Neutral Citation: 2004 ONFSCDRS 65

FSCO A02-001228

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARY CHAN

Applicant

and

CAA INSURANCE COMPANY (ONTARIO)

Insurer

REASONS FOR DECISION

Before:

Susan Sapin

Heard:

September 15, 16, 17 and 24, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Sue Chen for Ms. Chan

Neil Reeves for CAA Insurance Company (Ontario)

Issues:

On January 21, 2000, Mary Chan, then a 43-year old mother of three, was seriously injured when she was struck by a car as she attempted to cross an intersection on her way home from Sing Tao, the Chinese-language newspaper where she had worked as an accounting clerk for 18 years. Ms. Chan applied for and received statutory accident benefits from CAA Insurance Company (Ontario) ("CAA"), payable under the Schedule.¹ In August 2000, CAA declined to pay for further chiropractic and acupuncture treatment and certain other benefits. The parties were unable to resolve their disputes through mediation, and Ms. Chan 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:

1. Under section 14 of the Schedule, is Ms. Chan entitled to expenses for:

Chiropractic treatment

$7,631.30

Acupuncture provided by Dr. Joseph Y. Wong

1,755.00

Acupuncture provided by Dr. Cecilia Zhang

780.00

$641.13 for the following assistive devices:

TENS machine

$110.00

Multiple Momi Roller

200.00

Exercise bike

137.99

"Back therapist"

69.00

Paraffin Spa Bath - Heat Therapy System

103.46

Magic Bag hot and cold pack

20.68

Prescriptions

91.03

Transportation to attend medical appointments.

104.25

2. Is Ms. Chan entitled to attendant care benefits of $215 claimed under section 16 of the Schedule?

3. Is Ms. Chan entitled to housekeeping expenses of $4,400 for the period September 2, 2000 to July 6, 2001, claimed under section 22 of the Schedule?

4. Is Ms. Chan entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

5. Is Ms Chan liable to pay CAA's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

6. Is CAA liable to pay Ms. Chan's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

1. Ms. Chan is not entitled to expenses claimed for chiropractic treatment, prescriptions, transportation expenses or assistive devices (except the TENS machine in the amount of $110).

Ms. Chan is entitled to expenses for acupuncture treatment of $1,755 from Dr. Joseph Y. Wong and $780 from Dr. Cecilia Zhang.

2. Ms. Chan is not entitled to attendant care expenses.

3. Ms. Chan is entitled to housekeeping expenses of $2,200.

4. Ms. Chan is entitled to interest for overdue payment of benefits pursuant to section 46(2) of the Schedule.

5. If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding they may make written submissions within 30 days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001.)

Procedural issues: non-compliance with section 38 of the Schedule

Subsection 38(2) of the Schedule requires an insured persons to submit a Treatment Plan to her insurer before treatment expenses are payable, unless, under subsection 38(22), the insurer agrees to pay for treatment without one. If an insurer refuses to pay for the treatment outlined in a Treatment Plan, subsection 38(12) provides that "the insurer shall require the insured person to be assessed by a designated assessment centre...in respect of the goods and services the insurer will not pay for."

Contrary to these requirements, no Treatment Plan was submitted for chiropractic treatment provided by Dr. Funkai Au claimed between July 2000 and December 2001, and a Treatment Plan prepared by Dr. Au and dated December 14, 2001 was not referred for a Medical Rehabilitation DAC assessment.

The Schedule itself is silent with respect to what consequences flow from non-compliance with these two subsections, and I was not referred to any case law directly on point about what happens when an applicant incurs and claims expenses in the absence of a Treatment Plan.

However, in Poulos and Zurich Insurance Company², Arbitrator Alves dealt with the consequences of an insurer's failure to arrange for a DAC assessment under subsection 38(22). Arbitrator Alves reviewed the jurisprudence and concluded that arbitral consensus was that breaches of section 38 are considered to be procedural, meaning that failure to comply does not automatically create an obligation to pay the disputed treatment expenses. That question is to be determined after hearing all of the evidence, including evidence about whether the treatment was reasonable.

I find the same principles apply where an insured person fails to submit a Treatment Plan, in that the absence of a Treatment Plan will not automatically disentitle the insured person to payment of treatment expenses incurred.

In this case, after considering all of the evidence, I determined that the chiropractic Treatment Plans in dispute, including the December 14, 2001 Treatment Plan, were not reasonable and necessary. However, in the particular circumstances of this case, I further find CAA would not be required to pay for treatment obtained between July 2000 and December 2001, on the grounds that the expenses were incurred in the absence of a Treatment Plan. My reasons are as follows.

In August 2000, Ms. Chan attended an Insurer's Examination (IE) conducted by Riverfront Evaluations at CAA's request. The examiners reviewed Dr. Au's chiropractic treatment up to that point and concluded that no further chiropractic treatment was necessary or reasonable. CAA sent Ms. Chan a copy of the report on October 3, 2000.

At the hearing, Dr. Au candidly admitted that he did not submit a further Treatment Plan to CAA after May 2000 because he "knew CAA would DAC it," and he did not wish to subject his patient to the rigours of a DAC assessment because Ms. Chan told him she found them very stressful and claimed they caused her injury and set her back in her progress. Ms. Chan confirmed this in her testimony. Dr. Au acknowledged it was a "mistake" on his part to continue to treat Ms. Chan between July 2000 and December 2001 without a Treatment Plan.

I find Ms. Chan and Dr. Au were aware of Riverfront's conclusions, and knowingly did not submit a Treatment Plan because they believed CAA would refuse it and they wished to avoid a DAC assessment. Willful non-compliance cannot be condoned. Without a DAC assessment, both parties, as well as arbitrators, are denied the assistance of a key component of the dispute resolution process – a timely and neutral evaluation of the reasonableness and necessity of disputed treatment. For these reasons, I find the absence of a Treatment Plan in this case disentitles Ms. Chan to the chiropractic treatment claimed during the relevant period.

No explanation was provided for why the December 14, 2001 Treatment Plan, once submitted, was not assessed by a DAC. Applying the reasoning in Poulos, and given my finding on the merits, I find there is nothing in this case to suggest that the consequence for CAA's non-compliance with section 38 should be that it is required to pay for the treatment.

EVIDENCE AND ANALYSIS:

Introduction and background:

At issue in this arbitration is whether CAA is required to pay chiropractic and acupuncture treatment expenses incurred by Ms. Chan after August 2000. To be entitled to these expenses under the Schedule, Ms. Chan must first establish, on a balance of probabilities, that she sustained an impairment as a result of the accident, that the medical expenses incurred were as a result of the accident, and that the expenses were reasonable and necessary.

It is not disputed that Ms. Chan, an anxious person by nature, was, and remains, traumatised by the accident and that, six months post-accident, she had developed a chronic pain condition. She continues to suffer from significant depression, anxiety and post-traumatic stress syndrome.

Despite the horrific bruising and swelling to the left side of Ms. Chan's face and body caused when she landed on the pavement after being hit by the car, Dr. Bill Lim, Ms. Chan's family doctor of ten years, testified that her injuries, albeit significant and slow to heal, were mainly soft tissue injuries. Extensive investigation of a mild closed head injury and possible fracture to the left cheekbone, in the form of numerous x-rays, an MRI, a bone scan and other tests, were inconclusive, and examination by several neurologists failed to reveal any neurological impairment. Even so, I find the mild closed head injury and possible fracture cannot be entirely discounted as possible explanations for some of Ms. Chan's complaints of head, face and eye pain after the accident.

Dr. Lim prescribed painkillers, muscle relaxants and medication for anxiety, and referred Ms. Chan to Dr. Funkai Au, a chiropractor, for treatment for her complaints of neck pain, left hand weakness, dizziness, headaches, difficulty concentrating and sleeping and a sore and tender left shoulder and upper back. He also recommended physiotherapy, and later sent Ms. Chan for acupuncture treatments to Dr. Joseph Y. Wong, a specialist in physiatry and acupuncture at the Toronto Pain and Stress Clinic.

Ms. Chan also sought, and continues to receive, psychiatric treatment and psychotherapy after the accident. Unable to tolerate antidepressants, she now takes St. John's Wort, a herbal remedy for depression, with the concurrence of her psychiatrist. She continues to pursue other herbal and naturopathic remedies as well as traditional Chinese herbal medicine. CAA, for its part, continues to pay for psychological counselling.

At the hearing, Ms. Chan described her continuing symptoms as severe headaches, neck and upper back and left shoulder pain, eye pain, dizziness, difficulty concentrating, poor sleep, nausea and vomiting, depression and anxiety. She severely restricts her activities because of these symptoms. She maintains she is unable to manage most of her pre-accident household chores, and that she has become dependent on her husband and daughters, whom she feels do not understand her inability to recover from the accident. Ms. Chan has not returned to work, and, at the time of the hearing, continued to receive income replacement benefits from CAA.

Arguments of the parties:

Ms. Chan claims her medical expenses, in particular for the chiropractic and acupuncture treatments she underwent several times a week, were necessary and reasonable because the treatments provided temporary relief from pain, improved her mood and her sleep, and made it possible for her to take on simple household tasks. There is no dispute the treatments were largely passive, and that all attempts to introduce an active exercise component were discontinued because they brought on symptoms of nausea, dizziness and vomiting.

CAA does not dispute the principle, now settled jurisprudence, that pain relief is a valid and recognised mandate of the health care professions and a legitimate treatment goal in and of itself, compensable under section 14 of the Schedule.

Rather, CAA submits that in Ms. Chan's case, the prolonged passive chiropractic and acupuncture treatment were not reasonable or necessary for three reasons: firstly, Ms. Chan did not require the treatment because of the accident; secondly, the treatment was inappropriate because Ms. Chan's condition has actually deteriorated since she began treatment; and, thirdly, there was no objective evidence to support Ms. Chan's claims that the prolonged treatment she received was effective in improving function or relieving pain, as required by standards set out in the jurisprudence.

CAA further submits that what Ms. Chan really required was a multi-disciplinary pain management programme, as recommended by a number of health care practitioners, and for which it was, and is, willing to pay. It argues that it should not be required to pay for ongoing treatment that is not reasonable, where Ms. Chan's own treating health care practitioners failed to provide her with an appropriate programme.

Entitlement to Medical Benefits

Causation: Were the medical expenses incurred because of the accident?

I find the accident contributed significantly to Ms. Chan's post-accident symptoms, and the medical expenses claimed were incurred as a result of the accident, despite Ms. Chan's history of similar, though lesser complaints before the accident.

I accept Dr. Lim's evidence that Ms. Chan suffered from headaches (although sometimes severe, they were not migraines) and dizziness "on and off pre-accident, likely related to premenstrual and menopausal symptoms, but that her headaches now are more severe, more frequent and last longer. I accept his evidence Ms. Chan's back pain now affects her upper back, not her lower back as before, and is more severe; that she is a very anxious person who occasionally required anti-anxiety medication before the accident; and that she had a very sensitive stomach which could not tolerate many medications, including anti-inflammatory medication.

I accept Ms. Chan's evidence, corroborated by Dr. Lim's clinical notes and records, that she sought chiropractic treatment for low back pain before the accident from a Dr. Jackson Wong, which ended when the condition resolved.

I accept the consensus of medical opinion that the psychological components comprise the most debilitating aspects of Ms. Chan's current condition and are hindering her recovery and her ability to manage her pain.³ I find Ms. Chan's pre-existing anxiety and physical symptoms likely made her more susceptible to developing the chronic pain condition she now suffers as a result of the accident.

Although I find Ms. Chan incurred the treatment expenses claimed because of the accident, I find that she is not entitled to all of the expenses claimed, such as chiropractic treatment and certain assistive devices, because these expenses were not reasonable or necessary. There were two main reasons for this. I did not find Ms. Chan to be a reliable witness, and I find the treatment did not satisfy the criteria developed and used by arbitrators to determine whether treatment claimed is reasonable.

Credibility

Ms. Chan's own demeanor at the hearing belied her assertions that her physical condition improved with treatment after August 2000. I found her presentation at the hearing to be quite dramatic. She presented as weak, debilitated, and in pain. I observed her to gag and retch on the first day of the hearing, the same behaviour she apparently exhibited during insurer's examinations (IEs), Designated Assessment Centre (DAC) assessments, and active exercise sessions at Steeles-Kennedy Injury Rehab.⁴ She moved slowly and stiffly, and winced and grimaced a great deal. She requested a high-backed chair so that she could lean back against it for extra support, testified in a very faint voice, often had her eyes closed and was frequently tearful while testifying. Her testimony was vague on many points. She brought her neck collar along with her to the hearing, explaining that she could not leave her home without it.

It was brought to Ms. Chan's attention on cross-examination by counsel for CAA, however, that at certain times in her testimony, in particular when she was asked to explain items in a quite sizeable binder she had prepared containing extensive and detailed personal records of her accident and treatment, she sat up attentively, handled the binder and put on and removed her glasses with ease, bent her head to read items, and testified quite forcefully, with an accurate command of detail, when countering assumptions mistakenly made by counsel. At these times Ms. Chan behaved in every respect in a normal and appropriate fashion, and seemed well able to provide detail when she felt it was necessary.

I found Ms. Chan, however, to be quite unconscious of this marked change in her own behaviour, a characteristic I find to be consistent with the opinions of psychological assessors who felt she had little or no insight into her chronic pain condition or her own behaviour.⁵

I also found Ms. Chan's testimony to be inconsistent. It was difficult to accept her assertions that she was "60-80%" better as a result of treatment in light of her testimony that four years after the accident, even an hour of grocery shopping with her husband will bring on headache and nausea and neck and upper back pain so painful she must support herself on the check-out counter, and require her to use her neck collar.

I found it difficult to accept at face value Ms. Chan's assertions that all of the disputed treatment provided both pain relief and increased function, when the type of treatments differed markedly and where, during certain periods, she attended for treatments several times a week with all three providers – Dr. Au, Dr. Wong and Dr. Zhang – in addition to obtaining psychological treatment from both a psychiatrist and psychotherapist, and a consulting naturopath, Dr. Julie Chen.

Furthermore, it is difficult to accept Ms. Chan's claims that Dr. Au's treatment, for example, was effective, when she admitted he was unable to "cure" the frozen shoulder she had developed, and she continually sought out new treatment, first from Dr. Wong, then Dr. Cecilia Zhang, Dr. Julie Chen, and others.

These factors, together with Ms. Chan's psychological condition itself (significant depression, anxiety, post-traumatic stress and emotional instability), universally considered to be a significant factor complicating her ability to recover from or manage her chronic pain, as noted above,⁶ persuaded me that Ms. Chan's own testimony about the benefit to her of particular treatments was not a reliable indicator of whether the treatments were reasonable or necessary.

Criteria used by arbitrators to determine whether treatment is reasonable

The second reason I did not find the chiropractic and other treatment claimed to be reasonable is that it did not satisfy the criteria developed over the years and used by arbitrators to determine this question. These criteria are well-established in the jurisprudence and I will only summarize them here:

1. The treatment goals must be identified; they must be reasonable; and they must be met to a reasonable degree.

2. The treatment should be appropriate to the goals and to the person.

3. The frequency, cost and duration of treatment itself must be reasonable.

4. With respect to cost, arbitrators consider not just the financial expense, but whether the investment of time, effort and expertise required to achieve treatment goals are reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.⁷

5. Where treatment is lengthy and continues indefinitely, one must also consider whether the treatment is promoting dependency or interfering with other aspects of rehabilitation.⁸

6. "Compelling evidence": Where the goal of therapy is not rehabilitation but pain relief alone, additional factors must be considered, most particularly in cases such as Ms. Chan's, where treatment is of prolonged and indefinite duration and where, contrary to expectations, symptoms persist and the patient appears to be getting worse rather than better.

In Alves and Commercial Union Assurance Company,⁹ a case similar to Ms. Chan's, the arbitrator held that generalised assertions on the part of the insured person and his treating practitioner that the therapy was of benefit were simply not sufficient to justify the extensive chiropractic treatment being received, where there was evidence that the insured person failed to improve, and the treatment was found to be unreasonable by a DAC. The arbitrator held that the insured person had to provide some type of "compelling evidence" that the treatments were effective, which he identified as some type of formal testing or outcome evaluation. In other words, the insured person has to provide some objective evidence to support his subjective assertions.¹⁰ However, this does not mean, as the arbitrator put it, that effectiveness must be proven to a level of "scientific certainty."

In my view, the "compelling evidence" required to meet the statutory test of reasonableness lies somewhere in the balance between subjective belief and generalised assertions on the one hand, and the type of objective evidence that approaches "scientific certainty" on the other.

In the past, arbitrators have considered both subjective and objective evidence in the form of clinical notes and records and periodic progress reports prepared by treatment providers, results of formal testing obtained from functional capacity evaluations, the observations and opinions of medical experts, and the observations of family, friends, caregivers and housekeepers as persuasive evidence in support of an insured person's assertions that a particular treatment is reasonable.

Unfortunately, Ms. Chan presented little compelling evidence of this nature to support her assertions that the temporary pain relief or improved mood, sleep and function were, in fact, the result of the passive chiropractic (or, later, acupuncture) treatment she received. Although Ms. Chan's husband and three daughters live at home and she testified that she has depended heavily on them since the accident for assistance in attending medical appointments and with her daily housekeeping and living activities, these family members were not present and did not testify at the hearing. Their interactions with Ms. Chan and their independent observations of her behaviour and ability to function on days with and without treatment would have been particularly helpful to her in supporting her claims that the treatment in fact provided noticeable pain relief and improved mood and function. The medical evidence presented on behalf of Ms. Chan was, for the most part, unhelpful.

Chiropractic Treatment Plans of Dr. Au dated December 14, 2001 and March 20, 2002

Ms. Chan's and Dr. Au's testimony at the hearing, as well as the documentary medical evidence presented,¹¹ all provided detailed and consistent descriptions of Ms. Chan's treatment sessions from the date of the accident. The sessions lasted an hour or more, five times a week at first, eventually tapering off to once a week by March 2001, when Ms. Chan began treatment with Dr. Cecilia Zhang.¹² She continued with Dr. Au once a week until her last visit on April 22, 2002. Ms. Chan also received acupuncture treatment from Dr. Joseph Y. Wong about twice a week throughout that period and afterward, until at least June 2003.

Dr. Au's December 2001 Treatment Plan recommended a further 10-12 weeks of treatment, twice a week. The March 20, 2002 Plan, more than two years after the accident, recommended daily treatment, with frequency adjusted according to progress, for 8-10 weeks.

There is no dispute that the treatment provided by Dr. Au consisted largely of passive modalities in the form of electrical treatments to the neck, left arm, left leg and low back; use of hot and cold packs and a TENS unit; soft tissue massage and "myofascial release and joint mobilisation"; acu-cupping;¹³ the application of a roller with wheels to the neck, back and thighs; and spinal adjustments. There is also no dispute that Dr. Au was aware that Ms. Chan suffered from anxiety and depression.

Dr. Au also recommended continued use of a soft neck collar, lumbar brace and forearm supports throughout. Ms. Chan continued to use these devices at the time of the hearing. As noted above, she brought her neck collar with her to the hearing, stating that she took it along whenever she expected to be away from home for more than an hour, or had to walk for more than 30 minutes, because her neck would become weak and painful and difficult to support.

Ms. Chan testified that Dr. Au's many attempts to gradually introduce active exercises on a stationary bicycle, treadmill, and a stationary resistance exercise machine made her nauseous and caused her to retch, and on one or two occasions to vomit, so Dr. Au advised her to discontinue. Dr. Au confirmed that he eventually abandoned all attempts to introduce active exercise. Nevertheless, he continued to list active exercise as a component of his Treatment Plans up to and including those of December 14, 2001 and March 20, 2002.

Both Ms. Chan and Dr. Au conceded on cross-examination that the actual regime of passive treatments did not change between the time Ms. Chan began treatment in February 2000, shortly after the accident, and her last treatment in April 2002.

Furthermore, Drs. Lim, Au and Wong did not dispute in their testimony that Ms. Chan became physically deconditioned due to lack of active exercise.

Dr. Au admitted that, as Ms. Chan's physical condition deteriorated and her muscles became "thin and soft," he modified the goals of each successive Treatment Plan. Whereas the first Plans purported to increase function and return Ms. Chan to daily activities, by December 2001 the goals had been reduced to providing pain relief, preventing "symptom aggravation, hypo-atrophy of soft tissues, and deterioration of physical condition," and improving Ms. Chan's overall well-being, "and thus motivate her to slowly regain more functional activities, ...and achieve maximum therapeutic benefit and minimize post-traumatic residual effects." The treatment goals became less ambitious and the patient slowly and gradually deteriorated, yet the treatment provided remained exactly the same.

Dr. Au conceded that by December 2001, the goals were in fact purely palliative: in Dr. Au's words, he was "giving supportive intervention in an attempt to breach the cycle of pain and depression in the form of encouragement instead of functional activities." By March 2002 Dr. Au felt Ms. Chan had become chronic and would not return to her pre-accident status, and all he could offer was pain relief to improve her quality of life. Both Ms. Chan and Dr. Au testified that they believed she would have deteriorated even more without the treatment he provided.

Despite the lengthy, and apparently indefinite duration of treatment, neither Dr. Lim nor Dr. Au conducted independent periodic assessments based on objective findings. Dr. Au produced only one report, in support of his December 14, 2001 Treatment Plan, and that based on Ms. Chan's subjective statements.

Based on these facts, I find Dr. Au's chiropractic treatment did not satisfy the criteria for reasonableness set out above, for a number of reasons. The Treatment Plans themselves did not accurately identify the actual treatment goals being pursued, nor did they reflect the actual treatment provided, in that active exercise was not undertaken. Based on Dr. Au's testimony that active exercise was not possible, and that he did not submit a Treatment Plan for 14 months because he knew CAA would refuse it, I find he identified active exercise in his December 14, 2001 Plan, not because it would be part of the treatment, but to increase the chance the Plan would be approved – and that he did so because he was well aware after the Riverfront August 2000 report, that CAA would not approve a regimen of purely passive chiropractic treatment two years after a motor vehicle accident.

I do not question Dr. Au's good intentions and sincere desire to help his patient; however, I do not find it reasonable to identify in a Treatment Plan, treatment goals one knows to be inaccurate, or to list treatment that cannot be realistically provided.

For her part, Ms. Chan testified that Dr. Au's sessions afforded her temporary (up to 12 hours' worth) pain relief, permitting her to go home on those days and make soup for her family. Although Ms. Chan provided no specific details about this, or any other specific task, her counsel advised that "making soup," in Chinese culture, is equivalent to preparing a home-cooked evening family meal. I assume it would involve time- and energy-consuming physical tasks such as cleaning, preparing, chopping and cooking meat and vegetables. Ms. Chan testified that her mood improved, she had more energy, and she slept better on days she received chiropractic treatment. Ms. Chan claimed the same benefits for every type of medical treatment for which she claims expenses; I did not find these "blanket" assertions, in the absence of any corroborating evidence, to be persuasive.

Due to the lack of periodic, objective assessments, I find there is no objective evidence to support Dr. Au's and Ms. Chan's claims that his treatment regimen either maintained her level of function or prevented further deterioration, or that Ms. Chan would have been worse off without it. There was no objective measurement of improvement or "success" at all to counter Ms. Chan's piteous presentation at the hearing.

Furthermore, I was presented with no medical evidence that prolonged passive chiropractic care is a recognized or effective treatment for chronic pain, depression, anxiety or post-traumatic stress. In fact, I find the bulk of the expert evidence presented was to the contrary, going so far as to support CAA's contention that this passive treatment fostered dependency, which may have prevented Ms. Chan from pursuing alternative available therapy in the form of a multi-disciplinary type of pain management programme suggested by several medical experts, including her own experts.

As early as six months after the accident, Dr. Ernest White, the orthopaedic surgeon at Riverfront who examined Ms. Chan and reviewed Dr. Au's earlier March 2000 Treatment Plan at CAA's request, concluded that, from an orthopaedic perspective, all passive forms of treatment should be discontinued, because at that point they were counterproductive and might further increase illness behaviour and prolong recovery. He also disapproved of the use of a cervical collar, forearm supports and lumbar supports because they would encourage further physical deconditioning.¹⁴ This is, in fact, precisely what happened.

From an orthopaedic point of view, Dr. White could not explain Ms. Chan's complaints and perceived physical restrictions based on the soft tissue injuries she sustained. He reported "marked pain-focussed behaviour with inappropriate clinical responses to examination, with marked self-limiting behaviours, completely out of proportion to what would be expected at this stage over six months following her injuries." These observations and conclusion were shared by the other IE assessors, and also by subsequent IE and DAC examiners, as well as specialists sought out by Ms. Chan of her own accord or to whom she was referred by Dr. Lim for assessment or consultation.

Dr. White's report was thorough, even-handed and consistent with most of the medical evidence. He did not discount Ms. Chan's symptoms or need for treatment, but correctly realised there were complicating psychological factors. As did every other health practitioner who examined Ms. Chan, Dr. White stressed the importance of gentle, progressive active exercise.

CAA acted promptly, arranging a psychological assessment with Dr. Hershberg, a psychiatrist, which took place in September 2000. Dr. Hershberg¹⁵ stated that further treatment should be "multi factorial" including an appropriate course of psychological therapy, combining cognitive behavioural, educational, and supportive measures directed towards residual symptoms of post­traumatic stress disorder. He felt Ms. Chan's depression required psychotherapy and antidepressant medication for 4-6 months. CAA continues to pay for psychotherapy as a result. Unfortunately, it appears Ms. Chan is not able to tolerate antidepressants. Ms. Betty Kwong, Ms. Chan's psychotherapist since the accident, testified that this may be a factor prolonging Ms. Chan's recovery. Ms. Kwong also felt Ms. Chan's condition required concerted multi-disciplinary treatment.

Dr. D.J. Ogilvie-Harris, the orthopaedic surgeon who examined Ms. Chan at the request of her legal representatives in January 2001, a year after the accident, made findings similar to those of Drs. White and Hershberg in his February 5, 2001 report.¹⁶ He confirmed that Ms. Chan's chronic pain resulted from soft tissue damage in the accident, and noted that the degree of her physical disability was greater than the physical findings would suggest. He identified this as a characteristic of chronic pain, together with intrusive symptoms that interfered with all aspects of her life.

Dr. Ogilvie-Harris specifically recommended a comprehensive rehabilitation and pain management programme:

The physical, psychological and emotional aspects of the injury need to be addressed if she is to be effectively treated.

For her physical side, she needs an exercise program to strengthen her cervical and lumbar spine, upper and lower extremities. She needs to work on cardiovascular and respiratory fitness. This needs to be in a carefully supervised program and needs to be progressive to be effective. Concurrently, the psychological and emotional issues need to be addressed. Only in this way, is she likely to show any reasonable improvement. [Emphasis added]

Dr. Ogilvie-Harris made these recommendations despite Ms. Chan's significant symptoms of dizziness and nausea, of which he was well aware ("The physical examination was made difficult by the fact that any movement of her neck induced dizziness and retching"), and which he felt should be investigated.¹⁷ Clearly, he did not feel these symptoms prevented her participation in an active exercise programme.

None of these opinions is consistent with the prolonged course of passive therapy provided by Dr. Au.

Also in February 2001,¹⁸ as part of a Medical and Rehabilitation DAC assessment completed at Work Able Centres Inc., Dr. L. Koepfler, the psychological assessor, recommended an eight-week Multi-disciplinary Pain Management Programme, and that Ms. Chan should continue psychological treatment with Ms. Betty Kwong.¹⁹

In July 2002, a physiotherapist, a chiropractor and a neurologist with Work Able Centres Inc. conducted a multi-disciplinary Medical Rehabilitation DAC assessment of Dr. Au's March 20, 2002 Treatment Plan.²⁰ They, too, found no objective evidence of musculoskeletal injury, except for the frozen shoulder, and determined passive chiropractic therapy to be of questionable value. The neurologist found no neurological damage that would explain Ms. Chan's symptoms, despite a mild closed head injury.²¹

Dr. David Bereznick, the assessing chiropractor, determined the frozen shoulder was likely due to "disuse." It was his opinion that, in the absence of any extenuating or non-clinical findings ("i.e. non-uniting fractures, metabolic disorders, more surgical complications, infections etc.") to explain why Ms. Chan's soft tissue injuries would not have naturally healed in due course as might be expected, any therapy offered should be active to expect therapeutic gain, and, in any event, passive chiropractic therapy was not a helpful treatment for a frozen shoulder.²²

Dr. Bereznick based his opinion on the Ontario Chiropractic Association's interpretation of the Clinical Guidelines for Chiropractic Practice in Canada, which recommend a maximum of 16 weeks of chiropractic care in the case of chronic pain. According to Dr. Bereznick, the treatment protocol should "emphasize active care, rehabilitation, specific exercises" at a maximum of six weeks. Dr. Bereznick concluded that any treatment two years and four months post-accident should be active entirely, for therapeutic gain to be expected.

Dr. Bereznick's belief that treatment must yield therapeutic gain for it to be reasonable, and that treatment that is purely palliative is not reasonable, is wrong. Ms. Chan is entitled to treatment that relieves her pain. His failure to take account of her chronic pain condition or the impact of her significant psychological symptoms on her perception of pain is equally troubling. It illustrates, in my view, that chiropractors are not qualified, experienced or trained to treat complex chronic pain conditions, and chiropractic is not an appropriate treatment for this condition. I find this conclusion to be borne out by the chiropractic guidelines relied on by Dr. Bereznick's own profession, which do not recommend chiropractic care for chronic pain sufferers after 16 weeks. On that point I find Dr. Bereznick's opinion to be sound. Had Ms. Chan heeded the opinions of the many professionals who examined her, she might have sought and received treatment more appropriate to her condition, a comprehensive pain management programme, sooner.

Although Dr. Au disagreed with Dr. Bereznick's opinion when it was put to him on cross-examination, he provided no compelling evidence to refute it. Consequently, I prefer the opinion of Dr. Bereznick. Dr. Bereznick expressed his concern that "providing passive therapies well outside of the natural history of an injury creates an environment whereby the risk of developing physician dependency and pain focussing outweighs the likelihood of achieving therapeutic gain." I find this opinion was consistent with much of the medical evidence presented at the hearing, none of which supported prolonged passive chiropractic treatment as effective for chronic pain.

In fact, given Dr. Au's evidence that Ms. Chan dropped by his office to visit with his secretary at times when she did not have an appointment for treatment, and given the many medical specialists Ms. Chan has consulted,²³ I find that the issue of dependency was in fact one of significant concern in this case.

Ms. Betty K.T. Kwong, the psychotherapist who has treated Ms. Chan since June 2000, testified at the hearing. Her evidence confirmed that, after a certain point, Ms. Chan appeared to be caught in a discouraging and self-defeating cycle of pain and inactivity, and she became dependent on a regimen of treatments that appeared to offer little improvement or relief.

Ms. Kwong testified that she attempted to teach Ms. Chan relaxation skills to deal with anxiety and sleep, pain management, structuring of daily activities, and cognitive behavioural therapy to help her understand the relationship between her anger and anxiety and her perception of pain. Ms. Kwong believed that unresolved feelings of anger about the accident, as well as "never-ending assessments", aggravated Ms. Chan's depression. She has encouraged Ms. Chan to maintain her daily routines despite persistent pain, and encouraged her to verbalize her frustrations and feelings of worthlessness.

However, Ms. Kwong testified that Ms. Chan's psychological treatment had "plateaued" by the time of the hearing, because Ms. Chan persisted as seeing herself as a "victim" and because she "refused to work on her trauma on an emotional level" (for example, by reliving it again under hypnotic suggestion), because she found it unbearable. According to Ms. Kwong, this refusal and other events that Ms. Chan perceived as stressful (such as IEs or DACs, or seeing or hearing of car accidents), "set her back," requiring supportive counselling from Ms. Kwong.

Ms. Kwong stated that Ms. Chan's response to chronic pain has been poor, and she is not emotionally or mentally stable to this day. Ms. Kwong felt that Ms. Chan was "quite somatic oriented, given her cultural background" and so seeks out physical solutions to her pain.

Ms. Kwong believed that Ms. Chan's situation was aggravated by inconsistent, unco-ordinated and "piecemeal" treatment efforts, and the differing opinions of the many professionals who have examined her. This has set up a vicious cycle, where Ms. Chan continues to seek expert opinions and alternate physical therapies, which have left her confused and which serve to perpetuate her sickness behaviour.

As Ms. Kwong put it, Ms. Chan has "entered the pain game."

The solution, according to Ms. Kwong, is a multi-disciplinary "bio-social-psychological" pain management programme from a pain clinic, to break this vicious cycle.

I found Ms. Kwong's evidence to be persuasive. It was insightful, helpful, and consistent with the medical evidence as a whole, including that of Drs. Lim, Au and Wong. Dr. Lim conceded that, as Ms. Chan's family doctor, he did not, nor, in the normal course of things, would he or could he, co-ordinate Ms. Chan's treatment, however desirable that might be. He merely went along with whatever Ms. Chan told him was helpful, and deferred to the opinions and treatments of the many specialists to whom he referred her. Drs. Lim, Au and Wong professed themselves to be somewhat helpless in the face of Ms. Chan's intractable pain condition, inability to tolerate physical activity, and resulting physical decline; their shared view of the palliative care they provided basically came down to "any treatment was better than no treatment," even if the reported pain relief was only minimal.

Although this perspective is understandable, it is hardly compelling. I do not find this to be the type of endorsement that would support a treatment, even purely palliative treatment, as being reasonable within the meaning of the Schedule. In this case, I find Ms. Chan's reliance on passive therapies prevented her undertaking more appropriate treatment, and may even have interfered with her recovery. I was not persuaded, on a balance of probabilities, that Ms. Chan obtained any reasonable degree of pain relief from her chiropractic treatment, and I find the expenses claimed were not reasonable or necessary.

Acupuncture Treatment Plan of Dr. Joseph Y. Wong dated October 4, 2001

Ms. Chan began acupuncture treatments with Dr. Wong on May 3, 2001. CAA paid for 36 treatments under three consecutive Treatment Plans, up until October 9, 2001.

CAA refused a fourth Treatment Plan submitted October 4, 2001 and required Ms. Chan to undergo a Medical Rehabilitation DAC assessment by an acupuncturist and an orthopaedic surgeon at Work Able.

Each Treatment Plan, including the disputed Plan, recommended three treatments a week for four weeks, to treat "cerebral concussion, post-traumatic headache and neck pain (whiplash Grade II)." Ms. Chan testified she was often unable to attend three times a week and only went once or twice a week. According to Ms. Chan's records, she received 176 treatments from Dr. Wong between May 3, 2001 and June 26, 2003.²⁴

Ms. Chan testified that she felt acupuncture was the best treatment for her, that it makes her feel much better, that she is able to prepare a better meal for her family on the days she receives treatment, whereas on other days she could not, that she sleeps better and obtains pain relief, and is "not so quick" to yell at her daughter. She stated that she considered this to be evidence that, four years after the accident, her condition was improving, and that she felt 60-80% better in summer, although without treatment she becomes weepy in winter. As noted, Ms. Chan gave the same evidence, almost word for word, and claimed to receive the same benefits, from all of the treatments for which she claims her expenses in this arbitration. I find this detracted somewhat from her credibility about the benefit of treatment.

However, regarding acupuncture in particular, Ms. Chan testified that without treatment her head would explode and her neck, left face, eye, arm and leg pain would be worse. She stated that she continues to attend for acupuncture with Dr. Wong twice a week on Monday and Thursday mornings.

Dr. Wong testified at the hearing. His extensive qualifications and experience in both acupuncture and rehabilitation medicine (he was one of the first physicians to bring acupuncture to the West) are impressive. His testimony was less so. I do not question his evidence that acupuncture is more than just a passive physical therapy, and that it acts on the entire body, stimulates the immune system and the release of pain-relieving endorphins, and promotes healing. I do not question his opinion that acupuncture can be an effective treatment for chronic pain and can be a useful, even essential, adjunct in a comprehensive rehabilitation programme.

The difficulties in Ms. Chan's case, readily acknowledged by Dr. Wong, are that, for one thing, there was no co-ordinated or comprehensive "rehabilitation programme" in place for Ms. Chan; and, for another, Ms. Chan suffered serious psychological symptoms which complicated her recovery and which acupuncture on its own did not, and could not, address in any meaningful way.

An additional impediment to recovery, in Dr. Wong's opinion, was that acupuncture two or three times a week was too little; ideally, he would have treated Ms. Chan daily, perhaps twice or three times a day immediately after the accident to ensure a quicker recovery, which is how the treatment would be administered in China. He testified that no insurance company, however, would approve such a treatment regimen because it was contrary to "Western principles."

Dr. Wong also felt that Ms. Chan "drifted" to whatever treatment she could get. He stated that he would have preferred to use acupuncture as part of a co-ordinated pain management/rehabilita­tion programme.

Although there were a number of difficulties with Ms. Chan's acupuncture treatment, including a lack of periodic assessments, no objective evidence of improvement or success, and truly appalling record keeping on the part of Dr. Wong, I did find Ms. Chan's graphic plea that her head would explode without this treatment to be compelling. I accept that this treatment likely provided temporary pain relief. Dr. Wong's opinion, that the only reliable way to really determine if acupuncture works would be to deprive Ms. Chan of it for a certain period, makes sense; however, I agree with him that it would be an inhumane and unconscionable thing to do. I also agree that acupuncture is not a "quick fix," and that in a complicated case such as Ms. Chan's, an extended period of recovery and treatment is to be expected.

Given the number of factors working against Ms. Chan – physical deterioration abetted by inappropriate, prolonged passive chiropractic treatment and lack of physical exercise, her seeming inability to tolerate most painkillers or medications to alleviate her anxiety and depression, and the fact that her psychological treatment had "plateaued" – it would appear little was left to Ms. Chan in the way of pain relief except for acupuncture. I do not doubt that acupuncture would have been more effective as an adjunct to a multi-disciplinary pain management programme – as a pain relief measure to support active exercise, or a gradual resumption of daily activities, for example – but, as stated, the unfortunate reality is that there was no such programme.

Under those circumstances, and in the absence of any other effective treatment, I find the use of acupuncture solely to relieve pain during the period claimed to be reasonable.

In coming to this conclusion, I considered, but gave little weight to, the opinion of the Work Able DAC, which pronounced Dr. Wong's October 4, 2001 Treatment Plan not reasonable in its January 18, 2002 report.²⁵

Although I agree with the DAC's consensus opinion that the acupuncture treatments did not address Ms. Chan's "actual functional or psychological deficits," the DAC's conclusion that Ms. Chan was not entitled to acupuncture as a purely palliative measure was simply wrong.

Furthermore, the DAC was specifically asked by CAA, if Ms. Chan did not require further acupuncture, did she require any further treatment. I find the blunt response that "no further treatment is required," given the wealth of medical information available to the DAC confirming Ms. Chan's genuine chronic pain disorder, psychological diagnosis, and recommendations for a co-ordinated pain management programme, to be superficial, unhelpful to either party, and irresponsible.

It appears that the October 4, 2001 Treatment Plan was the last one submitted by Dr. Wong, although Ms. Chan continued to attend until July 26, 2003. The difficulty in determining how much of Dr. Wong's treatment CAA is liable to pay, is that Ms. Chan began acupuncture treatment with Dr. Zhang on July 6, 2001, and the two treatment periods overlap. In addition, Ms. Chan also resumed chiropractic treatment with Dr. Au in August 2001, and so was receiving treatment from three providers at the same time.

However, due to the logistics of attending appointments, Ms. Chan saw Dr. Zhang only sporadically on Saturdays, and Dr. Wong twice a week until June 26, 2003.²⁶ I find this frequency to be reasonable and Ms. Chan is entitled to the $1,755 she has claimed for the expenses of Dr. Wong's treatment.

Acupuncture Treatment Plan of Dr. Cecilia Zhang dated May 31, 2002

Ms. Chan first submitted an Application for Expenses for treatment by Dr. Cecilia Zhang, of Eastern Health Restoration, to CAA in April 2002, for expenses incurred between July 6, 2001 and March 30, 2002.²⁷ CAA refused to pay these expenses on the basis of the January 18, 2002 Work Able DAC report noted above, and advised Ms. Chan that a Treatment Plan was required.²⁸

Ms. Chan continued to attend for treatment with Dr. Zhang, but Dr. Zhang did not submit a Treatment Plan until May 31, 2002.

CAA denied Dr. Zhang's May 31, 2002 Treatment Plan and referred it to Work Able to be assessed. As Dr. Bereznick had just examined Ms. Chan in the course of a DAC assessment of her chiropractic treatment, he conducted only a paper review of her file for the purpose of assessing the reasonableness of the acupuncture treatment proposed in Dr. Zhang's Treatment Plan. Not surprisingly, he concluded that it was not reasonable or necessary, for similar reasons to those he gave rejecting Ms. Chan's chiropractic treatment.²⁹ I find his conclusions suffer from the same flaws as noted above, in that Dr. Bereznick did not seem to understand that Ms. Chan could be entitled to treatment where pain relief is the main or sole purpose.

Again, though, Dr. Bereznick's primary concern was Ms. Chan's frozen shoulder, which he felt required an orthopaedic consultation. His opinion was that acupuncture was a conservative therapy and therefore not effective in treating a frozen shoulder. For her part, Ms. Chan testified that it was Dr. Zhang's treatment, (a "wholistic" treatment) which included not only acupuncture, but acupressure, Chinese massage and herbs, and not Dr. Wong's or Dr. Au's treatments, that eventually cured her frozen shoulder. On that point she was quite adamant.

In the absence of any evidence that Dr. Bereznick, as a kinesiologist and chiropractor, is qualified to offer an opinion on the merits of acupuncture as a treatment for chronic pain or a frozen shoulder, and given that the frozen shoulder did in fact resolve in the period Dr. Zhang provided treatment, I accept Ms. Chan's evidence that her frozen shoulder did resolve as a result of Dr. Zhang's treatment. I find that Dr. Zhang's Treatment Plan did not receive an adequate or fair DAC assessment, and I do not accept Dr. Bereznick's conclusion that Ms. Chan did not require further acupuncture treatment.

Ms. Chan maintained that acupuncture was the "best therapy" for her. It was the only therapy that I was persuaded probably did provide some limited pain relief. So, despite the majority of medical opinion that passive therapies alone, including acupuncture, in the absence of active exercise or a comprehensive pain management programme, encouraged Ms. Chan to become dependant, deconditioned and a passive participant in her rehabilitation, I find it would not be appropriate to deny Ms. Chan at least one form of palliative therapy, however minimally effective, given her chronic pain condition. I find she is entitled to her expenses for the treatment incurred and proposed under Dr. Zhang's May 31, 2002 Treatment Plan.

Assistive devices

CAA refused to pay the expenses Ms. Chan submitted to it for certain assistive devices, and requested she provide Treatment Plans. Dr. Au recommended the TENS unit and the hot and cold pack in his March 20, 2002 Treatment Plan. The Work Able DAC found these passive therapy devices not reasonable or necessary. Ms. Chan testified that these items relieved her arm and shoulder pain. She testified that she bought the Paraffin Spa, a hot wax treatment for the hands and feet, because she saw one used in Dr. Au's office but felt more comfortable having one at home for her own personal use. She testified that she discussed the hot and cold pack with both Dr. Au and Dr. Wong, who agreed she could benefit from it. She explained that the Back Therapist is a vibrating pad to put on a chair, and the roller is a foot massage device, and no one recommended those. Dr. Lim had never heard of the roller. Ms. Chan bought them on her own because she thought she might benefit from them. She stated that she purchased an exercise bike similar to one she saw in Dr. Au's office because she "would like to exercise at home."

Both Drs. Au and Lim were asked their opinion of these devices at the hearing. I was not persuaded by their responses that they supported the use of these devices for any other reason than that their patient asked them to and claimed they helped relieve her pain. Ms. Kwong's evidence about Ms. Chan's endless search for physical solutions to her symptoms leaves me with little doubt that Ms. Chan would purchase any number of items in the hope they might provide pain relief, and expect the insurance company to pay for them. Consequently, I was not persuaded all of these items were necessary for that purpose, or that they provided the relief sought.

As for the exercise bike, the evidence was overwhelmingly that this form of active exercise has been tried and failed. There was no evidence that Ms. Chan even tried to exercise at home. Given her own insistence that any form of activity brings on nausea, dizziness, retching and vomiting, it does not seem likely that she would use the bike or benefit from it at this time, even though gentle home exercise was recommended a number of times. This item is not reasonable or necessary.

Ms. Chan should be reimbursed for the TENS unit, however, as it appears she does use it and finds it helpful.

Prescriptions

Ms. Chan claims $31.03 for the cost of "Bio-St. John", a standardized form of the herb St. John's Wort, which Ms. Chan takes for depression because she cannot tolerate antidepressants. CAA has paid for this product in the past. However, as I heard no evidence about the effectiveness of this product in relieving Ms. Chan's symptoms, I find Ms. Chan has not persuaded me, on a balance of probabilities, that this or the other prescription expenses claimed are reasonable or necessary.

Housekeeping Expenses

Ms. Chan claims housekeeping expenses of $4,400, at $100 per week, for the period September 2, 2000 to July 6, 2001. CAA paid housekeeping expenses of $100 per week up until May 12, 2000.³⁰ Further housekeeping assistance was denied on the basis of an in-home occupational therapy assessment conducted by Antonella Finateri, an occupational therapist, in April 2000.³¹At that time, according to Ms. Finateri's report, Ms. Chan's mother assisted with shopping, cooking and laundry twice a week for 4-5 hours unpaid, and a paid housekeeper came in once a week for three hours to mop, dust, sweep, clean the bathrooms and vacuum, at $12.50 per hour.

At the time of the accident, Ms. Chan lived with her husband and their three daughters, aged about 16, 12 and 9, in an 1,800 square foot, three-storey, three-bedroom, two-bathroom townhouse. Ms. Chan testified that she was only able to do light housekeeping chores after the accident, and that her husband and eldest daughter Vanessa took on the rest. Ms. Finateri's very brief follow-up report in November 2000 indicates that Mr. Chan and Vanessa shared all housekeeping chores, but that Ms. Chan had by then resumed all her pre-accident tasks including house cleaning, meal preparation, grocery shopping, and laundry – a somewhat contradictory observation that was not explained.

Ms. Chan testified that she has never been able to resume anything other than very light housekeeping chores, and those only on days she received treatment. She testified that she has always tried to keep up with light housekeeping tasks to the best of her ability, and I have no doubt she believes this to be true.

In his February 5, 2001 report, Dr. Ogilvie-Harris noted that Ms. Chan was able only to wash dishes, cook light meals and do light cleaning. He regarded her as unable to carry out her usual household tasks and felt she did not have the physical capabilities to look after and maintain her household.

In her May 2000 OT report, Ms. Finateri concluded that Ms. Chan had the physical capacity to perform her pre-accident housework if she paced herself, gradually resumed her full set of tasks over a six-week period, and used various assistive devices provided and paid for by CAA. She recommended no further housekeeping assistance, not even on a decreasing basis, to allow Ms. Chan to "come up to speed," so to speak.

I find this abrupt end to housekeeping assistance to be unreasonable and not justified on the basis of Ms. Finateri's report or the medical evidence.

I find it clear from the evidence of Drs. Au, Wong, Lim and Ogilvie-Harris that Ms. Chan did not have the physical or mental stamina or endurance to resume the full range of her pre-accident housekeeping tasks required in a multi-storey home with three girls, two of them teenagers. Ms. Chan's endurance and stamina were not, nor do I find they could be, addressed in Ms. Finateri's assessment. As I have found, on the medical evidence, that Ms. Chan became deconditioned after the accident, and given her chronic pain, a condition made worse in her case by depression that appears to have been inadequately treated, I find that it was unreasonable to abruptly cut off all housekeeping assistance at that time, and leave Ms. Chan to her own devices. It was not realistic to expect her to regain her pre-accident physical condition in the period for which the housekeeping assistance is being claimed.

Furthermore, where family members are required to help with housekeeping chores that an insured person can no longer perform because of the accident, they are entitled to be paid, regardless of whether insurers believe certain family members could or should have been doing some of those chores as a matter of course prior to the accident. The jurisprudence under section 22 of the Schedule has been clear on that point for quite some time.

I find four hours a week of assistance with the heavier housekeeping chores (laundry, bed-making, changing linen, mopping, cleaning bathrooms, washing pots and pans, vacuuming and spring cleaning), for the period claimed, to be reasonable in the circumstances. Ms. Chan's cleaning lady charged her $12.50 per hour; this is a reasonable rate. I find Ms. Chan should be paid housekeeping expenses of $50 per week from September 2, 2000 to July 6, 2001.

Attendant Care and Transportation Expenses

Ms. Chan did not present evidence sufficient to persuade me, on a balance of probabilities, that these claims were reasonable or necessary.

EXPENSES:

If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding they may make written submissions within 30 days of the date of this decision in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001.)

May 3, 2004

Susan Sapin Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 65

FSCO A02-001228

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MARY CHAN

Applicant

and

CAA INSURANCE COMPANY (ONTARIO)

Insurer

ARBITRATION ORDER

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

1. CAA shall pay to Ms. Chan medical expenses of $2,645 and housekeeping expenses of $2,220, together with interest in accordance with section 46(2) of the Schedule.

May 3, 2004

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2(FSCO A00-000193, June 6, 2001).
3. 3As set out in the IE reports of Dr. Ernest White, orthopaedic surgeon, and Dr. R. Hershberg, psychiatrist, and in the testimony of Dr. Bill Lim, family doctor (and confirmed by correspondence June 9, 2000 at Exhibit 4, tab 45), and testimony of Ms. Betty Kwong, psychotherapist, among others.
4. 4I note that although she claimed that these reactions were caused by any physical movement of her neck, and were often caused by physical examination of her neck, several examiners observed that retching and gagging began before she was even examined and, on several occasions, the examinations and functional capacity evaluations could not be carried out, or even begun, due to Ms. Chan's physical reactions. (See report of Dr. White at Exhibit 7, tab 3; report of Dr. Max Kleinman, tab 5; report of Derek Lee, tab 22.
5. 5This was the opinion of her treating psychologist, Ms. Betty Kwong, who testified at the hearing, and Dr. L. Koepfler, who conducted the psychological portion of the Work Able Medical and Rehabilitation DAC assessment in February 2001 (Exhibit 4, tab 27).
6. 6See footnote #3.
7. 7Violi and General Accident Assurance Co. of Canada (FSCO A98-000670, August 20, 1999), upheld on appeal (FSCO P99-00047, September 27, 2000).
8. 8Amoa-Williams and Allstate Insurance Company of Canada (FSCO A97-001864, June 5, 2000).
9. 9(FSCO A96-000247, May 13, 1999), upheld on appeal (FSCO P99-00028, August 25, 2000).
10. 10On appeal, the Director's Delegate held that requiring compelling evidence in the form of formal evaluation does not amount to creating a new or unreasonably high standard outside of the statute. Rather, it is a reasonable way to evaluate the strength of the evidence before the arbitrator.
11. 11Dr. Au's Treatment Plans; the August 2000 IE report prepared by Dr. Ernest White, Riverfront's orthopaedic surgeon (Exhibit 7, tab 3); the Med Rehab DAC reports of Work Able Centres Inc., dated July 3 and July 15, 2002 (Exhibit 4, tabs 37 and 38).
12. 12As chronicled in Ms. Chan's own Record of Appointments, Exhibit 5, tab 9.
13. 13A form of acupuncture where suction cups are applied to certain parts of the body to stimulate circulation.
14. 14Dr. Au's Treatment Plan of May 17, 2000 (Exhibit 4, tab 6) is not mentioned in Dr. White's report, although CAA did pay for the treatment proposed in the Plan.
15. 15Exhibit 3, tab 7 at p. 69.
16. 16Exhibit 4, tab 25 at p 7.
17. 17Ms. Chan has been examined by several neurologists and had extensive testing performed; all examination and test results have been reported as within normal limits, with no cause identified for the dizziness.
18. 18Exhibit 4, tab 27.
19. 19Although, unlike Dr. Hershberg , Dr. Wendy Chan and Ms. Betty Kwong, Dr. Koepfler felt that "supportive counselling" was inappropriate for Ms. Chan's personality style and that what was required was "directive counselling that is contingent upon establishment and attainment of behavioural goals."
20. 20Exhibit 4, tab 37.
21. 21These findings are consistent with those of the several neurologists who have examined Ms. Chan.
22. 22Ms. Chan testified that the frozen shoulder resolved after treatment not from Dr. Au, but from Dr. Cecilia Zhang. Dr. Bereznik noted that, as the frozen shoulder was the main symptom of concern at the time of the DAC, and as Dr. Au's Treatment Plan did not mention it and it did not appear Dr. Au was treating it, this was a further reason the Treatment Plan itself was not reasonable or appropriate. I accept this evidence.
23. 23Ms. Chan's own records indicate she has been seen by or consulted no less than 30 medical health practitioners of varying specialties. Exhibit 3, tab 3.
24. 24Exhibit 5, tab 9.
25. 25Exhibit 4, tab 29.
26. 26The last legible recorded date in Ms. Chan's record of appointments (Exhibit 5, Tab 9).
27. 27Exhibit 5, tab 5.
28. 28Exhibit 7, tab 31.
29. 29Report dated July 15, 2002, Exhibit 4 , tab 38.
30. 30Exhibit 8, p.15, letter from CAA dated June 20, 2000.
31. 31Report dated May 17, 2000, Exhibit 7, tab 1.