Neutral Citation: 1993 ONICDRG 60

File No. A-002387

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARIA PRIETO

Applicant

and

TORONTO TRANSIT COMMISSION

Insurer

DECISION

Issues

The Applicant, Maria Prieto, was injured in a motor vehicle accident on January 20, 1991. She applied to the insurer for weekly benefits and childcare benefits under section 13 of Ontario Regulation 672 (the "No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8. The Toronto Transit Commission (the "T.T.C.") denied the claim on the basis that Mrs. Prieto was not substantially unable to perform the essential tasks in which she would normally engage. Mediation was unsuccessful in resolving the dispute between the applicant and the T.T.C., and the Applicant applied for arbitration under the Insurance Act.

The issues in this hearing are:

1. Is Mrs. Prieto entitled to weekly benefits from January 27, 1991?

2. Is Mrs. Prieto entitled to childcare benefits from January 27, 1991?

3. Is Mrs. Prieto entitled to a special award?

Mrs. Prieto also claims interest on any benefits owing, and her expenses incurred in the proceeding.

Result

1. Mrs. Prieto is not entitled to weekly benefits.

2. Mrs. Prieto is not entitled to childcare benefits.

3. Mrs. Prieto is not entitled to a special award.

Mrs. Prieto is entitled to her expenses incurred in the proceeding.

Hearing

The hearing was held in North York, Ontario, on August 25, 1993, before me, Nancy Makepeace, arbitrator.

Present at the hearing were:

Applicant:

Mrs. Maria Lourdes Prieto

Applicant's Representative:

Mr. Altor Shields

Barrister and Solicitor

Insurer's Representative:

Mr. Duncan Boardman

Barrister and Solicitor

Ms. Stephanie Koufes-MacMillan

Claims Adjuster, T.T.C.

Witnesses were:

Mrs. Prieto, the applicant

Mr. Francisco Prieto, the applicant's husband

Ms. Stephanie Koufes-MacMillan, Claims Adjuster, T.T.C.

Mr. Ron Gilley, Claims Supervisor, T.T.C.

Mrs. Prieto was assisted by Ms. Stella Adenyo, of Global Translations, an interpreter in the Spanish and English languages.

Exhibits and other documents on the record are listed in Appendix 1 to this decision.

EVIDENCE AND FINDINGS

Background facts and issues

Mrs. Prieto is 38 years old, married, and the mother of four children. Her three youngest children, aged eight, twelve, and thirteen, remain at home. At the time of the accident, Mrs. Prieto was a homemaker. She is Spanish-speaking.

Mrs. Prieto and her husband are permanent residents of the United States. They came to Canada around January 10, 1991, and stayed with Mrs. Prieto's brother-in-law in East York. Mrs. Prieto and her family returned to the United States in March, 1991.

Mrs. Prieto was a passenger on a T.T.C. bus when it collided with another vehicle on January 20, 1991. She claims that as a result of the accident she is totally disabled from performing her pre-accident essential tasks as a mother and homemaker.

Entitlement to weekly benefits

Eligibility for weekly benefits is set out in section 13 of the No-Fault Benefits Schedule, as follows:

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 benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

Pre-accident activities

Mrs. Prieto and Mr. Prieto testified that the essential tasks in which Mrs. Prieto would normally engage before the accident were: sleeping; self-care (washing, dressing and grooming herself); preparing the children's clothing; preparing, serving and cleaning up after meals; walking the children to and from school; household chores, including making the beds, cleaning the bathroom, vacuuming the floor, and laundry; sewing; shopping; driving; and sexual relations. Mrs. Prieto was solely responsible for the household and childcare tasks.

Mr. Prieto testified that his wife also did "manual arts", including ceramics and pottery. Mrs. Prieto did not give any evidence about such activities.

The accident

Mrs. Prieto initially testified that at the time of the accident she was sitting at the front of a T.T.C. bus. The impact threw her forward into a pole and then backward onto the floor. Her face, nose and knees hit the pole. She was hurt in her back, waist, shoulders, nose and face. The bus stopped. The police were not called. Her husband told the bus driver that she had hit her nose against the pole.

On February 8, 1991, Ms. Koufes-MacMillan, a claims adjuster with the T.T.C., visited Mrs. Prieto at the home of her brother-in-law. Mr. Prieto was present, and Ms. Koufes-MacMillan prepared a written statement based on her interview with Mrs. Prieto, which was conducted through Mr. Prieto. The statement includes the following account of the accident:

We were seated at the very back of the bus, along the rear bench seat. I was seated in the window position, and my husband was seated next to me. As the bus approached Finch Ave., the bus braked suddenly. This caused me to fall forward into the metal armrest of the seat ahead of me. After I hit my knees on the armrest, and I fell back into my seat, hurting my back. I also hurt my right hand when I was thrown forward. I did not contact any other part of my body, nor did I fall to the floor. My husband and I became very nervous. My nose started to run, and I thought it was because of the cold weather. The bus driver left the bus, and then came back. He took down my name, and told me someone would be calling from TTC. We boarded the next bus northbound. At this time, I wiped my nose, and it was bleeding. It bled just for a short time, and nothing further was said.

Presented with the statement in cross-examination, Mrs. Prieto agreed that they had been sitting in the back seat of the bus. The Application for Accident Benefits form which she signed, dated February 22, 1991, also gives an account of the accident consistent with that given in the statement prepared by Ms. Koufes-MacMillan:

I was seated in the last seat at the window side. When the bus braked I pushed forward and then backwards hurting my back, nose, knees, and right hand on metal piece.

Mr. Prieto's testimony was consistent with the statement and the application.

Mr. and Mrs. Prieto agreed in their testimony that Mr. Prieto had told the bus driver only that Mrs. Prieto had hit a pole; there was no mention of falling to the floor.

I accept the account of the accident given by Mrs. Prieto in her statement to Ms. Koufes-MacMillan and her application for benefits. This inconsistency in Mrs. Prieto's evidence is significant, in my view, since a fall onto the floor might go further to explain the degree of disability claimed by Mrs. Prieto.

Post-accident activities

Mrs. Prieto testified that she has been unable to perform any of her tasks as a mother and homemaker since the accident. She testified that she had immediate pain in her shoulders, back, waist, nose, legs, and knees, and had headaches immediately after the accident. She spent most of the weeks following the accident in bed, and could not sleep because of the pain.

Mrs. Prieto's evidence was that her condition has not improved since the accident, and she remains totally disabled from performing her household tasks. Her husband prepares her breakfast and helps her to groom and dress herself. He prepares the clothing for the children, vacuums the floors, does the laundry, and cleans the bathroom; her children also help with these chores. She can't clean the bathroom or use the vacuum because of the bending involved. She can no longer sew for the same reason. Her husband and children do the shopping, though she goes with them to tell them what to buy and once in a while she will pick something up and put it in the cart. Her husband does the cooking, but he does not cook well. She could not make a sandwich because she would need to get things from upper or lower cupboards. She cannot drive because holding the steering wheel hurts her shoulder. She sometimes tries to walk the children to and from school, but not as regularly as before. She registered for an English class, but could not continue because she could not sit long enough. She cannot sleep because of pain and headaches. She cannot walk because her legs are wobbly and she has pain in her back and legs. She has pain in her shoulders, and cannot bend or reach. She has pain in her upper and lower back.

Mrs. Prieto testified that her pain has not improved since the accident; it gets worse every day. She admitted on cross-examination that her pain was worst immediately following the accident, but she could not give a date when her condition began to improve. There were also inconsistencies in her testimony about her therapy. At different points in her testimony, she said that she gets no relief from chiropractic or physiotherapy, that she gets a short period of relief following therapy, and that her pain is worse when it recurs after therapy. She denied that pain medication helped her, then later admitted that it helps sometimes, but she was unable to say how often or how much it helps.

Mr. Prieto agreed that Mrs. Prieto does none of the household chores, and that he does them, with the help of the children. However, he testified that Mrs. Prieto could do some housework tasks if no bending were involved and she could change positions frequently and rest periodically. Specifically, she would be able to rinse cups and saucers, serve orange juice or coffee, make a sandwich, and prepare frozen food, if everything was at counter level. She could use the vacuum. She drove two or three times a week around the neighbourhood, but could not drive for longer distances as she had before the accident.

Mr. Prieto expressed frustration about his wife's condition. He testified that he encouraged her to try to do things, but she couldn't complete them, and he ended up doing the chores himself to avoid her complaints about pain and the need for her to rest and take more painkillers. He testified that she does five to ten per cent of what she did before the accident and that he does 99 per cent of the work around the house.

During the February 8 visit, Ms. Koufes-MacMillan observed Mrs. Prieto stirring a pot on the stove, serving her son a glass of orange juice from the fridge, and washing a few dishes. Ms. Koufes-MacMillan testified that she formed the opinion that Mrs. Prieto was not substantially unable to perform her household tasks, based on her observation of Mrs. Prieto during the meeting. She also relied on Mr. Prieto's statement that his wife had "difficulty in carrying on with [her] housework", which Ms. Koufes-MacMillan understood to mean that Mrs. Prieto could do the work, although with pain. Ms. Koufes-MacMillan admitted that none of Mrs. Prieto's observed activities involved bending or lifting, and that they took a total of about six minutes in a meeting of a little over an hour. Ms. Koufes-MacMillan advised Mrs. Prieto at this meeting that the T.T.C. would pay for medical and rehabilitation expenses, but would not pay weekly benefits.

Mrs. Prieto testified that she was unable to do any cooking or meal preparation at any time since the accident. She denied being able to make a sandwich or open a bottle, but admitted she could serve a glass of orange juice. Both she and her husband testified that she could no longer prepare the Latin American foods she had prepared for the family before the accident, and that Mr. Prieto did all the meal preparation now, relying on prepared foods.

Mr. Prieto admitted on cross-examination that his wife had served orange juice and washed some cups and saucers during the February 8 visit, but he said that no bending was required, as the coffee and other things were on the counter, and his wife was complaining about the pain after performing these activities.

I accept Ms. Koufes-MacMillan's testimony about Mrs. Prieto's observed activities during the February 8 meeting.

The February 8, 1991 statement includes the following account of Mrs. Prieto's condition:

I haven't seen a family physician yet because we don't have any money to pay for it. I'm feeling severe pain in my right knee when I walk up and down stairs, or if I wear high heels. When I wear heels, I also feel pain in my back. I have difficulty in carrying on with my housework because I have a lot of pain in my back. If I stand for a long time my back starts to pain me. My pain in the knee and back is just the same. I have difficulty walking. I can't bend without pain.

Mr. and Mrs. Prieto denied that Mrs. Prieto had been wearing high heels after the accident. Their evidence was that Mrs. Prieto spent most of February in bed, and was able to do none of her household tasks.

Mrs. Prieto testified that she had signed the statement because Ms. Koufes-MacMillan told her she had to, but she didn't know what it said. The discussion had been between Ms. Koufes-MacMillan and her husband.

Mr. Prieto testified that his English was not as good at that time as it was at the hearing, and that he had not understood 100 per cent of what Ms. Koufes-MacMillan had said. Each page of the statement is signed by both Mr. and Mrs. Prieto. Mr. Prieto admitted that he had read the statement before signing it.

Ms. Koufes-MacMillan testified that she watched Mr. Prieto reading the statement, and he did not ask for clarification of anything. Mr. Prieto translated for Mrs. Prieto during the interview, and they conversed in Spanish before signing the statement. Ms. Koufes-MacMillan felt that Mr. Prieto's English was as good at that time as it was at the hearing.

Mr. Prieto gave his testimony without the aid of an interpreter. He responded quickly and appropriately to questions, and appeared to have a working facility in English. I find that there is a significant discrepancy between Mrs. Prieto's February 8, 1991 statement about her condition and her testimony at the hearing about her condition in February 1991. I accept the statement as an accurate report of Mrs. Prieto's condition in February 1991.

Mr. Ron Gilley, a T.T.C. claims supervisor, met with Mr. and Mrs. Prieto on February 22, when they dropped by the T.T.C. office to submit some expense forms. He testified that in a meeting lasting half to three-quarters of an hour, he observed no signs of disability in Mrs. Prieto, and she sat with no apparent discomfort throughout the meeting. Ms. Koufes-MacMillan also testified that when she visited Mrs. Prieto on February 28 to drop off a cheque for medical expenses, she again observed no sign of disability.

With the exception of the February 8 meeting, neither Ms. Koufes-MacMillan nor Mr. Gilley had an opportunity to observe Mrs. Prieto attempting to perform her household tasks. Nor did they ask her to identify her pre-accident tasks and state which she could not do. Their observation of Mrs. Prieto was brief and limited in scope; they did not see her walking for any significant distance or performing any activities other than sitting. However, I accept their testimony as to what they observed, and I find it significant that the T.T.C.'s representatives observed no sign of disability at a time when Mrs. Prieto claims to have been virtually bedridden.

Medical evidence

Mrs. Prieto first sought medical treatment on February 11, 1991, when she saw Dr. Rogelia Adam. She testified that she had not seen a doctor earlier because the family had no money and no health insurance. Mrs. Prieto and Ms. Koufes-MacMillan agreed in their testimony that Ms. Koufes-MacMillan had explained on February 8 that the T.T.C. would reimburse her for medical expenses incurred.

Dr. Adam referred Mrs. Prieto to Dr. B.S. Sehmi, an orthopaedic surgeon. Dr. Sehmi saw Mrs. Prieto only once - on February 19, 1991. In his Form 4 (standard form) report of that date, Dr. Sehmi indicated that x-rays ordered by Dr. Adam were negative for the knees, showed disc degeneration at L5-S1, and showed a slight septal deviation in the nose. Dr. Sehmi outlined his findings in more detail in his medical-legal report of November 25, 1992. On examination, Dr. Sehmi made the following findings:

... her gait was normal. There was no external injury or deformity to be seen in the back or the knees. There was tenderness in the low back. The forward and lateral flexions were just below the knee level with pain. The extension was 75% and painful. The rotation was also 75% and also painful. The straight leg raising right and left was 80 degrees on both sides with pain in the low back but no radiating leg pains. The sensation, circulation, reflexes and muscle power in the legs were intact.

With regard to her knees, she had tenderness in the knees, the right more than the left. She has a pre-existing genu valgum (knock knees). There was some discomfort in the front of the knee in the patello femoral region. The knees were otherwise mobile and stable. The menisci were intact. The quadricep muscles were normal.

Dr. Sehmi diagnosed lumbar-sacral strain, contusion to the knees, and contusion to the nose with possible septal deviation. His prognosis was that the "main symptoms should settle in six to eight weeks but a degree of symptoms can last for few months and may need further therapy". In a later report, Dr. Sehmi noted that "sometimes these pains can take one or two years to clear up"; he did not feel there had been any serious injury to the back or knees.

Dr. Sehmi recommended physiotherapy for her knees and back, as well as hot showers, home exercises, heat, and a firm bed. Mrs. Prieto had physiotherapy treatment for about one month following her visit with Dr. Sehmi. She testified that she stopped going because the exercises hurt her and she was not getting any better. Dr. Sehmi also recommended that she gradually increase her activity over the next six to eight weeks.

Dr. Sehmi referred Mrs. Prieto to Dr. Robert Josephson, an ear, nose and throat specialist. Dr. Josephson's report, dated February 26, 1991, confirmed the deviated septum and described the elective surgery appropriate for this condition.

After seeing Dr. Sehmi, Dr. Adam and Dr. Josephson in February 1991, Mrs. Prieto did not seek medical attention again until October, when she saw chiropractor Dr. Griep. Mrs. Prieto explained that she could not afford to pay for a doctor's visit, then wait for the T.T.C. to reimburse her; Dr. Griep agreed to bill the T.T.C. directly. Ms. Koufes-MacMillan testified that on February 11, 1991, she had advised Mrs. Prieto that the T.T.C. would not pay medical costs in advance. Mr. and Mrs. Prieto admitted that they did not raise the issue again with the T.T.C.

Dr. Griep's October 23 and November 11, 1991 Form 4 reports describe Mrs. Prieto as "fully disabled". His last Form 4 report, dated February 7, 1992, stated that Mrs. Prieto was employable as of January 20, 1992. Mrs. Prieto discharged herself from his care as of March 19, 1992. She testified that she left Dr. Griep because the therapy was not helping her. She did not know why Dr. Griep thought she was employable, since she told him how she felt. She suggested this was because her husband didn't go with her to see Dr. Griep.

In March 1992, Mrs. Prieto first visited Dr. Klementowski, a family doctor. Mrs. Prieto claimed at that time that she was unable to sit or stand in one position for more than 10 or 15 minutes. Examination showed tenderness in the neck, upper back and lower back, decreased range of motion to flexion secondary to pain in the lower back, pain on leaning or rotating to right or left, pain at 45 degrees on straight leg raising, and some slight decrease in sensation in both legs. Dr. Klementowski diagnosed "chronic back pain secondary to disc degeneration of T8-S1", and opined that it would likely be permanent, given the time elapsed since the accident. He did not believe Mrs. Prieto was totally disabled, and the only restriction he put on her activities was "no heavy lifting". He prescribed Ibuprofen and recommended home exercises and physiotherapy.

The physiotherapy was stopped as of June 12, 1992, after one month. Mrs. Prieto testified that she couldn't do most of the things Dr. Klementowski asked her to do. She told him about her problems with walking, but he told her she had to try. Later in her testimony, she stated that Dr. Klementowski told her she was totally disabled, and should not do anything around the house; I do not accept this evidence, which is inconsistent with Dr. Klementowski's reports and with Mrs. Prieto's own earlier testimony. Mrs. Prieto testified that she does not take physiotherapy treatment any more because of the fees and the need to get someone to drive her there. Mrs. Prieto saw Dr. Klementowski for the last time on April 9, 1993.

Dr. Klementowski referred Mrs. Prieto to Dr. Janet Kent, a rehabilitation medicine specialist, who first saw Mrs. Prieto on July 22, 1992. On examination, Dr. Kent found Mrs. Prieto to be neurologically intact, but "tender to palpation over multiple muscles and ligamentus [sic] structures in the lumbar and thoracic spine." Dr. Kent diagnosed myofascial pain syndrome, and recommended pool therapy twice a week, anti-depressant medication and a neurosurgical consultation. Dr. Kent also recommended psychological intervention. Mrs. Prieto began seeing Maria Ortiz, a Spanish-speaking social worker in February 1993. In a later report, Dr. Kent states that Mrs. Prieto began her pool therapy on July 30 and was discharged on October 15 "as in the preceding month she had only attended one treatment session". Dr. Kent last saw Mrs. Prieto in September 1992, and explains in a later report that Mrs. Prieto "has made several appointments, but has neglected to show up". Based on the two visits in August and September 1992, it was Dr. Kent's opinion that Mrs. Prieto could perform her essential tasks as a housewife and mother.

Mrs. Prieto explained that she didn't show up for the appointments because she was unable to get out of bed. She denied that Dr. Kent had told her she was fit to perform her household tasks, but admitted that Dr. Kent had told her to try. However, she was unable to try because of the pain.

On August 27, 1992, Mrs. Prieto was seen by Dr. Thomas Pastore, orthopaedic surgeon, at the request of the T.T.C. In his medical-legal report of September 1, 1992, Dr. Pastore expressed the opinion that Mrs. Prieto "could perform her activities as a housewife and mother". He found examination of her back and right knee "entirely within normal limits", and stated that "at the present time there are really no objective physical findings. Most of her complaints are purely subjective in nature."

Mrs. Prieto saw Dr. Walter Grand, neurosurgeon, on August 3, 1993. In his report, he noted "multiple somatic complaints referable along the spinal axis", with "no clear-cut focal signs". He found "good mobility of the back and the neck and no tenderness up and down the spine of any significance". He recommended that Mrs. Prieto have a myelogram and CT scan of the neck and lumbar region. Dr. Grand has subsequently given Mrs. Prieto a verbal opinion recommending therapy but not surgery; no written report was available at the time of the hearing.

Conclusion

I find that Mrs. Prieto was not disabled from her essential tasks as a result of the accident. In reaching this conclusion, I consider the medical evidence, Mrs. Prieto's conduct since the accident, and the discrepancies in Mrs. Prieto's evidence.

The only objective findings identified by any of the doctors who have examined Mrs. Prieto are a deviated septum, and disc degeneration at L5-S1. The earliest reports, those of Dr. Sehmi, predict that the main symptoms should settle in six to eight weeks, and recommend a gradual return to activity. Dr. Griep thought Mrs. Prieto was employable as of January 20, 1992. In August 1992, Dr. Pastore opined that Mrs. Prieto's symptoms were entirely subjective and that she was not disabled from performing her tasks as a mother and homemaker. Dr. Klementowski diagnosed chronic pain syndrome, and recommended "no heavy lifting"; I heard no evidence to suggest that any of Mrs. Prieto's pre-accident activities involved heavy lifting. Dr. Klementowski's prognosis of possible permanent pain was based on the time elapsed from the time of the accident. Dr. Kent diagnosed myofascial pain syndrome, and was of the opinion that Mrs. Prieto could perform her essential tasks. None of the doctors has made findings supportive of the degree of disability claimed by Mrs. Prieto.

Mrs. Prieto's conduct since the accident is inconsistent with her claimed disability. She did not go to the hospital after the accident, but got onto another bus almost immediately. She did not seek medical attention for the first three weeks after the accident, and saw no doctors between February and October 1991. She has seen no one other than Dr. Grand since April 1993, when she last saw Dr. Klementowski.

I also find it significant that Mrs. Prieto has not persisted beyond a very short period in any physiotherapy or other activity that has been recommended by her doctors. Indeed, she stopped seeing Dr. Griep, Dr. Klementowski, and Dr. Kent when their advice conflicted with her claim of total disability.

I find that Mrs. Prieto's failure to persistently seek medical treatment and rehabilitation suggests that she is not substantially disabled from the essential tasks in which she would normally engage.

I must also consider the significant discrepancies in Mrs. Prieto's evidence. Absence or insufficiency of objective findings does not preclude entitlement to weekly benefits for chronic disabling pain. However, where there are no objective findings, or the objective findings do not account for the degree of pain and disability being claimed, the applicant's credibility is an important issue.

I cannot accept Mrs. Prieto's claim that she is totally disabled from her household tasks as a result of the accident. I find that the degree of disability claimed is implausible given the relatively minor nature of the accident. Moreover, I find that I cannot rely on Mrs. Prieto's testimony about her pain. As I have noted, she contradicted herself about how the accident happened and about the course of her disability since the accident. I found her to be evasive and less than forthright in her manner. Where Mrs. Prieto's testimony varies from the evidence of her husband, Ms. Koufes-MacMillan, or Mr. Gilley, I prefer the latter.

I accept that Mrs. Prieto has pain as a result of the accident. However, I am not persuaded that she is substantially unable to perform her essential tasks as a result of the accident.

Childcare benefits

Childcare benefits are payable under subsection 13(4) of the Schedule, the relevant part of which is as follows:

The insurer will pay to an insured person who is receiving a weekly benefit under subsection (1), ..., a benefit of $50 per week if Optional Benefit 3 has not been purchased, ..., for each person who at the time of the accident was residing with the insured person and in respect of whom the insured person was the primary caregiver if the person receiving the care was less than sixteen years of age or if the person required the care because of physical or mental incapacity.

Since Mrs. Prieto is not entitled to weekly benefits under subsection 13(1), she is not entitled to childcare benefits.

Special award

A special award is payable under subsection 282(10) of the Insurance Act where:

• the applicant is entitled to benefits and interest under the Schedule, and

• the arbitrator finds that the insurer unreasonably withheld or delayed payment of benefits.

On behalf of Mrs. Prieto, Mr. Shields requested a special award in the 30 to 40 per cent range on the ground that the T.T.C. did not give written notice of its reasons for denying the claim, refused to pre-pay medical expenses, and withheld benefits in disregard of medical reports provided in support of the claim.

No special award is payable in this case because Mrs. Prieto is not entitled to benefits and interest under the Schedule.

Expenses

Mrs. Prieto claims her expenses in the arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and maximum amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664 (R.R.O. 1990), Dispute Resolution Expenses.

Though Mrs. Prieto was unsuccessful in her claim, I find that the application for arbitration was brought for no improper purpose. Nor was there any impropriety in her conduct of the hearing. I find an award of expenses to be appropriate. If the parties are unable to agree on the amount of expenses, I remain seized of this matter and either party may apply for assessment of the expenses before me.

Order

1. Mrs. Prieto is not entitled to weekly benefits.

2. Mrs. Prieto is not entitled to childcare benefits.

3. Mrs. Prieto is not entitled to a special award.

Mrs. Prieto is entitled to her expenses incurred in the proceeding.

October 14, 1993

Nancy Makepeace Arbitrator

Date

APPENDIX 1

The following documents were introduced into evidence as exhibits:

Exhibit 1

Applicant's Document Brief

Tab 1

Form 4 report of Dr. Bhajan Sehmi, orthopaedic surgeon, dated February 19, 1991

Tab 2

Form 4 report of Dr. Robert Josephson, ENT, dated February 26, 1991

Tab 3

Form 4 report of Dr. Brian Griep, chiropractor, dated October 23, 1991

Tab 4

Form 4 report of Dr. Griep, dated November 11, 1991

Tab 5

Form 4 report of Dr. Griep, dated February 7, 1992

Tab 6

Form 4 report of Dr. Marc Klementowski, family physician, dated April 4, 1992

Tab 7

Report of Dr. Klementowski, dated October 30, 1992

Tab 8

Report of Dr. Klementowski, dated May 12, 1993

Tab 9

Report of Dr. Klementowski, dated June 21, 1993

Tab 10

Report of Maria Ortiz, Child and Family Services, April 22, 1993

Tab 11

Report of Dr. Sehmi, dated November 25, 1992

Tab 12

Clinical notes of Dr. Sehmi

Tab 13

Report of Dr. Janet Kent, rehabilitation medicine, dated march 4, 1993

Tab 14

Report of Dr. Kent, dated June 21, 1993

Tab 15

Clinical notes of Dr. Kent

Tab 16

Report of Dr. Walter Grand, dated August 4, 1993

Tab 17

[unavailable]

Tab 18

Clinical notes of Dr. Josephson

Tab 19

Prescription report

Exhibit 2

Report of Dr. Thomas Pastore, orthopaedic surgeon, dated September 1, 1992

Exhibit 3

Application for Accident Benefits, dated February 21, 1991

Exhibit 4

Statement given by Mrs. Prieto to Ms. Koufes-MacMillan, dated February 8, 1991

Exhibit 5

Report of Dr. Brian R. Griep, dated May 4, 1992

Other documents which formed part of the record were:

Report of mediator, dated September 22, 1992;

Application for appointment of an arbitrator, dated December 1, 1992;

Response by insurer, dated January 4, 1993;

Letter of pre-hearing arbitrator David Draper, dated May 6, 1993.