Nabil Youssef-Shebo v. Aviva Canada Inc., 2018 ONFSCDRS 7

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 7

FSCO A14-007796

BETWEEN:

NABIL YOUSSEF-SHEBO

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before: Jessica Kowalski

Heard: August 28-31, September 29, and November 24 and 30, 2017, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions to December 4, 2017.

Appearances: Essam Elbassiouni for Mr. Youssef-Shebo

Petros Yannakis for Aviva Canada Inc.

Issues:

The Applicant, Nabil Youssef-Shebo, was injured in a motor vehicle accident on June 28, 2013. He applied for and received statutory accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule,¹ some of which Aviva terminated. The parties were unable to resolve their disputes through mediation, and Mr. Youssef-Shebo 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:

1. Is Mr. Youssef-Shebo entitled to payment for treatment proposed by Thistletown Rehabilitation Centre as follows:

i. the unapproved balance of $1,388.00 for physical therapy recommended in a plan dated September 25, 2013, and which was partially approved in the amount of $1,269.00;

ii. $1,745.00 for physical therapy recommended in a plan dated November 11, 2013;

iii. $1,299.80 for physical therapy recommended in a plan dated February 12, 2014; and,

iv. $1,076.20 for physical therapy recommended in a plan dated June 18, 2014;

2. Is Mr. Youssef-Shebo entitled to $351.16, which represents the unapproved cost of a psychological evaluation by Nicole McCance of Injury Management & Medical Assessments, submitted in the amount of $1,979.36 and partially approved in the amount of $1,628.20?

3. Is Mr. Youssef-Shebo entitled to interest on overdue benefits?

4. Is either party entitled to their expenses of this arbitration?

Result:

1. Aviva shall pay for the following treatment proposed by Thistletown Rehabilitation Centre:

i. the unapproved balance of $1,388.00 for physical therapy recommended in a plan dated September 25, 2013, and which was partially approved in the amount of $1,269.00;

ii. $1,745.00 for physical therapy recommended in a plan dated November 11, 2013;

iii. $1,299.80 for physical therapy recommended in a plan dated February 12, 2014.

2. Mr. Youssef-Shebo is not entitled to payment of $1,076.20 for treatment recommended by Thistletown in the OCF-18 dated June 18, 2014.

3. Mr. Youssef-Shebo is not entitled to payment of $351.16, representing the outstanding amount billed by Injury Management & Medical Assessments for a psychological evaluation by Nicole McCance.

4. Mr. Youssef-Shebo is entitled to interest on overdue benefits, calculated in accordance with the Schedule.

5. Each party shall bear their own expenses of this arbitration.

EVIDENCE AND ANALYSIS:

Mr. Youssef-Shebo was involved in a chain reaction-style collision as he slowed to a stop when his car was struck from behind by one car, which was then struck from behind by another car.

He did not seek immediate medical treatment, nor was he taken to hospital. Mr. Youssef-Shebo testified that his main concern at the time of the accident was his young children, who were in the car with him.

The next day, June 29, 2013, Mr. Youssef-Shebo went to see his family doctor, Dr. Youssef, for symptoms of sinusitis.² There is no record in Dr. Youssef’s notes that Mr. Youssef-Shebo reported the accident or complained of accident-related pain during that visit. Mr. Youssef-Shebo testified that the onset of pain was not immediate, and that he started to feel pain, first in his neck and then in his back and leg, in the two to three days after the accident.

Four days later, on July 3, 2013 (and not unreasonable given the intervening Canada Day holiday), Mr. Youssef-Shebo went back to see Dr. Youssef. This time, he complained of neck and back pain following the accident. Dr. Youssef prescribed pain medication and recommended that Mr. Youssef-Shebo start physiotherapy.

Pre-existing condition

There is no dispute that Mr. Youssef-Shebo had pre-existing conditions in his low back and right knee. He says they were aggravated by the accident.

Mr. Youssef-Shebo testified candidly about his pre-existing conditions. I found Mr. Youssef-Shebo to be a credible and co-operative witness. Not surprisingly, he did not have full recall of his medical history or of what he might have told various health professionals over the years, especially since he required the help of an interpreter. Mr. Youssef-Shebo is also not a sophisticated individual. He could not recall what doctors he saw for what reason or their respective specialties, but I saw no pattern of evasiveness or efforts to simply fill in the blanks in the case of appointments or assessments or physicians he could not remember.

Approximately three weeks before the accident, Mr. Youssef-Shebo had gone to see Dr. Youssef because of pain in his lower back, right leg and right knee. On June 10, 2013 (about two weeks before the accident), Mr. Youssef-Shebo had x-rays taken of his low back and right knee. The x-ray of the low back showed mild degenerative disc disease³; the x-ray of the right knee showed bursitis and baker’s cysts.⁴

As a result, Dr. Youssef referred Mr. Youssef-Shebo to a rheumatologist.

Mr. Youssef-Shebo testified that, despite pre-existing conditions, he could function and his pain, although it came and went, was manageable. After the accident, however, he says that his pain increased. In post-accident visits to Dr. Youssef, he continued to complain of low back pain, neck pain and right knee pain.

Following Dr. Youssef’s July 3, 2013 recommendation, Mr. Youssef-Shebo started attending physiotherapy at Thistletown. That same day, a chiropractor at Thistletown, Dr. Dahir Hashi, completed a Treatment Confirmation Form (“OCF-23”) in accordance with the Minor Injury Guideline (“MIG”). The OCF-23 certified that, as a direct result of the accident, Mr. Youssef-Shebo sustained: injury to the muscle and tendon at the neck, sprain and strain of the thoracic spine, lumbar spine and the sacroiliac joint, as well as chronic post-traumatic headache.

At Part 6, the OCF-23 described Mr. Youssef-Shebo’s pre-existing condition as a right knee injury, that it had been aggravated in the accident, and that it could affect his ability to perform some of the active components of therapy.

Mr. Youssef-Shebo started treatment, and continued to see Dr. Youssef for post-accident pain complaints.

On September 23, 2013, Thistletown submitted a treatment and assessment plan (OCF-18) recommending $1,388.00 in physical therapy. This was the first OCF-18 after the MIG phase of treatment had been completed. Aviva approved this OCF-18, save for one treatment session, because it would have exceeded the $3,500.00 MIG treatment limit. Aviva denied funding for further physical treatment.

On December 4, 2013, Dr. Youssef referred Mr. Youssef-Shebo to an orthopaedic surgeon because of his ongoing complaints of low back pain.

The extent of Mr. Youssef-Shebo’s injuries in the low back and right knee did not become known until an MRI of each in February 2014 which disclosed abnormal pathology: The lumbar spine MRI showed multilevel disc disease with a bulge and protrusion in the lumbosacral spine.

The MRI of the right knee showed a complete tear of the anterior cruciate ligament (“ACL”). The report of the right knee MRI dated February 18, 2014 described a flipped meniscal tear: a “Complex tearing of the medial meniscus with a flipped fragment lying medial to the posterior cruciate ligament and diminutive residual body and posterior horn.” The MRI report also noted arthritic changes as well as knee effusion and a popliteal cyst.

Eventually, Mr. Youssef-Shebo had surgery to repair the right knee.

Aviva ultimately removed Mr. Youssef-Shebo from the MIG, but for psychological reasons.

The disputed OCF-18s

Aviva denied the disputed treatment plans following an insurer examination (IE) by chiropractor Dr. Jim Getsos. Dr. Getsos saw Mr. Youssef-Shebo in person three times, and completed three reports between December 2013 and January 2017, plus an addendum.⁵ Dr. Getsos opined in his reports that the proposed treatment was not reasonable or necessary and that Mr. Youssef-Shebo’s pain or impairments were not caused by the accident but were consequential of some other pathology, and that his current presentation may or may not be related to the pre-existing factors.

Mr. Youssef-Shebo was also assessed by his own expert, Dr. Getahun, an orthopaedic surgeon. Dr. Getahun opined that the accident exacerbated Mr. Youssef-Shebo’s pre-existing condition and that physical therapy was not only reasonable, but recommended. He opined that Mr. Youssef-Shebo’s post-accident condition in his right knee was severe and could not effectively be treated within the MIG.

I find, based on the evidence, including the testimony of Dr. Getsos and Dr. Getahun, as well as Mr. Youssef-Shebo, that, that although Mr. Youssef-Shebo was suffering from an injury to his right knee and back prior to the accident, it is reasonable to conclude that the accident exacerbated his prior conditions, which would have precipitated his need for treatment closer to the accident date, and beyond that which an average person would receive within the MIG.

Drs. Getsos and Getahun agreed that the goals of Thistletown’s treatment plans – functional restoration, education regarding hurt vs harm principles, increasing strength and a return to daily activities – were reasonable.

Despite Mr. Youssef-Shebo’s consistent reports of improvement following physiotherapy, Dr. Getsos felt that more of the same treatment was not indicated.

I find, however, that he did not have the whole picture before him, such as the MRIs or that Mr. Youssef-Shebo had had surgery. Dr. Getsos was not aware that Mr. Youssef-Shebo had an ACL reconstructive surgery shortly after meeting with him.

I further find that his testimony that an insult such as trauma could exacerbate prior injury is consistent with Dr. Getahun’s evidence that the accident exacerbated an already serious degenerative condition.

Dr. Getsos testified that Mr. Youssef-Shebo reported pain in the right knee and compained that his back stiffens up. Dr. Getsos confirmed in his testimony that pain is subjective and therefore not simple to measure. He testified that, when he assessed Mr. Youssef-Shebo, he found some guarding (tensing up) on physical examination, that Mr. Youssef-Shebo had some pain during palpation of the muscles of his lower back, and that he was cognizant of Mr. Youssef-Shebo’s ongoing pain. During his second assessment, Dr. Getsos observed that Mr. Youssef-Shebo walked more slowly and had a jump sign with superficial touch. He testified that Mr. Youssef-Shebo showed less resistance when testing against gravity, but he nevertheless opined that Mr. Youssef-Shebo showed no ongoing signs of injury or impairment relating to the accident.

Dr. Getsos acknowledged that Mr. Youssef-Shebo reported improvement after physiotherapy, but opined that that could have been from treatment or medications. He testified that further physical treatment was neither reasonable nor necessary, instead recommending that Mr. Youssef-Shebo continue home exercises and stretching, and follow-up with his family doctor.

Dr. Getsos also testified that he based his conclusions more on Mr. Youssef-Shebo’s subjective pain complaints and without regard to the MRI findings of the ACL and meniscus tear.

Notably, Dr. Getsos testified that, if a person had a fairly significant injury before the accident, and an insult such as a sprain or strain would be added, one would anticipate that, although the person could respond well to treatment, one would anticipate some delay. I accept this as a reasonable observation and it is also consistent with Mr. Youssef-Shebo’s own evidence.

Like other assessors, Dr. Getsos did not dispute that Mr. Youssef-Shebo’s reports were credible.

The evidence does not support that Mr. Youssef-Shebo exaggerated or over-reported his symptoms. Dr. Virk, the treating chiropractor at Thistletown, testified that while he does see patient who over-report or exaggerate their pain and symptoms in the face of objective improvement, he did not see this to be the case with Mr. Youssef-Shebo. Mr. Youssef-Shebo also consistently reported that his pain had increased following the accident, and that he improved following physiotherapy.

I preferred the evidence of Dr. Getahun, who concluded that the accident caused chronic myofascial strain of the cervical spine, lumbosacral spine and right knee contusive injury. He also opined that the accident aggravated pre-existing degenerative changes in the low back and pre-existing osteoarthritic pathology in the right knee, which was confirmed by MRIs.

By the time Dr. Getahun conducted his orthopaedic assessment of Mr. Youssef-Shebo on November 23, 2015, Mr. Youssef-Shebo was using a cane intermittently, for control when he had knee and back pain. He complained to Dr. Getahun that he could only sit or stand for short intervals at a time and that his low back and right leg pain was aggravated by bending and attempts at lifting and carrying. Mr. Youssef-Shebo reportedly also told Dr. Getahun that he had intermittent neck pain as well as right knee pain that was aggravated by walking or attempts to use stairs. Dr. Getahun explained that intermittent use of a cane would not change his view of Mr. Youssef-Shebo’s pathology and that it was not unusual to unload the joints, which in Mr. Youssef-Shebo’s case were part of his knee pathology.

Based on Mr. Youssef-Shebo’s reports and MRIs, Dr. Getahun testified that he would recommend physiotherapy focusing on range of motion of the lumbosacral spine and core strengthening. He testified that physiotherapy was a starting point for treatment, which, if not successful, could be followed by epidural injections and then surgery, as a last resort. Dr. Getahun testified that Mr. Youssef-Shebo’s knee condition would not resolve without treatment. He also testified that many people, if treated for ACL and meniscal tears, could achieve functional recovery without surgery.

When Mr. Youssef-Shebo reported, for example, to Dr. Getsos, for example, 60% improvement from his accident-related injuries, Dr. Getahun testified that more physiotherapy would be recommended to continue Mr. Youssef-Shebo’s progress. He also testified that physiotherapy would be recommended for someone with acute knee pain, and that many persons could be treated for those injuries and achieve functional recovery without surgery. Dr. Getahun opined that he would maximize non-surgical interventions to improve a persons outcoume, so that if a person was improving with physiotherapy – as Mr. Youssef-Shebo reported that he was – that would be an indication to continue with non-surgical interventions.

Finally, Dr. Getahun opined that Mr. Youssef-Shebo’s impairments fell outside the MIG.

According to the Schedule, the accident must be a direct cause of an insured person’s impairments, but it need not be the only cause.

I accept Dr. Getahun’s opinion and assessment and find that, on balance, the accident exacerbated Mr. Youssef-Shebo’s pre-existing degenerative conditions in the low back and right knee, and increased his pain and impaired his function. Based on Mr. Youssef-Shebo’s reports of feeling better after physiotherapy, which he received close to the accident, I find it reasonable that further treatment would have benefited him for the reasons that Dr. Getahun described.

Based on comments made by Drs. Getsos and Getahun, I find that physiotherapy soon after the accident would have benefited Mr. Youssef-Shebo.

Accordingly, I find that Mr. Youssef-Shebo is entitled to the treatment set out in the following September 25, 2013, November 11, 2013 and February 12, 2014 plans. I discussed the June 18, 2014 plan, below.

June 18, 2014 treatment plan not reasonable and necessary

I am not persuaded that the fourth OCF-18 in dispute, dated June 18, 2014, is reasonable and necessary for the following reasons.

Thistletown’s records show that they continued to treat Mr. Youssef-Shebo after the February 12, 2014 plan, which treatment would have been exhausted in or around April 23, 2014 (based on 10 proposed sessions). The evidence suggests that Thistletown proposed this last plan in an effort to recover under s.38 for treatment that had been provided previously, but not submitted on any prior treatment plan. It appears that Thistletown realised their error when in a note placed over an April 23, 2014 entry, the following was noted: “Assessment should have been made apr 30/14. We need to count from Apr 30th now.” It appears that this note was made after the clinic discovered that treatment was being incurred without a treatment plan, based on a note placed over a July 16, 2014 entry that states: “URGENT!!! Youssef Shebo Nabil. Please do a treatment plan backdated to April 23, 2014 which should be TP5…”

These facts suggest that this treatment plan was made to reclaim lost treatment sessions pursuant to the Schedule rather than following an assessment of Mr. Youssef-Shebo’s condition and needs. Because of the retroactive alteration of this document by Thistletown, I am not persuaded that this treatment plan’s primary goal was follow-up to an evaluation of Mr. Youssef-Shebo’s treatment needs, but rather to assist in recovery of their expenses.

The psychological assessment billing

On August 5, 2014, Injury Management & Medical Assessments (“IMM”) submitted an OCF-18 proposing a psychological assessment by Nicole McCance. The plan proposed 11 hours to complete the assessment, plus an additional hour of review. The time would be billed at $148.11 per hour.

Psychologist Dr. Amena Syed conducted an IE and opined that the psychological assessment proposed by Nicole McCance was reasonable, but only up to 10 hours at the rate charged by a psychologist. Dr. Syed’s report took 4.5 hours to complete, which Aviva submits is more reasonable than the 11 hours proposed by Ms. McCance.

Based on Dr. Syed’s conclusion, Aviva partially approved the psychological assessment, but not those charges above what Dr. Syed deemed reasonable.

On October 9, 2014, at the start of the assessment, IMM presented Mr. Youssef-Shebo with a Consent to Services Form from McCance Psychology Professional Corp., purporting to give permission and consent for Ms. McCance, a registered psychologist, to provide services.

Ms. McCance testified that she never met with Mr. Youssef-Shebo. Instead, the work was delegated to an unregulated counsellor, Umair Malik (who owns IMM). Ms McCance testified, however, that she supervised Mr. Malik’s work. She received information from Mr. Malik, reviewed the relevant information on file, and, based on this, came up with a diagnosis.

Mr. Malik was not registered with the College of Psychotherapists at the time he provided the services that IMM’s contract said Ms. McCance would be providing and was therefore an unregulated counsellor. According to Mr. Malik’s testimony, the Rules of Professional Conduct for psychologists (which Mr. Malik was not), required billings to be in the name of the psychologist (in this case, Ms. McCance).

FSCO has issued a Professional Services Guideline that sets out the applicable rates for service providers under the Schedule, including how much an unregulated counsellor, and how much a psychologist, can charge an insurer for services. Since this is a dispute under the Schedule, the FSCO Professional Services Guideline applies to Ms. McCance’s billings. The FSCO Guideline states that the hourly rate for an unregulated professional like Mr. Malik was $58 and that rates for someone not specifically listed on the Guideline must be agreed upon between the service provider and the insurer.

The result is that IMM charged Aviva $351.16 more for the proposed assessment.

I find that the disputed $351.16 was not charged in accordance with FSCO’s Professional Services Guideline and is therefore unreasonable. I find that Mr. Youssef-Shebo is not entitled to further funding for the psychological assessment proposed by IMM in the August 5, 2014 plan, beyond the $1,628.20 approved by Aviva.

EXPENSES:

In view of the mixed result, I find that the parties should each bear their own expenses of this arbitration hearing and make no order for expenses.

January 5, 2018

Jessica Kowalski Date

Arbitrator

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2018 ONFSCDRS 7

FSCO A14-007796

BETWEEN:

NABIL YOUSSEF-SHEBO

Applicant

and

AVIVA CANADA INC.

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. Aviva shall pay for the following treatment proposed by Thistletown Rehabilitation Centre:

i. the unapproved balance of an OCF-18 dated September 25, 2013 for physical therapy, submitted in the amount of $1,388.00 and partially approved in the amount of $1,269.00;

ii. $1,745.00 for physical therapy recommended in an OCF-18 dated November 11, 2013; and,

iii. $1,299.80 for physical therapy recommended in an OCF-18 dated February 12, 2014.

2. Aviva is not required to pay for the following:

i. $1,076.20 for physical therapy recommended by Thistletown Rehabilitation Centre in an OCF-18 dated June 18, 2014; or,

ii. $351.16, which represents the unapproved cost of a psychological evaluation by Nicole McCance proposed by Injury Management & Medical Assessments in an OCF-18 dated August 5, 2014, submitted in the amount of $1,979.36 and partially approved in the amount of $1,628.20.

3. Aviva shall pay to Mr. Youssef-Shebo interest on overdue benefits calculated in accordance with the Schedule.

4. Each party shall bear their own expenses of this arbitration.

January 5, 2018

Jessica Kowalski Date

Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Mr. Youssef-Shebo has a history of asthma.
3. 3A June 10, 2013 x-ray of the lumbar spine disclosed levoscoliosis in the sacrum and some lumbar disc space narrowing, and mild degenerative changes in the lower lumbar spine.
4. 4A June 10, 2013 x-ray of the right knee showed suprapatellar bursitis, trace right infrapatellar bursitis, and baker’s cysts.
5. 5Dr. Getsos completed three IE reports dated December 12, 2013, May 1, 2014, January 6, 2017, plus an addendum report of March 3, 2017.