Neutral Citation: 2003 ONFSCDRS 2

FSCO A01-000841

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUSAN P. DRIVER

Applicant

and

TRADERS GENERAL INSURANCE CO.

Insurer

REASONS FOR DECISION

Before:

Susan Sapin

Heard:

September 16, 17, 18, 19 and 20, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on October 17, 2002

Appearances:

Ian Outerbridge and C. Gordon Ross for Ms. Driver

Alexander M. Voudouris and Jeffrey R. Baum for Traders General Insurance Co.

The Applicant, Susan P. Driver, was injured in a motor vehicle accident on January 16, 1999. She applied for and received statutory accident benefits from Traders General Insurance Co. ("Traders"), payable under the Schedule.¹ Traders refuses to pay for a unique form of ongoing therapy known as "Vistasp," and certain other benefits. The parties were unable to resolve their disputes through mediation, and Ms. Driver 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 Ms. Driver entitled to expenses of $103,727.45 incurred for Vistasp therapy between May 28, 1999 and September 16, 2002, as either a medical benefit under section 14 or a rehabilitation benefit under section 15 of the Schedule?
Is Ms. Driver entitled to medical expenses under section 14 of the Schedule for massage therapy ($65) and physiotherapy ($80) in June 1999, and hydrotherapy ($185) and pool therapy ($255) in 2001?
Is Ms. Driver entitled to housekeeping and home maintenance expenses of $6,300 under section 22 of the Schedule?
Is Ms. Driver entitled to expenses of $1,299.86 for two Tai Chi programmes as outlined in Treatment Plans dated January 9 and July 9, 2001?
Is Ms. Driver entitled to expenses of $195 incurred to walk her dogs from January to July 1999, under article 15(5)(l) of the Schedule?
Is Ms. Driver entitled to expenses of $290 for parking incurred in attending medical assessments?
Is Ms. Driver entitled to a special award under subsection 282(10) of the Insurance Act because Traders unreasonably delayed payments?
Is either party entitled to its arbitration expenses?

Result:

Ms. Driver is not entitled to incurred expenses for Vistasp therapy because:

i. Vistasp therapy is not a "good or service of a medical nature" under article 14(2)(h) of the Schedule;

ii. Alternatively, Traders is not liable to pay a medical benefit for Vistasp because it is "experimental" within the meaning of subsection 14(3) of the Schedule;

iii. Alternatively, if Vistasp therapy is not "experimental" within the meaning of subsection 14(3), it is neither necessary nor reasonable as a result of the accident.

Ms. Driver is entitled to medical expenses under section 14 of the Schedule for massage therapy ($65), physiotherapy ($80), hydrotherapy ($185) and pool therapy ($255) as claimed.
Ms. Driver is not entitled to housekeeping or home maintenance expenses under section 22 of the Schedule.
Ms. Driver is entitled to expenses of $1,299.86 for two Tai Chi programmes under article 15(5)(l) of the Schedule.
Ms. Driver is entitled to expenses of $195 incurred to walk her dogs from January to July 1999, under article 15(5)(l) of the Schedule.
Ms. Driver is not entitled to expenses of $290 for parking incurred in attending medical assessments.
Ms. Driver is entitled to a special award of $1,000, inclusive of interest.
If the parties are unable to agree on the issue of arbitration expenses, they may request a resumption of the hearing before me to deal with the matter in accordance with the Dispute Resolution Practice Code (Fourth Edition).

EVIDENCE AND ANALYSIS:

Accident and injuries

Although a great deal of factual and medical evidence was presented in this case, much that is relevant to the issues in arbitration is not in dispute. I accept the facts that follow as accurate.

Ms. Driver, a flight attendant with Canadian Airlines in Toronto, was injured on her way to work when she swerved to avoid a truck. Her Volkswagen convertible flipped over, leaving her suspended upside down by her seatbelt, her neck acutely flexed with her chin on her shoulder and the back of her neck against the pavement.² She was pulled out of the car through the window by passers-by. The ambulance arrived ten minutes later and took her to Toronto East General Hospital. The ambulance and hospital records state that Ms. Driver was "alert, orientated and ambulatory" at the scene, that she suffered no loss of consciousness, amnesia, numbness, tingling or weakness, and that she complained of pain and stiffness in both shoulders and the left side of her neck. X-rays of the cervical spine revealed degenerative changes at the C6-7 vertebrae, but no fractures.

The doctors diagnosed neck and upper back strain and a minor closed head injury. They discharged her the same day on a head injury routine and prescribed painkillers, muscle relaxants and anti-inflammatory medication.

Since the accident Ms. Driver has complained consistently of: pain, swelling and muscle spasms primarily in her neck, head and shoulders; nausea, dizziness, and headaches; and cognitive difficulties such as with word finding, short-term memory, information processing and multi-tasking. Physical exertion and attempts to return to her pre-accident activities exacerbated her symptoms and caused flare-ups and set-backs. Although she has not returned to her job as a flight attendant, and it is unclear if she will be able to do so, she does continue to work at and earn income from her part-time home-based business as a wholesale furniture sales representative.

Ms. Driver attributes her ability to carry on with her business and certain pre-accident activities of daily living to the extensive Vistasp therapy she began receiving on May 28, 1999.

It was not contested that, prior to the accident, Ms. Driver led a full and active life. She combined her flight attendant assignments with her duties as a wholesale furniture sales representative by coinciding her lay-overs with meetings and furniture trade shows in cities where she had clients. I accept that both of Ms. Driver's jobs were physically and mentally demanding. She also led a busy social life and owned two active bull terriers. Ms. Driver's first career had been as a professional dancer with the Royal Winnipeg Ballet for four years, after which she obtained an undergraduate university degree and joined Canadian Airlines. She took pride in maintaining her dancer's exceptional level of physical fitness over the years through hip-hop dance and aerobics classes.

Ms. Driver has undergone numerous assessments and interventions to diagnose and treat her impairments. The consensus of medical opinion to date is best expressed by Dr. P. Max, a psychiatrist who assessed Ms. Driver at Traders' request in August 2002. Dr. Max opined that Ms. Driver suffered an acute flexion, or whiplash, injury to her neck and shoulders in the accident, and that she developed a chronic pain disorder of psychogenic origin as a result. This was made worse by a possible pre-existing personality disorder of histrionic type, which "predisposes her to somatisation and her perceived victimization." Dr. Max felt that Ms. Driver's pain syndrome had become "extremely well entrenched," with no appreciation on her part that her symptoms might be psychogenic. Dr. Max did not rule out a frontal lobe brain injury, but concurred with the majority of medical opinion that chronic pain was the most likely cause of Ms. Driver's complaints of cognitive impairment.

Dr. Max believed that Ms. Driver's perceived cognitive impairment, her emotional liability, explosiveness and diminished stress tolerance rendered her unable to return to either of her two jobs. These characteristics were evident during Ms. Driver's testimony at the hearing, and I accept Dr. Max's thorough and insightful report as accurate.

Even Ms. Driver's own physicians agree there are no objective physical findings to explain her ongoing pain. However, there is absolutely no evidence to suggest that the pain and impairment she suffers are any the less genuine because they originate "in her head."

Ms. Driver argued that hers is a statistically rare case of a whiplash injury that did not respond normally to conventional treatment, and her pain and symptoms were in fact exacerbated by such treatment. She submitted that Vistasp therapy, admittedly unconventional, expensive and time-intensive compared to other types of treatments, was the only therapy of the many she tried which afforded her any pain relief and which allowed her to resume certain of her pre-accident activities. Therefore, she argues, in her unique circumstances, Vistasp is both a necessary and reasonable treatment.

Traders argued that, regardless of Ms. Driver's diagnosis, Vistasp is not a recognised therapy for any of the whiplash, chronic pain, cognitive impairment or psychiatric disorders from which she suffers, and it is neither necessary nor reasonable as a result of the accident. It submitted that the appropriate treatment is the psychological treatment Ms. Driver eventually began and continues to receive.

Entitlement to medical or rehabilitation benefits

Ms. Driver claims her expenses for Vistasp therapy under both sections 14 and 15 of the Schedule, which provide that insurers are required to pay medical and rehabilitation expenses incurred if the insured person suffers an impairment as a result of a motor vehicle accident. For reasons explained more fully below, I did not find Ms. Driver to be entitled to her expenses for Vistasp therapy under section 15, because Vistasp did not meet the definition of a rehabilitative measure.

I also found that Traders was not required to pay for Vistasp therapy because the evidence presented by Ms. Driver did not establish, on a balance of probabilities, that Vistasp meets the criteria set out in section 14. These criteria are that: Vistasp must be either a good or a service of a medical nature; it must not be experimental in nature; it must be necessary as a result of the accident; and it must be reasonable.

Treatment

In support of her position that Vistasp was both necessary and reasonable, Ms. Driver testified that she pursued a number of conventional treatments for her painful condition, without success. I accept her evidence that her neck was so painful and swollen that she was unable to tolerate massage; that cranial sacral massage to promote lymphatic drainage and various modalities to reduce pain and swelling and increase range of motion in her upper body did not work; and that any attempt to introduce active exercise only served to increase her symptoms. As a result, Ms. Driver remained relatively inactive for almost six months after the accident.

On the recommendation of Ms. Driver's physiotherapist, Ms. Driver's family doctor sent her to try hydrotherapy at the HealthWinds The Health and Wellness Spa ("HealthWinds"), where two sessions of underwater massage made her nauseous. She fainted, and her symptoms increased.

Ms. Driver testified that Kailee Kline, a registered massage therapist and owner of HealthWinds, then recommended that she try Vistasp therapy, offered at the spa by Mr. Victor Guard. She began this therapy on May 28, 1999.

Concurrent with her Vistasp therapy, Ms. Driver also sought and received extensive treatment for her cognitive difficulties. From September 20, 2000 to January 31, 2001 she attended the Speech Language Pathology Programme at Riverdale Hospital, where she received assistance with word finding, information processing and multi-tasking, based on a diagnosis of pain disorder and "possible post-concussive sequelae" to the motor vehicle accident. She was discharged to a special cognitive programme at the Baycrest Centre, designed for acquired brain injury (ABI) clients who have completed rehabilitation but continue to experience cognitive difficulties.

Ms. Driver also attended the Wasser Pain Management Centre ("Wasser Centre") at Mount Sinai Hospital beginning in February 2001. Dr. Paul Tumber supervised her progress. In his initial consultation note, he made several recommendations, advising her to increase active exercise to 20 minutes three times a week over a few months, continue Tai Chi exercises, incorporate home stretching exercises into her routine, and consider alternatives such as medication, TENS, intermittent acupuncture, trigger point injections, biofeedback and self-hypnosis.

On August 23, 2001, Ms. Driver was admitted to the ABI Programme at the Toronto Community Care Access Centre ("CCAC"), which provided her with strategies to manage pain, improve memory and information processing, better manage multi-tasking and increase her social involvement.³ Their report notes that "for the past two years Ms. Driver has been committed to two sessions per week of Vistasp, a combination of chiropractic, physiotherapy and massage therapy." A November 2001 Progress Note mentioned Ms. Driver's continuing organisational difficulties, and suggested she continue with the Wasser Centre programme.⁴ CCAC continues to assist Ms. Driver in organising and managing her furniture business.

Vistasp therapy

Ms. Driver claims her expenses for 265 Vistasp therapy sessions between May 28, 1999 and September 16, 2002. For a period of over two years between July 1999 and October 2001, she attended on average two to three "long sessions" per week, at a cost of $500 per session. From November 2001 to September 2002, she attended "short sessions" on average once a week, with a few exceptions, at a cost of $175 per session.⁵

I heard evidence about the nature of Vistasp therapy from Ms. Driver, Kailee Kline, Victor Guard and Dr. Susan Goldstein, Ms. Driver's family doctor. Dr. Ronald MacDonald, a neurologist, prepared a report and testified on behalf of the Insurer. I also reviewed the medical evidence filed and literature from the HealthWinds spa.

I concluded from the evidence before me that Vistasp therapy is a form of hands-on body therapy similar to massage, unique to Victor Guard; that it is a passive modality of treatment; that it is not very well understood by the three, or possibly four, health practitioners who have even heard of it; and that it is not a form of treatment known or accepted by any recognised body in the health field. As no objective, reliable evidence was presented at the hearing to establish an accepted scientific or medical basis for the therapy, or to substantiate the claims made for it that it is an effective, safe treatment for whiplash, chronic pain, migraine or fibromyalgia, I am not persuaded that it even meets the first, or threshold criterion, under section 14 of the Schedule, that it is a "good or service of a medical nature."

My reasons are set out below.

Testimony of Ms. Driver

Ms. Driver likened Vistasp therapy to conventional massage, but stated that unlike massage, where a therapist applies pressure to the smooth muscles to relax them, Vistasp consisted of rapid movements from one nerve point to another, similar to shiatsu massage or acupuncture, but using the palm of the hand. She emphasized that it had a better effect on her than any other type of massage or physiotherapy she had received.

Ms. Driver testified that Kailee Kline described Vistasp to her as a fast and aggressive form of massage that would increase circulation and keep muscle tone. There were two types of sessions, a short one that lasted an hour and focussed on the head, neck and shoulders, and a longer session of three to five hours' duration. The short sessions cost $175, the long sessions $500, regardless of how long they actually lasted. Ms. Driver testified that in her case, especially in the beginning, or after flare-ups brought about by DAC assessments or attempts to return to work,⁶the long sessions could last up to seven hours.

Ms. Driver described the sessions. In the short session, she sat in a chair while Mr. Guard stood behind her and loosened her shoulder muscles by pulling up on them with movements too fast to describe. Mr. Guard also worked the mid-back, the arms and hands, and the neck, head, and face muscles, to prevent jaw pain and spasms in the face. She believed that because of this, she had never had spasms in her face. He also massaged the skull, abdomen and chest.

The longer session was a full body treatment, which included the same head, neck and shoulder treatment as the shorter session, but started with Ms. Driver lying on her stomach, while Mr. Guard applied rapid and sliding movements to both sides of her upper back and hips. Ms. Driver described the treatment as very energizing, and that, at the end, Mr. Guard would use an oil that he prepared himself, to "simmer down the work that he did." She believed the oil contained painkilling herbs. She testified that the treatment also included the front and back of the legs, the stomach, chest and arms.

Ms. Driver stated that Mr. Guard would go over and over a spot "until he got it where he wanted it," sometimes five or six times.

Ms. Driver testified that Mr. Guard also advised her about changing her "pre-accident skill set of moving," because he felt that her activities were undoing the work that he had done. She stated he would help her reorganise how she did things and give her chores to do. She did not testify that the Vistasp sessions themselves included any active stretching or strengthening exercises. Apart from Tai Chi exercises, Mr. Guard did not recommend exercises.

Ms. Driver testified that Mr. Guard was able to relieve a great deal of her pain from the outset and that she was almost pain free after ten months of Vistasp. She felt that it enabled her to participate in the Wasser Centre's programme and continue with Tai Chi, a form of exercise that improves mental and physical function without the body stress of the aerobic and hip-hop dance classes she took before the accident.

Testimony of Victor Guard

Victor Guard testified that he was born in Bombay, where he entered a "wellness temple" at the age of nine. There he studied with eight "healing masters" for six or seven years, after which he completed three years of a four-year general arts degree at a Bombay university before immigrating to Canada around 1980. He testified that each of the masters at the temple specialized in the study and hands-on healing of a particular area of the body, for example, the muscles, internal organs, and nerves. He stated that he invented his form of therapy by combining the knowledge of these masters into one hands-on therapy, which he named after himself, Vistasp being his given Indian name. Mr. Guard did not explain whether the learning and disciplines of the masters were unique to the temple, or if they formed part of any body of knowledge or belief system known, practised, or recognised elsewhere in India or beyond. He stated that the temple was not a religious temple.

Mr. Guard owns preferred shares in the HealthWinds spa and turns over a percentage of the $175 and $500 fees charged for Vistasp therapy sessions to Ms. Kline. He claimed to neither know nor care about these details, or how much money he made. He also has private clients.

When asked to describe his therapy, Mr. Guard stated that in the 50 years he had been on this earth, no one could describe what he did. He stated it was a neuromuscular treatment that "went a lot by feel," and that he applied whatever technique he felt was necessary at a particular instant in time, because the body changes daily. He palpates the nerve endings of the ligaments at the joints relying on his knowledge and experience. His goal is to warm the palpated area, which means that he has loosened the structure and brought blood to it, in turn oxygenating the tissues and removing waste. This is what promotes healing.

Mr. Guard vehemently denied that his therapy is a form of massage, stating "I am not a massage therapist, I am a body therapist," although he acknowledged that others who had heard of the therapy seemed to have formed the impression that it was a type of massage and referred to it as such.⁷

Mr. Guard has no professional degree or qualifications, nor is he a Registered Massage Therapist licensed to practise massage therapy under the Massage Therapy Act, 1991.⁸ He is not a member of any professional association.

A matter of some controversy at the hearing was Mr. Guard's claim that Ms. Driver had scar tissue, or dead muscle, in her muscles all over her body as a result of the motor vehicle accident. He said he knew this because a body with scar tissue is sensitive to the touch, and at first Ms. Driver could not tolerate being touched. He stated that in such cases, blood flow had to be very slowly and gradually returned to the damaged areas, and that his therapy broke down and removed the scar tissue. He maintained that this could be done even six months after an injury such as a motor vehicle accident, which is when he first saw Ms. Driver.

Mr. Guard conceded that scar tissue might not be the appropriate English term for what he was attempting to describe, but according to the dictionary, it seemed the closest term to describe the distorted, lumpy "dead muscle," which he could feel with his hands.⁹

Mr. Guard stated he measured his results by way of his clients' subjective reports of better sleep, strength and focus. He stated that in Ms. Driver's case, he was successful where others had failed, and that within six months of starting his therapy, she was almost pain free. Kailee Kline endorsed this opinion. Mr. Guard further insisted that he alone was responsible for a client's improvement, regardless of what other treatments or interventions a client might be undergoing at the same time.

Mr. Guard's inability or unwillingness to provide details about his training and experience, his fixed beliefs about his therapy, his insistence that it be evaluated solely on its purported success as reported to him by his patients, and the self-serving nature of his testimony did not make him a credible witness. Except for Ms. Kline – who took Mr. Guard's explanations at his word, and whose evidence I did not find credible – I was provided with no evidence supporting Mr. Guard's unusual theories about scar tissue and healing or his belief that Vistasp therapy was effective and superior to conventional therapies for a variety of ailments, including whiplash and chronic pain. As Mr. Guard is university-educated and speaks excellent English, I do not accept that any eccentricities or potential inaccuracies in his testimony were due to language difficulties.

Testimony of Dr. Susan Goldstein

Dr. Goldstein testified at Traders' request for the purpose of cross-examination. She confirmed that in May 1999, five months post-accident, Ms. Driver continued to have severe pain and whiplash that had not responded to treatment. Dr. Goldstein stated that Ms. Driver proposed Vistasp to her as a secondary form of therapy, after obtaining relief in a single session. Dr. Goldstein met with Mr. Guard for five to ten minutes in the spring of 1999 when he dropped by her office to explain his therapy. She testified that it seemed reasonable to her that Ms. Driver try Vistasp therapy.

Although Dr. Goldstein, as Ms. Driver's family physician, cannot be faulted for recommending a treatment requested by her patient when previous treatments appeared unsuccessful, it was clear from her evidence that she went along with Ms. Driver's request with little informed knowledge about the nature of Vistasp therapy or the requirements of the Schedule, and that she based her opinion that the treatment was of benefit largely on Ms. Driver's subjective accounts of improvement as well as the reports of Mr. Guard, Ms. Kline, and Dr. Kekosz, which I find were similarly subjectively based.

Dr. Goldstein signed, but did not fill out, the many Treatment Plans for Vistasp therapy submitted to Traders. These were completed in full by Kailee Kline, including the sections that list Ms. Driver's diagnoses as "neck whiplash gr. II, cognitive impairment and back strain," and which describe Vistasp as the proposed treatment for these conditions.

Dr. Goldstein testified that she understood Vistasp to include stretching manoeuvres and exercise; however, I heard no evidence from Mr. Guard, Ms. Driver or any other witness that Vistasp therapy sessions involved any active stretching or exercise components.

Dr. Goldstein testified that she understood Mr. Guard to be a "physical therapist" who performed a combination of deep massage and rapid hand movements to promote circulation, healing and scar tissue reduction. She was unable to say if this theory of healing would still apply seven months after the initial injury. When asked if several months of inactivity, such as in Ms. Driver's case, could cause scar tissue to form in the muscles of the body (as opposed to trauma), Dr. Goldstein responded that prolonged inactivity caused muscles to shorten, and that physiotherapy would be needed to lengthen and mobilize them. She stated she did not know if "shortening" was equivalent to "scarring," or how to measure scar tissue.

Other than to confirm that most massage therapy claims to work by promoting lymphatic drainage, Dr. Goldstein declined to answer specific questions about massage, stating that the specifics of treatment modalities are not taught in medical school and she is not an expert in that area. In defence of Vistasp therapy, she stated there are many effective treatments known to medical science, even though no one knows how or why they work. Dr. Goldstein testified that the College of Physicians and Surgeons now recognises a category of "complementary medicine" for new and different methods of treatment such as acupuncture, herbal remedies and homeopathy, which are becoming mainstream for certain ailments. Neither she nor any other witness testified about how the College determines what is included in the category of "complementary medicine," what standards of safety or effectiveness apply, or what requirements, if any, the College imposes on physicians prescribing complementary therapies.

Dr. Goldstein testified that she was not aware of any research, studies or writings about Vistasp, or whether it was practised by anyone other than Mr. Guard. In any event, it was not her practice to research the effectiveness of particular therapies or how they worked, or the qualifications of therapists, and she knew no more about Mr. Guard's qualifications than she would for any other physiotherapist. She stated that of the approximately 3,000 patients she has seen over the years, she has referred only one other to Mr. Guard, a woman who suffered five different injuries in five separate motor vehicle accidents, and who was back to normal function after Vistasp therapy. I heard no evidence about the number, duration or frequency of this patient's Vistasp sessions.

Dr. Goldstein based her opinion that Ms. Driver was slowly improving on the subjective accounts of her patient, who attributed her improvement to Vistasp therapy. Dr. Goldstein testified that she did not independently verify improvement. She did not, for example, measure range of motion. She also relied on the reports of Ms. Kline, Mr. Guard and Dr. Kekosz, all of whom I find recorded improvement based largely on Ms. Driver's subjective reports.

Dr. Goldstein provided no opinion about the frequency, duration or cost of Ms. Driver's course of Vistasp therapy.

For all of these reasons, I place little weight on Dr. Goldstein's evidence with respect to the issue of whether Vistasp was an accepted, necessary or reasonable form of therapy for Ms. Driver's condition.

Testimony of Kailee Kline

Kailee Kline, owner and operator of the HealthWinds spa and a Registered Massage Therapist since 1978, testified that she first met Mr. Guard when she was a Director at the short-lived King Ranch spa in 1990. Mr. Guard introduced himself to her and offered to demonstrate his therapy, which he said involved promoting healthy blood flow through scar tissue. She tried one full (long) treatment session, was very impressed, and obtained references from satisfied clients of his. On that basis, she hired him to deliver Vistasp therapy at King Ranch, and has employed him at her own spa since it opened in 1993.

Much of Ms. Kline's evidence was directed to establishing that she operated a reputable health-oriented spa (as opposed to spas that provide only aesthetic services), and that she exercised due diligence in hiring and supervising Mr. Guard.¹⁰ I did not find this evidence relevant to the question of whether Vistasp met the statutory criteria under section 14 of the Schedule.

I gave little weight to Ms. Kline's opinion as a professional licensed massage therapist that Vistasp was an effective therapy for victims of motor vehicle accidents, whiplash, fibromyalgia and chronic pain, as this was based solely on what Mr. Guard told her, her personal experience with one session, client testimonials and her own observations. She stated that a rheumatologist, who assessed a twelve-week programme of Vistasp therapy for one of his patients, concluded it was effective, and had written an article, but she did not provide the rheumatologist's name or the article, and no other witness at the hearing had heard of either.

Ms. Kline conceded on cross-examination that she could not form a reasonable professional opinion as a massage therapist about the benefits of a particular treatment without research. She agreed that one purpose of research in the health professions is to advance a new form of treatment "from theory to certainty," meaning to test it for results, including effectiveness, side-effects or contraindications. She agreed with the proposition that communication between collaborators, publication of results, peer review, and repetition and verification of investigations by others, were key elements of research in the health sciences. She agreed that conventional massage therapy and acupuncture were examples of therapies that have been researched and recognised as treatments for certain conditions for quite some time. In light of these admissions, I did not find Ms. Kline's testimony to be credible, and I do not accept her opinion that anecdotal evidence and an unknown study by an unnamed rheumatologist constitute research.

In addition, the fact that Ms. Kline clearly subscribed to Mr. Guard's theory that his treatment helped to break up scar tissue in Ms. Driver's neck, a theory not substantiated by any medical evidence at the hearing, and discounted by other medical experts, did nothing to enhance her credibility.¹¹

Ms. Kline's statement that Vistasp requires a tremendous knowledge base and is so labour intensive and physically demanding to deliver that no one in this country would try to learn and practise it speaks for itself on the issue of whether the treatment is reasonable.

HealthWinds literature

The HealthWinds brochure, a booklet which describes the services offered at the spa, lists the Vistasp Therapy Method as a

very focused body therapy treatment intended for relief from acute and chronic pain. Precise movements are applied to specific nerve endings related to the problem areas. This treatment stimulates circulation, improves joint mobility, muscular flexibility and decreases pain. Highly effective in the treatment of conditions such as migraine headaches, whiplash and fibromyalgia.

The brochure lists Vistasp as the third of five therapies under the heading "Body Care." The other four items listed are massage therapy, sports massage therapy, aromatherapy massage, and reflexology, described as "a deeply relaxing acupressure massage that applies pressure to specific points in the feet and hands."

The very last paragraph on the last page of the booklet states: "All massage therapists employed by HealthWinds are registered with the College of Massage Therapists of Ontario."

I find the combined statements to be misleading, and that the brochure promotes Vistasp as a form of therapeutic massage without directly saying so. A reasonable consumer carefully reading the whole brochure could be forgiven for forming the impression that Vistasp is a form of massage performed by a certified massage therapist. The claims made for it — that Vistasp is effective for treating specific medical conditions — further add to that impression. This brochure reflects the opinions expressed by Mr. Guard and Ms. Kline. In my view, it reinforces the impression left by their evidence, that it is in their own self-interest to persuade health practitioners and private insurance plans that Vistasp is a service of a medical nature.

Traders' medical evidence

Dr. Ronald MacDonald testified as an expert neurologist on behalf of the Insurer. As did other neurologists who examined Ms. Driver, he found no objective evidence of neurological damage, and considered her small disc herniation at C6-C7 without clinical significance, as there was no evidence that it was pressing on nerves. He found no evidence that she had scar tissue in her neck. He testified that scar tissue does not develop in the presence of a relatively minor soft tissue injury, or after a period of inactivity. He stated that the arteries in Ms. Driver's neck could not possibly be compressed by a muscle spasm in her neck, a claim made by Mr. Guard, because the arteries are encased in bony structures. He found Mr. Guard's statement to be "not credible."

Dr. MacDonald also testified that many new treatments in medicine arise out of anecdotal evidence, citing as an example the use of botox for chronic muscle tension headaches. However, he emphasised that one cannot base a therapy on anecdotal evidence, and that a particular treatment becomes accepted only after research, clinical trials, and publication in medical journals.

As the only genuine medical expert able to directly answer specific questions about scar tissue at the hearing or to provide direct evidence from a medical perspective about the standard of research required in medicine before new treatments become accepted, I prefer Dr. MacDonald's evidence over that of Mr. Guard, Ms. Kline or Dr. Goldstein.

Traders also relied on a report prepared by Dr. B.K. Kim, a physiatrist who examined Ms. Driver at Traders' request on August 23, 2002 and conducted an extensive review of documents, reports and assessments.¹² In answer to specific questions from Traders, Dr. Kim stated in his report that he had never encountered such a method as Vistasp in his entire career practise in physical medicine and rehabilitation, and was unable to unearth a single article on Vistasp in his literature search. He concluded from the HealthWinds literature that the therapy was solely a physical manipulation of the body and stated that, to his knowledge, it was not an accepted medical or rehabilitation procedure. He opined that the duration and cost of the treatment were far in excess of any standard of rehabilitation treatment of any health discipline, that the treatment was not reasonable, and that the progress notes provided by Ms. Kline and Mr. Guard revealed a lack of objective parameters or justification for continuing the treatment. I agree with this opinion, based on my review of Mr. Guard's notes and reports contained in the HealthWinds case history records. The content of these documents shows little change over two years; the reports simply record Ms. Driver's subjective reports and state repeatedly that she is slowly improving, with no indication of when, if ever, the therapy might be expected to end.

References to Vistasp therapy in the medical evidence

References to Vistasp in the medical evidence confirm that physicians who examined or treated Ms. Driver were under the impression that it was a form of massage. Dr. V. Kekosz, her treating physiatrist, called it "an aggressive massage therapy program, which has alleviated a great deal of her muscle tightness and her headaches, and dizziness." Dr. Kekosz considered the thrice weekly treatments "extremely beneficial" and recommended Ms. Driver continue her "present therapy regime" as it improved her overall mobility and strength. In July 1999, she noted that her patient was to gradually start active exercise under Mr. Guard's guidance.¹³

By October 1999, according to Dr. Kekosz, Ms. Driver was still not ready for an active exercise programme, purportedly due to a relapse caused by a DAC assessment. Dr. Kekosz encouraged her to continue with her "massage treatments" as they improved her overall mobility and pain. She further recommended that Ms. Driver should have no more DACs due to her extreme sensitivity to any form of passive mobilization of her head and neck.¹⁴

There is no evidence that Dr. Kekosz was aware that, at least twice a week, the Vistasp therapy sessions lasted five hours or more, and she provided no opinion about the reasonableness of the treatment in terms of frequency, duration or cost.

The law

As stated above, Ms. Driver claims her expenses for Vistasp therapy under both sections 14 and 15 of the Schedule. To be entitled to these expenses, Ms. Driver must establish that they meet the statutory criteria. I will deal first with section 14.

Entitlement to medical benefits: Section 14

Subsection 14(2) specifies that the insurer must pay for "all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech-language pathology services;

(b) chiropractic, psychological, occupational therapy and physiotherapy services;

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

Subsection 14(3) states that the insurer is not liable to pay for "goods or services that are experimental in nature."

The criteria are clear. Vistasp must be either a good or a service of a medical nature; it must not be experimental in nature; it must be necessary as a result of the accident; and it must be reasonable. Insurers are not required to pay for therapy or treatments that do not meet these criteria.

Ms. Driver bears the onus of establishing, on a balance of probabilities, that the first, third and fourth criteria are met. For the reasons set out below, I did not find that Ms. Driver met this onus.

With respect to whether or not a particular therapy is experimental in nature, I agree with Ms. Driver that, as this claim is asserted by Traders, it has the onus to establish that proposition. This is an evidentiary onus, however. Once the Insurer has presented sufficient evidence to establish that the treatment is prima facie experimental, the onus shifts to Ms. Driver to show that it is not. Although I found that Ms. Driver failed to establish that Vistasp was a service of a medical nature for the purposes of section 14, in the event my finding is in error, I find that Traders presented sufficient prima facie evidence that Vistasp was experimental in nature, which Ms. Driver's evidence did not rebut.

General principles

Little of the extensive medical evidence presented by the parties was of direct assistance in determining whether Vistasp was a good or service of a medical nature, experimental, necessary or reasonable. Consequently, in order to properly evaluate the evidence presented by the parties to determine whether Vistasp therapy meets the statutory criteria, I found it necessary to first examine the plain meaning of the words in the statute, to see if they indicate what principles should be used to interpret and apply these criteria.

The key terms are "goods and services of a medical nature" and "experimental." Although the meanings of these words may seem at first glance too obvious to require further scrutiny, a trip to the dictionary quickly reveals that these terms embody principles underlying our assumptions about health care that are so fundamental we tend to take them for granted. I found this to be the case at the hearing.

The first word to consider, "medical," is defined in the Concise Oxford Dictionary (8^th Edition 1990) as "of or relating to the science of medicine in general." "Medicine" is defined as the "science or practice of the diagnosis, treatment, and prevention of disease . . ."

The key word here is "science," defined in the same dictionary as "a branch of knowledge conducted on objective principles involving the systematized observation of and experiment with phenomena, esp. concerned with the material and functions of the physical universe."

Although medical practitioners would be the first to agree that the diagnosis and treatment of disease or injury can be a matter of considerable art, there surely can be no dispute that medicine, at least Western medicine, is based first and foremost on scientific principles. The dictionary definition of "scientific" articulates these principles:

1a (of an investigation, etc.) according to rules laid down in exact science for performing observations and testing the soundness of conclusions. b systematic, accurate.

This, in a nutshell, defines the scientific method, which brings us to the second key word in section 14 that concerns us, "experimental," defined in the same dictionary as:

based on or making use of experiment. 2 a used in experiments. b serving or resulting from (esp. incomplete) experiment; tentative, provisional. 3 based on experience, not on authority or conjecture.

"Experiment" is variously defined as:

A procedure adopted on the chance of its succeeding, for testing a hypothesis etc., or to demonstrate a known fact. 2. (foll. by of) a test or trial of... (Concise Oxford Dictionary, 8^th Edition 1990));

A trial or special test or observation made to confirm or disprove something doubtful. The process of testing. (Black's Law Dictionary, 6^th Edition);

A procedure done in order to discover or to demonstrate some fact or general truth. (Dorland's Illustrated Medical Dictionary, 1994)

I find that the principles conveyed in these definitions are implicit in the terms "goods or services of a medical nature" and "experimental in nature," and that the legislature imported these principles into the statute when it chose to use those terms. These basic scientific principles, therefore, form the criteria by which one must determine whether a particular therapy qualifies as a good or service of a medical nature, or is excluded as experimental, for the purpose of the Schedule. These principles also necessarily figure in the interpretation of whether treatments are reasonable or necessary.

Witnesses for both sides at the hearing agreed on the basic proposition that performing observations and testing the soundness of conclusions through experiment constitute scientific research into the effectiveness of treatments or therapies for various medical conditions.

What they failed to agree on, probably because they simply had not given it much thought, was what standard of research, conducted by who, would satisfy the criteria in section 14 of the Schedule, that a therapy must be: a) a good or service of a medical nature; b) not experimental; c) necessary as a result of the accident; and, d) reasonable.

Traders argued that it was not required to pay for Vistasp therapy because it was an unproven therapy that had not been subjected to research in the form normally accepted in the medical community, that is, by way of independent studies to verify claims, such as case studies or clinical trials; publication of results; and peer review.

Ms. Driver submitted that if I accepted Traders' argument, then I would be importing into the statute a set of criteria and scientific standards that it simply does not contain. I reject this argument for the reasons stated above, i.e., that by their plain meaning the words medical and experimental incorporate the basic principles of scientific research into the Schedule.

For the purpose of determining whether a particular therapy is a good or service of a medical nature within the meaning of section 14, I find that the minimum requirements are: credible evidence of independent research in the form of case studies or clinical trials to verify claims, conducted by health practitioners with recognised qualifications in the relevant field, published results, and peer review.

I do agree, however, that the use of the qualifier "nature," as in the phrases "goods or services of a medical nature" and "experimental in nature," does allow for a somewhat broader and more flexible interpretation of the terms "medical" and "experimental."¹⁵

The question of course is, how broad.

I do not accept that Vistasp is a good or therapy of a medical nature on the basis of the evidence presented at this hearing, which amounts to this: that the only practitioner known to exist and whose qualifications cannot be evaluated uses the therapy to treat certain identifiable medical conditions; that he believes his therapy works and says his clients tell him it works; that his employer believes it works for the same reasons, and that the Applicant, a vulnerable individual who suffers from psychogenic chronic pain and, possibly, a psychological disorder involving issues of dependency and somatisation of complaints, believes it works. Furthermore, as stated above, medical witnesses who had heard of Vistasp and supported Ms. Driver in pursuing it, knew very little about it, and nothing about the training and qualifications of Mr. Guard.

In my view, this evidence is insufficient to bring Vistasp therapy within even the very broadest possible definition of a good or service of a medical nature.

A purported treatment based on anecdote, hearsay and incomplete information alone is a long way from qualifying as a good or service of a medical nature under the Schedule. On that basis, any purported therapy at all, no matter how outlandish, would qualify, and insurers would be required to pay. Given the other many safeguards in legislation governing the health professions, (including the Massage Therapy Act and in the Schedule itself) regarding treatment providers¹⁶designed to protect both consumers and insurance companies, and the provisions intended to provide a cost-effective and efficient accident benefits scheme, I do not believe the legislature intended section 14 to include a therapy for which there is no evidence based on minimal scientific or medical principles that it is an accepted, effective or even safe treatment for any medical condition including injuries arising out of motor vehicle accidents or chronic pain. So liberal an interpretation is incompatible with the purposes of the Schedule.

In arriving at this conclusion I am mindful of arbitration decisions under previous Schedules that uphold the general principle that insurers should not be exempted from paying for particular therapies simply because the therapies are unusual or unconventional.¹⁷ I agree with this general principle but find that these cases are distinguishable from Ms. Driver's because, with the exception of Roberts, the question of whether a therapy met the threshold criteria of being a good or service of a medical nature was not in question.

In Caruso, for example, Arbitrator Makepeace rejected as too broad a definition of "experimental" that was based on whether medical experts disagreed about the therapeutic value of a therapy. She held such a broad interpretation of "experimental" would give insurers an absolute right to refuse payment of medical benefits, and that this was not the intention of the legislature, as such a broad interpretation "could apply to many treatment modalities for which insurers currently pay benefits." I note that in Caruso, unlike the case before me, the treatment in question, the Kenko Sleep System, was accepted as meeting the threshold criteria of being a good of a medical nature and there was ample evidence over which experts could disagree. In the case before me, the Applicant presented no credible expert medical evidence on that issue.

As I have found that Vistasp therapy is not a good or service of a medical nature within the meaning of section 14, it is not necessary for me to decide if it is experimental in nature, or whether it was reasonable or necessary. I find that Vistasp has not even reached the stage of being experimental, because I was provided with no reliable evidence that it had been subjected to anything that resembled tests, clinical trials or even case studies, by anyone with any recognised qualifications in the health or rehabilitation field.

" Experimental," in my view, belongs on a continuum which might look something like this: "completely unknown, known to a few, experimental (in the process of being tried and tested), recognised as effective by the wider health community, accepted as a therapy for identified conditions). Although it might be argued, at a stretch, that Mr. Guard was in fact "experimenting" on each of his patients, and their reports of results constituted "research" in the loosest possible sense, I would not accept the subjective, unverifiable anecdotal evidence presented at the hearing as meeting even the broadest possible definition suggested by the term "experimental in nature."

However, in the event that I am wrong in my finding that Vistasp is not a good or service of a medical nature, or if my interpretation of "experimental" is found to be too narrow, I would find in the alternative that Vistasp is experimental in nature, on the basis of the decision of Arbitrator Allen in Palmer and State Farm Automobile Insurance Company (FSCO A00-001286, December 20, 2001), on the basis of the reasoning in that case, that a treatment is considered to be experimental for a specific condition, although it may be a conventional treatment for other conditions, where there is expert medical evidence that research results to date are not conclusive, ". . . and no convincing evidence currently exists on the usefulness of the treatment for the conditions claimed." In using expert medical evidence about research results to determine whether a treatment is experimental, Arbitrator Allen adopted an objective definition, which is consistent with my finding that the legislature intended to incorporate basic scientific principles into section 14. A subjective definition of experimental would not be consistent with these principles.

I was presented with no convincing evidence in this case that Vistasp is useful for psychogenic chronic pain, the condition from which I have found that Ms. Driver suffers. As noted, after an initial period of inactivity and unhelpful treatment, Ms. Driver received considerable conventional therapeutic assistance and support for her pain and cognitive symptoms concurrently with her Vistasp sessions, from ABI organisations, social workers, the Wasser Centre, and, eventually, psychological therapy. Apart from her insistence, and that of Mr. Guard and Ms. Kline, that her improvement was due to Vistasp, there is no convincing objective evidence that it is effective for chronic pain. The fact that it may have worked for her would not be sufficient to remove it from the category of experimental as defined in Palmer.

Reasonable and necessary

In the event that my findings, that Vistasp is not a good or service of a medical nature, or, if it is, that it is experimental, are wrong, I find that the therapy is neither reasonable nor necessary.

I accept the definition of reasonableness set out by Arbitrator Rotter in Plows and Jevco Insurance Company (OIC A-000175, A-000588, January 16, 1992) as "within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair."

A number of arbitration decisions at FSCO have identified factors that arbitrators should consider in determining reasonableness. These include the subjective benefit to the applicant, pain relief, the frequency, cost and duration of treatment, whether statutory treatment goals are met, market availability, professional fees, whether treatment complied with accepted professional protocols, and whether the treatment encouraged indefinite or inappropriate dependency or interfered with other aspects of rehabilitation.¹⁸ The test of reasonableness is one that combines both subjective and objective elements and requires a balancing of the various factors to determine if, overall and considering all of the relevant evidence, a particular therapy or treatment is reasonable in any case given.

Overall, I find that Vistasp does not meet the test of reasonableness outlined above. I accept Ms. Driver's testimony that Vistasp provided pain relief and her subjective belief that her physical and mental function improved as a result. Pain relief, even temporary relief, is a legitimate goal of therapy. This, however, is only one factor. I find in this case that it is outweighed by other factors.

First, it is a passive treatment that has not been established as effective for psychogenic chronic pain or to increase function. Although Ms. Driver and her treating practitioners claim, based on her subjective reports, that it was effective for both in her case, I find that, in light of the considerable concurrent conventional therapies pursued by Ms. Driver, such as cognitive therapies, a multi-faceted pain management programme, psychotherapy, and Tai Chi, a form of active exercise Ms. Driver could tolerate, it is difficult to conclude that her reduced pain and increased function was due solely to, or even in large part to, Vistasp.

Second, the frequency, cost and duration of Vistasp are far in excess of what can be expected for a passive therapy, according to Dr. Kim, whose opinion I prefer over the evidence of Ms. Driver's witnesses. I found the testimony of Ms. Kline and Mr. Guard to be self-serving and neither credible nor objective, and, as noted, the evidence of Drs. Goldstein and Kekosz offered no informed opinion about cost, duration and frequency. Although Ms. Kline maintained that the hourly rate was no more than for massage, I was not provided with evidence that conventional massage sessions last up to seven hours at a stretch, or if they did, that they would be as frequent as twice a week, or that this would be beneficial. I further find that the frequency and duration of the therapy were excessive given Ms. Driver's concurrent therapies.

Third, Dr. Keith Nicholson, a neuropsychologist who examined Ms. Driver and prepared a report dated June 1999, identified her strong dependency needs and a tendency to somatise psychological complaints. Dr. Max identified the same concerns. Dr. Goldstein, too, was concerned about Ms. Driver's "perception of the 'sick role'"¹⁹ Given this evidence, and Ms. Driver's testimony that "Victor was a take-charge kind of person" and that she relied unquestioningly on Mr. Guard and his advice on many aspects of her life, including disposing of her dogs and changing her vehicle from standard to automatic, and the considerable amount of time she spent in weekly Vistasp therapy, I find that the Vistasp therapy fostered a dependency out of proportion to its therapeutic value. This is not reasonable. I find there is ample reason to conclude that the therapy encouraged an inappropriate dependency in a vulnerable individual that influenced the frequency and duration of the treatment. Furthermore, as noted previously, treatment provider notes and reports varied little over the two years, claiming slow and gradual improvement with a continuing need for treatment, which suggests indefinite duration.

Ms. Driver testified that she believed so strongly in Vistasp therapy that she re-mortgaged her home, used up her savings and an inheritance, and cashed in her RRSPs to pay for it. I assume this evidence was presented to support her claim that the treatment was necessary, in her unique circumstances and so, therefore, it was reasonable. However, in light of her complaints of cognitive impairment during the period she underwent therapy, and the consensus of psychiatric and psychological opinion that Ms. Driver was a vulnerable individual who lacked insight into her difficulties, I find this evidence tends rather to establish the unreasonableness of Vistasp therapy in her particular circumstances, and to outweigh the subjective benefit to her.

Finally, there is Ms. Kline's statement, noted previously, that Vistasp requires a tremendous knowledge base and is so labour intensive and physically demanding to deliver that no one in this country would try to learn and practise it. This does not correspond to the definition of what is reasonable, as articulated in Plows above. Whether or not Vistasp was necessary as a result of the accident, and even accepting Ms. Driver as a thin-skull victim whose reaction to the accident was rare and unusual, I do not consider Vistasp to be reasonable within the meaning of the Schedule.

SPECIAL AWARD

Ms. Driver claims a special award, under section 282(10) of the Insurance Act, which provides that an arbitrator may award a special award if he or she finds that an insurer unreasonably withheld or delayed payments to an insured person.

Ms. Driver concedes that it was reasonable for Traders to be suspicious of a claim that did not subside after four or five months, but submits that its refusal to pay for Vistasp therapy was not reasoned but was programmed and dogmatic – in other words, that Traders went "by the book" in rejecting the Treatment Plans she submitted "out of hand," and by commissioning IEs and DAC assessments on the assumption that she suffered a whiplash injury, without regard to her actual condition. Ms. Driver further submits that Traders acted unreasonably in that it failed to inquire about or investigate her condition; it ignored the recommendations of her treating practitioners; it failed to inquire into the nature, character and quality of Vistasp therapy; it never at any time revised its initial decision, and it simply relied on the absence of an orthopaedic and neurological explanation to deny treatment. This, Ms. Driver argues, amounts to an objective, "one-size- fits- all" standard of treatment that is contrary to the intention of the Schedule, and unreasonable.

Although I do not entirely agree with this characterisation of the Insurer's actions, I do find some of its conduct towards Ms. Driver to be questionable. As no witness from Traders testified to explain the thinking behind its decisions, I have only the documentary evidence to rely on.

It is not clear whether Traders understood what Vistasp therapy was when it refused the first Treatment Plan, submitted May 26, 1999. This Treatment Plan also included hydrotherapy and "rehabilitative exercise." By letter dated June 28, 1999, Traders approved the Treatment Plan for hydrotherapy, at a cost not to exceed $2,500 only.²⁰ As $2,500 is the total cost of all the proposed treatment, including Vistasp, it is difficult to say whether this was an informed decision to pay for Vistasp or not.

In a second letter dated the same day, Traders notified Ms. Driver that it intended to terminate her IRBs on the basis of a May 28, 1999 Disability DAC assessment report by Dr. Hugh Cameron, an orthopaedic surgeon. Although not asked to do so, Dr. Cameron commented that the passive treatment Ms. Driver had received "to date" was ineffectual and that no further treatment was reasonable or necessary. On the basis of that comment, Traders' letter advised that it would accept no further treatments at HealthWinds or any other treatment facility, although it agreed to honour the May 26, 1999 Treatment Plan.²¹

Traders' letter concludes:

I have also enclosed a copy of the IE report prepared by Dr. Keith Nicholson [a neuropsychologist] on June 1, 1999. Dr. Nicholson states that "She might benefit from brief intervention to facilitate effective use of compensatory strategies for cognitive problems." It is recommended that you provide your family doctor with this report and discuss the availability of psychological intervention.

The letter encloses an Application for Mediation should Ms. Driver dispute the decision to discontinue benefits.

I find that it would not be reasonable for Traders to deny treatment based on the opinion of Dr. Cameron alone, as he was not specifically asked to comment on treatment at all, and his comments about previous ineffective, passive treatment clearly did not refer to Vistasp therapy. Furthermore, I find that Dr. Cameron based his opinion that treatment up to that time was inappropriate largely on the April 1999 IE report of Dr. Reuven Lexier, another orthopaedic surgeon, as well as his own belief (shared by Dr. Lexier), that passive forms of treatment were "worthless." I find this to be a somewhat rigid view, not supported in Dr. Cameron's case. Dr. Lexier's report pre-dated Ms. Driver's first Vistasp treatment and it is clear his opinion applied to the passive physiotherapy and massage she received prior to Vistasp, which even Ms. Driver agreed did her no good at the time.

However, Traders did not rely exclusively on Dr. Cameron's opinion, but also on that of Dr. Nicholson. Although Dr. Nicholson accepted Ms. Driver's pain as legitimate, and identified it as the primary cause of her cognitive difficulties, he felt her reaction to the accident was partly dependent on pre-existing personality and psychosocial issues. He recommended psychological intervention to address these issues and to provide relaxation training and compensatory strategies for cognitive problems, and a gradual return to all pre-accident activities. Dr. Nicholson stated that active physiotherapy or other "such modality may be very helpful in facilitating recovery," but advised that "there should perhaps be some consideration given to the degree of exacerbation of physical problems with more active treatment." I find that Traders interpreted "some consideration" to justify denying any further therapy except for psychological intervention at that point. I find this to be a somewhat hard line, and not reasonable in the circumstances.

I also find that Traders' reasons for refusing the second Treatment Plan for Vistasp therapy dated July 7, 1999 requesting six weeks of "exercise/combined Vistasp" at 10 hours per week for a cost of $4,500 were not reasonable. Traders stated its reason as: "Based on the guidelines that we follow, if symptoms persist after 12 weeks post motor vehicle accident, it is recommended that you attend an independent medical assessment."²² It requested Ms. Driver attend such an assessment.²³ An Explanation of Benefits dated July 17, 1999 rejecting the Treatment Plan as well as expenses for Tai Chi and a dog walker cited different reasons for the rejection: "the Insurer's Examination and the DAC."²⁴ I find these to be unacceptable reasons for Traders to continue to refuse to pay for the treatment requested, and agree with Ms. Driver that they represent an attempt by Traders to apply a standard protocol for whiplash associated disorders without any consideration of her individual circumstances or of the therapy for which she was claiming.

This is particularly so as it appears that Traders was relying on the very brief handwritten description of Vistasp therapy included on the face of the Treatment Plan.

Traders made several unsuccessful attempts to schedule IEs and a Med Rehab DAC over the next few months. This was complicated by Ms. Driver's unwillingness to attend for fear she would be reinjured and the intervention of her treating practitioners and legal representatives to ensure this would not happen. I make no finding as to the reasonableness of Ms. Driver's belief. Suffice it to say Ms. Driver eventually attended part of a DAC assessment in December 1999. In the meantime, she continued to attend and pay for Vistasp therapy sessions herself, and submitted Treatment Plans for Vistasp dated August 18, 1999 (for $8,000 for two months of two full treatments per week) and September 21, 1999, for the same.²⁵

It is important to note that the August 18 Treatment Plan indicates, for the first time, that a description of Vistasp therapy is attached. This is true of the September 21 Plan as well. It was never made clear in the evidence which description of Vistasp was sent along with the Treatment Plan. The two descriptions admitted as evidence at the hearing were the HealthWinds brochure, and the website page (Exhibit 8). As noted previously, I find these descriptions describe Vistasp as a form of passive therapy. I find it reasonable to infer that, at this point, Traders saw the description of Vistasp for the first time.

This time, Traders cited as its reasons for refusing to pay, "we are unsure if the goods and services proposed in the September 21, 1999 Treatment Plan are reasonable and necessary for the injuries sustained in the motor vehicle accident of January 16, 1999." I find this to be an honest and reasonable answer at the time, in view of the description of Vistasp therapy provided, and in the absence of either an independent or Med Rehab DAC assessment, the latter of which was delayed through no fault of Traders.

In December 1999, a Med Rehab DAC assessment was conducted by Dr. H. Platnick, a medical consultant, Dr. J.S. Hummel, an orthopaedic surgeon, and Dr. S.G. Esmail, a neurologist. They examined Ms. Driver and reviewed the Treatment Plans and an extensive list of medical records, and agreed that Ms. Driver suffered WAD II soft tissue injuries. Although Dr. Hummel acknowledged that these injuries caused Ms. Driver's severe neck pain from spasm, both he and Dr. Platnick concluded that no further treatment was reasonable or necessary, on the basis that soft tissue injuries ought to resolve three months after the accident and that her aches and pains would "settle down" over time.

I find these three physicians simply disregarded Ms. Driver's complaints of pain and ignored her condition at the time, including continuing spasm in her neck. The fact that the average soft tissue injury of that nature resolves on its own after three months or "with time" is no good medical reason to conclude that no treatment is necessary or reasonable for a particular patient who presents with symptoms and pain. One cannot simply ignore the particular circumstances of the person. Dr. Esmail's opinion that no treatment was necessary "from a neurological perspective" because there was no evidence of neurological damage, is equally beside the point. I find the DAC's conclusion to be flawed for these reasons, and that it was unreasonable for Traders to rely on it to support its position that any further treatment at all was neither reasonable nor necessary.

However, I do not find that Traders was under any obligation to inquire further about Vistasp therapy. Presumably, it had the information from the promotional literature attached to the Treatment Plans, and forwarded it to the DAC together with the Treatment Plans to be assessed. I find that this was as much useful information as anyone was ever to get. As was seen at the hearing, very little further useful or relevant information about Vistasp was ever to be forthcoming. The DAC report indicates the examining physicians were aware that Ms. Driver attended two five-hour sessions per week of what they understood to be a form of acupressure or massage. It is reasonable to infer that this was the type of treatment they considered not to be necessary. The difficulty is that the assessors' reasons for denying treatment in the first place are not sound, and do not comment on the frequency, duration or cost of Vistasp specifically, but direct their comments to any further treatments.

For these reasons, I find it was not reasonable for Traders to rely on the Med Rehab DAC report to support its position that no further treatment was reasonable or necessary. The next step would have been to address the flaws in the report by requesting clarification, or, if necessary, a second opinion.

These findings, however, are not sufficient to attract a special award, because the end result was not an unreasonable delay in payments for Vistasp therapy. As I have determined that Vistasp is not an eligible service of medical nature under the Schedule, and would be neither reasonable nor necessary in any event, no payments are owed, or were ever owing, and so it cannot be said that any payments for Vistasp were delayed or improperly withheld.

I do find, however, that Traders should have paid for the Tai Chi programme and the dog-walker, and Ms. Driver is entitled to a special award on that basis.

The maximum special award is 50 per cent of the benefit payable. As I find Traders' conduct to be unreasonable in denying non-Vistasp claims, but not flagrant or in bad faith, I find that a special award in the mid-range of the scale is appropriate in the circumstances, and award a lump sum of $1,000, inclusive of interest.

Ms. Driver further submitted that once her medical experts had advised Traders that she suffered from a psychogenic chronic pain disorder, Traders should have taken this information into account and revised its initial decision to refuse Vistasp therapy. I do not agree. What would have been reasonable, would have been for Traders to consider other alternatives. Traders had already suggested psychological intervention, which Ms. Driver chose not to pursue at the time. Ms. Driver never presented Traders with Treatment Plans for alternatives such as chronic pain management – she simply continued to take Vistasp treatments, and to ask Traders to pay for them. None of the medical evidence she sent to Traders sets out why Vistasp should be the treatment of choice for her chronic pain, as opposed to any other treatment. I found that the reports of Dr. Goldstein and Dr. Kekosz did not make a convincing case for Vistasp, and it seems reasonable to me that Traders would have come to a similar conclusion. There is no evidence that Traders ignored the opinions of Ms. Driver's experts; it appears rather that they simply disagreed that these opinions supported Vistasp as the only reasonable and necessary treatment.

Ultimately, Traders chose to have that dispute determined through the dispute resolution process. These circumstances do not attract a special award.

Entitlement to rehabilitation benefits: Section 15

Section 15 of the Schedule requires insurers to pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from an impairment sustained in a motor vehicle accident, or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market.

Subsection 15(3) provides that measures to reintegrate an insured person into the labour market include measures that are reasonable and necessary to enable the person to engage in employment that is as similar as possible to her pre-accident employment, or to lead as normal a work life as possible. In determining whether a measure is reasonable and necessary for these purposes, insurers must consider the insured person's personal and vocational characteristics.

Subsection (5) identifies the rehabilitation measures referred to in subsection (2):

(a) life skills training;

(b) family counselling;

(d) financial counselling;

(e) employment counselling;

(f) vocational assessments;

(g) vocational or academic training;

(h) to (k) workplace, home and vehicle modifications and devices and transportation; and, the relevant section for our purposes, clause 15(5)(j): "other goods and services that the insured person requires, except services provided by a case manager."

Although the list is not exhaustive, it does set out the types of goods and services considered to be "rehabilitative." Unlike section 14, which provides for medical goods or services that treat an injury or impairment directly, by relieving pain or restoring function to an injured area, the rehabilitative measures listed in section 15 are indirect, in that they are intended to "reduce or eliminate the effects of any disability resulting from an impairment." I find that a good or service claimed under this section must come within the type or category of indirect items contemplated by this section.

Sections 14 and 15 define two separate categories of goods and services for which insurers must pay, each with its own set of criteria. A claim for a particular service will not be paid out under one section simply because it is not eligible under the other; each claim must be evaluated against the statutory criteria.

I find that a hands-on bodily therapy such as Vistasp does not fall within the types of rehabilitative measures as defined in section 15.

Housekeeping

Ms. Driver claims reimbursement for the wages she paid to her regular housekeeper after the accident. The wording of section 22 is very clear that insurers are required to pay only "reasonable and necessary additional expenses" incurred as a result of an accident for housekeeping and home maintenance services if the insured person sustains an impairment that renders her substantially unable to perform the duties she "normally performed before the accident." As there is no dispute that Ms. Driver's housekeeper continued to perform the same duties she performed before the accident as after, and I heard no evidence that the housekeeper was paid anything above her customary wages for any additional work, I find that Ms. Driver is not entitled to housekeeping expenses as a result of the accident.

Physiotherapy and hydrotherapy

Ms. Driver is entitled to medical expenses under section 14 of the Schedule for massage therapy ($65) and physiotherapy ($80) in June 1999, hydrotherapy ($185) and pool therapy ($255) in 2001, on the basis that they were reasonable and Dr. Goldstein recommended them.²⁶

Tai Chi

Ms. Driver seeks payment for two six-month blocks of Tai Chi exercise sessions, as set out in two Treatment Plans dated January 9 and July 9, 2001, at a cost of $639.86 and $660, respectively, for a total cost of $1,299.86.²⁷

Particulars of the Tai Chi programme were provided to Traders in a letter dated February 20, 2002:

Special emphasis will be placed on strengthening the neck, shoulder and upper back. It is noted that the programme leads to improved relaxation and breathing, strength, stamina, coordination, posture, flexibility and balance. It also encourages the development of both long term and short term memory.

Ms. Driver had attempted Tai Chi as early as July 1999 when Dr. Goldstein recommended she pursue it for medical reasons.²⁸ She testified that although she had difficulty remembering the lengthy sequence of movements at first, she gradually got better at it and found the exercises beneficial.

There are numerous references throughout the medical evidence, including the reports of the DACs and the Wasser Centre, that Ms. Driver needed to resume active exercise and that she was unable to return to her pre-accident exercise routine or engage in conventional physiotherapeutic exercise due to pain. Drs. Kekosz and Tumber, both treating physicians, in their respective February and April 2001 reports encouraged her to continue with her Tai Chi programme.

Furthermore, given Ms. Driver's cognitive difficulties and feelings of social isolation, and the fact that she already spends much of her time at home because of her business, I find a home-based exercise regimen to be unrealistic and unreasonable.

For all of these reasons, I find that the Tai Chi programme was, and is, necessary as a result of the accident and reasonable in Ms. Driver's circumstances, and that it falls squarely within the scope of rehabilitative measures contemplated by section 15 of the Schedule.

Dog-walking services

Ms. Driver claims the $195 she paid to have someone walk her two bull terriers between January and July 1999.²⁹ There is ample medical evidence to support Ms. Driver's claim that she was unable to walk these two large, strong, active dogs in the months after the accident due to pain and the risk of reinjury, because they pulled so hard on the leash that she could not control them. Dr. Goldstein recommended that Ms. Driver hire someone to walk the dogs in July 1999.³⁰ In the end, Ms. Driver's impairments forced her to give up both dogs, which she did with understandable regret. I find the dog-walking expense as claimed to be a reasonable rehabilitative measure for the period in question under article 15(5)(l) of the Schedule.

EXPENSES:

If the parties are unable to agree on the issue of arbitration expenses, they may request a resumption of the hearing before me to deal with the matter in accordance with the Dispute Resolution Practice Code (Fourth Edition).

January 8, 2003

Susan Sapin Arbitrator

Date