Neutral Citation: 1997 ONICDRG 222

OIC A96-000644

ONTARIO INSURANCE COMMISSION

BETWEEN:

LOREDANNA CARUSO

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

DECISION

Issues:

The Applicant, Loredanna Caruso, was injured in a motor vehicle accident on February 26, 1995. She applied for statutory accident benefits from General Accident Assurance Company of Canada ("General Accident"), payable under the Schedule.¹ In September 1995, she claimed reimbursement for a "Kenko Sleep System" costing $1,607.70. This claim was denied. The parties were unable to resolve their disputes through mediation and Ms. Caruso applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The only issue in this hearing is:

1. Is the Applicant entitled to a Kenko Sleep System under section 36 of the Schedule?

Ms. Caruso also claims interest on any amounts owing, and her expenses incurred in the proceeding.

Result:

1. The Applicant is not entitled to a Kenko Sleep System.

2. The Applicant is not entitled to be reimbursed for her expenses.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on November 4 and 5, 1996, before me, Nancy Makepeace, Arbitrator.

Present at the hearing were the Applicant, her father, and her representative, Louie L. Reznick Barrister and Solicitor. Edmund W.J. Kent, Barrister and Solicitor, represented the Insurer. He was assisted by Erin Farrell, Barrister and Solicitor, on the first day of the hearing. Dave Wilcox of General Accident also attended on the first day of hearing.

Witnesses, exhibits and other documents before the Arbitrator are set out in an Appendix to the decision.

The proceedings were recorded by Cheryl Hunt, of Professional Court Reporters Inc. Background and Issues:

The Applicant, Loredanna Caruso, is 24 years old. She is single and lives with her parents. She graduated from Grade 12 in 1989, and subsequently studied computer technology at DeVry in 1992 and secretarial work by correspondence course in 1993-94. She has also worked as a retail sales clerk in women's clothing stores.

At the time of the accident, the Applicant was enrolled in a course at Humber College, training to become an assistant pharmacist. About a week before the accident, she started a new job, working 20-24 hours a week in the bakery of a grocery store. Her duties included serving customers, carrying food from the storage to the display area, arranging food for display, cleaning the shelves, and sweeping and mopping the floor.

On Sunday, February 26, 1995, the Applicant was a seat-belted passenger (sitting behind her father, who was driving) when the family car was rear-ended while stopped at a light. The Applicant recalls that the collision threw her forward and backward, but she did not collide with any part of the inside of the car. Within a few minutes, she began to feel pain in her neck, shoulders, and low back, and she developed a headache. When she went home, she was unable to rest because of her headache and pain.

The Applicant went to the Emergency Department of Northwestern General Hospital either immediately after the accident, as she testified at the hearing, or after returning home for a few hours, as some of the doctors' reports indicate. X-rays were negative, and the Applicant was discharged with a prescription for analgesics.

Although she continued to feel "awful", the Applicant returned to work on the Monday and Tuesday following the accident. After completing her shift each day, she went home and tried to sleep, but found that she could not sleep because of her pain and headache.

The next day, March 1, 1995, the Applicant went to see her family doctor, Dr. John Castiglione. He certified that she was unable to work.² The Applicant never returned to her bakery job or college course after that. In September 1996, about a year and a half after the accident, she started a new job as a secretary at a rehabilitation clinic, working 2 1/2 hours a day, 5 days a week.

In addition to neck, low back and shoulder pain, headaches, and sleep disturbance, the Applicant complains of anxiety and depression secondary to her ongoing disability. She also says that she has had ongoing problems with her right hand and arm since a bone scan (involving an injection in the right hand) was done in August 1995 to determine whether she had sustained any bony injury in the motor vehicle accident.

There is only one issue before me. In September 1995, the Applicant requested that the Insurer buy her a Kenko Sleep System ("KSS") to help her sleep. The KSS is essentially an orthopaedic mattress and pillow in which a number of magnets are embedded. The cost of the set claimed by the Applicant is $1,607.70. The Insurer has refused to pay the claim.

The Nature of the Dispute

Dr. Castiglione testified that he first heard about the KSS from Dieter Peschmann, a sales representative, who visited his office several months prior to the Applicant's September 13, 1995 visit. Mr. Peschmann showed Dr. Castiglione the device and provided some literature about it. Dr. Castiglione prescribed it for two other patients, who told him it helped them.

When Dr. Castiglione prescribed the KSS for the Applicant, she gave him permission to give her name to Mr. Peschmann. Dr. Castiglione faxed Mr. Peschmann the prescription and a section 37 certificate³ on September 13. Mr. Peschmann testified that he had prepared the form himself and left some blank copies with Dr. Castiglione. The certificate, which is signed by Dr. Castiglione, includes the following statement:

it is my professional opinion that this patient is in need of, and will benefit from the Kenko products prescribed. These products are required for rehabilitation and are essential for the treatment of the patient. The associated expense is necessary and reasonable.

Mr. Peschmann telephoned the Applicant the next day, September 14, and later visited her. The same day, he forwarded Dr. Castiglione's prescription and certificate to the Insurer's independent adjuster (Adjusters Canada), along with some literature and a covering letter.⁴

On January 4, 1996, the Applicant authorized Mr. Peschmann's company, Peschoft Network Associates Inc. ("PNA") to act as her representative in dealing with the Insurer with respect to her claim for a KSS. The authorization also instructed the Insurer to deduct the amount of this claim from any benefits paid to her and to pay it directly to Mr. Peschmann's company. The authorization concluded with the following: "I understand that PNA is providing this assistance without charge to me."⁵ Mr. Peschmann represented the Applicant in the mediation proceedings at the Commission in early 1996, and remained in the arbitration hearing after giving his evidence. He prepared Exhibit 2 in these proceedings, entitled "Kenko Sleep System Arbitration Brief." He also wrote a number of documents contained in that brief. Other documents appear to have been prepared by the Japanese manufacturer of the Kenko Sleep System or its Canadian or U.S. subsidiaries.

At the pre-hearing, the Insurer submitted that Mr. Peschmann was "the true Applicant" in this case. After hearing from counsel and reviewing the medical evidence provided, the pre-hearing arbitrator was satisfied that Ms. Caruso was the true Applicant.

Ms. Caruso is the named Applicant on the Application for Appointment of an Arbitrator, and she appeared before me to testify about how the accident has affected her. However, I have the impression that the real dispute in this case is whether the KSS is a non-experimental medical device that insured persons can claim under section 36 of the Schedule.

Criteria for entitlement to a Medical Benefit:

Section 36(1)(f) and (h) of the Schedule are as follows:

36(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for,

(f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other medical devices;

(h) other goods and services of a medical nature that the insured person requires.

I find that in order to establish entitlement to the medical benefit claimed, the Applicant must prove:

• that she sustained an impairment as a result of an accident

• that the expense claimed is incurred by or on behalf of the insured person

• that the expense claimed is incurred as a result of the accident

• that the expense is reasonable

• that the benefit claimed falls within the benefits allowed in clauses (a)-(h)

The Insurer submitted that the Applicant must prove that the Kenko Sleep System is "reasonable and necessary" treatment for an accident-related impairment. Section 37(1) of the Schedule allows an insurer to require an insured person to produce a medical certificate stating that an expense "is reasonable and is necessary for treatment." Section 39(10) requires a DAC assessor to state in his or her report whether the expense claimed "is reasonable and is necessary for the insured person's treatment." However, I can find nothing in section 36 requiring an insured person to prove that an expense is necessary for her treatment.

Preliminary Issue:

The Applicant submitted that the Insurer is obliged to allow the claim because it has paid the Applicant's expenses for other medical devices or goods, including an OBUS Forme, cervical collar, cervical pillow and lumbar support.

I do not agree. In my view, the Applicant must show that the specific expense claimed is a reasonable expense incurred as a result of an accident-related impairment. This is clear in the plain words of section 36(1), which requires the Insurer to pay for "all reasonable expenses incurred ... as a result of the accident [emphasis added]", and in clauses (a) through (h) which set out specific kinds of benefit. Section 37(1) also focuses on specific medical benefit claims:

The insurer may require a person claiming payment of an expense under section 36 to furnish a certificate from the person's health practitioner stating that the expense is reasonable and is necessary for the person's treatment. [emphasis added]

Obviously, it cannot have been the intent of the legislature that an insured person could claim prescription eyewear, for example, if she suffered no impairment to her eyes as a result of the accident. In this case, the Insurer's decision to pay certain medical devices does not prevent it from disputing the Applicant's entitlement to other devices, and does not establish that the Insurer accepted the Applicant's claim that she sustained a sleep impairment as a result of the accident. I find that the Applicant must prove that she suffered an accident-related impairment as defined in section 1 of the Schedule, and that the KSS is a reasonable treatment expense incurred "as a result of the accident."

Legal Issues:

The Insurer submitted that the Applicant is not entitled to a Kenko Sleep System because the KSS is not a medical device or a good of a medical nature, is experimental, and the expense has not been incurred. The Applicant submitted that the claim is governed by the pay pending dispute provision of section 36(4), and that the Insurer has contravened that provision.

A. Is the Kenko Sleep System a Medical Device or a Good of a Medical Nature?

Section 36(1) provides benefits for "medical devices" - clause (f) - and "other goods of a medical nature - clause (h). The Insurer submitted that the Kenko Sleep System is neither a medical device nor a good "of a medical nature." Neither of these terms is defined in the Act or the Schedule.

The Applicant submitted that the Kenko Sleep System is treated as a medical device under the Food and Drugs Act⁶ and should be treated the same way under the Insurance Act.

There is no definition of "medical device" in the Food and Drugs Act, but "device" is defined as:

any article, instrument, apparatus or contrivance, including any component, part or accessory thereof, manufactured, sold or represented for use in

(A) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings or animals,

(B) restoring, correcting or modifying a body function or the body structure of human beings or animals, ....⁷

The Medical Devices Regulation promulgated under the Food and Drugs Act C.R.C. Chapter 871, as amended by SOR/92-616 and SOR/95-578 defines neither "device" nor "medical device."

Section 24 of the Medical Devices Regulation requires a manufacturer of a device to provide certain information to the Director of the Health Protection Branch of Health Canada within ten days of the first sale of the product in Canada. The required information includes the name and model number of the device, the name and address of the manufacturer or importer and the Canadian distributor, copies of labels, package inserts and directions for using the device, information about any drugs used in the device, and a statement as to the purpose of the device.

The Applicant led into evidence a letter from Kathleen Savage, an official with the Medical Device Bureau of the Health Protection Branch, indicating that notice has been given under section 24 for the Kenko Pad Deluxe, Kenko Pad, and Kenko Pillow, and all three products have received "accession numbers." Ms. Savage goes on to say:

These products are considered medical devices, based on the claims made for them ....

The assignment of an Accession number does not indicate that the Health Protection Branch accepts the representations for these products. In addition, the manufacture [sic] may not state or imply in its advertising that the representations are accepted by the Branch.⁸

In my view, this letter provides presumptive evidence that the Kenko Sleep System is a "medical device" under section 36(1)(f) of the Schedule.⁹ Except for pointing out that the Food and Drugs Act defines "device" but not "medical device," the Insurer made no submissions as to why a product considered a medical device by the government body that regulates medical devices should not be considered a medical device under the Insurance Act. The Insurer focussed its case on its submission that the product is both experimental and ineffective, neither of which submissions, even if I accept them, precludes the product from being a "medical device." Based on the evidence and submissions before me, I find that the Kenko Pad Deluxe and Kenko Pillow claimed by the Applicant are "medical devices" under section 36(1)(f). For clarity, this does not necessarily mean that a product must be treated as a medical device under the Food and Drugs Act Medical Devices Regulation in order to satisfy section 36(1)(f) but only that such treatment is presumptive evidence that a product is a "medical device."

Given this finding, there is no need for me to decide whether the Kenko Sleep System is a good "of a medical nature" under section 36(1)(h).

B. Is the Kenko Sleep System "experimental"?

The Insurer submitted that the Applicant cannot claim the cost of the Kenko Sleep System, even if she satisfied me that it is reasonable treatment for her impairment, because of section 36(2) of the Schedule, which says:

The insurer is not liable to pay any expense under subsection (1) for goods or services that are experimental in nature.

The Applicant relied on Ms. Savage's letter, which indicates that the Kenko Pad Deluxe and Kenko Pillow "are not subject to [the] investigational testing provisions of the Medical Devices Regulations" under the Food and Drugs Act.

I do not understand this to mean that Health Canada accepts the Kenko Sleep System as non-experimental or that Health Canada accepts or endorses the manufacturer's claims for the benefits of the product. Indeed, Ms. Savage indicates that the assignment of an accession number to the product does not mean that Health Canada accepts the manufacturer's claims. On the basis of the limited submissions I heard with respect to Health Canada's procedures and requirements for "investigational testing," I am not satisfied that they are relevant to determining whether the Kenko Sleep System is "experimental" under section 36(2).

The Insurer submitted that the KSS is experimental because it is of unproven therapeutic value. The Insurer relied on Dr. Castiglione's admission in cross-examination that the Kenko Sleep System is "experimental" in that its benefit varies from patient to patient. Dr. Langer and Dr. Malcolm described the Kenko Sleep System as "speculative" and "experimental." Neither the Act nor the Schedule defines "experimental," and I was provided with no authority for defining this term. The Insurer's evidence and submissions on this point focussed on the Insurer's claim that the product has no proven therapeutic value. Although I am not persuaded of the benefits of the Kenko Sleep System, based on the evidence I received, I do not accept the Insurer's very broad definition of "experimental."

Arbitrators have often commented on the remedial character of the statutory accident benefit scheme, and especially the provisions concerning medical (and rehabilitation) benefits. The legislative objective of facilitating expeditious adjustment of claims for medical benefits is evident in sections 38 and 39 (DAC assessment), section 39.1 (payment of medical benefits), section 36(4) (pay pending dispute), and section 69 (prior approval of expenses). Considering the medical benefits provisions in their entirety, I do not accept that the drafters of section 36(2) intended to give insurers an absolute right to refuse a medical benefit claim just because medical experts disagree about the therapeutic value of the benefit claimed. Such a broad interpretation of the term "experimental" could apply to many treatment modalities for which insurers currently pay benefits. I am reluctant to draw such a conclusion in the absence of any authoritative definition of "experimental."

Based on the submissions I received, I am not convinced the Kenko Sleep System is "experimental."

C. Is the Applicant precluded from entitlement because she has not "incurred" the expense claimed?

The Insurer submitted that the Applicant is precluded from recovering because she has not purchased a Kenko Sleep System. Section 36(1) requires the Insurer to pay "for all reasonable expenses incurred by or on behalf of the insured person [emphasis added];" the word "incurred" was not found in section 6 of the Schedule,¹⁰ the predecessor provision.

I find section 36(1) ambiguous in that it does not specify whether the expense must have been incurred in the past or will be incurred in the future. The ambiguity is resolved by section 69 of the Schedule, which sets out a process for prior approval of medical and rehabilitation benefit claims. In my view section 69 provides a complete response to the Insurer's submission.

Moreover, I can find nothing in the dispute resolution provisions of sections 36(4) and (5) and sections 38, 39 and 39.1 to suggest that they do not apply where the insured person has not yet incurred the expense. Indeed, section 39(10)(b) requires a DAC assessor to prepare a report which includes "recommendations relating to the future provision of goods and services referred to in section 36 to the insured person" [emphasis added]. In my view, this provision is intended to assist insurers and insured persons to agree on the provision of goods and services before expenses are incurred.

I do not accept the Insurer's submission that a medical benefit expense is not payable unless it has already been incurred.

D. Was the Insurer required to pay this claim pending resolution of the dispute?

The Applicant submitted that the Insurer was obliged to pay the Applicant's claim for this expense pending resolution of the dispute, pursuant to section 36(4) of the Schedule, which is as follows:

(4) Subject to subsection (5), clause 39(11)(b) and subsection 39(12), the insurer shall pay an expense under subsection (1) pending resolution of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act.

The parties agreed that the exemption set out in section 36(5) does not apply in this case.

The Insurer submitted that section 36(4) does not apply because the Kenko Sleep System is not a "medical device" under section 36(1)(f). I have found that it is.

The Insurer also submitted that further to section 39(11)(b) and 39(12), the pay pending dispute provision does not apply where the Insurer requires a DAC assessment, as it did in this case, and the assessor does not state that the expense was a reasonable and necessary one for the Applicant's treatment. Sections 39(11)(b) and 39(12) are as follows:

39(11) Subject to the determination of a dispute relating to the expense in accordance with sections 279 to 283 of the Insurance Act,

(b) if the report of the assessment does not state that, in the opinion of the person or persons who conducted the assessment, an expense is reasonable and necessary for the insured person's treatment, the insurer is not required to pay for the expense unless clause (c) applies; and

(12) If the insured person fails or refuses to make himself or herself reasonably available for an assessment under this section, the insurer is not required to pay the expense until the person submits to the assessment.

I heard no evidence to support the Insurer's reliance on section 39(12), and the Insurer did not allege that the Applicant failed to comply with her obligations under section 39(8).

Nothing in section 39(11)(b) says whether an insurer is required to pay medical benefits claims pending receipt of a DAC report. In my view, the section means that if a DAC report does not support the Applicant's claim, the Insurer is not required to pay it until and unless an Arbitrator orders it to. Without section 39(11)(b), section 36(4) would require an insurer to continue paying medical benefits, despite a DAC report supporting refusal, pending an Arbitrator's order dismissing an application for arbitration

Furthermore, because section 39 sets out a mandatory process which an insurer must follow if it intends to dispute a medical benefits claim, the insurer will have required a DAC assessment in every case to which section 36(4) might apply. This means that the Insurer's interpretation would effectively read section 36(4) out of the Schedule.

I find that the Insurer contravened section 36(4) of the Schedule by refusing to pay the Applicant's claim for a Kenko Sleep System pending receipt of Dr. Malcolm's DAC report. However, the issue of a special award does not arise because I do not award benefits to the Applicant.

The Kenko Sleep System

Mr. Peschmann demonstrated the Kenko Sleep System at the hearing. It consists of a cervical pillow (Kenkopillow) and either a mattress (Kenkopad Deluxe) or mattress pad (Kenkopad). The Applicant claims a Kenkopad Deluxe system. The promotional literature contained in Exhibit 2 indicates that the mattress and pillow promote sleep in several ways: the top layer is a multitipped eggcrate pad which massages and stimulates the sleeper and absorbs "vibrational rebounding;" the material is breathable; the soft top layers are supported by a firm base; and the pillow contains ceramic tiles that support the weight of the head and disperse heat.

The focus of the evidence put before me was the ferrite magnets embedded in the depressions of the eggcrate pad. Mr. Peschmann testified that the magnetic flux of about 800 Gauss "penetrates to the cells" as the sleeper changes position during the night. He demonstrated this by standing and placing one foot on the witness chair. He then held a magnet on one side of his raised knee and a tester on the other. The proximity of the magnet caused the tester to light up. Mr. Peschmann stated that this demonstrated the ability of magnetic force to pass through the knee.

Much of the evidence adduced in support of the efficacy of the KSS was anecdotal. Mr. Peschmann testified that his wife's back pain has improved since she started using it, and that customers have thanked him for selling them the product. Dr. Castiglione testified that the two patients for whom he prescribed the KSS reported improvement with it. Written testimonials about the benefits of the KSS for chronic pain patients were provided from Dr. Veronica Kekosz, a physiatrist, Dr. P. Safieh, a family doctor and emergency physician, Dr. David Y. Chan, a family doctor, Kenneth Koffer, a psychologist, and Carole Quinn, a nurse. A victim of a workplace accident, and two motor vehicle accident victims gave written testimonials that the KSS helped them sleep and alleviated their pain.¹¹ A memo produced by Mr. Peschmann states that 77 doctors, including 3 physiatrists, have prescribed the Kenko system, along with 16 chiropractors.¹² Another memo indicates that health practitioners' certificates in support of prescriptions for the KSS are available.¹³ These documents are of little assistance in determining whether Ms. Caruso is entitled to the benefit claimed. Nor do they persuade me of the general value of the KSS, since they rely solely on the untested and subjective reports of users of Kenko Other testimonials were prepared by Glenn L. Reist, an electrical engineer, and Jurgen Volling, a mechanical engineer, who supported the engineering principles used in the Kenko system.¹⁴ This material is of little assistance in determining whether the Kenko system is medically safe and beneficial.

An internal memo from one Insurer and a memo prepared by Mr. Peschmann indicate that a number of insurers, including the Insurer in this proceeding, have paid claims for Kenko products.¹⁵ Again, this is of little assistance in determining whether the Kenko system would benefit the Applicant. In any event, the fact that some Insurers have paid for these benefits in some cases does not establish that they were obliged to do so.

Aside from the anecdotal evidence and clearly promotional material, the Applicant presented a list of "studies, articles and research" about "magnetic treatment." The list and accompanying summaries were prepared by Mr. Peschmann. As the studies were not led into evidence, I am unable to assess them and I place no weight on them. For the same reason, I place no weight on the summary of a Japanese hospital study of the therapeutic effect of a magnetized health mattress.

I find that the articles published in peer review journals are irrelevant because they all deal with pulsed electromagnetic fields, whereas the Kenko system uses non-pulsed magnetic fields. In any event, I received evidence of only four double-blind controlled studies involving very small groups of people - 167 subjects and 27 subjects in the two U.S. studies, and 20 and 40 subjects in the two Irish studies. I also note that the two U.S. studies were funded by Bio-Magnetic Therapy Systems, Inc., presumably a manufacturer of magnetic products for which therapeutic claims are made.¹⁶

Drs. Langer and Malcolm, who are orthopaedic surgeons, testified on the Insurer's behalf. I accept their evidence about the problems with the studies relied on by the Applicant. They agreed that studies on the effect of electrical charge on non-union fractures have been unconvincing and this treatment has been abandoned, although it was initially greeted enthusiastically. According to Dr. Langer, the electromagnetic charge was either applied through surface electrodes or by winding a wire coil around the fracture. (The latter approach was the one adopted in the articles filed at the hearing.) Both doctors criticized the studies the Applicant relied on, especially with regard to their small size and short duration. Drs. Langer and Malcolm also stated that it is important to agree in advance how to interpret experimental results, especially where the experiment relies on subjective reports of pain or disability. Finally, I am troubled by Mr. Peschmann's testimony that the Kenko Sleep System may alleviate sleep disturbance, whatever its cause. I accept Dr. Langer's testimony that treatment should be directed to some specific problem that can be influenced through a specific intervention.

In addition to all these concerns, I am troubled that I received no evidence of any studies comparing use of a Kenko mattress and a non-magnetized orthopaedic mattress. The Applicant testified that she has been sleeping on an orthopaedic mattress for about ten years. She did not claim a new orthopaedic mattress, and I heard no evidence to suggest that there is any need to replace the one she has.

Is the Kenko Sleep System reasonable treatment for an accident-related impairment?

The Applicant submitted that the Insurer was obliged to pay the claim because in September 1995 the only expert evidence available to the Insurer supported the claim. The Applicant also submitted I must assess her entitlement as of September 1995. I do not accept either of these submissions, which are inconsistent with the dispute resolution process set out in sections 39 and 39.1 of the Schedule and sections 279-289 of the Insurance Act, and would leave an insurer with no effective way of disputing an insured person's medical benefit claim. In any event, I am not satisfied that the Applicant established her entitlement to a Kenko Sleep System based on the medical records available in September 1995.

Dr. John Castiglione, the Applicant's family doctor, testified at the hearing. Reviewing his notes, he testified that when he first examined the Applicant after the accident, he found her tender, stiff and swollen in her back, neck, and shoulders. She also complained of pain in her legs and right forearm, as well as fatigue and headaches. He prescribed analgesic and muscle-relaxant medication, as well as an OBUS Forme, a cervical collar and pillow, and a back support. He also referred her for physiotherapy at the St. Clair Winona Physiotherapy (Rosemount Physiotherapy), where the Applicant was treated with ultrasound, heat and TENS for about eight weeks.¹⁷

In May 1995, the Applicant stopped attending at St. Clair and began going to Royal Rehabilitation, where treatment included neck care education, interferential treatment, stretching and strengthening exercise, and home exercise. However, there were several breaks in her attendance, and she was finally discharged on September 13, 1995.¹⁸

On August 3, 1995, the Applicant sustained an adverse reaction to the injection preparatory to a bone scan. She attended at Emergency a couple of days later, where Dr. Seligman, an orthopaedic specialist, prescribed antibiotics, ice and a splint for swelling and bruising. On August 22, 1995, she was examined by Dr. G. Moddel, a neurologist. He could find nothing wrong with her right arm and hand. He concluded:

I feel this lady has a functional weakness of her hand. I think that she probably had some mild bruising following the injection and this developed into a type of conversion reaction. I think that the treatment should be reassurance and that she should not wear a splint but use that right hand as much as possible.¹⁹

The Applicant saw Dr. D. Morgenthau, another neurologist, on the following day. On examination, Dr. Morgenthau could find no neurological deficit, although he found that the Applicant's hand was swollen and tender. He noted "giving way" of the entire right arm, a finding which suggests non-organic restriction of function. Nerve conduction studies conducted the same day showed "excellent" nerve conduction in the right hand, although the Applicant declined a needled examination. Dr. Morgenthau recommended exercise and therapy for the hand.

The Applicant complained about ongoing pain and weakness in her right hand and arm, as well as persistent headaches and sleep disturbance through the summer of 1995. Dr. Castiglione prescribed anti-migraine mediation and an anti-depressant. However, the Applicant continued to report side-effects from any medication prescribed, and told Dr. Castiglione on September 13, 1995 that she did not want any more medication. It was also on that day that Dr. Castiglione gave her a note discharging her from physiotherapy, and another note prescribing a Kenko Sleep System that day.²⁰

The Applicant was also treated by Dr. S. Tozman, psychiatrist and neurologist, for supportive psychotherapy and advice²¹. She initially accompanied her father, who was seeing Dr. Tozman on his own account. In February 1994, a year before the accident, her parents asked Dr. Tozman to see the Applicant in her own right. Dr. Tozman's report of September 21, 1995 indicates that he saw the Applicant on June 27, 1995, when she discussed the motor vehicle accident, on August 8, 1995, shortly after the bone scan, and on September 20, 1995.

The strongest medical evidence supporting the Applicant's claim is Dr. Castiglione's prescription and section 37 certificate. In his testimony at the hearing, Dr. Castiglione explained that he had prescribed the KSS for two other patients, who told him they had benefitted from it. The Applicant had told him, as she also explained at the hearing, that she slept on a ten-year-old orthopaedic mattress, which was giving her no relief. Dr. Castiglione thought the KSS might help her sleep.

I find that the medical evidence obtained to September 1995 indicates a level of impairment much less severe than the Applicant claims. Objective tests were negative - the cervical and lumbar x-rays performed in March 1995, the lumbar and total body bone scan done in August 1995, and the nerve conduction studies of the right upper extremity performed in August 1995.

Dr. J. Kwok, an orthopaedic surgeon who examined the Applicant in May 1995 on referral from Dr. Castiglione felt that the Applicant had sustained a soft tissue injury, and should try to return to work after another six weeks or so of physiotherapy. Despite the Applicant's complaints to Dr. Castiglione that her range of motion was only 50%,²² Dr. Kwok found no signs of impairment apart from cervical and lumbar tenderness.

On June 20, 1995, the Applicant was examined by Dr. J. Jimenez, a physiatrist, at the Insurer's request.²³ Dr. Jimenez reported that the Applicant had no abnormal physical signs and was not impaired. He recommended that she embark on a work-conditioning program and gradually return to her pre-accident activities. He also recommended that the Applicant be referred to a neuropsychologist to determine whether psychological factors were affecting her complaints.

I heard almost no evidence about the Applicant's attempts to return to work or engage in other activities of daily living after the accident. Her decision in September 1995 to cease medication and physiotherapy and pursue a claim for a Kenko Sleep System does not leave me with the impression that she understands the importance of reactivation in facilitating her recovery. I find that at best, the evidence proves only that the Applicant sustained a soft tissue injury resulting in some degree of pain, headache, and sleep disturbance for some period of time after the accident. However, it is not necessary for me to determine whether the Applicant continued to suffer an impairment resulting from the accident in September 1995 because, even if she did, I am not satisfied that the Applicant would benefit from using the Kenko Sleep System.

I find that Dr. Castiglione prescribed the Kenko Sleep System because he felt he had little more to offer the Applicant and he had recently been visited by a salesman for the product. I am mindful of the fact that it cost Dr. Castiglione no money and very little time to prescribe the system. Because Mr. Peschmann left some blank section 37 certificates with Dr. Castiglione and took on the task of filing the prescription and certificate with the Insurer, Dr. Castiglione was required to do little more than sign on the appropriate lines.

The evidence led with respect to the period after September 13, 1995 does not persuade me that the Applicant is entitled to the benefit claimed.

The Applicant testified that her symptoms have not changed much since the accident; in fact, her back pain and sleep problems have gotten worse. She continues treatment with Dr. Castiglione and Dr. Tozman. In the fall of 1996, the Applicant began working 2 1/2 hours a day as a secretary at a rehabilitation clinic. She testified that she still experiences neck, shoulder and low back pain, as well as headaches and sleep disturbances.

Dr. Castiglione referred the Applicant to Dr. B. Schacter, a neurosurgeon (October 1995 and July 1996), Dr. Pierre Kirwin, a physical medicine and rehabilitation specialist (April 1996). Both doctors diagnosed chronic soft tissue injuries, and recommended that the Applicant have active physical therapy. The Applicant attended the Columbia Comprehensive Rehabilitation Centre for active therapy - exercise, relaxation, and a group session - between February and July 1996. The Applicant also lost weight, on Dr. Schacter's advice. She claims that neither intervention helped her.

In June 1996, the Insurer referred the Applicant for a multidisciplinary medical evaluation by Dr. D. Garbuz, an orthopaedic surgeon, Ms. G. Atkins, a physiotherapist, and Ms. R. Saunders, an occupational therapist.²⁴ The assessors "found no organic pathology but did find some signs of pain-focused behaviour." The assessors concluded that the Applicant had sustained cervical and lumbar myofascial strain. They did not feel she required more physiotherapy, but recommended that she continue with home exercises. They concluded that the Applicant was physically capable of returning to her pre-accident activities of daily living, and her pre-accident job or some other job.

The Insurer has also required the Applicant to have several DAC assessments. Dr. B. Malcolm, an orthopaedic surgeon, along with Mr. Gareth Sneath, a physical therapist, conducted a DAC assessment of the Applicant on April 9, 1996.²⁵ The assessors reported that the Applicant had sustained a cervical and lumbar myofascial strain. They found it significant that the Applicant displayed restricted ranges of motion on this examination, although Dr. Jimenez had found full range of cervical motion three months after the accident. The DAC assessors recommended "self-directed range of motion and functional strengthening" exercises and did not feel the Applicant needed further therapy through a facility. They stated that there was no medical indication for a Kenko Sleep System given the Applicant's injury.

A disability DAC assessment was conducted by Dr. G. Vadasz on September 17, 1996.²⁶ Dr. Vadasz found no objective impairment and reported that the Applicant should be able to return to all her pre-accident activities. He felt that her persistent pain would benefit from an increased activity level.

The Applicant also underwent a disability DAC assessment by psychologist Dr. Lynn Levy on April 11, 1996.²⁷ Dr. Levy's impression was that "one of [the Applicant's] biggest problems in her rehabilitation is related to her attitude of tremendous resistance to active oriented treated such as Columbia Comprehensive, her insistence on passive treatment modalities, and her strenuous attempts to govern her treatment/rehabilitation in these manners [sic]." Despite the results of psychometric testing, Dr. Levy did not believe that the Applicant was "severely depressed, anxious, or distressed." She concluded: "while she may be experiencing some intermittent depressed and/or anxious mood, her mood difficulties would not be considered diagnosable."

None of the specialists who have assessed the Applicant after September 13, 1995 support her claim for a Kenko Sleep System.

Expenses:

I find that the Applicant's claim for a Kenko Sleep System had little merit. It was supported only by Dr. Castiglione, her family doctor, and Mr. Peschmann, a sales representative, who had promoted the product to Dr. Castiglione. There was no credible evidence as to the therapeutic value of the Kenko Sleep System, and none of the medical experts supported it. I do not find this an appropriate case for the exercise of my discretion to award the Applicant her expenses incurred in the arbitration proceeding.

Order:

The application for arbitration is dismissed.

Nancy Makepeace

Arbitrator

Date

Appendix

Witnesses:

Ms. Loredanna Caruso

Applicant

Dr. J.S. Castiglione

Applicant's family doctor

Mr. Dieter Peschmann

sales representative for Kenko Sleep System

Dr. F. Langer

orthopaedic surgeon

Dr. B.W. Malcolm

orthopaedic surgeon

Exhibits:

Exhibit 1

Applicant's Arbitration Brief

Exhibit 2

Kenko Sleep System Arbitration Brief

Exhibit 3

Insurer's Arbitration Brief

Exhibit 4

Authorization dated January 4, 1996

Exhibit 5

Dr. Langer's Curriculum Vitae

Exhibit 6

Dr. Malcolm's Curriculum Vitae

Other documents before the Arbitrator:

Report of Mediator dated April 2, 1996

Application for Appointment of an Arbitrator dated April 16, 1996

Response to an Application for Appointment of an Arbitrator dated May 21, 1996,

Pre-hearing Letter dated July 22, 1996

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2Exhibit 1, Tab 4
3. 3Exhibit 1, Tabs 1 and 2
4. 4Exhibit 1, Tab 10
5. 5Exhibit 4
6. 6Exhibit 2, Tab 2A, R.S.C. c. F-27, as set out in the Office Consolidation of April 30, 1996
7. 7s. 2, "device"
8. 8Exhibit 2, Tab 2A
9. 9The Applicant also led evidence that Health Canada treats OBUS Formes and TENS units as "medical devices", and these products are commonly paid for by automobile insurers: Exhibit 2, Tabs 2B and 2C
10. 10The term "Schedule" refers to Regulation 672, the Statutory Accident Benefits Schedule - Accidents Between June 22, 1990 and December 31, 1993.
11. 11Exhibit 1, Tab 11
12. 12Exhibit 2, Tab 7A
13. 13Exhibit 2, Tab 7B
14. 14Exhibit 1, Tab 11
15. 15Exhibit 2, Tabs 6 and 7A
16. 16"The Effect of Pulsed Electromagnetic Fields in the Treatment of Osteoarthritis of the Knee and Cervical Spine. Report of Randomized, Double Blind, Placeblo Controlled Trials", by David H. Trock, Alfred Jay Bollet and Richard Markoll, Journal of Rheumatology 1994 21:10 p. 1903; "A Double-Blind Trial of the Clinical Effects of Pulsed Electromagnetic Fields in Osteoarthritis", by David H. Trock, Alfred Jay bollet, Richard H. Dyer, Jr., L. Peter Fielding, W. Kenneth Miner, and Richard Markoll, Journal of Rheumatology 1993 20:3 p. 456; and "Low Energy High Frequency Pulsed Electromagnetic therapy for Acute Whiplash Injuries: A Double blind Randomized Controlled Study", by Darragh Foley-Nolan, Kieran Moore, Mary Codd, Ciaran Barry, Peter O'Connor and Robert J. Coughlan, in Scand. J. Rehab. Med. 24:51-59, 1992, p. 24. I also reviewed "Pulsed High Frequency (27 MHz) Electromagnetic Therapy for Persistent Neck Pain: A Double blind, Placebo-Controlled Study of 20 Patients", by Darragh foley-Nolan, MRCPI, Ciaran Barry, FRCPI, Robert J. Coughlan, FRCPI, Peter O'Conner, FRCPI, and Dermot Roden, MD, in Domiciliary Neck Pain Treatment April 1990 vol. 13 no. 4, p. 445. I heard no evidence that this is a peer review journal. Exhibit 2, Tabs 3B, 3C.
17. 17Exhibit 1, Tab 7
18. 18Exhibit 1, Tab 8
19. 19Exhibit 1, Tab 12
20. 20Exhibit 1, Tabs 1 and 2
21. 21Exhibit 1, Tab 14
22. 22Dr. Castiglione's notes of April 20 and July 11, 1995
23. 23Exhibit 3, Tab 1
24. 24Exhibit 3, Tab 4
25. 25Exhibit 3, Tab 2
26. 26Exhibit 3, Tab 5
27. 27Exhibit 3, Tab 3