Neutral Citation: 1993 ONICDRG 28

File No. A-001177

ONTARIO INSURANCE COMMISSION

BETWEEN:

NORMA SHEHADEH

Applicant

and

THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Norma Shehadeh, was injured in a motor vehicle accident on November 23, 1990. She applied for and received accident benefits from the Insurer payable under Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8.

The Applicant received weekly benefits and childcare benefits under section 13 of the No-Fault Benefits Schedule until July 7, 1991. The Applicant also received payments for her expenses for household help. After the benefits were terminated, the Insurer claimed an overpayment on the basis that the Applicant was receiving workers' compensation benefits which should have been deducted from her weekly benefits.

The Applicant claims that her benefits were wrongfully terminated, and that she continues to be entitled to receive benefits, since she suffers from a right ulnar nerve problem which she attributes to the accident.

The issues in this hearing are:

1. Is the Applicant entitled to weekly benefits and childcare benefits from July 8, 1991, onwards?

2. Is the Applicant entitled to payments for her expenses for household help from July 8 1991, onwards?

3. Are the workers' compensation benefits received by the Applicant payments for loss of income which are deductible from the Applicant's weekly benefits?

4. Is the Insurer entitled to repayment of the overpayment claimed?

The Applicant also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.

Result:

1. The Applicant is not entitled to weekly income benefits and childcare benefits from July 8, 1991 onwards.

2. The Applicant is not entitled to her expenses for household help from July 8, 1991 onwards.

3. The workers' compensation benefits received by the Applicant are not deductible from the Applicant's weekly benefits.

4. The Insurer is not entitled to repayment of the overpayment claimed.

Hearing:

A hearing was held in North York, Ontario, on November 9, 10, and 19, December 14, 1992, January 13 and February 9 and 10, 1993, before me, Frederika Rotter, Senior Arbitrator.

Present at the Hearing:

Applicant:

Norma Shehadeh

Applicant's

Gary M. Sugar

Representative:

Barrister & Solicitor

Insurer's

William S. Zener

Representative:

Barrister & Solicitor

Witnesses:

Norma Shehadeh, Applicant

Dr. Alireza Kachooie

Dr. Stanley Teitelbaum

Jan Rutherford, adjuster

Dr. David Watson Rowed

Dr. George Rado

Documents before the Arbitrator:

Report of Mediator, dated February 11, 1992

Application for Appointment of an Arbitrator, filed April 22, 1992

Response by Insurer, filed May 6, 1992

Letter from Workers' Compensation Board, dated September 16, 1992

Exhibits:

43 exhibits were filed and are listed at Appendix A.

Evidence and Findings:

1. The question of disability

The Applicant, Norma Shehadeh, suffered neck and left-side injuries resulting from a motor vehicle accident on November 23, 1990. The evidence is that these injuries eventually resolved. The Applicant also experienced symptoms in her right hand and arm after the accident. These symptoms were at first not very troublesome, but eventually worsened to the point where a right ulnar neuropathy was diagnosed and surgery was required to correct the problem.

The Applicant attributes her ulnar nerve problem to the accident, and claims that it disables her from performing her essential tasks. The primary issue before me, at the hearing, was whether the right ulnar neuropathy arose as a result of the accident.

The Applicant's Evidence:

The Applicant, Norma Shehadeh, is a 39 year old married woman and the mother of two children, now aged thirteen and ten. She is not employed outside the home. In her testimony, the Applicant indicated that prior to the accident she had been disabled to a significant extent because of a long-standing lower back injury. The Applicant had injured her back in a fall at work in 1980 and was receiving workers' compensation benefits as a result of that injury.

The Applicant described her essential tasks prior to the accident. She did as much as she could around the home, having regard to her back problem. She cooked, dusted, washed and folded the laundry, mopped the floors and cleaned the mirrors. Her husband and children frequently helped with the heavier housework, such as vacuuming and cleaning the bathtubs. Her back problem made prolonged standing or bending difficult.

The Applicant also regularly spent a few hours a day at her husband's store, keeping her husband company and occasionally serving customers.

The accident occurred on November 23, 1990. The Applicant's husband was driving the family car. The Applicant was sitting in the front passenger seat, and had turned sideways to her left to speak to her son, when the car was struck from the rear. The Applicant testified that the left side of her body hit the seat, and the stem of the pierced earring in her left ear broke the skin on her neck.

The Applicant testified that, apart from the immediate shock of the accident, she did not at first feel any ill effects. No one else in the car suffered any injuries from the accident. Damage to the car itself was minor, consisting of no more than a scratch to the bumper.

The Applicant testified that, after about three days, she began to suffer headaches and left neck and shoulder pain, and consulted her family physician, Dr. Teitelbaum. She subsequently applied for and was granted accident benefits.

Dr. Teitelbaum's notes (Exhibit 4) confirm that he saw the Applicant on November 26, 1990. At this time, she complained of pain in her neck and left mastoid area.

The Applicant continued to complain of headaches, pain in her neck, and in her left shoulder and arm. Some time after the accident, she also began to be aware of discomfort and tingling in her right hand. She testified that she first complained about this problem to a doctor working in Dr. Teitelbaum's office, in December 1990.

The Applicant testified that at first she did not take her right hand problem very seriously. She hoped it would get better spontaneously. The neck, shoulder and arm problems on her left side were more troubling and painful. The Applicant testified that during the winter of 1991 she hired a cleaner, Mrs. Gina, to help with the housework and cleaning, because of her left neck and shoulder problems. However, by spring 1991, Mrs. Gina stopped working, as the Applicant felt capable of managing on her own, with the help of her children.

The Applicant testified that in spring 1991 she did not have a right hand problem. She agreed in cross-examination that by spring of 1991 she was functioning in a similar fashion as before the accident.

The Applicant testified that she carried on without further professional help at home, and that for about the next six months she was feeling better and able to cope.

It is not disputed that following the accident the Applicant suffered a "whiplash" type injury which affected her neck, left shoulder and arm. I find that the Applicant complained principally of left-side injuries until approximately July 1991, when she indicated that, for the most part, her injuries had resolved and she was essentially functioning as she had prior to the accident. This finding is corroborated by the testimony of Jan Rutherford, the adjuster who handled the Applicant's file on behalf of the Insurer after July 1991.

Ms. Rutherford testified that on July 31, 1991 the Applicant basically agreed that she was no longer substantially disabled, and no longer required outside help with her housework.

The Applicant's right-side problems became troublesome in fall 1991. She testified that the condition of her right hand had deteriorated by about October 1991. She felt she needed help again. However, since she received no help, the Applicant was obliged to carry on as before. She continued to use her right hand, as she is right-handed.

In the fall of 1991, the Applicant also learned that her husband needed back surgery, since his back condition was worse. He could no longer assist at home as before.

The Applicant was shown surveillance videotape taken in November 1991 and in spring 1992. The videotapes showed the Applicant apparently functioning in a normal fashion, pulling open a heavy door with her right hand, shopping, and using her right arm to pick out oranges, and to load the groceries into her car. The Applicant conceded, in cross-examination, that she was not doing anything different than she had done prior to the accident.

The Applicant testified that her family doctor, Dr. Teitelbaum, referred her to an orthopaedic specialist, Dr. Tepperman, for investigation of her complaints. After performing some EMG tests, Dr. Tepperman suggested that the Applicant see a neurologist, and so consultations were arranged with specialists, Dr. Rowed and Dr. Gentili.

The Applicant testified that neither Dr. Rowed nor Dr. Gentili were of assistance to her. Dr. Teitelbaum also referred her to Dr. Kirsh, who suggested acupuncture, and a "coping with pain" program. The Applicant rejected this suggestion because, she stated, "I needed help medically, not psychologically".

The Applicant continued to complain of her right hand discomfort to Dr. Teitelbaum, who finally suggested that she see Dr. Kachooie about the problem. The Applicant first saw Dr. Kachooie about her right hand on September 10, 1992.

The Applicant had first seen Dr. Kachooie in 1986 about her low back problem, and continued to consult him about her back up to and after the date of the accident. Dr. Kachooie is also the Applicant's husband's back specialist.

The Applicant testified that she saw Dr. Kachooie on November 28, 1990, just five days after the motor vehicle accident of November 23, 1990, but did not mention the accident to him at that time.

She explained that she was seeing Dr. Kachooie specifically about her back. She had seen Dr. Teitelbaum about her neck and shoulders, and therefore did not need to ask Dr. Kachooie about those problems at that time.

The Applicant saw Dr. Kachooie again in April 1992, and again did not discuss the accident of November 1990, or her neck and arm symptoms.

When the Applicant consulted him in September 1992, Dr. Kachooie ordered an EMG examination and prescribed physiotherapy and massage therapy for the Applicant's arm and hand. Dr. Kachooie ultimately determined that the Applicant suffered from a right ulnar nerve problem and recommended surgery to correct the problem. The surgery was performed in January 1993.

In cross-examination, the Applicant admitted that in the autumn of 1985 she fell and injured her right shoulder. She also admitted that because of the pain medication she was taking she was feeling clumsy and falling in May 1989. She also had a fall in October 1989. She did not recollect whether she ever fell on her elbow.

The Medical Evidence:

A number of medical doctors testified at the hearing. I also had the benefit of much medical documentation. The evidence is summarized as follows.

(i) Dr. Kachooie

Dr. Kachooie is a specialist in physical medicine and rehabilitation. He spent four years training in his speciality. As well, he did four years postgraduate training in neural science.

Dr. Kachooie testified that he had been treating the Applicant for her low back problems since 1986. He had conducted extensive investigations which resulted in a finding of chronic pain syndrome and a referral to a multi-disciplinary pain management program.

Dr. Kachooie first learned about the motor vehicle accident in September 1992, although he acknowledged that he had seen the Applicant on November 28, 1990, shortly after the accident, and on April 24, 1992. He stated that on those two visits he did not note anything unusual about the way she carried her right arm.

Dr. Kachooie testified that, when he examined the Applicant in September 1992, he did not ask her about the details of the motor vehicle accident, and did not verify whether her right elbow had sustained a direct blow. He speculated that she might have hit the elbow against the dashboard or the steering wheel of the car.

When the Applicant consulted him in September 1992, Dr. Kachooie ordered bone scans and performed EMG studies. Based on these tests, he diagnosed a Reflex Sympathetic Dystrophy Syndrome (RSDS), as well as ulnar nerve damage (neuropathy), which he described as tardy ulnar palsy.

The ulnar nerve is a branch of the median nerve which runs down the arm. It branches off at the elbow and innervates the area of the hand corresponding to the little finger and the half of the ring finger closest to the little finger.

Dr. Kachooie attributed the Applicant's ulnar nerve problem to the motor vehicle accident. He testified that the fact that the Applicant first complained about her right hand symptoms 17 days after the accident (December 10, 1990) was not unusual, since ulnar nerve injuries typically do not start or evolve quickly.

Dr. Kachooie's evidence was that the ulnar nerve can be injured as a result of trauma or a blow, or it can be damaged if a person habitually and repeatedly holds the arm in a flexed position, with the elbow bent. Typically, a patient will not notice symptoms until a number of months after the injury or trauma. He referred to the literature and authorities on tardy ulnar palsy, which indicates that the onset and evolution of symptoms is insidiously slow. Symptoms can first manifest themselves up to 40 years after the original trauma or injury.

Dr. Kachooie testified that the trauma from the accident did not need to be great - even a bruise to the elbow could result in a tardy ulnar palsy. He suggested that the Applicant's neck problem (the whiplash injury) could cause her to hold her arm in a semi-flexed position, which would contribute to the development of ulnar nerve damage. It was therefore his opinion that the accident had caused the ulnar nerve injury.

Dr. Kachooie commented that he was disadvantaged in ascertaining the cause of the Applicant's problem, in that he examined her two years after the accident.

He agreed that it was difficult to confidently connect the Applicant's ulnar nerve problem with the motor vehicle accident. However, he stated that he believes the accident contributed to the problem, because the problem arose after the accident, and the Applicant had never complained of a problem in her right hand and arm prior to the accident.

He stated that the Applicant would not have symptoms unless she had sustained some trauma to the elbow. He agreed that the first documentation of the right arm problem was by Dr. Rado in June 1991. However, he understood that the Applicant had complained about continuous right arm problems for the three days immediately after the accident. I note that there is no evidence that this is the case.

Dr. Kachooie also confirmed, in cross-examination, that the EMG and nerve conduction studies that were performed as of October 1991 showed no cause for concern at that time.

Dr. Kachooie indicated that it was possible that the Applicant could have banged or otherwise injured her right elbow as recently as the summer of 1992. He stated that normally, where the ulnar nerve is injured, muscle wasting can occur quite quickly. The fact that the Applicant suffered no muscle wasting might indicate that the ulnar damage was comparatively recent.

In cross-examination, Dr. Kachooie confirmed that a significant percentage of cases of tardy ulnar palsy (the literature indicates 30 per cent) are of idiopathic origin, meaning that the origin or causation of the condition is unknown.

He also confirmed that the Applicant had suffered a fall in October 1985, where she landed on her back and pulled her right arm. He commented, however, that it would be unusual for someone to injure an elbow in a fall, or to fall on the flexed elbow in such a way as to injure the ulnar nerve. Normally, the elbow is extended and not flexed in a fall.

(ii) Dr. Teitelbaum:

Dr. Stanley Teitelbaum has been the Applicant's family doctor since 1981. His notes of the Applicant's visits are Exhibit 4. Dr. Teitelbaum confirmed that his notes show that on October 17, 1986 the Applicant complained of a tendonitis in her right shoulder as the result of a fall.

Dr. Teitelbaum first saw the Applicant after the accident on November 26, 1990. He confirmed on that day the Applicant complained of pain in her left mastoid area, and neck problems, but not of right-side pain.

He confirmed that on December 10, 1990 the Applicant complained to Dr. Chung, a resident in his office, of numbness in her right fourth and fifth fingers.

Exhibit 4 (Dr. Teitelbaum's notes) shows an entry for December 10, 1990 signed by Dr. Chung. This entry refers, among other things, to a complaint by the Applicant of numbness, paresthesia and weakness in the right fourth and fifth fingers. A diagram of the hand is drawn, with a line down the centre of the hand. Half of the hand including the entire fourth and fifth fingers is shaded.

Dr. Teitelbaum testified that the Applicant's left-side symptoms got worse with time. By December 17, 1990, the Applicant felt she could no longer do her housework as her neck and left arm were sore. She therefore hired a housekeeper to help her with the heavier work. By December 17, Dr. Teitelbaum had arranged for physiotherapy for the Applicant's neck.

Dr. Teitelbaum testified that the Applicant did well with the physiotherapy, but her condition seemed to deteriorate quickly after the physiotherapy was discontinued. By September 4, 1991, she was sleeping badly, complaining of a sore neck, and of numbness in her right fourth and fifth fingers.

Since that time, Dr. Teitelbaum testified, the Applicant's condition has not really changed. She has complained of persistent pain in her neck and arms, and has stated that she cannot do heavier housework such as vacuuming and laundry.

Dr. Teitelbaum assumed that the Applicant's complaints were due to the motor vehicle accident since, prior to the accident, she had few problems referrable to her neck and arms. Since the accident, she has had consistent and persistent complaints in this area, and the only adverse event that the doctor is aware of was the motor vehicle accident.

Dr. Teitelbaum agreed that, if the Applicant had not suffered trauma to her right rotator cuff or elbow area in the motor vehicle accident, then the accident would not have caused the symptoms that Dr. Kachooie identified in 1992. He stated that it was possible that the Applicant had suffered a blow or jarring injury to her right arm without remembering it.

In cross-examination, Dr. Teitelbaum confirmed that the Applicant was a chronic patient, who habitually took quite heavy doses of analgesic medications to deal with her chronic pain. She has a long history of insomnia and headaches. It was not unusual for her to suffer from polyarthralgia -- that is, multiple aches and pains.

(iii) Dr. Rado:

Dr. George Rado is a physiatrist who saw the Applicant at the request of the Insurer. He has specialized training and experience in the assessment and rehabilitation of injured individuals.

Dr. Rado first saw the Applicant on June 3, 1991. He prepared a report dated July 10, 1991 (Exhibit 15) in which he reviewed the Applicant's complaints. At that time, the Applicant was complaining, among other things, of tingling in her right arm which affected the ulnar-innervated fingers. However, after physically examining the Applicant, Dr. Rado found no right ulnar nerve difficulty. He did not foresee any increased symptoms, neurologic complaints, or delayed onset disabilities.

Dr. Rado next saw the Applicant on November 18, 1991. On this occasion the Applicant continued to complain of her right arm, and the doctor found that the Applicant's range of movement was somewhat restricted. However, he found that she did not suffer any significant loss of function.

In Exhibit 17, a reporting letter to the Insurer dated November 18, 1991, the doctor reviewed the findings and stated that, "I remain unconvinced that a component of voluntary modulation of symptoms intensity is totally absent."

Dr. Rado was questioned about the fact that the Applicant subsequently underwent right ulnar nerve surgery. He considered that the ulnar nerve damage could not be related to the automobile accident, in the absence of a direct blow or contact. He stated that, if the Applicant's elbow had been struck or injured, her symptoms would have arisen within a few days of the accident.

Dr. Rado stated that, for the accident to have caused the ulnar nerve problem, a significant elbow contact would be required. It was unlikely that a mild impact or jarring would have caused damage severe enough to create an ulnar neuropathy.

Dr. Rado explained that tardy ulnar palsy is caused by the progressive development of scar tissue on the ulnar nerve over a long time. Therefore, he felt that the Applicant could not have developed tardy ulnar palsy resulting from the accident (even had she suffered a blow) as her first symptoms arose too soon after the accident.

Dr. Rado commented that one would look for an identifying factor such as a direct blow or complications following an elbow fracture for a tardy ulnar palsy. One would also look for prolonged leaning or pressure on the elbow, which might occur during a period of hospitalization or bed rest.

Dr. Rado stated that there was no reason to doubt that in September 1992 the Applicant did develop a real ulnar nerve injury. He commented, "Life goes on". It was his view that there was no clear cause for the Applicant's condition, and nothing that directly connected it with the accident.

(iv) Dr. Rowed:

Dr. David Watson Rowed is the head of neurosurgery at Sunnybrook Hospital. He saw the Applicant once, on January 16, 1992, on a referral from Dr. Teitelbaum.

When he saw the Applicant, she complained of neck discomfort and "a central feeling of numbness and pain in the right hand". Dr. Rowed examined the Applicant, and wrote a reporting letter on January 16, 1992 (Exhibit 10) without having reviewed the Applicant's x-rays or EMG reports. He concluded his letter by stating, "Quite simply I don't find anything much of concern and I would think she is likely to be a candidate only for symptomatic treatment."

Dr. Rowed testified that, when he examined the Applicant, she did not have symptoms of a severe ulnar neuropathy. When he subsequently reviewed the October 1991 EMG studies, the results were indicative of some ulnar neuropathy, although not severe. The Applicant's symptoms became more severe afterwards. This is typical of the development of a tardy ulnar neuropathy and does not suggest that the motor vehicle accident was causative of or aggravated the condition.

Dr. Rowed stated that it is very difficult to know or determine the events that caused a tardy or chronic ulnar neuropathy, because an antecedent event could have occurred up to 40 years before.

Dr. Rowed's thought that a tardy ulnar neuropathy would not be caused by a contusion, but by repeated trauma, or by complications from the management of trauma, such as prolonged bed rest holding the elbow bent.

Dr. Rowed stated that nothing about the circumstances of the motor vehicle accident suggests that the Applicant sustained a right ulnar nerve injury, since no impact on the right arm or right elbow is reported. Dr. Rowed commented, "people get ulnar neuropathy for no particular reason all the time -- there is no specific definable cause for 30% of the cases."

Dr. Rowed confirmed Dr. Rado's view that an ulnar neuropathy caused by a motor vehicle accident would normally be acute, and neurological disfunction would become apparent very quickly. An ulnar neuropathy would not appear insidiously six months after a motor vehicle accident and progress after that.

(v) Dr. Sattarian:

Dr. Javad Sattarian is the orthopaedic surgeon who performed ulnar nerve decompression surgery on the Applicant on January 12, 1993. Dr. Sattarian reported on the surgery and his findings in a letter dated January 26, 1993 (Exhibit 42). Dr. Sattarian found that scar tissue was compressing and flattening the ulnar nerve in the cubital tunnel.

Dr. Sattarian discussed the most common causes of ulnar nerve compression. He noted that, in 30 per cent of the cases, no specific cause is discovered.

Dr. Sattarian stated :

Considering the surgical findings in this lady.... I feel that the ulnar nerve entrapment was probably due to soft tissue scarring in the cubital tunnel behind the medical epicondyle. It is difficult if not impossible to say how and when the soft tissue scarring occurred. However, one of the most common causes of development of the scar tissue in the cubital tunnel is a soft tissue injury to the elbow. The soft tissue injury could be in the form of direct trauma to the elbow or a sudden or uncontrolled movement of the elbow region.

Findings on Disability:

The Applicant bases her claim to ongoing section 13 benefits on the right ulnar neuropathy that developed subsequent to September 1991. It is clear that the Applicant did suffer ulnar nerve damage, which was eventually operated on in January 1993. The issue which I must resolve is whether the ulnar neuropathy can be attributed to the motor vehicle accident of November 1990.

The weight of the available medical evidence indicates that the motor vehicle accident could only have caused the Applicant's injury if she had sustained a direct blow or trauma to her right elbow and arm.

Even Dr. Kachooie indicated that his conclusion that the injury arose from the accident was based on the assumption that the Applicant's right elbow was struck or received a blow in the accident.

I have no evidence to suggest that this occurred. The Applicant's evidence was clear and specific, that on the impact of the accident, she was leaning to the left, and only the left side of her body collided with the car seat. She did not report to Dr. Teitelbaum, whom she saw three days after the accident, or to anyone else, that she had banged or injured her right arm or elbow.

In the absence of any trauma to the elbow from the motor vehicle accident, I cannot find, on the balance of probabilities, that it is more likely than not that the accident caused an ulnar nerve injury.

The Applicant's counsel invited me to conclude, from the fact of the Applicant's neuropathy, that there "must have been a blow" or jarring of the Applicant's elbow. However, in my view, such a conclusion is purely speculative, given the fact that 30 per cent of ulnar injuries arise for no known reason.

Dr. Kachooie, the Applicant's own specialist, acknowledged it was difficult to confidently connect the ulnar nerve problem with the accident. He speculated that the Applicant had sustained some trauma or bruising, and also suggested that she repeatedly held her arm in a semi-flexed position as a consequence of the accident. However, with no evidence to substantiate either of those possibilities, Dr. Kachooie's etiology remains purely speculative.

Dr. Teitelbaum merely pointed out that the accident and the injury were temporally connected. Both Drs. Teitelbaum and Kachooie thought that the injury was caused by the accident because, prior to the accident, the Applicant did not have an ulnar nerve problem, and she developed one after the accident.

Dr. Sattarian, the surgeon, was unable to say how and when the soft tissue scarring, which he felt had caused the problem, came about.

Neither Dr. Rado nor Dr. Rowed thought that the accident could have caused the ulnar neuropathy. Both Dr. Rado and Dr. Rowed are well respected specialists. I note that Dr. Rowed is a neurosurgeon with impeccable credentials and, for the purposes of this hearing, an entirely neutral witness. Although he was subpoenaed to attend at the hearing by the Insurer, he originally examined the Applicant at the request of her own family physician. He has no interest in the outcome of the hearing, and was never retained by the Insurer. I therefore have no hesitation in relying on the evidence of Dr. Rowed in this matter.

I also note that the Applicant has some history of falls and right side complaints, as documented in Dr. Teitelbaum and Dr. Kachooie's medical notes. It is quite possible that the Applicant bruised her elbow in a fall.

Under the circumstances, I cannot conclude that the accident caused the Applicant's ulnar nerve problem.

I find that the Applicant is not entitled to section 13 benefits after July 7, 1991, since I am not satisfied, on the balance of probabilities, that the Applicant's ulnar neuropathy was caused by the motor vehicle accident.

For the same reason, I find that the Applicant is not entitled to her claims for additional household help subsequent to July 7, 1991. The Applicant required household assistance, according to her own evidence, because she was unable to manage her housework due to her right hand problem. However, since this problem did not result from the accident, the Insurer is not obliged to pay for the expenses claimed.

2. The Deductibility of the Collateral Benefits

The Insurer claims that the workers' compensation benefits received by the Applicant should have been deducted from her weekly benefits pursuant to section 13(3) of the No-Fault Benefits Schedule. That section of the legislation states:

(3) The weekly benefit under subsection (1) will be $185 less any payments for loss of income, except Unemployment Insurance benefits,

(a) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan; or

(b) received under any sick leave plan.

The Insurer claims that the workers' compensation benefits should be deductible as payments for loss of income under this section.

I received little evidence or argument about the amount, nature and character of the workers' compensation benefits.

The Applicant testified that at the time of the accident she was receiving approximately $270 a month from workers' compensation as the result of a work related accident in 1980, where she injured her lower back. Shortly before the auto accident, the Workers' Compensation Board cut off a supplementary benefit which she was receiving, and which had brought her total workers' compensation benefits to about $400 a month.

I heard no evidence about the nature and type of payments that the Applicant was receiving. However, I did receive a copy of correspondence dated September 16, 1992, from the Workers' Compensation Board to the Applicant's counsel. A copy of this letter was transmitted by fax to me and to counsel for the Insurer on September 29, 1992.

This letter was not marked an exhibit to the hearing -- I assume as a result of an oversight on the part of counsel. However, I am relying on this letter, in the absence of any other evidence about the Applicant's workers' compensation payments. The letter clarifies that the Applicant is in receipt of a 20 per cent permanent life award for a low back disability which she sustained on October 22, 1980 in a work-related accident. The award is granted under section 42(1) of the Workers' Compensation Act.

The deductibility of such a workers' compensation pension has been extensively canvassed by Senior Arbitrator Naylor in the case of Antonio Pallotta v. Alpina Insurance Co. Ltd. (O.I.C. File No. A-000808, dated April 22, 1992), and in Carlo Caring v. The Wawanesa Mutual Insurance Company (O.I.C. File No. A-000860, dated February 18, 1993).

In both those cases, Senior Arbitrator Naylor held that the workers' compensation pension for permanent partial disability was not a payment for loss of income, because it was assessed based on the nature and degree of the injury, and payable regardless of whether the applicant ever returned to work.

In the absence of any argument that the reasoning in those cases is inapplicable, I adopt the analysis of Arbitrator Naylor, and find that the workers' compensation payments received by the Applicant are not deductible from her weekly benefits received under section 13.

I also heard some evidence, during the course of the hearing, that the Applicant had applied for and was receiving a disability pension from the Canada Pension Plan. However, no details about this pension were provided to me, and I heard no submissions about the deductibility of this pension. Accordingly, I make no ruling on this issue.

Order:

1. The Applicant is not entitled to weekly income benefits and childcare benefits from July 8, 1991 onwards.

2. The Applicant is not entitled to her expenses for household help from July 8, 1991 onwards.

3. The workers' compensation benefits received by the Applicant cannot be considered payments for loss of income and, accordingly, the Insurer is not entitled to repayment of the overpayment claimed.

May 21, 1993

Frederika M. Rotter Senior Arbitrator

Date

APPENDIX "A"

Exhibit 1

Report of Dr. Kachooie, dated October 3, 1992

Exhibit 2

Report of Dr. Rado, dated October 16, 1992

Exhibit 3

Letter of Dr. Kachooie, dated November 4, 1992

Exhibit 4

Dr. Teitelbaum's clinical notes

Exhibit 5

Article on "Disorders of the Peripheral and Cranial Nerves and the Autonomic Nervous System

Exhibit 6

Letter from Dr. Kachooie to Dr. R. Owen, dated October 21, 1986

Exhibit 7

Psychological Consultant's Report, dated March 25, 1987

Exhibit 8

Letter from Dr. Kachooie to Health & Welfare Canada, dated Oct. 9, 1987

Exhibit 9

Letter from Dr. Kachooie to Dr. Teitelbaum, dated November 28, 1990

Exhibit 10

Report of Dr. Rowed, dated January 16, 1992

Exhibit 11

Motor Nerve & Sensory Conduction reports and EMG reports

Exhibits 12, 13 & 14

Nerve diagrams

Exhibit 15

Report of Dr. Rado, dated July 10, 1991

Exhibit 16

Report of Dr. Rado, dated March 10, 1992

Exhibit 17

Report of Dr. Rado, dated November 18, 1991

Exhibit 18

Letter from Katherine Ho Sang, dated November 5, 1992

Exhibit 19

Expenses claimed

Exhibit 20

Meteorological Summary, November 1990

Exhibit 21

Photographs dated November 4 to December 2, 1991

Exhibit 22

Photographs dated February 18 to 20, 1992

Exhibit 23

Photographs dated May 13 to May 18, 1992

Exhibit 24

Photographs of Mrs. Shehadeh and car

Exhibit 25

Report of Dr. Tepperman, dated November 21, 1991

Exhibit 26

Report of Dr. GentiK, dated June 4, 1992

Exhibit 27

Map of "Trigger Points"

Exhibit 28

Excerpt from Personal Injury: A Medico-Legal Guide to the Spine and Limbs, D.J. Ogilvie-Harris, G.J. Lloyd (Canada Law Book, 1986)

Exhibit 29

Medical Reports of Dr. Tepperman and others

Exhibit 30

Note from Dr. Teitelbaum, dated January 28, 1991

Exhibit 31

Letter from J. Rutherford, King Adjusters Ltd., dated August 6, 1991

Exhibit 32

Letter from Robin Brown, King Adjusters Ltd., dated April 4, 1991

Exhibits 33A & 33

BStatement by Norma Shehadeh

Exhibit 34

Letter from J. Rutherford, King Adjusters Ltd., dated January 15, 1992 and attachments

Exhibit 35

CPS extract on FIORLNAL®

Exhibit 36

Dr. Kachooie's clinical notes

Exhibit 37

EMG report dated September 18, 1992

Exhibit 38,39 & 40

Reports of Dr. Kachooie dated September 18, 1992, September 10, 1992 and November 18, 1992

Exhibit 41

EMG readings, dated November 18, 1992

Exhibit 42

Report of Dr. Sattarian, dated January 26, 1993

Exhibit 43

Covering note from Dr. Tepperman, dated October 29, 1991