Neutral Citation: 1996 ONICDRG 155

OIC A-009132

ONTARIO INSURANCE COMMISSION

BETWEEN:

FERNANDA OLEIRO

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Fernanda Oleiro, was injured in a motor vehicle accident on January 15, 1992. She applied for and received statutory accident benefits from Commercial Union Assurance Company of Canada ("Commercial Union"), payable under Ontario Regulation 672.¹Commercial Union paid Mrs. Oleiro weekly benefits in the amount of $185.00 from January 22, 1992 to April 11, 1993. It denied Mrs. Oleiro's claim for weekly benefits after April 11, 1993. Commercial Union also paid Mrs. Oleiro expenses for physiotherapy treatments from shortly after the accident until August 4, 1995.

Although Commercial Union paid weekly benefits until April 11, 1993, it contended that by March 17, 1992, or at the latest by September 21, 1992, she no longer suffered a substantial inability to perform the essential tasks in which she would normally engage. It therefore sought repayment of weekly benefits received by Mrs. Oleiro after March 16, 1992, or, alternatively, after September 20, 1992.

Commercial Union also sought repayment from Mrs. Oleiro of payments received by her for physiotherapy treatments after September 20, 1992 or, alternatively, after March 22, 1993. Commercial Union paid Mrs. Oleiro expenses for physiotherapy treatments after these dates notwithstanding that it considered that the treatments were not reasonable or beneficial to Mrs. Oleiro, in compliance with section 268(8) of the Insurance Act, R.S.O., 1990, c.I.8 ("the Act") and section 6(7) of the Schedule. The parties were unable to resolve their disputes through mediation and Mrs. Oleiro applied for arbitration under the Act.

The issues in this hearing are:

1. Is Mrs. Oleiro entitled to weekly benefits after March 16, 1992?

2. Is Mrs. Oleiro entitled to payment for physiotherapy expenses after September 20, 1992?

3. Is Mrs. Oleiro required to repay benefits received?

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

Result:

1. Mrs. Oleiro is not entitled to weekly benefits after March 16, 1992.

2. Mrs. Oleiro is not entitled to payments for physiotherapy treatments after March 16, 1992.

3. Mrs. Oleiro is required to repay weekly benefits received after March 16, 1992.

4. Mrs. Oleiro is required to repay payments received for physiotherapy treatments after March 16, 1992.

5. Mrs. Oleiro is not entitled to her expenses.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on February 28, March 1, July 12 and 13, and September 15, 1995, before me, Shemin Manji, arbitrator.

Present at the Hearing:

Applicant:

Fernanda Oleiro

Mrs. Oleiro's

Ben Mignardi

Representative:

Barrister and Solicitor

Commercial Union's

Guy Farrell

Representative:

Barrister and Solicitor

Witnesses:

Mrs. Fernanda Oleiro

Dr. Nestor Fernandez

Mrs. Maria Ernestina Oleiro

Dr. Michael Hall

Mrs. Jeanine Amaral

Mr. Frederick Bell

Ms. Theresa McDonough

Mrs. Linda Fernandez

Mr. Fernando Rocha

Mrs. Fernanda Rocha

On July 13 and September 15, 1995, Mr. Jayson Schwarz appeared as representative for the following witnesses: Dr. Fernandez, Mrs. Fernandez, Mr. Rocha, Mrs. Rocha, Annex Physiotherapy & Rehabilitation, Bloor-Christie Physiotherapy Clinic and Bloor-Borden Physiotherapy Clinic.

Interpretation services in the Portuguese language were provided to Mrs. Oleiro by Augusto Guerreiro.

The proceedings were recorded by Ms. Norma Graham and Michael Pahl of Canadian Verbatim Reporting Services Ltd. Transcripts for the dates of February 28 and March 1, 1995 were referred to during the hearing and copies were made available to both parties and the Commission.

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

Reasons for Decision:

1. Background Facts and Issues:

Mrs. Oleiro is 57, married, with four grown children and six grandchildren, ages four to 11. Mrs. Oleiro was born in Portugal. She immigrated with her husband to Canada in 1961.

Mrs. Oleiro started working full-time with Cityhome, as a cleaner, in April 1987. She worked until January 7, 1988, when she stopped working because she injured her lower back while moving a stove to clean, at work. She did not return to work until October 24, 1988. On March 27, 1989, Mrs. Oleiro stopped working again after she slipped and fell at work on two separate occasions, in early March, re-injuring her lower back and injuring her left knee. She attempted a graduated return to modified work on February 25 and February 26, 1991,² but found it very difficult because of pain.³ Mrs. Oleiro has not returned to work since.⁴

Mrs. Oleiro received temporary total disability benefits from the Workers' Compensation Board ("WCB") following the work-related accidents in January 1988 and March 1989.⁵ On April 30, 1991, she was seen by the WCB for the purposes of a pension assessment in respect of her compensable low back injury. She was awarded a 15% permanent partial disability pension. She was also awarded a permanent disability pension supplement, the amount of which was equivalent to the Canada Pension Old Age Supplement, to continue until she returned to gainful employment or became eligible for federal income assistance on her 65th birthday.⁶ Mrs. Oleiro's claim was reviewed on August 1, 1993 and was to be reviewed again on August 1, 1996.⁷

While working with Cityhome, Mrs. Oleiro was insured with Prudential Group Assurance ("Prudential") under a group insurance policy which provided for long-term disability coverage. Following her 1989 work accident, Mrs. Oleiro received loss of income payments under that policy, after a six month waiting period, from September 21, 1989 to September 20, 1991, on the basis that during this period she was substantially unable to perform the essential duties of her regular occupation.⁸ Afterwards, according to the terms of the policy, she could only continue to be eligible for these benefits if she was totally disabled to the extent that she could not perform the duties of any occupation for which she was reasonably qualified by reason of her training, education or experience. Based on the medical information in its file, Prudential determined that after September 20, 1991, Mrs. Oleiro was capable of returning to an occupation that did not require heavy lifting.⁹

Mrs. Oleiro was not working at the time of the motor vehicle accident on January 15, 1992. On that day she was seated in the front passenger seat of a vehicle driven by her husband, wearing a full three-point seat-belt, when she and her husband were involved in a three vehicle collision. A vehicle coming out of a driveway collided with another vehicle proceeding in the opposite direction to the Oleiro vehicle. This collision resulted in one of the two vehicles colliding against the driver's side of the Oleiro vehicle.¹⁰

Mrs. Oleiro testified that after the collision both she and her husband were shaken. She testified that she does not remember feeling any pain immediately following the impact but her husband experienced difficulty breathing. Mrs. Oleiro testified that after the collision she decided to get out of the vehicle to assist her husband. As she was getting out of the vehicle, she fell down. After she fell, she had some difficulty getting up, but managed to do so, and walked around to her husband's side (driver's side) of the vehicle and tried to open the door. Shortly afterwards the police and ambulance arrived. Mr. Oleiro was taken to the Toronto Western Hospital. Mrs. Oleiro accompanied him. She was not attended to or treated at the hospital. However, two days after the motor vehicle accident, she visited her family physician, Dr. Nestor Fernandez, complaining of pain and stiffness in her neck, left shoulder, low back and chest.¹¹

2. Entitlement to weekly benefits:

Mrs. Oleiro claims weekly benefits under section 13 of the Schedule after April 11, 1993. However, in light of Commercial Union's claim for repayment of weekly benefits received by Mrs. Oleiro after March 16, 1992, the issue that I must determine is whether she is entitled to weekly benefits under section 13 after March 16, 1992.

Mrs. Oleiro is entitled to weekly benefits under section 13(1) of the Schedule after March 16, 1992 if she establishes that as a result of the injuries she sustained in the motor vehicle accident on January 15, 1992, she continued to suffer a substantial inability to perform the essential tasks in which she would normally engage. The test for eligibility for weekly benefits changes "for any period in excess of 156 weeks...". After 156 weeks, Mrs. Oleiro is only entitled to weekly benefits under section 13(8)(b) of the Schedule if she establishes that the injuries she sustained in the motor vehicle accident continuously prevent her from engaging in substantially all of the activities in which she would normally engage.

In this case, the issue is whether the injuries Mrs. Oleiro sustained in the motor vehicle accident of January 15, 1992 caused her to suffer a substantial inability to perform the essential tasks in which she would normally engage after March 16, 1992 and whether, after January 14, 1995, these injuries continuously prevent her from engaging in substantially all of the activities in which she would normally engage.

In establishing the causal connection between the motor vehicle accident and her disability after March 16, 1992, previous decisions of the Commission suggest that Mrs. Oleiro does not have to show that disability was caused solely by the accident. However, she must establish on a balance of probabilities, that the disability was as a result of the accident. This requires more than some contribution. The contribution of the accident must be "significant' or "material" to the development or continuation of the disability claimed.¹²

Mrs. Oleiro's claim for weekly benefits is complicated because of her extensive medical history. Mrs. Oleiro's family physician's (Dr. Fernandez's) pre-accident clinical notes and records, as well as the WCB and Prudential files, indicate that Mrs. Oleiro was suffering from a significant low back problem before the motor vehicle accident, and they also reveal that she suffered from a multitude of other health-related problems.

Mrs. Oleiro had been suffering from chest pain of a cardiovascular origin which had been diagnosed by Dr. Fernandez as angina pectoris,¹³ high blood pressure¹⁴ and hyperlipidaemia¹⁵since 1987. She had a heart attack in 1987¹⁶ and again another one followed by a mild stroke in August 1990.¹⁷

Mrs. Oleiro had weak abdominal muscles and had had several abdominal operations.¹⁸ Mrs. Oleiro had an operation for a stomach ulcer in 1984¹⁹ and continued to suffer from stomach ulcers after that date.²⁰ She also had repetitive episodes of functional bowel syndrome²¹although it is unclear from the records when this problem began.²²

Mrs. Oleiro also suffered from migraine headaches.²³ In May 1991 she attended at the emergency department of a hospital and was given injections for migraine headaches.²⁴ In June 1993, she was seen by Dr. Khan, a specialist in internal medicine, at the request of Dr. Fernandez. She complained of throbbing headache attacks and advised Dr. Khan that she generally suffered one attack per week, lasting one to two days. During the headache attack she suffered from photophobia (an abnormal visual intolerance of light) and sonophobia (an abnormal intolerance of noise). She informed Dr. Khan that the headache attacks had begun when she was 14 years old.²⁵

Mrs. Oleiro's pain from the injuries she sustained in the work-related accident of March 1989 was not confined to her lumbar spine. In July 1990, when she attended at the Toronto Western Hospital for a Functional Abilities Evaluation ("FAE"), she described "...a constant pain radiating from her lumbar spine up and outwards towards her shoulders." She scored this pain as 9/10. She complained of bilateral posterior shoulder pain, especially when reaching laterally. She reported that this pain lingered after the cessation of the reaching tasks until the next day. She refused to reach above shoulder level.²⁶

Mrs. Oleiro also suffered from neck stiffness and pain. She started complaining of neck pain in November 1989. At that time, Dr. Fernandez noted tenderness around the C5-7 area of the spine and concluded that she had suffered a cervical strain.²⁷ On November 22, 1990, Mrs. Oleiro advised Dr. Kliman, an orthopaedic specialist, that she had had many years of ongoing neck, as well as back pain.²⁸ Mrs. Oleiro continued to complain of neck pain throughout 1991.²⁹

In addition to her physical problems, Mrs. Oleiro also suffered from psychiatric and cognitive problems before the motor vehicle accident. Dr. Fernandez testified that in 1990 and 1991, Mrs. Oleiro expressed anxiety and hyper-irritability as a result of her injuries in March 1989. In 1990, Dr. Fernandez referred Mrs. Oleiro to Dr. A. Sanchez, a psychiatrist. Mrs. Oleiro saw Dr. Sanchez twice in 1990 and once in 1991. Mrs. Oleiro complained to Dr. Sanchez of "(a)nxiety, tension, depression, insomnia, irritability, lack of interest, decreased socialization, no libido and a tendency to isolate herself." She advised Dr. Sanchez that she could not tolerate noise. Dr. Sanchez found that Mrs. Oleiro's memory and concentration were impaired. He concluded that she had anxiety neurosis with depressive features and psychosomatic manifestations and prescribed anti-depressants with tranquillizing effect to help her sleep.³⁰

Mrs. Oleiro continued to suffer from anxiety and depression throughout 1991. On April 30, 1991, Mrs. Oleiro saw Dr. Mitchell, WCB Medical Advisor, for the purposes of a permanent pension assessment in respect of her compensable low back injury. Mrs. Oleiro advised him that she was having nightmares, admitted that she was very depressed and that she was having suicidal thoughts. Dr. Mitchell concluded that Mrs. Oleiro was suffering from depression, as well as mechanical low back pain.³¹ On June 20, 1991, Mrs. Oleiro was seen, once again, by Dr. Sanchez. Dr. Sanchez noted that there had been no change in her condition since he had last seen her. He felt that she was suffering from chronic depression and indicated that he did not expect her mental condition to improve substantially in the future.³²

Mrs. Oleiro testified that despite her health problems before the motor vehicle accident, in the three to four months before the accident, in particular, she was feeling very well and only had lower back pain when she pushed herself. She testified that during this period she was also very happy. She was able to engage in many activities and was thinking of returning to work. She testified that the only reason she did not return to work in those months was because she wanted to complete some sewing for her grandchildren before Christmas.

At the hearing, Mrs. Oleiro provided a detailed account of her activities before the motor vehicle accident. She testified that she was totally responsible for all the cleaning and maintenance of her and her husband's two bedroom apartment. She dusted the apartment twice a week and every Saturday she would clean everything, including all the closets, the kitchen (including the fridge and stove) and the bathroom. She washed and waxed all the floors. She did the laundry and even washed the blankets on her bed and the small carpets in the house. She testified that during the process of cleaning, she would move the furniture around and remove fixtures, such as picture frames and plates, from the walls and clean them. Once every two months she would take down her drapes and curtains and wash them as well.

Mrs. Oleiro testified that she also did all the cooking. She butchered rabbits and chickens and cleaned and packaged them for herself and her children to store in their freezers. She did the same with half a cow which she and her husband bought regularly. She baked bread every week. Mrs. Oleiro testified that even though her children did not live with her, they were a very close family and her children would often come over to her house to eat, during the week and on weekends. When they came, she would cook big traditional Portuguese meals for them. She also cooked and baked for feasts for Christmas.

Mrs. Oleiro testified that she babysat her grandchildren almost every weekend. In addition, she shopped, designed and sewed clothes, played the accordion, wrote poetry, read and swam. Mrs. Oleiro testified that she also took care of her personal grooming needs and attended at social functions in the Portuguese community.

Mrs. Oleiro testified that all these tasks or activities in which she would normally engage before the accident were very important to her. She submitted that she performed these activities consistently and not in a "...passing manner." They were her basic, necessary and fundamental tasks, consistent with her background and lifestyle.

Mrs. Oleiro testified that the motor vehicle accident completely changed her life. Since the accident she has been unable to do virtually anything because of headaches and pain in her neck, left arm, shoulders and back. Since the accident, all she can do is take a bath or shower, brush her teeth, get dressed, make coffee and toast and a sandwich for herself and her husband sometimes and take the subway. She feels very miserable because she can no longer do the other things she used to do before the accident.

Mrs. Oleiro relied on the testimony of her family doctor, Dr. Fernandez, the testimony of her daughter-in-law, Mrs. Maria Ernestina Oleiro, and the testimony of her daughter, Mrs. Jeanine Amaral, in support of her testimony that her condition deteriorated dramatically as a result of the motor vehicle accident.

Dr. Fernandez testified that Mrs. Oleiro was "a very active person in every sense" before the motor vehicle accident. Dr. Fernandez opined that in the three to four months before the motor vehicle accident, except for the occasional chest pain and problem with high blood pressure which was controlled by medication, Mrs. Oleiro's condition was stable. He testified that Mrs. Oleiro had reached a maximum level of recovery in respect of her low back injury around the time she was seen by the WCB for the pension assessment in April 1991. Dr. Fernandez felt that emotionally, by the time of the motor vehicle accident, Mrs. Oleiro had accepted her chronic mechanical low back pain and learned to live with it. Except for her inability to return to work, her life had returned to normal. He felt that she was able to handle her own housework despite her inability to resume her job as a cleaner.

Dr. Fernandez testified that after the motor vehicle accident of January 15, 1992, Mrs. Oleiro was no longer the person she used to be. Her level of functioning deteriorated significantly. Since the accident she has only been able to engage in basic personal care activities. Dr. Fernandez opined that Mrs. Oleiro has been significantly disabled since the motor vehicle accident because she suffers from the following problems: 1) cervical myofascial soft tissue injury of a chronic nature; 2) headaches of a muscular tension variety which appear to be related to the intensity of the neck pain; 3) left shoulder soft tissue injury of a chronic nature; 4) post-traumatic anxiety stress disorder; 5) post-traumatic anxiety depression; 6) chest pain - post contusion - of a musculoskeletal nature; and 7) chronic pain syndrome. Dr. Fernandez believes that the motor vehicle accident also exacerbated Mrs. Oleiro's pre-accident health problems. He testified that her low back complaints after the accident are more prominent and severe; she has increased migraine headaches, increased episodes of anginal attacks and increased high blood pressure; and her bowel functioning is interrupted at times because of the use of Tylenol #3 or because of increased anxiety of a post-traumatic nature. Dr. Fernandez testified that there had been little improvement in Mrs. Oleiro's condition since the accident and he did not expect her condition to improve in the future because, in his opinion, as of February 22, 1995, she had reached a maximum level of recovery in respect of the injuries she sustained in the motor vehicle accident.³³

Mrs. Oleiro's daughter, Mrs. Jeanine Amaral, in her testimony, essentially echoed Mrs. Oleiro's and Dr. Fernandez's assessment of Mrs. Oleiro's condition and level of functioning before and after the motor vehicle accident. She testified that Mrs. Oleiro was a superactive, superenergetic and happy person doing all sorts of things before the accident. She became a very helpless and miserable person after the accident.

Mrs. Oleiro's daughter-in-law, Maria Ernestina Oleiro, was not able to shed any light on Mrs. Oleiro's condition and level of functioning before the accident because she arrived in Canada from Mexico shortly after Mrs. Oleiro's motor vehicle accident. She had never met Mrs. Oleiro before coming to Canada. However, she testified that when she met Mrs. Oleiro in January 1992 (after the accident), Mrs. Oleiro was bedridden and unable to do anything. She testified that since then Mrs. Oleiro has been able to do very little around the house. Mrs. Oleiro's daughter-in-law testified that she herself has been doing most of the housework for Mrs. Oleiro since she arrived in Canada.

Analysis and Findings

Mrs. Oleiro's ongoing claim for benefits in this arbitration is based to a large extent on her own testimony about her activities and condition before and after the motor vehicle accident, rather than on objective data and findings. My assessment of Mrs. Oleiro's credibility is therefore central to my decision in this case.

I did not find Mrs. Oleiro to be a credible witness for the following reasons:

Firstly, I found her testimony, on cross-examination, to be generally vague, evasive, confusing and unresponsive. She would quite frequently respond to a question with a question. When forced to respond directly to a question, her answer was often difficult to follow.

She was dishonest in her reporting of her pre-accident history to Commercial Union and to the various health care professionals she saw in connection with the injuries she sustained in the motor vehicle accident. She failed to inform them that she had sustained injuries in a work-related accident in March 1989 and had not returned to work since. Instead she reported to them that she had been fully functional in the year prior to the motor vehicle accident and that the only reason why she had not been working at the time of the accident was because she had been on vacation. The following are some examples:

• On December 4, 1992, Mrs. Oleiro met, for the first time, with Mr. Frederick Bell, from Canadian Rehabilitation Consultants Inc. Mr. Bell had been appointed by Commercial Union to be Mrs. Oleiro's caseworker. In respect of Mrs. Oleiro's pre-accident history, in his report to Commercial Union of December 18, 1992, Mr. Bell stated: "(u)pon inquiry, she denied missing any work time in the two years prior to the subject MVA due to illness, although she did take time off following the birth of her grandchildren to help with their early care. "³⁴

• On March 18, 1993, Mrs. Oleiro met again with Mr. Bell. In his report to Commercial Union in respect of this meeting, Mr. Bell wrote that "...Mrs. Oleiro stated that she had not worked during 1992 since she had taken holidays in January, but she estimated that she had worked for City Homes for 6, 7 or 8 months during 1991. "³⁵

• On March 23, 1993, Mrs. Oleiro was seen by Dr. Fred Langer, Orthopaedic Surgeon, at the request of Commercial Union, for the purposes of an independent medical examination. In his report of March 23, 1993 to Commercial Union, Dr. Langer stated that Mrs. Oleiro denied experiencing back and neck problems before the accident and told him that "...at the time of the accident, she was employed at City Hall, cleaning. She had worked about eight months and then went on vacation. For that reason, she was not working when the accident occurred." Dr. Langer also stated that Mrs. Oleiro told him that she had not had a previous compensable accident.³⁶

• On September 2, 1993 and again on November 28, 1993, Mrs. Oleiro was seen by Dr. Morris Charendoff, Orthopaedic Surgeon, at the request of her family physician, Dr. Fernandez. In his reports of September 2, 1993 and November 28, 1993, Dr. Charendoff indicated that on both occasions Mrs. Oleiro advised him that she had been off work since the accident.³⁷

She failed to advise Prudential and the various health care professionals she saw after January 15, 1992 in connection with her claims for long-term disability and workers' compensation benefits about the motor vehicle accident and the impact that this accident was having on her ongoing disability. She also failed to advise them of the benefits she was receiving from Commercial Union. The following are some examples:

• Even though Prudential had refused to extend Mrs. Oleiro's long-term disability benefits beyond September 21, 1991, Mrs. Oleiro continued to claim that she was disabled after this date and unable to return to any kind of work as a result of the injuries she sustained in the work-related accident in March 1989. On March 17, 1992, Mrs. Oleiro met with Ms. Theresa McDonough from Prudential. During that visit, Mrs. Oleiro advised Ms. McDonough that she was seeing her family physician bi-weekly. When Ms. McDonough asked why she was seeing her physician so frequently as he did not appear to be involved in any physical treatment regime, Mrs. Oleiro responded that an appointment was necessary every two weeks to renew her medications. She did not advise Ms. McDonough of the motor vehicle accident of January 15, 1992 and she also did not advise Ms. McDonough that the physiotherapy treatments she was receiving at the time, two to three times a week, were being paid for by Commercial Union. Instead, she left Ms. McDonough with the impression that these were being paid for by the WCB.³⁸

• On September 21, 1992, Mrs. Oleiro was seen by Dr. Michael C. Hall at the request of Prudential. At that time, Dr. Hall inquired about her medical history. Dr. Hall testified that he specifically asked her if she had been involved in any motor vehicle accidents. Mrs. Oleiro advised Dr. Hall that she had "...not previously been involved in any motor vehicle accidents nor sustained any significant injuries"³⁹and made no mention of the motor vehicle accident of January 15, 1992.

• Mrs. Oleiro was seen by Dr. A. Sanchez, psychiatrist, at Dr. Fernandez's request, in 1990 and 1991, for emotional problems she had been experiencing subsequent to the work-related accident of March 1989. She was seen by Dr. Sanchez again in January 1994, at Dr. Fernandez's request. It is apparent from Dr. Sanchez's report of January 30, 1994 that Mrs. Oleiro failed to advise him of the motor vehicle accident of January 15, 1992. She continued to attribute her ongoing problems with anxiety, tension, depression, insomnia, forgetfulness, difficulty in concentration, chronic fatigue and irritability to the work-related accident.⁴⁰

At the hearing Mrs. Oleiro portrayed herself as a very active woman before the motor vehicle accident. She testified, inter alia, that she never required any help around the house to do any household activity. However, prior to the hearing Mrs. Oleiro made statements in respect of her condition and activities before the motor vehicle accident which were inconsistent with her testimony. The following are some examples:

• On July 18, 1990, when Mrs. Oleiro attended at the Toronto Western Hospital for the FAE she advised the physiotherapist conducting the evaluation that she was living with her son who had to do all the housework as she was unable to. She advised that she was suffering from constant pain radiating from her lumbar spine up and outwards to her shoulders. Sitting, walking and lying all aggravated the pain and she only got relief by sleeping on the floor.⁴¹

• On October 19, 1990, Mrs. Oleiro told Dr. Sanchez that she had always been happy, had had a lot of energy and had been very active until the work-related accident of March 1989. Since the accident, she was unable to do anything and felt very depressed.⁴²

• On November 9, 1990, Mrs. Oleiro told the social rehabilitation counsellor from the WCB that since her work-related accident "...depression and impatience (had) taken over what was once a very happy and active life. Her pain and depression (had led) her to isolate herself from her family members. Also (she felt) guilty for not doing things for her children and grandchildren as she once did." She also told the social rehabilitation counsellor that since the accident she had been unable to continue with her hobbies, for example, she was unable to play the accordion because of her back pain.⁴³

• On March 27, 1991, she told the social rehabilitation counsellor from the WCB that "...if she move(d) a little, her back (felt) much worse."⁴⁴

• On April 30, 1991, Mrs. Oleiro told Dr. Mitchell of the WCB, that she couldn't sit for more than 15-30 minutes and she couldn't walk for any length of time. She talked about "...her back being open" and told him that she slept on the floor and slept poorly. She was having nightmares. She admitted that she was very depressed and had suicidal thoughts.⁴⁵

• On June 20, 1991, Mrs. Oleiro reported no change in her condition when she saw Dr. Sanchez again.⁴⁶

In the three months before the motor vehicle accident, Mrs. Oleiro saw her family physician, Dr. Fernandez, eight times. She continued to complain of neck and low back pain, headaches, chest pain and anxiety and depression. This would indicate that her functional abilities had not improved and that she was not as active as she portrayed herself to be at the hearing.⁴⁷

Finally, at the hearing, Mrs. Oleiro presented a picture of herself as a severely disabled woman after January 15, 1992. When asked about her ability to perform the tasks in which she would normally engage, she testified that since the accident she had been able to do very little. She estimated that as of January 15, 1995, she was able to perform only 10% of her normal activities. However, prior to the hearing, Mrs. Oleiro made statements in respect of her condition and activities after the accident which were inconsistent with her testimony at the hearing. Further, her testimony was also contradicted by the testimony of other witnesses. The following are some examples:

• On March 17, 1992, during her meeting with Ms. McDonough from Prudential, Mrs. Oleiro presented herself as an energetic woman suffering only from chronic back pain as a result of injuries she sustained at work in 1988 and 1989. While she indicated to Ms. McDonough that she was not able to return to work, she informed Ms. McDonough that she was able to perform all of her activities of daily living. She also informed Ms. McDonough that she was able to perform her tasks at home, with assistance from family members with heavier chores. Further, she informed Ms. McDonough that she was able to swim twice a week, babysit her grandchildren as long as she was not required to lift them, grocery shop on her own as long as she was not required to carry groceries in excess of five lbs, and sew clothes for family members at her own pace. She advised Ms. McDonough that she was signing up for a course at the local library in order to improve her English language skills and would be attending English classes two hours in duration three times a week.⁴⁸

• On September 21, 1992, she informed Dr. Hall that she did some cleaning in her apartment. She also advised him that she did the cooking "...but...there (wasn't) much to do and (she) probably cook(ed) twice a week."⁴⁹

• On December 4, 1992, Mrs. Oleiro informed Mr. Bell from Canadian Rehabilitative Consultants Inc. that she was able to fold laundry, make the bed, do "a bit" of dusting, prepare meals, grocery shop and wash the dishes with the assistance of her husband. Mrs. Oleiro estimated her recovery at the time to be 50 to 55%.⁵⁰

• On March 23, 1993, Mrs. Oleiro informed Dr. Langer that since the motor vehicle accident, she had remained as active as possible, swimming two to three times a week.⁵¹

• Mrs. Oleiro's daughter, Mrs. Amaral, testified that Mrs. Oleiro was able to perform 50% of her pre-accident activities since the accident. She testified that Mrs. Oleiro could wash dishes for herself and her husband, wash some clothes, do some light dusting, lightly pass a broom over the kitchen floor once a week, grocery shop (although she was unable to carry heavy packages), make breakfast for herself and her husband and also make sandwiches and salads.

• Mrs. Oleiro's daughter-in-law, Mrs. Maria Ernestina Oleiro, conceded on cross-examination that Mrs. Oleiro was able to do some light housework, including washing dishes and dusting around the house. She also conceded that Mrs. Oleiro could prepare light meals, not involving heavy pots, light shopping and light laundry.

On cross-examination, Mrs. Oleiro was asked to explain the various discrepancies and contradictions in her testimony and prior statements alluded to above.

Mrs. Oleiro denied that she had been dishonest in her reporting of her pre-accident history. She attributed any discrepancies to language difficulties and misunderstandings. For example, she testified that when she told Ms. McDonough and Dr. Langer that she swam twice a week she was talking about the things she used to do before the motor vehicle accident which she could not do after. Mrs. Oleiro acknowledged that she had failed to advise Ms. McDonough from Prudential and Dr. Hall of the motor vehicle accident. She stated that she did not do so because she was afraid that they would inform her employer of the motor vehicle accident and she would lose her job.

I find Mrs. Oleiro's explanations implausible and unbelievable. I believe that Mrs. Oleiro did not advise Commercial Union and the health care professionals reporting to Commercial Union of the injuries she sustained in the work-related accident of March 1989 because she was concerned that once Commercial Union became aware of the previous accident, the benefits she was receiving from Commercial Union would be reduced or terminated. Similarly, I believe that Mrs. Oleiro did not advise Prudential and the health care professionals reporting to Prudential or the WCB of the motor vehicle accident of January 15, 1992 because she was concerned that she would not receive further benefits from Prudential and the benefits from the WCB would be reduced or terminated.

I note that Mrs. Oleiro's son and daughter were present during some of the interviews where she claims misunderstandings arose.⁵² I understand that both Mrs. Oleiro's son and daughter speak English fluently. I also accept Mr. Bell's testimony that Mrs. Oleiro's English language speaking skills were quite good. Dr. Langer specifically noted in his report of March 23, 1993 that "Mrs. Oleiro (spoke) English in a very satisfactory fashion..."⁵³

Having concluded that Mrs. Oleiro was not a credible witness, I am unable to rely on her evidence that after March 16, 1992, she continued to suffer a substantial inability to perform the essential tasks in which she would normally engage as a result of the motor vehicle accident of January 15, 1992.

As noted previously, Mrs. Oleiro also relied on Dr. Fernandez's testimony and reports in support of her claim for benefits. I am unable to rely on Dr. Fernandez's opinions for two reasons. First, they are heavily dependent on Mrs. Oleiro's own representations of her symptoms and activities, and I have determined that she is not trustworthy. Secondly, I did not find him to be a credible witness.

I find that he deliberately withheld from Commercial Union information about Mrs. Oleiro's significant pre-accident problems, including the injuries she sustained in the work-related accident of March 1989, thereby suggesting that the motor vehicle accident was the sole cause of her disability after January 15, 1992. For example:

• Dr. Fernandez first reported to Commercial Union on October 19, 1992. He completed and submitted a Form 4 - Ontario Automobile Insurance Medical or Psychological Report. Under Part 5 "Diagnosis or Classification," he indicated that Mrs. Oleiro was suffering from headaches, cervical dorsal strain and chest pain as a result of the motor vehicle accident. Under Part 3 "Examination/Objective Findings," Dr. Fernandez noted that Mrs. Oleiro was also suffering from post-traumatic anxiety depression. Under the section which asks "When did symptoms first appear?" he wrote January 15, 1992. He stroked through the section which asks "Have you treated this patient for the same or similar condition prior to the accident (including pre-existing conditions which may be exacerbated by the current injury)," indicating that he had not treated Mrs. Oleiro for the same or similar condition prior to the accident. This was not true.⁵⁴

• Dr. Fernandez submitted another Form 4 to Commercial Union on December 20, 1993. Under Part 3 "Examination/Objective Findings" he noted that he had most recently examined Mrs. Oleiro on December 10, 1993 and his physical and mental findings and limitations at the time were: "Severely depressed. Tender C57 bilateral trapezia, tender left acromiclebicular and deltoid area, tender asternal area...Clinical depression." Under the section which asks "When did symptoms first appear?' he wrote "15/1/92". Under Part 5 "Diagnosis or Classification" he wrote: "MVA resulting in #1 Headaches, dizziness #2 Cervical myofascial soft tissue injury #3 Left shoulder soft tissue injury #4 Muscular skeletal pain #5 Anxiety depression. Under Part 6 "Treatment Plan" he indicated that Mrs. Oleiro was totally incapacitated from doing normal daily chores and activities and from returning to any kind of gainful employment as a result of the motor vehicle accident.⁵⁵

At the same time that Dr. Fernandez was reporting to Commercial Union that Mrs. Oleiro was totally incapacitated as a result of the motor vehicle accident, he was also reporting to Prudential and the Ontario Municipal Employees Retirement Board that Mrs. Oleiro continued to be totally disabled as a result of the injuries she sustained in the work-related accident of March 1989, making no mention of the motor vehicle accident of January 15, 1992 and its impact on her ongoing disability:

• Dr. Fernandez submitted an Attending Physician's Statement of Disability to Prudential on February 28, 1992. In that report, he stated that he had seen Mrs. Oleiro on January 28, 1992 and at that time she was suffering from lumbosacral myofascial soft tissue pain with sciatic irritation as a result of the work-related accident of March 1989 and that her physical impairment was "Class 5 - Severe limitation of functional capacity: incapable of minimal (sedentary) activity (75-100%)." Dr. Fernandez made no mention of the motor vehicle accident.⁵⁶

• Dr. Fernandez submitted a Certificate of Total Disability to the Ontario Municipal Employees Retirement Board on February 3, 1993. In the Certificate, he stated that Mrs. Oleiro was suffering from cervical myofascial pain, lumbosacral mechanical pain, anxiety depression and migraine headaches. He indicated that she was totally disabled as a result of these problems and that the total disability commenced March 1989. Again, Dr. Fernandez made no mention of the motor vehicle accident.⁵⁷

In the Certificate of Total Disability that he submitted to the Ontario Municipal Employees Retirement Board, Dr. Fernandez did not distinguish between Mrs. Oleiro's injury to her lower back which, in his testimony, he attributed to the work-related accident of March 1989, and the injury to her cervical spine, which he attributed to the motor vehicle accident.

While Dr. Fernandez was reporting to Commercial Union that Mrs. Oleiro was totally incapacitated as a result of the motor vehicle accident and reporting to Prudential and the Ontario Municipal Employees Retirement Board that she continued to be totally disabled as a result of the injuries sustained in the work-related accident of March 1989, on October 29, 1993, he submitted a medical report to Health and Welfare Canada, Income Security Programs, in support of Mrs. Oleiro's application for Canada Pension Plan disability benefits. In that form he opined that Mrs. Oleiro was totally and permanently incapacitated from work on account of a combination of the following problems: 1. coronary artery disease 2. mechanical low back pain 3. anxiety depression 4. cervical myofascial pains 4. chronic migraine headaches 5. chronic gastritis 6. functional bowel syndrome and 7. hyperlipidaemia.⁵⁸

At the hearing, Dr. Fernandez offered no explanation regarding the apparent differences in his opinion concerning the cause(s) of Mrs. Oleiro's complaints and total disability. He also failed to provide adequate explanations for why he deliberately withheld information from Commercial Union and Prudential.

I conclude that Dr. Fernandez acted more as an advocate than as an expert medical advisor in Mrs. Oleiro's case. I find that when he prepared reports on behalf of Mrs. Oleiro and gave testimony at the hearing on her behalf, he interpreted the facts in a manner most likely to result in the payment of benefits to her. I also find that he assisted Mrs. Oleiro in her efforts to deceive Commercial Union and to construct claims which would maximize her benefits.

While I am unable to rely on Dr. Fernandez's testimony and reports, I find his clinical notes, to the extent that they are legible, a more reliable guide to Mrs. Oleiro's condition and changes in her condition before and after the accident. Dr. Fernandez made these notes to assist himself in his treatment of Mrs. Oleiro, contemporaneously with Mrs. Oleiro's visits.

Dr. Fernandez's clinical notes show that Mrs. Oleiro was suffering from a multitude of medical problems before the accident and that her condition did not change significantly following the motor vehicle accident.⁵⁹

Dr. Hall, who examined Mrs. Oleiro at the request of Prudential in September 1992, and who had not been aware of the motor vehicle accident at the time of his examination, substantiated the impression obtained from a review of Dr. Fernandez's clinical notes that Mrs. Oleiro's physical condition did not change significantly after the accident. He testified that her complaints and his findings in September 1992 were the same as her complaints to and the findings of Dr. Kliman in November 1990. It did not appear that any intervening event had occurred.⁶⁰

Similarly, Dr. Sanchez, the psychiatrist, was not aware of the motor vehicle accident of January 15, 1992. His reports also indicate that Mrs. Oleiro's psychological condition did not change significantly after the motor vehicle accident.⁶¹

Mrs. Oleiro was seen by another psychiatrist, Dr. Adrian Hanick, and a psychologist, Dr. Ricardo J. Harris, in respect of her psychological problems subsequent to the motor vehicle accident. No evidence was presented at the hearing that either Dr. Hanick or Dr. Harris felt that the motor vehicle accident aggravated her pre-existing psychological problems or precipitated her subsequent psychological problems.⁶²

Conclusion:

Mrs. Oleiro may have sustained soft tissue injuries in the motor vehicle accident on January 15, 1992. However, I cannot conclude, based on the evidence, that the motor vehicle accident aggravated her existing physical or mental condition to a significant or material extent, or precipitated her subsequent physical or psychological problems. I find that her physical or psychological problems after March 16, 1992⁶³ do not result from the January 15, 1992 accident. Mrs. Oleiro is therefore not entitled to weekly benefits from March 17, 1992 onwards.

Since Mrs. Oleiro received weekly benefits until April 11, 1993, I find that she is required to repay Commercial Union the weekly benefits she received from March 17, 1992 to April 11, 1993, under section 27(1) of the Schedule. These benefits were paid to her by Commercial Union as a result of misrepresentations made by her and her family physician, Dr. Fernandez.

3. Entitlement to expenses for physiotherapy treatments:

As noted previously, Commercial Union also paid Mrs. Oleiro expenses for physiotherapy treatments from shortly after the accident until August 4, 1995, under section 6(1)(a) of the Schedule, pending resolution of the dispute, in compliance with section 268(8) of the Act and section 6(7) of the Schedule. Commercial Union sought an order requiring Mrs. Oleiro to repay payments made by it for physiotherapy treatments after September 20, 1992 or, alternatively, after March 22, 1993, on the basis that physiotherapy treatments after these dates were not reasonable or beneficial to Mrs. Oleiro.

Mrs. Oleiro received extensive physiotherapy treatments, mostly of passive modality, from Bloor - Christie Physiotherapy Clinic, Bloor-Borden Physiotherapy Clinic and Annex Physiotherapy & Rehabilitation, at the request of Dr. Fernandez, in 1992, 1993, 1994 and 1995.⁶⁴

I heard evidence that Dr. Fernandez's wife, Mrs. Linda Louise Fernandez, is the director and owner of Bloor-Christie Physiotherapy Clinic,⁶⁵ that Dr. Fernandez's father, Manuel Do Padre, is the director and owner of Bloor-Borden Physiotherapy Clinic⁶⁶ and that Dr. Fernandez's mother, Delia Padre Fernandez, is the owner of Annex Physiotherapy & Rehabilitation.⁶⁷ Based on this evidence, Commercial Union submitted that Dr. Fernandez had a financial interest in these physiotherapy clinics and that he may have had an ulterior reason for continuing to prescribe this modality of treatment after September 20, 1992 or March 22, 1993.

I need not determine the weight that should be given to Dr. Fernandez's opinion that these expenses were necessary for Mrs. Oleiro's treatment. Under section 6(1) of the Schedule entitlement to supplementary medical and rehabilitation benefits is limited to those who sustain physical, psychological or mental injury as a result of a motor vehicle accident. I have found that the motor vehicle accident of January 15, 1992 did not aggravate Mrs. Oleiro's existing physical or mental condition to a significant or material extent or precipitate her subsequent physical or psychological problems, after March 16, 1992. That being the case, I find that the physiotherapy expenses paid to Mrs. Oleiro after that date were not "...reasonable expenses resulting from the accident."

I also find that Mrs. Oleiro is required to repay to Commercial Union the payments she received for physiotherapy treatments after that date, under section 27(1) of the Schedule. These benefits were paid to her by Commercial Union as a result of misrepresentations made by her and her family physician, Dr. Fernandez. Further, Commercial Union did not have a say in the choice of this treatment modality and its duration, since it was required to pay for the treatments pending resolution of the dispute under section 268(8) of the Act and section 6(7) of the Schedule.

4. Expenses

Mrs. Oleiro seeks an award of the expenses she has incurred in respect of this arbitration. Commercial Union submits that it would be inappropriate to award Mrs. Oleiro her expenses.

The awarding of expenses incurred in an arbitration proceeding is a matter of discretion under section 282(11) of the Act Arbitrators have declined to award expenses in cases such as this where applicants have advanced fraudulent or less than genuine claims. I agree with Commercial Union that this is not an appropriate case in which to award Mrs. Oleiro her expenses Accordingly, I am declining to award Mrs. Oleiro her expenses of this arbitration.

Order:

1. Mrs. Oleiro is not entitled to weekly benefits after March 16, 1992.

2. Mrs. Oleiro is not entitled to payments for expenses for physiotherapy treatments.

3. Mrs. Oleiro shall repay to Commercial Union weekly benefits received after March 16, 1992.

4. Mrs. Oleiro shall repay to Commercial Union payments received for expenses for physiotherapy treatments after March 16, 1992.

5. Mrs. Oleiro is not entitled to her expenses incurred in respect of the arbitration.

September 13, 1996

Shemin Manji Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Medical Brief of Fernanda Oleiro

Exhibit 2

Medical Brief of Commercial Union

Exhibit 3

File of the WCB

Exhibit 4

File of Prudential

Exhibit 5

Report of Dr. Ricardo Harris dated June 27, 1995

Exhibit 6

Photographs of Mrs. Oleiro and family at Christmas time

Exhibit 7

Curriculum Vitae of Dr. Michael Clement Hall

Exhibit 8

Records of Bloor Christie Physiotherapy Clinic

Exhibit 9

Records of Bloor Borden Physiotherapy Clinic

Exhibit 10

Records of Annex Physiotherapy Clinic

Exhibit 11

Letter from Joel Freedman & Associates to Commercial Union dated November 13, 1992

Exhibit 12

Records of Ministry of Consumer & Commercial Relations relating to Bloor Christie Physiotherapy Clinic

Exhibit 13

Records of Ministry of Consumer & Commercial Relations relating to Bloor Borden Physiotherapy Clinic

Exhibit 14

Discharge Report of Annex Physiotherapy Clinic dated August 4, 1995

Other documents before the arbitrator, but not marked as exhibits:

Report of Mediator dated March 29, 1994

Application for Appointment of Arbitrator dated May 12, 1994

Response by Insurer dated June 14, 1994

Letter from Arbitrator Julaine Palmer to the parties dated September 20, 1994, confirming pre-hearing discussions

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. 2Closure Report of WCB Caseworker dated May 30, 1991 - Exhibit 2, Tab 16 and Tab 3
3. 3Testimony of Mrs. Oleiro and Follow-up Report of the WCB Social Rehabilitation Counsellor dated March 7, 1991 - Exhibit 2, Tab 16 and Exhibit 3.
4. 4Letter dated December 29, 1992 from Canadian Rehabilitative Consultants Inc. - Exhibit 1, Tab 22 and Exhibit 2, Tab 10
5. 5Letter dated December 29, 1992 from Canadian Rehabilitative Consultants Inc. - Exhibit 1, Tab 22 and Exhibit 2, Tab 10
6. 6She is receiving the supplement under section 147(4) of the Workers Compensation Act - Letter from WCB dated October 5, 1993 - Exhibit 3 and WCB Questionnaire completed by Mrs. Oleiro on June 19, 1993 - Exhibit 3
7. 7Letter dated February 11, 1992 from WCB - Exhibit 4, Internal WCB memo from Dr. Mitchell, re: WCB Pension Interview April 30, 1991 (Memo 22) - Exhibit 3 and Letter from WCB dated October 5, 1993 - Exhibit 3
8. 8The monies she received from WCB were offset from the long-term disability loss of income payments - Letters dated April 15, 1992 and February 14, 1995 from Prudential - Exhibit 4
9. 9Letters dated April 15, 1992, October 8, 1992 and September 23, 1993 from Prudential - Exhibit 4
10. 10Testimony of Mrs. Oleiro, Letter from Canadian Rehabilitation Consultants Inc. (Initial Rehabilitation Assessment) dated December 18, 1992 - Exhibit 1, Tab 21, Functional Capacities Evaluation of Canadian Back Institute ("CBI") dated January 7 and 8, 1993 - Exhibit 1, Tab 27, Form 4 - Report of Dr. Fernandez dated December 20, 1993 - Exhibit 1, Tab 7 and Psychological Report of Dr. Ricardo J. Harris dated June 27, 1995 - Exhibit 5
11. 11Testimony of Dr. Fernandez
12. 12For example, Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company (December 11, 1995), OIC P-0003929 & P-005693; Worku and Co-operators General Insurance Company (August 29, 1996), OIC A-002172; Aguilar and Allstate Insurance Company of Canada (April 21, 1995), OIC A-000542 (upheld on appeal); Edwards and State Farm (July 12, 1993), OIC A-001707 (under appeal); MacNeill and Royal (January 10, 1994), OIC A-000057 (under appeal); Shelley P. and Royal (February 9, 1994 and June 22, 1995), OIC A-002235 and A-008498, P.S. and Toronto Transit Commission (May 4, 1994), OIC A-001116 (under appeal), Tiwana and Allstate (February 13, 1996) OIC A-950155; Furtado and York Fire (June 22, 1995), OIC A-008927 (under appeal) and Mladenovic and Dominion of Canada (September 11, 1995), OIC A-008849 (under appeal).
13. 13Initial Interview by WCB Caseworker on June 13, 1990 - Exhibit 3, Report of Toronto Western Hospital dated July 18, 1990 - Exhibit 3, Testimony of Dr. Fernandez, Report of Dr. Fernandez dated December 20, 1993 - Exhibit 1, Tab 7, WCB Internal Memo from Claims Adjudicator dated July 8, 1994 (Memo 28) - Exhibit 3, Letter from Canadian Rehabilitation Consultants Inc. dated January 21, 1993 - Exhibit 1, Tab 7 and Report of Dr. Fernandez dated February 22, 1995 - Exhibit 1, Tab 6
14. 14Testimony of Dr. Fernandez, Report of Dr. Khan dated June 19, 1993 - Exhibit 1, Tab 7, Letter from Canadian Rehabilitation Consultants Inc. dated January 21, 1993 - Exhibit 1, Tab 7 and Report of Dr. Fernandez dated February 22, 1995 - Exhibit 1, Tab 6
15. 15Testimony of Dr. Fernandez, Report of Dr. Khan dated June 19, 1993 - Exhibit 1, Tab 7. See also Letter from Canadian Rehabilitation Consultants Inc. dated January 21, 1993 - Exhibit 1, Tab 7 and Report of Dr. Fernandez dated February 22, 1995 - Exhibit 1, Tab 6
16. 16Testimony of Mrs. Oleiro and WCB Internal Memo from Claims Adjudicator dated July 8, 1994 (Memo 28) - Exhibit 3
17. 17Follow-up Report of WCB Social Rehabilitation Counsellor dated December 14, 1990, Exhibit 2, Tab 16 and Exhibit 3, Follow-up Report of WCB Social Rehabilitation Counsellor dated February 1, 1991, Exhibit 2, Tab 16, Exhibit 3 and Report of Dr. Khan dated June 19, 1993 - Exhibit 1, Tab 7
18. 18WCB Internal Memo from Claims Adjudicator dated July 8, 1994 (Memo 28), WCB Closure Report of Caseworker dated May 30, 1991 and Report of Toronto Western Hospital dated July 18, 1990 - Exhibit 3
19. 19Report of Dr. Hall dated September 21, 1992 - Exhibit 1, Tab 7
20. 20WCB Caseworker Follow-up Report dated October 18, 1990 - Exhibit 2, Tab 16 and WCB Internal Memo from Claims Adjudicator dated July 8, 1994 (Memo 28) and Report of Toronto Western Hospital dated July 18, 1990 - Exhibit 3
21. 21Report of Dr. Fernandez dated February 22, 1995 - Exhibit 1, Tab 6
22. 22Report of Dr. Fernandez dated October 28, 1993 - Exhibit 1, Tab 7 and Prudential Internal Memo of Dr. S. Fishbein dated November 9, 1993 (Exhibit 3)
23. 23Dr. Fernandez's testimony and his pre-accident clinical notes - Exhibit 1, Tab 7 and Report of Dr. Fernandez dated February 22, 1995 - Exhibit 1, Tab 6
24. 24Dr. Fernandez's clinical notes dated May 1, 1991- Exhibit 1, Tab 7
25. 25Report of Dr. Khan dated June 19, 1993 - Exhibit 1, Tab 7
26. 26Reports of the Toronto Western Hospital dated July 18 and July 19, 1990 - Exhibit 3, Exhibit 1, Tab 19
27. 27WCB Progress Report of Dr. Fernandez dated November 29, 1989 - Exhibit 3
28. 28Report of Dr. Kliman dated November 22, 1990 - Exhibit 1, Tab 18, Exhibit 2, Tab 8 and Exhibit 3 and Report of Dr. Kliman dated March 2, 1992 - Exhibit 4
29. 29Physician's Progress Report of Dr. Fernandez dated May 2, 1991 - Exhibit 1, Tab 7, Exhibit 2, Tab 1 and Exhibit 3, Dr. Fernandez's clinical notes for 1991 - Exhibit 1, Tab 7 and Dr. Fernandez's testimony
30. 30Report of Dr. Sanchez dated October 19, 1990 - Exhibit 1, Tab 7, Exhibit 2, Tab 4
31. 31Clinical Assessment of WCB Medical Advisor, M.E. Mitchell, dated April 30, 1991 - Exhibit 2, Tab 3
32. 32WCB Physician's Progress Report of Dr. Sanchez dated June 20, 1991 - Exhibit 3
33. 33Testimony and Report of Dr. Fernandez dated February 22, 1995 - Exhibit 1, Tab 6
34. 34Letter dated December 18, 1992 from Canadian Rehabilitative Consultants Inc.- Exhibit 1, Tab 21
35. 35Letter dated March 26, 1993 from Canadian Rehabilitation Consultants Inc. - Exhibit 1, Tab 26
36. 36Report of Dr. Fred Langer dated March 23, 1993 - Exhibit 1, Tab 8
37. 37Reports of Dr. Morris D. Charendoff dated September 2, 1993 and November 28, 1993 - Exhibit 1, Tabs 12 and 14
38. 38Report of Visit of T. McDonough on March 17, 1992 - Exhibit 4
39. 39Report of Dr. Michael C. Hall dated September 21, 1992 - Exhibit 1, Tab 9
40. 40Report of Dr. Sanchez dated January 30, 1994 - Exhibit 1, Tab 11. For another example see WCB Questionnaire completed by Mrs. Oleiro on June 19, 1993, in order for her to continue to receive the supplement.
41. 41Report of the Toronto Western Hospital dated July 18, 1990 - Exhibit 3
42. 42Report of Dr. Sanchez dated October 19, 1990 - Exhibit 1, Tab 10
43. 43Initial Report of WCB Social Rehabilitation Counsellor dated November 17, 1990 - Exhibit 2, Tab 16
44. 44Follow-up Report of WCB Social Rehabilitation Counsellor dated April 3, 1991 - Exhibit 2, Tab 16
45. 45Clinical Assessment of Medical Advisor, M.E. Mitchell, WCB, dated April 30, 1991 - Exhibit 2, Tab 3
46. 46WCB Physician's Progress Report by Dr. Sanchez dated June 20, 1991 - Exhibit 3
47. 47Dr. Fernandez's clinical notes - Exhibit 1, Tab 7
48. 48Report of Visit of Ms. McDonough on March 17, 1992 - Exhibit 4
49. 49Report of Dr. Hall dated September 21, 1992 - Exhibit 4
50. 50Letter dated December 18, 1992 from Canadian Rehabilitative Consultants Inc. - Exhibit 1, Tab 21
51. 51Report of Dr. Langer dated March 23, 1993 - Exhibit 2, Tab 2
52. 52Report of Visit of T. McDonough on March 17, 1992 - Exhibit 4 and Letter dated March 26, 1993 from Canadian Rehabilitative Consultants Inc. - Exhibit 1, Tab 26
53. 53Report of Fred Langer dated March 23, 1993 - Exhibit 1, Tab 8
54. 54Ontario Automobile Insurance Medical or Psychological Report of Dr. Fernandez dated October 19, 1992 - Exhibit 1, Tab 7
55. 55Ontario Automobile Insurance Medical or Psychological Report of Dr. Fernandez dated December 20, 1993 - Exhibit 1, Tab 7
56. 56Attending Physician's Statement of Disability of Dr. Fernandez dated February 28, 1992 - Exhibit 2, Tab
57. 57Certificate of Total Disability of Dr. Fernandez dated February 3, 1993 - Exhibit 1, Tab 7
58. 58Health and Welfare Canada, Income Security Programs, Medical Report of Dr. Fernandez dated October 29, 1993 - Exhibit 1, Tab 7
59. 59Exhibit 1, Tab 7
60. 60See also Report of Dr. Hall dated September 21, 1992 - Exhibit 1, Tab 9 and Reports of Dr. Kliman dated November 22, 1990 and March 2, 1992 - Exhibits 3 and 4
61. 61Report of Dr. Sanchez dated October 19, 1990 - Exhibit 1, Tab 10, WCB Physician's Progress Report of Dr. Sanchez dated June 20, 1991 - Exhibit 3 and Report of Dr. Sanchez dated January 30, 1994 - Exhibit 2, Tab 4
62. 62Commercial Union submitted a comprehensive Report from Dr. Harris dated June 27, 1995 - Exhibit 5. Dr. Harris assessed Mrs. Oleiro at the request of Dr. Fernandez on February 27, April 18 and May 24, 1995. While Dr. Harris found that Mrs. Oleiro suffered from anxiety and depression at that time, he was unable to say whether it was less or more than before the accident. He noted that the symptoms she was presenting were no different from those she was showing when she was seen by Dr. Sanchez in 1990 and 1991.
63. 63Based on the evidence adduced at the hearing, I am unable to determine whether or for how long Mrs. Oleiro was substantially disabled from performing her essential tasks as a result of the motor vehicle accident of January 15, 1992. I have picked this date (March 16, 1992) because Commercial Union indicated that it accepts that she was substantially disabled as a result of the accident until this date.
64. 64Clinical notes and records of Bloor-Christie Physiotherapy Clinic - Exhibit 1, Tabs 28-32, Exhibit 2, Tab 12 and Exhibit 8, Clinical notes and records of Bloor-Borden Physiotherapy Clinic - Exhibit 1, Tabs 32-33, Exhibit 2, Tab 13 and Exhibit 9, Clinical notes and records and Discharge Report of Annex Physiotherapy & Rehabilitation dated August 4, 1995 - Exhibits 10 and 14
65. 65Records of the Ministry of Consumer & Commercial Relations relating to Bloor-Christie Physiotherapy Ltd. - Exhibit 12 - and testimony of Mrs. Fernandez.
66. 66Records of the Ministry of Consumer & Commercial Relations relating to Bloor-Borden Physiotherapy Ltd. - Exhibit 13 - and testimony of Mrs. Fernanda Rocha, Office Manager, Bloor-Borden Physiotherapy Clinic.
67. 67Testimony of Mr. Fernando Rocha, General Manager, Annex Physiotherapy & Rehabilitation.