Neutral Citation: 1996 ONICDRG 54

File No: A-007817

ONTARIO INSURANCE COMMISSION

BETWEEN:

YVON J. LESSARD

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

The Applicant, Yvon J. Lessard, was injured in motor vehicle accidents on August 10, 1990 and June 27, 1991. He applied for and received statutory accident benefits with respect to both accidents from the Insurer, Pilot Insurance Company, payable under Ontario Regulation 672.¹ The Insurer terminated weekly income benefits on January 19, 1994. Medical and rehabilitation benefits have also ceased. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits after January 19, 1994?

2. What is the appropriate amount of any further weekly benefits to which the Applicant is entitled?

3. Is the Applicant entitled to supplementary medical and rehabilitation benefits under section 6 of the Schedule, including:

(i) ongoing appointment of Sandra Jenkins, rehabilitation caseworker;

(ii) vocational rehabilitation;

(iii) ongoing physiotherapy and psychological treatment; and

(iv) payment of travel expenses relating to treatment and rehabilitation.

4. Is the Applicant entitled to a special award, under section 282(10) of the Act?

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

Result:

1. The Applicant is not entitled to weekly income benefits after January 19, 1994.

2. Given my finding on the first issue, I make no finding as to the proper rate of benefits.

3. The Applicant is not entitled to further medical and rehabilitation benefits.

4. The Applicant is not entitled to a special award.

The Applicant is entitled to his expenses incurred in the proceeding.

Hearing:

The hearing was held in Hamilton, Ontario, on February 13, 14, 15 and 16, 1995, and June 12, 13 and 15, 1995, before me, Nancy Makepeace, Arbitrator.

Present at the hearing:

Applicant:

Yvon J. Lessard

Applicant's Representative:

William Morris Barrister and Solicitor

Allen Wynperle Articling Student

Insurer's Representative:

Grant E. Black Barrister and Solicitor

Grace Pang Barrister and Solicitor

Diane Lessard, the Applicant's wife, observed the hearing.

Witnesses:

Yvon Lessard, the Applicant

Sandra Jenkins, rehabilitation counsellor, Rehabilitation Management Inc. Dr. John Chong, physiatrist

Dr. Gilles Guindon, the Applicant's family doctor

Dr. Geoffrey Evans, thoracic surgeon

Julianna Durham, occupational therapist, Chedoke-McMaster Hospital

Cathy Palangio, private investigator, Scope Investigations

Steve McCann, Human Resources representative, John Deere

Dr. R.D. Kaplan, psychologist

Dr. Fred Langer, orthopaedic surgeon

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

Decisions referred to by the parties are listed in Appendix B.

Background:

The Applicant, Yvon Lessard, is forty-six years old. He and his wife, Diane Lessard, live in Welland, Ontario. The Applicant has been employed as a welder at the John Deere Welland Works plant since 1973. He claims that as a result of the motor vehicle accidents of August 10, 1990 and June 27, 1991, he suffers ongoing right elbow pain, right shoulder pain, neck pain, mid- and upper back pain and headaches. He also complains of psychological problems, including memory loss, poor concentration, sleep difficulties, anxiety, and depression. The Applicant's right upper extremity symptoms are his most significant ongoing problems. He contends that these symptoms are related to a right thoracic outlet syndrome, which he claims results from the accident. Alternatively, he submits that the accident seriously aggravated his pre-existing right medial epicondylitis. The Applicant contends that he is unable to return to his welding job or any other suitable job as a result of his ongoing symptoms. He has not worked since the first motor vehicle accident, but remains a John Deere employee and receives long-term disability benefits through John Deere.

The Insurer takes the position that by January 19, 1994, when it terminated benefits, the Applicant had returned to the functional level he had enjoyed before the first motor vehicle accident on August 10, 1990. At that time, the Applicant had been off work since March 26 as a result of a head injury at work. On July 30, John Deere accepted that the Applicant was ready to return to work,² but required him to take his three-week vacation first. The accident happened when the Applicant was driving home from his vacation camping trip.

Weekly income benefits:

An insured person is entitled to weekly income benefits if he is substantially unable to return to his pre-accident employment or occupation because of his accident-related injuries.³ After 156 weeks, a stricter test applies, and benefits are payable only if it is established that the insured person's accident-related injuries continuously prevent him from engaging in any employment or occupation for which he is reasonably suited by education, training or experience.⁴

Essential tasks of the Applicant's pre-accident job

There is little dispute about the essential tasks and physical demands of the Applicant's regular welding job. I make the following findings, based on documents filed⁵ and based on the testimony of the Applicant and of Steve McCann, John Deere's Human Resources

Representative. The Applicant was employed as an incentive manual arc welder. The job involved constant standing, repetitive and prolonged bending, constant forward reaching and frequent reaching over shoulder height, and constant handling of tools (welding gun and hammer), equipment and heavy forms. Significantly, the job also required:

sustained grasping of a welding gun trigger with intermittent release of trigger and/or asiding of gun sustained trigger time estimated at 3.46 hours in an 8 hour day.

Because the job was paid on an incentive basis, a steady pace was required. The Applicant earned $20.926 an hour on regular duty. At the hearing, Mr. McCann explained that this was the incentive rate for welders, and was set at 130% of the occupational rate of $14.935 an hour. The Applicant received the lower rate while on light duty as a temporary transition to returning to his regular job.⁶

The parties agreed that the Applicant worked 28 weeks in the 52 weeks before the accident. He was on light duty for about eight weeks during this period. He did not return to work at all after March 26, 1990.

According to Mr. McCann, the temporary light duty work that would have been offered to the Applicant during these periods (i.e. for periods of up to 60 days) might include sharpening pencils or shredding paper. The Applicant testified that he was simply asked to sit at a desk or in the lunchroom, for the first week or so after the March 5 accident; however, "bigger and bigger jobs" were then assigned. I heard little detail about the Applicant's tasks while on light duty.

Section 12 provides weekly income benefits where an insured person is disabled from performing the essential tasks of his occupation or employment "before the accident."

Where the insured person was on light duty work at the time of the accident, the question arises whether the "job referent" is the insured person's regular job - in this case, that of an incentive manual arc welder - or his light duty job.

A similar situation arose in the case of Leon Albert Bailey.⁷ Mr. Bailey was a letter carrier. However, for about 6 and 1/2 months before his motor vehicle accident, he was working part-time on light duty. At the time of the accident, he had been cleared to increase his hours to full-time over two months, but with ongoing restrictions. Arbitrator Janice Mackintosh held that Mr. Bailey's essential tasks were those of his part-time modified job, not his regular job.

In this case, the Insurer did not ask me to find that the Applicant's essential tasks were those of his light duty assignment. Unlike Mr. Bailey, the Applicant was cleared by his family doctor and the plant doctor to return to his regular duties on a full-time basis at the time of the accident. However, I find that in ascertaining the Applicant's pre-accident functional level, I must consider the fact that he had worked as a welder for only about the first five months of the previous year, and had been unable to work at all for about four and a half months before the accident.

The August 10, 1990 Accident

On August 10, 1990, the Applicant was driving, without wearing a seat-belt, when his car was struck by an oncoming vehicle turning left. The Applicant's car spun around and rolled. It was demolished. The Applicant claims that his head struck the roof of the car, and he was then pushed down into the seat. He says he kept his arms rigidly extended on the steering wheel throughout. According to the Applicant, his wife was thrown from the car, and spent several days in hospital. The Applicant was taken to Welland County General Hospital. X-rays of his chest, cervical spine, dorsal spine, and right shoulder were negative.

The Applicant saw Dr. Guindon on August 14, 1990⁸ complaining of neck pain, upper back and interscapular pain, sore ribs on the right side, and pain in the left knee and right elbow. Dr. Guindon diagnosed cervical-dorsal strain and a contusion and strain of the right elbow (medial aspect) and left knee. The Applicant was initially treated with physiotherapy (twice a week) and anti-inflammatory medication. The Applicant also took Tylenol 3 for a short time. By August 24, Dr. Guindon noted that the Applicant's right ribs and left knee were "OK," but he still complained of right elbow pain, and his neck and upper back pain now extended to the lower interscapular area. Dr. Guindon found that neck movement was about 80% of normal.

By October 9, 1990, Dr. Guindon identified the right elbow as the main problem. The Applicant's neck and upper back were improving, and continued to improve over the following months. On January 14, 1991, Dr. Guindon noted that the Applicant's neck and back were "OK."

In November, Dr. Guindon referred the Applicant to Dr. P.F. Robert, an orthopaedic surgeon. On examining the Applicant's right elbow, Dr. Robert⁹ found full range of motion and no sign of ulnar neuropathy, but the Applicant complained of tenderness over the medial epicondyle. Dr. Robert felt that the accident had aggravated the Applicant's pre-existing medial epicondylitis.¹⁰ Dr. Robert gave him a cortisone injection, and recommended that the Applicant consider surgical release, if conservative management did not work.

Dr. Robert examined the Applicant again on February 25, 1991,¹¹ and made the same findings he had made in November. Right elbow x-rays were negative. In his consultation note to Dr. Guindon, Dr. Robert stated, "I am unable to explain [the Applicant's] chronic pain and have suggested that he return to work. He stated that he is unable to and therefore I really do not have much more to offer him." There was no further discussion of surgery.

On March 1, 1991, the Applicant was examined by Dr. Aleksiejuk, the John Deere plant doctor, who opined that he was ready to return to his pre-accident duties. Steve McCann, Human Resources Representative at John Deere, advised the Applicant to return to his regular duties on March 25, 1991, on the basis of the reports of Drs. Robert and Aleksiejuk. Mr. McCann also requested a report from Dr. Guindon.¹²Dr. Guindon did not agree that the Applicant was ready to return to work.¹³ He told John Deere¹⁴ that returning to welding would probably aggravate the Applicant's elbow symptoms; however, the Applicant could do modified work not involving repetitive or excessive use of the right arm. Dr. Guindon recommended that the Applicant continue with physiotherapy, and referred him to Dr. Christopher M. Offierski, another orthopaedic surgeon, for a second opinion as to his work-readiness. John Deere accepted Dr. Guindon's report.

Dr. Offierski examined the Applicant on May 7, 1991.¹⁵ He agreed with the diagnosis of chronic right medial epicondylitis. In his reports, provided to both Dr. Guindon and John Deere, he opined that the Applicant had "recovered to the point where he was prior to the accident." He felt that the Applicant could try to return to his regular work, although he would probably continue to have right elbow problems, given "his past history of lost work time because of repeated strain to the elbow." He recommended that the Applicant return to modified work (no lifting over 10 pounds, no repetitive lifting or gripping with the right arm) for 4-6 weeks, then return to his regular duties.

The June 27, 1991 Accident

On June 27, 1991, the Applicant's car was rear-ended. After some time, he and his wife continued on their way to a baseball game. According to the Applicant, there was about $3,000 damage to his car, which was considered a write-off by the Insurer.

The Applicant experienced increased pain in his neck, shoulders, and upper back immediately after the accident and for months afterwards. He also continued to complain about right elbow pain. By December 1991, Dr. Guindon noted that the painful right elbow was the Applicant's main problem, although he continued to complain about upper dorsal and lower cervical soreness. In February 1992, the Applicant told Dr. Offierski that his disability was 50 percent because of his right elbow and 50 percent because of his neck and upper back.¹⁶

There has been little subsequent change in the Applicant's reported symptoms. He continues to see Dr. Guindon, his family doctor. He has also seen a number of specialists about his ongoing symptoms, and undergone a number of tests, which have been inconclusive. He has been treated with analgesic and anti-inflammatory medications, corticosteroid injections, TENS, physiotherapy, acupuncture, shiatsu massage, occupational therapy, psycho-vocational counselling, and marital counselling.

Analysis

The Insurer terminated benefits on January 19, 1994 and does not seek repayment of benefits paid to the date of termination. Therefore, the only issue with respect to weekly income benefits is whether the Applicant returned to his pre-accident functional status by January 19, 1994.

The experts who have examined the Applicant disagree as to whether his accident-related right arm, shoulder, neck and back symptoms prevent him from returning to work as a welder. In April 1993, Julianna Durham, an occupational therapist at the Chedoke-McMaster Hospital Vocational Assessment Unit, conducted a two-week assessment of the Applicant, and concluded¹⁷ that his "physical limitations currently prevent him from functioning productively in a competitive work-situation requiring daily attendance." Ms. Durham found that the Applicant could not sit, stand or perform upper extremity activities (e.g. keyboarding or machine operation) for more than 15 minutes without a rest or a change. She also found that his overall work endurance was four hours, in addition to two hours commuting time. Dr. Guindon, the Applicant's family doctor, also accepted that the Applicant could not return to his pre-accident job as a welder,¹⁸ as did Drs. Woo and Chong.¹⁹

However, as early as May 7, 1991,²⁰ just before the second accident, Dr. Offierski advised the Applicant to try returning to his regular job after a period of 4-6 weeks of modified work (no lifting over 10 pounds). Dr. Offierski saw the Applicant again, this time at the Insurer's request, on February 7, 1992.²¹ His opinion was now that the Applicant "probably will require a permanent modified or a different line of work." As well as commenting on the elbow, Dr. Offierski accepted that the Applicant "probably does experience mild to moderate discomfort in both the neck and the upper back. This would cause him some discomfort in a job that would require him to bend over repetitively or lift." Dr. Offierski felt that the Applicant's neck and shoulder pain had settled down to the level they were at before the second accident. He believed that while the Applicant's pre-accident job would be stressful for him, he could do modified work, after a period of work-hardening.

The Applicant was examined by Dr. P. Ansari, orthopaedic surgeon, on referral from Dr. Guindon, on January 21, 1992.²² Dr. Ansari found little on examination other than sensitivity over the ulnar nerve behind the medial epicondyle, and sensitivity in the right shoulder and in the right paracervical muscles. He noted that cervical spine x-rays were normal, and ordered an EMG, nerve conduction studies, and a bone scan, all of which were negative. He advised the Applicant to try to return to work. Dr. Ansari's findings on April 20, 1992 were unchanged from his earlier findings.²³

In June 1992,²⁴ Dr. Robert examined the Applicant at the Insurer's request. He did not accept that the Applicant suffers from medial epicondylitis, considering the negative test results and considering his finding that the Applicant displayed some non-anatomical symptoms, as well as an exaggerated response to palpation of the medial epicondyle.

The Applicant claims that his right elbow symptoms are related to thoracic outlet syndrome ("TOS"). I heard a great deal of expert evidence as to whether the Applicant suffers from this condition, which was diagnosed by Dr. John Chong, Director of the Centre for Human Performance and Health Promotion, at Chedoke-McMaster Hospitals, and by Dr. J. Woo,²⁵ an anaesthetist at that clinic.

Dr. Chong examined the Applicant in February 1993, and diagnosed²⁶ "quite a severe right thoracic outlet impingement both proximally and distally." At the hearing, Dr. Chong explained that TOS results when the narrow triangle of the thoracic outlet (formed by the anterior and posterior scalene muscles and the first rib), is narrowed further by tightened scalene muscles (proximally) or scapular muscles (distally). As a result, the first rib impinges on the brachial plexus nerve, one branch of which is the ulnar nerve. Neurological symptoms include reduced power and fine motor control in the arm when raised above shoulder-level, and numbness in the distribution of the ulnar nerve. There may also be vascular symptoms if the subclavian artery is affected. TOS may be caused by trauma, including soft tissue injury to these muscles, repetitive strain (e.g. prolonged sitting in a slouched position), or stress. Dr. Chong diagnosed TOS on the basis of the Applicant's clinical symptoms. In his opinion, negative EMG and MRI results do not rule out the condition, but only indicate that there is no major structural damage.

Dr. Chong recommended that the Applicant consider thoracic decompression surgery and an intensive 3-6 months exercise program. He stated that while he prefers to treat TOS conservatively, the Applicant is unlikely to have full resolution with exercise alone, while surgery is helpful in 70-80% of cases. Even with treatment, Dr. Chong felt that the Applicant was unlikely to return to work as a welder, which requires application of moderately high force with the right arm and sustained static postures in awkward positions. He recommended vocational retraining, occupational therapy, and ongoing participation in movement therapy. Dr. Chong sent the Applicant to Dr. Geoffrey Evans, a thoracic surgeon, and Dr. Kassem Ashe, a vascular surgeon, both of whom concurred with Dr. Chong's diagnosis of TOS.²⁷

The Insurer does not accept the diagnosis of TOS. It relies on the reports of Dr. F. Langer, an orthopaedic surgeon, who reviewed the Applicant's medical records and examined the Applicant on July 15, 1993 at the Insurer's request.²⁸ Dr. Langer testified at the hearing. On examination, Dr. Langer found that the Applicant had full power, normal muscle bulk, and full range of movement in the right shoulder. Cervical and dorsal range of motion were normal. There were no neurological abnormalities of the right upper extremity. He found that the provoking tests for TOS were negative. His only positive findings were "slight discomfort" on movement of the right shoulder, tenderness in the posterior triangle over the brachial plexus, and inconsistent tenderness over the medial epicondyle. Dr. Langer stated that while transient TOS is very common (for example, if a person sleeps on an abducted arm), permanent TOS is "a rare condition," which generally results immediately after significant direct trauma to the clavicle or rib cage.

Dr. Langer also did not accept that the Applicant remained disabled by medial epicondylitis, given what he found to be inconsistent tenderness over the medial epicondyle, and considering Dr. Chu's negative EMG of the right arm. Dr. Langer opined that the Applicant's interscapular pain was "the major site of his trouble now." Dr. Langer took the view that the Applicant was able to return to his pre-accident work.

Drs. Woo and Chong first diagnosed TOS two years after the first accident. Dr. Langer did not accept that TOS could develop so long after uncomplicated soft tissue injuries. Before seeing Drs. Woo and Chong, the Applicant had been examined by three orthopaedic surgeons, Drs. Robert, Ansari and Offierski, none of whom diagnosed TOS. I am not persuaded that the Applicant suffers from thoracic outlet syndrome, especially considering the time elapsed between the accident and the first TOS diagnosis. I do not rely on the fact that the Applicant showed no vascular symptoms or that Dr. Quartly's EMG investigations were inconclusive. However, in the absence of objective evidence of TOS, the diagnosis depends upon the Applicant's reporting of his symptoms. While Drs. Woo and Chong found that he displayed the clinical signs of TOS, Drs. Langer and Robert²⁹ found that the Applicant's response to the provoking tests was negative. Finally, I have the impression that Drs. Woo and Chong gave insufficient consideration to the Applicant's significant pre-accident history of right elbow problems and interscapular pain in reaching their diagnosis.

The Applicant's entitlement to ongoing benefits does not depend on establishing TOS or any other particular diagnosis for his problems. Nor is the Applicant required to show that the accident was the only cause of his problems. Arbitrators have consistently held that the test for entitlement is whether the accident is a "significant" or "material" contributing factor in an applicant's ongoing disability. An applicant is entitled to benefits if the accident significantly aggravated a pre-existing condition. The applicant bears the onus of proving the causal connection on a balance of probabilities.

In May 1991, just before the second accident, Dr. Offierski expected that the Applicant would continue to have right elbow problems, "[gjiven his past history of lost work time because of repeated strain to the elbow." He concluded that the August 10, 1990 accident had not significantly aggravated the Applicant's pre-existing condition. When he saw the Applicant in February 1992 at the Insurer's request, Dr. Offierski opined that the accidents had aggravated the Applicant's right chronic medial epicondylitis, but "had not seriously contributed to any further pain or disability that he has." He felt that the elbow disability resulted from workplace strain. This view was shared by Dr. Robert and Dr. Langer.

Although Dr. Chong and Dr. Evans felt the Applicant suffered from thoracic outlet syndrome, rather than medial epicondylitis, they admitted at the hearing that TOS can also result from repetitive strain on the job. I find that the Applicant's right shoulder and arm symptoms are more likely to be work-related than accident-related, considering the Applicant's significant pre-accident history of head injury, neck, shoulder, upper back, and right elbow problems, documented in his John Deere file, his Workers' Compensation Board file, and his medical records.

Dr. Langer opined that the Applicant's post-accident interscapular pain could not be attributed to the motor vehicle accidents, based on the Applicant's history of work-related interscapular pain. Dr. Langer also considered it significant that the Applicant's complaints of increased neck and shoulder pain resolved within months of the second accident. The Applicant did not complain about interscapular pain to Dr. Robert or Dr. Offierski. In his final report, Dr. Langer stated:

The likelihood is that Mr. Lessard had a chronic problem of intermittent pain in the spine and would have remained symptomatic even had the accidents not occurred.

I agree. The Applicant complained of thoracic and lumbar spine pain at work on June 13, 1986.³⁰ He reportedly told the CBI in May 1990, that he had had thoracic pain since 1978.³¹

The Applicant developed right medial epicondylitis ("golfer's elbow") in 1989, about two years before the first motor vehicle accident. His first recorded complaint about this problem is found in John Deere's WCB accident report of May 12, 1989, which states that the Applicant reported pain from the right elbow to the shoulder, resulting from hammering at work.³² The plant doctor diagnosed right medial epicondylitis with ulnar neuropathy.³³ The Applicant performed light duty work (filing and driving) until August 1989, when he returned to his regular duties. In his June 29, 1989 report to John Deere,³⁴ orthopaedic surgeon, Dr. Robert, stated that the Applicant's right elbow pain had not completely resolved with modified work, and he was still tender over the medial epicondyle. However, Dr. Robert found full range of motion, no sign of ulnar nerve pathology, and no effusion; x-rays were normal. He gave the Applicant a corticosteroid injection, which helped for a while, but the symptoms returned.³⁵

On November 15, 1989,³⁶ John Deere's company doctor diagnosed a minor compression injury to the right elbow, with traumatic neuropathy of the ulnar nerve. The Applicant reported that he was injured when his wife slept on his arm. Dr. Guindon found right elbow tendonitis and edema on November 20, 1989, and prescribed Naprosyn. The Applicant returned to work on December 4, 1989.

The Applicant's right elbow symptoms flared up again at work on January 12, 1990.³⁷Once again, he was placed on light work, until February 19, 1990. He saw Dr. Robert again on January 17,³⁸ and saw a chiropractor, Dr. Craig D. Zavitz, three times a week. By March 5, 1990, Dr. Zavitz found the Applicant "moderately improved," but not yet ready to return to work, and still in need of another 4-8 weeks of treatment.

However, the Applicant had returned to his regular duties by March 5, 1990, when he sustained a head injury at work.³⁹ The Applicant was using a crane to lift a sheet of steel weighing about 200 pounds from a "tiering rack" to a jig, when the sheet fell on the right side of his head. He was taken to Welland County General Hospital. He sustained a deep one-inch-long laceration to his skull, and complained of neck pain. Skull x-rays were negative, but x-rays of the Applicant's cervical spine suggested muscle spasm. Dr. Guindon saw the Applicant on March 12, 1990, and diagnosed skull laceration, cervical strain, and post-concussion syndrome. The Applicant complained of hearing loss, confusion, dizziness, and neck pain.

The Applicant continued to see Dr. Zouaves for chiropractic treatment. On March 20, Dr. Zouaves reported that the Applicant was complaining about shoulder and low back pain as well as his previous complaints. The John Deere file indicates that the Applicant returned to light duty work until March 26, when he decided to stay home on Dr. Guindon's advice, because of continuing pain and headaches.

The Applicant continued to complain of frequent headaches and neck and upper back pain in his April 9, 1990 report to the WCB. At the end of April, he discontinued chiropractic treatment and began a six-week program at the Canadian Back Institute ("CBI"). He complained to the CBI about constant interscapular and neck pain, made worse with prolonged bending or sitting. The CBI physiotherapist, Karen Tausendfreund, opined that the Applicant suffered from mechanical cervical pain, most of which resulted from stiffness. By May 30, the Applicant reported to the WCB that his headaches were "not as frequent or as severe." The CBI's discharge report, dated June 6, 1990, indicated that the Applicant had improved, and no longer suffered from headaches or neck and shoulder pain, but continued to have "constant interscapular pain." The CBI reported that the Applicant needed further work-hardening before returning to his regular job.

There was no mention of headaches in the Applicant's June 21 report to the WCB, but he reported that his neck and upper back were still sore. Dr. Guindon's July 24, 1990 WCB report states: "completed physio," and "residual tenderness right upper dorsal area but improving." He certified the Applicant able to return to his usual job on July 30 without restrictions. However, Dr. Guindon's clinical note for the June 24 visit is more qualified: it says, "ready for trial of rtw [return to work] on July 30/90." The Applicant reported to the WCB that Dr. Guindon had suggested that he "try" to return to work. At the hearing, Dr. Guindon stated that while he was not sure, he expected the Applicant to be able to perform his regular duties.

Recreational activities

The Applicant relied on the fact that John Deere accepted that he was ready to return to his regular duties on July 30, although they required him to take his annual three week vacation before returning to work, in accordance with their usual policy. The Applicant testified that he was confident he would be able to return to his regular duties after his vacation because he had just returned from a strenuous 10-day canoe trip in Algonquin Park with his wife and another couple. The Applicant described the trip in detail, and filed photographs,⁴⁰ as well as a map of the park, with the route marked.⁴¹ I accept that this trip involved a number of lengthy portages, each of which would require the party to carry the two canoes and their four heavy packs. The Applicant testified that his pack weighed about 65 pounds, and this was also the approximate weight of the canoes. The trip also involved hours of lake tripping, as well as some white-water paddling. The access point was in a remote corner of the park.

However, on cross-examination, the Applicant admitted that he also camped in Algonquin for five or six days in the summer of 1992 with his wife and another couple. He and his wife also camped in the summers of 1993 and 1994 with their two teen-aged sons. I accept the Applicant's testimony that these camping trips were shorter (four days) and were in a less remote part of the park. The Applicant also testified that these trips were less strenuous than the pre-accident trip. The party changed campsites only once during each trip. The Applicant claims that the boys cut the wood and portaged the two canoes, and that he spent his time around the campsite fishing and cooking. He also testified that he uses an inflatable air mattress since the accident. However, he admitted that he carried his pack, which weighed 20-25 pounds and contained his clothes, sleeping bag, and a tent. He also admitted that each of the camping trips after the accident involved some hiking and lake tripping. I heard no evidence suggesting that the Applicant was unable to paddle with either arm, and I accept Dr. Guindon's testimony that paddling involves "extensive" use of the shoulder and arm." I also find it significant that the Applicant's post-accident camping vacations involved drives of several hours each way. I find that the Applicant's ability to enjoy canoe camping every summer since the accident indicates that he has a significant level of functional ability.

This finding is reinforced by the Applicant's testimony that he has also taken several other car trips since the accident. In September, 1993, he spent a weekend at his father-in-law's cottage, about three hours from Welland. That winter, he and his wife drove to Florida for a week; they shared the driving. The Applicant also attended a weekend family reunion in Cochrane in July 1994, sharing the 9-hour drive with three others.

Surveillance evidence

Cathy Palangio, a private investigator, observed and videotaped the Applicant, on behalf of the Insurer, on four occasions between September 1 and September 7, 1993. A videotape was entered into evidence,⁴² and Ms. Palangio testified at the hearing. In cross-examination, the Applicant admitted that he is the person depicted throughout the tape. The first part of the tape lasts about half a minute, and shows the Applicant leaving a Canadian Tire store and entering his car on September 1. Ms. Palangio testified that she observed the Applicant for about half an hour that day, but was unable to tape him while he drove to the store. The second segment, taken on September 3, shows the Applicant working under the hood of his car for ten minutes or so, and periodically going in and out of the house. The Applicant testified that he was probably working on the car's power steering in preparation for the trip to his father-in-law's cottage. A little later on, he is seen loading fishing rods and other things into the trunk. The longest segment of the tape, taken on September 7, runs about sixteen minutes and shows the Applicant sitting on his front steps and porch with his wife.

The videotape is brief - not quite half an hour in total - and does not reflect the hours when Ms. Palangio attended at the Applicant's home without seeing him. However, the videotape shows the Applicant walking with both arms swinging naturally, sitting in what appears to be a relaxed slouched posture, and moving his head from side to side, all with apparently full range of movement and no sign of discomfort or hesitation. Most significantly, he is seen moving a hanging plant from one location to another, which requires him to work with both arms directly overhead. And he worked under the hood of his car for several minutes, requiring him to work with his arms reaching forward, while in a prolonged bending posture. Despite the brevity of the surveillance evidence, it persuades me that the Applicant has a reasonable level of function in his daily activities, and that his symptoms do not prevent him altogether from working with his right arm or bending forward.

In the absence of persuasive objective evidence of ongoing disability, evidence of the Applicant's credibility and motivation to return to work becomes important. I found the Applicant to be a credible witness in general. I believe that he is frustrated and unhappy about his injuries and disability. However, I find it significant that the Applicant is entitled to receive long-term disability benefits from John Deere for twelve years. John Deere has stated that it is willing to accommodate the Applicant, but Mr. McCann confirmed in his testimony at the hearing what he had advised the Insurer's rehabilitation consultant: that no positions suitable for the Applicant's disability were available to the Applicant, given his seniority status.⁴³ Light welding work is not available, and there are few bench work positions in welding. The Applicant does not have the seniority for non-welding positions. John Deere would be willing to accommodate the Applicant with a gradual return-to-work program, but the Applicant is concerned that he might be bumped or laid off during that period of time, losing both his job and his benefits. He is also concerned that finding a job with another employer might jeopardize his disability benefits through John Deere. The Applicant reiterated these concerns at the hearing. In the current economic climate, these are legitimate concerns on the Applicant's part. However, the Insurer is not responsible for the Applicant's work-related disability.

Considering the time elapsed since the motor vehicle accidents, the Applicant's significant pre-accident history of head injury and neck, shoulder, back and right arm problems, the Applicant's testimony about his camping trips after the accident, the surveillance evidence, and the more stringent eligibility test under section 12(5), I am not satisfied that the motor vehicle accidents of August 10, 1990 and June 27, 1991 contributed significantly to any disability the Applicant continues to suffer after January 19, 1994.

Cognitive and Emotional Problems:

As well as his musculoskeletal complaints, the Applicant also claims that he suffers from cognitive problems, including memory deficits and poor concentration, as a result of the motor vehicle accidents. He also complains of anxiety, depression, mood swings, sleep difficulties and marital problems. These complaints are recorded in the notes and reports of Dr. Guindon after October 1991. The Applicant also discussed them at that time with Maria Christenson, an occupational therapist with Rehabilitation Management Inc.

In April 1992,⁴⁴ Dr. Guindon referred the Applicant to Dr. Ronald Kaplan, a clinical psychologist and neuropsychologist. Dr. Kaplan felt that the Applicant displayed cognitive deficits and emotional problems. He recommended a vocational assessment, and referred the Applicant to Shaun Baylis, a social worker, for individual psychotherapy. He also recommended that the Applicant and his wife continue with their marital therapy. He felt that Sandra Jenkins' ongoing rehabilitation co-ordination services were needed as a result of the accidents. The Applicant saw Dr. Kaplan periodically for follow-up. In February 1994,⁴⁵ at the Applicant's request, Dr. Kaplan agreed to provide vocational/psychological counselling.

I am not persuaded that the Applicant suffers disabling cognitive deficits after January 19, 1994. Even on first assessing the Applicant in the spring of 1992, Dr. Kaplan did not expect that the cognitive deficits he found would prevent the Applicant from returning to his job as a welder, although they might make retraining slower and more difficult. Julianna Durham found no evidence of cognitive deficits when she conducted a two-week vocational assessment of the Applicant in April 1993. In February 1995, the Applicant told Dr. Kaplan that "his capacity for sustained reading has been improving over the last few years" and that "his capacity for sustained reading has been improving over the last few years "and that [h]e is more able to study and learn than he has been since his series of motor vehicle and work-related accidents which produced brain injuries." With regard to the Applicant's emotional difficulties, by June 1993⁴⁶ the Applicant told Dr. Kaplan that he had had a "significant attitude change" in the last few months because of his vocational retraining research. Dr. Kaplan also felt that Dr. Chong's movement classes were helping the Applicant. In November 1993,⁴⁷ Dr. Kaplan reported that the Applicant "described further improvements in his psychological well-being," including improvements in his sleep, mood, and marital relationship. The Applicant was not, at that time, on any pain, sleep or anti-depressant medication. Dr. Kaplan focussed on vocational counselling in his subsequent reports, and there is little detail about emotional issues through 1994. In February 1995, Dr. Kaplan stated that the Applicant was "possibly slightly less depressed," although he continued to be emotionally volatile, and to have sleep and marital difficulties. Dr. Kaplan attributed the improvements to the Applicant's retraining activities.

The Applicant was examined by Dr. A.I. Margulies, psychiatrist, on November 17, 1993⁴⁸ at the Insurer's request. Dr. Margulies opined that as a result of the first accident, the Applicant suffered a mild chronic depression which was exacerbated by the second accident. However, he felt that the Applicant's emotional problems had "substantially resolved" by the time of the examination. Dr. Margulies reported that "within the limits of this psychiatric examination, [the Applicant] appeared to demonstrate intact memory and unimpaired cognitive functioning."

In any event, I am not satisfied that the motor vehicle accidents significantly contributed to any cognitive or emotional problems from which the Applicant continues to suffer. I received no hospital records relating to the August 1990 accident, but the Applicant testified (and reported to Dr. Guindon) that he was released after a couple of hours, the x-rays being negative. I heard no evidence that any concussion or head injury investigations were done. Indeed, the Applicant appears not to have told anyone that he struck his head on the car until he met with Ms. Christenson in October 1991. Dr. Kaplan first referred to the Applicant's car striking a utility pole in his February 6, 1995 consultation note (after treating the Applicant for about 18 months.) Dr. Margulies included this detail in his accident history in December 1993. I could find no earlier reference to the car's striking a pole. The Applicant's first complaints about headaches, cognitive problems, and emotional problems, were also recorded in October 1991,⁴⁹about two months after the second, less serious accident, and 14 months after the first accident. Dr. Kaplan could not attribute the cognitive deficits to any one of the three head injuries the Applicant had sustained (July 1978, March 1990, August 1990) and felt that a reasonable hypothesis was that the first motor vehicle accident injured an already vulnerable brain. In cross-examination at the hearing, Dr. Kaplan agreed that symptoms of the kind the Applicant reports could also result from stress, depression or pain, as well as from a brain injury.

The Applicant testified that his cognitive difficulties resulting from the March 1990 head injury had resolved by the time of the August 1990 motor vehicle accident. However, no neuropsychological testing was done following the July 1978 and March 1990 head injuries. Both incidents were serious enough to require several months absence from work. Considering the relative seriousness of the incidents, I am not satisfied that the motor vehicle accidents significantly contributed to any cognitive problems the Applicant continues to suffer after January 19, 1994.

Benefit Rate:

The Applicant received weekly income benefits of $386.42 between August 17, 1990 and January 19, 1994. The parties agreed that the Applicant worked 28 of the 52 weeks before the first accident. The Applicant's gross income from employment during this period was $22,498. The Insurer fixed the benefit rate by averaging the Applicant's pre-accident income over the number of weeks he actually worked, in accordance with the Scavuzzo decision.⁵⁰ The Insurer took the position in this proceeding that the Applicant's pre-accident income should have been averaged over 52 weeks, rather than 28, following the Vo decision.⁵¹ The Insurer submitted that the Applicant's "income," as defined in section 12(7), does not include the Workers' Compensation benefits and disability benefits he received in the year before the accident.

Given my finding that no further weekly benefits are payable after January 19, 1994, and given that the Insurer did not seek repayment of benefits overpaid, there is no need for me to decide this issue. In any event, even if the Insurer established that benefits had been overpaid, I would not have ordered the Applicant to repay them because I heard no evidence suggesting that the Applicant was responsible for any overpayment.

Initially, the Insurer took the further position that the Applicant is entitled to higher disability benefits than the $1,250 he now receives monthly. However, this issue was resolved during the course of the hearing, and the parties agreed that the appropriate deduction was made under section 12(4)(b)(i).

Medical and Rehabilitation Benefits:

In March 1992, on receiving Dr. Offierski's report, the Insurer instructed RMI's Sandra Jenkins to put the Applicant's rehabilitation program on hold pending the Insurer's decision with regard to further rehabilitation funding. Ms. Jenkins's services were reinstated in December 1992. Benefits were again put on hold in August 1993, pending Dr. Langer's report. The Insurer terminated Ms. Jenkins' services in January 1994. The Applicant claims that he requires ongoing rehabilitation case management services as a result of the motor vehicle accidents.

The Applicant also claims reimbursement for the services of Dr. Kaplan, psychologist and neuropsychologist, and Jack Leon, a psychological vocational/educational counsellor at Dr. Kaplan's clinic, after March 1994.⁵² The Applicant also seeks reinstatement of the services of Dr. Chong and his clinic, and travel expenses relating to medical and rehabilitation attendances.⁵³

Given my finding that the Applicant's ongoing difficulties are work-related, and are not significantly related to the motor vehicle accidents, I do not accept that he is entitled to further medical and rehabilitation benefits under section 6 of the Schedule.

Special Award:

The Applicant claims a special award under section 282(10) of the Act, which provides as follows:

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 percent 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.

[emphasis added]

For the reasons given above, I find that the Insurer acted reasonably in terminating the Applicant's weekly income benefits on January 19, 1994.

I have some concern with the Insurer's decision to terminate treatment by Dr. Kaplan and Dr. Chong. Section 6(7) of the Schedule requires insurers to pay certain expenses, including fees for medical, psychological and physiotherapy services, pending resolution of any dispute about them. In this case, the Insurer paid Dr. Kaplan's outstanding account (without prejudice) only on the last day of the hearing. Dr. Chong terminated treatment after the Insurer refused to pay, and the Insurer has not reinstated benefits. As has been said in several arbitration decisions, section 6(7) reflects the importance of rehabilitation in the statutory accident benefits scheme, and it is intended to ensure that disputes about benefits do not inhibit the Applicant's early rehabilitation.

However, I find that no further medical and rehabilitation benefits are payable because I am not satisfied that the Applicant's ongoing problems result from the motor vehicle accidents. Accordingly, the issue of a special award does not arise. Therefore, I do not find it necessary to determine whether section 6(7) applies to the services of Jack Leon, described by Dr. Kaplan as a psychological vocational/educational consultant in his clinic.

Expenses:

Although the Applicant did not succeed in this matter, there was no suggestion that the application was frivolous, vexatious, or an abuse of process. I find that the Applicant presented a bona fide claim that had some merit. In accordance with previous arbitration decisions, I find that the Applicant is entitled to be reimbursed for his arbitration expenses incurred, to the limits set out in the Regulation.

Order:

1. The application is dismissed.

2. The Insurer will reimburse the Applicant for his expenses incurred in the arbitration, in accordance with Regulation 664.

April 19, 1996

Nancy Makepeace Arbitrator

Date

APPENDIX A

List of Exhibits

Exhibit 1

Joint medical brief, volume 1

Exhibit 2

Joint medical brief, volume 2

Exhibit 3

Workers' Compensation Board file

Exhibit 4

Dr. P.F. Robert's clinical notes and records and curriculum vitae

Exhibits 5

-11 Photographs of Applicant's 1990 camping trip

Exhibit 12

Map of Canoe Routes of Algonquin Park, with route of 1990 trip marked

Exhibit 13

Application for Accident Benefits, travel allowance

Exhibit 14

Report of Sandra Jenkins, February 9, 1995

Exhibit 15

Letter from Gail E. McCombs (John Deere) to Grant Black, February 10, 1995, and "Benefit Plans" booklet from John Deere

Exhibit 16

Curriculum vitae of Ms. Jenkins

Exhibit 17

Report of Dr. Guindon for Chedoke-McMaster Vocational Assessment Unit, December 21, 1992

Exhibit 18

Pre-Admission Information Sheet completed by Ms. Jenkins for Chedoke-McMaster Vocational Assessment Unit, January 19, 1993

Exhibit 19

Surveillance videotape

Exhibit 20

Ms. Jenkins' letter to Joan McCarthy (Pilot), November 25, 1993

Exhibit 21

Photographs of Applicant's 1993 vacation in Florida

Exhibit 22

Photographs of Applicant's 1993 camping trip

Exhibit 23

Curriculum vitae of Dr. J.P. Chong

Exhibit 24

Curriculum vitae of Dr. Guindon

Exhibit 25

Curriculum vitae of Dr. G. Evans

Exhibit 26

Curriculum vitae of Julianna M. Durham

Exhibit 27

Curriculum vitae of Dr. R.D. Kaplan

Exhibit 28

Ms. McCarthy's March 11, 1994 letter to Dr. Kaplan

Exhibit 29

Ms. McCarthy's April 15, 1994 letter to Dr. Kaplan

Exhibit 30

Dr. Kaplan's invoice, January 20, 1995

Exhibit 31

Dr. Kaplan's invoice, May 11, 1994

Exhibit 32

Dr. F. Langer's updated curriculum vitae

Exhibit 33

Health Disciplines Board decision concerning Dr. Langer

Exhibit 34

Excerpt from Personal Injury: A Medico-Legal Guide to the Spine and Limbs, D.J.Ogilvie-Harris & G.J. Lloyd

Exhibit 35

Ms. McCarthy's letter of instruction to Dr. Langer, June 25, 1993

Exhibit 36

Curriculum vitae for Dr. P. Ansari and Dr. CM. Offierski

Exhibit 37

Employee earnings report from John Deere

Exhibit 38

Journal events record from John Deere

Exhibit 39

Dr. Kaplan's updated account

Other documents before the Arbitrator:

Report of Mediator

Application for Appointment of an Arbitrator

Response by Insurer

Pre-hearing letter

Appendix B

Authorities referred to by the parties:

Lucy Beiler and Alpina Insurance Company, Limited, February 22, 1994, OIC File No.A-003051

Campbell v. Canada Life Assurance Company, May 4, 1990, Manitoba Court of Appeal, Huband, Twaddle, and Helper J.A.

Pedro Correal and Jevco Insurance Company, May 6, 1993, OIC File No. A-001994

Edgar Cowie and the Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159

Larry Erickson and The Guarantee Company of North America, June 2, 1992, OIC File No. A-000560

Douglas P. Gibson and York Fire & Casualty Insurance Company, January 4, 1995, OIC File No. A-006150

Peter Jolin and Jevco Insurance Company, October 27, 1993, OIC File No. A-002187

Rene Lafleur and Zurich Insurance Company, May 11, 1995, OIC File No. A-004141

Gail MacNeill and Royal Insurance Company of Canada, January 10, 1994, OIC File No.A-000057

G. Brett Marry and Sun Alliance Insurance Company, March 7, 1995, OIC File No.A-006752

Balwinder Singh and Simcoe Erie Group, February 2, 1994, OIC File No. P-000532

Surbar Singh Gaba and Allstate Insurance Company, August 21, 1992, OIC File No.A-000624

Sandra Singh and State Farm Mutual Automobile Insurance Company, May 8, 1995, OIC File No. A-005714

Judy Spicer and State Farm Mutual Automobile Insurance Company, May 24, 1995, OIC File No.A-010158

Martin Wilson and Jevco Insurance Company, January 13, 1995, OIC File No. A-008409

Patrick White and Pilot Insurance Company, June 6, 1995, OIC File No.A-008462

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. 2Employer's Subsequent Statement (WCB report), signed by John Deere's Safety Director, July 30, 1990, Exhibit 3, Tab 24
3. 3Section 12(1) of the Schedule
4. 4Section 12(5) of the Schedule
5. 5Mr. McCann's March 20, 1991 enquiry letter to Dr. Guindon, Exhibit 1, Tab 1t; Job Survey prepared by the Canadian Back Institute, Exhibit 1, Tab 2h; Job Site Visit report prepared by Niagara Rehab, Exhibit 1, Tab 7.
6. 6Employer's Report of Accidental Injury of Industrial Disease (WCB report), March 5, 1990, Exhibit 3, Tab 24, p. 1
7. 7Leon Albert Bailey and CAA Insurance Company (Ontario), Decision (No.3) OIC File No. A-001139, Arbitrator Janice Mackintosh, October 18, 1994
8. 8Medical or Psychological Report (Form 4), August 16, 1990, signed by Dr. Guindon, Exhibit 1, Tab 4a; Disability Notice (John Deere form), August 20, 1990, signed by Dr. Guindon, Exhibit 1, Tab 1r; Clinical notes and records, Exhibit 1, Tab 4
9. 9Dr. Robert's consultation note, November 23, 1990, Exhibit 17c
10. 10The medial epicondyle is the point of bone on the inside of the elbow, at the lower end of the humerus (the bone of the upper arm). Medial epicondylitis, or "golfer's elbow" is inflammation of the muscle tendons attached to the medial epicondyle.
11. 11Dr. Robert's consultation note, March 1, 1991, Exhibit 17e
12. 12Mr. McCann's notice to the Applicant, and enquiry letter to Dr. Guindon, both dated March 20, 1991, Exhibit 1, Tab 1t and 1u
13. 13Nor did the Applicant's physiotherapist, Anil Gokhale, of the Industrial Injury Clinic: see the letter to Mr. McCann dated June 15, 1992, Exhibit 1, Tab 8.
14. 14March 19, 1991, Exhibit 1, Tab 4bb, provided to John Deere, see Exhibit 1, Tab 1v
15. 15Dr. Offierski's consultation note, Exhibit 1, Tab 3b
16. 16Exhibit 1, Tab 3h
17. 17Exhibit 2, Tab 18
18. 18Exhibit 2, Tab 3
19. 19Exhibit 2, Tabs 13 and 15
20. 20Exhibit 1, Tab 3b
21. 21Exhibit 1, Tab 3h. Applicant's counsel submitted that it was improper for the Insurer to ask Dr. Offierski to examine the Applicant on its behalf, given that Dr. Offierski had initially seen the Applicant on referral from his family doctor. I do not see any impropriety. The Applicant agreed to attend for the examination, and did not suggest an alternate. There was no evidence that the Insurer tried to interfere with the Applicant's treatment. Finally, I find that Dr. Offierski's IME reports to the Insurer are substantially identical to his consultation notes to Dr. Guindon.
22. 22Exhibit 1, Tab 10
23. 23Exhibit 1, Tab 10e
24. 24Exhibit 4, p. 17h. Dr. Robert's IME report is little different in substance from his earlier consultation notes.
25. 25Confirmation letter from Sandra Jenkins, dated January 29, 1993, Exhibit 2, Tab 13
26. 26Report, dated February 20, 1993, Exhibit 1, Tab 1hh, and Exhibit 2, Tab 34, confirmation letter from Sandra Jenkins, dated February 22, 1993, Exhibit 2, Tab 15
27. 27Dr. Evans' consultation note to Dr. Guindon, dated March 21, 1994, Exhibit 2, Tab 49; Dr. Ashe's consultation note to Dr. Chong, dated June 21, 1993, Exhibit 1, Tab 12
28. 28Report dated July 15, 1993. Follow-up reports dated October 8, 1993 and October 12, 1993 completed Dr. Langer's review of the Applicant's medical records. Exhibit 1, Tab 13.
29. 29Dr. Robert's June 16, 1992 report to the Insurer, Exhibit 4, p. 17h
30. 30Exhibit 3, Tab 8
31. 31Exhibit 1, Tab 2
32. 32Exhibit 3, Tab 19. The report indicates that the Applicant had had a similar disability about six years before, but I was unable to find a reference to any prior right elbow problems in the WCB file, which begins in 1977, or Dr. Guindon's file, which begins in 1965.
33. 33Doctor's First Report, May 28, 1989, Exhibit 3, Tab 19
34. 34Exhibit 4, p. 17a
35. 35November 23, 1990, Exhibit 4, p. 17c; worker's continuity report, March 4, 1990, Exhibit 3, Tab 19.
36. 36Exhibit 1, Tab 1q; Exhibit 3, Tab 23
37. 37Exhibit 3, Tab 19
38. 38Exhibit 4, p. 17b
39. 39The Applicant had sustained two previous head injuries at work. On July 19, 1978, his head was struck by a roll cage weighing several hundred pounds. He was off work until September. He had a less serious accident on March 6, 1987, when he bumped his head against some stock. His forehead laceration was stitched, and he returned to his regular duties the next day.
40. 40Exhibits 5 through 11
41. 41Exhibit 12
42. 42Exhibit 19
43. 43Exhibit 2, Tabs 1 (October 17, 1991), and 16 (June 21, 1993). Jane Sandercock, an occupational therapist at Niagara Rehab, conducted a job site assessment on February 27, 1992. Her report supports the evidence of the Applicant and Mr. McCann about the scarcity of suitable modified work at John Deere.
44. 44Exhibit 2, Tab 22
45. 45Consultation note, February 25, 1994, Exhibit 2, Tab 26
46. 46Consultation note, June 4, 1993, Exhibit 2, Tab 24
47. 47Consultation note, December 7, 1993, Exhibit 2, Tab 25
48. 48Medical-legal reports dated December 15, 1993 and January 4, 1994, Exhibit 1, Tab 15
49. 49Dr. Guindon's note of the Applicant's October 3, 1991 visit, Exhibit 1, Tab 4; RMI report, October 18, 1991, Exhibit 2, Tab 2
50. 50Vincenzo Scavuzzo and Canadian Home Assurance Company, March 18, 1992, OIC File No. A-000626, confirmed on appeal, June 19, 1992, OIC File No. P-000626
51. 51Chuong Vo and Maplex General Insurance Company, October 4, 1993, OIC File No. A-000277, under appeal
52. 52Dr. Kaplan's invoices, dated May 11, 1994, January 20, 1995 and June 12, 1995: Exhibits 30, 31 and 39; Letter from Joan McCarthy, the Insurer's Regional Benefits Officer, to Dr. Kaplan, dated March 11, 1994 and April 15, 1994: Exhibit 28 and 29
53. 53Exhibit 13