Neutral Citation: 1994 ONICDRG 99

File No. A-001139

ONTARIO INSURANCE COMMISSION

BETWEEN:

LEON ALBERT BAILEY

Applicant

and

CAA INSURANCE COMPANY (ONTARIO)

Insurer

DECISION (No. 3)

Issues:

The Applicant, Leon Albert Bailey, was injured in a motor vehicle accident on May 23, 1991. He received statutory accident benefits from the Insurer, CAA Insurance Company (Ontario) ("CAA"), payable under Ontario Regulation 672¹. CAA terminated weekly income benefits under section 12 of the Schedule on December 19, 1991.

Mr. Bailey applied for mediation in respect of the cancellation of his weekly income benefits. He also sought payment for chiropractic services under section 6(1)(a) and transportation expenses under section 6(1)(d) of the Schedule, as well as compensation for sick day credits from his employer, which he used after the accident.

As a result of mediation, CAA paid Mr. Bailey additional weekly income benefits to January 27, 1992, additional chiropractic expenses to March 6, 1992, and $9,278.20 for reimbursement of Mr. Bailey's sick day credits. The Report of Mediator stated that these payments settled all of the outstanding issues between the parties. Mr. Bailey did not agree and applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8., as amended.

In two earlier decisions between these parties, dated October 29, 1992 and June 11, 1993, I concluded that final settlement had not been reached and therefore Mr. Bailey could proceed with the arbitration. I ordered Mr. Bailey to repay amounts paid by CAA under the terms of the purported settlement, but I deferred Mr. Bailey's repayment to CAA pending the outcome of this hearing.

Mr. Bailey received disability benefits from Sun Life Assurance Company ("SunLife") in connection with the accident of May 23, 1991. The parties agree that these benefits eliminate any obligation of CAA to pay weekly income benefits for the period from October 19, 1991 through October 18, 1993. Mr. Bailey claims further weekly income benefits beyond that date.

CAA claims that Mr. Bailey no longer suffers a substantial inability to perform the essential tasks of his employment after October 18, 1993. It also disputes the reasonableness of transportation and chiropractic expenses claimed by Mr. Bailey under section 6 of the Schedule. However, CAA continues to pay these expenses, pending resolution of the dispute, in compliance with section 6(7) of the Schedule.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits under section 12(1) of the Schedule, for any period after October 18, 1993?

2. Is the Applicant entitled to payment of chiropractic treatment expenses and related transportation expenses under section 6 of the Schedule?

3. Is the Insurer entitled to a repayment of benefits, plus interest?

4. The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.

Counsel for the Insurer confirmed that CAA does not claim repayment of $9,278.20 paid following mediation to reimburse Mr. Bailey for sick day credits.

Counsel for the parties confirmed that the dispute concerning the calculation of Mr. Bailey's weekly income benefit under section 12 was resolved.

Result:

1. The Applicant is not entitled to weekly income benefits under section 12(1) of the Schedule, for any period after October 18, 1993.

2. The Applicant is not entitled to payment of further chiropractic treatment expenses and related transportation expenses under section 6 of the Schedule.

3. The Insurer is entitled to a repayment of 14 weeks of section 12 income benefits paid during the period October 19, 1991, to January 27, 1992, plus interest calculated in accordance with section 27(4) of the Schedule.

4. The Applicant is entitled to his expenses of the arbitration, calculated according to Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

Hearing:

The hearing was held in North York, Ontario, on December 20 and 22, 1993, before me, Janice Mackintosh, arbitrator.

Present at the Hearing:

Applicant:

Leon Albert Bailey

Applicant's

Rebecca Nelson

Representative:

Barrister and Solicitor

Insurer's

Lee Samis

Representative:

Barrister and Solicitor

Insurer's

Kenneth Dusenbury

Officer:

Witnesses:

Dr. Adrian Hui

Leon Albert Bailey

Gregory Ferreira

The proceedings were recorded by Terry Harris, of Victory Verbatim.

Four exhibits were filed, including a joint book of medical documents containing 17 tabs. The Exhibits are listed in Appendix A. Other documents before the arbitrator are listed in Appendix B.

Evidence and Findings:

Mr. Bailey has been employed by Canada Post Corporation ("Canada Post") since 1979. He holds the position of full-time mail service courier, included within the Bench-Mark Position Description for External Mail Collection and Delivery Services (Exhibit 1, Tab 4, addition). However, he was not working in that position on Thursday, May 23, 1991, when his car was hit from behind. Mr. Bailey had been performing light duties at the post office, on a part-time basis, due to previous injuries to his neck and back.

The car accident occurred during the daytime, when Mr. Bailey was off work. Following the car accident, Mr. Bailey worked his Thursday night shift. The next day he saw his regular chiropractor, Dr. Li, with complaints of an aching back, sore neck, and headache. He stated that he worked the night shift on Friday, but felt worse over the weekend. He did not report to work on Monday, May 27, 1991, and has remained off work since that date.

a) Pre-existing medical condition:

Mr. Bailey had experienced similar complaints of neck and back pain in the 52 weeks preceding the car accident. In April 1990, he twisted his back at work. He remained off work for approximately three weeks, returning to modified duties as a mail service courier in late May 1990. Upon his return, he gradually increased his hours from two hours per day up to the resumption of his regular eight hour shift, in August 1990. Dr. Li treated Mr. Bailey for these injuries.

On October 22, 1990, Mr. Bailey was involved in a work-related motor vehicle accident (Workers' Compensation Board ("WCB") injury) in which he re-injured his back and also his neck. He was off work for approximately three and one half months and received workers' compensation payments. On February 4, 1991, he returned to Canada Post performing light duties, such as sorting mail, for a reduced number of hours. Mr. Bailey was working a maximum of six hours in each eight hour shift of light duties at the time of the May 23, 1991 car accident. Following the May 1991 accident, Mr. Bailey's chiropractic treatments with Dr. Li were increased from approximately two times a week to five times a week and remain at that level.

b) Essential tasks:

The Insurer submits that Mr. Bailey was not performing the tasks of a mail service courier at the time of the May 1991 accident and had not been performing those tasks since the workers' compensation injury of October 22, 1990, i.e. approximately six and one half months prior to this accident. The Insurer submits that the essential tasks of Mr. Bailey at the time of the accident involved light duties, such as sorting mail, on a part-time basis only.

Mr. Bailey testified that "in his mind he thought he was ready" to resume his regular duties as a mail service courier on a full-time basis on Monday, May 27, 1991, and that his essential tasks should be determined on that basis, in respect of the May 1991 accident. However, documents contained in the WCB file do not support Mr. Bailey's impression of his abilities (Exhibit 1, Tab 15).

Several memos contained in the WCB file indicate that in May 1991, Mr. Bailey was working light duties and was contemplating a return to his regular duties as a mail service courier, but on a modified basis . The WCB file reflects details of a vocational rehabilitation (VR) return to work plan which was being designed for Mr. Bailey. The VR plan contemplated his return to regular duties as a mail service courier, at a reduced number of hours, starting June 25, 1991, following his vacation (WCB memo dated July 26, 1991, Exhibit 1, Tab 15, page 170). Mr. Bailey was to gradually increase his hours, over a two month period, to reach full-time employment sometime between August 6 and 19, 1991. However, the WCB memo noted the continuing restriction of "no lifting over 20 pounds". The WCB file reflects that these restrictions were acceptable to Canada Post (Exhibit 1, Tab 15, page 165).

A further WCB memo dated May 22, 1991, records the opinion of Mr. Bailey's treating chiropractor, Dr. Li. The memo states that Mr. Bailey was cleared to return to his regular job but with modified duties and hours. A memo dated July 15, 1991, notes Dr. Li's opinion that Mr. Bailey was not fully recovered from his WCB injury at the time he sustained further injuries in the May 1991 accident. The WCB file records that further vocational rehabilitation will be available to Mr. Bailey through WCB once he is able to resume the transitional work plan designed for him prior to his May 1991 accident.

Mr. Bailey disputed the accuracy of some of the notes and memos contained in the WCB file. However, he gave no reason for doubting the objectivity and accuracy of the documents prepared by the WCB in the course of administering his claim. Where a conflict occurs, I prefer the contemporaneous notes and memos contained in the WCB file over Mr. Bailey's impression of conversations and events which occurred more than two and one half years ago. For these reasons, I find that at the time of the May 1991 accident, Mr. Bailey was ready to return to his regular duties as a mail service courier, but only on a part-time and modified basis. Dr. Li characterized Mr. Bailey's back pain as a long-standing condition dating back to April 1990. His pre-accident medical condition continued to restrict him to working six hours per day with "no lifting over 20 pounds". In the circumstances of this case, I find that Mr. Bailey's essential tasks should be determined with reference to his physical limitations and regular job duties as they were modified by the WCB return to work plan, which he was about to enter with the approval of his employer, just prior to his May 1991 accident.

Mr. Bailey's regular job duties, contained within the Bench-Mark Position Description, included handling parcels weighing up to 66 pounds. If Mr. Bailey had returned to his job as a mail service courier as contemplated by the WCB return to work plan, the modifications imposed by Dr. Li would have restricted him to handling parcels of 20 pounds or less. Within these limits, Mr. Bailey would have sorted parcels into a delivery sequence and loaded them onto racks. Mr. Bailey testified that this task could be done standing or sitting and might require both positions. When the racks were filled he would have counted the parcels and reported the parcel count for each rack to his superior. Loaded parcel racks would have been rolled onto the truck loading dock and then onto the mail trucks. The parcel racks would have been strapped into the mail trucks. Mr. Bailey estimated that a loaded parcel rack could weigh upwards of 1000 pounds. I find that this aspect of the job is clearly beyond the limitations proposed in the WCB return to work plan and would not have been part of Mr. Bailey's modified job duties. Mr. Bailey would then have driven to his designated area of delivery and delivered the parcels (under 20 pounds) to the specific addresses within that area. Mail service couriers generally work alone for a maximum of eight hours per day with two breaks and a meal period. Mr. Bailey's modified work plan limited him to a maximum of six hours per day.

I find that Mr. Bailey's modified essential tasks as a mail service courier would have included bending, lifting 20 pounds or less, driving, standing, walking, carrying 20 pounds or less, and stair climbing, for a maximum of six hours per day.

c) Ability to perform essential tasks:

Mr. Bailey saw his regular chiropractor, Dr. Samson Li, immediately following the May 1991 accident. On June 5, 1991, Dr. Li prepared a Form 4 medical report in connection with Mr. Bailey's application to CAA for accident benefits. Dr. Li noted Mr. Bailey's history of neck and lower back pain and observed that the May 1991 accident exacerbated his existing injuries. Dr. Li opined that Mr. Bailey would be able to return to work or normal activities within two to four weeks (ie. July 1991) (Exhibit 1, Tab 3).

The last report from Dr. Li, dated October 28, 1991, was addressed to SunLife in connection with Mr. Bailey's application for short-term disability benefits (Exhibit 1, Tab 4, addition). In this report Dr. Li characterized Mr. Bailey's neck and lower back pain as a long-standing condition. He noted that Mr. Bailey's neck and lower back pain had improved since its onset in April 1990 and that he was making progress. Dr. Li concluded that Mr. Bailey could not return to the regular duties of a mail service courier in October 1991, but anticipated that he would be ready to perform other work involving "light duties with no heavy lifting" on a part-time basis starting January 1992.

On May 29, 1991, Mr. Bailey attended a walk-in medical clinic and was examined by Dr. Adrian Hui. Dr. Hui had not seen Mr. Bailey prior to this date and was not aware of Mr. Bailey's long-standing history of neck and lower back pain and disability until recently. Dr. Hui sees Mr. Bailey on a weekly basis.

Dr. Hui summarized his findings from Mr. Bailey's weekly visits in a medical report dated September 14, 1992, (Exhibit 1, Tab 8). His initial examination of Mr. Bailey's neck revealed muscle spasm and a decreased range of movement. His initial examination of Mr. Bailey's lower back revealed muscle spasm and increased pain on extremes of movement. By September 1991, Dr. Hui noted "tremendous" improvement in Mr. Bailey's neck and by April 1992, Dr. Hui concluded Mr. Bailey's neck had "totally recovered".

At the request of CAA, Mr. Bailey was examined by an orthopaedic specialist, Dr. Greg D'Angelo. Dr. D'Angelo prepared a report dated November 28, 1991, in which he reviewed Mr. Bailey's medical history. Mr. Bailey reported that he had been experiencing pain in both his neck and back immediately prior to the May 1991 accident.

Upon examination of the lower back, Dr. D'Angelo noted no spasm, full lateral bending and twisting, and normal straight leg raising. He concluded that Mr. Bailey had suffered an exacerbation of an underlying previous soft tissue injury of his cervical and lumbar spine, as well as an exacerbation of an underlying degenerative disc condition.

At the writing of his report in late November 1992, Dr. D'Angelo concluded that Mr. Bailey was ready to return to part-time duties. However, he cautioned Mr. Bailey from lifting loads greater than 30 pounds and recommended frequent position changes. Dr. D'Angelo expected that Mr. Bailey would be ready to return to full-time duties in 12 weeks (i.e. by the end of February 1992), provided that he maintained proper posture and attended to his back when lifting heavy loads.

In June 1992, Mr. Bailey was interviewed by a rehabilitation worker from SunLife. Mr. Bailey complained of pain and stiffness in his lower back and difficulty in bending. He reported that he drove, walked daily in his neighbourhood and did home exercises, including lifting five pound weights. He reported that he was keeping busy and was out most of the time.

The rehabilitation worker concluded that Mr. Bailey was disabled from returning to his own occupation, as described within the Bench-Mark Position Description contained in SunLife's file. However, she observed that Mr. Bailey did not appear to be disabled from returning to other kinds of work. Under the heading "A/P opinion re: rehab", the following comment is noted: "light duties no heavy lifting".

Dr. Hui prepared a series of opinions concerning Mr. Bailey's ability to return to his own occupation. In June 1992, Dr. Hui noted that Mr. Bailey continued to suffer from low back pain but anticipated Mr. Bailey's return to his own occupation in two months time, ie. August 1992 (response to letter of inquiry from SunLife dated June 10, 1992). In a note dated August 12, 1992, Dr. Hui recommended a further six weeks off work (i.e. to September 30, 1992). On September 4, 1992, Dr. Hui noted low back pain "at the extremes of movements" and predicted Mr. Bailey's full recovery in six to eight months ie. March or April 1993 (Report dated September 14, 1992, Exhibit 1, Tab 8). In response to a SunLife questionnaire, which refers to an attached description of Mr. Bailey's regular occupation, Dr. Hui forecasted a resumption of work within six months. He recommended a gradual resumption of Mr. Bailey's regular occupation from light to full duty (i.e. by approximately July 1993). In a report dated September 23, 1993, Dr. Hui suggested that Mr. Bailey would be unable to return to his own occupation even by December 18, 1993, but might be capable of doing a lighter job such as office work or sales, by that time.

During his testimony on December 20, 1993, Dr. Hui revised his opinion again. As before, he noted Mr. Bailey's complaints of low back pain at the extreme range of motion, during his examination in mid-December 1993. However, Dr. Hui also testified that Mr. Bailey had made considerable improvement in the last several months. Despite Mr. Bailey's continuing improvement, Dr. Hui has delayed Mr. Bailey's return to light duties to January 1994, or later, depending upon the opinion of Dr. Harrington, an orthopaedic specialist to whom Dr. Hui recently referred Mr. Bailey.

It is impossible for Dr. Hui to know whether Mr. Bailey has returned to his pre-accident level of pain and disability. Dr. Hui was not aware of Mr. Bailey's previous WCB injury until recently. Only Dr. Li could have helped us on this point. Mr. Bailey continues to receive daily treatment from Dr. Li, but chose not to call him to give evidence. The last filed report of Dr. Li is dated October 28, 1991, and concludes that Mr. Bailey would be ready to return to light duties with no heavy lifting, on a part-time basis, starting in January 1992, a full two years earlier than Dr. Hui currently recommends.

Two and one half years have now passed since Mr. Bailey's May 1991 accident. The length and severity of his complaints have far exceeded the expectations and educated forecasts of his own medical advisors as well as those retained by insurers. Mr. Bailey does not accept the preponderance of the medical opinion, including Dr. Hui's opinion that his neck is "totally recovered" and that he suffers back pain only at the extremes of movements. Mr. Bailey insists that he suffers constant pain in his lower back, less frequent pain in his upper back, intermittent neck pain, and sleep disturbances caused by pain. He testified that he feels unable to return to any kind of work, including the modified duties that were contemplated by WCB or any kind of light duties, such as sorting mail, that are available through Canada Post.

Dr. Hui expressed sympathy for Mr. Bailey's pain but could offer no explanation for his protracted disability. In fact, Dr. Hui confirmed in several reports to SunLife that there were no complications or other considerations affecting Mr. Bailey's recovery (report to SunLife dated June 10, 1992, questionnaire to SunLife dated January 8, 1993).

Mr. Bailey states that he cannot return to his work as a mail service courier because it involves a lot of walking. Yet in June 1992, he reported to the SunLife rehabilitation worker that he was out most of the day and regularly walked around his neighbourhood. Mr. Bailey states that he has difficulty climbing stairs. However, neither counsel directed me to any reference concerning this problem in the extensive post May 1991 medical evidence. I find that any residual difficulty in stair climbing experienced by Mr. Bailey more likely relates to his pre-accident medical condition, as reflected in Dr. Li's reports to WCB which predate the May 1991 accident, rather than the May 1991 accident (Exhibit 1, Tab 15, additions). Mr. Bailey has never disputed his ability to drive. He drives long distances every day to his various medical and rehabilitation appointments, some located as far as 65 miles from his home.

In testimony, Dr. Hui recommended that Mr. Bailey limit his activities of lifting and carrying to a maximum of five pounds. Dr. Hui conceded that this was a "ballpark estimate" based on general experience rather than upon clinical observation, specific complaints or limitations noted in his weekly examinations of Mr. Bailey. Dr. Hui seemed unaware that as long ago as June 1992, Mr. Bailey informed SunLife that he was regularly lifting five pound weights to increase his strength. All Mr. Bailey's medical advisors have reported steady, if slow, progress in his condition. Dr. Hui noted considerable improvement in the last several months. The evidence suggests that Mr. Bailey's lifting capabilities would have improved along with his overall condition. I conclude that Dr. Hui's "guess" about Mr. Bailey's inability to lift and carry more than five pounds is wrong.

Dr. Hui suggested that it was most beneficial for Mr. Bailey to return to a job that allowed for flexibility and changes in position. This echoes the opinion of Dr. D'Angelo, the orthopaedic specialist retained by the Insurer. Dr. Hui cautioned Mr. Bailey against prolonged sitting or standing. He estimated a limit of one half hour for each position, but provided no clinical basis for this estimate. I do not accept the one half hour limit arbitrarily imposed by Dr. Hui. I conclude that the modified activities of a mail service courier offer the variety of movement and flexibility recommended by Dr. D'Angelo and Dr. Hui. Mr. Bailey can sit or stand to sort the parcels, he can drive for periods and walk for periods as he has been doing, on his own behalf, for some time.

Mr. Bailey was experiencing back pain and disability prior to the May 1991 accident. He was restricted to working six hours per day with no lifting over 20 pounds. Although he may continue to experience pain at the extremes of movement when he is bending, lifting, or carrying, the evidence of Dr. Hui does not persuade me that Mr. Bailey's present condition differs significantly from his pre-accident state or that he continues to suffer a substantial inability to perform the essential tasks of a mail service courier as they were modified by the WCB plan.

Dr. Li expected Mr. Bailey to return to light duties, on a part-time basis, by January 1992. Dr. D'Angelo expected him to return to light duties, on a part-time basis, by December 1991 and work up to full-time regular duties by the end of February 1992. Mr. Bailey continued to receive benefits from SunLife for a further nineteen and one half months, until October 18, 1993. I am not persuaded that Mr. Bailey remains substantially disabled beyond that date.

d) Duty to mitigate:

CAA submitted that Canada Post offers an extensive light duties and modified work program to members of its workforce who are unable to perform their regular positions due to injury. CAA alleged that Mr. Bailey made no effort to cooperate with his employer to enter a light duties or modified work program. CAA claimed that Mr. Bailey's failure to attempt light duties or modified work impeded his rehabilitation, delayed his resumption of his former duties, and interfered with the Insurer's right to deduct post-accident income under section 15 of the Schedule, which would have reduced the amount of any weekly income benefit payable by CAA. Mr. Bailey claims that his medical condition prevented him from performing any kind of light duties or modified work and he denies that he has any obligation to attempt light or modified duties under the Schedule.

I have concluded that Mr. Bailey was capable of returning to his pre-accident essential tasks by October 19, 1993. It is therefore unnecessary for me to determine whether Mr. Bailey has a duty to mitigate his situation by accepting light duties or other modified work available through his employer, Canada Post.

e) Repayment of weekly income benefits:

CAA paid 14 weeks of income benefits to Mr. Bailey for the period October 19, 1991 to January 27, 1992. Mr. Bailey also received disability benefits from SunLife for the period October 19, 1991 to October 18, 1993. The parties agreed that the disability benefits from SunLife eliminate any obligation of CAA to pay weekly income benefits for that period. CAA is not required to pay weekly income benefits beyond October 18, 1993, therefore CAA is entitled to a repayment of 14 weeks of benefits pursuant to the provisions of section 27(3), with interest calculated in accordance with section 27(4) of the Schedule.

f) Supplementary medical and rehabilitation expenses:

Mr. Bailey receives chiropractic treatment from Dr. Li five times a week. Dr. Li maintains several offices and Mr. Bailey often drives up to 65 miles to receive treatment. Mr. Bailey seeks ongoing reimbursement for chiropractic treatment and transportation expenses under section 6(1)(a) and section 6(1)(d) of the Schedule.

CAA maintains that daily chiropractic treatments, two and one half years post accident, are unnecessary, unreasonable, and likely to be harmful to Mr. Bailey. CAA notified Mr. Bailey of its opposition to further treatment at mediation, as reflected in the Report of Mediator. CAA continues to pay these expenses, pending resolution of this dispute, in compliance with section 6(7) of the Schedule.

Prior to the May 1991 accident, Mr. Bailey was receiving approximately two or three chiropractic treatments a week from Dr. Li. Following the accident, he increased the frequency to five times a week. Dr. Hui did not prescribe the nature or frequency of these treatments.

Dr. Hui testified that he normally recommends chiropractic treatment to his patients for low back pain, but he does not support the present frequency of Mr. Bailey's treatments. Dr. Hui suggested that immediately following an accident, three to five chiropractic treatments a week were acceptable, tapering down over the course of a year to two treatments a week. Dr. Hui did not indicate if, or when, such treatments should end. Dr. Hui did not explain the basis for his opinion concerning the frequency of chiropractic treatment.

In his report dated November 28, 1991, Dr. D'Angelo, the orthopaedic specialist retained by the Insurer, expressed the view that: "At this stage in his injury, I believe that the chiropractic manipulations are of little benefit." (i.e. six months post-accident)

Correspondence dated February 6, 1992, contained in the WCB file relating to Mr. Bailey's earlier motor vehicle accident sets out their policy concerning the acceptable duration for chiropractic treatment as follows:

Generally, chiropractic treatment is allowed for a 12 week period. In some cases, an extension of treatment may be granted if it is requested in advance, and if the reports provided by the attending chiropractor substantiate the further treatment as warranted.

I am prepared to accept that the WCB has extensive experience with issues connected to rehabilitation.

CAA provided the opinion of Peter D. Aker, Chiropractic Clinical Specialist and Assistant Clinical Professor in the Department of Graduate Studies and Research of the Canadian Memorial Chiropractic College (Exhibit 3). I accept that Dr. Aker has expertise in the area of chiropractic medicine. In his report dated December 13, 1993, Dr. Aker states:

Frequency

While treating a patient on a daily or 5 days per week schedule is not uncommon for certain conditions, the frequency of care should stop or taper after a reasonable length of time. The Canadian Chiropractic Association (Glenerin Conference) Standards of Practice Guidelines, although not published as of the date of this communication, will report that the reasonable chiropractor may treat uncomplicated low back pain for four weeks and, if not successful, should alter the type of care for a possible further four weeks. If the patient has not responded within this eight week time period, consideration should be given for referral for some other form of care.

Duration

Patients may benefit from regular chiropractic treatments over a long period of time, even years. However, these supportive-type treatment strategies are based on symptoms or signs recurring, and are usually weeks or months apart. As cases vary enormously between patients, the appropriateness of this form of care is judged on each case individually.

For the case described here, I have not seen evidence that the chiropractor used objective outcome measures to demonstrate the effectiveness of his/her care. The obligation rests with the practicing chiropractor to demonstrate accountability by providing evidence to support continued care.

Counsel for Mr. Bailey objected to the report of Dr. Aker because his opinion was not based upon an examination of Mr. Bailey. Counsel for the Insurer responded that CAA could not require an examination of Mr. Bailey in connection with his claim for supplementary medical and rehabilitation benefits, under the provisions of the Schedule. Under the new provisions of the Statutory Accident Benefits Schedule - Accidents on or after January 1, 1994, an insurer may require an insured person to be assessed with respect to his or her claim for supplementary medical and rehabilitation benefits.

Although Dr. Aker did not have the benefit of examining Mr. Bailey when preparing his December 1993 report, I am satisfied that the views expressed by Dr. Aker are largely supported by Mr. Bailey's own family doctor. Both Dr. Hui and Dr. Aker concluded that daily treatments for low back pain should taper off over a reasonable length of time. Dr. Hui opined that one year was a reasonable time period for tapering treatments down to two treatments a week (which is the frequency of Mr. Bailey's pre-accident chiropractic treatments). Dr. Aker suggested eight weeks for the treatment of uncomplicated low back pain. Dr. Hui confirmed in several reports to SunLife that there were no complications or other considerations affecting Mr. Bailey's recovery (report to SunLife dated June 10, 1992, questionnaire to SunLife dated January 8, 1993).

Mr. Bailey testified that his chiropractic treatments provided only temporary pain relief and offered no long-term resolution. The chiropractor, Dr. Li, was not called to explain his objective outcome measures or to provide evidence to support the continuation of Mr. Bailey's frequent and lengthy treatment program in respect of the May 1991 accident. In the absence of such evidence, I accept the weight of opinion before me that further frequent chiropractic treatment, in respect of injuries sustained in the May 1991 accident, are of little benefit and are no longer reasonable, two and one half years post-accident.

Counsel for the Insurer asked for a set-off of the amount of supplementary medical and rehabilitation expenses paid in compliance with the provisions of section 6(7) of the Schedule, against any weekly income benefits found to be owing to Mr. Bailey. I have concluded that no further weekly income benefits are owing to Mr. Bailey, so I need not deal with this issue. Counsel for the Insurer confirmed that CAA is not seeking a repayment of supplementary medical and rehabilitation expenses paid on behalf of Mr. Bailey under section 6(7) of the Schedule.

g. Expenses of the hearing:

Mr. Bailey is seeking his expenses of the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

282(11) 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.

In the past, arbitrators have commented favourably upon the statement made by Senior Arbitrator Naylor in Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, as to the underlying criteria for awarding expenses to applicants in proper cases. In the McCormick case, Senior Arbitrator Naylor commented as follows:

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 in the appeal decision Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251. No argument was made that Mr. Bailey's application was manifestly frivolous, vexatious, or that his conduct unreasonably prolonged the proceedings. I therefore exercise my discretion to award Mr. Bailey his expenses. The prescribed expenses are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664. If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. The Applicant is not entitled to weekly income benefits under section 12(1) of the Schedule, for any period after October 18, 1993.

2. The Applicant is not entitled to payment of further chiropractic treatment expenses and related travel expenses under section 6 of the Schedule.

3. The Insurer is entitled to a repayment of 14 weeks of section 12 income benefits paid during the period October 19, 1991, to January 27, 1992, plus interest, calculated in accordance with section 27(4) of the Schedule.

4. The Applicant is entitled to his expenses of the arbitration, calculated according to Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

October 18, 1994

Janice Mackintosh

Arbitrator

Date

APPENDIX A

Exhibit 1

Joint Book of Medical Documentations

Tab 1

Ontario Automobile Insurance Application for Benefits, dated May 27, 1991;

Tab 2

Ontario Automobile Insurance Employer's Confirmation of Income, dated June 12, 1991;

Tab 3

Ontario Automobile Insurance Form 4 Medical Report of Dr. Li, dated June 5, 1991 (Tab 3 addition);

Tab 4

Application for Benefits to SunLife Assurance Company of Canada; Package of materials from SunLife of Canada's file (Tab 4 addition);

Tab 5

Letter from SunLife Assurance Company of Canada, dated January 7, 1993;

Tab 6

Letter from SunLife Assurance Company of Canada, dated December 8, 1993;

Tab 7

Curriculum Vitae of Dr. Adrian W. Hui;

Tab 8

Medical Report of Dr. Hui, dated September 14, 1992;

Tab 9

Clinical notes and records of Dr. Hui;

Letter from SunLife Assurance Company of Canada to Dr. Hui, dated May 14, 1993 (addition);

Letter from Dr. Hui to SunLife Assurance Company of Canada, dated September 23, 1993 (addition);

Tab 10

Clinical notes and records of Dr. Li;

Tab 11

Statement of account of Dr. Li, dated September 2, 1992;

Tab 12

Clinical notes and records of Freda Naiman, physiotherapist;

Tab 13

Clinical notes and records of Dr. Dimitriu from 1988;

Tab 14

Clinical notes and records of Dr. R. Tam from 1980 to October 1990;

Tab 15

Workers' Compensation Board file for Leon Bailey; Additional material from Workers' Compensation Board File;

Tab 16

Medical Report of Dr. D'Angelo, dated November 28, 1991;

Tab 17

Clinical Notes and Records of Dr. D'Angelo.

Exhibit 2

Correspondence file supplied from Canada Post

Exhibit 3

Dr. Peter D. Aker's report, dated December 13, 1993

Exhibit 4

(a) Form Letter from Canada Post, dated May 16, 1991

(b) Form Letter from Canada Post, dated May 24, 1991

APPENDIX B

Other documents before the arbitrator:

1. Report of Mediator, dated April 18, 1992

2. Application of Appointment of Arbitration, dated May 27, 1992

3. Response by Insurer, dated June 12, 1992

4. Pre-hearing Letter, dated July 20, 1992

5. Pre-hearing Letter, dated August 26, 1993

Footnotes

1. 1Prior 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.