Neutral Citation: 1994 ONICDRG 121

File No. A-004781

ONTARIO INSURANCE COMMISSION

BETWEEN:

MICHAEL LYNCH

Applicant

and

THE HALIFAX INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Michael Lynch, was injured in a motor vehicle accident on July 26, 1990. He received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. The Insurer refused to pay chiropractic accounts for treatment after July 30, 1993, on the basis that ongoing chiropractic treatment was neither reasonable nor necessary. The Applicant wished to continue receiving chiropractic treatment. The parties were unable to resolve their dispute through mediation and Mr. Lynch applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in the hearing are:

1. Is the Applicant entitled to the supplementary medical and rehabilitation expenses claimed after July 30, 1993?

2. Is the Applicant entitled to the expenses incurred in respect to the arbitration?

Result:

1. Mr. Lynch is entitled to the supplementary medical and rehabilitation expenses which he claims, totalling $1,893.70.

2. Mr. Lynch is entitled to his expenses incurred in respect to the arbitration.

Hearing:

The hearing was held in London, Ontario, on September 20, 1994, before me, K. Julaine Palmer, arbitrator.

Present at the Hearing:

Applicant:

Michael Lynch

Cathy Francis, Applicant's Fiancée

Insurer's

Alex Voudouris

Representative:

Barrister and Solicitor

Witnesses:

Michael Lynch

Lyndon F. Mascarenhas, M.D.

Calvin G. Neely, D.C.

Exhibits: The parties filed a medical brief and 18 other exhibits at the hearing. The articles referred to by Dr. Neely are described in Schedule A. The exhibits are listed in Schedule B.

Preliminary Issues:

Two preliminary matters were raised by the parties at the hearing. My decision with respect to those issues begins at page 18.

Is the Applicant entitled to the supplementary medical and rehabilitation expenses claimed after July 30, 1993?

Background:

Michael Lynch is a 31 year-old, five feet and 11 inch, 165-pound licensed electrician. He testified that he is in good physical condition. He was involved in a motor vehicle accident on July 26, 1990. Since then, he has suffered from pain in his mid-back, low-back, and neck, from headaches, and from occasional ringing of the ears.

Mr. Lynch obtained his grade 13 diploma in 1982. From 1982 to 1985 he worked full-time in a grocery store and attended a night school program at Ryerson Polytechnical University, graduating with a certificate in architecture. In 1985, he began to train as an electrician and received his licence in 1990. In May 1992, he graduated with a post-graduate diploma from Seneca College in construction regulation and administration. In 1993 he received his master's licence as an electrician.

Since the accident Mr. Lynch has worked for 10 companies, performing six different types of work. In the 10 years before the accident, he worked for two companies at two different jobs. Mr. Lynch first saw a chiropractor, Dr. Elizabeth Markovitch, on October 9, 1990, following the accident of July 26, 1990. This consultation was prompted by a suggestion from a field representative of the Insurer who visited him and his sister at their home. The field representative suggested different treatments that he and his sister could access for the whiplash injuries they had suffered in the accident. Mr. Lynch continued to see Dr. Markovitch and her successor, Dr. Janet Porter, for more than two years until he moved to London.

Mr. Lynch testified that, in general, he felt there was a close relationship between his ability to work full-time and his chiropractic treatment. He testified that when he is working at the physically demanding job of an electrician, he would see a chiropractor for treatment approximately twice a month. When he was not working, he would attend for chiropractic treatment about once monthly.

Mr. Lynch understood, after the mediation of his dispute, that the Insurer would not pay for any further chiropractic treatment. Accordingly, he never submitted any chiropractic accounts to the Insurer, although he continued to attend for chiropractic treatment. [This understanding was in error, since the Insurer is required by section 6(7) of the Schedule to pay such an expense pending resolution of the dispute.] As a result of mediation, Mr. Lynch agreed to attend a program sponsored by Westminster Rehabilitation Management entitled "Focus: Life Beyond Chronic Pain". He also attended Fitness Forum three times weekly for three months, on a supervised program of cardiovascular conditioning and weight training.

Mr. Lynch testified that his back bothered him intermittently depending on the amount of physical work he was doing and depending upon the weather. In order to relieve his back pain he takes a hot bath, does stretching exercises or seeks out chiropractic treatment. Mr. Lynch testified that he attempts to ignore the pain if he can and only resorts to medication as a last resort. He had difficulty indicating precisely how often he has back pain. He stated that when he is on vacation or at rest he has very little back pain, but when he is doing physical work, he might have back pain recurring over two days during the week. In his new occupation since August 1994, as a part-time meter reader, he experiences pain in his back approximately once a week, depending on how many meters he reads and depending on how much walking over uneven surfaces he is required to do. His current occupation also requires him to bend over to read the meters.

Mr. Lynch testified that he performs an exercise routine which was recommended to him by his original chiropractor, and he performs his neck stretches daily. He has also been learning yoga techniques for more than a year and does yoga as often as he finds the time. To a point, it is helpful in relieving pain. Mr. Lynch testified that the routine of strengthening exercises prescribed by the professionals at Fitness Forum was helpful.

Mr. Lynch testified that he took Dr. Mascarenhas' advice, given in November 1992, and stopped seeing a chiropractor from January 11, 1993 to March 11, 1993. In November and December of 1992, he saw his chiropractor once each month.

Dr. Lyndon F. Mascarenhas:

Dr. Mascarenhas is a general practitioner, with fellowship qualifications in the American Academy of Disability Evaluating Physicians. This Academy deals primarily with the evaluation of disabled persons, not with their treatment.

Dr. Mascarenhas explained that at the examination of November 20, 1992, he was asked to assess Mr. Lynch. He followed a fairly traditional method, taking a history from Mr. Lynch, establishing a diagnosis and suggesting a treatment plan.

Dr. Mascarenhas made no significant objective findings on his physical examination of Mr. Lynch. He concluded that in the July 26, 1990 accident, Mr. Lynch suffered from a hyper-extension/flexion injury of his cervical spine. In his report of November 20, 1992, Dr. Mascarenhas stated as follows:

Each patient's rate of recovery tends to be very individual, however we know from previous experience that the vast majority of patients achieve "functional" recovery within the six to twenty-four month post accident stage.

It is now over two year [sic] post accident, and Mr. Lynch appears to be troubled by occasional musculoskeletal symptomatology, which I anticipate will gradually subside with the element of time. Certainly exacerbating features such as damp weather or physical or emotional stress, exacerbate his discomfort, and these are well known to be aggravating features.

From a treatment perspective, I feel that Mr. Lynch's rehabilitation has been optimized, and certainly on the basis of my assessment today, as well as the fact that it is over two years post accident, he certainly does not need ongoing chiropractic manipulation. The chiropractic treatments that he currently pursued appear to be of the "maintenance" type, and certainly there is no scientific basis in my mind to justify this type of treatment.

He certainly impressed me as a credible historian, and I do believe that he has ongoing symptomatology, however unfortunately modern medicine has not developed an instant cure for this type of discomfort.

Rather I suggested to him that the optimal route to pursue would be:

1. to continue with the isometric exercises prescribed to him by his chiropractor.

2. to keep himself as physically fit as possible, by participating in a regular physical conditioning program.

Dr. Mascarenhas took pains to point out at the hearing that he was not of the school of physicians who had difficulty with chiropractic care as a valid means of treatment for patients who had sustained whiplash injuries. He has no chiropractic training himself, but has worked with a chiropractor. In his opinion, however, chiropractic care is of value primarily in the acute stage of recovery, during the first three months after a motor vehicle accident.

Dr. Mascarenhas indicated that, as time elapses, Mr. Lynch experiences a very short-term benefit from chiropractic treatment. Dr. Mascarenhas focuses on function rather than pain, and stressed the importance of patients relying on treatment providers and modalities as little as possible. In Dr. Mascarenhas' view, the treatments received by Mr. Lynch after July 30, 1993, were neither necessary, nor reasonable. Dr. Mascarenhas saw in the treatment records submitted by Mr. Lynch no suggestion of improvement, but an unending series of treatments. He did not see the therapy going anywhere.

Dr. Mascarenhas accepted that someone with a soft tissue injury from a motor vehicle accident could have flare-ups of pain, extending over a period of several years. He emphasized that, in his opinion, the occasional use of drugs to control pain was appropriate but the occasional use of chiropractic treatment was not appropriate, because in the long run it has not been scientifically proven to be beneficial, whereas the effective long-term analgesic properties of certain drugs are established. He agreed that a difference of opinion existed between how he prefers to treat these patients and what they choose. Dr. Mascarenhas felt that reasonable long term treatment involved a patient like Michael Lynch developing an understanding of pain management and becoming involved in a structured exercise program.

Dr. Calvin Neely:

Dr. Calvin Neely also testified at the hearing as an expert witness. He has been a chiropractor for 20 years. He had not examined Michael Lynch personally, but had reviewed the medical reports with respect to his case, including Dr. Mascarenhas' report. Dr. Neely agreed with Dr. Mascarenhas' conclusion. He stated that in the first year of treatment, most of the progress is made and the frequency of treatment should be diminished after that. Dr. Neely recommends the treatment of his patients proceed over three stages, from passive to active to rehabilitative treatment. In the passive stage, light manipulation, ultrasound and T.E.N.S. is provided. In the active stage, chiropractic adjustment is performed. In the rehabilitative stage, when a patient is 80% to 90% better, strength and endurance become a factor.

Dr. Neely commented that in March 1993, Michael Lynch attended a new chiropractor and his treatments increased. Dr. Neely indicated that pattern could result from an acute flare-up, or from the fact that some chiropractors treat a new patient as if he has received no prior treatment, or it could indicate a different therapeutic approach was taken by a chiropractor, that could necessitate a more intense program. He was not able to express his view whether that took place in Michael Lynch's case.

In Dr. Neely's view, after July 1993, Michael Lynch's chiropractic treatment was not reasonable at that level of frequency. Dr. Neely thought Mr. Lynch had reached maximum chiropractic benefit by July 1993. In his view, the patient should have gone on to supportive care and should have gradually withdrawn from treatment after maximum chiropractic benefit had been reached. If he suffered more pain, then an acute program should be instituted again. In Dr. Neely's view, supportive care would not include weekly chiropractic visits.

Dr. Neely was asked if it was possible that Michael Lynch's back pain resulted from working in active jobs, following the accident. He agreed. He also agreed that if Michael Lynch came into his office with back pain that he would treat him. He indicated that it was questionable whether he would relate the pain to the accident. Dr. Neely agreed that a change in job could aggravate a back problem caused by a motor vehicle accident.

Dr. Neely said that if he had a patient diagnosed as suffering from chronic back pain, he would recommend exercise, rehabilitation and the occasional use of chiropractic treatment. He agreed that Michael Lynch may never be completely symptom free. In Dr. Neely's opinion, it would not be bad to see a chiropractor. Dr. Neely indicated that although he sees most motor vehicle patients up to one year from the accident, he has seen some longer than one year.

Dr. Neely was asked if, in his view, Dr. Hildebrandt was unreasonable in treating Michael Lynch once per week. Dr. Neely stated that he felt care at this stage was unreasonable, although he was glad to see Michael Lynch was improving. He was then asked if he felt chiropractic treatment was reasonable if it allows Michael Lynch to work everyday without losing time. He answered, "I suppose it is". Dr. Neely also made reference to chapter eight of a publication by David Chapman-Smith and 35 others, entitled "Clinical Guidelines to Chiropractic Practice in Canada", a document which is a supplement to the Journal of the Canadian Chiropractic Association in April 1993.

Submissions:

Mr. Lynch submitted that he is presently seeing a chiropractor because of back pain. He had no previous history of back pain before the accident of July 1990. He submitted that attending the chiropractor allows him to work every day and prevents him from being off with a sore back. Mr. Lynch submitted that if he was suffering from a chronic illness, then no one would argue against him continuing under doctor's care. Accordingly, he submitted, continuing with chiropractic care was analogous, in a case where he suffers from chronic back pain. As far as benefit is concerned, he submitted that the treatment alleviates the pain that he is suffering.

Mr. Lynch submitted that his choice of treatment was not outrageous. He pointed to the definition of "treatment" from Webster's Dictionary, which states "to deal with in order to relieve or cure, to ease or alleviate, to free from pain". Similarly, he recited the definition of "reasonable" as "not excessive, not extravagant".

The Insurer indicated that it was not disputing the reasonableness of the care as far as the expense was concerned.

The Insurer's counsel submitted for consideration the case of J. Youkhaneh and Prudential Assurance, now operating as General Indemnity Company, February 21, 1994, OIC File No. A-002021. In that decision, Arbitrator Mackintosh denied the applicant's claim for ongoing chiropractic treatment. He submitted that by relying on Dr. Hildebrandt's report, the Applicant has admitted he has achieved maximum chiropractic benefit and, thus, no further chiropractic treatment can be rehabilitative. Mr. Voudouris submitted that the test in Youkhaneh is a test of whether the treatment is useful. This question was specifically put to Dr. Mascarenhas and he answered in the negative. The Insurer submitted that there was no evidence submitted by the Applicant showing anything different and the burden of proof is on him.

In the alternative, Mr. Voudouris submitted that if Michael Lynch continues to require chiropractic care, it is as a result of work related stresses and injuries and not as a result of injuries he received in the motor vehicle accident in 1990. The Insurer submitted that short-term relief of pain is not the test of reasonable and necessary treatment. He submitted that there must be a more sophisticated analysis. Other modalities are more useful or beneficial. He asked that the claim of Mr. Lynch be dismissed, since there was no proof that the ongoing chiropractic treatment since July 1993 was reasonable, necessary, useful or beneficial.

Findings:

The supplementary medical and rehabilitation benefits available to an injured person are described in section 6 of the Schedule.

6.--(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physio-therapists;

(b) prostheses, dentures, prescription eyewear, hearing aids and other medical or dental devices;

(c) rehabilitation, life-skills training and occupational counselling and training;

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

(e) home renovations to accommodate the needs of the insured person;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.

(2) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident an allowance that is reasonable having regard to all of the circumstances for expenses actually incurred by a spouse, child, grandchild, parent, grandparent, brother or sister of the insured person in visiting the insured person during his or her treatment or recovery.

(3) For the purposes of this section, the benefit period is the longer of the two following periods calculated from the day of the accident and ending on the anniversary of the accident:

1. Ten years.

2. Twenty years less the age of the insured person on the day of the accident.

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

(5) A person qualified to practise as a chiropractor may sign a statement required under subsection (4) in respect of chiropractic services under clause (1)(a).

(6) A person qualified to practise dentistry may sign a statement required under subsection (4) in respect of dental services and dentures under clauses (1)(a) and (b).

(7) In case of a dispute concerning an expense described in clause (1)(a), (b) or (d), the insurer will pay the expense pending resolution of the dispute.

(8) The maximum amount payable under this section is $500,000 with respect to each insured person.

In Mr. Lynch's case, the Insurer is required to pay "all reasonable expenses resulting from the accident" for "chiropractic...services" until July 26, 2000. As a result of the provisions of section 6(4), the Insurer may require the insured person to submit a statement from his chiropractor stating that "the expense is necessary for the insured person's treatment or rehabilitation". The Insurer did not request such a statement in this case.

The Insurer's counsel also advised that it took no issue with respect to the reasonableness of the cost of the chiropractic treatments which Mr. Lynch has received after July 31, 1993. As I understand this submission, the Insurer contends that the chiropractic treatment which Mr. Lynch has received since July 31, 1993, is not reasonable or necessary, because it has not been useful.

The Insurer here seeks to show that the chiropractic treatment is ineffectual and unnecessary through the report and expert evidence of Lyndon Mascarenhas M.D., and through the oral expert testimony of Calvin Neely, D.C. Dr. Neely also provided three documents from the recent chiropractic literature dealing with the subject of frequency and duration of chiropractic care and justification and reimbursement for long-term care.²

Several reports from Mr. Lynch's chiropractors were also filed. The most pertinent were Dr. Frank K. Hildebrandt's reports of September 15, 1994 and July 6, 1993 and Dr. Robert J. Dronyk's report of September 12, 1994.

Dr. Frank K. Hildebrandt, Mr. Lynch's current chiropractor, was not called to testify at the hearing. However, his report of September 15, 1994, was filed. That report addresses the issues raised in this hearing:

...This accident took place July 26, 1990, and Mr. Lynch sustained a hyper-extension-flexion-type injury to his cervical spine, as well as trauma to his low back region. He underwent a number of different treatment regimes, including physiotherapy, chiropractic, rest, and medication. However, he felt that he never attained his pre-accident state of health. His history revealed no injury, prior to his involvement in the motor vehicle accident.

On July 6, 1993, Mr. Lynch attended our office to try to further alleviate his symptoms. On examination, he was found to have a number of restrictions of motion as well as increased pain for his cervical and lumbar spines. Our findings were consistent with other post-traumatic injuries that have been treated in our office. It seemed apparent that treatment had been done, but biomechanical problems were still quite evident during the examination process.

A course of treatment was begun to improve the biomechanical function of his cervical and lumbar spines. Within a six month period it was apparent that his neck was showing definite signs of improvement. His low back however, was slower to respond most probably due to continuing to work, and the inability to allow it to rest entirely.

In the last six to seven months it has become apparent that Mr. Lynch's neck has in essence improved one hundred percent, and could be said to now be pre-accident once again. His low back however, continues to cause him recurring discomfort. This as mentioned might be due to constant re-aggravation related to his work. It is felt that Mr. Lynch's lumbar region has likely attained a seventy to eighty percent pre-accident state.

Further improvement of his low back may occur, but will be slow and not easily discernible. At this time Mr. Lynch would likely be considered to have reached his maximum medical improvement (MMI). Ongoing care for his low back and if necessary neck, would be more of a palliative nature, as his work will often trigger recurrences of his initial condition.

In his report, Dr. Hildebrandt raises the terms "maximum medical improvement" (MMI) and "palliative" care. These terms are addressed in the documents to which Dr. Neely referred at the hearing.

David Chapman-Smith, writing in The Chiropractic Report, January 1994, Vol. 8, No. 1, explains,

The chiropractic profession promotes preventative care on a similar basis to dentistry. Preventative spinal care includes the detection and correction of restricted range of vertebral joint motion and its neuromuscular effects (termed "subluxation") before these give rise to greater dysfunction and pain. ...However this care, on traditional and most current standards, is not "therapeutically necessary'. It is "elective care' given by choice of the patient.

The chiropractic profession has formerly used the term "maintenance care" indiscriminately to include both preventative care and continuing care....

To address this problem the chiropractic profession, in nationally-based practice guidelines in the United States (1992) and Canada (1993) developed by formal consensus methods, has established these two definitions:

Supportive Care: Treatment for patients who have reached maximum therapeutic benefit, but who fail to sustain this benefit and progressively deteriorate when there are periodic trials of withdrawal of treatment. Supportive care follows appropriate application of active and passive care including rehabilitation and life style modifications. It is appropriate when alternative care options, including home-based self-care, have been considered and attempted. Supportive care may be inappropriate when it interferes with other appropriate primary care, or when the risk of supportive care outweighs its benefits, i.e. physician dependence, somatization, illness behaviour, or secondary gain. (i.e. Supportive care is care that is therapeutically necessary).

Preventative/Maintenance Care: Any management plan that seeks to prevent disease, prolong life, promote health and enhance the quality of life. A specific regimen is designed to provide for the patient's well-being or for maintaining the optimum state of health (i.e. Preventative/maintenance care is elective care).

Mr. Chapman-Smith continues his essay by discussing the concept of maximum medical improvement (MMI). He theorizes that from the patient and chiropractor's subjective perspective, after a whiplash injury, MMI is the point of "complete relief of symptoms....negligible neuromusculoskeletal dysfunction and pain." However, he states that "the point of MMI is not a subjective clinical matter - it is a clinical and legal determination designed in part to create a tenable basis for financial projections and the setting of premiums in the insurance world." Mr. Chapman-Smith states that many personal injury insurance contracts and most workers' compensation schemes in the United States provide for treatment to the point of MMI, and thereafter a lump sum settlement for permanent impairment and the cost of future treatment.

From the insurer's perspective, such a scheme makes sense because if a claim is not fully settled when a patient reaches MMI and remains open for the actual cost of future care, hundreds of thousands of claim files remain open. Further, as time progresses with potential supervening injuries and degeneration as compounding factors, it becomes increasingly more difficult to assess what treatment is attributable to the motor vehicle accident.

Mr. Chapman-Smith quotes from Dr. Stephen Foreman's work Medical-Legal Issues in Chiropractic, to suggest three criteria for determining MMI in a patient with a typical and uncomplicated soft tissue injury:

i) When the upper and lower limits of subjective pain have been established.(e.g. A patient experiences pain relief for one or more days following a treatment, but then returns to a similar pain level.)

ii) When the treated tissues have no potential for further healing.

iii) When the patient fails to progress clinically. This may be determined by objective assessments (e.g. ROM and strength tests) or validated patient questionnaires on function and pain (e.g. back pain - the Modified Oswestry Index....

According to Mr. Chapman-Smith's essay, "palliative care given to maintain clinical improvement after MMI may be therapeutically necessary."

It will be "supportive care" if it satisfies the established definition given above (see para 7). Payment remains the responsibility of the insurance carrier - not on an ongoing open-case basis but in terms of a lump sum award for permanent impairment and future care.

The exact method for determining the lump sum payment will be different according to type of case and jurisdiction, depending upon whether the patient's reimbursement is according to negligence under common law (involving litigation against, for example, the guilty motor vehicle driver and his/her insurance company) or a statutory scheme (as in no-fault motor vehicle jurisdictions and workers' compensation).

To return to Dr. Hildebrandt's report of September 15, 1994, this treating chiropractor expects that further improvements to Mr. Lynch's lumbar spine will be slow and not easily discernible. He believes Mr. Lynch has likely attained a 70% to 80% pre-accident state in his lumbar spine. And, he feels ongoing chiropractic care for his low back (and, if necessary, his neck) "would be more of a palliative nature, as his work will often trigger recurrences of his initial condition."

In my view, Mr. Lynch's testimony and Dr. Hildebrandt's report support the notion that his ongoing chiropractic care has reached a state of "supportive care", or palliative care given to maintain clinical improvement after MMI which is therapeutically necessary and not preventative/maintenance care or elective care.

Under the Schedule, no lump-sum benefit can be awarded to account for estimated need for future treatment. It is always open for parties to settle such claims, at mediation or otherwise, but this is not an option for me as an arbitrator. Under the Schedule, however, the Insurer is not committed to lifetime payment of such care, but only for 10 years following an accident for "reasonable expenses resulting from the accident...necessary for the insured person's treatment or rehabilitation." (sections 6(1) and (4)).

It still may be possible for Mr. Lynch and his Insurer to reach an agreement about Mr. Lynch's future care costs and I would encourage them to do so. Although Dr. Mascarenhas expressed the view that his focus in patient treatment is always to urge the patient's independence from reliance on any treatment modality, I view Mr. Lynch's choice to pursue occasional chiropractic treatment as a legitimate preference for that type of treatment over, for example, occasional reliance on analgesic medication. The choice of modality of treatment is for Mr. Lynch and his health care providers. The Insurer's role under the Schedule is to pay for the reasonable treatment deemed necessary by Mr. Lynch's medical practitioner or chiropractor. I have been asked to determine whether the treatment received since June 1993 is reasonable, and I have found it so.

Mr. Lynch is a reasonable, intelligent man. He has sought out treatment following his accident and has kept himself physically fit. He has taken a course in pain management. He has withdrawn from chiropractic care, on occasion, and returned for relief of pain. He has tried chiropractors with different approaches. He is working at an outdoor job which requires him to walk long distances, over uneven ground and to bend. In my view, Mr. Lynch has not fallen into a position of dependence on regular chiropractic manipulation without results. Dr. Hildebrandt believes that Mr. Lynch will require supportive care, from time to time, because of the nature of his work. In my view, until July 26, 2000, the cost of that supportive care, in so far as it relates to the injuries received in the motor vehicle accident, is properly the responsibility of this Insurer.

Amount of Expense Outstanding:

Mr. Lynch presented chiropractic accounts totalling $1,607.70 to September 15, 1994, at the hearing. He had not submitted any chiropractic accounts to the Insurer after June 30, 1993, because he understood they would not be paid. The provisions of sections 6(4) and 6(7) of the Schedule had been pointed out to him, however, during the mediation process; those provisions would have obliged the Insurer to continue to pay for the treatments, while disputing the expense. The Insurer will pay Mr. Lynch $1,607.70 on account of these expenses.

In addition, at the hearing Mr. Lynch presented a claim for 1,150 kilometres of travel in connection with his treatments dating from 1990, and 280 kilometres for 28 visits to the Fitness Forum. I am informed that the rate paid by the Insurer for such transportation expense is 20 cents per kilometre. For 1,430 kilometres, the total owing is $286.00.

The total to be paid by the Insurer is $1,893.70. If interest is demanded, then I will require written submissions from the parties on that issue.

First Preliminary Issue:

As indicated at the outset, two preliminary issues were raised by the parties prior to the commencement of the hearing. The Insurer had requested Mr. Lynch to attend an examination by a qualified medical practitioner in the summer of 1994. Mr. Lynch had not agreed to attend the examination. Section 23(2) of the Schedule reads as follows:

In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.

The Applicant in this case, however, makes no claim for weekly income benefits under Part IV, but claims only under Part II, "Supplementary Medical and Rehabilitation Benefits and Care Benefits". I ruled orally at the hearing that the Insurer was not entitled to require the Applicant to submit to an examination by a qualified medical practitioner in the absence of any claims under Part IV.

The miscellaneous provisions of Part VIII of the Schedule are quite specific about the parts of the Schedule to which they apply. For example, section 22 considers Notice and Application for Benefits - the entire scheme of compensation available under the Schedule. Conversely, section 23 deals exclusively with Part IV claims and section 24 deals with Parts II, III and V claims in subsection (1) and Part IV claims in subsection (2), etc. The restriction on the proceedings section, section 25, is specific and denies an applicant's right to commence a mediation unless the requirements of section 22 have been satisfied, and where it is applicable, that he has made himself readily available for examination under section 23. I find no merit in the submission by the Insurer that because the Schedule is silent as to the right of an Insurer for an examination where Part II benefits are claimed, it is implied that the Insurer has a right of reasonable examination at any time. The right to such an intrusive process as a compulsory medical examination cannot be implied by silence.

Second Preliminary Issue:

The second preliminary issue was somewhat related to the first. On November 20, 1992, Mr. Lynch was examined by Dr. Lyndon Mascarenhas at the request of the Insurer. At the beginning of the hearing, based on my ruling on the first preliminary motion, the Applicant, who was representing himself, realised that he need not have attended that examination. He questioned, then, the propriety of the Insurer tendering the report of Dr. Mascarenhas as evidence in the arbitration.

Mr. Lynch was sworn and I heard his evidence with respect to the circumstances of the examination by Dr. Mascarenhas in November 1992. Mr. Lynch testified that in the autumn of 1992 his only contact with the Insurer was to submit chiropractic accounts, which the Insurer paid. Mr. Lynch recalled a telephone conversation with an employee of the Insurer about one month prior to the appointment with Dr. Mascarenhas. Mr. Lynch could not remember the exact words which were used by the Insurer's representative, but testified that in his mind, there was no question that the Insurer had asked if he would see a doctor of the Insurer's choosing; the implication was that he had no choice and that the Insurer required him to attend this examination.

Mr. Lynch recalled that the examination was scheduled for a Friday afternoon and he had returned to school at that time. It was inconvenient for him to attend, but he did agree to go to the examination. He remembered saying to the Insurer's representative that it would be more convenient for the doctor to see him at his house, and he remembered the laughter of the representative. Mr. Lynch testified that he was willing to see the doctor if the Insurer thought that Dr. Mascarenhas would be able to make suggestions about his treatment and rehabilitation. He testified that he was anxious to take the advice of Dr. Mascarenhas and he did. He stated that he was ready to pursue anything to improve the condition of his back.

Mr. Lynch confirmed that he was never told by a representative of the Insurer that his benefits would be terminated if he did not attend the examination. Mr. Lynch stated that he saw no reason to question the insurance company. He thought they were working for him. Mr. Lynch did not receive a copy of Dr. Mascarenhas' report until six weeks following the pre-hearing conference, in the summer of 1994.

The Insurer called no evidence with respect to this preliminary motion, although counsel was invited to request an adjournment if he felt that he required evidence from his client.

I invited submissions from the Insurer, particularly with respect to the duty of an insurer to advise the insured of his rights under the policy. The Insurer submitted that Mr. Lynch sought legal counsel early after the accident and was aware of his right to do this early in the process, following the accident. The Insurer's counsel submitted that it would be improper for any agent of the Insurer to attempt to give legal advice to Mr. Lynch and act as his counsel. The Insurer submitted that there was no impropriety in asking Mr. Lynch to voluntarily see a medical doctor of the Insurer's choice, even though he was not claiming Part IV benefits. No provision in the Schedule would suggest that such an action was improper. Mr. Lynch testified that there was no threat of termination of benefits, nor any other duress. Mr. Lynch could not specifically remember the content of the telephone conversation with the representative of the Insurer. The Insurer submitted that when Mr. Lynch later found out that he could have declined to attend the examination, he tried to block the introduction of the report. The Insurer's counsel submitted that Mr. Lynch may be prevented from objecting to the introduction of the report, because he consented to attending an examination, understanding that the doctor would produce a report and the Insurer might rely upon it. The Insurer submitted that, at this late stage, it was improper to exclude the report. The Insurer further submitted that the probative value of the doctor's report was great and that it should form part of the evidence in the hearing.

Mr. Lynch submitted that, at the time of the examination, he was already under a doctor's care, and it was unnecessary for him to see another doctor. He questioned whether the Insurer was acting in its own best interests, or in his best interests. Mr. Lynch submitted that the Insurer should have been acting in his best interests. Mr. Lynch submitted that the no-fault benefits scheme was structured so that one would deal with one's own insurance company as a first-party claimant. He submitted that once he purchased insurance from a company and paid the premium, he should be entitled to the best possible service.

Decision on Second Preliminary Issue:

The Applicant in this case represented himself. He is an articulate young man and provided thoughtful submissions with respect to the right of the Insurer to present a report from a doctor following an examination which he had attended at the Insurer's request. Mr. Lynch testified that at no time was it made clear to him that the Insurer was making a request of him which he could refuse.

Mr. Lynch's testimony raised serious questions about the relationship between an insurer and the insured person in a no-fault system of first party benefits.

I am not persuaded that the Insurer has the duty to advise an applicant that it has no right to require an examination under section 23(2) of the Schedule. However, in my view, this is not to say that the Insurer can, with impunity, imply that an applicant is required to attend for an examination by the physician of the Insurer's choice. The Applicant here could not recall exactly the conversation with the adjuster, only his feeling that he had no choice in the matter and that the Insurer was requiring his attendance. Mr. Lynch's evidence was somewhat contradictory, in that he indicated he was anxious to receive a second opinion or any other advice which would help his back problem.

In my view, the key with respect to this issue is the voluntariness of Mr. Lynch's attendance at the time of the examination. I must be satisfied that there were no factors such as duress or undue influence which would vitiate voluntary attendance.

In my opinion, based on Mr. Lynch's evidence, his attendance at the medical examination by Dr. Mascarenhas was voluntary, if somewhat reluctant. The Insurer asked him to attend the examination and he went. The Insurer did not go out of its way to explain to Mr. Lynch that its request was beyond its actual rights under the Schedule. However, neither did the Insurer threaten Mr. Lynch with repercussions if he refused to attend. Mr. Lynch could have consulted with a legal adviser before he agreed to attend the examination. He did not.

Although I have determined that Mr. Lynch's attendance at the medical examination was voluntary, I am concerned that Mr. Lynch was left with the impression by the Insurer that he was required to attend the examination. Mr. Lynch was under a misapprehension as to the law. Like Mr. Lynch, I view the rehabilitative process after a motor vehicle accident as a cooperative effort, with the injured person, insurer, physician, and other health care professionals, all working toward a common goal. True cooperation is difficult to achieve if an injured person must view his adjuster with a wary eye and attempt to second-guess the motives behind any request. In my view, a straightforward, open and informative approach on the part of all concerned will achieve the best results.

In conclusion, I find that the Insurer is entitled to tender the report of Dr. Mascarenhas with respect to his examination of Mr. Lynch. In my view, the fact that Mr. Lynch cannot remember the exact conversation, or could produce no letter advising him with respect to the examination, is important. Had I evidence that the Insurer had improperly advised that Mr. Lynch was required to attend such an examination, then I would not have allowed the Insurer to tender the report nor would I have allowed Dr. Mascarenhas to testify about his examination. Such advice, in my view, would fall under the heading of negligent or fraudulent misrepresentation.

Expenses:

The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.

The Applicant is entitled to his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.

Order:

1. Mr. Lynch is entitled to the supplementary medical and rehabilitation expenses which he claims, totalling $1,893.70.

2. Mr. Lynch is entitled to his expenses incurred in respect to the arbitration.

December 20, 1994

K. Julaine Palmer

Arbitrator

Date

SCHEDULE A

Documents referred to by Dr. Neely:

1. 'Clinical Guidelines for Chiropractic Practice in Canada', (1994) ed. Henderson D Chapman-Smith D, Mior S, Vernon H, University of Toronto Press, Toronto, Chapter 8 (Frequency and Duration of Care)

2. 'The Chiropractic Report', (1994) January, Volume 8, No. 1, Chapman-Smith D (ed.), Toronto, "Long-Term Care - Justification and Reimbursement"

3. 'The Chiropractic Report', (1994) March, vol.8, no.2, Chapman-Smith D (ed.), Toronto, "The Biomechanical Basis of Whiplash Injuries"

SCHEDULE B

Exhibit 1

Medical brief of the Insurer, Halifax Insurance Company

Exhibit 2

Assessment of Claim by Insurer form, dated April 26, 1993

Exhibit 3

Pre-hearing letter dated June 7, 1994

Exhibit 4

Correspondence from Mr. Alexander M. Voudouris to Mr. Michael Lynch, dated July 11, 1994

Exhibit 5

Report from Dr. Frank K. Hildebrandt, dated September 15, 1994

Exhibit 6

Report from Dr. Robert J. Dronyk, dated September 12, 1994

Exhibit 7

Statement of Accounts

Exhibit 8

Report from Dr. H. Greenberg, dated August 11, 1990

Exhibit 9

Report from Dr. Frank K. Hildebrandt, dated July 6, 1993

Exhibit 10

Clinical notes of Dr. J.L. Porter (and Dr. Markovitch)

Exhibit 11

Correspondence from M. Rubenstein, Mediator, to Michael Lynch, dated May 3, 1993

Exhibit 12

Resume of Dr. Lyndon F. Mascarenhas

Exhibit 13

Clinical notes and records of Dr. Robert J. Dronyk

Exhibit 14

Curriculum Vitae of Michael Lynch

Exhibit 15

Curriculum Vitae of Dr. Calvin G. Neely, D.C.

Exhibit 16

Chapter 8 of the "Clinical Guidelines for Chiropractic Practice in Canada"

Exhibit 18

"The Chiropractic Report", dated January 1994

Exhibit 19

"The Chiropractic Report", dated March 1994

¹ Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.

² For the citations of this material, see Schedule A to this decision.