Neutral Citation: 1996 ONICDRG 173

OIC A-015935

ONTARIO INSURANCE COMMISSION

BETWEEN:

SHERRE MAAS

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Sherre Maas, was injured in a motor vehicle accident on January 29, 1991. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under Ontario Regulation 672.¹ During the period disability benefits were paid by State Farm, Ms. Maas applied for and received other disability payments from a group disability insurer and the Canada Pension Plan ("collateral benefits"). Ms. Maas received weekly income benefits at a rate of $265.13, less deductions of collateral benefits, under section 12(1) of the Schedule until February 6, 1994. The parties were unable to resolve their disputes through mediation and Ms. Maas applied for arbitration under the Insurance Act, R.S.O. 1990, c.18, as amended (the "Act").

The issues in this hearing are:

1. Is Ms. Maas entitled to weekly income benefits after February 6, 1994, pursuant to section 12(5)(b) of the Schedule?

2. Is Ms. Maas entitled to a special award under section 282(10) of the Act because State Farm unreasonably delayed or withheld benefits?

3. If Ms. Maas is entitled to further weekly income benefits, is State Farm entitled to deduct 100 per cent of collateral benefits that are received by Ms. Maas or is the deduction 80 per cent of said benefits, under section 12(4) of the Schedule?

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

Result:

1. Ms. Maas is entitled to weekly income benefits from February 6, 1994 forward, under section 12(5)(b) of the Schedule. State Farm shall pay interest at the rate of 2 per cent per month, in accordance with section 24(4) of the Schedule.

2. State Farm shall pay Ms. Maas a special award of $5,000.00, inclusive of interest.

3. State Farm is entitled to deduct from Ms. Maas' weekly income benefits the entire amount of collateral benefits available to or received by Ms. Maas after February 6, 1994.

4. Ms. Maas is entitled to the expenses she incurred in respect of this arbitration.

Hearing:

The hearing was held in Hamilton, Ontario, on October 31, November 1, 2, December 6, 7, 1995 and January 11, 1996, before me, Asfaw Seife, arbitrator. The filing and exchange of written submissions was completed on February 12, 1996.

The proceedings were transcribed by court reporters of Mark Nimigan Court Reporting Services.

Present at the Hearing:

Applicant:

Sherre Maas

Mrs. Maas's Counsel:

James Scarfone

Barrister and Solicitor

State Farm's Counsel:

Joseph J. Sullivan

Barrister and Solicitor

State Farm's Representative:

Peter Robinson Claims Superintendent

Witnesses and exhibits are listed in Appendix A to this decision.

Preliminary Matter:

In his written submission, counsel for State Farm argued that the Applicant's claim for a special award should be dismissed because the Applicant has failed to give the Insurer notice of the claim prior to the commencement of the hearing. Counsel cited section 8 of the Statutory Powers Procedure Act (the SPPA),² R.S.O. 1990 c.S.22, to support his contention.

The Applicant's intention to claim a special award was first communicated to counsel for State Farm at the commencement of the resumption of the hearing on December 6, 1995. At that time, counsel for both parties advised that they had agreed not to include certain issues that were originally included in the arbitration. They confirmed those issues that remained in dispute. Ms. Maas counsel advised that he would be seeking a special award against State Farm. Counsel for State Farm did not object to the inclusion of this issue in the arbitration. Ms. Maas counsel was ordered to provide counsel for State Farm with written particulars of the claim before the next scheduled resumption of the hearing. Counsel for State Farm received the particulars on December 15, 1995. The hearing was concluded without State Farm’s counsel raising any objections about the adjudication of this issue.

Rule 68.1 of the Dispute Resolution Practice Code (the "Code") provides that any procedural requirement set out in the Act or the SPPA that applies to an arbitration hearing held under the Act may be set aside with the agreement of the parties and the adjudicator.

In the circumstances of this case, counsel for State Farm, by his conduct and through his consent to the inclusion of the issue of special award in the arbitration, has in effect agreed to set aside any procedural requirements that may apply in this case.

State Farm was given sufficient notice of the issue, and did have an opportunity to prepare and present its defense. Accordingly, I will consider Ms. Maas' claim for a special award.

Evidence and Findings:

Background:

At the time of the accident on January 29, 1991 ("the accident"), Ms. Maas was 32 years old, married with two children, aged five and six years. The family lived in the Simcoe area, in rural Ontario. Ms. Maas was employed by Norfolk Fruit Growers' Association ("NFGA") where she had been working since September 1990. She was employed there as a full-time manual labourer, grading and packing apples. Her husband, Louie Maas, is an industrial mechanic. At the time of the accident, he was on strike.

The accident occurred while Ms. Maas was attempting to alight from her van, which had stalled as a result of engine malfunctioning. Ms. Maas testified that as she was getting out of her vehicle, she stepped on ice, slipped and fell. As she slipped, her left foot went up and she landed flat on her buttocks. She felt pain immediately; however, she was able to get up and walk her son, who had been a passenger in the van, to her mother's house, one and one-half miles down the road. She then went to work.

Ms. Maas testified that around noon the same day, she began to feel severe pain in her back, legs, and buttocks. The pain was so severe that she was unable to finish work that day. Her brother picked her up from work and took her directly to Dr. R. Dukelow, her family doctor since 1985. Dr. Dukelow gave her a Demerol injection for pain relief, and sent her home with a prescription for pain medication.

In the weeks following the accident, Ms. Maas continued to see Dr. Dukelow, with complaints of increasing pain in her low back area, pain in the right leg radiating to her feet, and pain in her right thigh and knee, and in the right groin area. Dr. Dukelow noted that her condition was getting progressively worse, with decreased reflex in her right knee, and decreased range of motion in her back.

Since the accident, in addition to seeing Dr. Dukelow on a regular basis, Ms. Maas has been examined, treated and assessed by various medical practitioners, including seven orthopaedic surgeons, three psychiatrists, a neurologist, a chiropractor, a physiotherapist, a pain management specialist, a rehabilitation therapist, and an occupational therapist. She has undergone various investigative tests, including x-rays, CT scans, and psychological testing. She underwent two spinal surgeries.

Despite the medical and rehabilitation treatments, Ms. Maas claims that her symptoms from the accident of January 29, 1991 have continued without interruption, and without much improvement. Ms. Maas has not returned to her previous employment at NFGA or to any other employment since the accident.

Ms. Maas testified that when she "finally accepted [she] was not getting any better" in May or June 1993, she started thinking about doing light work; however, she found only light duty jobs such as a secretary which required "brain" work, which she has "never done in her life." She stated she looked in the papers in May 1993, and talked to her treating physicians about occupational retraining; however, she said she was advised that she was not physically ready for retraining at that time.

State Farm has paid Ms. Maas weekly income benefits for 156 weeks, up to February 6, 1994, under section 12(1) of the Schedule. This section requires the insurer to pay weekly income benefits during the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her occupation or employment, as a result of injuries sustained in the accident. State Farm does not dispute Ms. Maas' entitlement to weekly income benefits prior to February 6, 1994; however, State Farm contends that Ms. Maas does not meet the stricter test of disability under section 12(5)(b) of the Schedule for any period after February 6, 1994 because she has not established that the injury continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

Education, Training and Experience:

The highest education Ms. Maas attained is grade 12, which she completed when she was 19 years of age. She has had no other formal education or vocational training.

Ms. Maas testified that she grew up in rural Ontario where her parents owned a tobacco farm. She started helping on the farm when she was six years old, and continued to do so until the family farm was sold in 1976. After the farm was sold, Ms. Maas worked at various tobacco farms in the Simcoe area, as a seasonal farm labourer. From October 1979 to May 1980, she worked as a housekeeper in a nursing home, performing manual duties. She was married to Louie Maas in 1982. During various periods of time from 1981 to 1983, she worked at different tobacco farms as a labourer. From 1983 to 1990, she was a homemaker, raising their children. In September 1990, when both children had reached school age, she returned to the workforce, as an apple packer with the NFGA, where she was employed until the date of the accident. Ms. Maas has some non-manual labour experience acquired by participating at her children's pre-school activities, as duty parent, fund raiser, trip coordinator, and coaching the school's baseball team. She has also worked as a member of the Town Hall Committee for the Town of Nanticoke for a period of time.

Ms. Maas' other pursuits before the accident included sewing, gardening, wood finishing, baseball, aerobics, walking, biking, swimming and dancing. She grew all the vegetables the family needed on land owned by her father-in-law. She had a greenhouse where she started flowers and vegetables from seed.

Ms. Maas testified that she has never done any "brain work," and that all the jobs that she has held were physically demanding and labour intensive. Ms. Maas' job at NFGA as a "general labourer" required no education, training, or experience. She worked seven and a half hours a day, five days a week.

Based on the evidence before me, I find that the majority of Ms. Maas' work experience and skills relate to manual, physical labour in the context of a tobacco farm. I find that she also has experience providing child care, housekeeping, and gardening, all of which include significant physical demands.

Medical History

Pre-Accident:

Ms. Maas testified that she had a history of low back pain prior to the accident. However, she denied any significant problems at the time of the accident. She testified that while working at NFGA, she did not have "any back pains at all."

Ms. Maas also stated that prior to the accident, she had periods of time when she went through depression and anxiety caused by her marital problems, the illness of her daughter, and her concerns about her own weight. However, at the time of the accident, most of her personal problems had cleared, and she was not experiencing any psychological problems. She denied any addiction to prescription medication.

Ms. Maas testified that despite her problems she was able to function fully as a mother, a homemaker and a farm labourer, until the date of the accident.

The medical evidence indicates that Ms. Maas' history of back pain dates back to 1987, when she was diagnosed by Dr. Dukelow as having symptoms of "early sciatica."³ In October 1987, Ms. Maas was admitted to Norfolk General Hospital (NGH) with complaints of severe back pain, radiating to her buttocks and legs. She remained in traction for ten days. The cause for her problems was subsequently identified as a herniated disc at the L4-L5 level. It is not clear from the evidence what caused this injury; however, Dr. Richie, the orthopaedic surgeon who treated her at NGH, noted in his report of November 3, 1987, that Ms. Maas had told him she "has had a couple of back injuries as a youngster, at age 13 when she fell off of a snowmobile and age 16 when she fell down some steps."

The medical evidence also indicates that in November 1987, Ms. Maas was having gynaecological problems, and was complaining of urinary incontinence. In May 1988, she underwent an abdominal hysterectomy. Ms. Maas testified that she was told by the doctors who performed the surgery that the pain in her back was caused by "the problem in [her] uterus." Ms. Maas testified that this surgery reduced her back pain significantly; however, she continued to experience sporadic episodes of back pain that seemed to go away with each incident, after a short course of treatment. In September 1989, Dr. Dukelow diagnosed her as suffering from "chronic low back pain, with right-sided sciatica."

By fall 1990, however, Ms. Maas' complaints of back problems appear to have subsided significantly. The last entry of any such complaint in Dr. Dukelow's pre-accident clinical notes was made on December 29, 1989. In the 12 months prior to the accident, Ms. Maas' OHIP records list only seven entries, none of which relate to lumbar complaints or treatments.

In his testimony, Dr. Dukelow agreed with counsel for State Farm that Ms. Maas had a significant back problem prior to the accident, with a history of recurrence. However, Dr. Dukelow stated that at the time of the accident, Ms. Maas' back was asymptomatic.

As far as Ms. Maas' pre-accident psychological problems are concerned, the medical evidence shows that for periods of time during the years from 1979 to 1990, Ms. Maas had a variety of psychological problems, including "wide mood swings," depression, anxiety, headaches, and bouts of temporomandibular joint ("TMJ") problems. During this period, she was also went through significant marital problems and was taking significant anti-depressant and pain killer medication. She also had psychiatric counselling.

The evidence indicates that starting in 1988, Ms. Maas' psychological complaints began to decrease significantly. The last entry in Dr. Dukelow's clinical notes regarding complaints of depression or similar psychological problems was made over two years prior to the accident, in August 1988. A note regarding "marital dysfunction" was made in March 1989. The pre-accident medical records reveal no complaints of a mental or psychological nature after August, 23, 1990.

Several witnesses testified at the hearing comparing Ms. Maas' pre-accident and post-accident level of functioning. While these witnesses were not all aware of the details of her pre-accident health history, their evidence corroborates her testimony that prior to the accident, any physical or psychological problems she had did not result in any noticeable diminution of her activities.

Her husband, Louie Maas, her long-time friends and neighbours, Christine MiCucci and Nancy Farrell, and her younger sister, Theresa Mummery, who also worked at NFGA with her, testified that prior to the accident, she performed all her duties with no apparent problems.

Dr. Dukelow testified that the car accident was responsible for the reappearance of Ms. Maas' symptoms after the accident. I heard no evidence to contradict this, or anything to suggest that she had problems functioning prior to the accident. Accordingly, I find that at the time of the accident, Ms. Maas was able to perform the essential tasks of her employment, despite any problems or difficulties she may have had as a result of the pre-existing condition.

Post-Accident:

In her testimony, Ms. Maas described her pain as being "above the waist, up the back, from the tips of the right buttock down both legs - all the way down to [her] feet." Initially, she lost sensation in her buttocks, lower abdomen and pelvis area. This is now limited to her buttocks. In addition, because of the pain, she suffers from loss of memory and inability to concentrate. She has difficulty sleeping through the night because of back pain. She wakes up several times at night. Ms. Maas testified that she has become "drug dependent" for pain relief.

She testified that as a result of the pain, she is unable to sit or stand for extended periods of time, or to engage in any physically demanding work. She started using a cane outside the house after her second surgery because her left leg gives out "all the time" and causes her to fall. She has fallen at least 20 times since the accident: in the shower, at a dance at a wedding, and in many other places.

Ms. Maas testified that as a result of the accident, she has developed an unusual posture. She cannot stand up straight or sit upright, and must use a cane while walking or standing. At the hearing, she was observed walking markedly bent-over at the hips, and using a cane for support. When she testified, most of the time she sat leaning forward or sideways in her chair or over the hearing room table, supporting her head with one hand, and with one leg stretched out sideways. Ms. Maas stated "I sit strange - I sit in the most comfortable position for me."

Ms. Maas testified that for various periods of time since September 1991 she has been receiving housekeeping and personal care services paid for by State Farm. The person who provided the services, Ms. Theresa Butt, testified at the hearing that she still provides personal care to Ms. Maas three hours per week, and helps her with some housekeeping tasks she is unable to do.

Ms. Maas testified that at present, she can do some light household chores, including cooking supper in a microwave, doing the dishes, and making lunch for the children.

Subsequent to the motor vehicle accident, Ms. Maas testified that she was involved in three incidents: a fall in her kitchen on July 16, 1991, a second motor vehicle accident on December 15, 1992, and a third motor vehicle accident on March 12, 1995. Ms. Maas testified that while these accidents contributed to her disability on a temporary basis, the source of her ongoing disability remains to be the accident of January 29, 1991.

Dr. Dukelow, Ms. Maas' family doctor, Dr. Thornton, her treating psychiatrist, and Ms. Donna Kaye, a rehabilitation counsellor, testified on Ms. Maas' behalf. State Farm called two physicians who examined Ms. Maas at its request: Dr. E. Zamora, the psychiatrist who provided one of the opinions on which State Farm based its decision to terminate Ms. Maas' weekly income benefits, and Dr. H. Cameron, an orthopaedic specialist who examined Ms. Maas in June 1995. The parties also filed extensive documentary medical evidence.

The evidence indicates that in the weeks following the accident, Ms. Maas complained of persistent and severe pain in her back. Since the usual modalities of treatment with physiotherapy and medication did not help her, Dr. Dukelow referred Ms. Maas to Dr. R. Repo, an orthopaedic surgeon at St. Joseph's Hospital in Hamilton.

Dr. Repo first saw Ms. Maas on May 24, 1991. Based on a CT scan report dated June 5, 1991, Dr. Repo confirmed that Ms. Maas had a herniated disc at the L4-L5 level.

While awaiting her next appointment with Dr. Repo, Ms. Maas was admitted to NGH on July 16, 1991, with a complaint of severe back pain. Ms. Maas had fallen from the kitchen chair she was standing on while attempting to retrieve an item from a cabinet. At the hospital, she was treated with rest, immobilization and Demerol injections, and discharged four days later. Ms. Maas testified that this fall increased her level of pain for several days.

Dr. Repo saw Ms. Maas again on July 25, 1991, after her fall in the kitchen. He confirmed that Ms. Maas' symptomatology had remained the same since he saw her in May 1991. Dr. Repo suggested "chymopapain injection"⁴ treatment; however, this procedure was never carried out.

On August 21, 1991, Ms. Maas was seen by Dr. Porte, an orthopaedic surgeon, in the emergency room at St. Joseph's Hospital after being taken there with complaints of severe low back pain and urinary incontinence. A CT scan of her spine performed at the time confirmed a posterior central herniation of the disc between the L4 and L5 vertebral bodies. Dr. Porte compared these images with the films done in 1987, and he noted that there were "no specific or notable changes.' Dr. Porte made a diagnosis of "cauda equina syndrome'⁵ a condition that required urgent surgical intervention.

Dr. Porte performed Ms. Maas' first spinal surgery on August 23, 1991. He found that "the exiting [sic] nerve root was compressed and pushed posteriorly by the underlying central disc herniation' In a follow-up report, Dr. Porte indicated that as a result of the operation, the problem of urinary incontinence was resolved. However, he indicated that the surgery did not relieve Ms. Maas' back pain. He opined that her symptoms of back pain and sciatica would "run a course of remissions and exacerbations' in the future.

Ms. Maas testified that after this surgery, her incontinence improved significantly. She stated that she continued to have severe back problems. Dr. Dukelow noted in his report that Ms. Maas' post-operative course was difficult and she did not rehabilitate as expected. She was becoming depressed.

Ms. Maas testified that it was following this surgery that she began to develop her unusual gait. This was confirmed by Dr. Dukelow and the lay witnesses who testified at the hearing.

On January 22, 1992, Ms. Maas was assessed by Dr. M. Hall, orthopaedic specialist, at the request of State Farm. In his report, Dr. Hall states that he was unable to complete his physical examination of Ms. Maas because she "shrieked loudly" as he attempted to conduct the straight-leg raising test. Dr. Hall noted that Ms. Maas stood leaning on her crutches, and when she walked she dragged her "right leg behind her, and to the side of her." During the interview, she sat "leaning at about 45 degrees to the left with her right leg thrust out sideways."

Dr. Hall did not think that Ms. Maas had a back problem; rather, he concluded that her general appearance and behaviour suggested a "hysterical reaction." Dr. Hall expressed no opinion as to Ms. Maas functional ability. Instead, he recommended that she be referred for further care to the Behavioural Medicine Unit at McMaster University or a similar organization.

Ms. Maas testified that Dr. Hall hurt her back in his attempt to examine her. For a number of days after she saw him, the pain in her legs and back was unbearable. On January 24, 1992, two days after she saw Dr. Hall, Ms. Maas attended at the emergency department of NGH with complaints of severe low back pain. She was referred directly to St. Joseph's Hospital, where she spent a weekend. She was later re-admitted to NGH, where she was seen by Dr. D. Bednar, an orthopaedic surgeon who specializes in back surgery.

On February 26, 1992 Dr. Bednar performed the second spinal surgery on Ms. Maas. He did an exploratory discectomy, fusion and decompression of her lumbar spine. Ms. Maas testified that this surgery did not resolve her problems. The pain in her back and legs continued with the same severity.

Dr. Dukelow stated in his report that following this second surgery, Ms. Maas rehabilitation did not follow the anticipated course. She continued to have back pain, and developed reactive depression. Dr. Dukelow referred her to Dr. Q. Ratnayake for psychiatric consultation. Dr. Ratnayake first saw Ms. Maas on April 24, 1992. At that time, he noted that Ms. Maas was taking various tranquillizers and anti-depressants. He started her on additional anti-depressants, including Prosac. Dr. Ratnayake was of the view that Ms. Maas had developed chronic pain syndrome.

Dr. Dukelow testified that during this period, Ms. Maas was experiencing significant discomfort, and was in a state of general physical and emotional decline. She was abusing analgesic medication, mainly Talwin. Ms. Maas admitted she was taking more pain medication than was prescribed for her "hoping that the pain in [her] back and legs would go away." She stated she "smoked hash, pot, marijuana" and drank alcohol with drugs, to deal with her pain.

On December 15, 1992, Ms. Maas was involved in the second motor vehicle accident. Dr. Dukelow noted that as a result of this accident, Ms. Maas sustained a minor degree of whiplash, cerebral concussion, shoulder strain and a "reactivation of some of [her] lumbar symptoms." Ms. Maas testified that this accident did not affect the status of her back. Ms. Maas saw Dr. Bednar the day after this accident. He confirmed that the fusion he had previously performed was still intact.

Ms. Maas then underwent another period of investigation and management for the injuries caused by the second accident. Dr. Dukelow reports that once again she tended to abuse analgesic medication.

In August 1993, State Farm retained the services of Federal Rehabilitation Services ("FRS") to co-ordinate Ms. Maas' medical management and to assist in her rehabilitation. FRS provided State Farm with periodic status reports on Ms. Maas' treatment and rehabilitation.

In their Status Report dated June 16, 1993, FRS informed Mr. Rick Lewis, senior claims representative for State Farm, that Dr. Bednar had advised that Ms. Maas was "currently 'very completely disabled'" and that he had recommended she receive multidisciplinary rehabilitation involving both active physiotherapy and pain management education. Ms. Maas was still complaining of recurring left leg numbness and "giving out," numbness in the groin, buttocks and lower abdomen, urinary incontinence, and severe back pain. Ms. Maas continued to receive housekeeping and personal care services, paid for by State Farm. She was also using assistive devices to help her cope with her daily activities.

On July 8, 1993, FRS referred Ms. Maas to the Traffic Injury Rehabilitation Clinic ("TIRC"), a multidisciplinary treatment centre for motor vehicle accident victims. At the clinic, Ms. Maas was treated by Dr. Thornton, psychiatrist and director of the clinic, Dr. Bhalla, orthopaedic specialist, Dr. Buckley, anaesthetist and "pain management specialist," Donna Kaye, rehabilitation counsellor, and other health care professionals. She was involved in various physiotherapy treatments and psychological counselling.

In a report dated September 3, 1993, Dr. Bhalla stated that, in his view, as a result of her back injury, "[Ms. Maas had] become crippled and totally disabled for the rest of her life." He suggested a factor contributing to her disability was her addiction to pain medication, especially Talwin. Dr. Bhalla opined that Ms. Maas "has convinced herself to the point that her personality has been affected and rehabilitation at this stage becomes very difficult and sometimes prolonged."

On September 9, 1993, State Farm received a letter from Dr. Thornton stating that Ms. Maas was still experiencing pain; that during her interviews with him, she was unable to sit for any length of time and often ended up kneeling on the floor, or leaning on the seat of the chair to complete her interview sessions. He indicated that the "kneeling position is used frequently by the patient in order to cope with her unrelenting pain."

Dr. Thornton also pointed out in his letter that Ms. Maas' "other method of pain control is to ingest large amounts of Talwin, which has caused a severe drug addiction." He indicated that she had begun a reduction of Talwin under the supervision of Dr. Buckley, pain management specialist at McMaster Hospital, and that this process was causing her increased irritability and pain complaints. As a result, her intake of Prozac was increased. Dr. Thornton advised State Farm that it was necessary to find the most effective means of relieving her pain in a physical fashion, as well as to assist her with detoxification from Talwin.

In his report of September 16, 1993, Dr. Buckley stated that while Ms. Maas' Talwin intake had been successfully restricted to one tablet three times a day, she continued to have headaches, upper back pain, lower back pain, and pain in her arms and legs. Dr. Buckley noted that she still had "considerable postural deformity, which she reports is effective in reducing some of her pain." Dr. Buckley felt that "in the long run, however, [he was] quite convinced this contributes to the persistence of her pain."

While she was still enrolled at TIRC, State Farm sent Ms. Maas to Dr. J. Mah for an orthopaedic assessment. Dr. Mah was requested by State Farm to provide his opinion as to whether Ms. Maas would meet the test for disability under section 12(5)(b) the Schedule. The 156 week mark of the accident was three months away.

In his referral letter dated October 14, 1993, the claims adjuster, Mr. Lewis, advised Dr. Mah that State Farm's "reports show that [Ms. M] is not disabled." In the same paragraph, Mr. Lewis indicated that State Farm had reports that showed Ms. Maas was disabled from her pre-accident employment, thus suggesting that State Farm had reports that would show she was not disabled for the purposes of section 12(5)(b) of the Schedule.

Mr. Peter Robinson, State Farm's claims superintendent, testified at the hearing that State Farm had no reports that showed Ms. Maas was not disabled, as suggested by Mr. Lewis. The medical evidence filed in this arbitration shows no such reports. I therefore conclude that Mr. Lewis was attempting to influence Dr. Mah's opinion by communicating to him information that did not exist.

Dr. Mah's initial report to State Farm was dated October 19, 1993. It indicates that Dr. Mah was unable to examine Ms. Maas "as she sat and laid [on the examination table] in a slanted position at all times" and with "any touching of her she [made] exacerbated noises." Like Dr. Hall before him, Dr. Mah based his conclusions on a review of the medical documentation that had been provided to him by State Farm.

Dr. Mah concluded that Ms. Maas was suffering from fibromyalgia. He opined that this is a "chronic discomfort and she should be willing and learn to accept this." Dr. Mah thought that the problem of dependency on medication was initiated with her car accident. He felt that the treatment she was taking at TIRC and "the need for Dr. Buckley to try to wean her off the Talwin...would be of great benefit for her." Dr. Mah added that it was "her understanding and acceptance of her present plight that is crucial for her future."

Dr. Mah felt that Ms. Maas "certainly is disabled now in terms of doing any labourious work, however, she certainly is not totally disabled." He added, however, that "the fact that she can sit and lay on the table, certainly is not conducive to any work such as one would offer her in terms of sitting at a desk."

Mr. Lewis did not find this opinion clear and requested clarification. In his November 8, 1993 letter to Mr. Lewis, Dr. Mah stated:

Mr. Lewis, I have reviewed the question you have proposed with regard to this lady and also my dictation dated October 19, 1993. In response, the situation with Ms. Maas is one of physical versus cerebral. It is evident that Ms. Maas has a dependency to medication, which was initiated with the car accident. In that vane [sic] I feel that this lady has a disability. However, physically, she can do light duties, but the difficulty therefore arises if she is cerebrally fit to do this.

It is my impression, at this time, that she is not and I feel that she should continue with the detoxification with Dr. Buckley and Dr. Gooseman in Toronto.

[emphasis added]

State Farm did not find the above opinion clear either. Mr. Lewis sought from Dr. Mah a further clarification. In his letter dated December 20, 1993, Dr. Mah replied:

I do not feel that Mrs. Maas is physically disabled on the criteria forwarded. I do feel that she would be able to obtain employment, but not that which she was accustomed to, (physical labour). However, Mrs. Maas to my recollection is limited in what occupation that she is suitable for in terms of education, training or experience.

Dr. Mah concluded his report by reiterating his opinion that Ms. Maas was "drug dependent and with the resolution of this problem, she would be able to carry on with her daily activities in a normal environment, rather than one that is conformed to her present state."

Ms. Maas continued her treatment at the TIRC after she was assessed by Dr. Mah. In his report dated October 21, 1993, Dr. Buckley felt that, in the long run, Ms. Maas' "only improvement [was] going to come from improved posture," and that with proper therapy, she should be able to achieve a normal posture gradually, with decreasing pain. He suggested that rather than make maximal use of analgesics to decrease the pain and achieve restoration of her posture, it would be beneficial to work her way gradually through without the "overwhelming load of analgesics which would be required."

On November 24, 1993, State Farm sent Ms. Maas to Dr. Zamora for psychiatric assessment. Dr. Zamora issued his report on January 6, 1994. State Farm terminated Ms. Maas' weekly income benefits a month later.

Dr. Zamora testified that after interviewing Ms. Maas and reviewing the medical information forwarded to him by State Farm, he formed the opinion that Ms. Maas had no psychological or mental injuries arising from the accident which prevented her from engaging in any occupation for which she is reasonably suited by education, training or experience.

Dr. Zamora felt that it was "her personality style, substance abuse and long standing marital difficulties that are creating the problem and not any clinical or major depression or any other major disorder." He testified that Ms. Maas had a "passive aggressive dependent" personality disorder, and that there was a "a strong likelihood of conscious embellishment and manipulation" in her claim.

Dr. Zamora stated that Ms. Maas "is of average intelligence at best" and "on psychological testing, she did poorly in cognitive testing, current events knowledge and intellectually she was functioning at a level below the grade 12/13 level." However, he thought that she would be capable of training in computer skills, but that, given her dependence on "drugs" and her "long standing" marital problems, he doubted if she possessed the necessary motivation to engage in such training or to return to any type of work.

In cross-examination, Dr. Zamora agreed with Ms. Maas' counsel that her back problem could be causing her pain, and that there is no scientific way of measuring pain. He agreed that observation of the person, particularly when the person is not aware of it, is one way of telling if the person is experiencing pain. Dr. Zamora admitted that if Ms. Maas' husband, friends, neighbours, and health care workers who spent considerable time treating her and observing her found her to be a credible person and believed her complaints of pain, he would find their views of value in his assessment of Ms. Maas.

Dr. Zamora testified that pain can be relieved by medication, and if Ms. Maas was in pain and was taking pain medication, it would be consistent with trying to relieve the pain. He explained how the impact of pain on an individual can result in stress, sleeplessness, distress and depression. He stated, psychologically, a person with pain can get worn down, his/her judgment can be affected, and the person may lack motivation to work. He agreed that significant pain can disable one from employment.

Dr. Zamora also agreed that body posture can alleviate pain, and "bizarre posture," such as the one Ms. Maas exhibits, could be a position used to alleviate pain, and for guarding certain parts of the body. Dr. Zamora stated that when he examined Ms. Maas, she was on Prozac, Talwin, and other mood altering and analgesic medication. He conceded that this could have given him the impression that she was not having problems. He admitted that if she was taking Prozac and it was working, he would not know if she was depressed.

After the assessment by Dr. Zamora, Ms. Maas continued her treatment with TIRC for a while. She was discharged in March 1994, without much improvement of her back problem. However, the reports of TIRC indicate that Ms. Maas did manage to reduce her dependence on Talwin by substituting another pain killer, MS Contin, a slow releasing morphine. In the discharge summary dated March 11, 1994, Dr. Bhalla indicated that Ms. Maas was able to control her pain better and "straighten herself better" after the switch in medication. However, he indicated that "she still walk[ed] with the use of one cane in her right hand, limping on the right leg, and mostly sitting and standing with a semi-bent position." She was still on Prozac.

Ms. Maas was re-admitted to TIRC, following her involvement in the third motor vehicle, on March 12, 1995. She received treatment for neck injury which she sustained in that accident. Ms. Maas testified that the only thing she was unable to do as a result of her injuries from this third accident was drive a car. At the time of the hearing, she was receiving caregiver benefits from State Farm⁶ because she was unable to drive her children to and from school and other activities. Ms. Maas testified that this accident did not aggravate her back at all.

A Functional Capacities Evaluation was performed at the TIRC on April 24, 1995; however, it was non-conclusive as the test could not be completed due to Ms. Maas' posture. The report states that Ms. Maas "was unable to assume the usual protocol position when performing the tests."

On October 6, 1995, 18 months after the termination of her weekly income benefits, State Farm sent Ms. Maas for an orthopaedic assessment by Dr. H. Cameron. This was the only assessment performed at State Farm's request in the post-156 week period of Ms. Maas' disability.

Dr. Cameron's conclusion was that Ms. Maas had no organic or orthopaedic problems that would prevent her from engaging in suitable employment. In his testimony, Dr. Cameron confirmed that Ms. Maas' complaints to him were essentially the same as those she made to the doctors who examined her before him. She presented with the same unusual gait: she walked bent over at the hips, used a cane in her right hand, and kept her left hand on her thigh. Dr. Cameron characterized this as "a totally hysterical gait," with no organic basis.

Like Dr. Hall and Dr. Mah before him, Dr. Cameron did not conduct the usual orthopaedic tests because Ms. Maas told him any movement produced pain in her back and neck. Based on the medical information sent to him by State Farm, Dr. Cameron agreed with the findings of Dr. Hall and Dr. Mali. He felt Ms. Maas' problem was "not an orthopaedic or organic problem. The problem seems to me purely psycho-emotional." He stated that from the physical point of view, he could find little wrong with her. He stated that she "possibly does have some back pain" as a result of the two spinal operations she has had, but in his view, Ms. Maas is not disabled and she is capable of returning to work that does not require "labouring," repetitive bending or heavy lifting.

In cross-examination, Dr. Cameron agreed that a CT scan cannot tell how much nerve pressing there is, and that Ms. Maas may have a genuine pain originating from her spinal disorder. Like Dr. Zamora, Dr. Cameron also agreed that pain cannot be measured, and the perception of pain differs from individual to individual. He agreed that some people with back pain can work, while others find it impossible. He also agreed that if a nerve is impinged, as is the case in Ms. Maas' situation, one can be rendered totally incontinent.

Dr. Thornton and Ms. Donna Kaye testified about Ms. Maas' treatment at the TIRC between July 1993, and October 18, 1995. Ms. Maas was seen by Dr. Thornton individually over 39 occasions, and about 60 times in group sessions involving other health care practitioners, for a total of over 150 hours. Group consultations included an orthopaedic specialist, an occupational therapist, kinesiologist, a massage therapist, and a rehabilitation therapist. Ms. Kaye herself had met with Ms. Maas at least 30 times.

Dr. Thornton testified that Ms. Maas continues to suffer from both physical and psychological impairment, and that in his view, she meets the test of disability under section 12(5)(b) of the Schedule. However, he felt that if Ms. Maas is provided the appropriate rehabilitation and training, there is a distinct possibility that she might be able to return to some form of part-time work that does not require physical effort."

Both Dr. Thornton and Ms. Kaye testified that, based on their independent observations of Ms. Maas, and in all their dealings with her, they never found reason to question her credibility, and had found no inconsistencies in her reporting of pain and in her behaviour. They testified that Ms. Maas had a difficult time with coping, but that she had made reasonable efforts to rehabilitate herself. Dr. Thornton testified that Ms. Maas' unusual posture is her response in managing and dealing with her pain.

In his testimony, Dr. Thornton disagreed with Dr. Zamora's opinion that Ms. Maas suffers from a passive-aggressive personality disorder. He indicated that Ms. Maas does not meet the diagnostic criteria in DSM IV⁷ for such a disorder, and that individuals with personality disorder can and often do work.

In cross-examination, Dr. Thornton admitted that he was not aware of Ms. Maas' history of back pain or psychological problems prior to the accident; his focus was on treating her current problems. Dr. Thornton was unable to say whether the car accident is the cause of her present problems. However, he stated that Ms. Maas' medical history, as reviewed at the hearing, would not cause him to change his opinion about her present disability.

Analysis and Conclusion

Causation:

State Farm takes the position that the accident of January 29, 1991 did not cause Ms. Maas' disability. State Farm contends that Ms. Maas had a significant chronic low back pain before the accident, caused by a protruding disc in her lumbar spine. State Farm also claims that prior to the accident, Ms. Maas had severe psychological problems, including serious marital dysfunction, depression, abuse of prescription drugs, and dependency on strong pain relief medication. Counsel for State Farm submits that "the January, 1991 incident is not causing her complaints of pain and disability, rather this is a continuation of a pre-accident pattern."

I did not find Ms. Maas a detailed historian of her pre-accident medical history; however, she has not withheld her history of back pain from the doctors who examined her after the accident. Her testimony that at the time of the accident, she was in relatively good health working full-time and managing her family and personal responsibilities, was corroborated by witnesses. Her evidence that her symptoms of back pain re-appeared immediately after the accident and have continued to disable her from engaging in her pre-accident employment is uncontradicted by any evidence, and supported by lay and medical witnesses.

After a careful examination all of the evidence, I find that, prior to the accident, Ms. Maas suffered from symptoms of sciatica, caused by lumbar disc protrusion. She had recurring bouts of back pain triggered by various incidents which likely resulted in only short periods of disability. I also find that prior to the accident, Ms. Maas had periods of anxiety and emotional distress, due mainly to her marital problems. However, I find no evidence to suggest that at the time of the accident, Ms. Maas' sciatica was symptomatic, or that she was having emotional problems. The evidence indicates that, for a significant period of time preceding the accident, Ms. Maas did not complain about emotional or physical problems. If she had any such problems, there is no evidence that they were interfering with her ability to engage in her homemaker or employment duties to any significant extent. By all accounts, she had been functioning normally as a caregiver to her children, a homemaker and a manual labourer, until the date of the accident.

Given Ms. Maas functional ability and the strong temporal connection between the accident and the onset of her symptoms, I find that the accident is a significant contributor, and the proximate cause for the reappearance of her symptoms on January 29, 1991.

I do not find that Maas' fall in her kitchen in July 1991, or her two subsequent motor vehicle accidents, individually or in combination, constitute an "intervening" cause sufficient enough to break the chain of causation started by the motor vehicle accident of January 29, 1991.

Disability:

The evidence is clear that Ms. Maas has a lumbar disc herniation at the L4-L5 level, and suffers from the symptoms of sciatica. Her principal limitation is physical in nature. All the health care practitioners who have treated or assessed Ms. Maas agree that as a result of severe back and leg pain, she is not able to perform physically demanding work. Based on the evidence, I have no difficulty accepting Ms. Maas testimony about her pain and disability. There is an objective, organic basis that lends credibility to her subjective complaints. Where there are contradictions, I prefer the evidence of Dr. Dukelow, Ms. Maas long-time family physician, and Dr. Thornton and Ms. Kaye, who have treated and observed Ms. Maas closely over an extended period of time, to the evidence of Dr. Zamora and Dr. Cameron, who saw her in the context of an assessment and each spent less than two hours interviewing her.

I find that Ms. Maas gait is a significant aspect of her disability. While the medical evidence does not indicate any physical, orthopaedic basis for this unusual posture, I accept Ms. Maas evidence and the evidence of Dr. Thornton that her posture is dictated by her pain. The evidence of independent witnesses who observed Ms. Maas in various places at various times, without her awareness, contradicts the suggestion of Dr. Cameron and Dr. Zamora that she adopted this "hysterical gait" for purposes of secondary gain. It should be noted that the postural deformity began to emerge soon after her first surgery in August 1991, long before State Farm started questioning her disability.

State Farm does not dispute that when it terminated Ms. Maas' weekly income benefits on February 6, 1994, she was still suffering from a substantial inability to perform the essential tasks of her pre-accident employment. The evidence indicates that she still had significant problems with managing her pain, and her posture had shown no improvement. The consensus of medical opinion at the time indicates that with the appropriate training and rehabilitation, Ms. Maas might gradually have been able to return to some type of sedentary, light duties. However, the issue I must determine is whether she met the test of disability under section 12(5)(b) of the Schedule after February 6, 1994.

It remains settled law in Ontario that the onus to prove disability and corresponding entitlement to benefits is on the insured.⁸ Accordingly, in order to succeed in her claim for ongoing weekly income benefits, Ms. Maas must adduce evidence sufficient to establish, on the balance of probabilities, that the injury "continuously prevents her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience."

The word "continuous" is defined in the Concise Oxford Dictionary (New ed.) as "unbroken, uninterrupted, connected throughout in space or time."

The nature and extent of evidence that an applicant must adduce to discharge this onus depends on the circumstances of each case. In Murray and WawanesaMutual,⁹ Arbitrator Lawrence Blackman summarized arbitration cases which commented on the Applicant's onus as follows:

Recent arbitration decisions have grappled with what is the "positive obligation"¹⁰on insureds. Arbitrator Evans stated that applicants as part of discharging the onus of proof "must explore career options."¹¹ Arbitrator Seife held that "the applicant must identify some sort of 'suitable' employment, describe the physical demands of the work and demonstrate with credible evidence that their injuries continuously prevent them from engaging in such employment."¹² Arbitrator Manji in the Caruso decision required the Applicant (if unable to adduce strong medical evidence of total disability) to provide some evidence that he or she "has made a bona fide effort to identify, try to find or attempt some sort of 'suitable' employment but failed because his or her injuries continuously prevent him or her from engaging in such employment."

In Murray,¹³ Arbitrator Blackman stated that where an applicant adduces evidence which prima facie meets this onus, an insurer runs the risk of an adverse inference in the absence of evidence to the contrary. I agree.

Arbitrators have acknowledged that subsection 12(5)(b) encompasses a broader range of inquiry than subsection 12(1), and that the issue of disability is considered not merely in terms of the occupation or employment engaged in at the time of the accident, but in terms of any occupation or employment for which the insured person is reasonably suited by education, training or experience.

What is "suitable" employment? Arbitrators have suggested several guidelines for determining what "suitable" employment is. These decisions have been summarized in Danny Wfgle and Royal Insurance¹⁴ as follows:

1. The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background.

2. Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not unrelated to his or her previous experience. However, work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative.

3. In deciding suitable employment, one must consider such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant's employment experience and length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how.

4. The primary focus is on an applicant's functional limitations; however, job-market considerations are relevant in determining suitable employment.

I am in agreement with these principles and adopt them for the purposes of this case.

It is clear from the evidence that suitable work for Ms. Maas, given her education and experience, is physical, unskilled labour. Ms. Maas states that she does not have the educational background or training to perform light duties that require any "brain work."

State Farm did not conduct an assessment of Ms. Maas' residual functional abilities; nor did it perform an analysis of transferable skills. Ms. Maas has received no vocational training for sedentary, light work. When her weekly income benefits were terminated, she was still receiving rehabilitation and treatment for drug dependence and posture problems. Under these conditions, I find that engaging in even light-duty, sedentary tasks would be difficult for her, even if such work was otherwise "suitable."

State Farm presented no evidence of any employment for which Ms. Maas might reasonably be suited by education, training, or experience, given her current limitations. State Farm's rehabilitation experts never addressed the question of what employment might be suitable for her. The gist of State Farm's submission is that "this was not a case where the Insurer obtained functional ability evaluations or transferable skills analysis. This is reasonable given Sherre Maas' extreme and possible hysterical physical appearance, gait and sitting posture."

Having considered the entire evidence, I find that, as a result of the accident, Ms. Maas is continuously prevented from engaging in any occupation or employment for which she is suited by education, training or experience, from February 6, 1994 onward. Accordingly, she is entitled to weekly income benefits from the date they were terminated.

Special Award:

Section 282(10) of the Insurance Act states:

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Under this provision, if I find that Ms. Maas' weekly benefits were unreasonably terminated, I am obliged to award her a special lump sum payment.

In the case of Wayne Plowright and Wellington Insurance,¹⁵ Arbitrator Julaine Palmer set out what she considered would constitute unreasonable conduct by an Insurer:

"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

I agree with this approach and adopt it for the purposes of this case.

In the circumstances of this case, I find State Farm's termination of Ms. Maas' weekly income benefits to be unreasonable. In my view, State Farm acted precipitously in terminating her benefits on February 6, 1994. My reasons are as follows:

In his submissions, counsel for State Farm argued that the termination was based on the reports of Dr. Mah and Dr. Zamora, which he stated provided "clear and independent medical opinions supporting termination." I do not agree.

Dr. Mah’s opinion regarding Ms. Maas ability to return to "suitable" employment at that time was tentative at best. State Farm’s senior claims representative himself did not find Dr. Mah’s reports clear when he received them.

While Dr. Mah felt that from the physical point of view Ms. Maas may be capable of doing light work, he was unsure whether she could even engage in such employment at that time, given her mental condition and her dependency on medication for pain relief. Dr. Mah did not recommend that Ms. Maas return to light duties at that time; rather his advice to State Farm was that she should continue with rehabilitation and pain management programmes, and that with the resolution of her problem, she would be able to "carry on with her daily activities in a normal environment." I note that in all of his reports to State Farm, Dr. Mah was extremely cautious about expressing an opinion regarding her ability to return to work at that time.

State Farm did not call Dr. Mah to give evidence at the hearing.

Dr. Zamora's opinion can hardly be said to provide a proper ground for termination given that Ms. Maas' complaint was mainly physical in nature. In any case, even Dr. Zamora suggested that Ms. Maas would need vocational retraining in order to return to light sedentary duties.

In my view, when considering termination of benefits, an insurer must not rely selectively on reports that tend to support termination. It must consider the totality of the evidence available to it. Most of the medical evidence in the possession of State Farm as it was contemplating termination, showed that Ms. Maas was physically disabled, and was experiencing considerable psychological difficulties associated with her pain.

From all the medical evidence available to it at that time, and especially the reports of TIRC, State Farm was aware that Ms. Maas would not be considered fit to return to any type of work before her addiction to prescription drugs, and her unusual posture, were corrected. State Farm decided to ignore this medical information; and preferred to rely on the opinion of Dr. Zamora who blamed her "addiction to drugs" on pre-existing psychological problems, and suggested that her "hysterical gait" was an exaggeration of symptoms.

The 156 week mark of the accident is not a magical time when entitlement to weekly benefits under section 12(1) stops automatically. In my view, before stopping benefits, the insurer must allow the insured person a reasonable opportunity to establish that the injury continuously prevents him/her from engaging in any suitable employment. The insurer has a responsibility to assist the insured person in this regard, including providing any vocational retraining required to prepare the person to return to the workforce.

I find that, in the circumstances, State Farm did not have sufficient information to suggest that by February 6, 1994, Ms. Maas had sufficiently recovered from her injuries to be able to return to any remunerative occupation or employment for which she was reasonably suited, so as to warrant the termination of her benefits. State Farm did not assist Ms. Maas in identifying or retraining suitable employment. It seems that State Farm was irrevocably entrenched in its belief that Ms. Maas' gait was "hysterical" and that her objective physical problems were not the source of her pain and disability.

For all of the above reasons, I find State Farm acted unreasonably and inappropriately in terminating Ms. Maas' benefits on February 6, 1994. Accordingly, Ms. Maas is entitled to a special award. The amount of a special award is in the arbitrator's discretion, within the maximum limit set out under the Act. I have fixed the amount at a lump sum of $5,000.00, inclusive of interest.

Collateral Benefits:

The parties agree that Ms. Maas has been receiving Canadian Pension Plan disability benefits and long-term disability benefits from the disability insurer of her pre-accident employment. The issue of whether either or both of these benefits are deductible from her weekly income benefits as payments for loss of income under section 12(4)(b) of the Schedule is not before me. The only and discrete issue put before me by agreement of the parties at the commencement of the hearing is whether State Farm is entitled to deduct from Ms. Maas' weekly income benefits 100 per cent or 80 per cent of collateral benefits received by her.

Section 12(4) of the Schedule states;

Subject to subsection (5), the weekly benefit under subsection (1) will be the lesser of,

(a) $600 plus, if Optional Benefit 2 has been purchased, the amount of the benefit chosen; and

(b) 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 except Unemployment Insurance benefits,

(i) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan, or

(ii) ...

[emphasis added]

The Applicant's position is that the Insurer may deduct only 80 per cent of collateral benefits received by her. Counsel for State Farm argues that it is entitled to deduct 100 per cent of what Ms. Maas is receiving.

Dealing with a similar issue in Edgar and Wellington,¹⁶ Arbitrator Macintosh concluded that the grammatical structure of section 12(4)(b) does not support the argument that the 80 per cent applies to the payments for loss of income. This decision was later affirmed on appeal by the Director's Delegate.¹⁷

I agree with this approach.

In my view, the wording of section 12(4)(b), read in the context of the Schedule, and in its grammatical and ordinary sense, does not mandate any percentage of collateral benefits to be deducted from weekly income benefits. It simply states "...less any payments for loss of income."

In my view, the words "80 per cent" relate to and qualify the words "gross weekly income" from the insured person's occupation or employment. This percentage does not refer to or qualify "payments for loss of income." This means that the weekly income benefit of an insured person who was earning income at the time of the accident is calculated by taking 80 per cent of his or her gross weekly income from employment and deducting from this sum any payments for loss of income. "

The words less any payments for loss of income" themselves have been the subject of many arbitration decisions. In this case, I was not asked to calculate the amount of Ms. Maas' weekly income benefits, nor have I heard evidence in this regard. I was not told whether Ms. Maas is receiving all or a part of the collateral benefits available to her.

The question of whether the insurer is entitled to deduct all of the collateral benefits received by the insured was also the subject of appeal in Edgar. In that case, initially, the collateral disability insurer calculated the income tax payable on Ms. Edgar's disability benefits and withheld that amount at source. As a result, for a period of time Ms. Edgar received collateral benefits after taxes were deducted. After a certain period of time, Ms. Edgar asked the disability insurer to pay her all of the amounts that had been withheld, which it did. Thereafter, she received the gross amount of her disability benefits from the collateral insurer, although she had to pay income tax on it. The Director's Delegate concluded that "the full amount of other benefits is deductible under section 12(4)(b), as long as they are "received by or available to" the person. The Director's Delegate provided detailed reasons for his conclusion. However, he added the following caution in applying his conclusions to a particular case:

I want to emphasize that this decision does not deal with a situation where the injured person is not paid the full amount of his or her other benefits and has no right to demand it. While I do not intend to suggest that the result would be different, such a case might raise issues of both fact and law that were not presented in this case.

I agree with the reasoning of the Director's Delegate in Edgar.

In this case, because I have not heard all of the relevant evidence, I am not in a position to make a finding with respect to the actual amount of collateral benefits State Farm is entitled to deduct from Ms. Maas' weekly income benefits. However, based on the above-cited appeal decision, I agree that State Farm would be entitled to deduct the full amount of collateral benefits available or received by Ms. Maas provided that this is not a situation where Ms. Maas is not paid the full amount of her other benefits and has no right to demand them.

Expenses:

Ms. Maas has succeeded in her application. I exercise my discretion under section 282(11) of the Act to award her her expenses incurred in respect of this arbitration.

Order:

1. Ms. Maas is entitled to weekly income benefits from February 6, 1994 forward, under section 12(5)(b) of the Schedule. State Farm shall pay interest at the rate of 2 per cent per month, in accordance with section 24(4) of the Schedule.

2. State Farm shall pay Ms. Maas a special award of $5,000.00, inclusive of interest.

3. State Farm is entitled to deduct from Ms. Maas' weekly income benefits the entire amount of collateral disability benefits and Canada Pension Plan disability benefits available to or received by Ms. Maas after February 6, 1994.

4. Ms. Maas is entitled to expenses she incurred in respect of this arbitration.

October 16, 1996

Asfaw Seife Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Photograph of Applicant in 1982

Exhibit 2

Photograph of Applicant in 1985

Exhibit 3

Thera Care Report - June 23, 1993

Exhibit 4

Insurer's Document Brief

Exhibit 5

Dr. A. Porte's Report - August 23, 1991

Exhibit 6

Ontario Automobile Insurance Medical or Psychological Report - Dr. Dukelow

Exhibit 7

Norfolk General Hospital records

Exhibit 8

Dr. Porte's report - October 29, 1991

Exhibit 9

Dr. Bhalla's report - July 23, 1993

Exhibit 10

Victoria Hospital CT Scan report - June 5, 1991

Exhibit 11

Applicant’s Medical Brief

Exhibit 12

Dr. Repo’s report - May 24, 1991

Exhibit 13

Dr. Repo's report - July 25, 1991

Exhibit 14

Dr. Dukelow's report - March 6, 1995

Exhibit 15

Dr. Cameron's bill to State Farm - October 12, 1995

Exhibit 16

Dr. Cameron’s clinical notes and records

Exhibit 17

Functional Capacities Evaluation - April 24, 1995

Exhibit 18

Traffic Injury Rehabilitation Clinic Progress Reports - November 23, 1993 and January 20, 1994

Exhibit 19

Dr. Thornton’s consultation reports

Exhibit 20

Traffic Injury Rehabilitation Clinic records invoice - October 12, 1995

Exhibit 21

Dr. Thornton’s report - October 24, 1995

Exhibit 22

Schneider Dvali report - January 3, 1994

Exhibit 23

Dr. Zamora’s invoice to State Farm

Exhibit 24

Applicant’s Particulars re Special Award

Exhibit 25

Letter from Rick Lewis of State Farm to Dr. Mah - October 14, 1993

Witnesses (in order of appearance):

Sherre Maas - The Applicant

Theresa Butt - Housekeeper

Theresa Mummery - Applicant's sister

Christine MiCucci - Applicant's neighbour

Dr. R. Dukelow - Applicant's family physician

Louie Maas - Applicant's husband

Dr. H. Cameron - Orthopaedic surgeon

Ms. D. Kaye - Rehabilitation counsellor/coordinator

Dr. J. Thornton - Psychiatrist

Dr. E. Zamora - Psychiatrist

Mr. Peter Robinson - Claims superintendant

Nancey Farrell - Applicant's friend

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. 2Section 8 of the Statutory Powers Procedure Act states: " Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto."
3. 3Sciatica: a syndrome characterized by pain radiating from the back into the buttock and into the lower extremity along its posterior or lateral aspect, and most commonly caused by protrusion of a low lumbar intervertebral disk; the term is also used to refer to pain anywhere along the course of the sciatic nerve. (Dorland's Illustrated Medical Dictionary (28d)).
4. 4Chymopapain: "An enzyme of the hydrolase class, a cysteine endopeptidase, that catalyzes the hydrolysis ofproteins and polypeptides. Its specificity is very close to that ofpapain and both occur in the latex of the tropical papaya tree, Carica papaya. The enzyme is used to break down the proteoglycan portion of the nucleus pulposus in the treatment of herniation of intervertebral disks by chemonucleolysis. (Dorland's supra note # 3)
5. 5“Cauda equina: "The collection of spinal roots that descend from the lower part of the spinal cord and occupy the vertebral canal below the cord; their appearance resembles the tail of a horse.'
6. 6Under the Statutory Accident Benefits Schedule - Accidents on or after January 1, 1994
7. 7The Diagnostic and Statistical Manual of Mental Disorders, 4th Edition
8. 8Sharon Riley and Pilot Insurance (April 15, 1995), OIC A-007940
9. 9Murray and Wawanesa Mutual Insurance Company (August 23, 1996), OIC A-003224
10. 10Gagnon and Jevco Insurance Company (May 1, 1996), OIC A-015357
11. 11Gagnon, ibid, at page 5
12. 12Wigle and Royal Insurance Company of Canada (January 12, 1996), OIC A-012312
13. 13Cited above at page 13
14. 14Supra, note # 12
15. 15Wayne Plowright and Wellington Insurance (October 29, 1993), OIC File No. A-003985
16. 16Edgar and Wellington (April 13, 1994), OIC A-005441
17. 17Edgar and Wellington (February 6, 1996), OIC P-005441