Neutral Citation: 1996 ONICDRG 171
ONTARIO INSURANCE COMMISSION
BETWEEN:
ENID THORNING
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Enid Thorning, was injured in a motor vehicle accident on October 3, 1991. She applied for and received statutory accident benefits from the Insurer, Allstate Insurance Company of Canada ("Allstate"), payable under Ontario Regulation 672.1
Allstate paid Ms. Thorning a weekly income benefit at the rate of $456.70 until September 28, 1993. Ms. Thorning claimed that she remained entitled to receive weekly income benefits, and that they should have been paid at the rate of $532.08. She also claimed supplementary medical and rehabilitation benefits, care benefits, a special award, interest on overdue benefits and her expenses of the arbitration.
Allstate disputed all of Ms. Thorning's claims. Allstate alleged that there had been an overpayment of weekly income benefits, and claimed a repayment because of "error" and because of Ms. Thorning's receipt of Canada Pension Plan disability benefits. Ms. Thorning agreed that the Insurer was entitled to a repayment in respect of the Canada Pension Plan disability benefits she received. She otherwise disputed that there had been an overpayment.
The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Ms. Thorning entitled to receive weekly income benefits after September 28, 1993?
What is the amount of the weekly income benefit to be paid to Ms. Thorning by the Insurer? Is the Insurer entitled to a repayment?
Is Ms. Thorning entitled to supplementary medical benefits under section 6, or to care benefits under section 7 of the Schedule?
Is Ms. Thorning entitled to a special award under section 282(10) of the Insurance Act?
The Applicant also claims interest on any overdue benefits, and her expenses incurred in respect of the hearing.
Result:
Ms. Thorning is not entitled to receive weekly income benefits after September 28, 1993.
The amount of the weekly income benefit to be paid to Ms. Thorning by the Insurer is $185.60 per week. The Insurer is entitled to a repayment in relation to Canada Pension Plan benefits in the amount of $16,540.54.
Ms. Thorning is not entitled to supplementary medical benefits under section 6, or to care benefits under section 7 of the Schedule.
Ms. Thorning is not entitled to a special award.
Ms. Thorning is not entitled to her expenses in respect of the arbitration.
Hearing:
The hearing was held in North York, Ontario, on October 16, 17, 18 and 19, 1995 and on February 20, 1996 before me, Suesan Alves, arbitrator.
Present at the Hearing:
Applicant:
Enid Thorning
Applicant's
Peter Cozzi
Representative:
Barrister and Solicitor
Insurer's
Ian Kirby
Representative:
Barrister and Solicitor
Insurer's Officer:
Philip Langford
Witnesses:
Enid Thorning, Gloria Knott, Herman McDaniel, Linda Fenton, Dr. V. Kekosz,
Dr. P. Tepperman, Dr. J.M. LaCroix, Philip Langford, Daniel Edwards, Ralph Shapiro
Exhibits: Twenty exhibits were filed at the hearing. They are detailed in Appendix A.
Evidence and Findings:
Pre-accident condition
On October 3, 1991, the Applicant, Enid Thorning was involved in a motor vehicle accident in which she injured her neck, both shoulders, the left side of her face and her right leg.2 Prior to this accident, Ms. Thorning injured her neck and left shoulder in May 1989, and her right shoulder in April 1990. In May 1990 she was diagnosed with degenerative disc disease at almost all levels of the cervical spine.3
Ms. Thorning testified that she had worked at Lear Seating Canada Ltd.("Lear"), since 1971 in various capacities and always did her job well. On April 12, 1991, Ms. Thorning was injured while at work. She claimed that she injured her neck, low back, left arm and wrist4 and claimed benefits from the Workers' Compensation Board. The parties agreed that between April 12, 1991 and October 28, 1991,5 Ms. Thorning received temporary total disability benefits from the Workers' Compensation Board. By June 15, 1991, the injuries to her back and neck had resolved, but she continued to suffer from a soft tissue injury of her left wrist.6 The parties agreed that by October 3, 1991, the date of the motor vehicle accident, Ms. Thorning was no longer substantially disabled from performing the essential tasks of her job at Lear.7
1. Entitlement to weekly income benefits
In order to succeed in her claim for weekly income benefits, Ms. Thorning must prove the essential tasks of her occupation and employment, and that she is substantially unable to perform those tasks as a result of the injuries she sustained in the motor vehicle accident on October 3, 1991.
Essential tasks
Ms. Thorning claims a weekly income benefit based on her earnings in the 52 weeks before the motor vehicle accident. She claims that at the time of the accident, she was a full-time employee of Lear. She also claims that during the 52 weeks before the accident, she worked as a salesperson who earned commission income from Residue Inc., and operated several businesses during evenings and on weekends. These businesses were a cleaning business, known as E & D Cleaning, a pastry making business, known as E&D Pastries, and a business involving the salvage and recycling of scrap foam, known as the Foam House. I will deal with her essential tasks in respect of each of her claims.
a) Lear Seating Canada Ltd.
Ms. Thorning had been an employee of Lear since August 26, 1971.8 I find that her employment was terminated, on April 12, 1991, prior to the motor vehicle accident, due to downsizing, based upon her receipt of a severance package and retirement allowance from Lear.
Counsel for the Applicant submitted that Ms. Thorning continued to be employed at Lear on October 3, 1991, because of reinstatement rights available to her under section 54 of the Workers 'Compensation Act, R.S.O. 1990, c. W.11. Arbitrators have taken an objective view of the circumstances of each case in determining whether a continuing employer-employee relationship exists.9 In Ms. Thorning's case, there was no evidence that she attempted to enforce such reinstatement rights vis-à-vis her employer within the statutory time frame, or at all. The employer is reported to have stated to the Workers' Compensation Board that it had no intention of reinstating Ms. Thorning.10 I am not persuaded in the circumstances of this case that Ms. Thorning was employed at Lear at the time of the accident, within the meaning of section 12 of the Schedule.
I find on the basis of the Worker's Report of Injury or Disease dated April 24, 1991,11 completed by Ms. Thorning, that at the time she was terminated, she had been employed as a receptionist in the customer service department of Lear.
Ms. Thorning testified that Lear manufactures seats for GM trucks. Her job duties related to the preparation and typing of invoices and labels for outgoing seats and seat backs. She testified that she typed, wrote, packed, and sorted. She estimated that she processed 60 or more orders a day.
She testified that she also received deliveries from couriers and boxes of supplies such as parts and bolts. She then telephoned other staff members to collect these deliveries from the reception desk. Ms. Thorning testified that she also operated the switchboard. She testified that 60% of her time was spent processing orders coming into or out of the department, 30% of her time was spent on the switchboard, while the remaining 10% of the day was spent "running around" and "doing odds and ends."
In order to perform her job functions, she was seated for approximately six hours over the course of the day, and she would also stand, walk and twist.12 There were discrepancies in the Applicant's evidence as to the weight of the items she was required to lift, and how frequently she was required to lift them in the course of her duties.
On April 24, 1991, Ms. Thorning stated that she lifted not more than 15 pounds,13 by May 28, 1991, she stated that she was required to lift not more than 30 pounds.14 At the hearing in 1995, she testified that she lifted truck seats weighing 40 pounds, backs of truck seats weighing 30 pounds and cartons of boxes or bolts, weighing between 30 and 35 pounds. Similarly, on May 28, 1991, Ms. Thorning stated that she was required to lift "sometimes" as part of her job.15 At the hearing in 1995, she testified that there was "lots of lifting" and "lots of bending."
Ms. Thorning provided no explanation for these discrepancies. The weight she lifted and the frequency with which she lifted appear to have increased in her memory, with the passage of time. I prefer Ms. Thorning's earliest statements of the weight of the items, and the frequency of lifting, since those statements were made closer to the time when she performed the job, when her memory of her job requirements was likely more accurate.
At the time of the accident, Ms. Thorning commuted from her home to her employer's place of business, where she performed her job as a receptionist. She claimed that travel to her job by public transit for one and a half hours in each direction, was an essential task of her occupation or employment. While her employer required her to be at its premises in order to perform her job as a receptionist, I find that Ms. Thorning was not required to travel as one of the essential tasks of her job at Lear Seating Canada Ltd.
b) E & D Pastries
Ms. Thorning also claimed that she operated E & D Pastries, a business which made and sold pastries for Easter. Mr. McDaniels, her accountant, testified that this business operated between January and April 1991. I heard no evidence of her essential tasks in relation to this business.
c) E & D Cleaning
There was conflicting evidence as to the nature of Ms. Thorning's essential tasks in respect of the cleaning business, E&D Cleaning. In her Application for Accident Benefits, dated October 11, 1991, Ms. Thorning listed her occupation as "cleaner." Her essential task was identified as "cleaning" and she described the physical requirements as "lifting, standing, walking." The Employer's Confirmation of Income indicated that she had been self-employed on a full-time basis as a cleaner for three years until March 31, 1991. An additional physical requirement of "carrying" was noted on that form.
At the hearing, Ms. Thorning agreed that she was the owner and manager of E & D Cleaning. She testified that her work was "finding customers, going out and supervising now and again to make sure that everyone's happy," and, if she had to, she would occasionally do the cleaning. She testified that at times she had as many as 40 employees. I am left not knowing whether the Applicant believes her job duties in relation to this business between October 3, 1990 and March 31, 1991 were primarily cleaning duties, or duties of a managerial nature. In light of the conflicting evidence, I find that Ms. Thorning has failed to prove her essential tasks with E & D Cleaning during the 52 week period in issue.
d) The Foam House
Ms. Thorning testified that The Foam House was a business involving the salvage and recycling of foam from truck and car seats. When truck and car seats were rejected because the foam had not been properly applied to seat frames, The Foam House would strip the foam from the seats frames, recycle the foam, and return the frames to Lear Seating Canada Ltd.
Ms. Thorning acknowledged in cross-examination that she sold her interest in this business in 1989. She testified that she had had no further dealings with this business since 1989. The relevant 52 week period commenced on October 3, 1990. Accordingly I conclude that Ms. Thorning had no involvement in this business in the 52 weeks prior to the motor vehicle accident.
e) Residue Inc.
Ms. Thorning claimed that she earned approximately $200 U.S. per month, in "most months," as commission income from Residue Inc., a large polyurethane scrap dealer in Port Washington, New York. Ms. Thorning testified that she would "go around and select customers in Canada" and "he would give me a commission on it." Ms. Thorning acknowledged in cross-examination that this business could have been funnelled through The Foam House business. As noted earlier, Ms. Thorning testified that she had no further dealings with The Foam House since 1989. Accordingly I find that Ms. Thorning was not a commissioned salesperson with Residue Inc. within the 52 week period in issue in this arbitration.
I conclude that Ms. Thorning has proven the essential tasks of her occupation or employment only in relation to her job at Lear.16
The accident and her injuries
On October 3, 1991, Ms. Thorning was driving a car when her vehicle was rear-ended. She was taken to Scarborough General Hospital by ambulance where she was examined and assessed. Four days later, she saw her family physician, Dr. Loukides. In his opinion, Ms. Thorning suffered a moderate to severe soft tissue injury to her neck, to both shoulders, to the left side of her face and to her right leg. She developed a driving phobia and post-traumatic anxiety and depression.17 Her treatment included medication, physiotherapy, chiropractic, psychological and psychiatric treatment.
The following is a chronological narration of some of the developments in Ms. Thorning's treatment which I find to be significant:
In May 1992, Dr. M. Kliman, one of Ms. Thorning's orthopaedic surgeons, assessed her. He recommended that Ms. Thorning consider returning to her work as a typist, optimally on a part-time basis, in order to build up her work tolerance and activity levels over a period of weeks to several months. He recommended that she use an appropriate chair and do stretches every 30 to 40 minutes to prevent tightening developing along her neck and back.18
In June 1992, the Pain Management Clinic recommended that Ms. Thorning return to work part-time as a receptionist, i.e. four hours a day progressing to eight hours by the fourth week. The Clinic also recommended that she use a lumbar support, that she could sit for up to one hour at a time, and type for up to 30 minutes at a time. These recommendations were not followed.
In January 1993, Ms. Thorning complained of pain going down into her left leg. Her family physician, Dr. Loukides, sent her for x-rays of her lumbar spine anticipating that she had degenerative disc disease. As he expected, Ms. Thorning was reported as having early degenerative disc disease in her lumbar spine at L3-4.19
In February 1993, Dr. Kliman saw Ms. Thorning again. He recommended a course of traction for her neck and stated that he felt that Ms. Thorning "could manage at sedentary occupations."20In view of my findings with respect to her essential tasks, Ms. Thorning's job as a receptionist would fall within this classification.
On June 8, 1993, Ms. Thorning was examined by Dr. P. Tepperman, a physiatrist, at the request of the Insurer. Dr. Tepperman felt that Ms. Thorning should be capable of a gradual resumption of her work activities. Although he felt that she did not suffer from a physical disability, he recommended further evaluation to determine whether she had any psychological or motivational limitations.21
On June 4 and 11, 1993, a psychological assessment of Ms. Thorning was conducted at the request of the Insurer. Dr. Lacroix viewed Ms. Thorning's depression as mild and "by no means disabling" so as to prevent her from returning to her pre-accident level of activity.
In August 1993, Dr. Musisi, Ms. Thorning's treating psychiatrist, reported that Ms. Thorning had developed "a major depressive illness in a setting of a post-traumatic stress disorder consequent to the motor vehicle accident."22 He felt that she had had a good response to medication and psychotherapy. He reported that Ms. Thorning "now feels she should start working again as she is feeling better."23
On September 28, 1993, Allstate terminated Ms. Thorning's weekly income benefits.
Causation
Ms. Thorning testified that in addition to those injuries listed by Dr. Loukides, her family physician, she also injured her low back in the accident. Dr. Donskoy, another family physician who treated Ms. Thorning following the motor vehicle accident, noted a low back strain in his report in Form 4 on October 16, 1991.24
Ms. Thorning testified that while her neck improved slowly, and there was some improvement in her shoulders, there was no improvement in her low back; instead, it got steadily worse. In terms of her ability to work as a receptionist, Ms. Thorning testified that she cannot sit for a long period of time, she finds walking very, very difficult and she cannot lift. She testified that she would be unable to travel to work by public transit. Ms. Thorning's position is that she remains substantially unable to perform her essential tasks as a receptionist because of low back pain which she claims results from the motor vehicle accident.25
Several of Ms. Thorning's physicians have expressed opinions that Ms. Thorning is disabled and that she should avoid bending, lifting and sitting because of her ongoing problems and pain in her low back.26
Even if I accept the medical evidence that Ms. Thorning was substantially disabled as a result of low back problems, I must decide whether those problems were caused by or significantly aggravated by the motor vehicle accident. Several physicians provided reports on this point; two also testified at the hearing.27
In 1994 and 1995 Ms. Thorning had a bone scan, a CT scan, and an MRI scan with respect to her complaints of low back pain. The bone scan, performed on February 2, 1994, was reported as being consistent with degenerative disc disease. The results also raised "some suspicion of a mild discitis [inflammation of disc] or mild recent, that is, within the last 15 months, compression [fracture] of L3." The CT-Scan and the MRI scan showed no evidence of the compression fracture.28
According to Dr. Donskoy, the scans indicated that Ms. Thorning had sustained severe injuries as a result of the motor vehicle accident. He stated that based on her occupation and the bulging discs, Ms. Thorning would be unable to perform any occupation.29
Dr. Kekosz, the Applicant's physiatrist, and Dr. Tepperman, a physiatrist who examined Ms. Thorning at Allstate's request, agreed that if the bone scan was correct, and there was a compression fracture, this fracture would have occurred at the earliest in November 1992, more than a year following the motor vehicle accident. Dr. Tepperman stated that the discitis would also have occurred within the same 15 month period. Dr. Kekosz stated that she lacked the expertise to offer an opinion as to the time frame for discitis. Dr. Tepperman's opinion was the only one to address this point. I accept it, and find that if what was shown on the bone scan was discitis, then the inflammation would have occurred at the earliest in November 1992, and could not therefore be attributed to the accident.
Dr. Kekosz and Dr. Tepperman agreed that the CT-Scan and the MRI scans demonstrated bulging discs at multiple levels, and were of the opinion that Ms. Thorning had suffered from degenerative disc disease for a number of years. Dr. Weiler, one of Ms. Thorning's orthopaedic surgeons, was of the same opinion.
The MRI scan also showed evidence of a posterior annular tear in the L4-5 disc. Dr. Weiler felt that "it would not be possible to state whether the MRI findings are secondary to the injuries sustained at the time of her original motor vehicle accident or whether these findings are simply age related degenerative phenomena."30 Dr. Weiler diagnosed Ms. Thorning as suffering from mechanical back pain secondary to lumbar strain in the motor vehicle accident, which developed into a chronic pain syndrome. However, I find that I cannot rely on his opinion concerning the cause of Ms. Thorning's back pain as he appears to be uninformed of Ms. Thorning's prior history of back problems.31
Dr. Kekosz provided a written opinion that Ms. Thorning's "present level of impairment and disability was directly related to" the motor vehicle accident of October 3, 1991.32 In her testimony, Dr. Kekosz acknowledged that when she saw and examined Ms. Thorning, she understood that Ms. Thorning had had no prior problems with her neck and back and that she had been working as a receptionist at Lear at the time of the motor vehicle accident. She acknowledged that she was unaware of Ms. Thorning's injuries to her shoulders, neck and low back which gave rise to her workers' compensation claim. Dr. Kekosz agreed that this would have been very valuable information for her to have had in order to accurately assess causation. Dr. Kekosz stated that Ms. Thorning had a "vulnerable back," given the degenerative disc disease, and acute trauma or heavy work could make it worse. However, she agreed that she could not state with any degree of certainty that the tear was caused by the motor vehicle accident. She agreed that it was impossible to tell whether the tear was the result of something which happened before the accident, at the time of the accident, or following the accident.
According to Dr. Tepperman, a tear in the annulus is not pathological in and of itself ; 20 to 30% of the population with no complaints of back pain demonstrate herniated discs on an MRI or CT-scan. The leakage of the gelatinous substance in the disc may cause undue nerve pressure, narrowing of the spinal canal and compression of a nerve root. He felt that it is necessary, therefore, to correlate the findings with the subjective symptoms and signs reported by the patient.
In Dr. Tepperman's opinion, there was no such correlation in Ms. Thorning's case. He testified that the pattern of numbness Ms. Thorning complained about did not follow the distribution of nerve roots and could not therefore be regarded as clinical signs of nerve root irritation. Dr. Tepperman was of the opinion that the narrowing of Ms. Thorning's spinal canal was a degenerative problem, more likely associated with aging than with trauma. Dr. Tepperman also testified that the MRI scan was taken too far away from the time of the accident to be useful in determining whether the annular tear was caused by the car accident.
I prefer the conclusions of Dr. Kekosz and of Dr. Tepperman to those of Dr. Donskoy, a family physician. They provided a reasoned analysis as to how they formed their opinions, and have greater expertise in the area of physical and rehabilitation medicine. I also accept Dr. Weiler's opinion with respect to the interpretation of the findings on the MRI and CT-scans. I therefore conclude that Ms. Thorning has not established on a balance of probabilities that any disability following September 28, 1993 results from or is significantly contributed to by the motor vehicle accident of October 3, 1991. Ms. Thorning is therefore not entitled to further weekly income benefits.
2. Quantum
The parties agreed that under the provisions of section 12 of the Schedule, Ms. Thorning is entitled to be paid a weekly income benefit which is 80% of her average gross weekly income from her occupation or employment, less any payments for loss of income.
The parties dispute which amounts are to be included as "income from occupation or employment," and, once those amounts are determined, how they should be averaged. Ms. Thorning claims a weekly income benefit of $532.08 per week while Allstate claims that the benefit should be $237.13 per week.
Ms. Thorning sought to have earnings from five sources and a loss from one source included in her gross income from her occupation or employment.
a) Earnings from Lear Seating
The parties agreed that between October 3, 1990 and April 12, 1991, Ms. Thorning worked as a receptionist for a period of 27 weeks, during which she was paid $11,631 by Lear. Ms. Thorning claimed that these amounts should be increased by any amounts which the Pay Equity Commission required Lear to pay her. The Insurer did not dispute this; however, at the commencement of the arbitration, the amount of any such entitlement had not yet been determined by the Pay Equity Commission. During the course of the hearing, Ms. Thorning was advised that commencing January 1, 1991, she was entitled to be paid an additional amount of $1.09 per hour by Lear Seating Canada Ltd.33 I conclude that between January 1, 1991 and April 12, 1991, i.e. for a period of approximately 15 of the 27 weeks, Ms Thorning was entitled to include a further sum of $43.60 per week in her income from her occupation or employment.
Thus Ms. Thorning was entitled to have the amounts of $430.77 per week for 12 weeks, or $5,169.24, and the amounts of $474.37 for a period of 15 weeks, or $7,115.55 included in her gross income from her occupation or employment. These amounts total $12,284.79 earned over a period of 27 weeks.
b) Workers' Compensation Board benefits
Ms. Thorning claimed that her temporary total disability benefits of $287.05 per week received from the Workers' Compensation Board between April 12, 1991 and October 28, 1991 should be included in calculating her gross income from her occupation or employment.
In the case of McCormick and Economical Mutual Insurance (October 2, 1991), OIC A-000139, Senior Arbitrator Naylor, as she then was, concluded that temporary total disability benefits paid by the Workers' Compensation Board were payments for loss of income arising from an inability to work because of an employment-related injury. I agree with and adopt this conclusion.
In the case of Jolin and Jevco Insurance Company (October 27, 1993), OIC A-002187, the Applicant argued that his temporary total disability benefits from the Workers' Compensation Board were income from his occupation as a disabled person.
Senior Arbitrator Rotter concluded that "occupation must refer to an activity in which one engages, not to a health or employment status such as disability." Section 12(4)(b) of the Schedule provides that the weekly benefit will be "80 per cent of the insured person's gross weekly income from his or her occupation or employment, less any payments for loss of income..." Senior Arbitrator Rotter found that it would be logically inconsistent for the temporary total disability payments to be both "income" and "payments for loss of income" at one and the same time. She concluded that the temporary total disability benefits from the Workers' Compensation Board could not be considered as income for purposes of section 12(4)(b) of the Schedule. I agree with and adopt this reasoning.
I therefore conclude that none of the temporary total disability benefit amounts paid to Ms. Thorning by the Workers' Compensation Board should be included in calculating Ms. Thorning's gross income from occupation or employment. The Applicant agreed that the Insurer should be credited for the WCB benefit amounts received between October 10 and 28, 1991, following the motor vehicle accident.
c) E&D Cleaning
Conflicting evidence was presented by and on behalf of the Applicant about the amounts she was paid by E & D Cleaning and about the nature of those payments. In her Application for Accident Benefits, Ms. Thorning stated that in the 52 weeks preceding the accident she earned the sum of $15,600.00 as gross income from self-employment with E& D Cleaning.34 Her accountant, Mr. McDaniel, who is also her brother, confirmed those earnings on the Employer's Confirmation of Income.35
Mr. McDaniel testified that E & D Cleaning was a limited company. He testified that Ms. Thorning brought him two shopping bags full of source documents. He sorted and grouped the documents, returned the originals to her, and prepared the income statement for E & D Cleaning for the period between March 31, 1990 and March 31, 1991.
According to the income statement, the total amount paid as salaries by E& D Cleaning between March 31, 1990 and March 31, 1991, was $15,600.00.36 In his accounting report, and in his testimony, Mr. McDaniel stated Ms. Thorning's earnings from this business during the period in issue were $8,000.00. He testified that he reduced the amount to reflect "the hiatus in her earnings" and adopted the approach taken by Coopers & Lybrand with respect to ceasing expenses for the part of the fiscal period which fell within the 52 week period in issue. In my view this explanation is inconsistent with his statement in the Employer's Confirmation of Income that in the 52 weeks prior to the accident, Ms. Thorning earned $15,600.00.
In his report and in his testimony, Mr. McDaniel characterized the $8,000.00 as shareholder earnings. Ordinarily shareholder dividends are considered to be a return of capital and are paid out of the retained earnings of the company. I have serious difficulty accepting that dividend payments are "income from occupation or employment." While tremendous flexibility may be available to a small business entity as to the characterization, timing and receipt of earnings for income tax purposes, no explanation was provided for the change in the characterization of these payments. Ms. Thorning reported neither earnings from self-employment nor shareholder dividends on her income tax returns for 1990 and 1991.
The income statement indicates a loss of $434.00 for the fiscal period between March 31, 1990 and March 31, 1991. Ms. Thorning testified that E & D Cleaning earned no post-accident income. She stated that after April 12, 1991, the existing contracts of E & D Cleaning were given to her staff, who performed the work and were allowed to keep the fees. If I accept this evidence, I can only conclude that any monies paid to her as dividends were generated by E & D Cleaning in fiscal periods which pre-date the 52 week period in issue in this arbitration.
Despite the existence of two shopping bags full of source documents, grouped and sorted by the accountant and under the Applicant's complete control, none were filed at the hearing. The Applicant provided no payroll records, records of dividend payments, balance sheets, minute books, or corporate tax returns in relation to E & D Cleaning which might assist in confirming the actual amounts she received from E & D Cleaning during the 52 week period in issue, in establishing the character of the amounts received, or in matching the amounts generated by the business with any payments she may have received.
In the absence of any documentary evidence that these monies were received by her, and in light of the conflicting evidence as to how much she received and the conflicting characterization of these monies as salary or as shareholder earnings, I am not satisfied that the Applicant met the onus of establishing that she earned monies from this business in the 52 weeks before the accident, or that these monies are properly characterized as income earned from her "occupation or employment."
d) E & D Pastries
According to the Applicant's accountant, this business operated between January 1, 1991 and April 1991, and generated a loss in the amount of $2,655.60. This loss was claimed on Ms. Thorning's income tax return of 1991. Both Mr. McDaniel, Ms. Thorning's accountant and Mr. Edwards of Coopers & Lybrand, Allstate's accountant, subtracted this amount from her pre-accident earnings.
e) The Foam House
As noted earlier, Ms. Thorning's testimony was that she sold her interest in this business in 1989 and had no further dealings with it. I therefore conclude that she earned no income from this business in the 52 week period prior to the accident.
f) Residue Inc.
Ms. Thorning claimed she earned a commission from sales to Residue Inc. in the amount of $200.00 US per month "most months," and that this amount, converted to Canadian currency, should be included in calculating her income from her occupation or employment. Ms. Thorning agreed that she had not earned such commissions since the April 12, 1991 injury which gave rise to her claim for workers' compensation benefits.
Mr. McDaniel testified that his sister had told him of payments from Residue Inc. He could not verify the dates of the Residue payments. Mr. McDaniel agreed that he had prepared Ms. Thorning's income tax return in 1991 and for succeeding years. He also agreed that no such payments were reflected in her income tax returns.
Two letters under the signature of the President of Residue Inc. were filed.37 Both were vague as to when commissions were paid and as to the amounts of any such payments. Both letters invite the reader to contact the President for further information. It would appear to have been a simple matter to obtain confirmation from Residue Inc. of the amounts of any commissions paid to Ms. Thorning and of the dates on which those commissions were paid.
Neither the Applicant nor her accountant have claimed any amounts as expenses in relation to the earning of these commissions. The claimed commissions are not declared on Ms. Thorning's income tax returns. Ms. Thorning acknowledged in her cross-examination that these monies could have been funnelled through the Foam House business. As noted earlier, Ms. Thorning agreed that she sold her interest in the Foam House business in 1989 and that she had no further dealings with that company. For all of the above reasons, I conclude that Ms. Thorning has not established that she earned any money as a commissioned salesperson during the 52 week period in issue.
In conclusion then, I find that the only amounts to be included in Ms. Thorning's gross weekly income from her occupation or employment are her earnings from Lear Seating Canada Ltd., as adjusted by the Pay Equity Commission. These amounts total $12,284.79. The parties agreed that the loss from E&D Pastries of $2,655.60 should be subtracted from those earnings.
Averaging the amounts
The Applicant claimed that in order to calculate her average gross weekly income, her earnings should be divided by the actual number of weeks during which she earned that income. This approach was taken by Senior Arbitrator Susan Naylor, as she then was, in the cases of McCormick and Vincenzo Scavuzzo and Canadian Home Assurance Company (March 18, 1992), OIC A-000626. The Scavuzzo decision was appealed to the Director of Arbitrations. On appeal, the Director's Delegate confirmed the Scavuzzo approach.
Allstate claimed that the approach mandated by the Schedule in calculating the average was to divide Ms. Thorning's earnings by the number of weeks set out in the Schedule -- either by four weeks or 52 weeks. In the case of Chuong Vo and Maplex General Insurance Company, (October 4, 1993), OIC File A-002777, Arbitrator David Draper, as he then was, concluded that he was not bound by the decision of the Director's Delegate in Scavuzzo and determined that the appropriate divisor had to be either four or 52 weeks, as provided in the Schedule.
I have had the benefit of reading the decisions of my colleagues and of the Director's Delegate with respect to this issue. In addition to the two approaches outlined above, there has been a third approach: that of calculating the benefit in a way which fairly and accurately reflected the Applicant's pre-accident earnings. This approach was developed by Arbitrator Makepeace in Gene Meandro and Pilot Insurance Company (June 7, 1994), OIC A-004433 and followed by Arbitrator Blackman in Bharat Kotak and CAA Insurance Company (Ontario) (Dec.20, 1995), OIC A-011445. Allstate's claims manager, Mr. Langford, testified that the claims adjuster had "considerable latitude in determining what was fair," and had used this approach in struggling to determine the appropriate amount of Ms. Thorning's weekly income benefit.
I invited counsel's submissions as to whether firstly as a matter of law I was bound by the decision of the Director's Delegate in Scavuzzo and, secondly, if I was not, as to which of the three approaches was the most appropriate in the circumstances of this case. On the basis of the submissions which I heard, I was not persuaded that I was necessarily bound by the decision of the Director's Delegate. Ultimately that issue will be determined by the Director of Arbitrations. Counsel submitted that it was open to me to choose as between the Vo and Scavuzzo approaches.
In my view, the plain wording of the Schedule requires the averaging of gross income by dividing by 52 or by four. In Ms. Thorning's case, I have subtracted the loss of $2,655.60 from her gross earnings of $12,284.79, as agreed by the parties, and divided that number by 52. This yields an amount of $185.18, 80% of which is $148.14. Section 12(7)iii of the Schedule provides a minimum deemed weekly income benefit of 80% of $232.00, or $185.60 per week. I conclude therefore that Ms. Thorning was entitled to a weekly income benefit in the amount of $185.60 per week.
The claim for repayment
Allstate claimed that there had been an overpayment in the amount of $46,317.25 and that it was entitled to a repayment from Ms. Thorning. The repayment claim was based on sections 27(1) and (3) of the Schedule.
Section 27(1) to (3) of the Schedule provides:
27.-(1) A person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud.
(2) A person must repay to the insurer any benefit received under sections 12 and 13 that is paid to him or her if the person or the person in respect of whom the payment was made was disqualified from payment under section 17.
(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).
Ms. Thorning agreed that she received a Canada Pension Plan disability pension, retroactive to August 1991. Counsel agreed that the disability pension payments were "payments for loss of income" within the meaning of section 12(4) of the Schedule and that, consequently, these amounts were to be repaid by virtue of section 27(3) of the Schedule.
It appears that Allstate began paying Ms. Thorning weekly income benefits effective October 26, 1991.38 I find that the amount of Canada Pension Plan disability benefits paid to Ms. Thorning in respect of the time she received a weekly income benefit was $16,540.54, and that she is required to repay this amount to Allstate.39
Allstate also claimed that it was entitled to a repayment on the basis of "error" under section 27(1) of the Schedule. In the case of Dana B. Levenson and General Accident Assurance Company (February 18, 1992), OIC A-000260, Senior Arbitrator Naylor, as she then was, found that a number of meanings can be attributed to the word "error," in the context of sections 27(2) and (3) of the Schedule
"which provide for repayment of benefits in circumstances where there is no "error" but where the recipient is disqualified from payment or where deductible payments have been received, in which case repayment is required to the extent of the deduction.
These provisions suggest that the requirement of "error" in section 27(1) requires more than an error of judgement or "being wrong" on the part of the insurer in paying benefits. Otherwise, the broader wording of Section 27(2) and (3) would be redundant. It is not sufficient therefore to establish merely that an applicant has received benefits to which he or she is subsequently adjudged not to be entitled. To give meaning to the terminology of the section, the stipulation that benefits be paid "through error" in order to be recoverable must require that responsibility for the payment be attributable in some material way to the actions of the applicant.
I agree with and adopt these conclusions.
Allstate alleges that in retrospect it made two errors. Firstly, it included the temporary total disability benefits which Ms. Thorning received from the Workers' Compensation Board in calculating her gross weekly income. Secondly, in averaging that gross weekly income, it took the Scavuzzo approach instead of the Vo approach. Allstate submits that in light of the number of arbitration decisions which have followed the approach taken in Vo, that approach is the correct one. Allstate bears the burden of proof with respect to its claim for repayment.
Mr. Langford, claims manager at Allstate, gave evidence as to how Allstate calculated Ms. Thorning's weekly income benefit. He testified that on November 25, 1991, Allstate received an income statement for E&D Cleaning showing a loss for the year ended March 31, 1991. On this basis, Allstate initially paid Ms. Thorning the minimum weekly income benefit in the amount of $185.60.
Mr. Langford testified that as time went on, the adjuster became aware of Ms. Thorning's employment income from Lear Seating, her receipt of workers' compensation benefits, and "struggled a bit" with how to now calculate benefits. Mr. Langford testified that the adjuster had "considerable latitude in determining what was fair" in making the calculation, although this might not be in accordance with the strict rules of the policy.
The adjuster concluded that the fair way was to recognize earnings of 52 weeks at Lear Seating of $11,058.48, add in the $6,000 in WCB benefits, then divide those numbers by 52, and calculate 80% of that amount, to arrive at a benefit rate of $276.12 [sic]. This amount was paid to Ms. Thorning until October 16, 1992.
Mr. Langford testified that Allstate then received a letter from the offices of counsel for the Applicant advising that in September 1991, there had been a $175,000 contract from Foam House, which should also be factored into the calculation. Allstate then retained Coopers & Lybrand for assistance in determining the amount of the weekly income benefit.
Daniel Edwards, an accountant with Coopers & Lybrand, prepared a report and testified at the hearing. I find on the basis of his testimony and his report to Allstate that he put no weight on the September 1991 purchase order, as there was no indication of the customer's identity, no delivery dates were specified, and the quantities to be supplied were not listed.
In the report prepared for Allstate, Mr. Edwards presented alternative scenarios for the calculation of Ms. Thorning's weekly income benefit and recommended the inclusion of the workers' compensation benefits, otherwise the result would be "unduly harsh." He also recommended the approach taken in the McCormick decision and suggested that Allstate might wish to obtain legal advice. Mr. Edwards' recommendation, however, was a benefit rate of $456.70.
Allstate then began to pay Ms. Thorning's weekly income benefit at the rate of $456.70. It issued a cheque in the amount of $9,344.91 on October 27, 1992 to reflect the upward change in entitlement, and continued to pay her at this rate until September 28, 1993, when her weekly income benefits were terminated.
In my view it is not an "error" within the meaning of section 27(1) for an Insurer to rely on the existing state of the law. Coopers & Lybrand recommended the McCormick/Scavuzzo approach. As noted earlier, the issue remains an open one. In my view, Allstate consciously and deliberately directed its mind to calculating Ms. Thorning's gross income. The adjuster, commendably, had a desire to be fair. She took the advice and recommendation of accountants, and possibly of lawyers, in determining the amount of the benefit.
While Allstate was put to time, expense and effort in preparing a calculation, both Allstate and Coopers & Lybrand dismissed the questionable documentation which Ms. Thorning provided. Neither relied upon Ms. Thorning's claims of a $175,000 Foam House contract dated September 7, 1991, nor on any alleged earnings from E& D Cleaning. I cannot therefore find that Ms. Thorning was responsible for any "error". Despite my findings that Ms. Thorning was entitled to the minimum benefit amount of $185.60, any amounts paid in excess are not, in my view, repayable due to "error" within the meaning of section 27(1) of the Schedule.
I conclude therefore that Ms. Thorning must repay only the sum of $16, 540.54 due to her receipt of Canada Pension Plan disability benefits between October 26, 1991 and September 28, 1993.
3. Entitlement to Supplementary Medical and Rehabilitation Benefits and Care Benefits
In this arbitration Ms. Thorning claimed supplementary medical and rehabilitation benefits and care benefits for the period between January 1993 and April 1995 totalling $55,090.93.40Counsel for Ms. Thorning declined to identify which claims were being presented under section 6 of the Schedule, and which were made under section 7 of the Schedule. No objection was taken by the Insurer to the Applicant's approach. According to the Report of Mediator, the claim for "attendant care" was mediated as a section 7 claim, while the remainder of the items were mediated as supplementary medical and rehabilitation benefits under section 6 of the Schedule. The provisions of section 6 and 7 are set out in Appendix B.
I find that in order to succeed in her claim for supplementary medical and rehabilitation benefits under section 6 of the Schedule, Ms. Thorning must establish that the expenses claimed are for goods, services or expenses described in section 6, that they result from the accident, were necessary for her treatment or rehabilitation, and were incurred within the benefit period.
Ms. Thorning testified that her friends and relatives provided the services which she billed to the Insurer in a series of purchase orders. There was no evidence that any of these persons were professional caregivers. Any claim would therefore arise under section 7(1)(b) of the Schedule. I find that in order to succeed in her claim for expenses under section 7(1)(b), the expenses claimed must be reasonable, result from the accident, and involve her care after the accident.
The invoices with respect to many of the expenses claimed were generated by Ms. Thorning. The invoices for general help provided by friends extend to April 1995. Ms. Linda Fenton, the Applicant's mother, testified at the hearing. Ms. Fenton testified that once her daughter moved into her (Ms. Fenton's) apartment in February 1995, only family members continued to provide Ms. Thorning with help. I accept Ms. Fenton's evidence. She testified in a straightforward manner. Ms. Fenton is retired and would be in a position to know who came to her apartment. No explanation was provided for the discrepancy between the invoices generated by Ms. Thorning and her mother's testimony. In my view this discrepancy puts into question all of the purchase orders generated by Ms. Thorning which were submitted to the Insurer for payment. As of April 17, 1995, Allstate paid a total of $58, 919.31 in respect of Ms. Thorning's claims for section 6 and 7 benefits. During the hearing, the parties also agreed that Allstate would pay the further sum of $831.74 for prescription drugs, medical expenses and reports.
I have found that Ms. Thorning did not establish that the motor vehicle accident caused or significantly contributed to her back problems. This finding also applies to the goods, expenses and services which she claims she needed as a result of those problems. It follows that Ms. Thorning cannot succeed in establishing that these claims result from the accident, as required by sections 6 and 7 of the Schedule. Apart from those items which Allstate has agreed to pay, Allstate is not required to pay any of the Applicant's claims for section 6 and 7 benefits presented in this arbitration.
4. The claim for a special award
Section 282(10) of the Insurance Act provides for the payment of a special award where an arbitrator is of the opinion that an Insurer has unreasonably withheld or refused to pay benefits. I have found that no weekly income benefits, supplementary medical and rehabilitation benefits or care benefits are owed to the Applicant. I therefore find that the Applicant is not entitled to a special award.
5. Expenses:
The Applicant seeks an award of her expenses. An arbitrator has a discretion to award these expenses pursuant to section 282(11) of the Insurance Act In exercising my discretion I have considered the intent and purpose of the legislative scheme, that there was a dispute regarding causation, the circumstances of Ms. Thorning's claims and the submissions made on behalf of the parties.
Counsel for the Insurer requested that I deny Ms. Thorning her expenses in their entirety because of the outrageous claims she submitted for section 6 and section 7 benefits. I have considered this submission, but note Dr.Tepperman's opinion that psychological issues may have caused the Applicant to advance at least some of her claims for medical and rehabilitation benefits.41 However, no such explanation was provided with respect to the irrelevant and misleading documentary evidence which the Applicant furnished in support of her claims for an increased weekly income benefit. I have also considered the Applicant's admissions in the course of her testimony. Having regard to all of the circumstances of this case, I exercise my discretion to deny the Applicant her expenses in respect of the arbitration.
Order:
Ms. Thorning is not entitled to receive weekly income benefits after September 28, 1993.
The amount of the weekly income benefit to be paid to Ms. Thorning by the Insurer is $185.60 per week. Ms. Thorning must repay Allstate Insurance Company of Canada the sum of $16,540.54.
Ms. Thorning is not entitled to supplementary medical benefits under section 6, or to care benefits under section 7 of the Schedule.
Ms. Thorning is not entitled to a special award.
Ms. Thorning is not entitled to her expenses in respect of the arbitration.
October 9, 1996
Suesan Alves Arbitrator
Date
LIST OF EXHIBITS
Exhibit 1
Medical Expense Brief
Exhibit 2
Amended Medical Brief
Exhibit 3
Amended Income Loss & Employment Brief
Exhibit 4
Clinical Notes & Records Brief
Exhibit 5
Workers' Compensation Board Brief
Exhibit 6
Insurer's Medical Brief
Exhibit 7
Insurer's Document Brief
Exhibit 8
Medical, Prescription, Certificate and Report Summary Brief
Exhibit 9
Two photographs depicting damage to Applicant's vehicle
Exhibit 10
Material received by Insurer from the offices of counsel for the Applicant with respect to her claims for various supplementary medical and care benefits
Exhibit 11
Curriculum vitae of Dr. Perry Tepperman
Exhibit 12
Letter dated July 19, 1994 from Ms. R. Williams to Dr. Tepperman
Exhibit 13
Curriculum vitae of Dr. John Michael Lacroix
Exhibit 14
Summary of expense payments prepared by Mr. Langford
Exhibit 15
Calculation of weekly income benefits prepared by Daniel Edwards
Exhibit 16
Letter dated from Coopers & Lybrand dated May 31, 1993 requesting additional documentation
Exhibit 17
Curriculum vitae of Mr. R. Shapiro
Exhibit 18
Job Description of Ms. Enid Thorning
Exhibit 19
Supplementary Document Brief of Insured
Exhibit 20
Second Supplementary Document Brief of Insured.
Other documents before the arbitrator:
Reports of Mediator, dated November 16 and June 23, 1994
Application for the Appointment of an Arbitrator, dated January 1995
Response by Insurer, dated January 20, 1995
Pre-hearing letter, dated June 13, 1995
Arbitration Brief
Income loss and employment brief
Insured's Argument brief
Closing Arguments of counsel for the Insurer
Letter from offices of counsel for the Applicant dated June 11, 1996
APPENDIX A
Sections 6 and 7 of the Schedule:
Section 6 of the Schedule provides as follows:
6.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,
(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;
(b) prostheses, dentures, prescription eyewear, hearing aids and other medical or dental devices;
(c) rehabilitation, life-skills training and occupational counselling and training;
(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;
(e) home renovations to accommodate the needs of the insured person;
(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.
(2) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident an allowance that is reasonable having regard to all of the circumstances for expenses actually incurred by a spouse, child, grandchild, parent, grandparent, brother or sister of the insured person in visiting the insured person during his or her treatment or recovery.
(3) For the purpose of this section, the benefit period is the longer of the two following periods calculated from the day of the accident and ending on the anniversary of the accident:
Ten Years.
Twenty years less the age of the insured person on the day of the accident.
(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.
(5) A person qualified to practise as a chiropractor may sign a statement required under subsection (4) in respect of chiropractic services under clause (1)(a).
(6) A person qualified to practise dentistry may sign a statement required under subsection (4) in respect of dental services and dentures under clause (1)(a) and (b).
(7) In case of a dispute concerning an expense described in clause (1)(a), (b) or (d), the insurer will pay the expense pending resolution of the dispute.
(8) The maximum amount payable under this section is $500,000 with respect to each insured person.
Section 7(1) of the Schedule provides that:
Care Benefits
7.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person,
(a) the reasonable cost of a professional caregiver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and
(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.
(2) The maximum amount payable per month under this section is $3,000 a month with respect to each insured person.
(3) The maximum amount payable under this section is $500,000 with respect to each insured person.
1 Subhranshu_Arbitration11_format_2_(Part_3)_Fn
2 Report of Dr. Loukides, dated August 14, 1993, pages 9-10; Amended Medical Brief, Exhibit 2, Tab 11A
3 Report of Dr. Loukides, dated August 14, 1993, pages 10 and 11; Amended Medical Brief, Exhibit 2, Tab 11A
4 Report of Dr. Loukides, dated August 14, 1993, page 10, Applicant's Amended Medical Brief, Exhibit 2, Tab 11A
5 Cf The Applicant's Argument Brief indicates that these benefits were terminated on October 25, 1991 at Appendix A, and on October 28, 1991 at Appendix B. According to a letter from the chair of the Workers' Compensation Board dated October 13, 1992, temporary total disability benefits were paid from April 15, 1991 to November 25, 1991. Exhibit 5, Tab 4.
6 Report of Dr. Loukides, family physician, dated June 15, 1991, Clinical Notes and Records Brief, Exhibit 4, Tab 1, page 49
7 Cf Memo to Workers' Compensation Board File dated January 6, 1992, from R. Rovazzi, Ms. Thorning "is objecting to closure of benefits as she states she is still unable to perform her regular job" due to problems with her neck and left arm. Workers' Compensation Brief, Exhibit 5, Tab 1
8 WCB Brief, Exhibit 5, Tab 2
9 Rajinder Sharma and Co-operators General Insurance Company (Feb. 7, 1994), OIC A-003840 (under appeal); Richard J. Madore and Co-operators General Insurance Company (Aug. 24, 1994), OIC A-004305 (under appeal); Shawn P. Lunn and State Farm Mutual Automobile Insurance Company (Aug.18, 1995), OIC A-013860 (under appeal).
10 WCB Brief, Exhibit 5, Tab 7, Vocational Rehab Action Memo dated July 17, 1991.
11 WCB Brief Exhibit 5, Tab 2
12 Worker's Report of Injury or Disease, WCB Brief, Tab 2, Exhibit 5.
13 Worker's Report of Injury or Disease, WCB Brief, Tab 2, Exhibit 5. The forms stated: "Please indicate which of the following functions you would do on a normal working day and how frequently you do them." Three options are provided: "not more than 15 pounds," "not more than 30 pounds" and a box in which the amount of weight can be inserted.
14 Ibid
15 Ibid
16 There was no issue before me as to whether the Applicant qualified as a section 12 claimant.
17 Report of Dr. Loukides dated August 14, 1993, Amended Medical Brief, Exhibit 2, Tab 11, page 10.
18 Report dated July 13, 1992, Amended Medical Brief, Exhibit 2, Tab 4A
19 Report of August 14, 1993, Amended medical brief, Exhibit 2, Tab 11
20 Amended Medical Brief, Exhibit 2, Tab 4C
21 Amended Medical Brief, Exhibit 2, Tab 9
22 Report of August 20, 1993, Exhibit 2, Tab 7B
23 Ibid
24 Medical, Prescription, Certificate and Report Summary Brief, Exhibit 8, Tab B
25 Cf Report of Dr. Loukides to Canada Pension Plan dated January 31, 1993: "This woman's primary problem since January 1992 has been neck and left shoulder pain with numbness in the left hand secondary to degenerative disc disease and injuries. An EMG report dated Nov. 26, 1992 is supportive with findings of a chronic left C6 radiculopathy.... Prognosis is continued neck and left shoulder pain with numbness of her left hand and appropriate inability to do physical work involving the straining of her neck or left hand. A significant problem considering that her primary occupation was that of typist." Exhibit 4, Tab 1, page 110
26 These include Dr. Loukides and Dr. Donskoy, both family physicians, Dr. Weiler, an orthopaedic surgeon, and Dr. Kekosz, a physiatrist. Dr. Kekosz was of the opinion that Ms. Thorning would not be able to tolerate extensive sitting required in her job as a receptionist-typist. Dr. Loukides expressed the opinion that "she is unfit for any occupation considering her education, training and background and specifically any activity requiring prolongued [sic] sitting or standing, or bending, lifting or straining her back." However Dr. Weiler, one of Ms. Thorning's treating orthopaedic surgeons, stated that when he saw her on May 31, 1995, "she indicated that overall, her level of function had improved substantially" since her last assessment approximately one year earlier. He stated: "She noted that in general she was pain free with intermittent episodes of back pain." Ms. Thorning testified that Dr. Weiler must have misunderstood her, or that she must have misunderstood him.
27 Dr. Donskoy, one of her family physicians, Dr. Weiler, one of her orthopaedic surgeons, Dr. Kekosz, her physiatrist, and Dr. Tepperman, a physiatrist who examined her on behalf of the Insurer, provided written opinion evidence on this issue. Dr. Kekosz and Dr. Tepperman also gave testimony on this issue.
28 Amended Medical Brief, Exhibit 2, Tab 16A
29 Form 4 dated June 2, 1994, Applicant's arbitration Brief, Tab 3 (Other documents before the arbitrator)
30 Answers to Additional Questions" page 7, Report of September 27, 1995, Amended Medical Brief, Exhibit 2, Tab 15C
31 Report of September 27, 1995, Amended Medical Brief, Exhibit 2, Tab 15C
32 Applicant's Amended Medical Brief, Report of Feb. 8, 1995, at Tab 13(b)
33 Letter from Mr. S. MacLean of the Pay Equity Commission dated December 8, 1995 with appendices, Applicant's second supplementary document brief, Exhibit 20, Tab 1
34 Insurer's Document Brief, Exhibit 7, Tab 1
35 Insurer's Document Brief, Exhibit 7, Tab 4
36 Insurer's Document Brief, Exhibit 7, Tab 6
37 Letter dated May 12, 1992, Insurer's Document Brief, Exhibit 7, Tab 11, and letter dated Janaury [sic] 26, 1993, Applicant's Income Loss & Employment Brief, Tab 3, Other documents before the arbitrator
38 Insurer's Document Brief, Exhibit 7, Tab 3
39 On the basis of a letter dated August 23, 1995 from Income Security Programs Branch, Insurer's Document Brief, Exhibit 7, Tab 5 I have determined that the following amounts totalling $16,540.54 were paid to Ms. Thorning as CPP disability pension benefits between October 26, 1991 and September 28, 1993 : October 26 -31, 1991 : $152.18, November and December 1991: $1,347.86, 1992: $8,556.24, January - August 1993: $5,806.80, September 1-28, 1993: $677.46.
40 Letter dated June 11, 1996 (Other documents before the arbitrator)
41 Report of Dr. Tepperman, Insurer's Medical Brief, Exhibit 6, Tab 21