Neutral Citation: 1995 ONICDRG 142

File No.: A-004728

ONTARIO INSURANCE COMMISSION

BETWEEN:

GLENN E. BORIN

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION

The Applicant, Glenn E. Borin, was injured in a motor vehicle accident on September 8, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ The Insurer paid weekly benefits under section 13 of the Schedule until December 29, 1992, when benefits were terminated. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

The issues in this hearing are:

1. Preliminary issue: Did mediation take place in this matter?

2. Is the Applicant entitled to weekly benefits after December 29, 1992?

3. If the Applicant is entitled to weekly benefits after October 1993, is the Insurer entitled to reduce his benefits on account of Canada Pension Plan disability benefits he received?

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

Result:

1. Mediation took place, and failed. The Applicant may proceed to arbitration.

2. The Applicant is not entitled to weekly benefits after December 29, 1992.

3. Given my finding on the second issue, I do not need to determine the third issue. The Applicant is entitled to be reimbursed for his expenses incurred in the proceeding.

Hearing:

The hearing was held in St. Catharines, Ontario, on September 5, 1995, before me, Nancy Makepeace, Arbitrator.

Present at the hearing:

Applicant:

Glenn E. Borin

Insurer's

Representative:

Ivan Luxenberg

Barrister and Solicitor

Insurer's

Officer:

Ann Crewson

Witnesses:

Glenn Borin, the Applicant

Dr. Adrian Rocci, the Applicant's family doctor

Proceedings were recorded by Brian Penfound, of the St. Catharines Official Examiner's office.

Exhibits and other documents before the arbitrator are listed in an Appendix to this decision.

Preliminary issue:

On behalf of the Insurer, Mr. Luxenberg submitted that I have no jurisdiction to hear the matter because the Applicant failed to participate in mediation. The Insurer relied on the Couraud² decision.

Section 281(2) of the Act says that no one may refer a matter to arbitration "unless mediation has first been sought and has failed."

In Couraud, the Report of Mediator stated,

Within five minutes of the commencement of the meeting [for face-to-face mediation], the insured's representative and the insured person left, and indicated they would not participate in mediation. In my opinion, mediation did not take place.

Senior Arbitrator Frederika Rotter agreed:

The Act obliges a mediator to enquire into a case and attempt to settle as many of the disputed issues and [sic] possible. In my view, parties to a mediation have a concomitant obligation to participate in the process in good faith. I conclude that if a party frustrates and attempts to short-circuit the process, a mediator is free to form the opinion, not that mediation has failed, but that it did not take place.

In my view, the facts in Couraud distinguish that case from this one. Mr. Borin has never expressly refused to participate in mediation. He told me that after applying for mediation, he decided to spend some time in Sweden with his family. He left several messages on the Mediator's voice-mail. On May 31, 1993, he faxed the Mediator a note giving his address and fax number in Sweden.³ In response, the Mediator faxed a letter to the Applicant in Sweden. She cancelled the scheduled mediation of June 8, reminded the Applicant that the 60-day time period for mediation would expire on June 25, 1993, and asked when the Applicant would be returning to Canada. She also summarized the Insurer's position as to the Applicant's entitlement to benefits.⁴ The Applicant faxed another letter to the Mediator, dated June 21, 1993, in which he set out his position on entitlement.⁵ However, it appears that the Mediator had not received this letter when she issued her Report of Mediator, dated June 24, 1993. It was the Mediator's opinion that "[t]he mediation failed," and she stated in her report that the Applicant had given her his phone number, fax number and address in Sweden. Along with the Report of Mediator was a standard Commission letter indicating that the mediation failed and providing information as to the Applicant's options.⁶

The Applicant's absence from the country certainly made mediation more difficult in this case. However, by leaving messages for the Mediator, and giving her his address, phone number and fax number in Sweden, he showed his willingness to participate. In his letter of June 21, 1993, he gave a meaningful response to the Insurer's position. I am satisfied that he participated in mediation in good faith, and has satisfied the requirements of section 281(2) of the Act. Therefore, I find that I have jurisdiction to determine this matter.

Background:

The Applicant is in his early forties. He has one daughter, who is almost 11 years old. He is separated from his daughter's mother, and lives alone.

The Applicant suffered a whiplash injury in a rear-end collision on September 8, 1992. He claims that he is disabled by neck pain and lower back pain resulting from the accident.

The Applicant's employment status and essential tasks:

The Applicant worked in the automotive sector until 1990, when he resigned for reasons connected with a dispute with his wife about support and custody of their daughter. He has variously described his job as auto mechanic, auto parts sales representative, or automotive technical consultant. He testified that the job involved inspecting cars for damage resulting from car accidents.

Between September 1990 and May 1991, the Applicant took a retraining course (with the Niagara Industrial Training Advisory Program) to upgrade his automotive knowledge and skills. He then began looking for work. He received Unemployment Insurance benefits.

At the time of the accident, the Applicant remained unemployed, but he claims that he had just been offered a job. Under section 12(2)iii. of the Schedule, an insured person may be

entitled to a weekly income benefit if he was, at the time of the accident, entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

The Applicant relied on a letter from Agne Larsson, Service Leader of Landis & Gyr, a Swedish company. It is dated August 27, 1992, and appears to have been faxed on that day. The letter, in its entirety, is as follows:

I can promise MR GLENN BORIN a guaranteed employment for at least five years in my company, starting from 1992-10-01. He is going to have a payment off [sic] 3900 can $ per month. He is going to work as an [sic] TECHNICAL CONSULT in building control.⁷

The Applicant testified that Mr. Larsson lives in Sweden and refused to come to Canada to testify about the job offer. According to the Applicant, Mr. Larsson was an acquaintance of his. In the summer of 1992, he and a mutual friend stayed with the Applicant at his home in St. Catharines. The Applicant told Mr. Larsson about his experience as an auto mechanic and his upgrading course. They discussed job possibilities, and Mr. Larsson offered him a job on his return to Sweden. The Applicant testified that Landis & Gyr is a multinational building control systems company.

The Applicant did not produce this letter or tell the Insurer about the job offer until the day of the hearing. The Insurer objected to the admission of the letter. However, considering the brevity of the letter, the potential prejudice to the Applicant if I excluded it, and the fact that the Applicant is unrepresented, I allowed the letter to be filed.

In assessing the weight to be given this letter, I place some significance on the Applicant's failure to make any mention of it for three years after the accident, despite the fact that the Insurer had taken the position, from the beginning, that he was unemployed at the time of the accident. Further, I have the impression from the wording of the letter that it was prepared for the purpose of this proceeding or other litigation. The Applicant testified that it was prepared for immigration purposes, but I heard no further detail about why the letter would be needed for this purpose. I have some concern that it may have been prepared after the accident.

The letter gives little detail about the Applicant's job duties, hours of work, benefits or other terms of employment. The Applicant explained that the terms of employment in Sweden are much more regulated and standardized than in Canada, and therefore there was no need to specify the details in the offer of employment. I find it plausible that an employer might not set out the detailed terms of employment in a letter confirming a job offer, but I think it is reasonable to expect the Applicant to be able to provide more details for the purpose of this proceeding.

I also find it unlikely that the Applicant's automotive background would be considered appropriate qualification to work in the area of building control systems.

In the absence of corroborating evidence, I am not satisfied that the Applicant had a job offer at the time of the accident. Therefore, the Applicant is not eligible for section 12 benefits. In order to receive benefits under section 13 of the Schedule, which applies to unemployed insured persons, he must establish that, as a result of the accident, he is substantially unable to perform the essential tasks in which he would normally engage.

The Applicant submitted that he is entitled to weekly benefits if he cannot work on cars, even if he is able to look for such work. In Cabral, a similar argument was put forward by the applicant, who was an unemployed construction worker. I made the following comments:

The test under section 13 looks back to an insured person's activities before the accident, and not forward to the activities he or she might have been able to pursue if not for the accident. The Schedule does not provide damages for future economic loss or loss of opportunity, although an injured person may be able to recover such damages in a tort claim. The interpretation of section 13 proposed by the Applicant would also tend to obliterate the distinction between sections 12 and 13 wherever the insured person was not employed at the time of the accident, but had a prior work history.⁸

I see no reason to depart from this view in this case. I find that the Applicant's essential tasks include the activities involved in looking for work (preparing job applications and résumés, calling and visiting prospective employers), but do not include the job duties of an auto mechanic, auto parts sales representative, or automotive technical consultant.

The phrase "essential tasks" has been discussed in many arbitration decisions. The following general principles have emerged:

• Determining the Applicant's essential tasks is to some extent a subjective inquiry:
• requires an individualized inquiry into the circumstances of the particular applicant, in order to identify the activities of daily living prior to the accident and compare them with the post-accident activities.⁹
• "However, this subjective inquiry cannot ignore the objective parameters of the words used in the section."¹⁰
• Not every "activity" is a "task". A "task" involves "an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants."¹¹
• Not every task is an "essential" task. "Essential" means "basic," "necessary," or "fundamental."

In this case, the Applicant gave very little evidence about his essential tasks. I find that, in addition to looking for work, the Applicant's essential tasks were as follows:

• self-care: sleeping, bathing, dressing, personal hygiene
• light meal preparation
• housework: vacuuming, doing the laundry (at the laundromat)
• childcare: the Applicant's daughter visits every second weekend and every Monday or Wednesday evening

The Applicant testified that he grows "the normal vegetables.' I heard no other detail about gardening or other yardwork and I do not accept that these were part of the Applicant's essential tasks.

The Applicant also testified that he maintained two hobby cars, but was unable to continue with this hobby after the accident. He testified he did not drive either car, and insured them only for comprehensive coverage. Although he testified that the older car needed to be restored, the only activities I heard about were washing and waxing. I do not accept that occasional maintenance of these cars was an essential task.'

The Applicant's pre-accident medical condition:

Dr. Rocci's notes for the year before the accident contain no reference to any neck or back problems, and Dr. Rocci confirmed in his testimony that he was unaware of the Applicant's having any back problems before the accident. I accept that the Applicant had no notable neck or low back symptoms before the accident.

However, the Applicant broke his left ankle on July, 1991, when he fell off a tractor, which then ran over his leg. He wore a cast till September 10. Although he testified that the leg healed "perfectly," Dr. Rocci's notes for September 17, 1991 and February 17, 1992 indicate that the Applicant's ankle was still aching and showed restriction of movement.

The Applicant was also having problems with his right heel. He admits that in June 1992 it was bruised and sore. He testified that he slipped on a step. Dr. Rocci's note of June 19 states simply that the Applicant fell. A bone scan ordered by Dr. Rocci was "highly suggestive of an acute traumatic injury" to the calcaneal (heel) bone.¹² At the hearing, Dr. Rocci explained that this suggested an occult fracture.

Dr. Rocci's note for June 23, 1992 indicates that the Applicant had been "off work and school" since the July 1991 tractor injury. On that day, Dr. Rocci completed a standard form medical certificate for the Ministry of Community and Social Services, stating that the Applicant was "unable to walk due to pain in right heel and left ankle without assistance." He also stated that the Applicant needed to use a cane. He predicted "very slow improvement." He expected that the Applicant could return to sedentary work in 4-8 weeks.¹³

The Applicant denied that he used a cane before the accident, and stated that he got the cane about a year ago because of his back pain. He denied that problems with his left ankle and right heel affected his ability to work. However, in cross-examination, he admitted that even before the accident, he "would have to sit to work." I found the Applicant's evidence about his pre-accident condition to be inconsistent and unconvincing. I prefer to rely on the evidence of Dr. Rocci, whom I found to be careful and balanced in his testimony. I rely particularly on Dr. Rocci's June 23, 1992 medical certificate and his note for that day, which were prepared contemporaneously, and which indicate that at the time of the accident, the Applicant was significantly affected by problems with his left ankle and right heel. Dr. Rocci certified to the Ministry of Community and Social Services that he expected the Applicant to be ready for sedentary work in 4-8 weeks; by implication, the Applicant was unable to do even sedentary work at that time. I find that before the accident, the Applicant was significantly affected by problems with his left ankle and right heel.

The accident and the Applicant's subsequent condition:

On September 8, 1992, the Applicant was stopped at a red light when his car was rear-ended. He testified that the collision occurred at very high speed, about 65 kilometres per hour, and that the car that struck his did not brake. He testified that his seat (the driver's seat) broke, and the car was pushed into the car ahead. Both rear quarter-panels, and the front end of the car were damaged. The Applicant drove himself to the St. Catharines Hotel Dieu Hospital, which he testified was about a mile away.

I was presented with no evidence to corroborate the Applicant's testimony about the damage to his car or the severity of the accident. The Applicant admitted that his car was still drivable after the accident.

The Applicant was seen in emergency by Dr. F.D. Moss, who noted "neck pain laterally through shoulders," and "tender paracervical muscles." However, the neck was "supple." The nurses' notes and accompanying graphic indicate that the Applicant complained of pain in the back of the head and neck. Flexeril was prescribed.¹⁴

The hospital records indicate that the Applicant sustained no broken bones, loss of consciousness or other serious injuries. No x-rays or other investigations were done at the hospital. Considering these factors, and considering that the Applicant was able to drive to the hospital after the accident, I find that the accident was relatively minor.

The Applicant testified that he felt "numb all over" immediately after the accident, and continued to feel numb afterwards. However, the medical records indicate that the Applicant's complaints immediately after the accident were specific and confined to his neck.

The Applicant saw Dr. Rocci on September 10, 1992. Dr. Rocci's standard form medical report¹⁵notes tenderness and reduced motion in the Applicant's neck. He diagnosed neck strain, prescribed Ibuprofen and predicted 2-3 months of disability.¹⁶

A week later, the Applicant told Dr. Rocci that his neck and shoulders were still sore, and Dr. Rocci noted continuing restrictions in neck movement. He referred the Applicant to Shelley Marchand, a physiotherapist, who treated the Applicant between September 24 and October 16, 1992, when the Applicant terminated treatment.

On September 27, 1992, the Applicant had an accident at home. He went to the Hotel Dieu Hospital, where he was seen by Dr. Martin. X-rays were taken. Dr. Martin's consultation note stated that the Applicant had fallen off a ladder, dislocating his left shoulder. A closed reduction was performed and the Applicant was told to come back in two weeks for follow-up.¹⁷

Ms. Marchand's clinical notes for September 24 and 28 indicate that she treated the Applicant for pain and stiffness of the neck and shoulders, and headaches, which she described as his main complaint.¹⁸ On September 30, Ms. Marchand noted "discomfort entire spine, paravertebrals." On October 5, she noted "lumbar spine - full range of motion - discomfort paravertebrals." These are the first references in her notes to a problem with the lower back.

Dr. Rocci's notes indicate that the Applicant first complained to him about low back pain on October 1, 1992. His note for that day says that the Applicant fell from a ladder on September 27, resulting in a dislocated shoulder and low back pain. X-rays that day showed moderate degenerative disc disease at L5-S1 with no acute changes in the cervical or lumbar spine.¹⁹

I find that the Applicant did not report low back pain until after his accident at home on September 27, 1992.

On October 8, Dr. Rocci noted only the problems with neck pain and headaches. Later that month, the Applicant returned to Sweden because his mother had died. He testified that he saw several doctors while he was there, and that the Swedish doctors prescribed muscle relaxants and other medications, and performed further tests. Unfortunately, the Swedish doctors' reports had not been translated into English by an independent interpreter, although the Applicant advised that he had translated them himself. I ruled that they were inadmissible.

The Applicant returned to Canada in November. On November 26, 1992, he attended again at Hotel Dieu Hospital, complaining about his shoulder. The Applicant testified that he did not complain about his low back at this time because he had seen doctors about that problem in Sweden.²⁰

The Applicant was examined by Dr. Allan C. Gold, an orthopaedic specialist, on November 30, 1992, at the Insurer's request.²¹ Dr. Gold opined that the Applicant's cervical strain had improved, would continue to improve, and would allow him to return to his pre-accident job, which he understood to be auto parts sales, involving intermittent heavy lifting, in six to eight weeks. He recommended home traction, a cervical pillow and a heat massage unit.

The Applicant told Dr. Gold that his low back pain was getting worse. Dr. Gold opined that the Applicant suffered a lumbar strain in the accident, which aggravated his pre-existing "moderately severe" disc degeneration at L5-S1. He could see no evidence of disc protrusion or nerve involvement. He recommended avoiding prolonged lifting or standing, and heavy lifting and bending, for two months. He also recommended that the Applicant obtain an OBUS forme and firm mattress, and that he participate in an exercise program, once his symptoms improved. In his opinion, the Applicant's low back symptoms would prevent him from working at a job involving heavy lifting or repetitive bending for "many months," but he should be able to return to modified work within eight weeks.

Dr. Gold opined that the left shoulder problem, which was not a result of the accident, should not prevent the Applicant from returning to his pre-accident job or any other job.

The Applicant next visited Dr. Rocci on December 21, 1992 (his first visit since October 8), complaining of both neck and low back pain. On March 10, 1993, the Applicant's next visit, Dr. Rocci reported increased back pain with numbness and weakness in the left leg. A CAT scan of the lumbar spine showed central disc herniation at L4-5, and disc degeneration at L5-S1, impinging on the nerve opening.²² The Applicant left for Sweden shortly thereafter, and stayed there for a year.

On returning from Sweden, the Applicant saw Dr. Rocci on June 16, 1994. His primary complaint was low back pain, although he was still complaining of neck pain and headaches. Dr. Rocci sent him for a repeat lumbar x-ray and CAT scan, and referred him to Dr. Rocco A. de Villiers, a neurosurgeon. The x-ray showed "severe" degenerative disc disease at L5-S1 and "less prominently" at L4-L5.²³ The CAT scan showed:

1. Acquired degenerative stenosis of the infrapedicular recess for the exiting right L5 nerve root.

2. Degeneration of the L5-S1 disc with suggestion of a posterolateral disc protrusion and some compression of the traversing right S1 nerve root.

3. Large central disc protrusion at L4-5 with marked thecal sac compression.

4. Moderate-sized central disc protrusion at the L3-4 level with moderate thecal sac compression.

Dr. de Villiers found that the Applicant "has quite extensive degenerative changes in his lumbar spine. I am not sure that we can be certain which is the symptomatic level. With his overall picture, I am not terribly optimistic that surgery is going to be helpful for this man." Dr. de Villiers queried whether a discase injection would be helpful.²⁴

The Applicant applied for Canada Pension Plan disability benefits in September 1994. In his medical certificate²⁵, Dr. Rocci set out the following findings on most recent examination: "1) depression, 2) neck pain with movement, 3) persistent low back pain, left leg numbness and weakness left leg, 4) persistent pain/stiffness left ankle." His prognosis was poor for the low back pain, which he noted had been chronic for two years with little resolution; he also stated that the ankle will remain permanently stiff.

Dr. Rocci referred the Applicant to Dr. Isador H. Lieberman, an orthopaedic surgeon.²⁶ Dr. Lieberman opined that the Applicant is suffering from multiple level disc herniations and degenerative spine disease. He referred the Applicant for an MRI and recommended considering surgery. It appears that the MRI was never done.

In a medical-legal report prepared for the Applicant on February 10, 1995²⁷, Dr. Rocci stated that the Applicant "has had persistent and serious symptoms of his low back" since the accident. In cross-examination, Dr. Rocci conceded that this was not accurate. He agreed that his notes indicate that the Applicant made his first complaints of L4 and L5-S1 pain in March of 1993.

Analysis and conclusions:

The Applicant submitted that he sustained L4 and L5-S1 injuries in the accident which did not immediately become symptomatic. In his testimony, Dr. Rocci agreed with him that symptoms from disc compression may vary amongst individuals and from time to time. The Applicant also testified that he had not complained about his low back symptoms initially because he was "in shock". However, I am struck by the fact that he made specific complaints of neck pain. I do not accept that the Applicant had significant low back symptoms immediately after the accident.

Neither Dr. Lieberman nor Dr. de Villiers offered an opinion as to the cause of the Applicant's low back pain, although both noted that the Applicant attributed it to the accident. Dr. Gold opined that the accident aggravated the Applicant's pre-existing degenerative disc disease. None of the specialists addressed the issue of the delay between the accident and the Applicant's first complaints of low back pain. In the absence of such evidence, and considering that the Applicant's accident was relatively minor and his fall on September 27 was serious enough to dislocate his shoulder, I am not satisfied that the accident significantly contributed to the Applicant's low back problems.

Moreover, there are significant gaps between the Applicant's complaints of low back pain, after his first report of this symptom on September 30, 1992. The Applicant complained to Dr. Rocci on October 1, 1992, to Dr. Gold, on November 30, 1992, and to Dr. Rocci on December 21, 1992. He did not complain about back pain again until March 10, 1993. The next reported complaint was on June 16, 1994, to Dr. Rocci. I find that the Applicant's failure to seek further treatment and rehabilitation suggests that his low back symptoms did not substantially disable him from engaging in his normal tasks, after December 29, 1992.

With regard to the Applicant's neck symptoms, I accept that the Applicant suffered from pain and tenderness in his neck immediately after the accident and for some time afterwards. However, Dr. Rocci's notes indicate that after the end of 1992, low back pain became the focus of the Applicant's complaints. The Applicant did not mention neck pain at all when he visited Dr. Rocci on March 10, 1993, and it was a secondary concern on the June 16, 1994 visit, as it was when he saw Dr. Lieberman in January 1995. Dr. de Villiers, in August 1994, did not refer to the neck problem at all. In response to my question as to what he cannot do, the Applicant testified that he cannot squat, bend from the waist, twist, walk erect, sit or stand for prolonged periods, or lift anything over about 10 kilograms. These restrictions are characteristic of low back injuries rather than neck injuries. I do not accept that the Applicant suffered from disabling neck pain after December 29, 1992.

In any event, to the extent that the Applicant suffers from accident-related neck and low back pain after December 29, 1992, I am not satisfied that his symptoms were more disabling than the problems he had with his left ankle and right heel before the accident. I am not satisfied that the accident significantly contributed to any ongoing disability from which the Applicant suffers.

Expenses:

The Applicant seeks an award of the expenses he has incurred in this 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 amounts are set out in Part 6 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vtto Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.

Although the Applicant was unsuccessful in this matter, I accept that he has back problems which he attributes to the accident. I find this an appropriate case in which to exercise my discretion to award the Applicant his expenses incurred in the proceeding. I expect that his expenses will be minimal, since he was unrepresented. If there is a dispute about the amount of expenses owing, I may be spoken to about an assessment.

Order:

1. Mediation took place, and failed. The Applicant may proceed to arbitration.

2. The Applicant is not entitled to weekly benefits after December 29, 1992.

3. Given my finding on the second issue, I do not need to determine the third issue.

The Applicant is entitled to be reimbursed for his expenses incurred in the proceeding.

October 11, 1995

Nancy Makepeace

Arbitrator

Date

Appendix

Exhibits:

Exhibit 1

Curriculum Vitae of Dr. Gold

Exhibit 2

St. Catharines Hotel Dieu Hospital records (3 pages)

Exhibit 3

Dr. Rocci, September 11, 1992 - Form 4 (2 pages)

Exhibit 4

Report of Dr. Rocci, February 10, 1995

Exhibit 5

CPP Application, September 21, 1994 (3 pages)

Exhibit 6

Report of Dr. de Villiers, August 24, 1994

Exhibit 7

CT scan, April 30, 1993

Exhibit 8

Radiological Report, July 25, 1994

Exhibit 9

Hamilton Civic Hospitals CT scan, July 27, 1994

Exhibit 10

Report of Dr. Lieberman, January 3, 1995

Exhibit 11

Faxed note to Dawna Lange, May 31, 1993

Exhibit 12

Dawna Lange's letter to Applicant, June 2, 1993

Exhibit 13

Faxed note to Dawna Lange, June 21, 1993

Exhibit 14

Dawna Lange's letter to Applicant, June 23, 1993

Exhibit 15

Agne Larsson's letter, August 27, 1992

Exhibit 16

Dr. Rocci, Ministry of Community and Social Services Medical Report, June 23, 1992

Exhibit 17

Bone scan report, June 29, 1992

Exhibit 18

Dr. Rocci's clinical notes and records

Exhibit 19

Notes of Shelley Marchand

Exhibit 20

Radiological Report, October 1, 1992

Exhibit 21

Consultation Report of Dr. Martin, September 27, 1992

Exhibit 22

Hospital Emergency Chart, November 26, 1992

Exhibit 23

Report of Dr. Gold, December 8, 1992

Exhibit 24

CPP Notice of Entitlement

Other Documents:

Report of Mediator, dated June 24, 1993

Application for Appointment of an Arbitrator, dated August 29, 1994

Response by Insurer, dated December 22, 1994

Pre-hearing letter dated March 17, 1995

Resumption Pre-hearing letter dated June 9, 1995

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term Schedule' will be used to refer to Regulation 672.
2. 2Lucien Couraud and Co-operators Insurance Company, October 31, 1994, OIC File No. A-006346
3. 3Exhibit 11
4. 4Exhibit 12
5. 5Exhibit 13
6. 6Exhibit 14
7. 7Exhibit 15
8. 8Joao Cabral and State Farm Mutual Automobile Insurance Company, March 24, 1995, OIC File No. A-005119; see also Carmen Palumbo and Dominion of Canada General Insurance Company, April 13, 1995, OIC File No. A-007314 and Judith M. Sands and Dominion of Canada General Insurance Company, June 29, 1995, OIC File No. A-011046
9. 9Norman Downs and Allstate Insurance Company, July 18, 1991, OIC File No. A-000064
10. 10Edgar Cowie and The Non-Marine Underwriters, March 9, 1993, OIC File No. A-001159
11. 11Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894
12. 12Report, June 29, 1992, Exhibit 17
13. 13Exhibit 16
14. 14Hospital records, Exhibit 2
15. 15Exhibit 3
16. 16Dr. Rocci's clinical notes and records were filed: Exhibit 18
17. 17Exhibit 21
18. 18Exhibit 19
19. 19Exhibit 20
20. 20Exhibit 22, Hospital Emergency Chart
21. 21Report, December 8, 1992: Exhibit 23, curriculum vitae: Exhibit 1
22. 22Exhibit 7
23. 23Exhibit 8
24. 24Report, August 24, 1994, Exhibit 6
25. 25September 16, 1994, Exhibit 5
26. 26Report, January 3, 1995, Exhibit 10
27. 27Exhibit 4