Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 186

FSCO A12-003584

BETWEEN:

SAGAL IBRAHIM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: Maggy Murray

Heard: July 29, 30, 31, September 16, 17 and 18, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Jacek Maludzinski for Ms. Ibrahim

Ashraf (Ashu) Ismail for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Sagal Ibrahim, was injured in a motor vehicle accident on October 21, 2010. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated various benefits. The parties were unable to resolve their disputes through mediation, and Ms. Ibrahim applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Ms. Ibrahim entitled to the following medical benefits, pursuant to s.15 of the Schedule, from Osler Rehabilitation Centre:
$3,966.89 for a therapy and exercise treatment plan dated November 9, 2010 authored by Dr. Amir Khajavi, chiropractor to be provided by Dr. Khajavi;
$982.56 for a massage therapy treatment plan dated November 10, 2010 authored by Dr. Amir Khajavi, chiropractor to be provided by Mr. Dmitry Traanov;
$840 for an acupuncture treatment plan dated November 15, 2010 authored by Dr. Andrew Greszczyszyn, chiropractor to be provided by Dr. Greszczyszyn;
$1,978.09 for a therapy and exercise treatment plan dated December 31, 2010 authored by Dr. Elana Silverman, chiropractor to be provided by Dr. Silverman;
$591.28 for a massage therapy and education treatment plan dated January 5, 2011 authored by Dr. Anthony Yearwood, chiropractor to be provided by Dr. Bernshtein;
$996.54 for an exercise treatment plan dated January 10, 2011 authored by Dr. Leslie Toth, chiropractor to be provided by Dr. Toth;
$456.73 for a TENS Unit treatment plan dated January 24, 2011 authored by Dr. Leslie Toth, chiropractor to be provided by Dr. Toth;
$1,299.98 for therapy and exercise sessions in a treatment plan dated January 31, 2011 authored by Dr. Andrew Greszczyszyn, chiropractor to be provided by Dr. Greszczyszyn;
$973.59 for an exercise treatment plan dated February 8, 2011 authored by Dr. Jonathan Forbes, chiropractor to be provided by Dr. Forbes?
Is Ms. Ibrahim entitled to interest for the overdue payment of benefits pursuant to section 51 of the Schedule?
Is State Farm liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Ibrahim?
Is either party entitled to expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

Result:

Ms. Ibrahim’s claims for treatment from Osler Rehabilitation Centre are dismissed.
Ms. Ibrahim is not entitled to interest.
State Farm is not liable to pay a special award.
If the parties are unable to agree on the issues of entitlement to or amount of the expenses, they may make submissions on both issues in accordance with Rule 79 of the Dispute Resolution Practice Code — Fourth Edition within sixty days of the date of this decision.

EVIDENCE AND ANALYSIS:

Witnesses:

Ms. Ibraim testified on her own behalf and called no other witnesses.

State Farm called Mohamad Khan, an adjuster with State Farm, and Dr. Greszczyszyn, a chiropractor who worked at Osler Rehabilitation Centre (“Osler’s”) at the time the Applicant attended at Osler’s, to testify.

Parties’ Positions:

The Applicant’s position was that the treatment she received at Osler’s helped her. In addition, State Farm initially denied the treatment plans on the basis that the Applicant was within the Minor Injury Guideline (MIG), which limits medical and rehabilitation claims to $3,500 for minor injuries. At the pre-hearing in this matter, State Farm advised the Applicant that it was no longer of the opinion that her injuries fell within the MIG. According to the Applicant, once her injuries fell outside the MIG, the cost of treatment up to $50,000² was payable.

The insurer’s arguments included that the treatment plans submitted by Osler’s were not reasonable or necessary.

Background:

Ms. Ibrahim was involved in a motor vehicle accident when her vehicle was rear-ended while she was stopped at a red light. Her injuries included pain in her neck, back and left wrist.³ The day after the accident, she saw her family doctor, Dr. Tham. Dr. Tham referred her for x‑rays and therapy. A friend of Ms. Ibrahim’s, a tow truck driver, suggested she get treatment at Osler’s.

At issue are nine treatment plans, authored over a period of 12 weeks, prepared by Osler’s.

Pursuant to section 15 of the Schedule, the Insurer must pay for all reasonable and necessary medical expenses incurred by or on behalf of an Applicant as a result of the accident. The total cost set out in nine treatment plans is $12,085.66.

Onus:

The burden of proof rests with Ms. Ibrahim to show on a balance of probabilities that as a result of the car accident she is entitled to her claim for medical benefits pursuant to s.15 of the Schedule. For the following reasons, I find that Ms. Ibrahim has not met her burden of proof.

I accept Ms. Ibrahim’s evidence that she suffered pain and discomfort following her automobile accident. Ms. Ibrahim was a credible witness and I accept her evidence that she found the treatment she received “helpful”. However, it is impossible to determine what treatment the Applicant received at Osler’s.

Evidence:

Ms. Ibrahim provided little evidence to support her claim. For example, the clinical notes and records from Osler’s were not produced. She testified that the treatment at Osler’s was “helpful”, but her own opinion that the treatment was “helpful,” however sincere, is not sufficient to prove that the treatment plans were reasonable and necessary, especially when there is evidence from Osler’s that much of the treatment was not provided, as outlined below. Ms. Ibrahim did not explain how the treatment “helped” her, what her level of functioning was before and after the accident, or how her functioning improved after a treatment session, or for what length of time after a treatment her functioning improved.

In a report dated April 14, 2011, Dr. Li, a neurosurgeon who saw the Applicant at the request of her family doctor, stated that the Applicant should have physiotherapy, massage and acupuncture.⁴ None of the treatment plans by Osler’s were for physiotherapy, were prepared by a physiotherapist, or indicated that a physiotherapist would perform treatment. I place little weight on this report that the treatment plans from Osler’s are reasonable and necessary because, although it indicates that the Applicant had physiotherapy in the past, that does not seem accurate, based on the treatment plans by Osler’s.

In the summer of 2011, a friend of the Applicant’s referred her to a chiropractor who did not work at Osler’s. In a report dated March 10, 2012, Dr. Basile, a neurologist who saw the Applicant at the request of her family doctor, stated that the Applicant should “continue” seeing a chiropractor.⁵ I place little weight on Dr. Basile’s report that the treatment plans from Osler’s are reasonable and necessary because “continue” seeing a chiropractor refers to the new chiropractor the Applicant was seeing, who did not work at Osler’s, since his report is dated one year after Osler’s stopped treating the Applicant.

In addition, although Dr. Li’s report of April 14, 2011 stated that the Applicant should have physiotherapy, massage and acupuncture,⁶ and Dr. Basile’s report of March 10, 2012, recommended continued chiropractic therapy, the treatment by Osler’s was not carried out in accordance with the treatment plans.

I do not have enough evidence to conclude how much treatment Ms. Ibrahim received, or whether that treatment was reasonable and necessary, because I cannot rely on the invoice from Osler’s,⁷ which contains numerous inconsistencies with other evidence, such as:

Treatment plan dated November 9, 2010: $3,966.89 for therapy and exercise authored by Dr. Amir Khajavi, chiropractor to be provided by Dr. Khajavi: The Applicant testified that she did not have any counselling with Dr. Khajavi as is indicated eight times on the invoice from Osler’s. Moreover, Ms. Ibrahim testified that she does not recall meeting this chiropractor. Yet, Dr. Khajavi’s name appears on the invoice from Osler’s approximately 31 times because he allegedly provided treatment, education and counselling to the Applicant;⁸

ii. The treatment plans that were submitted to State Farm by Osler’s were generally not explained to the Applicant, despite Part 10 of the treatment plans stating: “I have reviewed and agree with this Treatment and Assessment Plan …”

iii. The Applicant did not have any education or counselling training sessions, contrary to the various treatment plans and the invoice from Osler’s;⁹

iv. The Applicant did not receive a TENS unit, as outlined in the treatment plan dated January 24, 2011 authored by Dr. Leslie Toth and billed on an invoice from Osler’s;¹⁰

v. The Applicant testified that she saw a chiropractor between one and four times¹¹ at Osler’s but Osler’s was not generally providing her with chiropractic care. According to the Applicant, the chiropractor’s name was likely “David”.¹² The invoice from Osler’s indicates that the Applicant was treated by “David” once¹³ and that she received 74 treatments by chiropractors at Osler’s;

vi. Treatment plans for massage therapy indicate that the Applicant will receive education sessions. The invoice from Osler’s indicates that the Applicant received nine education sessions from various massage therapists. But, according to the Applicant’s evidence, she never received separate massage therapy education sessions;

vii. The Applicant testified that she usually had the same male masseuse provide massage therapy. However, the invoice indicates that she had more massage therapy treatments by two female massage therapists and another male therapist than by the male massage therapist that usually treated her;¹⁴

Treatment plan dated January 5, 2011: $591.28 for a massage therapy and authored by Dr. Anthony Yearwood, chiropractor to be provided by Dr. Bernshtein: According to the invoice, Dr. Bernshtein did not provide any massage therapy treatment to the Applicant
Dr. Greszczyszyn billed twice for acupuncture treatment on January 11, 2011;¹⁵
The Applicant testified that when she initially began going to Osler’s, she went three times a week. However, the invoice from Osler’s indicates that Dr. Silverman, a chiropractor, billed for seeing the Applicant four times in one week during the week of January 24, 2011.¹⁶ Dr. Forbes, another chiropractor at Osler’s, billed for seeing the Applicant four times in one week during the week of February 22, 2011.¹⁷ Marina Loboda, a massage therapist at Osler’s billed for seeing the Applicant four times in one week during the week of February 22, 2011;¹⁸

xi. The Applicant testified that her exercise sessions at Osler’s were “always” supervised by “the same woman”. However, the invoice from Osler’s indicates that Dr. Toth, a male chiropractor, provided exercise sessions to the Applicant 10 times between January 10, 2011 and January 31, 2011;¹⁹

xii. The Applicant testified that “at first” when she started going to Osler’s, she attended three times a week. However, the invoice indicates that approximately 30 days before she stopped going to Osler’s, she was still generally attending three times a week,²⁰ and even four times a week.²¹

Based on the evidence presented, it is impossible to determine what treatment the Applicant received at Osler’s.²² In short, I conclude that the invoices provided by Osler’s are unreliable. I give them no weight.

Dr. Greszczyszyn is a chiropractor who used to work at Osler’s. State Farm served him with a Summons to Witness approximately one week before the hearing and the Applicant did not object to him giving evidence. The Summons requested that he bring with him the Applicant’s clinical notes and records. However, Dr. Greszczyszyn testified that he “did not have time” to get the Applicant’s clinical notes and records.

Dr. Greszczyszyn testified that:

(i) It is possible that the work, as indicated on the invoice, was never done;

(ii) It is also possible that someone else provided the treatment but billed it under his name;

(iii) The doctors at Osler’s would prepare clinical notes and records of patients and then the staff at Osler’s, not the doctors, would prepare the treatment plans and use the doctor’s electronic signature;

(iv) Osler’s staff added redundant codes to treatment plans.

Dr. Greszczyszyn testified that he could not recall what the Applicant looked like and would not be able to recognize her, despite the fact that the invoice from Osler’s indicated that he treated her 37 times.²³ In addition, despite allegedly authoring two of the treatment plans and allegedly treating the Applicant 37 times, he did not provide any evidence that the treatment at Osler’s helped Ms. Ibrahim, or that any of it was reasonable and necessary. I found Dr. Greszczyszyn’s testimony unreliable evidence that the treatment at Osler’s was provided pursuant to the treatment plans in dispute.

For the above reasons, I find that Ms. Ibrahim has failed to meet her burden of proof that the medical benefits claimed, as outlined in the nine treatment plans, are reasonable and necessary as a result of the October 21, 2010 motor vehicle accident. As a result, I find Ms. Ibrahim is not entitled to receive a medical benefit for the treatment plans by Osler Rehabilitation Centre pursuant to s. 15 of the Schedule.

SPECIAL AWARD:

Ms. Ibrahim is claiming a special award pursuant to subsection 282(10) of the Schedule on the basis that State Farm unreasonably denied her medical expenses for treatment she received from Osler’s. A special award may be awarded only in the case where benefits are found payable. In this case I have denied Ms. Ibrahim's claim for medical benefits. Accordingly, I find that Ms. Ibrahim is not entitled to a special award.

EXPENSES:

If the parties are unable to agree on the issues of entitlement to or amount of the expenses, they may make submissions on both issues in accordance with Rule 79 of the Dispute Resolution Practice Code — Fourth Edition within sixty days of the date of this decision.

December 10, 2014

Maggy Murray

Arbitrator

Date