Neutral Citation: 1996 ONICDRG 149

OIC A-002172

ONTARIO INSURANCE COMMISSION

BETWEEN:

GHENET WORKU

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Ghenet Worku, was injured in a motor vehicle accident on July 28, 1990. She received statutory accident benefits from her Insurer, Co-operators General Insurance Company (Co-operators) payable under Ontario Regulation 672.¹ Approximately two weeks after her car accident Ms. Worku was assaulted at her workplace on August 12, 1990. She received Worker's Compensation benefits in respect of injuries sustained in the assault and robbery. At the time of this hearing, Ms. Worku continued to receive a reduced level of Worker's Compensation benefits.

Co-operators terminated Ms. Worku's weekly income benefits on November 24, 1992.

Co-operators maintains that Ms. Worku no longer suffered a substantial inability to perform the essential tasks of her pre-accident employment as a dealer/manager of a convenience store or any other work for which she may reasonably be suited. In any event, Co-operators states that Ms. Worku's current complaints relate to the assault and robbery.

Ms. Worku maintains that her injuries from the assault and robbery have largely abated and that she remains disabled as a result of the car accident. The parties were unable to resolve their disputes through mediation and Ms. Worku applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Worku entitled to payment of weekly income benefits under section 12(1) of the Schedule to July 28, 1993 as a result of the motor vehicle accident of July 28, 1990?

2. Is Ms. Worku entitled to payment of weekly income benefits under section 12(5)(b) of the Schedule after July 28, 1993, as a result of the motor vehicle accident of July 28, 1990?

3. Is Ms. Worku entitled to payment of supplementary medical and rehabilitation benefits under section 6 of the Schedule as a result of the motor vehicle accident of July 28, 1990?

4. Is the Insurer entitled to a repayment of benefits under section 27(3) of the Schedule?

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

Result:

1. Ms. Worku is entitled to weekly income benefits under section 12(1) of the Schedule to July 28, 1993 as a result of the motor vehicle accident of July 28, 1990. The parties agreed that the quantum of weekly income benefit is $424.10, less the amounts already paid to Ms. Worku by the Insurer to November 24, 1992.

2. Ms. Worku is not entitled to weekly income benefits under section 12(5)(b) of the Schedule beyond July 28, 1993 as a result of the motor vehicle accident of July 28, 1990. The parties agreed that the post 156 week period under section 12(5)(b) commenced July 29, 1993.

3. The Insurer is required to pay Ms. Worku supplementary medical and rehabilitation benefits under section 6 of the Schedule for massage or shiatsu therapy to assist her re-integration into the workforce. The issue of the specific quantum of these benefits was deferred by agreement of the parties;

4. The parties agreed that Co-operators overpaid Ms. Worku $29,000 during the period July 28, 1990 to November 24, 1992 while she received benefits from W.C.B. The parties agreed that W.C.B. benefits were deductible from benefits paid under section 12(4) of the Schedule; therefore the Insurer is entitled to a credit of $29,000.00 to be applied against amounts owing to Ms. Worku by Co-operators. The Insurer is entitled to a repayment of any outstanding amount under section 27(3) of the Schedule;

5. The Insurer is required to pay Ms. Worku interest on any amounts owing, and her expenses incurred in the hearing.

Hearing:

The hearing was held in Toronto, Ontario, on February 6, 7, 8, 9, April 18, 20, and May 18, 1995 before me, Janice Mackintosh, Arbitrator. A list of those in attendance at the hearing, the exhibits filed, and other documents before the arbitrator, is contained in Schedule A.

Evidence and Findings:

Pre-accident history and employment:

Ms. Ghenet Worku was born in Ethiopia. Her first language is Amharic. She also speaks Italian and English. In Ethiopia, she received the equivalent of a grade twelve education, including instruction in commerce, business and languages. Following her graduation she did office and secretarial work in her father's business.

In December 1986, Ms. Worku emigrated to Canada. Upon her arrival she worked as a receptionist. She also held several jobs as a cashier in a variety of businesses including: a gift shop, variety store, delicatessen/restaurant, and gas station. At times she has held two jobs at once and worked long hours. The jobs of receptionist and cashier fall within the classifications of sedentary to light work as defined by the Canadian Classification and Dictionary of Occupations (C.C.D.O).²

In 1989 Ms. Worku moved from Toronto to Ottawa to join her sister, Ms. Fantu Worku (Fantu) and her brother-in-law Mr. Admsu Biru (Admsu) who had also emigrated to Canada. Fantu and Admsu were self-employed as dealer/managers of a Mac's Milk Convenience store in Ottawa. Ms. Worku began to work for them in preparation for obtaining her own Mac's Milk dealership. In December 1989, approximately six months prior to her car accident, Ms. Worku purchased a Mac's Milk dealership of her own from the Mac's Convenience Store Division of Silcorp Limited through her numbered company 862895 Ontario Inc.

Ms. Worku testified that she worked in the store 17 hours a day, seven days a week, with the exception of Saturdays. She hired one part-time helper who cleaned and relieved her for five hours on Saturdays and one or two hours during the week to allow her to attend to personal errands. She was doing errands with her sister when the motor vehicle accident occurred.

Ms. Worku's testimony concerning her job duties at Mac's Milk was essentially undisputed. I accept that her essential tasks included working exceptionally long hours, taking inventory ordering and receiving supplies, stocking shelves, serving customers, operating the cash register, balancing accounts and maintaining the books and records of the dealership. I find that her work as a dealer/manager falls within the classifications of medium work as defined by the C.C.D.O.³

The car accident:

On Saturday, July 28, 1990, Ms. Worku picked up her sister and young niece from their Mac's Milk Store, exited the parking lot and drove into the path of an oncoming car. The oncoming car hit the driver's side of Ms. Worku's car broadside. Ms. Worku's car was written off.

Throughout her testimony, Ms. Worku experienced gaps in her memory. She stated that she suffers severe headaches, lack of concentration, confusion, deficits in her reading and math skills, and memory loss concerning events which occurred both before and after her car accident.

Ms. Worku attributes these cognitive problems to a head injury received in the motor vehicle accident.

In general, I found Ms. Worku's memory to be incomplete and selective. She had no recollection of having complained to her family doctor of nausea, and depression, or of having been referred to a specialist with respect to persistent complaints of excessive fatigue, in the months preceding her car accident. Such complaints however, appear in the clinical notes and records of Dr. Beverly Johnson, her family doctor in Ottawa. Ms. Worku's memory of the car accident was also sketchy. She specifically remembered her body being thrown forward and backward, although the impact of the accident was to the left side of the car. She stated that although she was fully belted, she struck her head and lost consciousness but could provide no other detail. She recalled being aroused by her sister shouting her name. She recalled being taken to hospital by ambulance, however she claimed to remember very little of the examinations performed or the questions asked of her while in emergency. She has no recollection of leaving hospital the day of her accident nor of returning to hospital the next day for out-patient surgery to her right thumb. The next memory she has is the surgery to her right hand which occurred the day after her accident.

The emergency record of the Queensway-Carlton Hospital taken on the date of the accident notes a bruise to her left elbow, a dislocated fracture to her right thumb, an injury to her right wrist and right knee. The hospital record states that her back and neck were "OK", however, Ms. Worku testified that the hospital record is wrong. On cross examination, Ms. Worku distinctly recalled that her back and neck were sore immediately following the accident. She also remembered informing hospital staff that she had bumped her head, lost consciousness for a period of time and showing them the bruise on her forehead. There is no reference to these injuries in the hospital record.

Ms. Worku could not recall who brought her home from the hospital after the surgery to her thumb but she recalled taking Tylenol #3 and sleeping for a long time. When she woke up she remembered that she ached all over. In particular she recalled a headache, a bruise on the right side of her forehead, pain in her right shoulder and lower back, a bruise on her right knee, bruises on both legs and her right hand being in a cast up to her elbow. Ms. Worku testified that she is right handed. She also remembered feeling nauseated, fatigued and dizzy. She stated that she required assistance with eating, bathing and dressing. She claimed that her friend, Jackie, and her sister, Fantu, shared the responsibility of caring for her 24 hours a day following her accident. She stated that she was unable to go into work and that Fantu and Admsu ran the store for her with some assistance from her friend, Mr. Geremw Yrga. She testified that prior to the car accident, she had been training Mr. Yrga to enable him to apply for his own dealership.

In view of Ms. Worku's self-confessed memory problems, I prefer to rely on the contemporaneous clinical notes and records prepared by numerous medical practitioners who treated her, to determine the specific nature of her complaints in any given time period, rather than her own memory of events recounted well over four years after her car accident.⁴ I find the medical records, along with business records prepared contemporaneously with the events reported, provide a more accurate history than Ms. Worku's flawed recollections.

Ms. Worku first consulted her family physician, Dr. Beverly A. Johnson, in respect of injuries sustained in the car accident, thirteen days post-accident. Dr. Johnson's clinical notes and records for August 10, 1990, refer to the injury to Ms. Worku's thumb, a contusion to her right knee, pain in her left leg, back pain, abdominal pain, and vomiting since the motor vehicle accident.

Dr. Johnson ordered X-rays of Ms. Worku's lumbar spine, abdomen, and both knees. The X-ray results were essentially normal with the exception of some soft tissue swelling noted on the right knee. Dr. Johnson concluded that Ms. Worku had suffered moderate lumbar sacral strain, mild contusion to both legs, moderate abdominal wall contusion and a fractured right thumb as a result of the motor vehicle accident. Dr. Johnson referred Ms. Worku to physiotherapy for her back, right hand and thumb.

Ms. Worku specifically recalled informing Dr. Johnson of the blow and bruising to her forehead, her loss of consciousness, her neck pain and neck stiffness as well as headaches following the accident. However, Dr. Johnson's clinical notes and records contain no reference to these injuries or to any complaints relating to the head or neck in the period immediately following the car accident.⁵

The Robbery and Assault:

The first notation of a blow to Ms. Worku's head or complaints relating to her head or neck appears in a police report taken August 12, 1990, on the day of the robbery and two days after her visit to Dr. Johnson. The investigating officer reported that while robbery suspect #2 emptied the cash register and loaded goods into a bag, robbery suspect #1 brandished a 10 inch, double edged knife, placing the blade on Ms. Worku's inner right arm just above her cast. Suspect #1 kept moving the knife back and forth across her forearm causing a three inch flesh wound. The report states that when the victim moaned with the pain of her skin being cut, Suspect #1 slapped her in the head. Suspect #1 then grabbed the victim's casted right arm and twisted it, causing severe pain.

On cross-examination, Ms. Worku testified that she feared for her life during the robbery. She confirmed that robbery suspect #1 slapped her very hard across the face, with sufficient force to knock her into a display shelf. She agreed that she experienced swelling and pain at the side of her head as a result of the assault.

The hospital emergency records, on the date of the robbery, confirm Ms. Worku's complaints of bilateral jaw and ear pain and note contusions to her cheeks from being slapped. The cast on her right arm was opened and the previous repair to her fractured thumb was confirmed by X-ray to be intact. Later that evening Ms. Worku returned to emergency to obtain further medication for her head pain. Once again, tenderness and swelling of the head and jaw were noted in the hospital records.

Two days after the robbery, Ms. Worku saw her family doctor, who prepared a medical report for Co-operators.⁶ Dr. Johnson noted that Ms. Worku's primary complaints from the car accident related to lumbar sacral strain in the L1-L5 region, reduced range of motion of the back, with difficulty sitting and standing for prolonged periods, along with abdominal pain and vomiting. Dr. Johnson referred to the injury to Ms. Worku's right thumb as the secondary complaint in connection with the motor vehicle accident. She also noted that Ms. Worku had sustained injuries in a subsequent robbery including a twisted right arm and a blow to the left side of her face. Dr. Johnson noted complaints of pain in the left ear and a possible ear infection in the right ear.⁷

In September 1990, Ms. Worku moved back to Toronto from Ottawa. She returned to her former family physician, Dr. John Bury Ou-Wai. Dr. Ou-Wai testified on behalf of Ms. Worku and referred extensively to his clinical notes and records during the hearing. On September 27, 1990, Dr. Ou-Wai noted Ms. Worku's injuries from the motor vehicle accident as shock all over her body, low back pain, a swollen right knee and right thumb injury. Dr. Ou-Wai subsequently testified that he observed the fading remnants of a contusion on Ms. Worku's forehead, although this is not recorded in his clinical notes and records. I do not accept that a forehead contusion that was still visible more than two months after the motor vehicle accident was repeatedly missed by emergency room staff, X-ray staff, day surgery staff, physiotherapists and Ms. Worku's family doctor immediately following the car accident. I place little weight upon Dr. Ou-Wai's recollection of a faded forehead contusion and do not accept it as convincing evidence of a head injury sustained in the car accident.

On October 16, 1990, Dr. Ou-Wai completed a physician's Progress Report in connection with Ms. Worku's application for Worker's Compensation benefits for injuries sustained in the robbery and assault. This report, as well as Dr. Ou-Wai's clinical note for that date contain the first references to Ms. Worku's complaint of headache pain. In his report Dr. Ou-Wai referred to "Anxiety, nervous tension, headache, inability to properly use right hand". He diagnosed a soft tissue injury to her right hand and shock.

In October 1990, Dr. Ou-Wai referred Ms. Worku to Dr. Otto Veidlinger, a neurologist, in connection with her headaches. Ms. Worku reported to Dr. Veidlinger that she was asked to stay in hospital following the surgery to her thumb but went back to work to do inventory. He notes that she later developed bad headaches and anxiety symptoms and was unable to continue working. It is not clear from Dr. Veidlinger's initial report exactly when Ms. Worku's headaches arose. He comments that her problems from the motor vehicle accident were complicated by the fear and anxiety caused by the robbery. Dr. Veidlinger diagnosed tension headaches and an anxiety state but found no cervical or cranial tenderness and good neck and shoulder movements.⁸. Ms. Worku also complained of low back pain and dizziness.

In a later, more extensive report prepared as a neurological consultation for the Worker's Compensation Board (W.C.B.),⁹ Dr. Veidlinger noted that following the robbery, Ms. Worku experienced a burning pain over her ears and right side of her head which developed into headaches accompanied by sensitivity to light, along with general depression. Ms. Worku informed him that everything in her life had become miserable since the day of the robbery, that she could not remain at home alone, experienced nightmares, gave up her store and lost money. She also complained of memory loss, weakness, and pain. Dr. Veidlinger found tenderness in her low back but not in her neck area. Dr. Veidlinger concluded that Ms. Worku's headaches were an aspect of her depression and recommended further psychiatric counselling and treatment.

Dr. Vlasta Hajek, a specialist in rehabilitation medicine, saw Ms. Worku on January 31, 1991. Ms. Worku described the motor vehicle accident and the injuries to her right thumb, knee, and low back. She informed Dr. Hajek that despite the injuries she received in the car accident, she wished to return to her store and was in her store on August 12, 1990 when a robbery occurred. Dr. Hajek noted that the combination of her injuries and the traumatic robbery incident had taken a toll on Ms. Worku. She noted that Ms. Worku was unable to return to work as a result of headache, depression, and forgetfulness along with lower back pain, right knee swelling, and ongoing problems with her right thumb. On examination, Dr. Hajek found a full range of movement in her neck and back and no spasm or tenderness on palpation and concluded that Ms. Worku was suffering soft tissue strain, anxiety, and depression.

Dr. Ou-Wai also referred Ms. Worku to Dr. Z. J. Lipowski, a psychiatrist with the Clarke Institute. In a consultation note dated April 11, 1991, Dr. Lipowski recorded Ms. Worku's main complaint as "bad headaches" which were sometimes accompanied by nausea and shakiness. Dr. Lipowski originally stated that the headaches began after the car accident on July 28, 1990. He then described the details of the robbery and stated: "in fact, she [Ms. Worku] says that her headaches actually started after the robbery and she has not worked since". Dr. Lipowski concluded that Ms. Worku's headaches were tension headaches rather than migraine, and might be part of her depression. He indicated that Ms. Worku did "not feel ready to start working yet because of her headaches". In view of her daily headaches he referred her for an EEG, the results of which were normal.¹⁰

Ms. Worku claims that she cannot return to work at a Mac's Milk Convenience Store or to any occupation or employment for which she is reasonably suited by education, training, or experience, primarily due to the pain in her lower back which radiates up to her neck and right shoulder, and severe headaches accompanied by an intolerance to light. At its worst, her pain causes nausea, vomiting, weakness and excessive fatigue. She states that her reduced cognitive skills and memory loss further limit her prospects for employment. She also points out that she experiences pain after writing half a page as a result of the injury to her right thumb.

Ms. Worku testified that these complaints arose immediately after the motor vehicle accident. She initially testified that the only change she experienced as a result of the robbery was the addition of shock and fear. On cross examination Ms. Worku conceded that her headaches increased in frequency and intensity after the robbery.¹¹ She testified that her decision to abandon the Mac's Milk dealership and forfeit her investment, approximately eight days after the robbery, was entirely due to the injuries she received in the car accident and not as a result of the robbery. She claims that she has now largely recovered from the emotional trauma and depression caused by the robbery but continues to suffer debilitating pain and cognitive deficits as a result of physical injuries sustained in the car accident.

The Insurer denies that Ms. Worku struck and bruised her forehead, or significantly injured her neck or back in the car accident. The Insurer states that, despite the fracture to her right thumb, Ms. Worku returned to work almost immediately after the car accident, according to business documents obtained from the files of Silcorp Ltd. - Mac's Milk Division. The Insurer also notes that Ms. Worku was working alone in her store on the morning of August 12, 1990 when she was assaulted during the robbery. The Insurer submits that Ms. Worku stopped working as a result of the robbery, not as a result of the motor vehicle accident, and suggests that her cognitive difficulties and pre-occupation with pain are due to the psychological trauma and injuries sustained in the robbery.

My review of the medical records and reports prepared in the first nine months after the motor vehicle accident (to April 30, 1991) indicates that Ms. Worku injured her low back, right wrist, thumb and right knee in the car accident. During the robbery, she received a blow to her head, and her right arm was twisted. She also suffered the emotional shock associated with a life-threatening incident. I find that her complaints of headaches and head pain arose following the robbery. Moreover, there is no evidence that she suffered cervical neck strain, stiffness or muscle spasm of the neck in the first nine months after the motor vehicle accident.

My review of the medical records and early comments made by Ms. Worku to various doctors examining her, supports the conclusion that Ms. Worku resumed at least some of her duties as a Mac's Milk dealer/manager immediately after the surgery to her thumb and prior to the robbery. In October 1990, Ms. Worku informed Dr. Otto Veidlinger that she had been scheduled to stay in hospital for several days following the surgery to her thumb but left hospital early to do inventory at her store.¹² In September 1991, she made a similar comment to Dr. George Rado, a specialist in physical medicine and rehabilitation (physiatrist) retained by the Insurer.¹³ In January 1991 she reported to Dr. Vlasta Hajek that despite discomfort from injuries received in the car accident, she wished to return to her store and was in her store on August 12 when the robbery occurred. In November 1991, she reported to Dr. Bacal, a psychologist retained by the WCB, that following her motor vehicle accident she was able to return to work and was doing reasonably well until the date of the assault.¹⁴

Further, the Insurer obtained numerous documents submitted to Silcorp Ltd. - Mac's Milk Division, in the ordinary course of business, during the period between Ms. Worku's car accident and the robbery, bearing the initials "G.W.". The Insurer submitted that in some cases the initials "G.W." are printed in a large, awkward, childlike manner, consistent with someone writing with their hand in a cast or writing with their non-dominant hand.¹⁵ When confronted with these documents Ms. Worku denied writing her initials and maintained that after the car accident she was too sick to go into the store, with the exception of July 31, 1990 for month-end inventory and August 12, 1990 the date of the robbery. She identified the writing on some of the documents as being that of her sister, Fantu and brother-in-law, Admsu, who looked after the store for her after her car accident.

Ms. Worku's sister, Fantu Worku, was called to testify concerning the period between the car accident and the robbery. During her examination-in-chief Fantu supported Ms. Worku's testimony that she was too disabled to return to her store after the car accident and required twenty-four hour attendant care. Fantu explained that she and her husband shared the responsibility of keeping Ms. Worku's store open along with their own store. Fantu could not identify the initials on the Silcorp documents. Fantu testified that after the accident she was working in the two stores, caring for her young children, and also participating in the care of Ms. Worku.

Upon cross-examination, Fantu reluctantly conceded that she had also claimed disability benefits from her insurer in respect of back injuries sustained in the July 28, 1990 car accident. In my view, this admission casts doubt on the truth of Fantu's evidence concerning the extensive assistance she purportedly gave to her sister following the accident. In general, I found Fantu's testimony to be evasive, inconsistent, and of little assistance to Ms. Worku's claim. No satisfactory explanation was provided concerning the initials found on the business documents in Silcorp's files for the relevant period. This, coupled with Ms. Worku's own statements to various doctors that she returned to some of her duties between the car accident and the robbery, persuades me that she did perform at least some of her managerial duties, despite the injuries she received in the car accident. However, I accept the opinion of Dr. Johnson,¹⁶ Ms. Worku's family physician at the time of the car accident, that Ms. Worku suffered quite disabling pain in her back and abdomen during this period, which would likely have prevented her from performing a substantial proportion of her essential tasks as a Mac's Milk dealer/manager.

On the basis of statements made by Ms. Worku to various medical practitioners in the 16 months following the accident and robbery, I find that she decided to give up her Mac's Milk Dealership primarily as a result of the fear and emotional trauma generated by the robbery and only secondarily because of her injuries in the car accident. For example, in November 1991, Ms. Worku advised Dr. Veidlinger, that everything in her life had become miserable since the day of the robbery, that she could not remain at home alone, that she experienced nightmares and had given up her store and lost money.¹⁷ In April 1991, Dr. Z. J. Lipowski, noted Ms. Worku's main complaint as headaches which started after the robbery and that she had not worked since.¹⁸In November 1991, Dr. Hershberg, noted Ms. Worku's anxiety concerning anything related to her previous Mac's Milk work site.¹⁹ In November 1991, Ms. Worku reported to a social worker, Patti Taveroff, that she had attempted to return to work after the robbery, but could not continue working due to extreme fear and uneasiness in the workplace. Ms. Worku reported that each time she entered the store she would start to cry, develop headaches, and various other pain symptoms. As a result, she was forced to give up her contract with Mac's Milk Convenience Stores some eight days after the robbery.²⁰

I find that Ms. Worku's testimony overstated the effects of the car accident upon her, while understating the effects of the robbery, when compared with her previous statements made closer in time to the two events. However, Ms. Worku may well have the reversed the emphasis when reporting symptoms in connection with her W.C.B. claim. As a result, it is very difficult to determine the contribution each of these events has made to her present condition. Furthermore, the two incidents occurred so close together in time that the effects of each may well have merged and become intertwined in Ms. Worku's mind.

With the exception of Dr. Arthur Ameis, a physiatrist consulted by the Insurer in 1995, the various specialists who assessed Ms. Worku at the request of her family doctor, the W.C.B, and the Insurer, generally expressed the view that both the car accident and the assault, in close succession, contributed to Ms. Worku's ongoing complaints of back pain, headache, excessive fatigue, and cognitive difficulties.²¹ However the specialists differed in their opinions concerning the extent to which each of these events contributed to her current problems.

Dr. Ameis, concluded that the car accident did not contribute in any significant way to Ms. Worku's state of disability and work absence. In his opinion, the assault, consequent post-traumatic stress disorder including phobia, and then Ms. Worku's withdrawal from the business, created a circumstance in which a very lengthy delay in return to work was inevitable. He was not convinced that Ms. Worku suffered any important degree of physical impairment or disability and did not find convincing evidence of myofascial pain syndrome. However, I approach Dr. Ameis' view with caution. I find that he relied upon several assumptions concerning Ms. Worku's motivation and life circumstances which were not borne out by the evidence.²²

In contrast, Dr. Alireza Kachooie, who is also a physiatrist and was consulted by Ms. Worku in 1993 and again in 1995, testified that the motor vehicle accident was the primary cause of her headaches, cervical whiplash, largely myofascial back pain, and closed head injury. In his view the trauma of the robbery was largely emotional and may well have aggravated and prolonged Ms. Worku's response to the physical injuries she suffered in the car accident, but was not the principal cause of her current chronic pain syndrome. Dr. Kachooie concluded that the assault and robbery had little impact on Ms. Worku's current condition.²³

In reaching his conclusion, Dr. Kachooie relied upon the history given by Ms. Worku that she bruised her forehead, was momentarily unconscious, experienced headaches and pain such that she could not move her neck following the car accident. Dr. George Rado, a physiatrist consulted by the Insurer, and Dr. Joel Sadavoy, a psychiatrist consulted by the W.C.B., also relied upon Ms. Worku's reports of having struck her head in the car accident. Dr. Rado concluded that Ms. Worku's headaches were due to occipital nerve compression and her cervical myofascial strain was related to the car accident. Dr. Sadavoy concluded that her memory deficits, although difficult to understand, were more likely related to the car accident than to the assault. Similarly, Dr. Moussanen, a neurologist consulted by Ms. Worku, related his diagnosis of post-traumatic migraine and post-traumatic labyrinthine concussion to a head injury sustained in the car accident.²⁴

Dr. M.S. Macartney-Filgate, a clinical neuropsychologist, conducted a neuropsychological assessment at the request of the Insurer. Dr. Macartney-Filgate reviewed the initial hospital and medical records and concluded there was no evidence of Ms. Worku having struck her forehead in the accident or of having experienced loss of consciousness. However, Dr. Macartney-Filgate observed that if Ms. Worku's reports of post-traumatic amnesia²⁵ were accepted at face value, she could be classified as having sustained a mild to moderate head injury. Dr. Macartney-Filgate testified that in such a case she would have expected to see some difficulties with cognitive function in the first weeks or months following the accident, with gradual resolution.

Ms. Worku testified that her cognitive difficulties continued to be disabling more than four years after her accident and she reported increasing retrograde amnesia, i.e. loss of memory for events preceding the accident. Dr. Macartney-Filgate testified that reports of retrograde amnesia were quite unusual, generally found in only the most severe cases of traumatic brain injury and were unsupported by Ms. Worku's condition and symptoms as recorded in the medical records following her accident. Dr. Macartney-Filgate concluded that Ms. Worku's complaints of increasing retrograde amnesia as well as the period of post-traumatic amnesia were more likely explained on an emotional rather than a neurological basis. She found that Ms. Worku tended to be highly focused on physical symptoms and was likely to develop physical problems in response to emotional difficulties. Dr. Macartney-Filgate concluded that the robbery and assault likely complicated Ms. Worku's recovery from her car accident and exacerbated her physical symptoms.

I accept the view of Dr. Macartney-Filgate, and conclude that there is no convincing evidence that Ms. Worku struck her forehead, lost consciousness, or experienced a severe head injury along with neck pain and an inability to move her neck as a result of the car accident. Accordingly, I place little weight upon the opinions of Dr. Kachooie, Dr. Moussanen, Dr. Rado or Dr. Sadavoy concerning the relative contribution of the accident and robbery to Ms. Worku's cognitive difficulties and chronic headache and neck pain. I find that Ms. Worku's complaints of headache, neck pain and cognitive difficulties are more likely related to the assault than to the car accident.

I am supported in this view by the opinions of Dr. R. Hershenberg, a psychiatrist, and Dr. S. Bacal, a psychologist, who assessed Ms. Worku at the request of the W.C.B. They concluded (as did Dr. Macartney-Filgate) that Ms. Worku suffered a marked post traumatic stress disorder compounded by depression (which appeared to be resolving) as a result of the robbery. Both indicated that Ms. Worku's symptoms of headaches were features of her post-traumatic stress disorder. Dr. Hershenberg found Ms. Worku's cognitive testing to be within normal limits.²⁶Dr. Bacal observed that Ms. Worku suffered from a host of physical symptoms and chronic pain syndrome. He considered a significant aspect of her chronic pain complaints to be modulated by psychogenic influences. In his view, Ms. Worku's chronic pain would not likely dissipate without resolution of her emotional disorders which explained the prolonged duration of her physical symptoms and her unimpressive response to physical therapies.²⁷

In October 1992, the W.C.B. arranged for a further psychiatric assessment of Ms. Worku by Dr. Joel Sadavoy. Dr. Sadavoy's testimony at the hearing impressed me as fair, balanced, and considered in response to the questions posed by counsel. I place considerable weight upon his opinion. Dr. Sadavoy concluded that Ms. Worku had suffered a severe post traumatic stress disorder as a result of the violent assault. This, coupled with her previous anxiety associated with the motor vehicle accident produced a prolonged post-traumatic reaction accompanied by major disabling depression which now appeared to be resolving.

Dr. Sadavoy suggested that Ms. Worku's physical pain likely began with the flexion-extension injuries sustained in her motor vehicle accident. However, he concluded that in the absence of a physiological or organic explanation for her prolonged pain, the trauma of the robbery and assault was most probably responsible for prolonging Ms. Worku's pain syndrome and impairing her capacity to rehabilitate herself. He observed that as Ms. Worku gained control over her psychological symptoms she became better able to tolerate her pain and engage in rehabilitation and re-education.

Causation:

As stated in previous decisions of the Commission, an applicant does not have to show that the injury was caused solely by the accident to be entitled to accident benefits. However, she must establish on a balance of probabilities, that she was injured as a result of the accident. "This requires more than some contribution."²⁸ Numerous decisions of the Commission have suggested that the contribution of the accident must be "significant, "or "material. "²⁹ I conclude that both the car accident and the assault made significant contributions to Mr. Worku's condition.

I find that Ms. Worku experienced disability and pain as a result of the injuries to her right hand, wrist, thumb, abdomen, back, legs and knees in the motor vehicle accident. Shortly thereafter, while still substantially disabled from the car accident and in a vulnerable state, she received further physical injury and emotional shock as a result of the robbery and assault. I am satisfied that the pain and disability of Ms. Worku's original motor vehicle accident injuries were heightened and prolonged by the largely psychological impact of the robbery and that her chronic back pain is largely rooted in her original injuries. However, for the reasons stated earlier, I find that her chronic headaches, neck pain, memory deficits, and cognitive impairments, are more likely related to the assault than to the motor vehicle accident.

Unlike judges within the tort system, arbitrators under the Schedule do not have the flexibility to apportion damages between two or more contributing causes, or to adjust the amount of benefits to reflect the extent to which a car accident may have contributed to injury. However, in the circumstances of two contributing causes, I am persuaded that the car accident contributed at least as much to Ms. Worku's condition as the robbery and assault. As such, Ms. Worku has satisfied the causal connection required under the Schedule.

Substantial Disability:

It is an established principle within the Commission that pain and suffering experienced as a result of injuries sustained in an automobile accident are not per se compensable under the Schedule, unless the experience of pain causes an insured to be "substantially disabled" from or "continuously prevented" from engaging in employment within the meaning of sections 12(1) and 12(5)(b).

At the request of the W.C.B., Ms. Worku participated in a four week comprehensive assessment, reactivation, and education program (C.A.R.E.) at the Downsview Rehabilitation Centre from October 30, 1991 to November 28, 1991.³⁰ Upon admission to Downsview, Ms. Worku exhibited a full range of movement of her neck and back with minimal stiffness on extension and flexion of the low back and no appearance of acute distress. Her admission diagnosis was cervical strain with cervical myalgia, anxiety and depression, low back pain, and pain in the right thumb.

Mr. Worku's functional abilities evaluation showed deficits in the areas of: lifting more than 20 pounds, prolonged standing, and repetitive bending. However her standing and sitting tolerances were found to be excellent in the recreational program. The occupational therapist found that Ms. Worku's depression and post-traumatic stress disorder appeared to be limiting her performance in the program. The occupational therapist concluded that Ms. Worku tolerated work at the light level with lifting up to 20 pounds, where there was an opportunity to alternate sitting and standing activities. It was suggested that Ms. Worku start with part time employment, while continuing with psychological counselling for depression and post-traumatic stress disorder. Ms. Worku was discharged from the C.A.R.E. program to modified work on a part-time basis. Her W.C.B. benefits were reduced accordingly. She agreed to undergo a vocational assessment and to have a W.C.B. caseworker help her obtain some part-time work.³¹

In November 1991, Ms. Worku was assessed at the Canadian Back Institute (C.B.I.), at the request of the Insurer. The C.B.I. noted behaviours consistent with symptom magnification, chronic pain syndrome, and a strong emotional overlay. Their prognosis for Ms. Worku's return to work was guarded due to the chronicity of her symptoms. They recommended continuing psychiatric treatment, referral to a neurologist and pain management.

In December 1991, Dr. Lipowski referred Ms. Worku to Dr. Amir A. Mewa, a rheumatologist. Dr. Mewa ordered numerous tests and procedures to rule out an organic explanation for Ms. Worku's symptomology. On the basis of these test results and further examinations, Dr. Mewa concluded in April 1992 that Ms. Worku's various aches and pains were muscular, and not pathological. He recommended reassurance, exercise, and weight loss, but no other therapies such as injection or surgery.

Dr. George Rado, physiatrist, examined Ms. Worku in September 1991 at the request of the Insurer. His physical findings failed to adequately explain or support the degree of disability and functional impairment Ms. Worku described. In June 1992, he re-examined Ms. Worku and noted some overall improvement in symptoms and function. He attributed her unexpectedly slow recovery and increased pain perception to emotional factors and depression. He recommended treatment for chronic pain, with an immediate return to a light level of work activity, increasing progressively over the next month or so to medium, and then to her pre-accident work activity levels.

In June 1992, Ms. Worku participated in a three day vocational assessment sponsored by the W.C.B. Ms. Worku's test scores were generally in the low range. The assessor found Ms. Worku to be depressed, tense, frustrated and subject to severe and frequent mood swings. The assessor concluded that her low test scores might have been related to her depression and recommended ongoing psychiatric treatment. None the less, Ms. Worku was found to learn new information at an average rate and to be a suitable candidate for academic upgrading and retraining. She was found to have an above-average aptitude for sales or service oriented roles, similar to the employment she held upon coming to Canada in 1986 to 1989. It was also determined that she had transferable academic skills and the potential to succeed in clerical or office work with academic upgrading.³²

By late October 1992, Ms. Worku reported to Dr. Sadavoy that despite her continuing pain and memory deficits, she felt ready to try to re-establish a normal life and expressed interest in retraining in order to go into her own business, such as import and export.

In January 1993, Dr. Ou-Wai arranged for Ms. Worku to be assessed by Dr. R. Curkowskyj, an orthopaedic surgeon. Dr. Curkowskyj was of the opinion that Ms. Worku was ready to return to light modified work on a part time basis.

In June 1993, Ms. Worku reported to Dr. Kachooie that she considered herself significantly improved emotionally. Dr. Kachooie found Ms. Worku almost fully recovered from the emotional trauma of her assault. Ms. Worku also stopped seeing her long-time psychiatrist Dr. Lipowski in June 1993.³³

In a follow-up report dated January 1995, Dr. Kachooie states that Ms. Worku again showed significant improvement in her level of pain and suffered only a mild degree of myofascial pain syndrome. He recommended a physical reactivation program leading to a gradual return to light duty employment.

The Insurer's view that Ms. Worku has sufficiently recovered to return to the long hours and physically demanding work of a convenience store dealer/manager is not supported by the preponderance of the medical evidence. Therefore, she is entitled to weekly income benefits under section 12(1) of the Schedule up to the date of July 28, 1993. However, the evidence establishes that as long ago as November 1991, Ms. Worku was capable of returning to her earlier sedentary or light work, as a receptionist or cashier, on a part time basis. That was at a time when Ms. Worku's endurance and ability to manage pain were significantly hampered by her depression and post traumatic stress disorder. By Ms. Worku's own admission to Dr. Kachooie in June 1993, she experienced significant improvement with both her psychological difficulties and pain levels between November 1991 and June 1993. Her progress over this period supports Dr. Sadavoy's view that as Ms. Worku gained control over her psychological problems arising from the trauma of the robbery and assault, she became better able to tolerate and manage her pain and resume her normal activities.

Ms. Worku testified that on at least two occasions after June 1993, she experienced a resurgence of all her symptoms at their original intensity. Dr. Ou-Wai confirmed these episodes in his clinical notes and in his testimony. He attributed Ms. Worku's relapses to injuries sustained in the motor vehicle accident, but provided no explanation for the sudden deterioration in her condition.

Dr. Sadavoy testified that Ms. Worku's relapses were most likely due to emotional and psychological factors. In his view, Ms. Worku suffered a more intense psychological reaction to the robbery than to the motor vehicle accident, in keeping with the way individuals respond to accidental events as opposed to deliberate acts against them, which combine elements of cruelty, hatred and physical pain.

In his report dated October 26, 1992, Dr. Sadavoy prognosticated that Ms. Worku would remain vulnerable to anxiety states associated with the trauma of the robbery and assault. He stated that symptoms associated with her depression and post-traumatic stress disorder could flare up intermittently to cause her difficulty. These symptoms could include, headaches, heightened sensitivity to pain, anxiety and cognitive problems. However, he anticipated that overall, Ms. Worku would experience no long-term disability from her psychological problems. I accept Dr. Sadavoy's opinion and conclude that Ms. Worku's occasional relapses are more probably the emotional and psychological sequelae of the robbery and assault than the result of the car accident.

On the balance of evidence, I am satisfied that as of July 29, 1993, Ms. Worku's injuries from the car accident no longer prevented her from engaging in full time activities of a sedentary to light nature, such as a receptionist or cashier, or to pursue re-education for another career if that is her preference.

In addition to her chronic back pain, Ms. Worku continues to complain of headaches several times a week and feels limited by increasing memory deficits and other cognitive problems. I have no doubt that these factors undermine her confidence and inhibit her return to the demanding and stressful work of a managerial, entrepreneurial, nature she was performing immediately before the accident. However, that is not the applicable test for entitlement to weekly income benefits beyond three years under section 12(5)(b) of the Schedule. In any event, the Insurer is not responsible for continuing difficulties that I have found to be more probably connected to the robbery than to the motor vehicle accident.

Rehabilitation benefits:

Ms. Worku claims further medical and rehabilitation benefits under section 6 of the Schedule. The test for eligibility under section 6 is different from the test for eligibility under section 12. An applicant may be able to engage in an occupation for which she is reasonably suited by education, training or experience but still require medical care or rehabilitation in connection with her injuries.³⁴ Ms. Worku testified that she experiences approximately two to four days of pain relief after receiving shiatsu or massage therapy. I heard no evidence to suggest that such therapy was medically contra-indicated or unreasonable in all of the circumstances. Ms. Worku is therefore entitled to rehabilitation benefits for shiatsu or massage therapy for a reasonable period to assist her to manage her pain while attempting to reintegrate herself into the work force. The parties agreed that the specific quantum of rehabilitation benefits was not before me in this hearing. The parties agreed that I will remain seized of this issue in the event a dispute as to quantum arises.

Expenses:

Ms. Worku's fact situation raised several issues of causality, which were complicated by a divergence of medical opinion. I am therefore satisfied that this is an appropriate case to award the applicant her expenses of arbitration. Ms. Worku is therefore entitled to expenses in accordance with section 282(11) Insurance Act, R.S.O. 1990, c.I.8, as amended. The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses. If a dispute arises concerning the specific amount of expense to be paid, either party may apply to the Commission for an assessment of expenses in accordance with the provisions of the Dispute Resolution Practice Code.

Repayment:

Prior to this hearing the parties agreed that the Insurer overpaid Ms. Worku the sum of $29,000 during the period July 28, 1990 to November 24, 1992 while she was receiving W.C.B. benefits for injuries sustained in the robbery. The parties also agreed that the W.C.B. payments were deductible from weekly income benefits under subsection 12(4) as contemplated under section 27(3) of the Schedule which states:

(3) A person must repay to the insurer any benefit received under sections 12 and 13 to the extent of any payments received by the person that are deductible from benefits under subsection 12(4) or 13(3). (emphasis added)

The provisions of section 27(3) are mandatory. I received no other evidence or submissions in respect of this issue. I therefore conclude that the Insurer is entitled to a credit of $29,000 against any amounts owing to Ms. Worku pursuant to my decision. The Insurer is entitled to a repayment of any remaining amount pursuant to the provisions of s.27(3).

Order:

1. The Insurer shall pay Ghenet Worku weekly income benefits under section 12(1) of the Schedule to July 28, 1993.The parties agreed that the quantum of weekly income benefit is $424.10, less the amounts already paid to Ms. Worku by the Insurer to November 24, 1992;

2. Ghenet Worku is not entitled to weekly income benefits under section 12(5)(b) of the Schedule beyond July 28, 1993;

3. The Insurer shall pay supplementary medical and rehabilitation benefits under section 6 of the Schedule to Ghenet Worku for massage or shiatsu therapy to assist her re-integration into the workforce. The issue of the specific quantum of these benefits was deferred by agreement of the parties;

4. The Insurer is entitled to a credit of $29,000.00 to be applied against amounts owing to Ghenet Worku pursuant to this order. The Insurer is entitled to a repayment of any outstanding amount under section 27(3) of the Schedule;

5. The Insurer shall pay Ghenet Worku interest on any amounts owing to her, and her expenses incurred in the hearing.

August 29, 1996

Janice Mackintosh Arbitrator

Date

SCHEDULE "A"

Present at the Hearing:

Applicant:

Ms. Ghenet Worku

Applicant's Representative:

Donald L. Grant, Q.C. Barrister and Solicitor

Insurer's Representative:

Stephen M. Malach Barrister and Solicitor

Also present:

Wendy Stevens

Insurer's Officer:

Karen Lock

Witnesses:

For the Applicant:

Ghenet Worku Fantu Worku Dr. John Bury Ou-Wai Dr. Alireza Kachooie Dr. Joel Sadavoy

For the Insurer:

Dr. Sergio Bacal Dr. Michèle Stampp Macartney-Filgate Dr. Arthur Ameis Karen Thomson

Exhibits:

Day 1- February 6, 1995

1

Vol I - Tab 1 - Records of Queensway-Carleton Hospital

2

Vol I - Tab 2 - Reports of Dr. B. Johnson

3

Vol I - Tab 4 - Reports of Dr. T.R. Sproule

4

Vol I - Tab 5 - Consultation note of Dr. O. Veidlinger

5

Vol I - Tab 6 - Consultation note of Dr. R. Hershberg

6

Vol I - Tab 8 - Reports of Dr. Z.J. Lipowski

7

Vol I - Tab 18 - Report of Dr. Joel Sadavoy

8

Vol II - Tab 1 - OHIP records

9

Vol III - page 154 - W.C.B. Physician's Progress Report by Dr. Lipowski

10

Vol III - page 171 - Report of Dr. Lipowski of the Clarke Institute of Psychiatry

11

Vol III - pages 7-15 - Vocational Assessment Report

12

Motor Vehicle Accident Report - July 28, 1990

13

Police Occurrence Report concerning robbery and assault

14

Curriculum Vitae of Dr. Alireza Kachooie, physiatrist

15

Vol I - Tab 17 - Report of Dr. A. Kachooie - June 18, 1993

16

Report of Dr. Kachooie - January 17, 1995

17

Three pieces of correspondence from Mr. Donald L. Grant to Dr. Kachooie enclosing documents for review by Dr. Kachooie

Day II - February 7, 1995

18

Humpty-Dumpty Foods delivery slip - date uncertain

19

Weston Bakeries Ltd. delivery slip - July 31, 1990

20

Mac's credit and charge form - July 31, 1990

21

Ault Foods Ltd. delivery slip - August 1, 1990

22

Eastcan Beverages Ltd. - delivery slip - August 1, 1990

23

Ault Foods Ltd. - credit form - August 1, 1990

24

Invoice from Hostess Potato Chips - August 3, 1990

25

Ault Foods Ltd. Delivery slip - August 3, 1990

26

Ault Foods Ltd. Delivery slip

27

Weston Bakery delivery slip - August 11, 1990

28

General Inventory Report - August 12, 1990

29

Corporation Income Tax Return 1989/90 for 862895 Ontario Inc.

30

Application for Accident Benefits - August 23, 1990

31

Waiver - Authorization for Medical Information - August 31, 1990

32

Hand writing specimens - Applicant

33

Application for Appointment of Mediator - June 15, 1992

34

Accident Benefits Continuing Claim form - April 30, 1992

35

Vol I - Tab 7 - Clinical notes and records of Dr. S. Bacal

36

Vol I - Tab 14 - Reports of Canadian Back Institute

37

Vol II - Tab 5 - Dr. B.A. Johnson's clinical notes and records

38

Vol III - page 217 of W.C.B. records re. Read Clinic

Day III - February 8, 1995

39

Specimen of Mrs. Fantu Worku's signature

40

Curriculum Vitae of Dr. John Bury Ou-Wai

41

Clinical notes and records of Dr. Ou-Wai

42

Vol II - Tab 7 - Clinical notes and records of Dr. John B. Ou-Wai

Day IV - February 9, 1995

43

Bundle of original documents of Silcorp Ltd.

44

Vol I - Tab 11 - Dr. G. Rado's Reports

45

Vol I - Tab 3 - Dr. John Ou-Wai's Reports

46

Vol II - Tab 9 - Dr. G. Rado's clinical notes and records

Day V - April 18, 1995

47

Curriculum vitae of Dr. Sergio Bacal, psychologist

48

Curriculum vitae of Dr. Macartney-Filgate, neuro psychologist

49

Vol I - Tab 13 - Dr. McCartney-Filgate's report dated November 2, 1992

50

Curriculum vitae of Dr. Arthur Ameis, physiatrist

51

Vol I - Tab 19 - Dr. Ameis' report dated January 24, 1995

Day VI - April 20, 1995

52

Vol III - pages 137-142 - W.C.B. admission report of October 30, 1991 and discharge report of C.A.R.E.

Other documents filed:

1. Application for Appointment of Arbitration dated April 28, 1994

2. Response by the Insurer dated June 20, 1994

3. Report of Mediator dated March 22, 1994

4. Report of Mediator dated September 23, 1992

5. Volume I - Joint Medical Brief - 19 Tabs

6. Volume II - Joint Medical Brief - 11 Tabs

7. Volume III - Workers' Compensation Board Records for Ghenet Worku - 229 pages

8. Transcript of proceedings on the 7th day of February 1995 recorded by Holley and Strauch Court Reporters

9. Transcript of proceedings on the 8th day of February, 1995 recorded by Holley and Strauch Court Reporters

10. Written submissions on behalf of Ghenet Worku (41 pages) undated, submitted May 18, 1994

11. Applicant's Brief of Authorities submitted May 18, 1994

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. 2The C.C.D.O. along with the National Occupational Classification (N.O.C.) are the most commonly used vocational work classification systems in Canada. However the C.C.D.O. includes information regarding the physical requirements of occupations and the physical capacities a worker must have to meet these requirements, not currently included in the N.O.C. The C.C.D.O. defines sedentary work as: "lifting 10 pounds maximum and occasionally lifting and/or carrying such articles as dockets, ledgers, and small tools. Occupations are defined as sedentary if they involve sitting and walking; carrying and standing are required only occasionally". Light work is defined as: "Lifting 20 lbs maximum with frequent lifting and/or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be only a negligible amount, an occupation is in this category (a) when it requires walking or standing to a significant degree..."
3. 3The C.C.D.O. defines medium work as: lifting 50 lbs maximum with frequent lifting and/or carrying of objects weighing up to 20 lbs.
4. 4Transcript of evidence taken by Holley & Strauch Court Reporters, on February 7, 1995, page 211, lines 14 to 21.
5. 5Exhibit 37, Vol. 2, Tab 5, clinical notes and records of Dr. Johnson
6. 6Exhibit 2, Vol. I, tab 2, Ontario Automobile Insurance medical report by Dr. Beverly A. Johnson dated August 16, 1990.
7. 7Exhibit 2, Vol. I, tab 2, Form 4 medical report of Dr. Johnson dated August 16, 1990 and Report of Dr. Johnson dated October 11, 1990.
8. 8Exhibit 42, Vol. 2, Tab 7, at page 28, Report dated October 19, 1990
9. 9Consultation report of Dr. Veidlinger dated November 7, 1991 Exhibit 4. Vol. 1, part of tab 5
10. 10Reports of Dr. Lipowski to Dr. Ou-Wai dated April 11, 1991, Exhibit 6, Tab 8 and report dated June 11, 1991, Exhibit 42, Vol. 2, Tab 7 page 48
11. 11Transcript of evidence from February 7, 1995, at page 238 line 9 to page 241, line 3
12. 12Exhibit 42, Vol. 2, Tab 7
13. 13Exhibit 44, Vol. 1, Tab 11, report dated October 26, 1991
14. 14Exhibit 35, Vol. 1, Tab 7, report dated November 4, 1991
15. 15Exhibit 18 to 27 and Exhibits 32, 39 and 43
16. 16Exhibit 2, Vol. 1, Tab 2, report of Dr. Johnson dated October 11, 1990.
17. 17Exhibit 4, Vol. 1, part of Tab 5, Consultation report of Dr. Veidlinger dated November 7, 1991
18. 18Exhibit 6, Vol. 1, tab 8, Report dated April 11, 1991
19. 19Exhibit 5, Vol. 1, Tab 6, report dated November 13, 1991
20. 20Vol. 3, page 128 to 131, referred to in Exhibit 52, discharge report of the C.A.R.E. program sponsored by the W.C.B.
21. 21Dr. Veidlinger, Dr. Hajek, Dr. Lipowski, Dr. Macartney-Filgate, Dr. Bacal, Dr. Sadavoy
22. 22For example, Dr. Ameis questioned Ms. Worku's decision to actively pursue pregnancy while allegedly suffering disabling pain and relied upon this fact in discounting Ms. Worku's claims. The testimony of Dr. Ou-Wai established that in fact, Ms. Worku had taken active steps to prevent pregnancy during the relevant period.
23. 23Exhibit 15, Vol. 1, Tab 17, report dated June 18, 1991, Exhibit 16, report dated January 17, 1995
24. 24Report dated April 22, 1993, Exhibit 42, Vol. 2, Tab 7 at page 119
25. 25Loss of memory for events following the accident
26. 26Exhibit 5, Vol. 1, Tab 6, Dr. Hershberg's consultation note dated November 13, 1991
27. 27Exhibit 35, Vol. 1, Tab 7 report dated November 4, 1991 at pages 202 to 203
28. 28Bruna Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company (December 11, 1995), OIC P-00039297/P-005693.
29. 29Donna Flemming & Wawanesa Mutual Insurance (April 28, 1992), OIC A-000406; Lawrence Whitney & Co-operators General Insurance Company (July 10, 1996), OIC A-001005 (upheld on appeal); Barbara Edwards & State Farm Mutual Automobile Insurance (February 26, 1996), OIC P-001707; Bahadur Chhokar & Allstate Insurance Company of Canada (December 2, 1993), OIC A-004294; Chor Ting Lui & Wellington Insurance Company (April 28, 1993), OIC A-001894; Jennifer I. Rustico and Royal Insurance Company of Canada (February 15, 1994), OIC A-002539; Gail MacNeill & Royal Insurance of Canada (October 1, 1994), OIC A-000057; P.S. and Toronto Transit Commission (Markel Insurance) (May 4, 1994), OIC A-001116; Shelly L.P. and Royal Insurance Company of Canada (June 23, 1995), OIC A-002235 (upheld on appeal); Filomena Furtado and York Fire and Casualty Insurance Company (June 22, 1995), OIC A-008927 (under appeal); Dragica Mladenovic & Dominion of Canada General Insurance Company (September 11, 1995), OIC A-008849, (under appeal); David Freeman & Wellington Insurance Company (October 16, 1995), OIC A-013578; Narinder Tiwana & Allstate Insurance Company of Canada (February 13, 1996), OIC A-950155; Klime Milevski & State Farm Mutual Automobile Insurance Company (June 6, 1996), OIC A-010292; Ms. B & Non-Marine Underwriters, Members of Lloyds, London, England (June 24, 1996), OIC A-013947.
30. 30Exhibit 52, Vol. 3, pages 137 to 148, admission and discharge report from the C.A.R.E. program. As part of that program Ms. Worku received a medical assessment, a functional abilities evaluation, an occupational therapy assessment, a remedial gymnasium program, a therapeutic recreation program, an orthopaedic pool program, pain management education and a psychological assessment.
31. 31W.C.B. Discharge report Exhibit 52
32. 32Exhibit 11, Vol. 3, W.C.B. documentation relating to vocational assessment by Geller, Shedletsky & Weiss at pages 5 to 15
33. 33Clinical notes and records of Dr. Ou-Wai, Report of Dr. Lipowski dated June 8, 1993
34. 34Edgar Cowie and the Non-Marine Underwriters, Members of Lloyds (August 12, 1996), OIC P-001159 and P-005767.