Neutral Citation: 2002 ONFSCDRS 183 FSCO A01-001629

Between: Steven H. Stelzer (Applicant) and Zurich North America Canada (Insurer)

Reasons for Decision

Before: David Muir Heard: September 10, 2002, in Ottawa, Ontario.

Appearances: Kelly Siegner for Mr. Stelzer Jennifer Guth for Zurich North America Canada

Issues:

The Applicant, Steven H. Stelzer, was injured in a motor vehicle accident on April 29, 1996. He applied for and received statutory accident benefits from Zurich North America Canada ("Zurich"), payable under the Schedule¹ Zurich terminated Mr. Stelzer's medical benefits as well as his income replacement benefits in early 1997. The parties went to arbitration over Mr. Stelzer's entitlement to medical rehabilitation benefits for the period January 1, 1997 to June 16, 1998. Mr. Stelzer was unsuccessful in that arbitration.²

Mr. Stelzer has continued to receive medical rehabilitation treatments of various kinds and claims reimbursement from Zurich. Mr. Stelzer's position is that even now, after several years of treatment, he still requires regular ongoing physical therapies in order to manage his symptoms arising from injuries sustained in the car accident. The parties were unable to resolve their dispute about Mr. Stelzer's entitlement through mediation, and Mr. Stelzer applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Is Mr. Stelzer entitled to his medical expenses pursuant to subsection 36(1) of the Schedule for the period June 17, 1998 to October 21, 2001.

Mr. Stelzer also seeks interest on any amounts found to be owing pursuant to subsection 46(2) of the Schedule.

Result:

Mr. Stelzer is entitled to medical expenses for chiropractic, acupuncture, osteopathic and massage treatments received between June 17, 1998 and October 21, 2001. He is not entitled to be reimbursed for prescription expenses claimed during this same period.
Mr. Stelzer is entitled to interest on the amounts found owing pursuant to subsection 46(2) of the Schedule.

PRELIMINARY ISSUE:

As indicated, there has been a prior arbitration of Mr. Stelzer's entitlement to medical rehabilitation benefits. The treatment at issue in the prior case appears to have been similar to that in issue before me.

Although not raised as a preliminary issue, Zurich indicated at the outset that it would be relying upon this prior decision in objecting to the introduction of any evidence that was, or ought to have been introduced in the prior hearing. In Zurich's submissions, the issue between the parties was res judicata. Although relying on the rule, res judicata, Zurich did not take the position that Mr. Stelzer could not proceed to arbitration at all, but that he must show that there was some changed circumstance since the prior arbitration. In making this submission Zurich relied upon cases dealing with the introduction of new evidence on an appeal.

At the hearing, I allowed Mr. Stelzer to introduce any evidence relevant to the treatments in issue during the period June 17, 1998 to October 21, 2001. In making this ruling I expressed some doubt that res judicata operated to exclude evidence in the way that Zurich was proposing. However, as part of my oral ruling on this issue, Zurich was invited to make any further submissions on the issue at the conclusion of the case.

In closing, Zurich reiterated its earlier submissions that the issue between the parties was res judicata. Zurich characterised the issue between the parties as being Mr. Stelzer's entitlement to medical rehabilitation benefits. Zurich submits that this issue was determined by Arbitrator Miller's decision and unless Mr. Stelzer could establish some changed circumstance, and only by reference to evidence post May 2000 (the date of the prior arbitration hearing), the prior decision was determinative of his entitlement to medical rehabilitation benefits.

The rule of res judicata has recently been described in an appeal decision³ of Delegate McMahon:

The common law plea of res judicata can take two forms: cause of action estoppel, and issue estoppel. In the first, the defendant seeks to strike the action on the basis that it has already been adjudicated. In the second, the defendant concedes that the subsequent action is different, but maintains that a crucial issue common to both proceedings has already been determined, and cannot be revisited in the second proceeding. See Angle v. Canada (Minister of National Revenue), 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248. ...

The three requirements for a plea of issue estoppel are: (1) the same question has been decided; (2) the decision giving rise to the estoppel was final; and (3) the parties or their privies are the same as the parties to the first decision. See Angle v. Canada, supra. ...

Res judicata is a rule of evidence. It is a rule of public policy intended to prevent parties from relitigating issues that have already been decided. It operates to insulate the results of an adjudication by prohibiting the tendering of evidence intended to contradict the previously adjudicated result. As a rule of evidence, I am not bound to apply it, but may, when it appears appropriate and just to do so. For the reasons set out below, I have considerable doubt about whether it can be properly applied here and, in any event, decline to dispose of Mr. Stelzer's claims on the basis of its application in these circumstances.

The parties before me are the same as in the prior arbitration and that decision was final, and not appealed. Two of the three elements necessary for the proper application of the rule are present. The only question remains whether the issue determined in the prior arbitration is the same as the question before me.

The primary issue for determination in this arbitration was described in the pre-hearing letter as:

Is Mr. Stelzer entitled to supplementary medical expenses in the amount of $2,679.53 incurred between June 17, 1998 and October 2, 2001, pursuant to paragraph 36(1) of the Schedule?

The parties confirmed that this was the issue in dispute between them at the outset of the hearing.

The arbitrator in the prior decision set out the issues for determination in the usual way at the outset of her decision:

Is Mr. Stelzer entitled to his medical expenses pursuant to subsection 36(1) of the Schedule for the period of January 1, 1997 to June 16, 1998?

The claims relate to different time periods. An entitlement to section 36 benefits can arise at any time. It may be that in one period of time a claim may be found to be not reasonable and then in another period, the same treatment could be reasonable for the rehabilitation of the person. Characterised as a claim for a benefit for a particular period of time, the issues in the two arbitrations are not the same and the doctrine of res judicata does not apply.

As I understood it, Zurich's submission was that the same underlying factual issues necessary to establish entitlement to medical rehabilitation benefits had been determined by Arbitrator Miller. Accordingly, none of the evidence tendered in the prior arbitration was admissible in this case and, consequently, unless Mr. Stelzer established some changed circumstance since that arbitration, he could not be successful.

In one sense, Zurich's submission is clearly without merit. While, formally, it is an exclusionary rule prohibiting the tendering of evidence which contradicts a prior result, res judicata is primarily about the results of an adjudication. The question to be answered first is - what were the issues that were decided in the prior arbitration? The determination of what evidence may, or may not, be admissible in this hearing is secondary to that.

What issue was decided in the prior arbitration? Zurich submits that the issue between the parties was Mr. Stelzer's entitlement to medical rehabilitation benefits. I do not agree.

In any determination of entitlement to medical rehabilitation expenses, a whole host of issues may be in dispute and require deciding in the hearing. The language of section 36 suggests two immediate issues: first, whether the impairment was as a result of the accident; and second, whether the expense was reasonably required as a result of the accident. For example, included in the notion of reasonableness, the parties will often have a dispute about the cost of the measures, even where there is no dispute that the measure as such was reasonably required.

Underlying these obvious issues, there may be others, such as whether there was an accident or an impairment at all.

In any given arbitration, not every issue potentially arising under a section is actually in dispute. When reading the prior decision, it is necessary to keep in mind what was contentious between the parties and what was not. The only record of what was in dispute in the prior arbitration is the decision itself, no other material was filed. Looking past the bald, and largely unhelpful (in respect of the application of res judicata) statement of the issue at the outset of the decision, the key dispute between the parties was the reasonableness of the treatments provided in the sense of whether or not the treatments at issue would assist in Mr. Stelzer's rehabilitation. Underlying that issue was the validity of Mr. Stelzer's claim that without ongoing medical treatments he would suffer relapses which would interfere with his ability to perform some of his activities of daily living including his ability to work. Causation was not a real issue - neither, apparently, was the cost of the treatments received by Mr. Stelzer.

The decision of Arbitrator Miller is narrow in the sense that it is confined to a particular time period. It disposes of Mr. Stelzer's claims on the basis of his failure to meet an evidentiary onus in respect of entitlement to benefits for a particular period of time and, as I read the decision, the arbitrator did not dismiss the theory of his claim to entitlement which he is advancing at this stage. Indeed, the arbitrator accepted the possibility that Mr. Stelzer was subject to flare up in back pain, but concluded that there was insufficient objective medical evidence related to the treatment he had received to support entitlement during the relevant time period. The arbitrator noted the absence of the evidence of Dr. Heather Norman, the treating chiropractor, throughout much of the period in issue, despite efforts on the part of Mr. Stelzer and Zurich to obtain it. The arbitrator went on to specifically discount much of the medical evidence of Dr. Perron, some of which was tendered before me, because it related to treatment beyond the period for which the claims before her had been made.

Res judicata is an awkward fit when applied to an issue such as entitlement to a medical rehabilitation benefit which can arise at any time. A prior adjudication in respect of an earlier period of time has, in fact, little or no bearing if the evidence is that the subsequent treatment was reasonable. The difficulty in applying a rule like res judicata may be more pronounced where the prior determination is not based on an assessment of the validity of the underlying issue, but where, as here, the claim is dismissed on the basis of a failure to meet an evidentiary onus. This awkwardness in applying the rule would, if I am wrong in my conclusion that the rule does not apply here, lead me to not apply it to these circumstances as a matter of discretion.

EVIDENCE AND ANALYSIS:

Mr. Stelzer is 43 years old. He works as a structural engineer in Montreal. At the time of the accident he was living in Ottawa. Mr. Stelzer testified that he was at a full stop on an exit ramp on the Queensway when a truck travelling at about 30 kilometres an hour hit his car from behind. When the truck struck his car, his head went forward and then snapped back over the head rest. Mr. Stelzer testified that he felt like his brain had been shaken by the sudden movements back and forth. Mr. Stelzer testified that he went to an accident reporting centre. He testified that when he was at the centre the adrenalin rush had worn off and he began to feel ill. He was taken to the hospital where he remained for a few hours and was released.

Mr. Stelzer saw his family doctor, Dr. F. Pietrobon, the day after the accident. At the hearing, Dr. Pietrobon testified, with extensive reference to his clinical notes, that at that stage he felt Mr. Stelzer had suffered mild cervical strain. At the time Mr. Stelzer indicated that he was not in any significant pain.

Mr. Stelzer testified that he felt very fatigued after the accident but he was able to return to work. However, within a week he began to feel tightness and a knot in the upper middle of his back, almost between his shoulder blades. About a week after the accident, Mr. Stelzer went for a longer than usual bicycle ride, which dramatically exacerbated his symptoms. He saw Dr. Pietrobon again who referred him for physiotherapy.

Within a few weeks Mr. Stelzer testified that he was unable to work because of the pain in his mid upper back. He testified that if he took pain medications, the pain was reduced, but he felt unable to work when under the influence of such medications. In Mr. Stelzer's view, he was incapable of fulfilling his professional responsibilities as an engineer under these conditions.

In a report to Zurich dated November 27, 1996, Dr. Pietrobon wrote that Mr. Stelzer's "...job required frequent periods of stooping over and sitting down as well as a significant amount of time drafting and being on the computer. It seems as though his sitting tolerance was clearly compromised, and work, if anything seemed to make him worse."

Dr. Pietrobon went on to state that Mr. Stelzer required "...lengthy periods of time at the computer and even with periods of rest his sitting tolerance was limited. He was simply not able to return to his computer for any reasonable period after having worked on it for an hour or two."

In response to questions about Mr. Stelzer's ability to work, Dr. Pietrobon offered the following advice in the same report:

In response to your third question, namely one of limitations with prolonged sitting, the problem is not one of his ability to have breaks, but simply the fact that his level of discomfort is such that after a few hours of sitting he is unable to return to further desk work. There is absolutely no limitation to his performance of his activities of daily living.

...[h]e was limited in performing the essential tasks of his pre-accident occupation if these indeed required prolonged periods of sitting. I think that this was explained in the previous paragraph, in that it is the total accumulated duration of sitting throughout the day that is Mr. Stelzer's chief difficulty as opposed to being allowed [to] have breaks in between periods of sitting.

Mr. Stelzer stopped work in June 1996. He was paid disability and medical rehabilitation benefits by his personal carrier. Zurich made up the difference with "topping up" benefits. The amount claimed in this arbitration is net of the amounts paid by Mr. Stelzer's primary carrier for the period June 17, 1998 and October 21, 2001. There was some discussion of extending the claim period to the date of the arbitration, however, Mr. Stelzer indicated that, while he had incurred expenses for this period (and some evidence of these expenses was tendered), he also understood that he could only assert claims to the date set out in the application for arbitration and was not prepared to deal with the later period.

At various points over the next few months, Mr. Stelzer began to feel better and resumed most of his activities such as biking and working on the computer. However, the return to these activities seemed to exacerbate his pain.

Mr. Stelzer was referred to a physiatrist, Dr. M. Gillen, in September 1996 by Dr. Pietrobon. In a report dated October 22, 1996, Dr. Gillen diagnosed Mr. Stelzer as suffering a "thoracic facet dysfunction" at the T5-6 level.

Mr. Stelzer began to see a chiropractor, Dr. Ken Brough, in the Fall of 1996. In a report to Dr. Pietrobon dated October 22, 1996, Dr. Brough stated that in his opinion Mr. Stelzer was "...suffering the effects of chronic vertebral subluxation complex at the C6, T4 and T6 levels." He recommended a course of chiropractic care with "supportive exercise and soft tissue therapy over a period of 12 weeks."

On October 18, 1996, Zurich sent Mr. Stelzer for an Insurer's medical examination (IME) with an orthopaedic surgeon, Dr. Douglas Ritter. Dr. Ritter concluded that Mr. Stelzer had a thoracic musculoligamentous strain, from which he was recovering. He also noted that the thoracic pain "...is a direct result of his accident." Dr. Ritter opined that Mr. Stelzer should achieve maximum recovery in six months to a year and one-half. Dr. Ritter indicated that Mr. Stelzer could return to work on a part-time basis starting in November 1996 and progress to full time over that month. In his report, he stated that "...with appropriate ergonomics at his work site [Mr. Stelzer] is capable of the essential tasks of his pre-accident occupation. If pain were not a feature I would not restrict him from his essential tasks of his employment. I would not restrict him from returning to his activities of daily living."

Zurich asked Dr. Ritter for his view of Mr. Stelzer's treatment needs. Dr. Ritter reported that Mr. Stelzer needed "...a good therapy programme which would work primarily on strengthening and stretching ...his spine." It was his view that Mr. Stelzer could do this on his own but that if he had any doubt about this, then "physiotherapy or a back education course could further advise him."

Mr. Stelzer has been able to resume most of his pre-accident activities of daily living as predicted by Dr. Ritter. He testified that he returned to work on a part-time basis in March 1997 and returned to full-time work within a few months. Mr. Stelzer began skiing in January 1997, although he testified that to this day he does not ski as much or as frequently as he had before the accident.

Despite this progress, Mr. Stelzer testified that he continues to require regular medical treatments or he suffers what he described as relapses. Mr. Stelzer testified that when he began to feel better he ceased taking treatments for about six weeks. He testified that he suffered a relapse and on that occasion it took him some considerable period of time to get himself back to where he had been.

On February 5, 1997, Mr. Stelzer's chiropractor, Dr. Brough, reported to Zurich that as of "...January 15, 1997 it was determined that Steven Stelzer had reached maximum medical improvement and was discharged from active care. ...We are closing his file and have ended the active component of care."

At some point in 1997, Mr. Stelzer moved to Hamilton. He apparently advised Zurich that he continued to require regular chiropractic treatment as well as occasional therapeutic massages and submitted invoices for treatments receive. These claims were denied and formed part of the subject matter of the earlier arbitration.

Mr. Stelzer testified that he provided an authorization for Zurich to obtain his file from his then treating chiropractor, Dr. Heather Norman. This material was never produced. A letter from Dr. Norman, dated August 7, 2002, confirmed that Mr. Stelzer had been a patient of hers in 1997 and 1998. The letter indicated that Mr. Stelzer's treatment file was "unavailable." Dr. Norman recalled that Mr. Stelzer "suffered from chronic complaints and required frequent, regular treatment every one to two weeks, that managed to keep his ongoing symptoms controlled."

Mr. Stelzer attended a Medical-Rehabilitation DAC on July 21, 1998. The report of the DAC on the same date concluded:

Mr. Stelzer has ongoing thoracic spinal pain subsequent to his motor vehicle accident. To date he has had a reasonable course of therapy, but without complete resolution of his symptoms.

At this time further, formal physiotherapy and/or chiropractic treatment will offer no benefit.

The chiropractic assessment included the following comments by the assessor:

[Mr. Stelzer] presented in a pleasant and straightforward manner. The examination was characterized by consistency, apparent maximal effort and lack of pain focused behaviors. The examination was also characterized by very little in the way of objective evidence of accident related physical impairment other than ligamentous tenderness in the area of complaint and suspected deconditioning in the associated upper back musculature.

The accident of over two years ago probably produced a mechanical injury in the soft tissues and joint structures at T5/T6. The current examination provided evidence of soft tissue/ligamentous irritation in this area but no evidence of mechanical joint dysfunction. Mr. Stelzer has improved with time and the various treatments he has undergone. He no doubt has intermittent pain that he did not have prior to the accident. In my opinion he is still susceptible to recurrent irritation in the mid-back because of a combination of his sedentary (posturally demanding) job and a lack of appropriate muscular strength endurance.

...In my professional opinion, treatment probably provides symptomatic relief but further progress will result from diligent attendance at a self-directed upper back strengthening program and maintaining an appropriately sound ergonomic workspace.

Mr. Stelzer may wish to continue with chiropractic treatment, on his own, but in my professional opinion it is not reasonable and necessary as a result of any objectively demonstrated impairments that have resulted from motor vehicle accident of April 29, 1996.

On the basis of the IME and the DAC report, Zurich denied any further treatment to Mr. Stelzer and advised him that his file would be closed in September 1998. As a result, no further investigation of Mr. Stelzer's claims has been undertaken on behalf of Zurich.

Despite Zurich's position, Mr. Stelzer continued to receive treatments of various kinds to the date of the hearing. He testified that he intends to continue seeking treatment into the future. These treatments include chiropractic, acupuncture, osteopathy and massage. He testified that he varies his treatment regime as the modalities often become ineffective after a period of time. At the time of the hearing he was on a three-week cycle of chiropractic followed by massage, then a week off.

He testified that it is the postural demands of his work that give rise to his difficulties. He stated that his work as a structural engineer requires hours of concentrated work on the computer or at a work table, engaged in detailed calculations. He testified that in the years since the accident he has worked as a "freelancer," that is, as an independent contractor most often working in the workplace of the employer of his services. He also stated that, while he does make some effort to ensure appropriate ergonomics in his workplaces, he is limited in his ability to create a healthy workplace because of his freelance status. He often is assigned the desk and computer that no one else is using. He testified that ergonomic chairs appropriate to his condition are not typically available in workplaces.

Mr. Stelzer testified that without the treatments he takes, he is limited in his ability to work effectively. He testified that, with treatment, he is able to work if he is careful about his posture and takes a break every one to two hours. However, even with treatment, he testified that he is subject to recurring relapses. Mr. Stelzer testified that periodically his back would "lock up." Associated with his back locking up, he would suffer intense pain in his mid upper back and neck as well as debilitating headache. Mr. Stelzer testified that these relapses occur periodically, but their frequency has decreased over time. He testified that his last relapse occurred about eight months prior to the hearing. If he were to stop treatment, Mr. Stelzer stated, he would suffer an almost immediate relapse. Mr. Stelzer did not testify that he was completely unable to work when he suffered a relapse, but that typically he might be unable to work at all for a short time (a day or two) and would need more time off work to attend to more extensive treatments.

Dr. Pietrobon testified that he saw Mr. Stelzer in June 2002 after not being his physician since March 1997. Dr. Pietrobon testified that he found Mr. Stelzer pretty much as he had been when he last saw him. His clinical note dated June 13, 2002 recorded, in part, the following observations:

On examination Steve looks quite well. He has full range of motion of his lumbar and thoracic spine. There continues to be an area of soft tissue tenderness in the midline and to the left of the lower cervical and upper thoracic spine. Chest examination was otherwise fine.

The doctor's assessment of Mr. Stelzer at that time was as follows:

Assessment

Chronic soft tissue pain post-MVA

Steve is not much changed from when I last saw him. I think from a symptomatic perspective physiotherapy is helping him and he should continue. I have not made any specific suggestions at this point.

Dr. Barry Gamberg treated Mr. Stelzer intermittently from 1998 to date. In a report dated March 8, 2000, Dr. Gamberg notes that Mr. Stelzer's "course has been characterized by periods of improvement only to be followed by a relapse of symptoms." Dr. Gamberg sent Mr. Stelzer for X-rays and a CT scan in November 1999. The X-rays revealed a mild upper thoracic scoliosis convex to the right with the apex at D6. The CT scan was normal.

Dr. Gamberg offered the following description of Mr. Stelzer's condition:

The only consistent physical findings have included the mild upper thoracic scoliosis and palpable tender muscle spasm in the left upper thoracic paravertabral musculature. I am not sure why his symptoms have persisted for such a long period of time. Most cases such as his resolve within 6 months of the injury. The mild scoliosis may be an underlying factor that contributes to ongoing stress in the area of the injury. Mr. Stelzer has found that prolonged desk work definitely exacerbates his symptoms.

I note that in the prior decision, the arbitrator indicated that Dr. Gamberg had provided a note dated December 4, 1998 in which he stated that Mr. Stelzer has mid thoracic pain/dysfunction and he requires physiotherapy. He stated that "[t]his treatment should improve this condition. Maintenance standards have yet to be obtained."

A letter from Dr. Perron, a treating chiropractor, dated March 16, 1999, stated:

It is my opinion, due to his car accident, that [Mr. Stelzer] must continue with regular care in order to maintain optimum health. He has chronic mechanical subluxation of the thoracic spine that tends to recur with stress and fatigue.

Mr. Stelzer did not experience this pain until after his car accident and I can only conclude that it is the causative factor for his condition today.

For optimal results Mr. Stelzer would need chiropractic adjustments once every six weeks with a stretching and exercise program which would enable him to gain overall back pain stability.

Mr. Stelzer also saw Dr. Brough, a treating chiropractor, again for a re-assessment. In a report dated August 15, 2002, Dr. Brough offered the following:

It is my opinion that Mr. Stelzer continues to experience chronic recurrent pain as a result of the motor vehicle accident. While he can maintain an active lifestyle, relapses in his condition will probably continue to occur. The best strategy is for Mr. Stelzer is [sic] to continue to manage the recurrences, and receive supportive treatment in and attempt to reduce the frequency, and intensity of recurrence. Since I have not been managing Mr. Stelzer's care for the past several years, his current chiropractor would be best suited to suggest treatment strategies.

Subsection 36(1) of the Schedule requires that, 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. The treatments claimed here are contemplated by the subsection.

The burden of proof rests with the applicant to prove, on a balance of probabilities, that the medical expense claimed is reasonable.

Zurich relied heavily on the decision in the prior arbitration, however, as set out above I do not agree with its submissions on the effect of the arbitrator's decision. I must consider all of the evidence tendered in support of Mr. Stelzer's claim that the treatments he received between June 1998 and October 2001 were reasonable.

Mr. Stelzer's position is that unless he receives regular ongoing treatments he would suffer relapses which interfere with his ability to work.

I accept Mr. Stelzer's position to a considerable degree. I find that he suffered injuries in the motor vehicle accident in April 1996 - there is no dispute about this. I also find that he continues to suffer some pain from those injuries that continue to affect him - in this regard, I accept his evidence and again, there is no evidence contradicting him. I also find that the treatment regime that he has chosen helps him to control that pain. Finally, I find that Mr. Stelzer is improving to some degree, but as of the Fall of 2001 he still needed treatment to control his symptoms which could limit his ability to function effectively in his work.

I also accept the limited medical evidence offered by Mr. Stelzer that tends to support his view that treatment is necessary for him to continue to function at his work.

In short, the evidence tendered by Mr. Stelzer is sufficient to establish a prima facie case of entitlement to some medical treatments pursuant to section 36 of the Schedule.

The evidence contrary to Mr. Stelzer's position is also limited. The October 1996 report of Dr. Ritter is not helpful in that it merely restates what everyone would have thought at that time - that Mr. Stelzer had sustained some soft tissue injuries, but that these would resolve in the following weeks or months. The prognosis of Dr. Ritter has been largely fulfilled, however, his opinion does not speak to Mr. Stelzer's current concerns with his ongoing symptoms.

The Medical-Rehabilitation DAC is also of limited value. The assessors endorse Mr. Stelzer's complaints of ongoing symptoms, but do not address his concerns with the debilitating effects of the symptoms which he experiences. Indeed, other than indicating that Mr. Stelzer had achieved the maximum medical benefit from his treatment, without explaining what that meant, no other explanation is offered for the conclusion that the therapies under consideration were not reasonable or necessary.

There was little evidence led with respect to the particulars of the expenses claimed. Mr. Stelzer testified that he received acupuncture, massage, osteopathic, and chiropractic treatments. Receipts and invoices with respect to these treatments were tendered in evidence. I have found that the reasonable cost of these treatments are compensable and should be paid by Zurich for the relevant time periods.

In addition, the materials filed include invoices for prescriptions - no other evidence was offered by Mr. Stelzer with respect to these prescriptions and their role in his treatment regime. In the absence of any evidence at all with respect to these expenses, other than that they appear to have been incurred, I am unable to make any finding in respect of them.

Given the limited evidence provided of the actual expenses claimed, I leave it to the parties to work out what precise amounts may be owing to Mr. Stelzer in light of my findings above. In the event that they are unable to do so, the parties may make whatever further submissions are required to resolve these issues.

Mr. Stelzer is also entitled to interest on these amounts found to be owing to him, pursuant to section 46 of the Schedule.

EXPENSES:

The parties each seek their expenses. An arbitrator is entitled to award to either party their expenses in accordance with the criteria prescribed by section 12 of the Expense Regulation.⁴ Having regard to the fact that I have not made a final determination with respect to the quantum of benefits claimed by Mr. Stelzer, it may be appropriate to defer this issue. The parties are urged to resolve the expense issue in light of the findings above - however, if they are unable to do so, they may raise the matter at the appropriate time.

November 20, 2002

David Muir Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Zurich shall pay Mr. Stelzer the reasonable net cost to him of the acupuncture, osteopathic, massage and chiropractic treatments received by him between June 17, 1998 and October 21, 2001. I remain seized of this matter in the event that the parties are unable to resolve the amount owing to Mr. Stelzer.
Mr. Stelzer is entitled to interest on these amounts found to be owing to him, pursuant to subsection 46(2) of the Schedule.