identifies a claim for $970.07 for an attendant care assessment, $775.00 for an attendant care assessment rebuttal report, and $1,063.38 for an in-home assessment report.

The attendant care assessment report, dated July 21, 2009, was created by Assessment Direct. Dr. Emilio Castaldi, a chiropractor, was the named assessor. The report included a Form 1 for attendant care.

Dr. Castaldi observed that Ms. Comito continued to have limitations in the fulfilment of some tasks due to pain but “the patient maintains her independence when possible by modifying tasks, and is fortunate that her daughter will assist her with personal tasks.” Notwithstanding this, Dr. Castaldi recommended $787.30 per month.

Dr. Castaldi noted that as of July 21, Ms. Comito had not started any treatment.² Nor did he mention that Ms. Comito was returning to her employment.

Ms. Comito’s testimony surrounding the experience of examination and treatment in July 2009 reflected a vague recollection and was of little use in determining whether the Attendant Care report formed a necessary and useful part of her recovery from the accident.

Once again, Ms. Comito did not call Dr. Castaldi as a witness (although she gave notice prior to the hearing of him being called as a witness), nor any other expert in either assessments or attendant care services. For that matter, there was nothing to suggest that Dr. Castaldi had any expertise in assessing attendant care needs, other than the bald statement at the beginning of the report that he had “performed countless Paper Reviews, Work-Site/Ergonomic Assessments, In-Home Assessments and Attendant Care (Form 1) Assessments.”

The in-person Rebuttal Assessment Report, dated November 17, 2009, was also performed by Dr. Castaldi. While this report does cite brief excerpts from Ms. Delize Roberts, on the whole it appears to be only a reiteration of the information in the original report, including the absence of any reference to Ms. Comito’s ongoing work.

I see little utility in a rebuttal that blithely ignores Ms. Comito’s actual condition and functionality and merely contradicts an assessor’s finding rather than providing informed criticism. Rather than being a rebuttal that challenges the insurer’s assumptions and conclusions or providing new evidence that ought to encourage an insurer to reconsider its position, these rebuttal reports seem to be more of a make-work project for the assessors and not very useful in the claims process. As a result, I do not find them compensable under the Schedule.

As to the balance of the Assessment Direct reports claimed by Ms. Comito, Economical took the position that the OCF-22 dated August 14 was unsigned by the health practitioner to conduct the assessment and that, in general, the rates charged were inflated, especially in instances when the service to be rendered was essentially form-completion.

I note again that, notwithstanding the decision of counsel for Ms. Comito to only proceed on a fraction of the issues referred to arbitration, all claims for assessment listed in the Application for Arbitration, and not properly withdrawn before the commencement of the hearing, remained in play in this arbitration.

While my earlier findings on attendant care and housekeeping provide a framework for the outcome in the payment of the requested assessments, it was reasonable to expect Ms. Comito to provide credible evidence supporting her contention that the information provided by the assessments was “reasonably required in connection with a benefit that is claimed or in connection with the preparation of a treatment plan.” In fact, Ms. Comito’s evidence does not even delineate the justification for most reports.

I have found earlier that the initial assessment and treatment plan dated July 29, 2009 recommending some treatment for Ms. Comito should have been useful in determining that there was an initial medical need that needed to be responded to. It would then make sense that the cost of this assessment be paid, since, on the face of it, the assessment was reasonably required. It is my understanding, however, that this assessment was properly funded.

While Mr. Honner walked his client through an examination of housekeeping, attendant care and treatment, Ms. Comito’s testimony shed little light on the assessments themselves.

Ms. Comito did produce a witness from the collections department of Assessment Direct who was able to speak about the aggregate amounts of the claim, but had no knowledge as to how Ms. Comito became a “client” nor as to the justification and the mechanism of any assessment.

Ms. Comito called no expert witnesses, including assessors, to provide support for the reasonableness of the assessments proposed. In such a situation, I am unwilling to simply draw an inference from the accident and Ms. Comito’s subsequent complaints that the examinations were relevant and useful in pursuing Ms. Comito’s recovery. Consequently, I find that Ms. Comito has not satisfied the evidentiary burden of demonstrating that the claimed assessments were reasonable in the context of her claim.

Special Award:

Ms. Comito has requested a special award in this arbitration. A special award in accordance with subsection 282(10) is meant to provide some additional compensation, similar in ways to aggravated damages where an insurer “has unreasonably withheld or delayed payments” to an insured under the accident benefits scheme.

It is notable that neither extreme, reprehensible nor malicious behaviour is required to found an award. The provision refers merely to an “unreasonable” (déraisonnable) withholding of a benefit. Certainly an insurer is entitled to be wrong in its assessment of its obligation to pay, but it must not be unreasonably so.

As Arbitrator Palmer noted in Plowright, the threshold for a special award is not terribly high. It requires no proof of intent by an insurer, no demonstration of malice, only an unreasonable withholding of benefits.

The decision of Senior Arbitrator Rotter in Larry Erickson v. The Guarantee Company of North America (O.I.C. File No. A-000560, dated July 16, 1992) comments on the nature of a special award under the Insurance Act. I agree, in general, with those comments. I find no evidence that there was deliberate misconduct or bad faith on the part of the Insurer; I find only that its conduct in terminating Mr. Plowright's weekly income benefits was unreasonable. The standard expected of an insurer's examiner and her supervisors is one of sound and moderate judgment. Unfortunately, this was not manifested in the unreasonable termination of Mr. Plowright's weekly income benefits.³

This is in line with a system that is supposed to be, according to Eberhard J. in Gill v. Zurich, remedial and timely:

I adopt the statement of purpose articulated by Arbitrator Mackintosh at page 12 in Edgar v. Wellington Insurance Co. [1994] O.I.C.D. No. 34 File No. A-005441 that SABS is remedial, that is to be interpreted in a broad and liberal way, and that its principal object is to provide a "fair and adequate income stream to those who are injured and disabled from work". The victim is to receive an approximation of wages and not be compensated more or less.⁴

Likewise, Cameron J. in Youden v. Economical Insurance Company, identified the trade-off implicit in the accident benefit scheme as follows:

This is remedial legislation. The "no fault" legislation deprived the plaintiff of his common law right to sue for damages for loss of income due to another's negligence. The Regulation provides for prompt payment of an income benefit to replace income lost due to the accident without need to prove fault and in lieu of any amount the plaintiff might have been awarded and recovered at common law.⁵

I have found that Ms. Comito is entitled to certain housekeeping benefits and an indeterminate amount of further medical benefits that may already have been paid.

While it is entirely possible that Ms. Comito would have been entitled to other accident benefits, I have found that she has not met her burden of providing credible evidence in support of those claims.

The housekeeping expenses being the only clearly unpaid benefit to which Ms. Comito was found entitled, her special award claim must turn on whether that benefit was unreasonably withheld.

The time that the benefits were due was not significantly long, from mid July until November 2009 at the latest. Already by September, a credible assessor found that Ms. Comito was able to do her housekeeping chores with certain assistive devices.

While perhaps Economical should have paid for housekeeping assistance from the date that Dr. Greszyczyszyn, the chiropractor at Osler, checked off housekeeping as required, it is clear that Economical viewed with caution the opinions of professionals employed by that facility.

In the absence of further information from Ms. Comito supporting her housekeeping entitlement, Economical was entitled to commission an assessment with an O.T., an acknowledged expert in function and accommodation, to assist in the determination. This was arranged in relatively short order.

If Economical is to be faulted for delaying the determination and payment of the housekeeping issue, it is also important to note the absence of any notes, letters or comments from Ms. Comito’s family physician to Economical, in support of housekeeping entitlement.

Indeed, there is no evidence of letters or telephone calls from Ms. Comito to Economical after the accident requesting that housekeeping assistance be given a priority.

It is striking that the clinic, Osler Rehabilitation, to whom Ms. Comito was variously said to be referred by unknown persons, her husband or the Yellow Pages, and Mr. Mazin’s law office appear to have provided Ms. Comito’s primary contact to Economical, her accident benefit insurance carrier, in the period immediately after the accident.

Indeed, Ms. Comito’s Application for Accident Benefits dated July 23 indicates that she should be contacted only through her representative, Alexander Mazin. This was some five days before she even visited her physician and three days after the first treatment plan was submitted by Osler.

Without imputing any special knowledge of Osler’s circumstances to Mr. Mazin, Ms. Comito’s designated spokesperson in contacting her insurer, it is clear at least that he did not marshal further evidence in support of immediate payment of the housekeeping benefit such as the opinion of her family physician or other disinterested treatment providers, in a timely manner.

Indeed, judging by the relative lack of success that Ms. Comito had in obtaining housekeeping benefits immediately following the accident, the strategy of using a law office as a case manager was apparently not a great idea.

These observations are not restricted only to the onset of the housekeeping claim. If Ms. Comito truly needed housekeeping assistance over an extended period, she was ill-served by some of the documentation submitted in support of her claim, especially the service provider receipts which appear to have been manufactured in bulk.

While Economical may have been a little slow off the mark in assessing Ms. Comito’s needs, it still commissioned the assessment of Ms. Comito’s housekeeping needs by a credible assessor within a reasonable time. Ms. Comito has brought no evidence that Economical could have completed the assessment process any sooner than it did.

In so doing, Economical exercised, in the words of Arbitrator Palmer, “sound and moderate judgment” if not with undue haste. With hindsight, looking back on all the evidence, Economical may have been wrong in not expediting payment of the housekeeping benefits. I find, however, that it was not unreasonable to do so at the time, given the fragility of the initial evidence in support. Consequently, Ms. Comito has not demonstrated any entitlement to a Special Award.

EXPENSES:

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

May 2, 2013

John Wilson Arbitrator

Date