Neutral Citation: 1997 ONICDRG 13

OIC A95-000332

ONTARIO INSURANCE COMMISSION

BETWEEN:

RITA FAIRBAIRN

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issue:

The Applicant, Rita Fairbairn, was injured in a motor vehicle accident on January 10, 1993. She applied for and received various statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under Ontario Regulation 672.¹ However, Wawanesa declined Ms. Fairbairn's claim for a naturopathic solution known as bovine extract (bovine), on the basis that it was not a reasonable treatment resulting from her injuries in the accident.

After an unsuccessful attempt at resolving the dispute through mediation, Ms. Fairbairn applied for arbitration under the Insurance Act, R.S.O. 1990, c. I. 8, as amended.

The issue in this hearing is:

1. Is Ms. Fairbairn entitled to recover the cost of bovine embryonic injections under section 6 of the Schedule?

The parties agreed that Ms. Fairbairn is entitled to recover her expenses incurred in the arbitration.

Result:

1. Ms. Fairbairn is not entitled to recover the cost of bovine embryonic injections.

2. Ms. Fairbairn is entitled to recover her expenses incurred in the arbitration.

Hearing:

The hearing was held in Kitchener, Ontario, on November 19, 1996, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant:

Rita Fairbairn

Applicant's Representative:

Mark Grossman, Barrister and Solicitor

Insurer's Representative:

Gregory Heckel, Barrister and Solicitor

Reporter:

Gloria Kelly, Marbrae Paralegal Services Inc.

Witnesses:

Ms. Rita Fairbairn

Exhibits:

The exhibits are set out in Appendix A to this decision.

REASONS FOR DECISION:

1. The Factual Background

Ms. Fairbairn was involved in a car accident on January 10, 1993. She testified that she was a passenger in a car which was struck by another vehicle pulling out from a stop sign. The accident resulted in minimal damage to the front bumper of her car, estimated at approximately six hundred dollars.

At the time of the accident, Ms. Fairbairn was 41 years old and taking a computer course as part of a retraining program with the Canadian Employment Skills Centre in Kitchener.² She started the course in September of 1992 and was to finish in February 1993. Since the accident, she has not completed the course or obtained employment. Ms. Fairbairn testified that as a result of this accident, she has experienced pain in her neck, shoulders and back. She suffers from debilitating headaches and low energy. She reports that she is largely house ridden because her symptoms are constant and aggravated by virtually any physical activity. She lives in an apartment with a friend who helps with cleaning, laundry and meals.³

On the day following the accident, Ms. Fairbairn consulted with her family doctor, Dr. Rosemary Arnold. Dr. Arnold recommended physiotherapy at a clinic in Hamilton, which Ms. Fairbairn attended from October 1993 until March 31st, 1995. While there she received a range of treatments, including physiotherapy, acupuncture, massage, movement classes and exercise classes. She also received counselling from a therapist. Wawanesa paid for all these treatments until March of 1995, when it discontinued payment on the basis that the treatments provided only temporary relief. Since then, Ms. Fairbairn has obtained numerous massage and chiropractic treatments, which have also produced only short-term relief.

In August 1993, the Canadian Back Institute (C.B.I.) assessed Ms. Fairbairn and recommended a progressive functional restoration program. In February 1994, after Ms. Fairbairn completed the program, C.B.I. concluded that she could manage her normal activities of daily living and recommended that she gradually return to her regular duties and discontinue any ongoing treatments. No further treatment was recommended.⁴ The Link With Work Centre (Link) performed a Functional Abilities Evaluation of Ms. Fairbairn in December, 1994. Link recommended that she undertake a physical conditioning program in order to gradually increase her activity level.

Ms. Fairbairn has also been diagnosed with mild heart disease, unrelated to this accident. Dr. Scott Beattie, her treating cardiologist, noted that she needs to lose weight, stop smoking and exercise aerobically in order to improve her physical condition and prevent further heart disease. He found that she was poorly motivated.

Ms. Fairbairn testified that despite the recommendations of Link and Dr. Beattie, she continues to smoke, has not lost weight, and has not assumed an active exercise program. Although she received hydrotherapy for approximately two months and still swims on occasion, I heard no evidence about the frequency or length of her exercise periods. None of the medical reports confirm that she has been exercising actively or regularly.

Currently, Ms. Fairbairn's chiropractor, Dr. Mullins, sees her three times a week. He provides manipulation and alignment, followed by "diapulse therapy," which he describes as "non thermal electro-magnetic energy...used to reduce any inflammatory process to the traumatized areas..."⁵ Dr. Mullins reports⁶ that Ms. Fairbairn is suffering "severe impairment of [her upper body] movements due to undetermined soft tissue injury..." and that his treatments to date have provided only periodic relief of short duration.

Dr. Mullins has concluded that Ms. Fairbairn is "definitely not a text book case" and will require "the available contemporary and experimental help." To that end, he has recommended "bovine extract," a naturopathic solution which is injected into the patient in order to promote healing.

2. Analysis and Conclusions

Ms. Fairbairn is claiming payment for bovine extract under section 6 of the Schedule. The relevant portions of section 6 provide:

(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... for,

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

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

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

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. [emphasis added]

Previous case law at the Commission ⁷ discusses the three criteria that must be met before an insurer is liable to pay for a good or service under subparagraph 6(1). Those criteria are:

(1) it must be a reasonable expense resulting from the accident

(2) it must be required because of the accident; and

(3) a medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the insurer so requires.

In this case, Wawanesa did not request a statement from a medical practitioner in support of the claim. Consequently, the issue is whether Ms. Fairbairn's claim for bovine extract is a reasonable expense that she requires because of the accident. For the following reasons, I conclude that Ms. Fairbairn has not established that the Insurer is obliged to pay for bovine treatment under section 6(1).

Dr. Mullins is the sole medical practitioner who has recommended bovine treatment to Ms. Fairbairn. In his letter of March 27, 1995 to Wawanesa, Dr. Mullins notes that although no treatment to date has offered her continued relief or improvement, the bovine extract offers "one possibility" of treating her. He states:

...[bovine extract] has a broad spectrum for treating many problems a number of which could be associated to Ms. Fairbairn.

I have treated a number of patients with some of the products produced by this company and with successful [sic] results. And I would suggest that Ms. Fairbairn would be excellent [sic] candidate and show the desired results within approximately 8-12 weeks.

The cost of a two month supply is $450.00 and when considering the cost of current treatment this is quite reasonable.

Dr. Mullins did not testify. I received no information about the composition of bovine or whether it has been proven useful in similar cases. The only evidence regarding the benefits of bovine extract was contained in a three page information sheet distributed by the manufacturer.⁸ This document suggests that bovine is useful "in all cases where the desired effect is a regeneration of cells and tissues and the resulting restoration of vitality within the patient." The document lists extensive examples of ailments which may benefit from bovine, ranging from impaired memory, unsteady gait, and chronic fatigue to cardiac insufficiency, ecological illnesses and infertility. It suggests that within three weeks of treatment the patient will experience "an increased vitality" and, in the long term, an improvement in the clinical condition for which the patient is being treated as well as "increased stamina, improved blood supply, better skin tone and an overall sense of well being."

Ms Fairbairn testified that Dr. Mullins advised her that the bovine extract would "help build up my immune system." He told her that although he had never tried the bovine therapy itself, he had had successful results with closely related products used on other patients. Ms. Fairbairn feels that as all the other treatments have failed to provide permanent relief, she would like to try bovine.

Wawanesa challenged the legitimacy of bovine extract through the opinion of Dr. James Israel, an orthopaedic surgeon. Dr. Israel assessed Ms. Fairbairn in July 1993 and then again in April 1996. In his report⁹ of April 26, 1996, he stated:

...the soft tissue injuries in each of these areas should have resolved by now...the present symptoms are related to psychogenic or environmental factors...

Unfortunately, she has been caught up in a web of treatment modalities supplied by the health care workers, none has relieved her symptoms. All have reinforced a dependency and a focus on disability and pain...

...[her] symptoms are not going to change until she comes to grips with the fact that she must be the one who is in charge ...she must be as active as she possibly can be. She must continue with full activity at her home and extra-home activities.

Continued formalized treatment directed towards the relief of physio genic components of symptoms...will not result in relief of her symptoms...

In a later report dated June 5, 1996, Dr. Israel commented about the usefulness of bovine treatment:

...I have absolutely no experience with Boivin [sic] embryonic injections.

I reviewed the "Live Cell Fraction Therapy" reference that you have provided. To my knowledge there is no scientific evidence that this extract works in relief of symptoms that Mrs. Fairbairn experiences. Presently, there is no place for the boivin embryonic injections.

I found the information provided to me about bovine therapy to be vague and speculative, and some of the claims of its manufacturer seem excessive. Despite my concerns, however, I do not believe that it is necessary or appropriate for me to reach a general conclusion in this case about the value of bovine therapy. That would require better evidence.

In my view, Ms. Fairbairn has not established that bovine therapy is reasonable in her unique circumstances. Although the proposed trial of bovine extract is of minimal cost, there is no reliable evidence to suggest that bovine is likely to benefit Ms. Fairbairn. Dr. Mullins supports its use but has never treated a patient with bovine before; he has merely treated a number of patients "with some of the products" produced by the same company. Even he offers only a "possibility" of success. The manufacturer's claims of widespread success do not, in my view, amount to an independent verification of bovine's value.

I am also concerned that the proposed bovine treatment is yet another passive modality. Wawanesa has already funded a multitude of passive treatments, none of which has provided more than temporary relief. A number of assessors have concluded that Ms. Fairbairn needs to take active steps to improve her condition, including weight loss, cessation of smoking and aerobic exercise, all of which she has failed to undertake. Drs. Beattie and Israel, as well as the Link Centre, suggest that she needs to focus on activity and exercise, rather than on further passive modalities.

For these reasons, I conclude that Ms. Fairbairn is not entitled to recover the cost of bovine therapy.

Order:

1. Ms. Fairbairn's claim for the cost of bovine therapy is dismissed.

2. Ms. Fairbairn is entitled to recover her expenses of the arbitration.

January 17, 1997

Deena Baltman

Arbitrator

Date

APPENDIX A

Exhibit 1

Letter of March 27, 1995 from Dr. Mullins to Wawanesa (with attachment - article entitled "Live Cell Fractions Therapy"

Exhibit 2

Letter of April 16, 1996 from Dr. Mullins to Mr. Grossman

Exhibit 3

Documents filed by Insurer, including:

a) report of July 2, 1993, by Dr. Israel

b) report of August 25, 1993, by C.B.I.

c) report of April 24, 1995, by Dr. Beattie

d) clinical notes and records of Dr. Arnold

e) report of July 12, 1995 by Dr. Beattie

f) report of April 26, 1996 by Dr. Israel

g) report of June 5, 1996, by Dr. Israel

Exhibit 4

Report of November 1, 1996, by Dr. Smith

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.
2. 2Exhibit 3, report of Dr. Israel dated July 2, 1993, p. 3 and report of C.B.I. dated August 25, 1993, p.4
3. 3Exhibit 3, report of Dr. Israel dated April 26, 1996, p. 3
4. 4Exhibit 3, report of Dr. Israel dated April 26, 1996, p. 6
5. 5Exhibit 2, p.2
6. 6Exhibit 2, pp.2 -3
7. 7Plows and Jevco Insurance Company (January 16, 1992), OIC A-000175 and A-000588
8. 8Attached to Exhibit 1, and entitled "Live Cell Fractions Therapy."
9. 9Exhibit 3