Neutral Citation: 1995 ONICDRG 185

File No. A-001536

ONTARIO INSURANCE COMMISSION

BETWEEN:

JOHN BEASON

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, John Beason, was injured in a motor vehicle accident on August 30, 1991. He applied for and received statutory accident benefits from Guardian Insurance Company of Canada (Guardian) payable under Ontario Regulation 672¹. Weekly income benefits of $460.00 were terminated by Guardian on July 18, 1992

The issues in this hearing are:

1. Was Mr. Beason employed or self-employed at the time of the accident?

2. If so, is Mr. Beason entitled to weekly income benefits under section 12 of the Schedule from the date benefits were terminated onwards?

Mr. Beason also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Beason was employed by TMI Productions at the time of the accident.

2. Mr. Beason is not entitled to weekly income benefits under section 12 of the Schedule from July 18, 1992 onwards.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on September 27, October 5, 6, 13 and 14, 1994, and January 18, 1995, before me, Susan Naylor, Senior Arbitrator.

Present at the Hearing:

Applicant: John Beason

Applicant's Representative: Michael Brown Barrister and Solicitor

Insurer's Representative: Stephen Macaulay Barrister and Solicitor

Insurer's Officer: Judy Pay Claims Examiner, Guardian Insurance

The proceedings were recorded by a court reporting service.

A complete list of exhibits can be found at Appendix A. Eight witnesses testified at the hearing, and are listed in Appendix B.

The Context:

Mr. Beason claims weekly income benefits under section 12 of the Schedule. To succeed in his claim, he must show that:

1. he was employed or self-employed at the time of the accident (he does not meet the alternative criteria set out in sections 12(2)1(ii) and (iii) or 2 to qualify for weekly income benefits);

2. he suffered physical, mental or psychological injuries as a result of an automobile accident;

3. by reason of his injuries, he has suffered substantial inability to perform the essential tasks of his occupation or employment, for the period claimed;

4. after 156 weeks, his injuries continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

Evidence and Findings:

Mr. Beason is 34 years old. He has worked in a variety of jobs and occupations in the course of his working life but his primary interest is in music. In the decade before the August 1991 accident, Mr. Beason gradually became involved in the production side of the music business and set up his own company, Honey B. Productions in 1987.

The music business was not particularly remunerative, and Mr. Beason supplemented his income by driving a cab from time to time.

In the late 1980s, Mr. Beason obtained a three year contract with Juice Records Ltd, a U.K. based enterprise, under which he was to sign and scout for new talent for the company in North America, Canada and the Carribean. His assignments included securing copyright for songwriting material and promoting the company in North America. Mr. Beason was to get an advance of $15,000, plus royalties from songwriting income.²

The medical evidence indicates that, up to this time, Mr. Beason had been relatively healthy. Unfortunately, just as things seemed to be coming together for his career in the music industry, he suffered a series of accidents. The first of these was in April 1989, when he tripped and fell down a flight of stairs at a TTC subway station. He landed on his back and head, and was kept in hospital overnight for observation. He suffered soft tissue injuries to his back and neck.³

A week or so later he was a passenger in a car, which was rear-ended,⁴ re-aggravating his injuries. Mr. Beason testified that his continued injuries prevented him from fulfilling his obligations to Juice Records, and the company suspended the contract at the end of April 1989. In the summer of 1989, Mr. Beason returned to driving cabs to earn an income. Shortly afterwards, at the beginning of August, he was involved in another accident, when a car turned left into the path of his cab. Mr. Beason hurt his chest, and re-aggravated his back and neck. He was off work for some time and only returned to driving gradually over the course of the next six months. He was then involved in another accident on April 11, 1990, when driving his cab. Mr. Beason swerved to avoid an open car door, from which a passenger was exiting, and collided with a traffic pole. Mr. Beason did not return to driving cabs after this.

In this series of accidents, Mr. Beason suffered soft tissue injuries to his upper and lower back, chest and neck. He also subsequently experienced headaches and sleep difficulties. Of these, the worst problem seemed to be with his lower back, which was a constant problem. Mr. Beason said that he could not strap on his guitar without experiencing "a sheet of pain". At some point, he started to experience pain in his right leg, and was diagnosed as having a "Baker's cyst" under his knee in August 1991, which was subsequently drained.⁵ Mr. Beason wore a neck and back brace on and off, and used a cane from time to time. It seemed that after each accident, he would slowly start to improve, only to suffer a set-back again with the next incident.

Mr. Beason saw his family doctor, Dr. William Chan, regularly throughout this time, and started to see a second family practitioner, Dr. Artinian, after the April 1990 accident, for a fresh perspective. He took analgesics constantly, and received extensive physiotherapy and chiropractic treatment. He saw two orthopaedic specialists, one of whom (Dr. Silverstein) suggested that psycho emotional factors contributed to Mr. Beason's condition and that Mr. Beason was somewhat exaggerating his symptoms.⁶

According to Mr. Beason, his condition started to improve in 1991 with continued medication and physiotherapy, and he was able to take up a new business arrangement involving Juice Records. There is some discrepancy as to how much better Mr. Beason was. He estimated at the hearing that, by the spring of 1991, he was 70% better, except for his lower back, which continued to be a problem. On his examination for discovery regarding his law suit over the April 1990 accident, he gave contradictory testimony, stating that he was only 25% better overall.⁷ Dr. Chan's records contained the annotation "75%" in respect to an appointment on August 12, 1991, shortly before the accident. Dr. Chan testified that this meant that Mr. Beason was 75% improved.

Although Mr. Beason's contract with Juice Records had been suspended since April 1989, his brother, Reginald Beason, and Neville "Gadget" Campbell were keen to take advantage of the opportunities that his connections with the company offered. Through Mr. Beason's contacts, they met with the principals of Juice Records in London, England in November 1990, and reached agreement with the company to take over some of the work previously contracted to Honey B. Productions. Mr. Reginald Beason and Mr. Campbell formed a partnership under the name, TMI Productions, to carry out the joint venture. Their agreement with Juice Records was based on the understanding that John Beason would be personally involved in the day-to-day operations of TMI Productions, to the extent his health allowed. This was at the insistence of Juice Records.⁸

TMI agreed to hire Mr. Beason to recruit artists on its behalf and to assist in producing recordings, starting in May 1991. Mr. Campbell testified that he hired Mr. Beason to accommodate Juice Records; he candidly admitted that he was not particularly happy about having to do so, but felt that this was the cost of doing business with the company. He testified that Mr. Beason was paid a base salary of $450 cash a week, plus commissions or "bonus incentives". Mr. Beason was also paid his expenses while travelling on company business, which were estimated to be around $100 a week. On the Employer's Confirmation of Income form, which accompanied Mr. Beason's application for accident benefits in this matter, Mr. Campbell listed Mr. Beason's total wage package (net of expenses) in the four weeks before the accident as $550, $580, $590, and $580.

Mr. Beason estimated that he spent 50% of his time "on the road", listening to potential talent in colleges and clubs, and 50% in negotiations by telephone or through faxes. He testified that he spent an average of 30 to 35 hours driving a week. He travelled widely to see acts, including to Detroit, Chicago, New York and to Montreal, and estimated that he drove to locations out-of - town, six or seven times in the period of his employment. He was also involved in the recording side of things, although this was primarily Mr. Campbell's area of expertise, and he worked extensively on the making of a video for one of the company's young acts, Split Decision.

Mr. Beason's evidence about his participation in the music video was corroborated by the film maker, Athanasis Gardanidis. Mr. Gardanidis shot the video in August 1991, after several months rehearsal.⁹ Mr. Gardanidis testified that Mr. Beason worked closely with him throughout June, July and August 1991. He was principally used as a consultant on the image of the young artists and their dance styles. He also looked after the general needs of the young people and their parents, while they were on the set. From time to time, Mr. Beason helped Mr. Gardanidis with set arrangements, although Mr. Gardanidis confirmed that this did not involve heavy labour. Mr. Campbell described Mr. Beason's job in the video production as "stand around and consult type of work".

Little contemporaneous documentation supports Mr. Beason's employment by TMI Productions in the months before the accident. Wage receipts filed were unnumbered copies and related only to Mr. Beason's standard pay. TMI did not provide a T4 slip for Mr. Beason, although he declared his income (net of expenses) from TMI under the rubric "casual help" in his 1991 income tax return. However, notwithstanding the rather meagre documentation, the evidence before me was generally consistent with regard to Mr. Beason's work with TMI Productions. Mr. Campbell advanced a credible explanation for the absence of original financial documentation, explaining that the music business largely operates as a cash business and that he had sent the original documentation concerning Mr. Beason back to Juice Records, in order that the company could verify its investment with TMI Productions. I found both Mr. Campbell and Mr. Gardanidis, who had nothing to gain by testifying at this hearing, to be credible witnesses, whose testimony should be relied upon. Mr. Campbell's testimony about his arrangement with Juice Records is corroborated in a letter written by Juice Record's successor company, Zig Zag Music Ltd. Although the letter was written for the purposes of these proceedings, I have no reason to question its accuracy. Based on the weight of the evidence, I find that Mr. Beason was employed by TMI Productions in the summer of 1991 up to the date of the August 1991 accident, and that the benefits he received have been properly calculated.

The accident that is the subject of these proceedings occurred on August 30, 1991. Mr. Beason was in a cab, as a passenger this time, when the cab collided broadside with a van. He was taken by ambulance to hospital, where he was discharged the same day, with medication and a cervical collar. He reported upper back and chest pain, pain in the neck and shoulders and left leg weakness. No loss of consciousness was reported at the time, although Mr. Beason testified that he thought that he had blacked out for several minutes. Later on, Mr. Beason started to complain about headaches and right leg pain.

Since that time, he has complained of constant upper and lower back pain, extending into the lower extremities, particularly on the right side. He has also complained about neck, chest and shoulder pain, headaches, incontinence and sleep difficulties. He testified that from time to time, he experiences excruciating flare-ups of back pain. One such flare-up on July 5, 1992, led him to go to the emergency department at St Joseph's Health Centre. He and Margaret Knowles, his wife, said that he was bedridden for seven to ten days as a result of this flare-up. Ms. Knowles said that her husband was incapacitated for much of the summer. Mr. Beason testified that he has had flare-ups of back pain of somewhat lesser intensity on five occasions since then. They were not precipitated by any particular incident or activity. According to Mr. Beason's and Ms. Knowles' testimony, he was able to do "hardly anything" during these flare-ups. At other times, he had "good days and bad days". He testified that he had more good days than bad days, but Ms. Knowles felt that the reverse was true. They testified that, on a good day, he was able to do light house chores. However, on bad days, he was able to do very little; he was, in the words of Ms. Knowles, "on the floor".

Mr. Beason has not returned to work since the accident, and feels that he is unable to do so because of the stress of the job and the travelling involved. (Since 1994, TMI Productions has largely been inactive.) Mr. Beason was concerned that the out-of-town travel would interfere with his medical and therapy appointments. He feels that he cannot apply himself mentally to the demands of the job, including the need for constant interaction with people. He acknowledged that he was able to sit for an hour and a half at a time as a passenger in a car, after the accident. He frequently travels across Metropolitan Toronto from High Park, where he presently lives, to Scarborough, where Dr. Chan's medical offices are located, to attend medical and physiotherapy appointments. However, he distinguished travelling as a passenger from the demands of extensive driving in the course of employment.

Mr. Beason was asked about surveillance videotape recorded in May 1994 that showed him on his roof, standing and bending down for one or two minutes. He was also filmed climbing down a ladder backwards, and later carrying the ladder to the back of the house. Mr. Beason explained that he had tried to repair a leak in an emergency situation, but that this had been his most strenuous day's activity since the accident.¹⁰ Mr. Beason's depicted activities are more strenuous than the limited household tasks he and his wife testified he is able to perform, even on a good day. However, I noted that his movements appeared to be guarded on this isolated occasion suggesting he was protecting his back.

Mr. Beason wore a back brace for up to six months after the August 1991 accident; he wears it now when he gets flare-ups. He stopped using a cane and the neck brace after some months. He became dependent upon Tylenol 3 for pain relief, and presently takes other analgesics, anti-inflammatories and an anti-depressant, Prozac. Extensive physiotherapy and chiropractic treatment have provided little relief from his symptoms.

Mr. Beason has been under the care of his family doctor, Dr. Chan, throughout, and has been assessed by no fewer than six orthopaedic specialists,¹¹ some at Dr. Chan's suggestion, others, at Guardian's request.

There is largely consensus among the specialists who have seen him. They agree that Mr. Beason suffered soft tissue injuries in the August 1991 accident, but that there is no organic basis to explain the intensity and duration of his symptoms or the level of disability he claims.

There are some physical findings. X-rays taken at St. Joseph's Health Centre in July of 1992 reveal some narrowing at the L4-5 disc space due to degeneration. A CT Scan in September 1992 revealed mild bulging of the disc at L4-5. Mr. Beason is convinced that these findings account for his back pain, despite the specialists' opinion to the contrary.

Dr. Sue-A-Quan, an orthopaedic surgeon, assessed Mr. Beason's condition twice, in early 1993 and 1994, at Dr. Chan's request. In his view, Mr. Beason had developed degenerative disc disease early for his age, and the degenerative changes could be the result of multiple insults to Mr. Beason's spine. Dr. Sue-A-Quan concluded that the degeneration could be responsible for some ongoing mechanical back pain, particularly with stressful activities. However, he and the other specialists who saw Mr. Beason after the results of the tests did not consider that the physical findings could account for the extent of Mr. Beason's symptoms or disability. There is general agreement among the specialists that psychogenic factors formed the "dominant feature" in Mr. Beason's case.¹²

As early as January 1992, Dr. Siller identified the development of chronic pain syndrome or pain magnification.¹³ This view has been echoed by other orthopaedic surgeons who have seen Mr. Beason since then. A number of doctors have recommended that Mr. Beason be sent to a pain clinic.¹⁴

Dr. Chan did not encourage Mr. Beason to attend a pain clinic, as recommended, and suggested in his testimony that he was sceptical of its value. In mid-1993, he placed Mr. Beason on an anti-depressant, and subsequently referred him to a psychiatrist, Dr. Damonze, for Tylenol addiction and pain management.

According to the records filed, Dr. Damonze saw Mr. Beason twice, on February 28, 1994 and March 15, 1994. At Mr. Beason's first appointment, Dr. Damonze found him to be moderately depressed as a result of his multiple car accidents, his ongoing back pain, and recent deaths in the family. He prescribed the anti-depressant, Prozac. Mr. Beason's psychological state had apparently improved by the time of the second visit, a month later, but he failed to show up at his next scheduled appointment.

Mr. Beason was also assessed by Dr. Klaus Kuch, a psychiatrist, at the request of Guardian.¹⁵ Dr. Kuch ruled out a major psychiatric disorder or a severe pain disorder and concluded that Mr. Beason was not psychiatrically disabled.

I accept that Mr. Beason suffers from neck pain, from mechanical back pain which flares-up from time to time and radiates to his legs, and that he experiences depression and other difficulties. I find that the August 1991 accident, as the latest in a series of accidents, made some contribution to Mr. Beason's physical and psychological problems. Whether he was 25% recovered from his earlier injuries or 75% recovered, is uncertain; in any event, it is not necessary to make a precise assessment. I am satisfied that Mr. Beason's condition was somewhat improved, although he was by no means recovered, and that the August 1991 accident temporarily set him back again.

However, there is little evidence to indicate that Mr. Beason's physical condition prevented him from doing the essential tasks of his employment at TMI after July 18, 1992, when benefits were terminated. None of the specialists were prepared to draw this conclusion. I note that Dr. Chan disagreed with the opinions of the specialists in regards to the physical findings. He felt that a bulging disc was significant, because Mr. Beason was experiencing pain in his low back and he did not think that Mr. Beason could return to his work as of July 1992, because of these findings on the CT scan and Mr. Beason's flare-ups. In this regard, I prefer the largely uniform opinions of the orthopaedic specialists to that of Dr. Chan, who is a general practitioner.

I note that Mr. Beason appeared to suffer a recurrence of his back problems in the week of July 5, 1992, when he went to St. Joseph's Health Centre, and that recurrences can be expected from time to time. However, benefits were paid until July 18, 1992, and I am not persuaded that Mr. Beason was substantially disabled beyond this time. His work at TMI Productions was not heavy, and although it involved a significant amount of driving, it seems that Mr. Beason was able to cope with car travel from a physical point of view. It seems that Mr. Beason's medical and therapy appointments could have been accommodated in his work schedule and there is insufficient evidence that the medication he is under would prevent him from performing his essential tasks.

Many of the doctors concluded that Mr. Beason exaggerated his symptoms on examination, which could be attributed to his chronic pain syndrome. Dr. Hugh Cameron, who saw Mr. Beason in September 1994 and who noted inconsistencies between his restricted presentation on examination and his rapid exit down several flights of stairs after his appointment, suggests that the exaggeration may be deliberate. Dr. Sue-A-Quan commented on the need for a more positive attitude to returning to work on Mr. Beason's part, and stated that much of his symptomatology was likely due to the benefits of secondary gain.¹⁶ However, he explained of Mr. Beason that:

his psychological status magnifies the state of awareness of his symptoms and makes it appear to be a great deal worse than the physical examination demonstrates.¹⁷

I accept that Mr. Beason suffers from pain magnification or chronic pain syndrome, and that he perceives himself to be disabled by his pain. However, the medical evidence does not support a finding that Mr. Beason's psychological state is sufficiently severe to prevent him from the essential tasks of his employment. Dr. Damonze indicated that Mr. Beason was moderately depressed, and did not opine on his ability to work. Dr. Kuch assessed Mr. Beason and reported that Mr. Beason was not functionally limited from a psychiatric or psychological perspective. There is no reason to think that Mr. Beason's mental or psychological state was significantly worse in July 1992 than it was when these specialists examined him.

I find that Mr. Beason is not entitled to weekly income benefits as a result of either his physical or his psychological condition after July 18, 1992.

Expenses

Under section 282(11) of the Insurance Act, an arbitrator has discretion to award an applicant his or her arbitration expenses. Generally, arbitrators have done so, even where the applicant is unsuccessful, provided that the application had merit and the applicant's conduct did not unduly lengthen the proceedings or involve dishonesty.

On balance, I am persuaded that I should exercise my discretion in Mr. Beason's favour. Mr. Beason's claim based on physical injuries was supported by his family doctor, and his claim based on his psychological condition found some support in the medical evidence.

Mr. Beason is entitled to his reasonable expenses incurred in respect to the arbitration. I remain seized of this issue, in the event that the parties cannot agree upon the expenses to be paid.

Order:

1. John Beason is not entitled to weekly income benefits after July 18, 1992.

2. John Beason is entitled to his reasonable expenses incurred in respect of the arbitration, under section 282(11) of the Insurance Act, as amended, and Ontario Regulation 664, R.R.O. 1990.

December 13, 1995

Susan Naylor Arbitrator

APPENDIX A

Exhibit 1 Letter from Juice Records Ltd. dated May 26, 1989

Exhibit 2 1988 Federal and Ontario Individual Income Tax Return and Notice of Assessment - John Beason

Exhibit 3 Metropolitan Toronto Police Incident Report dated April 24, 1989

Exhibit 4 St. Michael's Hospital Records dated April 24, 1989

Exhibit 5 Motor Vehicle Accident Report dated April 30, 1989

Exhibit 6 Motor Vehicle Accident Report dated August 4, 1989

Exhibit 7 Motor Vehicle Accident Report dated April 11, 1990

Exhibit 8 Doctors Hospital Urgent Care Treatment Report dated April 11, 1990

Exhibit 9 1990 Revenue Canada Taxation Notice of Assessment

Exhibit 10 Letter from Dr. Siller dated August 21, 1991

Exhibit 11 Declaration Under the Partnerships Registration Act for TMI Productions dated March 13, 1991

Exhibit 12 Receipts of cash received from Neville Campbell by John Beason from June 1991 to August 1991

Exhibit 13 Letter from Neville Campbell dated September 9, 1991

Exhibit 14 Ontario Automobile Insurance Employer's Confirmation of Income dated September 28, 1991

Exhibit 15 1991 Federal and Ontario Individual Income Tax Return and Notice of Assessment - John Beason

Exhibit 16 Motor Vehicle Accident Report dated August 30, 1991

Exhibit 17 Report of Dr. Cirone dated January 27, 1990

Exhibit 18 Report of Dr. Cirone dated February 1, 1990

Exhibit 19 Report of Dr. Malcolm dated February 22, 1990

Exhibit 20 Report of Dr. Artinian dated October 24, 1990

Exhibit 21 Receipts from the "Bubblegum" video

Exhibit 22 Receipts from the "Bubblegum" video

Exhibit 23 Contract between Attic Productions Limited and TMI dated September 24, 1993

Exhibit 24 Letter from Zig Zag Music Ltd. dated October 1, 1994

Exhibit 25 Declaration Under the Partnerships Registration Act and the Limited Partnerships Act for Honey B Productions dated June 19, 1987

Exhibit 26 Emergency Record, Scarborough General Hospital dated August 30, 1991

Exhibit 27 St. Joseph's Health Centre Emergency Registration Out Patient Record dated July 5, 1992

Exhibit 28 Scarborough General Hospital Department of Radiology Report dated September 1, 1992

Exhibit 29 Ontario Court of Justice (General Division) transcripts in the case of John Beason and Margaret Beason and Avelino Docoito

Exhibit 30 Report of Dr. Halpenny dated November 6, 1991

Exhibit 31 Report of Dr. Silverstein dated October 10, 1990

Exhibit 32 Letter from Judi Pay, Claims Examiner for Royal Insurance, to Michael Brown dated July 3, 1992

Exhibit 33 Report of Dr. Chan dated June 26, 1989

Exhibit 34 Report of Dr. Chan dated October 20, 1989

Exhibit 35 Report of Dr. Chan dated February 20, 1990

Exhibit 36 Report of Dr. Chan dated September 20, 1991

Exhibit 37 Report of Dr. Chan dated September 27, 1992

Exhibit 38 Report of Dr. Chan dated May 23, 1993

Exhibit 39 Clinical Notes and Records of Dr. Chan dated December 1, 1987 to November 1, 1990

Exhibit 40 Clinical Notes and Records of Dr. Chan dated November 12, 1990 to October 2, 1994

Exhibit 41 Report of Dr. Sue-A-Quan dated January 21, 1994

Exhibit 42 Report of Dr. Houston dated June 15, 1992

Exhibit 43 Report of Dr. Cameron dated September 7, 1994

Exhibit 44 Ontario Court of Justice (General Division) transcripts:

1. John Beason and Leighton Ankcorn, W. McCullough and Kingsway General Insurance Company

2. John Beason and Toronto Transit Commission

3. John Beason and Margaret Beason and Donald Galster and Wellington Insurance Company

Exhibit 45 Report of Dr. Chapman dated October 30, 1992

Exhibit 46 Report of Dr. Siller dated December 21, 1992

Exhibit 47 Report of Dr. Sue-A-Quan, dated January 17, 1994

Exhibit 48 Letter from Michael Brown dated October 14, 1994

Exhibit 49 Letter from Dr. R. Damonze, dated December 12, 1994, and attached records.

Exhibit 50 Report of Dr. Klaus Kuch, dated December 15, 1994

Exhibit 51 Curriculum vitae, Dr. Klaus Kuch

Exhibit 52 Clinical notes and records of Dr. Klaus Kuch

Exhibit 53 Surveillance report dated Monday, May 23, 1994; Surveillance report dated June 6, 1994

Exhibit 54 Videotape filmed on May 24, 1994

APPENDIX B

WITNESSES

John Beason, the Applicant Dr. William Chan, family physician Neville "Gadget" Campbell, partner, TMI Productions Athanasis Gardanidis, film maker Margaret Knowles, Mr. Beason's wife Paul Ankcorn, private investigator Dr. Sue-A-Quan, orthopaedic surgeon Dr. Klaus Kuch, psychiatrist

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. 2Letter dated May 26, 1989, from Roland Renis, Managing Director, Juice Records Ltd. Exhibit 1.
3. 3Metropolitan Toronto Police Report, dated April 24, 1989; Exhibit 3, St. Michael's Hospital records, Exhibit 4
4. 4Motor Vehicle Accident Report dated April 30, 1989; Exhibit 5
5. 5Report of Dr. T.N. Siller, Exhibit 10
6. 6Report of Dr. Ezra Silverstein, dated October 10, 1990; Exhibit 31
7. 7Transcript, September 30, 1992, paragraph 328-361; Exhibit 29
8. 8Letter from Zig Zag Music Ltd dated October 1, 1994; Exhibit 24
9. 9Contract, dated September 24, 1993 with Attic Productions Limited.
10. 10I have disregarded the evidence of a private investigator who testified as to his observations of Mr. Beason leaving a medical appointment on December 6, 1991. No film was taken, so that I am unable to assess Mr. Beason's movements. Moreover, Guardian did not act upon the investigator's information and continued to pay benefits for another six months.
11. 11Dr. J. Halpenny, November 1991; Dr. Siller, January 1992 and December 1992 ; Dr. James Houston, June 1992; Dr. Chapman, October 1992; Dr. Sue-A-Quan, April 1993 and January 1994; Dr. Hugh Cameron, September 1994.
12. 12Report dated June 15, 1992 of Dr. James Houston; Exhibit 42
13. 13Report dated December 21, 1992, Exhibit 46
14. 14Dr. James Houston, report dated June 15, 1992, Exhibit 42; Dr. Chapman, report dated October 30, 1992, Exhibit 45; Dr. Siller, report dated December 21, 1992, Exhibit 46; Dr. Sue-A-Quan, report dated January 21, 1994, Exhibit 41
15. 15Report dated December 15, 1994; Exhibit 50
16. 16Report dated January 17, 1994, Exhibit 47
17. 17Report dated January 21, 1994, Exhibit 41