Neutral Citation: 1996 ONICDRG 75

File No.: A-006856

ONTARIO INSURANCE COMMISSION

BETWEEN:

CAROLE A. CARUSO

Applicant

and

GUARANTEE COMPANY OF NORTH AMERICA

Insurer

DECISION

Issues:

The Applicant, Carole A. Caruso, was injured in a motor vehicle accident on June 23, 1990. She applied for and received statutory accident benefits from Guarantee Company of North America ("Guarantee"), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by Guarantee on June 30, 1993.

Ms. Caruso claims that her weekly income benefits should not have been terminated on June 30, 1993. She claims that she meets the post-156 week eligibility test for weekly income benefits set out in section 12(5)(b) of the Schedule and continues to be eligible for weekly income benefits. She also claims that the Guarantee terminated her weekly income benefits under section 12(1) of the Schedule prematurely. She contends that the test for eligibility to weekly income benefits under section 12(5)(b) applies only after the automobile insurer has paid 156 weeks of benefits. Ms. Caruso states that, in her case, at the time weekly income benefits were terminated, she had not received 156 weeks of benefits. Guarantee did not start paying Ms. Caruso weekly income benefits until October 1990 because Ms. Caruso received 100% of her wages for the first 75 shifts she missed, under the short-term portion of a disability plan provided through her employer.

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

The issues in this hearing are:

1. What is the period during which weekly income benefits are payable under section 12(1) of the Schedule? What is the meaning of the words "for any period in excess of 156 weeks..." in section 12(5)(b) of the Schedule?

2. Is Ms. Caruso entitled to weekly income benefits after June 30, 1993?

Ms. Caruso also claims interest on any amounts owing, and her expenses incurred in respect of the arbitration proceeding.

Result:

1. The period during which weekly income benefits are payable under section 12(1) of the Schedule is 156 weeks of disability.

2. Ms. Caruso is not entitled to weekly income benefits after June 30, 1993.

3. Ms. Caruso is entitled to her expenses incurred in respect of the arbitration proceeding.

Hearing:

The hearing was held in London, Ontario, on July 4, 5 and 6, 1995, before me, Shemin Manji, Arbitrator.

Present at the Hearing:

Applicant:

Carole A. Caruso

Applicant's Representative:

Matthew G. Duffy

Barrister and Solicitor

Insurer's Representative:

Terry R. Shillington

Barrister and Solicitor

Insurer's Officer:

Donna Marry

Witnesses:

Ms. Carole Caruso

Dr. Erica Gold

Dr. Hillel Finestone

Ms. Dorothy Huggins

Ms. Pamela Kennedy

Ms. Phylis Ford

Mr. Roberto Caruso

Dr. John Clifford

Exhibits:

The Exhibits and other documents before the arbitrator are listed in Appendix A to this decision. The articles referred to by Drs. Clifford and Finestone in their testimony are also listed in Appendix A.

Cases referred to:

The cases referred to by the parties are listed in Appendix B to this decision.

Reasons for Decision :

1. Background facts:

Ms. Caruso is 34 years old. She is married and has two sons, ages 3 and 6. Ms. Caruso and her family reside in London, Ontario. In 1980 she graduated from high school, with a grade 12 diploma. She testified that prior to graduating from high school, she had worked, part-time, as a baker's helper (for a year), a waitress (for a year) and a shipper/receiver (for a year and a half).

After graduating from high school, Ms. Caruso began working for Victoria Hospital in London. Her first job at the hospital was as a casual (on call) mail room porter. Records of Victoria Hospital indicate that she held this job only from June 15, 1981 to August 24, 1981, when she transferred to the position of regular part-time dietary aide.²

On November 27, 1982, Ms. Caruso transferred from the position of regular part-time dietary aide to regular part-time dietary porter.³ On August 12, 1985, she became a full-time dietary porter.⁴ Ms. Caruso indicated in her testimony that this job was similar to that of the dietary aide but heavier and more physically demanding.

There were six different porter positions in the Nutrition & Food Services Department at Victoria Hospital. At the time of the accident, Ms. Caruso was performing the duties of "Porter #1," full-time, in the "Potroom". A document prepared by the Victoria Hospital, on February 8, 1990, reviews a Porter #1's daily schedule of activities. This includes: emptying and cleaning the ice cooler; gathering up pots, pans and kettles from the "Cooks area" and washing them; filling ice bins and returning them to the Main Kitchen salad/sandwich preparation area and taking the ice cooler to the Main Kitchen "portioning area"; assisting "#4 Porter" to deliver carts to the Main Kitchen; washing/cleaning carts; storing pots and pans in their proper areas; collecting dirty trays and returning to dishroom; transporting truck used for tray retrieval to the Main Kitchen; tidying up the potroom; sweeping and mopping the floor; washing walls in the Kitchen and potroom; cleaning potroom sinks after pots are cleaned and cleaning tops of fridges and shelves.⁵

A physical demands analysis for "full-time relief porters position" prepared by Victoria Hospital in December 1992 confirms that all porter positions were physically demanding. The duties or tasks were performed from either a standing (combined with reaching and bending) or walking position and therefore required constant weight bearing of the trunk. Repetitive shoulder abduction combined with applied force and awkward postures and positioning was required. Although most postures were not required to be maintained in a static position for prolonged periods, they required repetitive movements. Forces of the muscles of the back, legs and shoulders were required to lift, push and pull tray carriers and dishes.⁶

On Saturday June 23, 1990 at approximately 2:50 p.m., Ms. Caruso was driving southbound on Brookside Street, in London. At the intersection of Brookside and Edna Streets another vehicle going westbound on Edna Street stopped at a stop sign at the intersection and then moved across Brookside Street and into Ms. Caruso's path, hitting her (the driver's) side of her vehicle.⁷

Ms. Caruso testified that at the time of the accident she was shaken up but does not remember feeling anything. However, after she got home she started to feel sore and experience pain in her neck, back, shoulders and arms. Ms. Caruso attended at the Emergency Department of Victoria Hospital that evening. At the hospital Ms. Caruso was examined, diagnosed as having a neck strain, prescribed some medication (Naproxen) and discharged. The emergency physician asked Ms. Caruso to return to the hospital or see her family physician if there was an increase in pain, numbness or weakness.⁸

Ms. Caruso testified that the next day, June 24, 1990, she was stiff and sore all over her body. She was supposed to go to work that day; instead she attended at the Emergency Department at Victoria Hospital again. The Emergency Department Record of Victoria Hospital indicates that Ms. Caruso attended at the Emergency Department at 7:55 a.m., complaining that because of neck pain she was unable to perform the part of her work at the hospital that required lifting. The Record also indicates that Ms. Caruso requested time off work. The emergency physician found that Ms. Caruso was tender in the cervical spine area (neck and shoulders). He advised Ms. Caruso to stay in bed and rest her neck. He also advised her to continue to take the medication that was prescribed the day before and to see her family doctor after 48 hours if "unable to lift at that time".⁹

Ms. Caruso saw her family physician, Dr. James Campbell, on June 26, 1990. Dr. Campbell's clinical notes and records indicate that Ms. Caruso was complaining of neck pain and stiffness. After examining Ms. Caruso, Dr. Campbell concluded that she had an acute neck strain caused by an acceleration-deceleration motion during the accident. He suggested that she continue with the medication and apply heat to the neck. Dr. Campbell referred Ms. Caruso for physiotherapy and suggested that she continue to stay off work.¹⁰

Ms. Caruso saw Dr. Campbell regularly from June 26, 1990 to the end of December 1990.¹¹ She also attended for physiotherapy intermittently at the Physiotherapy Centre, from July 13, 1990 to November 27, 1990.¹² Ms. Caruso reported improvement in her neck and shoulder pain, although she felt that she was a long way from being work ready.¹³ Dr. Campbell's clinical notes indicate that by the end of the year, although Ms. Caruso had not returned completely to her pre-accident state, she had made a definite improvement: she had less pain, increased range of motion and decrease in spasms and tenderness in the paracervical muscles.¹⁴ The clinical notes and records of the Physiotherapy Centre also indicate that there had been a marked improvement in muscle endurance of the cervical spine region, although she was experiencing headaches more often. The physiotherapist felt that this was due to increased muscle fatigue or tension in the cervical region.¹⁵

In October 1990, Guarantee retained Barlow & Associates Rehabilitation Services Inc. ("Barlow") to coordinate Ms. Caruso's rehabilitation and her return to work at Victoria Hospital. Mr. Barlow met with Dr. Campbell on November 12, 1990. At the meeting, Dr. Campbell indicated that he thought Ms. Caruso could return full-time to modified work, i.e., work not involving heavy lifting, on January 1, 1991. Dr. Campbell supported Ms. Caruso's attendance at the Canadian Back Institute ("CBI") for a work-hardening program, to facilitate her return to work in January.¹⁶

In December 1990, following an initial assessment, Ms. Caruso commenced an intensive rehabilitation program in CBI's exercise facility. After a few weeks, CBI felt that she would be a good candidate for CBI's Comprehensive Rehabilitation Program. This was initiated on January 24, 1991. Ms. Caruso completed the program on March 6, 1991.¹⁷

While attending at CBI on December 24, 1990, Ms. Caruso was examined by Dr. Robert A. McKnight, a specialist in physical medicine and rehabilitation, at Guarantee's request. Dr. McKnight concluded that although Ms. Caruso was involved in a progressive activation program at CBI, she was capable of returning to modified work as of January 2, 1991. Dr. McKnight felt that Ms. Caruso was not capable of performing duties requiring repetitive lifting of weights in excess of 10 lbs or prolonged propelling of unduly weighty trolleys. However, he opined that gradual progression to regular work should be achievable over the course of approximately four weeks.¹⁸

After completing her program at CBI in April 1991, Ms. Caruso attempted a graduated return to modified work at Victoria Hospital. Ms. Caruso worked for approximately a week before she discontinued work again.¹⁹ Ms. Caruso testified that the heavy nature of the work and the prolonged standing aggravated her neck, shoulders and back pain. Ms. Caruso's employment at Victoria Hospital was subsequently terminated in December 1992.²⁰

After Ms. Caruso's unsuccessful attempt to return to work, she attended for further physiotherapy at the Physiotherapy Centre.²¹ After she was discharged from the Physiotherapy Centre, she began an active program of therapeutic exercise at the Fitness Forum.

On April 23, 1992, Ms. Caruso was examined by another specialist in physical medicine and rehabilitation, Dr. John Clifford, at the request of Mutual Life of Canada ("Mutual Life"), under the long-term disability portion of the disability plan provided through Victoria Hospital ("the Hospitals of Ontario Disability Income Plan"). Dr. Clifford concluded that Ms. Caruso had developed chronic pain syndrome. He was of the opinion that because of the nature of her original injuries, as well as her ongoing complaints, she would not be able to return to her regular work as a dietary porter. However, he felt that she could return to modified work, full-time, as of June 23, 1992 (the second anniversary of the accident), provided she continued with the program of therapeutic exercise at the Fitness Forum and a rehabilitation counsellor was appointed as quickly as possible to assist her in identifying appropriate vocational alternatives and to supervise and co-ordinate her return to work.²²

In July 1992, Guarantee retained Crawford & Company Health & Rehabilitation ("Crawford") to complete a vocational assessment and to assist Ms. Caruso in obtaining physically appropriate employment.²³

Crawford felt that a work-hardening program would assist Ms. Caruso in returning to physically appropriate employment. In November 1992, after Dr. Campbell gave his approval,²⁴ Ms. Caruso began a work-hardening program at London Goodwill Industries Association ("Goodwill"). Ms. Caruso was to start, originally, by working four hours a day. Because of her complaints of pain, Dr. Campbell suggested that the work pace be slowed down to what she could tolerate. Ms. Caruso began the program by working two hours a day. On January 11, 1993, the work-hardening program was extended because by that time she had not even increased her working hours to four hours a day. The extended work-hardening program started at three and a half hours per day. She was scheduled to increase her working hours at pre-determined intervals (15 minutes twice a week). By January 18, 1993, Ms. Caruso was able to increase her daily hours to four hours, with a 15 minute break. However, on that day, Ms. Caruso advised Goodwill that Dr. Campbell had recommended that the program be put on hold for two weeks because of her complaints of shoulder pain. At this point, Guarantee terminated the program.²⁵

Ms. Caruso started receiving weekly income benefits from Guarantee in October 1990. Prior to this, she had received 100% of her wages for the first 75 shifts she was absent from work under the short-term portion of the Hospitals of Ontario Disability Income Plan. On January 21, 1991, her application for income benefits under the long-term portion of the Plan was approved by Mutual Life. From January 21, 1991 to June 25, 1992, Ms. Caruso received 65% of her pre-accident income under the Plan. During this period, Ms. Caruso's weekly income benefits were adjusted to take into account the income benefits she was receiving under the Hospitals of Ontario Disability Income Plan. The income benefits from Mutual Life were terminated on June 25, 1992, because it felt that Ms. Caruso ceased to be "totally disabled" under the terms of the Plan. After June 25, 1992, Ms. Caruso received full weekly income benefits from Guarantee until June 30, 1993, when they were terminated.²⁶

After Ms. Caruso's weekly income benefits were terminated on June 30, 1993, Guarantee continued to provide rehabilitation services, including psychological counselling,²⁷ occupational therapy,²⁸ job readiness training²⁹ and assistance in finding employment.³⁰

On March 10, 1995, Ms. Caruso began casual, part-time employment as a dietary aide at a nursing home in London, Chateau Gardens.³¹ Her work at Chateau Gardens involved receiving and storing dry goods and supplies, some preparation and serving of food to the residents, washing dishes, cleaning the resident dining room and setting up for the next meal service, as well as helping to maintain a clean and hygienic kitchen area for the nursing home.³²

2. Issues and positions of the parties:

Guarantee does not dispute that Ms. Caruso continues to suffer a substantial inability to perform the essential tasks of her pre-accident employment as a dietary porter after June 30, 1993. However, it contends that she does not meet the post-156 week eligibility test set out in section 12(5)(b) of the Schedule. It contends that the neck and shoulder injuries that she sustained in the accident do not continuously prevent her from engaging in any employment for which she is reasonably suited by education, training or experience.

Ms. Caruso contends that Guarantee terminated her weekly income benefits under section 12(1) of the Schedule prematurely. She contends that the test for eligibility to weekly income benefits under section 12(5)(b) of the Schedule applies only after the automobile insurer has paid 156 weeks of benefits. Ms. Caruso states that, in her case, at the time benefits were terminated, she had not received benefits for 156 weeks because Guarantee did not start paying her until October 1990.

Ms. Caruso contends that, in any event, even if I were to find that weekly income benefits under section 12(1) of the Schedule were not terminated prematurely, she is entitled to benefits after June 30, 1993 because she meets the test in section 12(5)(b).

3. Analysis and conclusion:

a) Duration of section 12(1) benefits:

In order to determine the period during which benefits are payable under section 12(1) of the Schedule, I am required to interpret the words "for any period in excess of 156 weeks..." in section 12(5)(b) of the Schedule. Section 12(5)(b) provides:

The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience. [Emphasis added]

The words "....156 weeks..." in section 12(5)(b) are capable of three possible interpretations: 156 weeks of benefits, 156 weeks from the day of the accident or 156 weeks of disability.

The interpretation of these words was previously considered at some length by Arbitrator K. Julaine Palmer in Pina Coles and Dominion Of Canada General Insurance Company,³³ by Senior Arbitrator Fredericka Rotter in Rene G. Lafleur and Zurich Insurance Company,³⁴ and recently by Arbitrator Stewart McMahon in William J. Whyte and Metropolitan Insurance.³⁵

The arbitrators arrived at different conclusions on which interpretation best accords with the intent of the legislation.

In Coles, Arbitrator Palmer concluded that the period during which benefits are payable under section 12(1) of the Schedule is 156 weeks of benefits. In Lafleur, Senior Arbitrator Rotter concluded that "...the initial 156-week benefit period referred to in the Schedule runs for three years consecutively, and expires on the third anniversary after the accident." And in Whyte, Arbitrator McMahon concluded that "...the better interpretation of the 'period' is to treat it as 156 weeks of disability...".

It is not clear from a reading of section 12(5)(b) of the Schedule itself which interpretation is the correct one. However, when section 12(5)(b) is read in conjunction with other sections of the Schedule and the effect of each interpretation is considered, I agree with Arbitrator McMahon in Whyte that the better interpretation is that the period during which benefits are payable under section 12(1) of the Schedule is 156 weeks of disability.

If the "period" in section 12(5)(b) of the Schedule is interpreted as 156 weeks of benefits and is read in conjunction with section 12(4)(b) of the Schedule, the initial benefit period in section 12(1) of the Schedule would continue to run for an applicant who receives a loss of income payment which is less than 80% of his or her gross weekly income because a weekly benefit would be payable. However, it would stop running once he or she began receiving a loss of income payment greater than 80% of his or her gross weekly income because a weekly benefit would not be payable. It is not logical that the initial benefit period would continue to run when the applicant is in receipt of a loss of income payment less than 80% of his or her gross weekly income, but not when he or she is in receipt of a loss of payment greater than 80% of his or her gross weekly income.

Similarly, if the "period" in section 12(5)(b) of the Schedule is interpreted as 156 weeks of benefits and is read in conjunction with section 15 of the Schedule, as Senior Arbitrator Rotter noted in Lafleur, the initial benefit period in section 12(1) of the Schedule would continue to run for an applicant who receives a weekly benefit adjusted to reflect earnings less than the weekly income benefit payable. However, the initial benefit period would stop running as soon as the applicant started earning more than the benefit payable. This is not logical. This interpretation also appears to make an arbitrary distinction between an applicant who returns to work and earns less than the weekly income benefit payable and an applicant who returns to work and earns more. The initial benefit period would continue to run for the former but would stop running for the latter.

If the "period" in section 12(5)(b) of the Schedule is interpreted as 156 weeks from the date of the accident, applicants could be discouraged from attempting an early return to work, school or other normal activity. If an effort was made to return to work, school or other regular activity and failed, the initial benefit period in section 12(1) would continue to run regardless and benefits could be cut off on the third anniversary of the accident. This interpretation would weaken provisions in the Schedule, such as sections 16(1) and (2), which encourage an early return to work.

Further, occasionally after an accident, an injured applicant is able to carry on with his or her employment and there is a delay in the onset of disability. If the "period" in section 12(5)(b) of the Schedule is interpreted as 156 weeks from the date of the accident, the initial benefit period would continue to run regardless of when the person becomes disabled and benefits would be cut off on the third anniversary of the accident.

In my view, interpreting the "period" in section 12(5)(b) of the Schedule as 156 weeks of disability harmonizes best with the rest of the Schedule and produces results that are logical. With this interpretation, the initial benefit period in section 12(1) would be temporarily interrupted in circumstances where an applicant's disability has temporarily subsided, thereby encouraging early efforts to return to work, school or regular activity. Such an interpretation would also ensure an equal level of protection for an injured applicant who experiences an immediate onset of disability and one who experiences a late onset of disability.

In this case, based on my interpretation of the "period" in section 12(5)(b) of the Schedule, I find that Guarantee did not prematurely terminate Ms. Caruso's weekly income benefits under section 12(1) of the Schedule. Ms. Caruso's weekly income benefits were terminated after 156 weeks of disability.

(b) Section 12(5)(b) benefits:

i) What were the injuries that Ms. Caruso sustained in the accident?

Ms. Caruso testified that she injured her neck, shoulders and lower back in the accident and that these injuries continue to prevent her from returning to work. Guarantee contends that Ms. Caruso did not injure her lower back in the accident and that any lower back problems are related to her pre-existing back problem or some other cause.

The documentary evidence indicates, and Ms. Caruso does not deny, that she was experiencing low back problems shortly before the accident. Ms. Caruso complained about low back pain to her family physician, Dr. Campbell, in April 1990 and told him that it was directly related to her work as a porter at Victoria Hospital. Dr. Campbell noted "SI joint tenderness" and arranged for x-rays to be taken of her lower back. The x-rays showed "...some sclerotic reactions involving the facet joints of L5 - SI."³⁶ Dr. Campbell advised Ms. Caruso to rest, apply heat and change her job.³⁷

Ms. Caruso subsequently discussed her lower back problem with Dr. David Jones, occupational health physician, at Victoria Hospital and advised him of Dr. Campbell's recommendation that she look for a different job.³⁸ Ms. Caruso was told to watch for any job postings which may become available and to apply for a transfer. In the meantime, she was asked to identify those duties that were causing her back pain. Ms. Caruso advised that lifting and carrying ice coolers was causing her back pain. Ms. Caruso's supervisor arranged for co-workers to assist her with these duties and someone from the Occupational Safety Department at Victoria Hospital was asked to spend time with her on the job to assess the job and make suggestions for performing her duties without exacerbations of pain.³⁹

Ms. Caruso testified that the low back pain she experienced before the accident was different from the low back pain she experienced after the accident. She testified that the pre-accident pain was on her left side whereas the post-accident pain is a continuous pain from the neck and shoulder to lower back. Ms. Caruso testified that, in any event, she did not miss any time from work as a result of the pre-accident low back pain and she experienced no problems after the job was modified, i.e., the ice coolers were eliminated. Ms. Caruso testified that she was not looking to change her job at the time of the accident.

I do not accept Ms. Caruso's testimony that her complaints of low back pain are accident-related.

During his examination of Ms. Caruso's low back on March 15, 1994, Dr. Hillel Finestone, another specialist in physical medicine and rehabilitation whom Ms. Caruso started seeing in March 1994, found Ms. Caruso to be tender over the same area as Dr. Campbell in April 1990 (L5/SI level) (supra).⁴⁰

On the day of the accident and the day following the accident, Ms. Caruso attended at the Emergency Department at Victoria Hospital. The Emergency Records of Victoria Hospital do not mention any complaints of low back pain. Her complaints were confined to the neck and shoulder area.⁴¹

Ms. Caruso saw her family physician, Dr. Campbell, regularly following the accident. Dr. Campbell's clinical notes do not make reference to complaints of low back pain until February 21, 1991, almost eight months after the accident. At that time and subsequently, Dr. Campbell's notes do not indicate that he thought that the low back complaints were related to the accident. On the contrary, Dr. Campbell's reports subsequent to February 21, 1991 indicate that in his opinion, Ms. Caruso's injuries from the accident were confined to her neck and shoulders.⁴²

Ms. Caruso attended at the Physiotherapy Centre regularly for treatment from July 13, 1990 to November 27, 1990. Neither the reports of the Physiotherapy Centre during this period nor the Discharge Report of December 13, 1990 refer to any complaints of low back pain.⁴³

Dr. John Clifford assessed Ms. Caruso first on April 23, 1992 and then on January 31, 1994, specifically in respect of the injuries resulting from the accident. Dr. Clifford's reports of May 5, 1992 and January 31, 1994⁴⁴ do not mention complaints by Ms. Caruso of low back pain. Dr. Clifford confirmed, in his testimony, that on both occasions, Ms. Caruso made no mention of lower back pain, although he gave her ample opportunity to do so. Dr. Clifford testified that because Ms. Caruso did not complain of lower back pain, he did not conduct an examination of her lower back. He also testified that if she had complained about lower back pain with her pre-accident history of facet joint pain, he would have examined her lower back and arranged for x-rays and a bone scan. The bone scan would have shown if there was an "active infection" in the area. Dr. Clifford also testified that if Ms. Caruso had injured her lower back in the accident, he would have expected her to have begun experiencing low back pain within a few hours following the accident.

Ms. Caruso was not able to explain why Dr. Campbell's clinical notes fail to mention any complaints of low back pain following the accident and before February 21, 1991. She testified that in the three months following the accident, she told Dr. Campbell on more than one occasion that she had hurt her lower back in the accident. Ms. Caruso could not remember if she told Dr. Clifford that she was experiencing pain from her neck down or whether she identified specific areas of the body where she was experiencing pain.

Ms. Caruso pointed out that her complaints of low back pain following the accident are recorded in the report of CBI of December 4, 1990 and the report of Dr. McKnight of January 10, 1991. She submitted that Dr. Finestone's evidence also supports her testimony. Further, her complaints of back pain after the accident are corroborated by the testimony of her husband, Mr. Roberto Caruso, and her friend Ms. Phylis Ford.

The reports of CBI and Dr. McKnight are not very helpful. They indicate that Ms. Caruso complained of low back pain in December 1990 and they conclude that Ms. Caruso's back pain was related to the accident. However, they do not explain why her complaints of low back pain prior to December 1990 were not documented or, why, as the documentary evidence indicates, she did not begin to experience low back pain until December 1990, some five months after the accident.

It is evident from the reports of CBI and Dr. McKnight that in coming to their conclusions that Ms. Caruso's back pain was related to the accident, they relied on information provided to them by Ms. Caruso. However, Ms. Caruso was not honest with them. Their reports indicate that they specifically asked Ms. Caruso if she had experienced any lower back problems before the accident. She told them that she had not. Ms. Caruso advised Dr. McKnight that her job involved lifting ice buckets of up to 30 lbs, yet made no mention of the fact that she was experiencing difficulty performing this task because of low back pain, prior to the accident.⁴⁵

In his reports of June 28, 1994 and January 16, 1995, Dr. Finestone stated that Ms. Caruso's low back pain occurred directly as a result of the accident.⁴⁶ At the hearing, Dr. Finestone testified he was not aware that Ms. Caruso had suffered from low back pain shortly before the accident. However, Dr. Finestone testified that now that he was aware that she experienced low back pain before the accident, his opinion has not changed. He opined that the low back pain which Ms. Caruso experienced in April 1990 had resolved before the accident.

I did not find Dr. Finestone's opinion persuasive. Dr. Finestone failed to explain why Ms. Caruso's complaints of low back pain prior to December 1990 were not documented or, why, as the documentary evidence indicates, she did not begin to experience low back pain until December 1990, some five months after the accident.

In conclusion, having regard to all the evidence, I am not satisfied that Ms. Caruso's low back pain is accident-related.

ii) Does Ms. Caruso meet the requirements of section 12(5)(b) of the Schedule?

At the hearing, Ms. Caruso presented a picture of herself as a severely disabled woman. She testified that her pain "levelled off" one to two years after the accident. Since that time, despite all the treatments she has received and her participation in a program of therapeutic exercise at the Fitness Forum, the pain in her neck, shoulders and back has been constant. She also suffers from headaches two to three times a week. Ms. Caruso testified that as a result of the pain and headaches, she has not been able to do any housework, because it exacerbates the pain. She also testified that as a result of the pain and headaches, she has not been able to work full-time or part- time outside the home.

Ms. Caruso testified that she works only a few hours a week (between one and two days a week) as a dietary aide at Chateau Gardens. She testified that she finds the job very difficult to perform and, in fact, she has not really been performing it. She takes 10 minute breaks every hour. By the time she finishes her seven and a half hour shift, her shoulders are very sore, she has a headache, and she "crashes" when she gets home.

Ms. Caruso testified that her experience at Goodwill confirms that she is unable to work full or part-time.

There are some objective findings which support Ms. Caruso's complaints of neck and shoulder pain since the accident,⁴⁷ and the physicians who have examined Ms. Caruso since June 30, 1993, i.e., Drs. Campbell, Finestone and Clifford, accept that she continues to experience neck and shoulder pain and that this pain is as a result of the accident. They also agree that because of this pain, she is not able to return to her pre-accident job as a dietary porter.⁴⁸ However, there is a difference of opinion between Dr. Clifford and Dr. Finestone on whether Ms. Caruso is able to return to alternate employment full-time.

Dr. Clifford was of the opinion that by the end of June 1993, Ms. Caruso was able to return to work full-time. He opined that the initial soft tissue injuries which Ms. Caruso sustained in the accident had healed by that time and the etiology of her ongoing complaints of neck and shoulder pain was benign. Dr. Clifford testified that although he felt that Ms. Caruso could do any job, including her pre-accident job as a dietary porter "safely" (without fear of tissue damage), he believed that a graduated return to full-time work, with restrictions, was a more viable option because Ms. Caruso's complaints of pain would interfere with her return to regular work.

Dr. Clifford proposed the following restrictions: no prolonged posturing of the head or neck, no repetitive or heavy lifting with the arms held out in front unsupported or over the shoulders, and no heavy/repetitive pushing or pulling.⁴⁹ He indicated that repetitive bending and crouching would also likely cause exacerbations of neck and shoulder pain.⁵⁰

Dr. Finestone disagreed with Dr. Clifford's opinion that Ms. Caruso could do any job "safely." Dr. Finestone felt that the fact that Ms. Caruso was experiencing pain with specific movements could imply that "...there (was) something physiological and biological going on in the nervous system to produce the particular painful response."⁵¹

Dr. Finestone also disagreed with Dr. Clifford's opinion that Ms. Caruso was able to return to work full-time, with restrictions, by the end of June 1993. In his report of June 28, 1994, Dr. Finestone gave the following reason for his opinion:

I do not feel that Ms. Caruso can be labelled at the present time to be permanently and totally disabled. However, in view of her previous excellent work record, along with my knowledge of musculoskeletal pathology and experience I have had treating thousands of individuals with these injuries, along with the belief that Ms. Caruso is truthfully indicating her symptoms, it is my opinion that without some type of retraining or new skill acquisition Ms. Caruso would be unable to return immediately to the workforce. This is based on her previous skills, which were more manual, and her intellectual background. In general Ms. Caruso, to be viably employed will require a position which allows some degree of flexibility, both in terms of the types of body positions assumed and the time to perform a particular task. A person like her would usually acquire these new skills on a part-time basis and frequently start working on a part-time basis.⁵² [emphasis added]

Dr. Finestone did not explain what he meant by "(a) person like her would usually acquire these new skills on a part-time basis and frequently start working on a part-time basis".

In his report of June 28, 1994, Dr. Finestone did not indicate whether he thought that Ms. Caruso would be able to return to modified employment full-time. However, at the hearing, Dr. Finestone testified that he did not believe that Ms. Caruso would ever be able to manage full-time employment, even after acquiring new skills.

The different approaches to chronic soft tissue pain have been dealt with in a number of previous arbitration decisions.⁵³ I agree with Arbitrator David Draper in his decision in Jodi E. Wiseman and Coachman Insurance Company,⁵⁴ and Senior Arbitrator Susan Naylor in her decision in Judy Spicer and State Farm Mutual Automobile Insurance Company,⁵⁵ that the tests in sections 12(1) and 12(5)(b) of the Schedule are not limited to a consideration of whether the applicant is able to return to work without risking further injury. I also agree that in chronic pain cases, the question is always, "how much pain is too much pain?" and, in the context of section 12(5)(b) of the Schedule, whether, because of the pain, the applicant is continuously prevented from doing a "suitable" job, considered as a whole, including reasonable hours and productivity.

In this case, I find, based on Dr. Clifford's evidence, that Ms. Caruso was able to do a "suitable" job, full-time, after June 30, 1993.

Dr. Finestone's opinion that Ms. Caruso is not capable of returning to full-time modified work on a sustained basis is based largely on Ms. Caruso's reporting of her limitations.⁵⁶ However, evidence was adduced at the hearing which indicates that Ms. Caruso is not as disabled as she says she is.

For example, Ms. Caruso testified that she is unable to do her housework because it exacerbates the pain. However, the occupational therapist from Rehability Occupational Therapy Services, Ms. Agnes Agnelli, who attended at Ms. Caruso's home to review Ms. Caruso's method of homemaking on June 29, July 6 and July 28, 1994, reported that Ms. Caruso demonstrated the completion of several homemaking tasks without reporting an increase in pain. Ms. Agnelli concluded that Ms. Caruso could successfully complete the majority of her homemaking tasks without exacerbations of her symptoms.⁵⁷

Ms. Caruso also testified that she found her work at Chateau Gardens very difficult and she has not really been doing it. However, in a discussion about the job with Dr. Finestone on June 2, 1995, she advised him that, although she occasionally found it quite difficult, she was able to perform the part of the job which involved setting up the dining room for breakfast and lunch, serving meals and clearing tables.⁵⁸

Further, on June 15, 1995, an occupational therapist from Rehability Occupational Therapy Services, Ms. Gillian Barr, observed Ms. Caruso perform her job for a shift. Ms. Barr was able to observe Ms. Caruso perform all aspects of her duties except for the loading and storage of food. She concluded that Ms. Caruso was able to perform all required aspects of her job during the shift. Ms. Barr observed that Ms. Caruso was a fast and knowledgeable worker, she was efficient and organized, utilized good body mechanics for most of the duties, and that despite her reports of sore muscles during the shift, maintained an excellent rapport with her co-workers and socialized effectively with the residents in the dining room. Ms. Barr did not observe Ms. Caruso receiving supplies which were shipped to the nursing home weekly. However, she felt that the majority of this work could be completed by Ms. Caruso with recommendations that she (Ms. Barr) made to her for the handling of the weekly food order. Ms. Barr recommended that Ms. Caruso obtain assistance when moving bags of dry goods weighing in excess of 35 kgs.⁵⁹

Ms. Caruso relied, in part, on the results of the work-hardening program at Goodwill to support her testimony that she was unable to do any kind of work full-time or part-time. However, Goodwill's assessment of Ms. Caruso's performance indicates that Ms. Caruso did not put forth a full and consistent effort.⁶⁰ Dr. Campbell's notes and records indicate that it was Ms. Caruso, not Dr. Campbell, who decided that she could no longer continue with the program at Goodwill.⁶¹ Nevertheless, the assessment concluded that "(g)iven the skills that Ms. Caruso demonstrated and her capabilities in the store setting, ... Ms. Caruso would be able to increase her working hours to part-time or full-time and work competitively in a store setting."⁶²

Both Dr. Clifford and Dr. Finestone recommended restrictions. I accept the restrictions recommended by Dr. Clifford over those recommended by Dr. Finestone. The restrictions recommended by Dr. Clifford are clearer and relate to the injuries that I have found Ms. Caruso sustained in the accident. The restrictions recommended by Dr. Finestone are not only intended to minimize Ms. Caruso's complaints of neck and shoulder pain but also her complaints of low back pain, which I have determined are not related to the accident.

Having found that by June 30, 1993, Ms. Caruso was able to return to employment, full-time, with restrictions, I must now determine whether Ms. Caruso has established that there are no jobs within those restrictions for which she is reasonably suited by education, training or experience.

A number of arbitration decisions have interpreted the phrase "... prevent the insured from engaging in any occupation or employment reasonably suited by education, training or experience" in section 12(5)(b) of the Schedule. These decisions have considered many of the judicial decisions that were cited by the parties in the present case. In determining the suitability of proposed employment these decisions have established criteria including:

• 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.⁶³

• The range of alternative employment that may be considered depends on the applicant's background. It may include jobs that are different from the work that he or she was doing at the time of the accident, but only if they are reasonably suitable or appropriate for the applicant. If the job is substantially different in nature, status or remuneration, it may not be an appropriate alternative.⁶⁴

• 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.⁶⁵

• The primary focus is on an applicant's disability or functional limitations and not on the broader availability of work in the job market; however, the disability cannot be seen in a vacuum, but should be viewed in the context of the applicant's competitiveness in the existing marketplace.⁶⁶

I agree with these criteria.

The application of the burden of proof in the context of section 12(5)(b) of the Schedule has been considered in a number of arbitration decisions. They have held that the burden of proof to establish entitlement under this section lies with the applicant. However, in discharging that burden, the applicant is not required to demonstrate that he or she is incapable of any other conceivable and commensurate employment or occupation.⁶⁷ I agree with these decisions.

In my view, in satisfying the burden of proof, it is not sufficient for the applicant to establish that as a result of the injuries sustained in the accident, he or she is unable to perform the essential tasks of his or her pre-accident employment and then rely on the insurer to prove that there is some suitable employment for which he or she is qualified and capable. In my view, unless the applicant is able to adduce strong medical evidence that he or she is totally disabled, the applicant must present 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.

I note that recently Arbitrator Asfaw Seife in his decision in Danny M. Wigle and Royal Insurance Company of Canada,⁶⁸ Arbitrator David Evans in his decision in Michael Gagnon and Jevco Insurance Company,⁶⁹ and Arbitrator Eban Bayefsky in his decision in Roy Knott and Dominion of Canada General Insurance Company,⁷⁰ have elaborated on what they believe an applicant must establish in order to satisfy his or her burden of proof in the context of section 12(5)(b) of the Schedule. Their comments on this issue appear to be similar to mine.

In this case, I am not satisfied that Ms. Caruso has discharged her burden of proof. Since the accident, Ms. Caruso has made no effort, on her own initiative, to identify, try to find or attempt "suitable" employment. At the same time she has made no effort to pursue any of the "suitable" occupations identified by Guarantee.

In December 1993, at Guarantee's request, Crawford identified six alternative occupations for Ms. Caruso.⁷¹ These occupations were selected based on Ms. Caruso's physical restrictions, her prior employment history, her education and her pre-accident income. They were: order clerk food and beverage, mail clerk, telephone solicitor, service clerk, blood donor unit assistant and credit authorizer. In her evidence, Ms. Caruso indicated that she gave no serious consideration to pursuing any of these occupations.

In July 1994, Ms. Caruso, through her lawyer, requested Crawford's assistance in resume preparation, job search strategies and employment placement. Guarantee approved this request. A resume was completed for Ms. Caruso's use in her job search. Crawford canvassed the Canada Employment Centre for potential job options for Ms. Caruso. Job opportunities were photocopied and forwarded to Ms. Caruso for perusal.⁷² Again, in her evidence, Ms. Caruso indicated that she gave no serious consideration to pursuing any of these jobs.

Guarantee also paid Ms. Caruso's application fee for Job Resources, a private job finding club.

In October 1994, when Ms. Caruso expressed concern about her ability to conduct an independent job search, Guarantee approved her attendance at job readiness classes offered by Crawford.⁷³ After her job readiness training, Ms. Caruso attended at the Job Resources Centre and applied for some jobs. However, the jobs that she applied for were very similar to her pre-accident job at Victoria Hospital as a dietary porter, i.e., jobs outside her restrictions.⁷⁴

In March 1995, Ms. Caruso began casual, part-time employment as a dietary aide at Chateau Gardens. However, this job appears similar to her pre-accident job as a dietary porter and falls outside of the restrictions recommended by Dr. Clifford.

In April 1995, a team meeting took place at University Hospital in London between Ms. Caruso, her lawyer, Ms. Donna Marry from Guarantee, Dr. Finestone and Ms. Kristin Graham from Crawford. The purpose of the meeting was to discuss a program to allow Ms. Caruso to return to and maintain "suitable" employment. At the meeting Ms. Caruso's lawyer requested, inter alia, labour market surveys for the positions of dietary aide and dietary porter, because Ms. Caruso's employment with Chateau Gardens was temporary and would likely terminate in September 1995. Guarantee approved this request.⁷⁵ Positions were identified.⁷⁶ Ms. Caruso applied for these positions.⁷⁷

Ms. Caruso testified that the reason why she only applied for jobs similar to her pre-accident job, i.e., jobs that she consistently claimed that she could not perform and which all the physicians who examined her said were outside her restrictions, was that she had no experience doing anything else and she was anxious to get back to work. However, Ms. Caruso could have tried to use her experience as a dietary aide or porter to obtain a lighter job in the food service area. I heard no evidence that there were no jobs in the food service area comparable to Ms. Caruso's pre-accident job in nature, status and remuneration and which would fall within her restrictions.

For all the above reasons, I find that Ms. Caruso is not entitled to weekly income benefits after June 1993.

4. Expenses

An award of expenses in favour of an applicant may be made under section 282(11) of the Act which states:

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

The prescribed expenses and amounts are set out in Ontario Regulation 664.

Ms. Caruso is entitled to her expenses in accordance with Ontario Regulation 664. If the parties are unable to agree on the amount owing, either of them may apply for an assessment of expenses.

Order:

1. Ms. Caruso is not entitled to weekly income benefits after June 30, 1993. Accordingly, her application for weekly income benefits after June 30, 1993 is dismissed.

2. Guarantee shall pay Ms. Caruso her expenses incurred in respect of the arbitration proceeding in accordance with Ontario Regulation 664.

May 9, 1996

Shemin Manji Arbitrator

Date

APPENDIX A - THE RECORD

Exhibits:

Exhibit 1

Medical Brief of Carole Caruso

Exhibit 2

Rehabilitation Brief of Carole Caruso

Exhibit 3

Report dated June 26, 1995 of Dr. Erica Gold

Exhibit 4

Report dated December 8, 1994 of Dr. J. Campbell

Exhibit 5

Document Brief of the Applicant

Exhibit 6

Pre-accident clinical notes and records of Dr. J. Campbell

Exhibit 7

Work Analysis for Ms. Caruso by Rehability Occupational Therapy Services

Exhibit 8

6 Laser copies of food trucks

Exhibit 9

Jobs applied for - list compiled by Ms. Caruso dated May 25, 1995

Exhibit 10

Statement of Earnings - Chateau Nursing Home Inc.- Pay ending June 15, 1995

Exhibit 11

Curriculum Vitae of Dr. Erica Gold

Exhibit 12

Letter dated May 25, 1993 from Guarantee (Ms.Donna Marry) to Ms. Caruso

Exhibit 13

Letter dated August 18, 1993 from Guarantee (Ms. Donna Marry) to Ms. Caruso

Exhibit 14

Curriculum Vitae of Dr. Hillel Finestone

Exhibit 15

Curriculum Vitae of Dr. John Clifford

Articles referred to by Dr. John Clifford in his testimony:

1. "Scientific Monograph of the Quebec Task Force on Whiplash-Associated Disorders: Redefining "Whiplash" and Its Management" by Walter O. Spitzer et al. April 15, 1995, Spine, Supplement Volume 20, Number 8S

2. "Whiplash Injury and Chronic Neck Pain" by Simon Carette MD, April 14, 1994, The New England Journal of Medicine, Vol. 330, No. 15, 1083

3. "A Taxonomy of Chronic Pain Syndromes" 1991 Presidential Address, Cervical Spine Research Society Annual Meeting, December 5, 1991 by Henry LaRocca, MD

Articles from Dr. Hillel Finestone (in response):

1. "Soft-Tissue Injuries of the Neck in Automobile Accidents - Factors Influencing Prognosis" by Mason Hohl, MD, The Journal of Bone and Joint Surgery, 56-A, No. 8, December 1974

2. "The Dynamic Behaviour of the Head and Cervical Spine During 'Whiplash'" by J.A. McKenzie and J.F. Williams, Journal of Biomechanics, 1971, Vol. 4, 477

3. "Common whiplash: psychosomatic or somatopsychic" by Bogdan P. Radanov et al., Journal of Neurology, Neurosurgery and Psychiatry 1994; 57: 486

4. "Neck Injuries" by J.R. Taylor and B.A. Kakulas, The Lancet, Vol. 338, Nov. 23, 1991

5. "Neck Injury and the mind" (editorial) by H. Merskey, The Lancet, Vol. 338, Sept. 21, 1991

6. "Role of psychosocial stress in recovery from common whiplash" by Bogdan P. Radanov et al. The Lancet, Vol. 338, Sept. 21, 1991

7. "Prognostic factors in soft tissue injuries of the cervical spine" by A. Watkinson et al., Injury (1991) 22, (4) 307

8. "Whiplash injuries" of the neck: a retrospective study by C. Maimaris et al. Injury (1988) 19, 393

9. "Acceleration Extension Injuries of the Cervical Spine" by Ian Macnab, Advocates Quarterly, 77 (date of article not identified)

10. "Cervical Sprain or Whiplash: An Often-Rejected Injury" by Robert Teasell, Glenn A. McCain, Harold Merskey and Hillel Finestone, Humane Medicine, Vol. 7, No. 3, August 1991

Other documents before the arbitrator, but not marked as exhibits:

Report of Mediator dated December 1, 1993

Application for Appointment of an Arbitrator dated June 14, 1994

Response by Insurer dated July 14, 1994

Letter dated November 29, 1994 from Senior Arbitrator Frederika Rotter confirming pre-hearing discussions

Letter dated August 4, 1995 from Dr. Finestone (commenting on the articles referred to by Dr. Clifford in his testimony)

APPENDIX B - AUTHORITIES

OIC decisions:

1. Donna Flemming and Wawanesa Mutual Insurance, April 28, 1992, OIC File No. A-000406

2. Barbara Edwards and State Farm Mutual Automobile Insurance Company, July 12, 1993, OIC File No. A-001707

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

4. Jodi E. Wiseman and Coachman Insurance Company, June 10, 1994, OIC File No. A-005706

5. Mariam Audisho and State Farm Mutual Automobile Insurance Company, November 7, 1994, OIC File No. A-004981

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

7. Pina Coles and Dominion of Canada General Insurance Company, February 13, 1995, OIC File No. A-007416

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

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

10. Helen F. Winfield and Elma Mutual Insurance Company, June 26, 1995, OIC File No. A-007295

Court decisions:

1. McKenzie v. Federation Insurance Company of Canada, [1981] I.L.R. 1-1412 398 (Ont.S.C.)

2. Cohoe v. Safeco Insurance Co. of America, [1993] I.L.R. 1-2951 2378 (Ont.Ct. Gen.Div.)

3. McCulloch v. City of Calgary et al. (1985), 1985 CanLII 1326 (AB QB), 15 C.C.L.I. 222 (Alta. Q.B.)

4. Fast v. Insurance Corporation of British Columbia, [1976] I.L.R. 1-745 126 (B.C.S.C.)

5. DePape v. The Manitoba Public Insurance Corporation, 1980 CanLII 3092 (MB QB), [1981] I.L.R. 1-1351 168 (Man. Q.B.)

6. Brooks v. London Life Insurance Company, [1979] I.L.R. 1-1063 29 (Alta S.C.); affirmed 1979 ALTASCAD 155, [1979] I.L.R. 1-1115

7. Mercuri v. Imperial Life Assurance Company of Canada, 1990 CanLII 11501 (NB QB), [1990] I.L.R. 1-2660 10,461 (N.B.Q.B.)

8. Stutt v. Alberta (Provincial Treasurer) (1988), 1988 CanLII 3555 (AB QB), 34 C.C.L.I. 78 (Alta Q.B.)

9. Campbell v. Canada Life Assurance Co. (1990), 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73 (Man. C.A.)

10. Green v. Mutual of Omaha Insurance Co. (1983), 1983 CanLII 5504 (NS SC), 4 C.C.L.I. 34 (N.S.S.C.)

11. Stutt v. Alberta (Provincial Treasurer) (1990), 1990 CanLII 5481 (AB QB), 42 C.C.L.I. 152 (Alta Q.B.)

12. Taaffe v. Sun Life Assurance Co. of Canada (1979), 1979 CanLII 1877 (ON HCJ), 24 O.R. (2d) 790 (H.C.J.)

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 5, Tab 8-7, Letter from Victoria Hospital dated June 3, 1981 and August 21, 1981, Exhibit 5, Tab 8-4, Personnel Action Forms.
3. 3Exhibit 5, Tab 8-7, Letter from Victoria Hospital dated November 26, 1982
4. 4Exhibit 5, Tab 8-3, Personnel Record Cards, Exhibit 5, Tab 8-4, Personnel Action Forms
5. 5Exhibit 6 , Clinical notes and records of Dr. Campbell from 1988 to July 1990, Duty Outline Porter #1 - Full Time dated February 8, 1990, Nutrition & Food Services, SSC
6. 6Exhibit 2, Tab 2, Physical Demands Analysis (under cover of letter dated December 23, 1992 from Victoria Hospital)
7. 7Exhibit 5, Tab 1, Motor Vehicle Accident Report
8. 8Exhibit 1, Tab 1, Victoria Hospital, Emergency Record dated June 23, 1990
9. 9Exhibit 1,Tab 1, Victoria Hospital, Emergency Record dated June 24, 1990
10. 10Exhibit 1, Tab 2, Report of Dr. Campbell dated July 5, 1990
11. 11Exhibit 1, Medical Brief of Carole Caruso, Tab 2
12. 12Exhibit 1, Tab 5, The Physiotherapy Centre, Discharge Assessment dated December 13, 1990
13. 13Exhibit 2, Tab 1, Barlow Appraisal Report dated October 15, 1990
14. 14Exhibit 1, Tab 2, Clinical notes of Dr. Campbell dated August 21, 1990, Exhibit 1, Tab 2, Letter from Barlow dated November 14, 1990
15. 15Exhibit 1, Tab 5, The Physiotherapy Centre, Progress Note dated November 2, 1990
16. 16Exhibit 1, Tab 2, Letter from Barlow dated November 14, 1990
17. 17Exhibit 1, Tab 6, Report of CBI dated March 28, 1991
18. 18Exhibit 1, Tab 4, Report of Dr. McKnight dated January 10, 1991
19. 19Exhibit 1, Tab 2, Report of Dr. Campbell dated April 24, 1993
20. 20Exhibit 5, Tab 8-7, Letters from Victoria Hospital dated December 29, 1992 and September 24, 1993
21. 21Exhibit 1, Tab 5, Report of the Physiotherapy Centre dated July 6, 1992. Ms. Caruso attended from June 12, 1991 to March 26, 1992
22. 22Exhibit 1, Tab 7, Report of Dr. Clifford dated May 5, 1992
23. 23Exhibit 2, Tab 2, Crawford Initial Vocational Evaluation dated August 14, 1992
24. 24Exhibit 1, Tab 2, Letter from Crawford & Company dated September 30, 1992
25. 25Exhibit 1, Tab 2, Letter from Crawford dated December 16, 1992, Exhibit 2, Tab 2, Report from Goodwill dated January 19, 1993, Exhibit 2, Tab 2, Crawford Status Report #5 dated February 2, 1993
26. 26Exhibit 5, Tab 8-7, Letters from Victoria Hospital dated October 9, 1990 and September 24, 1993
27. 27Exhibit 1, Tab 9, Reports of Dr. Gold, psychologist, dated September 13, 1994, November 21, 1994 and June 26, 1995 - Dr. Gold determined that Ms. Caruso has never been psychologically disabled as a result of the accident. Between April 19, 1994 and September 9, 1994, Ms. Caruso participated in 10 treatment sessions with Dr. Gold. The counselling focused on providing Ms. Caruso with information regarding pain mechanisms, helping her to identify pain triggers and exacerbating factors and teaching her pain management strategies (e.g. pacing and relaxation).
28. 28Exhibit 2, Tab 2, Report of Reliability Occupational Therapy Services (undated) - treatment sessions provided in June and July 1994.
29. 29Exhibit 2, Tab 2, Crawford Report dated November 30, 1994
30. 30Exhibit 2, Tab 2, Crawford Status Reports #1 and #4 dated August 6, 1994 and November 4, 1994
31. 31Exhibit 2, Tab 2, Letter dated April 18, 1995 from Crawford
32. 32Exhibit 7, Work Analysis for Ms. Caruso, Rehability Occupational Therapy Services, dated June 23, 1995
33. 33February 13, 1995, OIC File No. A-007416
34. 34May 11, 1995, OIC File No. A-004141
35. 35April 30, 1996, OIC File No. A-009277. The meaning of these words was also considered, but very briefly, by Arbitrator William J. Renahan in Maurice Kennedy and Pilot Insurance Company, December 8, 1995, OIC File No. A-012509. Arbitrator Renahan adopted the conclusion and reasons in Coles.
36. 36Exhibit 6, Report of Dr. Campbell dated April 20, 1990
37. 37Exhibit 6, Clinical notes of Dr. Campbell dated April 6, 1990, Report of Dr. Campbell dated April 20, 1990
38. 38Exhibit 6, Letter from Dr. Jones dated April 12, 1990
39. 39Exhibit 6, Letter from Dr. Jones dated May 4, 1990, Internal Memorandum of Victoria Hospital dated May 3, 1990
40. 40Exhibit 1, Tab 8, Report of Dr. Finestone dated March 25, 1994
41. 41Exhibit 1, Tab 1, Emergency Reports of Victoria Hospital dated June 23 and 24, 1990
42. 42Exhibit 1, Tab 2, Reports of Dr. Campbell dated May 2, 1991, August 25, 1991 and April 24, 1993, Report to Health & Welfare Canada (undated) (based on visit of June 11, 1993).
43. 43Exhibit 1, Tab 5
44. 44Exhibit 1, Tab 7
45. 45Exhibit 1, Tab 4, Report of Dr. McKnight dated January 10, 1991
46. 46Exhibit 1, Tab 8
47. 47Report of Byron Radiology & Ultrasound Services dated April 20, 1992. Also Exhibit 1, Tab 7, Reports of Dr. Clifford dated April 22, 1992 and January 31, 1994
48. 48Exhibit 1, Tab 2, Report of Dr. Campbell dated January 9, 1992, Exhibit 1, Tab 7, Reports of Dr. Clifford dated May 5, 1992 and February 4, 1993, Exhibit 1, Tab 8, Reports of Dr. Finestone dated March 25, 1994, June 28, 1994 and January 16, 1995
49. 49Exhibit 1, Tab 7, Report of Dr. Clifford dated May 5, 1992
50. 50Exhibit 1, Tab 7, Report of Dr. Clifford dated February 4, 1993
51. 51Exhibit 1, Tab 8, Report of Dr. Finestone dated January 16, 1995
52. 52Exhibit 1, Tab 8, Report of Dr. Finestone dated June 28, 1994
53. 53Jodi E. Wiseman and Coachman Insurance Company, June 10, 1994, OIC File No. A-005706, Rosa Fernandes and State Farm Mutual Automobile Insurance Company, August 3, 1994, OIC File No. A-005516, Vincenza Di Censo and Wellington Insurance Company, August 31, 1994, OIC File No. A-004198 and Mariam Audisho and State Farm Mutual Automobile Insurance Company, November 7, 1994, OIC File No. A-004981
54. 54June 10, 1994, OIC File No. A-005706
55. 55May 24, 1995, OIC File No. A-010158
56. 56Exhibit 1, Tab 8, Report of Dr. Finestone dated January 16, 1995
57. 57Exhibit 2, Tab 2, Undated Report of Rehability Occupational Therapy Services
58. 58Exhibit 1, Tab 8, Report of Dr. Finestone dated June 8, 1995
59. 59Exhibit 7, Work Analysis from Rehability Occupational Services dated June 23, 1995
60. 60Exhibit 2, Tab 2, Crawford Status Reports #4 and 5, dated December 30, 1992 and February 2, 1993, Exhibit 2, Tab 2, Goodwill Report dated January 19, 1993
61. 61Exhibit 1, Tab 2, Report of Dr. Campbell dated April 24, 1993
62. 62Exhibit 2, Tab 2, Goodwill Report dated January 19, 1993
63. 63Sandra Singh and State Farm Mutual Automobile Insurance Company, May 8, 1995, OIC File No. A-005714
64. 64Judy Spicer and State Farm Mutual Automobile Insurance Company, May 24, 1995, OIC File No. A-010158
65. 65Eleanor B. Rodway and Royal Insurance Company of Canada, June 12, 1995, OIC File No. A-007593
66. 66Francis Mills and Canadian General Insurance Company, July 6, 1995, OIC File No. A-005599 and Shirley A. Reid and Continental Insurance Company, July 27, 1995, OIC File No. A-006022
67. 67Sandra Singh and State Farm Mutual Automobile Insurance Company, May 8, 1995, OIC File No. A-005714
68. 68January 12, 1996, OIC File No. A-012312
69. 69May 1, 1996, OIC File No. A-015357
70. 70May 8, 1996, OIC File No. A951779
71. 71Exhibit 2, Tab 2, Crawford, Employability Assessment dated December 22, 1993
72. 72Exhibit 2, Tab 2, Crawford Status Report #2 dated August 26, 1994
73. 73Exhibit 2, Tab 2, Crawford Status Report #4 dated November 4, 1994
74. 74Exhibit 2, Tab 2, Crawford Status Report #5 dated December 13, 1994
75. 75Exhibit 2, Tab 2, Letter to Guarantee from Crawford dated April 18, 1995
76. 76Exhibit 2, Tab 2, Crawford Status Report #9 dated June 1, 1995
77. 77Exhibit 9