Neutral Citation: 1996 ONICDRG 208

OIC A-007373

ONTARIO INSURANCE COMMISSION

BETWEEN:

ROBIN N. SARSON

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Robin N. Sarson, was injured in a motor vehicle accident on February 27, 1993. She applied for statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under Ontario Regulation 672.¹ Pilot denied benefits on the basis that any disabilities suffered by Ms. Sarson arose from a previous work-related injury, for which she was already receiving Workers Compensation Board (WCB) benefits.

Ms. Sarson maintains that although she was disabled at the time of this accident because of the earlier work injury, by January 30, 1995 her accident-related injuries were the primary reason for her inability to work. Therefore she seeks weekly income benefits from Pilot from January 30, 1995 onwards. In addition, she claims the cost of physiotherapy and transportation expenses incurred after January 30, 1995, as a result of her attendance at the Healing Link Clinic in Hamilton, Ontario.

The parties were unable to resolve their disputes through mediation and Ms. Sarson applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Sarson entitled to weekly income benefits for any period beyond January 30, 1995?

2. Is Ms. Sarson entitled to recover the cost of physiotherapy services at Healing Link?

3. Is Ms. Sarson entitled to recover transportation expenses associated with her attendance at Healing Link?

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

Result:

1. Ms. Sarson is not entitled to recover weekly income benefits for any period beyond January 30, 1995.

2. Ms. Sarson is entitled to recover the cost of physiotherapy services incurred within the first 12 weeks of her attendance at Healing Link, plus associated transportation expenses.

3. Ms. Sarson is entitled to recover 50 percent of her expenses incurred in this arbitration.

Hearing:

The hearing was held in Hamilton, Ontario on August 26 and 27 and September 18, 1996. Counsel attended at the OIC on October 21, 1996 to make submissions.

The witnesses and exhibits are listed in Appendix "A".

Present at the Hearing:

Applicant:

Robin N. Sarson

Ms. Sarson's

Allen Wynperle

Representative:

Barrister and Solicitor

Pilot's

Grant Black

Representative:

Barrister and Solicitor

Evidence:

A. Entitlement to Weekly Income Benefits

Background:

Ms. Sarson is 32 years old and lives in Hamilton with her common-law husband and her son.

When this accident happened, Ms. Sarson was employed as a laundry worker with Canadian Linen, where she had been working since 1988. She initially held a job in the "count-in" department, where she inspected and sorted soiled linen, including heavy coveralls and tablecloths. That position required prolonged standing and significant lifting and twisting.

In June 1991, Ms. Sarson injured her back while working, and was absent for approximately six months, during which she received physiotherapy. In April 1992, she re-injured her back while lifting, and again required physiotherapy. Thereafter, Ms. Sarson missed work for several periods because of ongoing back pain. She required modification of her job duties, which led to the position she occupied at the time of the accident, known as "dryfold." In this job she retrieved towels from bins, folded them, and placed them on a nearby table for another worker to wrap. The job required repeated bending and lifting, as Ms. Sarson folded approximately 500 towels per hour. In order to accommodate her longstanding back problem, Ms. Sarson was permitted to sit while folding the towels, which reduced the bending somewhat.² However, even after her job duties were modified, Ms. Sarson continued to miss work because of her back condition, and was off work during the week immediately preceding this accident.

Because of her continuing back complaints, Ms. Sarson's family physician, Dr. Lapinski, referred her to Dr. Jeremias, an orthopaedic specialist, who ordered a C.T. Scan of her lumbar spine. The scan was performed in November, 1992, (approximately four months before the motor vehicle accident) and revealed "definite evidence"³ of disc herniation at the L5-S1 level.

The clinical records of Dr. Lapinski in the month leading up to the accident confirm that Ms. Sarson was suffering from significant back and shoulder pain which disabled her from her employment. On February 4, 1993, Dr. Lapinski noted:⁴

WCB - return to work Jan 18/93 same job "light modified" full time 8 hrs.daily. Is bending, lifting, standing at a table waist level, folds towels all day. (light, modified)

Patient has "severe pain" every day. Has been denied claim by WCB, no income since August from WCB. Patient is appealing. Localizes pain to lt. sacral area. Also, now bilateral shoulder pain lt. and rt. because of "standing rigidly all day and trying not to bend back". Locates pain to lt suprascapular musculature. Range of motion normal....To see Dr. Jeremias March 1993. Advised to stay off work. [emphasis added]

The next note, of February 18, 1993 (nine days pre-accident), states:

WCB - Saw Dr. Jeremias Feb. 10. He sent note for no repetitive lifting or bending. Can't do "dry fold." Applying for U.I. benefits. No job available as of February 15, 1993. No longer working. Still appealing WCB. To see Dr. Jeremias. [emphasis added]

Ms. Sarson claims that although her pre-existing back problem was the main reason why she could not work in the first few years after this accident, by January 30, 1995, the neck injury she sustained in this accident had progressed to the point where it became the primary disabling feature. She argues that Pilot is therefore obliged to pay her weekly income benefits from January 30, 1995 onwards.

The Law:

Ms. Sarson claims weekly income benefits pursuant to section 12 of the Schedule, which provides:

12.—(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment... [emphasis added]

Therefore, in order for Ms. Sarson to succeed in her claim for continuing weekly income benefits, she must establish:

1. that she sustained a physical, psychological or mental injury;

2. the injury arose from the motor vehicle accident, and

3. as a result of that injury she suffers a substantial inability to perform the essential tasks of her employment as a dryfold laundry worker.

The Accident and its Aftermath:

On February 27, 1993, Ms. Sarson was driving a 1977 pick-up truck, in Hamilton, when she was hit from behind by a car. Ms. Sarson testified that upon the impact her upper body jerked forward and back,⁵ but did not strike the interior of the car. Immediately after the impact she remained in the truck for a few minutes "in shock," but then climbed out for fear that the gas tank might catch fire.

Ms. Sarson was taken from the accident scene to St. Joseph's Hospital, where she complained of neck and low back pain and a severe headache. X-rays proved normal and she was sent home with pain killers.

Ms. Sarson saw Dr. Lapinski on several occasions after this accident. Her clinical notes suggest that Ms. Sarson rapidly recovered from this accident and any lingering problems are predominantly related to her pre-accident state. On March 2, 1993, only three days after the accident, Ms. Sarson complained that the accident aggravated her previous low back condition but reported "no neck pain." Dr. Lapinski found "range of motion neck and shoulders normal." In the next visit of March 15th, 1993, only two weeks later, Dr. Lapinski noted that "pain secondary to MVA 'almost gone'. Only episodal sacral pain (WCB). Feels much better. Only pain from old injury left." (emphasis added)

A consultation with Dr. Jeremias on April 15, 1993, produced similar findings. In his report to Dr. Lapinski, he noted "a good range of motion of her neck and shoulders...a grinding test gives her back pain but no neck pain." Dr. Jeremias concluded that Ms. Sarson sustained a "minor cervical strain" as a result of the accident, and that she should continue "on a light work basis for her lower back." In cross-examination, Ms. Sarson agreed that any neck discomfort she was experiencing then was "minor," and that the recommendation for light work was purely to accommodate her longstanding back condition.

Following the next visit of April 26, 1993, Dr. Lapinski noted that Ms. Sarson was awaiting a decision from the Workers' Compensation Appeal Tribunal (WCAT) regarding her "injury at work" and that she "continues with low back pain." There is no reference to neck pain on this visit or any subsequent ones with Dr. Lapinski in 1993. On August 23, 1993, Dr. Jeremias reports:

...is still having pain in her lower back...good range of motion of her neck...no spasm...no tenderness..! think she could go back to work at this "dry fold" job as of August 30, 1993 as long as there is a stool for her that she could get up and move around. The no heavy lifting restriction still applies.

Ms. Sarson acknowledged in cross-examination that Dr. Jeremias' recommendations for a stool and "no heavy lifting" were exclusively for her back. Upon further review by Dr. Jeremias in November, 1993,⁶ Ms. Sarson complained of "daily lower back symptoms," but made no reference to neck pain.

Although Ms. Sarson returned to her dryfold job in August 1993, she missed days in January, 1994 due to "worsening of back pain...possibly related to toboggan ride one week ago." She was laid off on February 21, 1994, at which time she was complaining of "constant low back pain."⁷Dr. Lapinski's note of February 25, 1994 states that Ms. Sarson was laid off on February 22 and "continues with low back pain. Patient suspects she was let go because of her injury and complaints..."

On March 10, she returned to her modified job but by October, 1994, she was again off work, this time complaining of both back and neck pain. However, a WCB physician's report dated October 24, 1994 restricts the "current diagnosis" to "lumbosacral strain." In response to the question "Are there any factors, not related to the original injury delaying recovery?" the physician checked "no."⁸ Although a later report of November 22, 1994 makes reference to "secondary neck and shoulder discomfort,"⁹ and records the motor vehicle accident as part of her medical history, it does not suggest that the accident contributed in any way to her neck pain. The report concludes that "initial re-entry should be part-time working up to full-time over four weeks."

In cross-examination, Ms Sarson admitted that she was off work for several periods in 1993 and 1994 solely because of her back. She also agreed that any modifications attached to her job were to accommodate her back injury exclusively. Although Ms. Sarson continued to see Dr. Lapinski on a regular basis, her clinical notes do not refer to neck pain until February 2, 1995:

Now talking re neck pain, headaches. Is questioning whether it is related to MVA of February '93. Recent xray shows moderate C6-C7 disc narrowing. To talk with lawyer today.

This complaint by Ms. Sarson coincides with a cervical x-ray revealing "moderate" disc narrowing at the C6-C7 level, which, according to the radiologist, "was quite prominent in a patient of this young age."¹⁰ The radiologist's report, dated January 26, 1995, gives rise to Ms. Sarson's claim that by January 30, 1995 her neck was her primary disabling feature, and she is therefore entitled to weekly income benefits from January 30, 1995 forward.

In the early months of 1995 Ms. Sarson also began to complain of tingling and numbness in her hands. As a result, Dr. Lapinski referred her to Dr. Kean, a rheumatologist. EMG studies revealed carpal tunnel syndrome with some compression of the median nerve. Consequently, in July 1995, Dr. Kean referred Ms. Sarson to Dr. Smith, who performed decompression surgery, after which she recovered much of the strength and sensation in her hands. Because of Ms. Sarson's complaints of neck pain and the abnormal changes in her cervical x-ray, Dr. Kean referred her for physiotherapy to the Healing Link clinic at Chedoke-McMaster Hospitals.

In March 1995, Ms. Sarson's employer arranged modified work that would accommodate her back injury, as a sewing machine operator. Ms. Sarson commenced a graduated return to work at four hours per day, sitting at a machine, and doing no heavy lifting. The job allowed for frequent breaks so she could move around. However, Ms. Sarson left work early on the second day to see Dr. Lapinski, citing "back pain," which prompted Dr. Lapinski to note: "I strongly urged this patient to get back to work today and try to do job. Cannot 'give up' after 1 ½ days..."

Although Ms. Sarson eventually returned to work, she continued to miss time because of recurring back pain. During one of these absences, in May 1995, Ms. Sarson was seen by Dr. H. Beattie, a cardiovascular surgeon, at the Healing Link clinic. Dr. Beattie noted¹¹ that Ms. Sarson was not working "because of the pain in her back." Dr. Beattie advised Dr. Kean that "as far as the neck problems...she could be returned to the work force and made comfortable with considerable physiotherapy and stretching of her neck muscles..." On July 11, 1995, after further assessment of Ms. Sarson, Dr. Beattie reported to Dr. Kean that

...she is capable of modified work with the standard low back restrictions that she tells me are a permanent feature of her claim...She has full use of her shoulders and upper extremities... and a full range of motion in her cervical spine. There is no severe degree of tenderness over her cervical spine...

The patient is very pre-occupied with her medical symptoms and complaints and tends to equate pain with damage and I have tried to explain to her that in people with back complaints pain is of muscular origin and doesn't represent damage [emphasis added]

In June, 1995, the WCB assessed Ms. Sarson and documented low back discomfort as her chief complaint. In response to the question "Any medical conditions other than work injury which impact on the extent of the worker's present work related impairment? "(emphasis in original), the attending physician checked "no."¹²

Soon after, WCB advised Ms. Sarson of its decision that she was capable of performing her job as a sewing machine operator. It suggested that any lingering physical problems were due to her motor vehicle accident and denied Ms. Sarson's application for additional benefits. This caused Ms. Sarson's (then) lawyer, John Vujicic, to write to WCB on July 25, 1995,¹³ objecting to its decision. Mr. Vujicic's letter, in my view, strongly supports Pilot's position:

I can advise at this time that Ms. Sarson has informed me that although she has suffered a previous impairment with respect to her neck from a motor vehicle accident, nonetheless this has absolutely nothing to do with her inability to perform her job as of the last date. In fact, the sole reason that Ms. Sarson was unable to perform her duties was due to her low back impairment. Ms. Sarson informs me that while doing her job she had to bend over to pick up certain materials at which time her low back "gave out" resulting in her inability to continue her employment at that time. [emphasis added]

WCB denied further wage loss benefits, but provided a lump sum award of $14,474 for "non-economic loss" to Ms. Sarson in November, 1995.¹⁴

Reasons:

In order to recover weekly income benefits, Ms Sarson must prove that she has suffered a substantial inability to perform the essential tasks of her pre-accident employment for some period beyond January 30, 1995.

The relevant employment is the dryfold laundry job that Ms. Sarson held at the time of the accident. Ms. Sarson's position is that although her pre-existing back problem was the main reason why she could not work in the first few years after this accident, by January 30, 1995 the neck injury she sustained in this accident had progressed to the point where it became the primary disabling feature. She submits that the x-ray report of January 26, which documented "moderate" disc narrowing, combined with her progressive complaints of neck pain, is evidence that the tide of her injuries had turned from her back to her neck. Put another way, she argues that by January 1995, this accident had taken over as the principal cause of her disability.

In my view, the evidence does not support Ms. Sarson's argument. At the time of this accident, Ms. Sarson was already suffering from a significant and prolonged back injury, which had caused her to miss several periods of work in previous years. Although Canadian Linen modified her job duties before this accident in order to accommodate her back injury, Ms. Sarson continued to have difficulties managing her job and was absent from work in the week preceding this accident. Moreover, in the years following this accident, Ms. Sarson continued to miss work because of back pain, and aggressively pursued WCB for income replacement benefits as a result of her back condition.

The medical evidence suggests that this car accident caused, at most, a minor soft tissue injury to Ms. Sarson's cervical spine. The clinical notes and records of Drs. Lapinski and Jeremias confirm that Ms. Sarson advised them repeatedly over the one and a half years following this accident that she had no neck pain and only some aggravation of her pre-existing back pain. Although Ms. Sarson made a few mild complaints of neck pain before the summer of 1995, I find it significant that she did not begin to complain about regular neck pain until after she had exhausted her rights against WCB regarding her pre-existing back injury. Dr. Lapinski's note of December 14, 1995 documents complaints of neck pain and states "Patient has 'no money,' i.e. WCB cancelled her and 'fighting' with Insurance company re neck. Seeing a lawyer..."

Ms. Sarson relied on the evidence of Dr. Kean, who suggested that the degenerative changes in her neck since the car accident, as demonstrated in the x-ray results, were consistent with the trauma of the accident and were the likely cause of her ongoing neck pain. He testified that it is rare to see such a rapid degeneration in someone as young as Ms. Sarson, and opined that the physical movements involved in towel folding, particularly lifting and reaching, could cause her neck, shoulder and arm discomfort.Yet Dr. Kean admitted that her pre-existing low back pain was the "principal" reason why she was currently off work, as opposed to her neck problem, which he characterized as merely "interfering" with her work.

Previous case law at the OIC¹⁵ establishes that although the accident-related injuries need not be the sole cause of an applicant's inability to work, they must be the principal or primary cause of her disability. I acknowledge that Ms. Sarson may suffer some minor neck discomfort because of this accident; however, I accept the view of Dr. Kean that her unrelated back injury is the principal cause of her disability.

Alternatively, even if Ms. Sarson's neck injury from this accident was the principal cause of any discomfort she experienced after January 30, 1995, the evidence does not establish that it resulted in a substantial inability to perform her job. Ms. Sarson relied on the evidence of Dr. Smith, a specialist in orthopaedics who is associated with the Healing Link clinic. He explained that Ms. Sarson's neck injury is of a "chronic, progressive" nature, and therefore was not evident within the first few years following the accident. He agreed with Dr. Kean that the degenerative changes in Ms. Sarson's neck were inconsistent with the normal aging process, and attributed them to the car accident, absent evidence of other physical trauma. Dr. Smith concluded that Ms. Sarson’s neck problem would prevent her from carrying out her job duties.

Dr. Smith's evidence was challenged by Dr. Welsh, an orthopaedic surgeon who examined Ms. Sarson in May 1996 on behalf of Pilot. Dr. Welsh found that Ms. Sarson had an "excellent" overall spine alignment, and had sustained "only a minor soft tissue whiplash type injury."¹⁶ He stated that the "later" development of a carpal tunnel syndrome was "totally unrelated to the accident." Dr. Welsh concluded:

Here the time relationship between the accident and the development of symptoms are so remote that it cannot be accepted as having any relationship whatsoever.

As to Ms Sarson's disability at this time, there is none defined..good movement in her neck...not be seen to suffer any disability relating to accident injury...

...capable of working at Canadian Linen in any capacity without imposed restriction...

In his testimony, Dr. Welsh conceded that there may be some causal connection between the car accident and the later disc degeneration noted in the cervical x-ray. He disagreed, however, that any neck injury sustained by Ms. Sarson in this accident was sufficient to disable her from her employment.

In my view, the facts in this case better support Dr. Welsh's view than they do Dr. Smith's. Dr. Smith relied heavily on the x-ray taken in January, 1995 which found the disc narrowing "quite prominent" for her age. Yet in July 1995, six months later, Mr. Vujicic (Ms. Sarson's lawyer) advised WCB that he had been informed by Ms. Sarson that her neck injury "has absolutely nothing to do with her inability to perform her job." At no point in her testimony did Ms. Sarson suggest that Mr. Vujicic misunderstood or misrepresented her. She now simply wishes me to draw a different conclusion from the identical evidence, because it better suits her claim against Pilot. I decline to do so.

I conclude that Ms. Sarson has not met the onus of establishing that this accident substantially disabled her from the essential tasks of her employment for any period beyond January 30, 1995. Accordingly, she is not entitled to weekly income benefits from Pilot.

Counsel raised before me the issue of the interpretation of the phrase "for any period in excess of 156 weeks" in section 12(5)(b). They agreed that I was only required to consider the various interpretations of that phrase if I found that Ms. Sarson was disabled for any period beyond January 30, 1995. Because of my finding that she was not so disabled, I have not considered that issue.

B. Entitlement to Supplementary Medical and Rehabilitation Benefits:

Ms. Sarson seeks to recover the cost of two disputed items under section 6 of the Schedule:

a) Account of Healing Link Inc., totalling $5,339.55

b) Transportation costs associated with her attendance at Healing Link, which she calculates at $1,393.76

Ms. Sarson first attended the Healing Link Clinic in the spring of 1995, upon referral by Dr. Kean. In the initial report from the clinic, dated May 31, 1995, Dr. Beattie recommended therapy for both Ms. Sarson's neck and back. In August 1995 Ms. Sarson began a 12-week rehabilitation program which included exercise, stretching and massage therapy. Although Pilot refused to pay for the therapy, Ms. Sarson completed the 12-week program and then continued with further therapy until December 1995. She underwent a second period of physiotherapy from late January 1996 until August 1996. These physiotherapy expenses, along with the transportation costs incurred by Ms. Sarson in order to attend the clinic, remain outstanding.

The relevant portions of section 6 provide:

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;

(d) transportation for the person to and from treatment... [emphasis added]

Previous case law at the Commission ¹⁷ discusses the three criteria that must be met before an insurer is liable to pay for a good or service under subparagraph 6(1). Those criteria are:

(1) it must be a reasonable expense resulting from the accident

(2) it must be acquired because of the accident

(3) a medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the insurer so requires.

Subsection 6(7) of the Schedule states that the Insurer must "pay now, dispute later" with respect to certain medical and rehabilitation benefits. These include physiotherapy and transportation expenses, which are in issue before me. However, as I received no submissions on this provision, I have not considered it in my reasons.

It is evident that the tests of eligibility under section 6 and section 12 of the Schedule are very different. There may well be occasions when an applicant is entitled to supplementary and rehabilitation benefits, even though she is not substantially disabled from performing the essential tasks of her employment and does not qualify for weekly income benefits.

In this case, Dr. Smith provided a statement to Pilot in 1995 asserting that the Healing Link treatment was necessary for Ms. Sarson's rehabilitation, which satisfies the third criterion listed above. The issue, therefore, is whether the Healing Link treatments were reasonable expenses incurred because of the accident. Pilot did not dispute the reasonableness of the cost of physiotherapy treatments which Ms. Sarson has received at Healing Link. Nor does it deny that Ms. Sarson may have sustained some injury to her neck in this accident. Rather it contends that the treatments were neither reasonable nor necessary.

Ms. Sarson testified that the massage and heat therapy she received at the clinic alleviated her neck pain and increased her function. She added that when she discontinued therapy for a brief period, her pain increased and her function declined. Drs. Kean and Smith testified that Ms. Sarson's activity and comfort levels improved while she was receiving therapy. Dr. Welsh, on the other hand, stated that the physiotherapy was merely "feel good" treatment which offered no objective benefit, and did not result in any permanent increase in Ms. Sarson's activity level. I accept that Ms. Sarson and her caregivers were entitled to explore whether physiotherapy could alleviate some of her neck symptoms. To this end, I find it was reasonable for her to undergo the initial 12-week program at Healing Link. I have difficulty, however, in accepting any further treatments as reasonable or necessary. Although Ms. Sarson testified she felt better and moved more freely while attending Healing Link, I agree with Dr. Welsh that she enjoyed temporary relief from these treatments, at most. By Ms. Sarson's own admission, she has seen little substantive or permanent improvement in her condition. She has not returned to any form of employment or expanded her daily activities since receiving the therapy. I understand that Ms. Sarson may feel better after receiving massage and heat treatments. However where, as here, those treatments do not lead to any measurable or permanent improvement in her function, I find a prolonged rehabilitation program of minimal value.

I conclude, therefore, that Ms. Sarson is entitled to recover only the cost of the first 12 weeks of physiotherapy at Healing Link. I also award her any transportation expenses associated with those 12 weeks of attendance at the Healing Link. In that regard, I agree with Ms. Sarson that she is entitled to recover mileage at the rate of 30 cents per kilometre.¹⁸

Expenses:

Ms. Sarson claims her expenses incurred in the hearing. An arbitrator has discretion under section 282(11) of the Insurance Act to award expenses:

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

Previous arbitration cases have provided guidelines for the exercise of this discretion. In McCormick,¹⁹ former Senior Arbitrator Naylor stated that it is appropriate to award an applicant her expenses unless it is found that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."

In this case Ms. Sarson's claim was only partially successful. Although Pilot is required to reimburse her for a portion of the physiotherapy and travel expenses she incurred, I have also found that Ms. Sarson was not disabled from working as a result of injuries sustained in this accident. Moreover, this latter claim occupied the vast majority of the time taken at the hearing and was highly speculative, given the significant documentary evidence that contradicted her position. I am left with the strong impression that Ms. Sarson constructed this claim against Pilot only after and because she was shut out by WCB, rather than on the basis of any sincere belief that this accident ever disabled her from her job.

Under these circumstances, I exercise my discretion to award Ms. Sarson only 50 percent of her expenses.

Order:

1. Ms. Sarson is not entitled to recover weekly income benefits for any period beyond January 30, 1995.

2. Ms. Sarson is entitled to recover the cost of physiotherapy services incurred within the first 12 weeks of her attendance at Healing Link, plus transportation expenses associated therewith.

3. Ms. Sarson is entitled to recover 50 percent of her expenses incurred in this arbitration.

December 13, 1996

Deena Baltman Arbitrator

Date

Appendix A

Witnesses:

Ms. Robin Sarson

Dr. Peter Welsh

Dr. Frank Smith

Dr. Walter Kean

List of Exhibits

Exhibit 1 Handwritten note of Applicant to Pilot requesting payment for travel and parking fees - March 14, 1996

Exhibit 2 Medical Brief: Robin Sarson

Exhibit 3 WCB Records of Robin Sarson

Exhibit 4 WCB Records (vol. 2) of Robin Sarson

Exhibit 5 Curriculum vitae of Dr. Walter Fairbairn Kean

Exhibit 6 Curriculum vitae of Dr. Frank Charles Smith

Exhibit 7 Receipt dated August 9, 1996 of Healing Link Rehab sent to Pilot Insurance

Exhibit 8 Reprint of article on "The Double Crush in Nerve-entrapment Syndromes" from The Lancet dated August 18, 1973

Exhibit 9 Reprint of article on "Double and Multiple 'Crush" Syndromes" from Nerve Compression Syndromes, Vol. 8. No.2, May 1992

Exhibit 10 Curriculum vitae of Dr. Robert Peter Welsh

Exhibit 11 Letters of Dr. Welsh to Ms. Grace Pang (Daniel Wilson/Barristers) dated August 20 and 21, 1996

Exhibit 12 Surveillance report of Palangio Investigations Ltd. Dated April 17, 1996

Exhibit 13 Video copy of surveillance dated April 1996

Exhibit 14 Report of Dr. Welsh dated October 11, 1996

Exhibit 15 Memo from Dr. L. David of WCB to claims re: Lumbosacral spine strain of Applicant

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. 2Exhibit 4, Tab A, p. 60
3. 3Exhibit 2, Tab 4A, p.18
4. 4Exhibit 2, Tab 3D, p.5
5. 5The truck was equipped with lap belts but not shoulder belts.
6. 6Exhibit 2, Tab 4A, p. 22
7. 7Exhibit 4, Tab 1A, p. 48
8. 8Exhibit 4, Tab A, p. 54
9. 9Exhibit 4, Tab A, p. 59
10. 10Exhibit 2, Tab 3D, p. 88
11. 11Exhibit 2, Tab 10A, p. 2
12. 12Exhibit 4, Tab A, p. 110
13. 13Exhibit 3, Tab C, p. 154
14. 14Exhibit 3, Tab C, p. 166
15. 15For example, Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company (December 11, 1995), OIC P-0003929 & P-005693; Worku and Co-operators General Insurance Company (August 29, 1996), OIC A-002172; Aguilar and Allstate Insurance Company of Canada (April 21, 1995), OIC A-000542 (upheld on appeal); Edwards and State Farm Mutual Automobile InsuranceCompany (July 12, 1993), OIC A-001707 (under appeal); MacNeill and Royal Insurance Company (January 10, 1994), OIC A-000057 (under appeal); Shelley P. and Royal Insurance Company (February 9, 1994 and June 22, 1995), OIC A-002235 and A-008498, P.S. and Toronto Transit Commission (May 4, 1994), OIC A-001116 (under appeal), Tiwana and Allstate Insurance Company (February 13, 1996) OIC A-950155; Furtado and York Fire & Casualty Insurance (June 22, 1995), OIC A-008927 (under appeal) and Mladenovic and Dominion of Canada General Insurance (September 11, 1995), OIC A-008849 (under appeal).
16. 16Exhibit 2, Tab 5A, p. 6
17. 17Plows and Jevco Insurance Company( January 16, 1992), OIC A-000175 and A-000588
18. 18McNutt and Metropolitan Life Insurance Company ( September 20, 1994), OIC A-006964, pp. 7-8
19. 19McCormick and Economical Mutual Insurance Company ( October 2, 1991), OIC A-000139