Neutral Citation: 2000 ONFSCDRS 67

FSCO A99-000309

BETWEEN:

JOHN REITH

Applicant

and

HALIFAX INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Asfaw Seife

Heard:

November 25 and December 10, 1999, in Kitchener, Ontario.

Appearances:

Mark S. Grossman for Mr. Reith

Gregory Brimblecombe for Halifax Insurance Company

The Applicant, John Reith, was injured in a motor vehicle accident on March 20, 1997. He applied for and received statutory accident benefits from Halifax Insurance Company ("Halifax"), payable under the Schedule.¹ Halifax refused to pay certain chiropractic expenses claimed by Mr. Reith. The parties were unable to resolve their disputes through mediation, and Mr. Reith applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Reith entitled to payment of chiropractic expenses he claimed pursuant to paragraph 14(2)(b) of the Schedule?

Mr. Reith is entitled to the chiropractic expenses he claimed. Halifax shall pay Mr. Reith $1,472.92 being the amount incurred to date by Mr. Reith less collateral benefits he received in respect of the same expenses.
Halifax shall pay Mr. Reith interest on overdue amounts in accordance with section 46 of the Schedule.
The issue of expenses is deferred.

Mr. Reith was injured after the car in which he was a front-seat passenger collided head on with another car, and rolled down an embankment. Mr. Reith sustained serious injuries, including fractures of the odontoid peg of the second cervical vertebra and a fracture of the right clavicle. At the time of the accident, Mr. Reith was 25 years old and employed as a delivery truck driver.

Mr. Reith's cervical injury was initially treated by external immobilization in a halo-vest. When the vest was removed three months later, Mr. Reith was still complaining of severe neck pain, right shoulder and right arm pain, as well as mid-back pain. With little improvement after the first session of passive physiotherapy at Gage Avenue Physiotherapy, Mr. Reith was referred to The Accident Injury Management Clinic (AIM) in September 1997. He was discharged from AIM in January 1998 after completing sixteen weeks of physiotherapy, massage, chiropractic and behavioural therapy treatments which did not resolve his complaints. AIM felt that Mr. Reith would benefit from psychological assessment for his "pain-focussed" behaviour, complaints of chronic pain and driving anxiety.

On February 11, 1998, Halifax referred Mr. Reith to Dr. James Bambrick, psychologist, for assessment and treatment.² Dr. Bambrick saw Mr. Reith on three separate occasions and issued a psychological assessment report dated April 24, 1998. On June 1, 1998, Mr. Reith was referred to Focus Assessments Inc. ("Focus") by Halifax for a functional abilities evaluation. Focus reported that Mr. Reith continued to suffer from neck, mid-back and right shoulder pain. Focus was not of the opinion that Mr. Reith could return to his pre-accident employment as a delivery truck driver; however, it saw "no particular barrier to him returning to a medium level job." Focus also recommended a thoracic bone scan to determine whether Mr. Reith suffered an injury in this area. It suspected that "with the impact that occurred, there exists the possibility of a compression fracture in the thoracic spine."

Since June 8, 1998, Mr. Reith has been receiving chiropractic treatment from Dr. Peter Smith, chiropractor.

Because the treatment plan filed by Mr. Reith in respect of Dr. Smith's treatment was refused by Halifax, Mr. Reith was referred to The Wellness Rehabilitation Centre, a medical/rehabilitation designated assessment centre ("DAC") to determine whether the chiropractic expenses were reasonable and necessary. Mr. Reith was examined by the DAC chiropractor, Dr. J.G. Cochrane, who issued a report stating that chiropractic treatments outlined in the treatment plan were not reasonable and necessary.

Despite the DAC's opinion, Mr. Reith has continued to receive chiropractic treatments from Dr. Smith. He has been paying the expenses from his own pocket. Mr. Reith seeks reimbursement of $2,728.56, the amount he has paid Dr. Smith to date, less the sum of $1,255.64 in collateral payments he received from his wife's health and medical insurer.

Under subsection 14(1)(b) of the Schedule, the Insurer is required to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person for chiropractic services. Pursuant to section 38, the insured must submit to the insurer an application for the benefit and a treatment plan. If the insurer refuses to pay for the benefit, it shall require the insured to be assessed in respect of the services at a designated assessment centre. The DAC assessor is required to report an opinion on whether the benefit is reasonable and necessary for the insured person's treatment.

Therefore, to be entitled to the chiropractic benefits he claimed, Mr. Reith must establish, on a balance of probabilities, that the expense is reasonable and necessary for his treatment.

Are the chiropractic expenses incurred by Mr. Reith reasonable and necessary?

Dr. Smith's Treatment Plan, dated July 3, 1998, indicated that Mr. Reith required specific chiropractic adjustments/correction of the C2 vertebra to the normal position. The duration was initially estimated to last nine months — three visits per week for the first 12 weeks; two visits per week for the next 12 weeks; and one visit per week during the last 12 weeks. Another Treatment Plan dated March 3, 1999, prepared at the expiry of the nine months initially recommended, indicated that Mr. Reith needed additional treatment for a period of one year, two to three adjustments per week to correct, "upper cervical subluxation and as a result increase neck range of motion, and decreased pain and symptoms."

The sole issue in this arbitration is whether the chiropractic expenses incurred by Mr. Reith in respect of the treatment of his neck problem are reasonable and necessary medical expenses. I find that they are for the following reasons:

Prior to seeing Dr. Smith, Mr. Reith had received virtually no chiropractic treatment addressing his neck problems. The physiotherapy and chiropractic treatments he received at AIM were for his upper back problems. Chiropractic manipulation of his neck was attempted only once because, as Mr. Reith testified, he could barely tolerate a touching of his neck at that time.

Halifax did not question Mr. Reith's credibility and I have found him to be a witness who testified truthfully and in a straightforward fashion. I find, on the basis of the medical evidence, and Mr. Reith's uncontradicted testimony, that when Mr. Reith approached Dr. Smith in June 1998, his main complaints were severe neck pain, frequent headaches that lasted two to three days, mid-back pain, right arm pain that extended to his hand, numbness and tingling in the index finger of the right hand, and sleep problems.

Mr. Reith testified that he noted improvement in the frequency and intensity of his headaches and in the range of motion in his neck after a "couple of months'" treatment with Dr. Smith. He testified that his other problems have also been slowly improving. Although he cannot say for certain, he felt that the improvements were the result of the treatments he received from Dr. Smith. He received no other treatments. He returned to full-time employment after he started seeing Dr. Smith. He testified that he continued to pay Dr. Smith's invoices, despite Halifax's refusal, because the treatments were reducing his pain and disability.

The evidence of Drs. Cochrane and Smith

On initial examination, Dr. Smith found Mr. Reith's cervical spine range of motion showed "50% of normal in flexion, 30% of normal in left and right rotation, and 30% of normal in left and right lateral flexion." Mr. Reith elicited pain at the maximum limits of motion. Dr. Smith concluded that these restrictions were due to vertebral subluxation in the upper cervical spine. Dr. Smith testified that although the fracture of the C2 vertebra had healed, Mr. Reith's symptoms continued because of misaligned (subluxated) vertebrae in his cervical spine. Dr. Smith found these problems were consistent with the injuries Mr. Reith sustained in the accident, i.e. a broken bone in his neck.

Dr. Smith testified that he determined Mr. Reith had subluxations at the C1 and C2 levels of the cervical spine, by using objective methods that included visual observations of posture and disparity in leg length, a balance test that involves walking with eyes closed and arms extended (walking four to five paces without falling is normal), surface electromyogram-SEMG (to identify areas of muscle tension by recording changes in the electrical activity of the muscles associated with the vertebral subluxation), and x-rays to determine the degree of bone misalignment. Dr. Smith determined that Mr. Reith's main problems emanated from the subluxation in the cervical spine and focussed his treatment in this area. He testified that his goal was to correct the problem by adjusting the spine to relieve the nerve system pressure that interferes with the normal healing and functioning of the body. Initially, he estimated this could be achieved in nine months. However, by September 21, 1998, after 24 adjustments, Dr. Smith testified that there was very little objective evidence of improvement, although his range of motion was a bit better.

Dr. Smith felt that Mr. Reith would require more time than he initially estimated because of three factors: 1) the serious nature of the injuries and the amount of damage done to the body; 2) the fact that he was in a halo-vest for three months which, even though it helped to heal his fracture, allowed the muscles and ligaments to heal in an incorrect position surrounding the vertebral subluxation, in effect "cementing" themselves around the subluxation; and 3) the deterioration of his condition due to the delay between the accident and Mr. Reith's attendance at his office.

Dr. Reith testified that in December 1998 he noticed improvements in Mr. Reith, both objective and subjective. Mr. Reith reported less headaches; however, his range of motion was still restricted. Objectively, his posture and leg length had improved. In March 1999, Mr. Reith was complaining less about his headaches and reported sleeping easier at night. Although his range of motion remained relatively the same, his balance had improved significantly. He could now take four steps without losing his balance. In June 1999, objectively, his range of motion improved, his balance was fine, but his posture and leg length were relatively the same. On the most recent assessment, on November 24, 1999 (one day before the hearing), he showed dramatic improvement in range of motion and the x-rays showed that the top bone had moved back, significantly closer to where it should be, and the SEMG readings were improved. Dr. Smith testified about the improvement in the objective signs. He also testified that the fact that Mr. Reith had by then returned to work and was able to stand for prolonged periods gave him encouragement that the problem can be corrected; however, he was unable to predict when the goal of final correction would be achieved.

Dr. Smith testified that any chiropractic treatment that Mr. Reith took before coming to him did not help him. He stated that without the adjustments, Mr. Reith would not be where he is now and that time alone would not have helped.

In cross examination, Dr. Smith testified that his goal is to continue treatment until he determines, objectively, that the subluxation has been corrected. He stated that this is independent of any reduction or elimination of subjective reporting of symptom improvement. He conceded that subluxation in some patients may never be corrected, in which case supportive treatment should be provided to protect the gains they have made.

Dr. Cochrane, the DAC assessor, testified that when he examined Mr. Reith on September 3, 1998, approximately three months after he started his treatment with Dr. Smith, Mr. Reith reported that he was still experiencing headaches, pain in his neck, upper back and in his right arm. On examination, he found that his neck range of motion was mildly restricted in forward flexion, extension and head rotation. The range of motion in lateral flexion to the right and left was severely restricted. Dr. Cochrane found "palpation of the cervical spine, associated structures and soft tissues produced significant palpatory pain in the bilateral sub occipital area, the right sternocleidomastoid, the right trapezius and the right levator scapulae. The right sternocleidomastoid was extremely tender to palpation."

In his report, Dr. Cochrane stated that his clinical impression was that Mr. Reith was suffering from myofascial pain, depression and minor mechanical disturbances (subluxation). In his testimony, he agreed that he had no qualification to make a diagnosis of depression and that he thought Mr. Reith was depressed on the basis of the AIM report and Dr. Bambrick's assessment.

Dr. Cochrane indicated in his report that Dr. Bambrick had "suggested that Mr. Reith was suffering from a major depressive disorder" and that Mr. Reith refused to follow the treatment suggested by Dr. Bambrick because it involved the use of antidepressant drugs. In addition, Dr. Cochrane noted that Mr. Reith also refused the bone scan investigation of his thoracic spine, recommended by Focus. Dr. Cochrane concluded:

In my opinion most of Mr. Reith's present symptoms will remain until he deals with his barrier to recovery which is his major depressive disorder.

I can not support the treatment plan submitted by Dr. Peter Smith. In my opinion if this treatment was going to have any effect some noticeable improvement would have been noted by this time. Mr. Reith stated himself that he does not know whether he is receiving help from Dr. Smith. When I reviewed the symptom list with Mr. Reith I asked if his headaches, neck pain, upper back pain etc. had improved with treatment. Mr. Reith could not tell me one area of improvement.

Dr. Cochrane concluded that the chiropractic expenses associated with Dr. Reith's treatment were unreasonable and unnecessary.

It became clear during Dr. Cochrane's testimony that he rejected Dr. Smith's treatment plan based on his understanding that Mr. Reith had refused to pursue other avenues of medical help (refusing to take medication for depression and refusing a bone scan of his thoracic spine), and because he reported receiving no improvement after 32 adjustments of his cervical spine by Dr. Smith.

I do not accept Dr. Cochrane's conclusion that Mr. Reith suffered from depression. I heard no expert evidence that Mr. Reith was diagnosed with a psychological impairment. Dr. Bambrick reported, after one interview with Mr. Reith, that "Mr. Reith is showing signs of Major Depressive Episode"... and "to the degree that Mr. Reith continues to report pain in the absence of organic pathology, this would seem to be related both to depressive symptoms and the development of a Pain Disorder, chronic." [sic]

I do not accept Dr. Bambrick's suggestion that there was no organic pathology to account for Mr. Reith's complaints. Mr. Reith did sustain a fracture of a bone in the cervical spine and a broken collar bone, which other medical practitioners, including Dr. Cochrane, felt were the causes of his complaints. In addition, I do not accept that Mr. Reith refused to take treatment programs suggested by Dr. Bambrick. Dr. Bambrick suggested that Mr. Reith prematurely terminated the psychological treatment program; however, Mr. Reith testified and Dr. Bambrick's reports confirm that he stopped seeing Dr. Bambrick after three sessions because he could not get an appointment with Dr. Bambrick after 5:00 p.m. Mr. Reith had by then returned to work and Dr. Bambrick's hours (9:00 a.m. to 5:00 p.m.) were not convenient for him.

Dr. Bambrick concluded that Mr. Reith was refusing treatment also because he refused to take therapeutic medication (antidepressants) he suggested to him. Mr. Reith testified that his problems were physical, not psychological and that he does not like to take medication for all his problems. He stated he preferred to find natural ways of dealing with his problems. He stated that he did not have a positive experience with Paxil, an antidepressant he was given in the days that followed the accident. As a psychologist, Dr. Bambrick cannot prescribe medication for his patients. No other medical practitioner has prescribed or suggested that Mr. Reith take antidepressant medication. Mr. Reith was not referred to a psychologist or psychiatrist by his family physician.

With regard to the bone scan, Mr. Reith testified that he refused to undergo the procedure because of his concerns about receiving radiation unnecessarily. The choice of modality of treatment is for Mr. Reith and his treating physicians to determine. I heard no evidence that the chiropractic treatment of his cervical problems would have been rendered unnecessary if Mr. Reith had taken antidepressant medication or had a thoracic spinal compression been confirmed through a bone scan.

Accordingly, I find the reasons underlying Dr. Cochrane's conclusion that Mr. Reith's "present symptoms will remain until he deals with his barrier to recovery which is his major depressive disorder" are unfounded.

I also do not accept Dr. Cochrane's statement that at the time of the assessment Mr. Reith told him he had not received any improvement from his chiropractic treatment by Dr. Smith. Mr. Reith testified that he told Dr. Cochrane that his headaches were improving in frequency and intensity, but that it was far too early to tell with regard to the rest of his problems. Mr. Reith's evidence that his headaches were improving in September 1998 is supported by Dr. Smith's evidence. Dr. Cochrane had no independent memory of the interview, but maintained that if Mr. Reith had told him about any improvements he would have noted them in his report. Given Mr. Reith's testimony, and that it is supported by Dr. Smith's clinical notes, I find it more probable that Mr. Reith did advise Dr. Cochrane that his headaches were improving in September 1998.

In his testimony, Dr. Cochrane accepted that Mr. Reith suffered from cervical subluxation at the C2 level and that Dr. Smith's adjustments probably helped him. He also conceded that if Mr. Reith had told him his headaches were getting better, his opinion about the need for Dr. Smith's treatment may have changed.

In addition, Dr. Cochrane did not comment on the adequacy or helpfulness of the chiropractic treatment that Mr. Reith had received before seeing Dr. Smith. He also did not have the advantage of examining Mr. Reith since his assessment in September 1998. I do not find his evidence helpful.

In summary, I find that Mr. Reith suffered a fracture of the neck bone at the level of the C2 cervical spine as a result of the accident, and that when he started seeing Dr. Smith in June 1998, he was still experiencing significant neck problems which affected his functional capacity. I find that the treatments that he had taken to that point had not improved his condition appreciably. I find the decision he made about pursuing chiropractic treatment is appropriate.

I find that the treatments that Mr. Reith has been receiving from Dr. Smith have in fact helped him. I find that he has shown an appreciable degree of improvement, subjectively and objectively. After the treatment, Mr. Reith was able to return to work and function with decreased pain and discomfort. I find Mr. Reith's payment of the expenses from his own pocket strongly indicates that the treatments are of therapeutic value to him.

While I cannot comment on future treatments, and I have no jurisdiction to award future benefits, I find, on the evidence before me, that the expenses incurred by Mr. Reith to date in respect of Dr. Smith's treatment are reasonable and necessary. Accordingly, Halifax shall pay Mr. Reith's chiropractic expenses to the date of the arbitration hearing, less the collateral payments he received in respect of the same expenses.

EXPENSES:

The issue of expenses is deferred. The parties are urged to come to agreement on this issue.

April 6, 2000

Asfaw Seife Arbitrator

Date