Ontario Insurance Commission

Neutral Citation: 1995 ONICDRG 83

File No.: A-006499

Between:

Konstantinos Bertsoukus, Applicant

and

Liberty Mutual Fire Insurance Company, Insurer

Decision

Issues:

The Applicant, Konstantinos Bertsouklis, was injured in a motor vehicle accident on October 24, 1991. He received statutory accident benefits from Liberty Mutual Fire Insurance Company (Liberty), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated on July 31, 1993.

The issues in this hearing are:

1. Is Mr. Bertsouklis entitled to weekly income benefits from July 31, 1993, onwards?

2. Was Liberty obliged to pay weekly income benefits during a work-hardening program pursuant to an offer to pay made by Liberty in the course of mediation?

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

Result:

1. Mr. Bertsouklis is not entitled to weekly income benefits after July 31, 1993.

2. Mr. Bertsouklis is required to repay benefits for the period from July 6, 1994 to August 15, 1994, paid to him pursuant to an interim award.

3. Liberty is not required to pay weekly income benefits for the period during which Mr. Bertsouklis attended at the Health Recovery Clinic.

4. Mr. Bertsouklis is entitled to his reasonable expenses incurred in respect of the arbitration.

Hearing:

The hearing was held in North York, Ontario, on July 4 and 6, August 15 and 11, and September 22, 1994, before me, Susan Naylor, arbitrator.

Mr. Peter Carlisi, barrister and solicitor, represented Mr. Bertsouklis. Mr. George Frank, barrister and solicitor, represented Liberty. Mr. John McLean, technical claims specialist, also attended on behalf of Liberty.

Witnesses

There were five witnesses: Mr. Bertsouklis; his wife, Vasso Bertsouklis; Patricia McElroy, rehabilitation consultant; Louise Koepfler, clinical psychologist and director of the Health Recovery Clinic; and Anita Louise Elloet, kinesiologist.

Eight exhibits were filed at the hearing. They are attached as Appendix A.

Evidence and Findings:

Background

In October 1991, Mr. Bertsouklis was 33 years old. He was married with four children, aged three to 13.

Mr. Bertsouklis is a house painter by trade. He has the equivalent of a grade 6 education. His first language is Greek and he gave his evidence at the hearing through an interpreter. He speaks English haltingly and is not able to write or read in English. However, he is able to understand and speak enough English to get along in familiar environments, such as at work.

Mr. Bertsouklis owned his own painting business and subcontracted for painting work. He employed his brother-in-law to help him. For the two or three years prior to the accident, he mostly painted new houses for one company, L & G Painting Company, and also did some other minor subcontracting work. Mr. Bertsouklis was kept busy; he painted about five new houses a week, each house taking between 12 and 14 hours to paint.

I heard very detailed evidence from Mr. Bertsouklis about his essential job tasks. These corresponded to the description of the job tasks that was recorded by Pamela Koczerginski, a consultant in occupation rehabilitation².

In summary, Mr. Bertsouklis' work involved getting the materials to the site, priming, sanding, caulking, painting and finishing interior walls and ceilings, and painting trim work, doors and windows. He also sanded, varnished and stained staircases. He mostly did interior work, but also sanded and painted exterior woodwork and painted garage doors. The painters were responsible for their own clean-up. If they were working on an existing home, they would need to move the furniture from the area to be painted.

L & G Painting supplied the paint in five and one gallon buckets, which Mr. Bertsouklis picked up at the company's site in the new subdivision. He estimated that for every new house, he would need approximately three five-gallon cans for priming, three five-gallon cans of latex paint, and six one-gallon tins of paint.

Mr. Bertsouklis provided his own tools - paintbrushes, extension poles, pails, sander and three different sizes of ladders. He carried a three-foot step ladder, a five-foot ladder, and a 16-foot extension ladder that extended to 32 feet.

The job routinely involved lifting and carrying full five-gallon cans and the 16 foot ladder, each of which weighed about 50 lbs. His other equipment weighed between ten and 25 lbs, with the smaller paint cans weighing roughly ten lbs apiece.

Mr. Bertsouklis frequently climbed up and down ladders, and balanced on them to paint. He needed to continuously bend, squat and stand to work. He had to stretch and reach to do much of the painting, particularly for above-shoulder and ceiling work, and he used extension handles for these situations. Mr. Bertsouklis was right-handed and painted with his right hand. He used both hands on the extension handle and used his left hand to hold a paint can while standing on the ladder.

Painting new houses required sustained work effort. Mr. Bertsouklis was paid by the job, with tight timeframes for completion of the work. Deadlines were imposed by the schedule of other tradespersons who were involved in completing the homes. However, Mr. Bertsouklis worked for himself and was not subject to direct supervision by anyone else; to this extent, he had some flexibility in his work. Some of the tasks that Mr. Bertsouklis performed before the accident could have been given to his brother-in-law to complete under his direction, if Mr. Bertsouklis were unable to complete them himself. For example, if he had difficulty carrying the full five-gallon cans of paint, he could arrange for his brother-in-law to pick them up in the morning. As a self-employed contractor, he could be expected to make certain reasonable accommodation.

The accident

On October 24, 1991, Mr. Bertsouklis was on his way to a job when his vehicle collided with a cement truck, making a turn. In the force of the collision, Mr. Bertsouklis was thrown from side to side, and cut his head on the driver's side window. He also hit his left shoulder on the dashboard. The paint he was carrying in the vehicle spilled everywhere. An ambulance was called and Mr. Bertsouklis' head wound was treated at the accident site. In the event, it was not necessary for Mr. Bertsouklis to go to hospital.

The accident was a frightening and traumatic experience for Mr. Bertsouklis. He estimated that about $3,000 worth of damage was done to the truck, and much of his equipment and tools were damaged by the paint.

Mr. Bertsouklis testified about his ongoing problems since the accident: headaches, dizziness, left shoulder pain, neck pain and low back pain. He also suffers from mood swings, loses his temper easily, and gets depressed and confused. Mr. Bertsouklis' testimony about his problems was supported by his wife.

Mr. Bertsouklis testified that his head wound healed after several weeks, but he was left with a permanent bump on his head. He experiences severe headaches at his left temple, which have increased in intensity since the accident. He testified that he has headaches about twice a week, and must lie down or walk around to relieve them; certain exercises also help. He and his wife described how, when he gets a headache, he must close his left eye, and his face turns dark.

Mr. Bertsouklis gets dizzy, especially when he bends down or turns his head. This affects his balance. He testified that he has dizzy spells once or twice a month, and must lie down to relieve them.

Mr. Bertsouklis experiences pain and stiffness at the left side of his neck, especially with temperature changes. He experiences a sharp pain in the left side of his neck when he gets up in the morning, which gradually wears off during the course of the day. His lower back hurts when he is driving, sitting down or going to bed. He described the pain as a sharp "needle-like pain". His left knee sometimes bothers him when it is raining, but this pain has largely resolved.

Mr. Bertsouklis is not presently taking medication for any of these problems, other than occasional over-the-counter analgesics. In October 1993, he stopped seeing his family doctor, over a difference of opinion about his ability to return to work. He has not been under medical care since then, but does an exercise program at home for half an hour a day.

Mr. Bertsouklis has not returned to work since the accident. He testified that he cannot turn his head the way he must in order to do his job. Mr. Bertsouklis claims that low back pain stops him from carrying heavy weights, kneeling or bending down. He is frightened that he will get a headache, become dizzy and fall from a ladder. Mr. Bertsouklis testified that he cannot do overhead work because "everywhere hurts". He feels that he cannot manage the sustained output to meet the tight deadlines for house construction.

Compared to Mr. Bertsouklis' pre-accident activity, he now leads a remarkably sedentary life. Before the accident, Mr. Bertsouklis was the principal breadwinner for the family; his wife stayed at home to take care of the children and the house. Now, Mrs. Bertsouklis goes out to work while Mr. Bertsouklis remains at home. He walks the children to school each day and looks after them after school while his wife works. He otherwise spends his time visiting friends at a local coffee shop, watching TV and resting. According to his testimony, he is not well enough to help with the meal preparation or the house chores.

For two years after the accident, Mr. Bertsouklis was under the care of his family doctor. He has seen specialists in orthopaedics and neurology. The specialists have ruled out anatomical injury, intracranial pathology or neurological sequelae. The evidence indicates that Mr. Bertsouklis did not lose consciousness in the accident and no medical evidence suggests that he suffered a significant internal head injury. The medical opinions are consistent that Mr. Bertsouklis suffered soft tissue injuries in the accident. According to the neurologists, Mr. Bertsouklis' headache symptoms demonstrate features of either muscular headaches³ or of both muscular and vascular headaches, and relate to his neck pain⁴.

Mr. Bertsouklis continues to suffer from ongoing muscular skeletal pain, attributable, at least in part, to a lack of conditioning and inactivity. All of the evidence before me indicates that Mr. Bertsouklis is capable of returning to work as a painter, with some modifications and restrictions. He has been repeatedly told that he should try to return to work on at least a part-time basis.

Mr. Bertsouklis saw Dr. White, an orthopaedic specialist, at Liberty's request, in February 1992. Dr. White recommended an active rehabilitation program, after which he felt Mr. Bertsouklis should be able to return to his regular work⁵.

Dr. White recommended a consultation with a neurologist to assess Mr. Bertsouklis' headaches and rule out intracranial damage. Two neurological assessments were ultimately carried out, although much later, in 1993. Both ruled out intracranial or neurological injury. The first was by Dr. Garry Moddel at Liberty's request; Mr. Bertsouklis was referred by his family doctor to Dr. Donald Borrett, who concluded that Mr. Bertsouklis' principal problem was chronic musculoskeletal pain⁶.

As a result of Dr. White's recommendations, Mr. Bertsouklis attended a six-week exercise and work-conditioning program at the Canadian Back Institute in July 1992. The physiotherapist there concluded that Mr. Bertsouklis' condition had improved and that he should gradually return to work⁷.

Mr. Bertsouklis did not go back to work as recommended and he became physically deconditioned "with no direct vocational goal attempted or focused upon since leaving C.B.I."⁸.

Pamela Koczerginski, an occupational therapist and consultant in occupational rehabilitation, conducted a functional abilities assessment and work tolerance screening in November 1992⁹.

Ms. Koczerginski exhaustively reviewed Mr. Bertsouklis' job tasks and the physical demands of his work. After testing, she concluded that Mr. Bertsouklis could do light level physical work, - involving weights of up to 20 lbs. She felt that, except for carrying a full five-gallon paint can, Mr. Bertsouklis could function as a painter. She recommended a further reconditioning program. She strongly supported the recommendation that Mr. Bertsouklis should return to modified part-time work, suggesting that he gradually build up to full time duties over a six to eight week period.

Ms. Koczerginski suggested that, during the transitional period, Mr. Bertsouklis should avoid overhead ceiling work and avoid climbing the 16-foot extension ladder until his confidence improved. As part of the work return strategy, she suggested that he seek out solo small painting jobs on a per-diem basis, to build up tolerance.

Mr. Bertsouklis did not pursue these recommendations and continued to complain about headaches and neck and back pain to his family doctor. Dr. Karantonis advised him to return to light work for at least a few hours as of June 1, 1993¹⁰. When Mr. Bertsouklis remained symptomatic, he sent him to Dr. Borrett. After this, in October 1993, Dr. Karantonis told Mr. Bertsouklis that he could return to modified, part-time work, with a view to returning to full activities within a few months¹¹. Mr. Bertsouklis did not agree with this opinion, and stopped seeing Dr. Karantonis.

Mediation was initiated after benefits were terminated as of July 31, 1993, following receipt of Dr. Moddel's neurological report. At the initiative of Mr. Bertsouklis and his counsel, it was arranged that Mr. Bertsouklis would attend a four to eight week work-hardening program¹².

Mr. Bertsouklis' counsel suggested that this arrangement implied that Liberty was unsure about Mr. Bertsouklis' condition, and should not have discontinued benefits. I do not read anything untoward into Liberty's actions. In my view, Liberty acted appropriately in remaining receptive to further investigation.

Mr. Bertsouklis started the work-hardening program in January 1994. The first part of the program consisted of four weeks of structured exercise and education, followed by simulated "dry" painting and then actual painting. Mr. Bertsouklis sanded and painted the walls of two small rooms at the Clinic. He took roughly two days to sand and plaster the holes in the first room, and then four hours a day for two days to paint it. The next room, which was smaller, took less time. Mr. Bertsouklis testified that he felt good about the work and was complimented on it; however it took much longer than it would have done before the accident. He said that he complained about dizziness, headaches and neck and back pain during the painting. The Clinic records indicate that he did not experience the dizziness he anticipated.

Mr. Bertsouklis felt that he had not improved by the end of the process. In contrast, the Health Recovery Clinic's final report stated that Mr. Bertsouklis had made "excellent physical progress" and was ready to go back to regular work. The report indicated that Mr. Bertsouklis might be expected to continue to feel symptoms, given his lengthy absence from work. These symptoms could be managed however, using the pacing and stretching techniques he had been taught in the program. The report recommended that Mr. Bertsouklis initially return to hourly employment with a resumption of piecework in one month¹³.

Counsel for the Applicant was critical of the work-hardening program, which he felt was based on a misapprehension of the physical demands of Mr. Bertsouklis' work. He also submitted that the final functional capacities tests measured Mr. Bertsouklis' capacity to lift heavy weights on a one time basis only and did not reflect his ability to do so on a repetitive basis.

The Clinic staff used the Canadian Classification and Dictionary of Occupations (the CCDO) to identify the physical demands of Mr. Bertsouklis' work, applying the job category "painter-construction"¹⁴. This described the physical demands of the job as light. Ms. Koczerginski used a slightly different category in the CCDO, "Painter rough (construction)", which listed the work as medium level physical work. She also took an extensive description of his tasks from Mr. Bertsouklis himself.

Ms. Koczerginski, in my view, accurately described the physical demands of Mr. Bertsouklis' work. However, I am not convinced that the discrepancy advances Mr. Bertsouklis' case to any great extent. Ms. Koczerginski herself felt that for the most part, Mr. Bertsouklis was able to perform his normal job functions and could work up to full activities within a two month period. In addition, the testing done at the Clinic indicated that Mr. Bertsouklis was capable of lifting weights of over 50 lbs - the Clinic's final report recorded that Mr. Bertsouklis was able to lift a maximum weight from floor to waist level of 67 lbs. According to the testimony of Ms. Elloet, the kinesiologist, Mr. Bertsouklis was not asked to do this on a repetitive basis, and therefore this result should be viewed with caution. However the results suggest that Mr. Bertsouklis is able to do a good deal more than he perceives.

Even assuming that I disregard the Clinic results in their entirety, the rest of the medical evidence does not support the level of disability Mr. Bertsouklis has claimed.

The only medical evidence in Mr. Bertsouklis' favour is a report by Dr. Brian McGoey. Mr. Bertsouklis was sent by his lawyer to Dr. Brian McGoey for a medical-legal assessment in spring 1994. Dr. McGoey found evidence of psychological overlay during the examination. Mr. Bertsouklis showed less range of motion in his neck when he knew he was being observed, than when he was unaware he was being watched. He also displayed chronic pain behaviour, with marked grimacing even during minor movements.

Dr. McGoey concluded that Mr. Bertsouklis had developed chronic pain syndrome and that, while he could work as a painter on ground level, he could not do overhead work or work on ladders, and could not likely be retrained to find employment at a comparable income level¹⁵.

Counsel for the Applicant submitted that Mr. Bertsouklis' other treating health professionals ""missed"" the diagnosis of chronic pain. He points to reports of pain behaviour, depression and mood swings in the clinical notes and refers to Mr. and Mrs. Bertsouklis' own testimony. He also suggests that language difficulties may have been a barrier to proper diagnosis.

Chronic pain is generally defined as pain that persists for more than six months past the expected point of recovery, for which there is no physiological explanation. To succeed in a weekly income benefit claim based on chronic pain, applicants must prove that their pain and other symptoms render them unable to perform their essential tasks. As has been stated in many arbitration decisions, pain does not equate to disability.

I did not receive a copy of Dr. McGoey's résumé, although I understand that he is a knowledgeable orthopaedic specialist. However, Dr. McGoey's report did not expand upon the basis for his finding that Mr. Bertsouklis has chronic pain syndrome, or in regards to the degree of disability suggested; there was no detailed psychological work-up. In the circumstances, it is difficult to place greater reliance upon Dr. McGoey's report than those of Mr. Bertsouklis' other health professionals.

The issue before me is whether Mr. Bertsouklis' physical or psychological condition - however it is labelled - renders him substantially unable to perform the essential tasks of his employment or occupation¹⁶. The onus is on Mr. Bertsouklis to establish the requisite degree of disability. The evidence falls short of establishing that Mr. Bertsouklis' psychological condition prevents him from returning to his work.

The medical evidence overwhelmingly indicates that Mr. Bertsouklis is able to do most of his tasks as a painter. He may not be able to deal with heavy loads - upwards of 25 lbs - climb up high ladders, and do prolonged overhead and over-shoulder work; however, the weight of the evidence suggests that these restrictions are largely attributable to physical deconditioning and a lack of confidence, and a graduated return to work would resolve these problems.

Mr. Bertsouklis testified that he was unable to find part-time work. The evidence indicates that for much of the period in question, the construction industry was very slow and Mr. Bertsouklis' work for L & G Painters likely was not available to him, due to the economy.¹⁷ Mr. Bertsouklis testified that, in the three years since the accident, he has contacted L & G Painters on several occasions and has asked contacts about the availability of work. Mr. Bertsouklis gave no further details of these inquiries and they seem to be the sum total of his efforts to return to work. It is difficult for me to find that he remains substantially unable to perform his essential tasks in these circumstances.

I accept that language difficulties have presented a barrier to Mr. Bertsouklis' rehabilitation. The rehabilitation reports stress the importance of education and self-awareness in the rehabilitation process; many of them indicate that Mr. Bertsouklis had difficulty grasping fundamental rehabilitation concepts - for example, that pain in the course of rehabilitation does not necessarily mean harm or re-injury. However, there is no question in my mind that Mr. Bertsouklis understood the doctors and rehabilitation specialists when they told him to try to return to painting work.

Based on the evidence before me, I am not satisfied that Mr. Bertsouklis suffers a substantial inability to return to his essential tasks as a painter. I do not consider that this situation was any different at the end of July 1993, when his benefits were terminated.

Interim Order

The hearing in this matter was scheduled to continue on July 6, 1994. It was adjourned at the request of the Applicant, when Liberty sought to introduce a medical report dated March 10, 1994, from the Health Recovery Clinic without appropriate notice. Liberty also had not exchanged other reports from General Rehabilitation Services that it was required to provide. I held that Liberty had failed to comply with the requirements of section 18.3 of the Dispute Resolution Practice Code. The hearing was adjourned for a six week period, on condition that Liberty reinstate weekly income benefits at $600 per week, from July 6, 1994 to the date of the resumption of the hearing on August 15, 1994. This order was made pursuant to subsection 279(4) of the Insurance Act, R.S.O. 1990, as amended by subsection 32(2) of the Insurance Statute Law Amendment Act, S.O. 1993, c. 10. Interim benefits payable under the order were subject to repayment, in the event that Mr. Bertsouklis was found not to be entitled to benefits for that period. Since I have found that Mr. Bertsouklis is not entitled to benefits for any period after July 31, 1993, these benefits must be repaid to Liberty.

Offer to pay benefits

Counsel for Mr. Bertsouklis submitted that Liberty was obliged to pay weekly income benefits during the work-hardening program at the Health Recovery Clinic, under the terms of subsection 281(3) of the Insurance Act. This section states:

(3) Subject to subsection (4), if mediation fails, the insurer shall pay statutory accident benefits in accordance with the last offer of settlement that it had made before the failure until otherwise agreed by the parties or until otherwise ordered by a court, an arbitrator or the Director.

Section 281(3) must be read in the context of the section that precedes it. Section 280 deals with the initiation and completion of mediation of accident benefit disputes. Such disputes must be mediated before they can be litigated or arbitrated.

Under section 280(4), the mediator is charged with looking into the issues in dispute, and trying to settle as many of them as possible, within the timeframes established under the legislation. If mediation is not successful within these timeframes, it is considered to have failed. In that event, subsection 280(8) states that:

(8) If mediation fails, the mediator, in addition to any notice required to be given, shall prepare and give to the parties a report setting out the insurer's last offer and the mediator's description of the issues that remain in dispute.

Section 281(3) imposes an obligation on insurers to pay benefits in accordance with the last offer made before the failure of mediation, unless the parties consent or an adjudicator orders otherwise.

The Dispute Resolution Practice Code also addresses this issue. At section 6(2), it states:

If mediation fails:

(a) the insurer shall provide in writing to the mediator the last offer of settlement of the insurer on any issue that remains in dispute; and

(b) the mediator shall describe in the Report of Mediator the issues that remain in dispute and shall include the last offer of settlement of the insurer.

The participants involved in the mediation had different views on what had occurred during the mediation process. The Report of Mediator¹⁸ did not record any offer to pay weekly income benefits. It indicated that the issue of weekly income benefits remained in dispute and that the final offer was "$0.00". Under the category "issues settled", the Report of Mediator recorded that an agreement had been reached in the following terms:

Suplt. Medical

Details:

The parties agree to deal with this issue, although it was not the subject of the mediation.

Mr. Bertsouklis and Liberty Mutual Fire Insurance agree that Liberty Mutual will set up an assessment for a rehabilitation program (work-hardening program) as soon as possible. Liberty Mutual agrees to fund the program as recommended by the rehabilitation consultant, with an anticipated length of four to eight weeks.

Liberty Mutual agrees to keep Mr. Bertsouklis' representative informed, and it agrees to consider any recommendations regarding the program made by Dr. Karantonis, Mr. Bertsouklis' family physician.

This apparently did not accord with Mr. Bertsouklis or his counsel's understanding. The latter wrote to the mediator shortly afterwards stating:

As you are aware, Mr. McLean made an offer to pay to Mr. Bertsouklis weekly income benefits in the amount of $600 per week for the period of time that he would be undergoing rehabilitation.

Would you kindly amend your report to include the aforementioned as a last offer of settlement the insurer [sic] pursuant to section 242b8 of the Insurance Act.¹⁹

The mediator declined to amend her report. She replied as follows:

My notes of the mediation indicate that Mr. McLean offered weekly income benefits of $600 per week for the duration of rehabilitation therapy (anticipated four to eight weeks) to resolve the entire weekly income benefits dispute. When your client declined this offer, Mr. Mclean withdrew his offer.

For the purpose of my report, I did not include Mr. Mclean's offer, since it had been withdrawn. Mr. Mclean made it clear that his offer was not a "final offer" within the meaning of s. 281(3) of the Insurance Act R.S.O. 1990, c. I-8. I will not amend my report.²⁰

Mr. Bertsouklis' counsel disagreed with this letter. He replied:

At no time did Mr. Mclean withdraw any offer he simply made it and at no time did Mr. McLean state that his offer was not a final offer. Furthermore, Section 281(3) of the Insurance Act that you have quoted does not define at all the meaning of final offer.

It is clear from Mr. Bertsouklis' testimony and from the medical records, that Mr. Bertsouklis initially understood that he was to be paid during the rehabilitation program and understandably felt aggrieved when he learned otherwise. Although there may have been a legitimate misunderstanding about what occurred, I am not prepared to conclude, on the evidence before me, that the Report of Mediator, a document prepared contemporaneously by a neutral third party in the ordinary course of business, inaccurately summarised the outcome of the mediation. At best, it shows that the parties were not ad idem in regards to any offer being made. I find therefore that Liberty is not required to pay Mr. Bertsouklis weekly income benefits of $600 during his rehabilitation program, pursuant to subsection 281(3) of the Insurance Act.

Expenses

Mr. Bertsouklis was not successful in his arbitration. However, I am satisfied that his application was legitimate. Arbitrators have generally allowed an applicant his or her expenses in such circumstances, and I am prepared to do so here.

Order.

1. Mr. Bertsouklis is not entitled to weekly income benefits after July 31, 1993.

2. Mr. Bertsouklis is required to repay benefits for the period from July 6, 1994 to August 15, 1994, paid to him pursuant to an interim award.

3. Liberty is not required to pay weekly income benefits for the period during which he attended at the Health Recovery Clinic under subsection 281(3) of the Insurance Act.

4. Mr. Bertsouklis is entitled to his reasonable expenses incurred in respect of the arbitration.

June 28, 1995

Susan Naylor Senior Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1 One gallon empty can of paint

Exhibit 2 Five gallon empty can of paint

Exhibit 3 Letter dated March 20, 1992, from Arlene Green-Grant, Claims Department, Liberty Mutual

Exhibit 4 Medical Brief

Exhibit 5 Supplementary Medical Brief

Exhibit 6 Curriculum vitae, Louise Koepfler, Ph.D, C. Psych.

Exhibit 7 Curriculum vitae, Patricia McElroy

Exhibit 8 Material respecting settlement

The clinical notes and records of Ms. McElroy, the Health Recovery Clinic, and Dr. Karantonis were filed, but not marked as exhibits.

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. 2Report dated November 4, 1992, Exhibit 4, Tab 8
3. 3Dr. Garry Moddel, report dated July, 7, 1993, Exhibit 4, Tab 10
4. 4Dr. Donald S. Borrett, report dated September 9, 1993, Exhibit 4, Tab 4
5. 5Report dated February 17, 1992, Exhibit 4, Tab 2
6. 6Dr. Donald Borrett, Reports dated September 9, 1993 and October 20, 1993, Exhibit 4, Tabs 4 & 3
7. 7Discharge Summary dated June 5, 1992, Exhibit 4, Tab О
8. 8Pamela Koczerginski, report dated November 4, 1992, Exhibit 4, Tab 8, page 9
9. 9Pamela Koczerginski, report dated November 4, 1992, Exhibit 4, Tab 8
10. 10Dr. Anastasios Karantonis, report undated, Exhibit 4, Tab 6, p. 2
11. 11See Footnote 11, page 3
12. 12Report of Mediator dated October 22, 1993, Exhibit 8
13. 13Report dated March 10, 1994, Exhibit 4, Tab 20
14. 14CCDO, painter-construction, #8785-120
15. 15Report dated April 26, 1994, exhibit 4, Tab 9
16. 16Regulation 672, section 12(1)
17. 17Report dated November 30, 1993, Exhibit 4, Tab 15, report dated December 21, 1993, Exhibit 4, Tab 16, testimony of Mrs. Vasso Bertsouklis
18. 18October 22, 1993, Exhibit 8
19. 19Letter, dated November 4, 1993, Exhibit 8
20. 20letter dated November 10, 1993, Exhibit 8