Neutral Citation: 1996 ONICDRG 166

OIC A95-000613

ONTARIO INSURANCE COMMISSION

BETWEEN:

GARY CABRAL

Applicant

and

CANADA LIFE CASUALTY INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Gary Cabral, was injured in a motor vehicle accident on November 25, 1993. He applied for and received statutory accident benefits from Canada Life Casualty Insurance Company ("Canada Life"), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by Canada Life on January 31, 1995. The parties were unable to resolve their disputes through mediation and Mr. Cabral applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits after February 1, 1995?

2. What is the amount of weekly income benefits that the Applicant is entitled to?

3. Is the Applicant entitled to the supplementary medical and rehabilitation expenses claimed, including those for the psychological services of Dr. Kaplan?

4. Is the Insurer entitled to any repayment of benefits?

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

Result:

1. Mr. Cabral is not entitled to further weekly income benefits after February 1, 1995.

2. The parties agreed that the appropriate rate of benefits is $486.00 per week, subject to confirmation by production of Mr. Cabral's T-4 slips.

3. Mr. Cabral is not entitled to the supplementary medical and rehabilitation benefits claimed.

4. The Insurer is not entitled to a repayment of benefits.

Hearing:

The hearing was held in Hamilton on August 6, 7, 8, and 28, 1996, before me, K. Julaine Palmer, arbitrator.

Present at the Hearing:

Applicant:

Gary Cabral and his wife, Sandra Cabral

Mr. Cabral's

Paul Barrafato

Representative:

Barrister and Solicitor

Canada Life's

Yvonne Diedrick

Representative:

Barrister and Solicitor

Canada Life's

Sharon Lennox

Officer:

Witnesses:

Sandra Cabral, Gary Cabral, Dr. Raimo U. Repo, Dr. Dinshaw K. Punthakee,

Dr. Drew A. Bednar, Angela Rocci

The parties filed a medical document brief and 55 other exhibits at the arbitration.

Subsequent to the arbitration, I received copies of the transcripts of evidence of

Mr. Cabral, Dr. Repo, and Dr. Punthakee.

Evidence and Findings:

Gary Cabral was injured in a workplace accident on March 22, 1993. Subsequently, while on a graduated return-to-work program, he was injured in a motor vehicle accident on November 25, 1993. He says that he continues to suffer pain and disability. Mr. Cabral underwent spinal fusion surgery on February 5, 1996.

The motor vehicle insurer terminated weekly income benefits to Mr. Cabral on January 31, 1995. It alleges that by that time Mr. Cabral's condition had returned to the same state as when the motor vehicle accident occurred. In fact, the Insurer claims that it paid Mr. Cabral for several months longer than it should have, on a hardship basis, since his disability benefits and workers' compensation benefits had ceased.

I must determine if Mr. Cabral continues to suffer a substantial inability to perform the essential tasks of his occupation or employment after February 1, 1995 as a result of injuries he received in the motor vehicle accident of November 25, 1993. The main issue is causation. I must also decide what Mr. Cabral's essential tasks were at the time of the accident—the essential tasks of his regular job, as he alleges, or the tasks of the less onerous job to which he had returned on the graduated return-to-work program, as the insurer alleges.

Previous arbitrators have held that the motor vehicle accident need not be the sole cause of the continuing disability which an Applicant claims in order for him to qualify for statutory accident benefits under the Schedule. However, "the accident must have made a significant or material contribution to the disability claimed" as Arbitrator Makepeace puts it in her decision in Mladenovic and Dominion of Canada General Insurance Company (September 11, 1995), OIC A-008849.² In the Commission cases reported to date, invariably the motor vehicle accident in question occurs after the workplace or other accident. Often the accidents occur very close together. In this case, however, eight months have passed between the workplace accident and the car accident. Mr. Cabral had begun a graduated return to work at a modified job.

The time frame for which statutory accident benefits are being requested is an important issue in each case. Here, that period begins on February 1, 1995, some 14 months after the motor vehicle accident, as far as the claim for weekly benefits is concerned.

I heard lengthy testimony from both Mr. and Mrs. Cabral. I found both to be generally credible persons with a sincere belief that the injuries Mr. Cabral received in the motor vehicle accident was the principal cause of his continuing disability. However sincere, I find their evidence not as helpful on the issue of causation as the expert opinions of the health care practitioners involved with Mr. Cabral's care. Those practitioners are professionals in health care and are able to view Mr. Cabral's situation in a more objective manner than he and his wife can. In the testimony and contemporaneous records of the professionals in this case, I find less of a tendency to shape their evidence to the audience to which it is addressed. For example, in an early letter to the Workmen's Compensation Board (WCB) after the motor vehicle accident, Mrs. Cabral reported that a doctor who examined her husband after the motor vehicle accident said "she did not feel that it had further aggravated his compensable injuries.³ He was experiencing muscle spasms all over his back. She indicated that it would take a few days to go away." However, after termination of benefits by the WCB in February 1994, perceptions in the Cabral family changed.

Essential Tasks

The workplace accident occurred on March 22, 1993. At the time of that accident, Mr. Cabral was carrying out an operation on the spindle of a large gas turbine known as a bolt-stretching procedure, which he performed occasionally in his work as a gas fitter. The procedure was done with a partner but involved lifting weights of up to 50 pounds, reaching out, and holding the weights in awkward positions. Mr. Cabral felt a tightness in his back as he was working at this job. He was able to drive home, however, he spent the evening and whole night lying on the carpet of his family room. He could barely move the next day and went to see his family doctor, Dr. Packer.

Mr. Cabral could not work and was prescribed medication and physiotherapy by Dr. Packer. Mr. Cabral returned to modified work on April 19, 1993 as a storekeeper in the parts store of his regular department. He first worked four, then six' hours per day and attended physiotherapy. He could not cope with this routine, however, and on May 7, 1993 worked only an hour and a half. Dr. Packer prescribed a two-week period off work until May 26, 1993. Mr. Cabral returned to work on May 26 and 27, but on May 27, Dr. Packer recommended Mr. Cabral stay off work indefinitely. Mr. Cabral testified that at this time he was in constant pain; work would aggravate his pain, then with rest, the pain would decrease back to a constant level.

On July 23, 1993 Mr. Cabral was assessed at the Canadian Back Institute (CBI) at the request of his employer. He had treatment at CBI from August 30 to November 1, 1993 for about three hours each day. On November 3, 1993 Mr. Cabral met with a human resources assistant from his workplace and a vocational rehabilitation worker with the Workers' Compensation Board. A plan for Mr. Cabral's graduated return to work was put into place. On November 8, 1993, he returned to work as a tool crib attendant in a tool store for two hours a day. As of November 29, 1993, the plan called for Mr. Cabral to increase this to four hours of work each day. Mr. Cabral hoped to eventually return to work as a gas fitter. However, the motor vehicle accident of November 25, 1993 intervened.

Mr. Cabral's counsel submitted that I should find Mr. Cabral's essential tasks at the time of the motor vehicle accident to be the essential tasks of his job as a gas fitter. He submitted that to find otherwise would penalize those who attempt to return to work by performing lighter duties than usual and would provide a disincentive for such persons. I do not accept this argument. On the facts of this case, Mr. Cabral had not worked at his regular job as a gas fitter for over eight months at the time of the accident. He was working only two hours per day at a modified job and expected to increase this to four hours per day the week following his car accident. In November 1993 no one was sure, although everyone was hopeful, that Mr. Cabral would return to his regular job as a gas fitter. I find that at the time of the accident, Mr. Cabral's essential tasks were those of a tool crib attendant, as described in exhibit 21.

The Causation Question - Substantial Inability after February 1, 1995

Mr. Cabral's workplace accident of March 22, 1993 was not his first brush with back pain. In a report of physical medicine specialist, Dr. Fionnuala Killian, dated April 19, 1990 she recorded Mr. Cabral's history as follows:

He had a work injury a year and a half ago when he was pulling hardware, was in an awkward position, developed low back discomfort and was on light duties for 7 weeks without subsequent problems.

His last discomforting episode was 6 months ago when he again was in an awkward position related to his job.

Dr. Killian arranged for x-rays of Mr. Cabral's lumbar spine. The x-ray report showed Mr. Cabral to have a "grade one spondylolisthesis at the L5-S1 level...with a spina bifida occulta at the same level."

Dr. Killian was concerned about the stability of the spondylolisthesis and ordered flexion extension views. She reported to Mr. Cabral's family doctor as follows:

I reviewed his x-rays with him and reassured him on the lack of significant movement on flexion extension views.

I have indicated to him that repetitive bending and lifting will load the anterior longitudinal ligament so causing some discomfort with sometimes referred pain to the groin or to the buttock.

I have given him some information on posture, positioning and lifting activities which he should control longterm, and as I reassured him he may have some discomfort but he will not cause any significant damage longterm and has no limitations with any activity he wishes to pursue.

After the workplace accident of March 22, 1993, Mr. Cabral was referred to Dr. Tulio Scocchia, a rheumatologist, by his family doctor. Dr. Scocchia first examined Mr. Cabral on June 3, 1993. He reviewed him again in August. Between visits Mr. Cabral had undergone a CT scan of his lumbar spine which confirmed the bilateral spondylolysis and grade 1 spondylolisthesis at the L5-S1 level. It also revealed a mild left paramedian L4-5 disc protrusion. Dr. Scocchia agreed with the decision to send Mr. Cabral to the Canadian Back Institute for an exercise and activity program and felt he could return to light duties at work "in about one month to six weeks time."

When he reviewed Mr. Cabral on November 1, 1993, Mr. Cabral had not yet had the MRI scan that Dr. Scocchia had suggested at his visit in August. Dr. Scocchia's report of this visit is important, because it is the last report of a specialist detailing Mr. Cabral's condition before the motor vehicle accident. Dr. Scocchia reported as follows:

I reviewed Gary today for his low back pain.

His pain has remained the same.

He finds that he is able to do very light work around his house, but can only tolerate activity for about 1/2 hour or so at a time.

He still feels a slight decreased sensation in the right lower extremity.....

Lumbar spine range of motion was restricted in both flexion and extension with extension causing most of his back pain.

OPINION

1. Chronic low back.

2. Possible mild nerve root pressure.

Dr. Scocchia recommended that Mr. Cabral see Dr. Repo to determine whether surgically stabilizing the spondylolisthesis would be of any benefit. Dr. Scocchia thought Mr. Cabral should continue with his present medication and that he:

...probably could go back to very light duties, but will have to have frequent changes of position and absolutely no heavy lifting. A lot of stair climbing and ladders should also be avoided.

After the car accident, Dr. Scocchia saw Mr. Cabral again on February 8, 1994. Dr. Scocchia wrote to Dr. Packer as follows:

He was involved in a motor vehicle accident approximately November 25, 1993 where he was driving through an intersection and a car was knocked into his passenger door by the car following him. At that time he did not have any significant injury such as a fracture, but he has had some worsening of his pain. He has been off work since that time. He has been attending physiotherapy for two weeks. He continues to have some low back pain with some radiating right leg symptoms.

Dr. Scocchia commented on the results of the MRI scan:

MRI scan of the lumbar spine showed loss of disc height at L4-5 and L5-S1. No significant disc herniation. A grade 1/4 spondylolisthesis of L5 on S2. There was mild to moderate degenerative changes at the L5-S1 apophyseal joints with mild to moderate narrowing of the left L5-S1 neural foramina. No significant nerve root compression.

OPINION

1. Mechanical low back pain related to a spondylolisthesis and facet joint arthritis. It appears to have been slightly worsened by his motor vehicle accident.

RECOMMENDATIONS

1. ... the patient tells me that Dr. Repo suggested that he could have a fusion done at L5-S1. Gary felt that he would rather wait and try extensive physiotherapy first and I do not think this is an unreasonable option for him He also said that Dr. Repo suggested that he have re-training. I would also agree with this. He tells me that there is an issue that this was not recommended prior to his accident. If I had all the information I had [sic] now prior to his accident, I would have agreed with the recommendation of re-training even before this most recent motor vehicle accident. I do not believe the accident would have significantly changed the outcome of Gary's problem.

(emphasis added)

Dr. Repo testified at the hearing. He first saw Mr. Cabral on December 13, 1993. He recommended to Dr. Packer that Mr. Cabral rest, continue his current medication and physiotherapy. He was sure that:

this current episode will gradually settle down, allowing him to resume to a work hardening program at his usual place of work. There is a risk that he might not be able to do this job for very long due to his mechanical spinal instability and consideration may have to be done to retrain this man to another occupation.⁴

(emphasis added)

At the hearing, Dr. Repo expressed the view that:

Many people with this spinal deformity, which Mr. Cabral has, function pain free and are able to do whatever they want. And our recommendations since they are doing well, carry on. If he had this deformity and you do get pain and start to have pain, experience has shown that this pain tends to be chronic, ongoing intermittent, disabling and these people do not do well. And the history that Mr. Cabral gave me was in concordance with that. He had now developed the pain. His prognosis is poor for being able to go back into that heavy industrial mechanic's work. I suspect he would not be able to do that.

Q. Subject to the, based on initial work related injury; is that what you are saying?

A. Beginning from that point on, yes.⁵

Dr. Repo expressed the opinion that looking at the role of the WCB injury, the car accident, and perhaps the actions of the employer (in requiring Mr. Cabral to work a full shift in the summer of 1994) that the effects of the car accident set Mr. Cabral back in his recovery for about six to seven months.

Yes. I think he had reached, based on the recommended work program, he seemed to have reached a point in June of 1994 similar to what he had reached just prior to the motor vehicle accident.⁶

Dr. D. Punthakee examined Mr. Cabral on September 29, 1994 for a Third Party Medical Assessment requested by Mr. Cabral's employer. Dr. Punthakee testified at the arbitration and stressed that his examination and report were produced to "help the patient" and not for medical-legal purposes and assessment of causation. Dr. Punthakee had no history from Mr. Cabral of back problems prior to the workplace injury. Dr. Punthakee was of the view that Mr. Cabral had recovered only slightly when he was involved in the motor vehicle accident which further exacerbated the sprain at the lumbosacral level. He was of the view that he was suffering "the cumulative effects of the initial work-related injury and, thereafter, the addition of the motor vehicle accident, into a prolonged mechanical low back pain episode." He thought Mr. Cabral should not be pushed to work at all in September 1994 but should prepare for spinal fusion surgery.

Dr. Bednar testified on behalf of the Applicant. He performed the spinal fusion surgery on Mr. Cabral on February 5, 1996. Dr. Bednar's view is that the motor vehicle accident "is the major cause of his current and presenting disability pain problem."

The pre-existing work injury disability, already resolving at the time of car accident carried an excellent prognosis in isolation for continued recovery and eventual unrestricted return-to-work activities on the part of this patient.⁷

However, in a February 25, 1996 report to the Canada Pension Plan, Dr. Bednar wrote:

I confirm that Mr. Cabral is a current patient in my hands, having initially presented on 4 May 1995 from Dr. R. Repo of St. Joseph's Hospital in Hamilton with complaints of incapacitating back and right leg pain apparently originating without trauma on 22 March 1993, and possibly exacerbated by a motor vehicle accident of November 1993 vintage.

Later in that report, Dr. Bednar wrote:

I would believe he would thereby qualify for CPP benefits per current federal government guidelines, certainly at least from the date of initial presentation to me and, as I understand it, from the date of that November 1993 motor vehicle accident which exacerbated the nature of his symptoms.

He had also previously written in his initial consultation report to Dr. Repo of May 7, 1995:

On March 22, 1993 he had the sub-acute onset of aching low back pain extending down the right leg, this punctuated by a motor vehicle accident in November 1993 that brought on increased intensity of pain, extending then into both legs, primarily in the anterior thighs and of a deep, dull, aching nature.

(emphasis added)

In a letter to Mr. Barrafato, dated August 23, 1996, Dr. Bednar also indicated that he did not have a "clear picture as to how long Mr. Cabral had been in pain and off work before the car crash in question." At the hearing, near the close of his testimony, Dr. Bednar expressed the opinion that for the best information on Mr. Cabral's condition and functional capacity before the motor vehicle accident, one should ask the physician looking after him then.

I was not able to have the benefit of the testimony of Dr. Packer, Mr. Cabral's family doctor, due to his relocation to the southeastern United States. However, I did have the benefit of his clinical notes and records, which are largely intelligible. Mr. Cabral saw Dr. Packer on February 17, 1994. In his notes he recorded as follows:

Denied compensation. "Felt that non-compensable MVA is what causing ---- problems" I don't agree and would be happy to support Gary. I feel it is the first injury which has caused his problems and that he was not ready to return to work fulltime when he was involved in MVA..

(emphasis in original)

Previously, on December 16, 1993 Dr. Packer had written: "... This is an aggravation of a preceding (sic) injury. I explained this to Gary. He needs a prolonged course of physio to rectify."

Dr. Packer first saw Mr. Cabral after the motor vehicle accident of November 25, 1993 on December 2, 1993. Prior to this, Mr. Cabral had been seen by Dr. Packer once each month since May 19, 1993.

In February 1994 Mr. Cabral began to experience intense pressure from his employer to return to work or be fired. The company doctor pronounced him fit to return to modified work. However, in mid-March his own family doctor, in consultation with the physiotherapist disagreed. The company doctor cleared Mr. Cabral to work on April 8, 1994, for four hours per day with no lifting over 20 pounds and no bending or twisting and no prolonged sitting or standing. Not until April 18, 1994 did his family doctor support a return to work for two hours per day, beginning April 25, 1994, at a job like that of a tool crib attendant, a labour grade 4 job. The employer required Mr. Cabral to report to work on April 21, 1994 at a more onerous job called "fit bearings," which was classified labour grade 8. He worked from 7:00 a.m. to 10:30 a.m. that day, but then had to leave. He was examined by his family doctor later that day. Dr. Packer wrote a note at that visit:

I have asked Mr. Cabral to return to work in a very limited manner to see if his back would withstand such work. Specifically, I asked him to work no more than 2 hours/day to do very little repetitive work, and to limit lifting to 13 pounds waist to floor, and 10 pounds overhead. Today Gary saw me in a lot of pain. He stated he was made to work 4 hours with a lot of repetition. He has limited ROM and is in a lot of spasm. He is now off work until he is assessed by Dr. Repo in early May.

(emphasis in original)

The company did not accept Dr. Packer's correspondence. It couriered another letter to Mr. Cabral stating that his employment would be terminated if he did not comply with the company doctor's orders. On May 4, 1994 Mr. Cabral returned to work on a graduated basis, working first two hours per day in the Stores of his regular department. On May 16 he increased his hours to two and a half hours per day until June 23, 1994. Beginning June 24, 1994 he worked three hours per day and from July 19 to 29 he worked three and a half hours per day. Doctor Packer concurred in each increase and Mr. Cabral was to be assessed throughout the period by the company doctor as well.

The employer continued to pressure Mr. Cabral to work longer hours. Termination was again threatened unless he worked a full eight hours. Mr. Cabral worked on August 2, 3 and 4, 1994 in the stores of his regular department. He worked eight hours the first day, eight hours the second day and 5.75 hours the third day. His duties were supposed to be four hours of modified work and four hours of regular work. On August 4, 1994 Dr. West, substituting for Dr. Packer, examined Mr. Cabral and found him to be complaining of "++ pain, spasm" and decreased flexion and 25 degrees of straight leg raising. He gave him a note to be excused from work for one week due to tendonitis in his knees. Mr. Cabral returned to work for one day on August 10, 1994. He has not worked since then. It would appear that the company accepted the recommendations of Dr. Punthakee in his report of September 29, 1994 that Mr. Cabral remain off work indefinitely. However, Mr. Cabral's employment was terminated by a letter dated June 13, 1996. Neither his claims with the Workers' Compensation Board nor with the employer have been resolved.

Conclusion

Medical opinion is divided on the cause of Mr. Cabral's ongoing problems. On the one hand, Dr. Repo, Dr. Packer and Dr. Scocchia appear to be convinced that the residual effects of the workplace accident on March 22, 1993 were not nearly resolved by the time the motor vehicle accident of November 25, 1993 occurred and that the car accident caused an aggravation. On the other hand, Dr. Punthakee is persuasive in his views that it is the cumulative effect of the congenital condition, the workplace accident and the car accident that are causing Mr. Cabral's present difficulties. Dr. Bednar opines that the injuries from the workplace accident would likely have resolved and, therefore, it is the motor vehicle accident which should be blamed for the current disability.

Mr. Cabral does not have to prove that the motor vehicle accident is the sole cause of his problems. However, in my view he has to demonstrate more than some attachment to the accident to come within the words, "as a result of the accident" of section 12(1) and be entitled to continuing weekly income benefits after February 1, 1995. It is true that the Insurer takes its victim as it finds him and that it will be responsible for payment of weekly benefits to Mr. Cabral as a result of the motor vehicle accident, if he was predisposed to such an injury, even if an identical accident would have produced a less severe or no injury to another person.

In my view, taking all the expert views into account, and placing the heaviest reliance on the opinions of those who personally treated Mr. Cabral both before and after the motor vehicle accident, I conclude that the motor vehicle accident aggravated the injuries Mr. Cabral received in the workplace accident of March 22, 1993 and that he is entitled to weekly income benefits on account of the car accident only until about June 23, 1994. In my opinion, as of that date Mr. Cabral was performing two and half hours of modified work per day, released to that work by the same physician who had approved a return to similar work at two hours per day in November 1993.

Issue 3: Supplementary Medical Expenses

The evidence before me with respect to Dr. Kaplan and his associates is that Dr. Kaplan's services primarily helped Mr. Cabral prepare psychologically for his surgery in February 1996. In my opinion, it cannot be said that the counselling was a reasonable expense resulting from the accident, in view of my finding with respect to the cause of Mr. Cabral's disability after the summer of 1994.

The claim for the spa or hot tub is $4,500.00. It was installed November 29, 1994. Dr. Repo testified that he recommended hydrotherapy to Mr. Cabral, but that he did not prescribe a "California spa." Dr. Repo felt that even an add-on unit to a conventional bathtub would suffice. The hot tub which Mr. Cabral purchased provides him convenient, accessible pain relief with consistent temperature control. He obtained a letter from Dr. Repo dated November 30, 1994 stating as follows: "This is to certify that I would recommend that Mr. Cabral obtain a Jacuzzi or hot water tub type spa for medical purposes." Mr. Cabral's treating kinesiologist also recommended a personal hot tub for use before bed at night and daily after his gym program. In view of my finding with respect to the cause of Mr. Cabral's disability after the summer of 1994, I do not find the spa to be a reasonable expense resulting from the accident.

Issue 4: Repayment

Although the Insurer did not withdraw this issue formally, it was not pressed. I find that the Insurer is not entitled to any repayment.

Expenses:

The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule F of the Dispute Resolution Practice Code-1995 Release and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In the McCormick and Economical Mutual Insurance Company case (October 2, 1991), OIC A-000139, Sr. Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

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

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

The Director of Arbitrations approved this statement of the principles guiding an award of expenses, in the main, in the appeal decision in Calogero and The Co-Operators General Insurance Company (February 13, 1992), OIC P-000251.

I exercise my discretion to allow Mr. Cabral his expenses as set out in Schedule F of the Dispute Resolution Practice Code-1995 Release. In the event that the parties cannot agree as to the total amount of expenses, a party may apply for assessment of the expenses through the Office of the Registrar.

Order:

1. Mr. Cabral is not entitled to further weekly income benefits after February 1, 1995.

2. The appropriate rate of benefits is $486.00 per week.

3. Mr. Cabral is not entitled to the supplementary medical and rehabilitation benefits claimed.

4. The Insurer is not entitled to a repayment of benefits.

5. Mr. Cabral is entitled to his expenses incurred in respect of the arbitration.

October 1, 1996

K. Julaine Palmer Arbitrator

Date

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. 2Edwards and State Farm Insurance Company (July 12, 1993), OIC A-001707 (under appeal); MacNeill and Royal Insurance Company (January 10, 1994), OIC A-000057; Shelly P. and Royal Insurance Company (June 22, 1995), OIC A-8498 (under appeal); P.S. and TTC (May 4, 1994), OIC A-001116 (under appeal)
3. 3Exhibit 12, letter from Sandra and Gary Cabral to Workers' Compensation Board, December 13, 1993
4. 4Report of Dr. Repo dated December 13, 1993
5. 5Transcript of Dr. R. Repo, p. 28.
6. 6Transcript of Dr. R. Repo, p. 49.
7. 7Report of Dr. D. Bednar, July 23, 1996, exhibit 46.