Neutral Citation: 1992 ONICDRG 14

File No. A-000406

ONTARIO INSURANCE COMMISSION

BETWEEN:

DONNA FLEMMING

Applicant

and

WAWANESA MUTUAL INSURANCE

Insurer

DECISION

Issue:

The Applicant was injured in a motor vehicle accident on October 18, 1990. She was insured under an automobile owner's standard insurance policy issued by the Insurer. Every motor vehicle liability policy provides for the no-fault benefits set out in Ontario Regulation 273/90 ("the No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, Chapter I.8 ("the Act").

The Applicant received weekly income benefits under the policy, until April 26, 1991. At that time, the Insurer terminated benefits, on the basis that the Applicant was not disabled to the extent required under the No-Fault Benefits Schedule. Mediation was unsuccessful in resolving this issue, and the Applicant subsequently applied for the appointment of an arbitrator under the Act.

The issue to be determined in this arbitration is:

Does the Applicant suffer substantial inability to perform the essential tasks of her occupation or employment as a real estate agent for the period from April 26, 1991 and thereafter, as a result of the automobile accident?

The Applicant also claims interest upon any amounts found to be owing, and her expenses involved in the arbitration.

Result:

The decision is:

The Applicant has suffered substantial inability to perform the essential tasks of her occupation from the date benefits were terminated on April 26, 1991 and thereafter, as a result of an automobile accident on October 18, 1990. The Applicant is therefore entitled to weekly income benefits under Section 12 of the No-Fault Benefits Schedule from that date onwards.

Hearing:

An arbitration hearing was conducted at North York on January 16, 1992.

Present at the hearing were:

Applicant:

Donna Flemming

Applicant's Spouse:

Lawrence Kelly

Insurer:

Dieter Mayer

represented by:

Ontario Claims Manager

Wawanesa Mutual Insurance

Insurer's Representative:

Lee Samis

Barrister & Solicitor

The following persons testified at the hearing:

The Applicant

Dr. Neville H. Bayer

Neurologist

Documents before the arbitrator:

Exhibit 1

Reports from Dr. L.P. Quinn, M.D., Glazier Medical Centre, dated December 21, 1990, March 21, 1991, May 22, 1991 and August 26, 1991

Exhibit 2

Report from Dr. Neville H. Bayer, Neurologist, M.B, B.CH, F.C.P.(S.A), M.R.C.P.(U.K.), F.R.C.P.(C), dated April 2, 1991

Exhibit 3

Report from Dr. B. Kim, M.D., F.R.C.P.(C), Physical Medicine and Rehabilitation Electromyography, dated January 24, 1991

Exhibit 4

Report from Dr. M.C. Mason, M.D., F.R.C.P.(C), physical medicine and rehabilitation specialist, Oshawa Clinic, dated December 3, 1991

Exhibit 5

Reports from John Cook, Physiotherapist, East Oshawa Physiotherapy Health Services, to Dr. Quinn, dated December 20, 1990, January 17, 1991, February 8, 1991 and March 20, 1991

Exhibit 6

Medical or Psychological Report, Form 4, from Dr. L.P. Quinn, dated November 2, 1990

Documents before the arbitrator, but not marked as exhibits:

• Report by Mediator, filed August 19, 1991

• Application for Appointment of an Arbitrator, dated September 23, 1991

• Response by Insurer, dated on October 18, 1991

Evidence:

The Applicant gave oral testimony at the hearing.

The automobile accident occurred on October 18, 1990. A vehicle collided with the Applicant's car on the corner of the driver's side. The Applicant testified that she was thrown against the side of the car, injuring her left shoulder and arm. She hit her head on the window. She hurt her ribs on a pager that was tucked into her waist band. Her hip was hurt when she braked the car.

The Applicant testified that at the time of the accident she just felt stiff and sore. She was not thinking about herself. She was primarily concerned to ensure that an unrestrained, young child in the other vehicle had not been hurt in the collision. The police attending the scene asked if she wanted to go to the hospital. She did not go because she wanted to see her family physician. Furthermore, it was her son's birthday and she wanted to get home for it.

The next day she could hardly move. She went to see Dr. Quinn who was substituting for her family physician. The Applicant testified that Dr. Quinn prescribed Valium, and told her she would probably be off work until Christmas. A follow-up appointment was made for two weeks later. At that visit, Dr. Quinn referred her for physiotherapy treatment at the hospital. However, there was a waiting list and so she could not start treatment straight away. Then, a new physiotherapy clinic opened and she was able to start treatment there.

Because of her injuries, the Applicant could not return to her work as a real estate agent. Her neck and left arm hurt. She is left-handed. As a result of the injury to her dominant hand, she had no control and could not hold a pen even to complete a cheque. Her ribs hurt. She required a hot water bottle to relieve pain in her lower back.

Before the accident, the Applicant was a real estate agent in the Oshawa area. As an agent, she sells on commission. She described what her job as an agent entails - from listing properties to selling them. She must be aware of the properties that are on the market, price ranges and mortgage rates. When a house is listed, the agent must go out and physically examine it to determine what condition it is in, and its suitability. The agent must check comparable property on the office computer system, and interview the vendors. The agent must attend multiple-listing service meetings to get other agents interested in examining the property. Meetings generally take place first thing in the morning. Listing work usually is done in the afternoon or evening.

The Applicant stated that, when dealing with clients, agents are basically on call. Most selling work is done in the evenings or week-ends. Selling involves office work - making telephone calls, identifying suitable properties, checking comparables on the computer, meeting with clients - and physically showing the property to clients at night. She needs a car to do the job. The hours of work are very long. Basically, an agent is "on the client's time".

In Spring 1991, Dr. Quinn suggested that she return to work part-time. She testified that there is no such thing as light duties in real estate. The hours are very long. Pay is by commission. An agent does not earn any money unless she is physically doing the job. Her boss would not care if she came into the office for a few hours because he is not paying her, but she would not make any money.

The Applicant testified that she attempted to return to work in March or April, 1991. She went in to the office on a Saturday to show some clients several properties. She spent one and half hours beforehand at the office checking on listings on the computer. This is in the basement at the office.

She then met with the people for approximately half an hour. The office is on another level necessitating going up and down stairs. She took the clients to see three properties. This all took a total time of about three hours. After meeting with these clients, she developed a headache and her back was bothering her. However, she was coping to this point. But after showing the properties, her back was bothering her so much that she put off making any further appointments to see properties that day. She arranged to see the clients on the Monday. However, they went out on their own the next day and bought a house at an open sale. The Applicant said she "spent all day Saturday in agony for nothing".

Following this attempt to return to work, she went back to see Dr. Quinn because her back was sore as a result of the work experience. Dr. Quinn referred her to a chiropractor in Whitby. However, the chiropractic treatment did not help her back and caused more pain to her neck. Dr. Quinn then referred the Applicant to Dr. Mason, a physical medicine and rehabilitation specialist, who started seeing the Applicant in June 1991. The Applicant testified that she sees Dr. Mason every month. He is giving her cortisone shots that have helped her. On his recommendation, she returned to physiotherapy in September. The course of treatment is scheduled to finish in February 1992.

Other than this one occasion, the Applicant has not done any other real estate work, and receives no income from any other source.

The Applicant testified that, as of April 1991, she was unable to sit or stand for a prolonged period of time due to her back pain. The muscles on the left side of her neck were sore, and she could not twist or turn. She says that she cannot put in the long hours involved in real estate work because of her injuries. She stated that her condition at the time of this hearing is much better than it was after the accident. Then, she could hardly move. The pain in her ribs has resolved. However, she feels that her condition is not that different than it was in April. Her neck, left arm, left shoulder and lower back continue to be painful.

The Applicant testified her lifestyle has changed drastically because of the effects of the accident. She used to be very involved in her daughter's figure skating activities. She tried to help out with competitions after the accident, but was side-lined. She was always on the go with real estate. She does not go out as she used to or entertain friends. She cannot do certain domestic chores, such as washing the walls in the house. Her temper and patience is very limited; she snaps at everyone.

The Applicant stated that she had no prior problems in these areas of complaint. She had been involved in another vehicle accident but it was 17 years ago, and resolved. On cross-examination, she said that she did not recall being told by Dr. Quinn in May 1990 that she had mild degenerative disc disease. She also did not remember any x-rays being taken for the problem at that time. She thought she had had some x-rays for an ovarian cyst. She had had problems sleeping after the accident, because of her back. She denied that this problem was related to a long-standing bladder problem. She no longer has problems sleeping.

The Applicant gave some history of her work experience. She has worked for the realty franchise, Century 21, since going into real estate. She started with Century 21 Gold Jacket when she moved to the Bowmanville area in July, 1987. In July, 1989, the office was sold and changed its name to Century 21 Realty Homes. In May 1990, the company amalgamated with another office and changed its name to Century 21 Beck. The new owner closed the office in July, 1990 and is apparently facing fraud charges in relation to its operations. In July, 1990, the Applicant moved to another office, Century 21 Unique in Oshawa.

The Applicant's income history with these companies was confusing and checkered. She testified that the owner of Century 21 Beck had absconded with all the books and records, so she did not have access to documentation. Moreover, since she worked for three organizations in the same year, she could not recall all the details of what she earned.

She testified that she had some sales while she was at Century 21 Realty Homes, before the amalgamation. She did not have any trade records in relation to these. She filed a tax return for 1990, and thought she must have received a T4 slip. However, she could not recall any details.

She testified that she did not have any sales for the short period that she was at Century 21 Beck. She knew the company was in trouble, so she diverted her listings to Century 21 Unique. Her trade record at Century 21 Unique showed one sale, with a commission of approximately $1,500.

However, she said she had diverted other sales to a friend, and received part of these commissions. She has now effectively resigned from Century 21 Unique because she cannot afford the local, provincial and national real estate board fees.

On cross-examination, she indicated that the real estate business generally was not good at the present time, but it was better in the Oshawa area, because of people moving from Toronto.

In December, 1991, she applied for a computer course at the Toronto Business School in Oshawa. It is a daily course from 9:00 a.m. to 1:00 p.m., starting in February and lasting six months. She will likely go back to real estate on a part-time basis, hopefully into a mortgage department at a bank. She stated that Dr. Mason was not too confident that she could sit for that long, but she wanted to do it.

On cross-examination, the Applicant acknowledged that there was nothing to prevent her going back into work, save that she is no longer a member of the local real estate board. There is no physical reason preventing her from returning to the office for two hours, or from taking a periodic break at work as needed. There is no reason why she cannot go into one house to show it to a client, although she stated that she has difficulty with stairs.

She acknowledged that, if she set her mind to do it, she could do it once. She conceded that her employer did not care whether she was back to work because she was paid by commission. However, she thought that if she does not get paid, there is no point to sitting in an office for two hours.

A number of medical reports were filed before the arbitrator. In addition, Dr. Bayer gave oral testimony.

Dr. Quinn filed a Form 4 medical report, dated November 2, 1990, accompanying the Applicant's application for no-fault benefits. This is Exhibit 6. It indicates that Dr. Quinn examined the Applicant after the accident. He diagnosed a soft tissue injury and muscle strain to her neck and back, with a secondary diagnosis of anxiety related to external activities such as driving and shopping.

The report also indicates that Dr. Quinn had treated the Applicant for a similar condition in March/April 1990. The report states that at that time the Applicant had neck pain and that x-rays taken had revealed a mild degenerative disc disease. The copy provided is difficult to read but apparently indicates the condition is at C 6-7.

The report estimates the duration of disability to be approximately two months, to January 2, 1991.

A further report from Dr. Quinn dated December 27, 1991 was filed at Exhibit 1. During this time, the Applicant saw the doctor approximately once every two weeks. The report indicated that during this period the Applicant's condition had worsened, but was improving with physiotherapy.

Dr. Quinn anticipated the Applicant would be ready to return to work in a further six weeks (the middle of February), but indicated that in his view there was a functional component to the problem.

A further report from Dr. Quinn was filed, dated March 21, 1991. This is also Exhibit 1. It indicated that the Applicant had seen him once a month.

This report notes subjective complaints of left arm and shoulder pain, but few objective findings to explain the complaints. Dr. Quinn thought that the Applicant was ready to return to work on a part-time basis, and would be fit for full-time work in four weeks (the end of April).

Dr. Quinn referred the Applicant to Dr. Kim, a physical medicine and rehabilitation specialist. Dr. Kim's report is contained at Exhibit 3. He examined the Applicant on January 24, 1991. He detected no neurological problem.

The reports of the Applicant's physiotherapist are contained at Exhibit 5. These indicate that the Applicant was attending the clinic daily for physiotherapy treatment. The physiotherapist concluded that the Applicant had not made as much progress as hoped for at the end of the course of treatment. He recommended ending the therapy at the clinic but continuation of an exercise program at home. The physiotherapist thought that the Applicant was ready to return to work with modifications, and recommended that she get back to a more active life style.

On April 2, 1991, the Applicant was examined at the request of the Insurer by Dr. Neville Bayer, a specialist in internal medicine and neurology at St. Michael's Hospital in Toronto. His report is contained at Exhibit 4. Dr. Bayer also gave oral testimony. He testified that he conducted a full examination both from the neurological and musculoskeletal perspective. He noted three major areas of complaint: in the left arm, back, and right thigh. He specifically noted no complaint of neck or shoulder pain. On examination, he found excellent range of motion in the back and neck. He found a normal examination both from the neurological and musculoskeletal aspects, with the exception of some discomfort and minimal slowness in the shoulder girdle, when the Applicant raised her arms above and behind her head. He detected no evidence of muscle wasting or deterioration from a lengthy period of disability.

Dr. Bayer suggested that the Applicant should continue with her exercise program, with more vigourous exercises for the shoulder girdle. He concurred with prior medical reports in encouraging the Applicant to return to work. He understood from the Applicant that she was back at work on a part-time basis, helped by one or more persons, and concluded that she would be ready for full-time work in one month, without limitations. He stated that there was no restriction on the Applicant's physical activities, such as sitting or climbing stairs.

In his testimony, he stated that the Applicant had a depressed demeanour. He thought this was due to taking Valium, an addictive sedative. He suggested that she should see her family physician for other forms of treatment for depression.

In May 1991, Dr Quinn referred the Applicant to Dr. Mason, a physical medicine and rehabilitation specialist, because of the Applicant's continuing, subjective complaints. In a further handwritten note of May 22, 1991, he repeated his view that the Applicant was fit for light work, such as that of a real estate agent.

A last report from Dr. Quinn is contained at Exhibit 1. Dated August 26, 1991, the letter responds to some questions posed by the mediator in this matter. Dr. Quinn expresses his frustration at the lack of improvement in this case, and the lack of objective findings to support the subjective nature of the complaints. Dr. Quinn had handed over the care of the Applicant to Dr. Mason. He had apparently received a progress report from Dr. Mason, dated June 14, 1991. Dr. Mason's opinion was that the Applicant was not fit for work because of the long hours involved in her job. He thought she would gradually improve over the next six to twelve months. This report of Dr. Mason was not filed before me, but the Applicant said that she had unsuccessfully attempted to obtain a copy.

In his letter, Dr. Quinn provides a personal perspective in respect to the matter. He indicates that he was involved in an automobile accident, and had sustained very serious back injuries. However, he did not take any medication or time off work because he felt that returning to work would speed his recovery. He thought that the sooner the Applicant returned to work the better it would be for her. He stated that:

I have a work ethic that dictates that if you are not dead or dying you should be employed in some way for some period of time...for activity and work will not only help mental and physical health, but will prevent further deterioration.

Dr. Mason filed a report in respect to his treatment of the Applicant since June, 1991. The report is dated December 3, 1991 and is marked Exhibit 4. Dr. Mason found the Applicant to be suffering from pain and decreased mobility in the neck and lower back. She also suffered from headaches. The Applicant's original problems were complicated by depression and sleep disturbance but these problems had improved with time and medication.

Dr. Mason concluded that the Applicant's impairments prevented her from mild or moderate physical labour. It also decreased her tolerance for even sedentary work. Therefore, it was difficult for the Applicant to work a full day, and unreasonable to expect her to work the long and unpredictable hours involved in real estate.

Dr. Mason thought that improvement would mostly happen within two years of the injury, but could continue for up to five years. He thought that there might be a considerable improvement in the Applicant's physical tolerance in the following six to twelve months, and that she would eventually be capable of returning to her pre-accident work. However, he though that this was likely to happen in the spring or summer of 1992 at the earliest.

Submissions:

The Applicant submitted that she could not do her job as a real estate agent. There is no such thing as light work in the industry. The Applicant had provided the medical report of Dr. Mason, that supported her claim. She could not do her job on a steady day by day basis.

Counsel for the Insurer submitted that the Applicant's employment involved relatively light duties, and allowed the Applicant to determine her own hours and performance. It was ideal for a gradual return to work. The Applicant's complaints were subjective. He submitted that by mid-March the medical opinion that the Applicant was ready to return to work was unanimous. He raised the question of the Applicant's motivation, in light of the economic climate and the employment income she earned prior to the accident. He also raised the possibility that her symptoms were caused by a pre-existing degenerative disc condition. He submitted that the Applicant had admitted that she could do some parts of her job, the extent of which was untested.

Findings:

The Applicant claims weekly income benefits under Section 12 of the No-Fault Benefits Schedule. The relevant provision of Section 12 provides as follows:

Section 12.

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

The sole issue in this arbitration is whether the Applicant was disabled from her occupation as a real estate agent to the extent required under this subsection from April 26, 1991 and thereafter.

Under s. 12(1), the Applicant must establish that she suffers substantial inability to perform the essential tasks of her occupation or employment. It is necessary to identify these tasks and measure the Applicant's ability or inability to perform them. This is necessarily an individualised inquiry, in regards to the particular employment circumstances of the Applicant.

Before the accident, the Applicant was a real estate agent. This was light work in physical terms. However, she testified that the work required long hours because agents have to be available to show clients properties in the evenings and at week-ends, outside regular working hours. It is the Applicant's position that she cannot put in the long hours required because of the continuing effects of her injuries.

On cross-examination, the Applicant acknowledged that she could go in to the office for two hours, and take a break as needed. She could attend an open house if she put her mind to it. The Applicant is a real estate agent, paid on commission, and her hours of work are not fixed by contract. She conceded that the owner of the real estate franchise is not really concerned about the number of hours she works, because she is paid on commission. For this reason, counsel for the Insurer submitted that the Applicant's job is "ideal for gradual reintegration".

However, the fact that the Applicant is able to perform some functions of her occupation on a part-time basis does not address the standard of disability set out in the regulations. The standard of disability under the regulation is met where it is established that an applicant suffers "substantial inability to perform the essential tasks of his or her occupation or employment". In determining an applicant's ability to perform his or her essential occupational or employment tasks, the demands of such tasks cannot be evaluated in isolation from the broader employment context.

The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative.

I have carefully considered the oral testimony of the Applicant and I accept her evidence that her job - in order reasonably to be remunerative - requires that she be available for long hours and on week-ends in order to secure listings and sales. While the requirement of long and unpredictable hours of work is not a matter of contract, I accept that this job requirement accurately and realistically reflects the demands of her pre-injury position.

Caution must be exercised in the case of persons, such as the Applicant, who are able to define their hours of work, and the amount of work that they do. However, the fact that the Applicant is able to attend the office for two hours a day, or attend an open house on an isolated occasion, does not represent, in my view, substantial ability to perform the essential tasks of her occupation as a real estate agent.

The Applicant was injured in an automobile accident on October 18, 1990.

The accident itself was not serious. The Applicant testified that she did not require any immediate medical treatment, but went home to be present for her son's birthday dinner.

In the accident, she stated that she was thrown against the driver's side. She hurt her neck, and left shoulder and arm. Some other complaints have now been resolved, but these, together with low back pain that she developed subsequently, remain her principal complaints.

The Applicant's own evidence is that she cannot put in the hours required due to the continuing problems in her back, neck and left shoulder and arm.

There is a clear conflict in the medical evidence in this case. Dr. Quinn diagnosed soft-tissue injuries to the Applicant's neck and back resulting from the automobile accident. The medical reports filed do not dispute this diagnosis or that the Applicant's complaints were consistent with the mechanism of the injury, as described. However, the doctors disagree on the duration of the effects of her injuries.

Dr. Mason, a physical medicine and rehabilitation specialist who is currently treating the Applicant, is of the view that she is not fit to return to work. The other doctors and the Applicant's physiotherapist are of the view that the Applicant was fit to return to work at least by April 1991.

Dr. Quinn's first report, dated November 2, 1990 (Exhibit 6), forecasts a return to work in two months. However, the Applicant's problems appear to have worsened in the intervening months, although there was some improvement once physiotherapy commenced. His second report at the end of December (Exhibit 1) put the expected recovery date back by six weeks to allow physiotherapy to take its course. Dr. Quinn alluded to the existence of a functional component to the Applicant's complaints, but did not elaborate further.

In mid-January, the Applicant was referred to Dr. Kim, a physical medicine and rehabilitation specialist, but he found no neurological problems. His report is Exhibit 3.

Between early December and mid-March, the Applicant was attending a course of physiotherapy treatment. When it ended, the physiotherapist felt that the Applicant was ready to return to modified work, and should adopt a more active life-style (Exhibit 5).

By mid-March, therefore, the medical evidence was uniformly that the Applicant was fit to return to work on a part-time basis, and Dr. Quinn was of the view that the Applicant should be able to return to full-time work as of mid-April.

In addition, in early April, the Applicant was examined at the request of the Insurer by Dr. Bayer, a neurologist with extensive qualifications. Dr. Bayer concluded that the Applicant was completely sound from both a neurological and a musculoskeletal standpoint, and that she was fit to work on a part-time basis, and to return to full-time work in approximately four weeks.

The Applicant was then referred to Dr. Mason, a physical medicine and rehabilitation specialist, because of her continued subjective complaints of pain. Dr. Mason concluded that the Applicant was unable to return to work as a real estate agent, because of the unpredictable and long hours she would be required to work.

In his report, dated December 3, 1991 (Exhibit 4) Dr. Mason stated:

(The Applicant's) continuing impairments are related to neck pain, headaches, decreased neck mobility, low back pain and decreased back mobility....These impairments prevent Mrs. Flemming from performing even mild or moderate physical labour...decreases her tolerance for event sedentary activities. Thus, it is difficult for her to work a full working day...and not reasonable to expect her to work the unpredictable and long hours...of selling real estate.

Dr. Mason is a qualified specialist in physical medicine and rehabilitation. He has been seeing the Applicant on a monthly basis since mid-June, 1991. He therefore is in a position to monitor and evaluate the Applicant's condition on an ongoing and evolving basis. His report specifically addresses the Applicant's ability to perform her job duties over a period of time.

During the hearing, it was suggested that Dr. Mason's report was not specific in its objective findings. Although it indicated a finding of decreased mobility in the Applicant's back and neck, the finding was expressed in very generalised terms. This is in contrast to the form of the reports of the other doctors, in particular, Dr. Bayer, who found that the Applicant was fit to return to work.

However, I do not regard Dr. Mason's findings to be less reliable than these other medical reports. This dispute resolution scheme must be fair and accessible to all claimants. The Applicant did not have the benefit of counsel, or other resources, to assist her in obtaining a fuller report. She obtained the report on her own initiative, and she got what she was given. Had the Insurer wished for a more complete report, it could have required and paid for one.

The other doctors, in particular Dr. Quinn and Dr. Bayer, concluded that the Applicant was able to return to work by the end of April. Neither of these doctors directly addressed the ability of the Applicant to work for long hours.

Dr. Quinn's reports express his frustration at the Applicant's lack of expected improvement and the absence of objective findings to support the subjective nature of her complaints. His first report adverted to the possibility of a functional component to her complaints. He clearly believed that the Applicant would benefit from some employment. However, Dr. Quinn fairly and frankly acknowledged that his views were influenced by his personal philosophy that speedy re-entry to the work-force helped recovery and that "if you are not dead or dying, you should be employed in some way for some period of time".

However, under the No-Fault Benefits Schedule, an applicant is entitled to weekly income benefits if he or she suffers "substantial inability to perform the essential tasks of his or her occupation or employment". In determining whether the Applicant meets that standard, I prefer the evidence of Dr. Mason to that of Dr. Quinn, because Dr. Mason's report more specifically addresses the individual circumstances of the Applicant.

Dr. Bayer likewise found that the Applicant was fit to return to work by the end of April. Dr. Bayer did not specifically address the ability of the Applicant to work long hours. In his report, he indicated that it was his understanding that the Applicant had already returned to work on a part-time basis. The Applicant's testimony is that she did attempt to return to work, and the evidence is that it would have been around the time that Dr. Bayer examined her. However, she testified that she was unable to continue due to her condition. This would not have been known to Dr. Bayer.

His report indicated that the Applicant did not have neck pain or shoulder pain. He testified that, although there was no complaint of neck pain, he conducted tests to identify any problems in that area. His findings were normal both from the neurological and the musculoskeletal standpoint.

Dr. Bayer was an impressive witness. However, he saw the Applicant only once. His report, in regard to the absence of any complaint of neck or shoulder pain, is inconsistent with the reports of the other examining professionals, all of which record consistent and continuing complaints of neck pain. There may be a number of explanations for the absence of neck and shoulder pain at the examination - the Applicant herself suggested that she was tired and uptight at that time, and it is possible that she forgot to mention it. However, neck pain and restricted neck mobility is identified in Dr. Mason's report as a principal impairment to her return to work. Dr. Mason has had the benefit of seeing the Applicant over a period of time, and the complaints he recorded are consistent with the other medical reports and with the Applicant's own testimony at this proceeding. The absence of reference to neck pain in Dr. Bayer's report is a factor in determining the weight to be ascribed to it in this proceeding.

Counsel for the Insurer raised the possibility that the Applicant's continued complaints were related to a pre-existing condition. The standard-form medical report accompanying an application for no-fault benefits asks the treating physician to indicate whether the physician has treated the claimant for the same or similar condition before the accident, including a pre-existing condition which may be exacerbated by the current injury. In his report (Exhibit 6), Dr. Quinn stated in response to this question: "March, April 1990 had neck pain, x-ray revealed mild(?) degenerative disc disease at C(?) 6-7." (The question marks indicate the part of the record that is not clear to read).

I cannot fairly draw any conclusion about the causal relationship between the prior condition and the Applicant's injuries based only on Dr. Quinn's response to the broad question contained in the standard-form medical report.

Based on the evidence before me, I am not prepared to conclude that there is a relationship between this reported condition and the Applicant's present complaints. The possibility that the Applicant's complaints might be explained by a pre-existing condition was not raised in any of the other reports of Dr. Quinn, nor was it adverted to by any other physician. Dr. Quinn, in particular, filed a number of reports in respect to the Applicant's condition. If he had concluded that her complaints might be related to a prior condition, one would certainly expect him to have elaborated upon this.

Counsel for the Insurer also raised the possibility that there may be an economic component to the Applicant's continued disability, in light of the poor economic climate and real estate market, and the Applicant's checkered employment history.

There are numerous factors that may bear upon an applicant's motivation to return to work - the economic reality of the market is one such factor. However, having carefully considered all the evidence, including the oral testimony of the Applicant who gave sworn evidence before me, I am not satisfied that it has been established that a lack of motivation is a significant factor in this case.

This is a difficult case. As of the date of this hearing, the Applicant has been off work for over 15 months for a soft tissue injury from a relatively minor automobile accident. The Applicant has not returned to work since the accident - save for a very brief attempt in March or April 1991.

Dr. Mason's medical report did not provide any explanation for the extended duration of the Applicant's symptoms. Nonetheless, his report indicated that, in his opinion, her continuing symptoms are related to the automobile accident. The other medical doctors could not find a cause for the symptoms.

I am satisfied, on the balance of probabilities, having carefully considered all of the evidence, that the Applicant's symptoms are disabling to the extent required and that they relate to the automobile accident that she sustained on October 18, 1990.

I find therefore that the Applicant has suffered substantial inability to perform the essential tasks of her occupation from the date benefits were terminated on April 26, 1991 and thereafter, as a result of an automobile accident on October 18, 1990. The Applicant is therefore entitled to weekly income benefits under Section 12 of the No-Fault Benefits Schedule from that date onwards.

There remains an issue with respect to the amount of benefits to which the Applicant is entitled. In the course of the hearing, the evidence of the Applicant indicated that there may be information relevant to this issue that has not been exchanged between the parties. It was determined that this issue would be deferred until a decision in regards to the Applicant's disability was rendered. Therefore, under s. 12(7) 1.iii, the minimum amount of weekly income benefits payable is $185.60, pending resolution of this issue.

The Applicant is entitled to interest on the benefits that are owing, and her expenses in participating in this arbitration in accordance with the provisions of Ontario Regulation 275/90.

Order:

1. The Applicant is entitled to weekly income benefits under Section 12 of the No-Fault Benefits Schedule, from April 26, 1991 and thereafter.

2. The minimum amount of the weekly income benefit payable is $185.60, pending resolution of any dispute regarding the issue of the amount of the benefit.

3. The Applicant is entitled to interest upon the amount found to be outstanding

4. The Applicant is entitled to the expenses that she has incurred in respect to this arbitration in accordance with Schedule 1 of Regulation 275/90.

April 28, 1992

Susan Naylor

Arbitrator

Date