Neutral Citation: 1997 ONICDRG 148

OIC A96-000227

ONTARIO INSURANCE COMMISSION

BETWEEN:

ROMOLO GNEO

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

Issue:

The Applicant, Romolo Gneo, was injured in a motor vehicle accident on April 21, 1991. He applied for and received statutory accident benefits from Wellington Insurance Company ("Wellington"), payable under Ontario Regulation 672.¹ Wellington terminated weekly income benefits on April 20, 1994 on the ground that Mr. Gneo was not continuously prevented from engaging in any occupation or employment for which he was reasonably suited by education, training or experience within the meaning of section 12(5)(b) of the Schedule. The parties were unable to resolve this issue through mediation.

The issue in this hearing is:

1. Is Mr. Gneo entitled to weekly income benefits after April 20, 1994?

Result:

The Applicant is entitled to weekly income benefits from April 20, 1994 forward.

Hearing:

The hearing was held in Windsor, Ontario on June 9 and 10, 1997 before me, David Leitch, Arbitrator.

Present at the Hearing:

Applicant:

Romolo Gneo

Applicant's Representative

Brian A. Fortune

Barrister and Solicitor

Insurer's

John W. Makins

Representative

Barrister and Solicitor

Witnesses:

Romolo Gneo

Maria Gneo

George Boghean

Dr. S. W. Bartol

Exhibits:

A list of exhibits and other documents on the record is attached as Schedule A. Cases referred to are listed in Schedule B.

Reasons for Decision:

Background:

Mr. Gneo was born in Italy on April 20, 1936 and came to Canada in March, 1957 at age 20. He had the Italian equivalent of a Grade 8 Canadian education and had been trained as a barber by his father. On his arrival in Canada, he worked in British Columbia on the railway line driving spikes, for seven years, and then as a logger and millworker in the forestry industry for two years. He did some barbering in his spare time during this period. He moved to Windsor in 1967 where he got a job at Windsor Bumper (also known as Wickes Manufacturing Company Ltd.), operating a punch press. Two and half years later he became a die-setter at Windsor Bumper and, with only one significant interruption, remained in that classification until the plant closed in September, 1990, 20 years later.

The interruption in his service at Windsor Bumper was caused by the injuries Mr. Gneo sustained in a motor vehicle accident on October 6, 1988. These injuries overlap with the injuries he sustained in a second motor vehicle, the accident which gives rise to the current proceedings. The injuries caused by the 1988 accident were diagnosed by Mr. Gneo's family physician, Dr. Robert Gibb, as a moderate to severe hyperacceleration-deceleration injury to the cervical spine (whiplash) with consequential trapezio-myositis, headaches and neck pain and stiffness. Dr. Gibb also noted pre-existing but asymptomatic cervical arthritis.

Mr. Gneo returned to work in August, 1989 but he had not made a complete recovery from the 1988 accident. He continued to experience ongoing neck and right shoulder pain and headaches but, with the assistance of analgesics, muscle relaxants and physiotherapy, persisted with his work duties and activities of daily living.

When Windsor Bumper closed in September, 1990, about a year after Mr. Gneo's return to work following the 1988 accident, he found another job a month later as a die-setter at Maidstone Manufacturing Inc. On April 21, 1991, about seven months after starting the job at Maidstone, Mr. Gneo was involved in the motor vehicle accident that gives rise to this proceeding. Dr. Gibb diagnosed a severe hyperacceleration-deceleration re-injury to the cervical spine (whiplash) with complaints of headaches and pain in the left shoulder, neck and chest.

Mr. Gneo has not returned to work since this second accident. He received weekly income benefits from the Insurer until April 20, 1994.

The Insurer refuses to pay Mr. Gneo weekly income benefits after April 20, 1994 on two alternative grounds. First, the Insurer claims Mr. Gneo's disability after that date cannot be attributed to the motor vehicle accident of April 21, 1991. Second, the Insurer claims that despite the injuries he sustained in the accident of April 21, 1991, Mr. Gneo is not continuously prevented by those injuries from engaging in some other occupation or employment for which he is reasonably suited by education, training or experience within the meaning of section 12(5)(b) of the Schedule.

The Medical Issues and Evidence:

The main medical issue is whether the pain Mr. Gneo continued to experience in his neck and shoulders more than 156 weeks after the April 21, 1991 accident can be attributed to that accident. Mr. Gneo agreed that his low back problems were not related to the accident.

In February, 1992, Dr. J.W. Clifford, a specialist in rehabilitation medicine, examined Mr. Gneo and diagnosed chronic neck pain. On page 11 of his report dated February 26, 1992, Dr. Clifford gave the following prognosis:

...slow but steady improvement over a prolonged period of time. The course of improvement may be marked by periodic exacerbations and remissions of pain, brought about by seemingly insignificant physical or emotional stressors. Once the process of improvement is complete, this patient may continue to experience episodic neck, shoulder or arm pain. Furthermore the symptoms may be easily aggravated following physical or emotional stressors in the future.

Mr. Gneo was re-examined by Dr. Clifford at the end of March, 1994, just prior to the termination of weekly income benefits. Dr. Clifford's report of April 19, 1994 states at pages 4 and 6:

...the patient reported that his symptoms had become "worse". This apparent clinical deterioration in the context of remote soft tissue injuries and no ongoing pathological process is consistent with benign Chronic Pain. In the context of such a diagnosis, ongoing treatment at pain relief is unlikely to be of any significant benefit...

Soft tissue injuries to the neck and shoulder girdle were likely caused by each of the 2 MVAs. Chronic complaints of neck pain were precipitated by MVA #1, then aggravated by MVA #2.

With respect to ongoing complaints of neck pain, each of the 2 MVA's would be seen as equally responsible.[emphasis in the original]

At the hearing, the Insurer argued that Mr. Gneo's continuing neck and shoulder pain could not be attributed to the second accident. It provided supporting evidence through the opinion of Dr. S. W. Bartol, an orthopaedic specialist. Dr. Bartol examined Mr. Gneo at the Insurer's request on October 1, 1996. He was supplied with copies of the reports of some of the other physicians, medical examiners and physiotherapists who treated or examined Mr. Gneo. Dr. Bartol expressed the following opinion in his report dated November 8, 1996:

There is no evidence that the injury on April 21, 1991 resulted in any significant exacerbation of the underlying problem of degenerative disc disease. The underlying problem appears to have followed its normal course and there is no evidence that the soft tissue injury resulted in any change in that natural course. The degenerative disc disease in the neck is what one would expect to see had the motor vehicle accident of April 21, 1991 not occurred.

With respect to shoulder symptoms, Dr. Bartol stated that Mr. Gneo showed evidence of bilateral rotator cuff tendonitis and expressed the opinion that this condition was also degenerative and not caused by the motor vehicle accident.

Dr. Bartol issued a second report dated May 12, 1997, after reviewing additional medical reports and a video surveillance tape supplied to him by the Insurer's counsel. He did not change his opinion after considering this additional information. Dr. Bartol testified at the hearing that the aggravating effects of the accident of April 21, 1991 on Mr. Gneo's cervical degenerative disc disease would not have lasted more than 18 months, i.e., until about the end of 1992 at the latest. He also testified that rotator cuff tendonitis is frequently associated with manual work of the type Mr. Gneo had done.

In short, Dr. Bartol attributes Mr. Gneo's pain to degenerative changes rather than the effects of the accident. In assessing the weight I should give to Dr. Bartol's opinion, I note that it is based on speculation regarding the eventual course of degenerative changes in Mr. Gneo's neck and shoulders. While degenerative changes probably played some role in the evolution of Mr. Gneo's neck and shoulder symptoms, I am not persuaded that the persistence of those symptoms more than 18 months after the accident of April 21, 1991 can be attributed solely to degenerative changes. This conclusion would ignore the findings of other doctors much closer in time to the accident.

For example, Dr. R. A. Haliburton, an orthopaedic consultant who examined Mr. Gneo in April, 1992 and reviewed the x-rays taken at the hospital on the day of the accident, found that "the cervical spine showed little if any degenerative change and was quite normal looking for a man his age." This comment raises a question in my mind about the extent of degenerative changes in Mr. Gneo's neck prior to the accident of April, 1991.

And with respect to shoulder symptoms, I note that Dr. Bartol's diagnosis of rotator cuff tendonitis in November, 1996, five and a half years after the accident, had been considered much closer to the time of the accident. At page 3 of his report of May 25, 1992, just over a year after the accident, Dr. G. J. Koppert, a treating orthopaedic specialist, wrote:

He [Mr. Gneo] experiences bilateral shoulder pain and although he may have an element of rotator cuff tendonitis, the wide spread nature of his discomfort makes this very difficult to prove. I have recommended subacromial bursa cortisone injection for diagnostic and therapeutic purposes, bilateral shoulders.

In determining the weight I should give to Dr. Bartol's opinion, I also observe that in preparing his first report of November 8, 1996, Dr. Bartol does not appear to have had copies of the report of Dr. Haliburton dated April 13, 1992, or the report of Dr. Clifford dated February 26, 1992. He did have copies of the report and note of Dr. Koppert but made no mention of them.

Accordingly, after considering all the medical evidence, I prefer the opinion of Dr. Clifford. I find that Dr. Clifford's report of April, 1994 confirmed his original diagnosis of chronic pain and established both ongoing symptoms and a material or significant causal connection with the accident of April 21, 1991.

It now becomes necessary to determine whether Mr. Gneo's disability beyond April, 1994 was sufficient to entitle him to benefits under section 12(5)(b) of the Schedule.

The Disablement Issues and Evidence:

The eligibility test created by section 12(5)(b) reads as follows:

12.(5) 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.

This is to be contrasted with the eligibility test created by section 12(1) which reads as follows:

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

The focus of inquiry under the section 12 test is clearly on suitable alternative employment. As stated in Gagnon and Jevco Insurance Company:²

In considering what is suitable employment, I do not think an applicant can expect to receive benefits merely because no job is available that is exactly like the previous job. Taken to its extreme, the only "suitable" job would be the job the applicant can no longer perform, nullifying any difference between the section 12(1) and section 12(5)(b) tests.

In this case, the Insurer did not seriously dispute Mr. Gneo's inability to return to his pre-accident employment and paid him benefits under section 12(1) for the 156 weeks following the accident. However, I note that in his report of April 1994, Dr. Clifford expressed the opinion: "it is likely safe and appropriate for this patient to return to the workplace as a die setter - if he so chose." While I have relied upon Dr. Clifford's opinion in deciding the issue of causation, I do not accept his opinion with respect to Mr. Gneo's ability to return to his pre-accident employment.

Mr. Gneo's description of his duties as a die-setter corresponded to the description of this occupation contained in the Canadian Classification Dictionary of Occupational Titles (CCDO) referred to by a Vocational Consultant, Mr. George Boghean, in his report of November 8, 1993. That report states at page 6:

Die-setter (machine, weld and forge) - CCDO #8331-110 falls within the (H) heavy strength classification of work. This is defined as lifting 100 lbs. with frequent lifting and/or carrying of objects weighing up to 50 lbs.

In considering whether Mr. Gneo could still perform these essential tasks despite his neck restrictions, I note that while Dr. Bartol attributed these restrictions to degenerative changes, he nevertheless described them as follows at the bottom of page 2 of his report of June 9, 1997:

1. Avoidance of prolonged positioning of the head and neck.

2. [Avoidance of] repetitive/heavy lifting with the arms at or above shoulder height.

These restrictions would have diminished Mr. Gneo's ability to return to his pre-accident employment. Other doctors were explicit in this regard. Dr. Gibb's report of November 9, 1992 stated at page 3:

Based on his lack of clinical progress to date, I am quite certain that Mr. Gneo's return to labour force in his pre-accident capacity is highly unlikely.

Dr. M. Lacerte, a physical medicine and rehabilitation specialist who saw Mr. Gneo on October 1, 1993, wrote at page 8 of his report of that date:

He is not likely to make significant recovery and therefore returning to his pre-injury employment, which was highly physically demanding, is highly unlikely.

Dr. G. M. Annisette, an orthopaedic consultant who examined Mr. Gneo on December 19, 1996, expressed the following opinion on page 7 of his report of March 4, 1997:

Given that this man suffers from both neck symptoms and mechanical low back symptoms, I feel that the neck symptoms alone, which are a result of the motor vehicle accident, would be sufficient to prevent him from working his previous job in the factory environment. In fact, his soft tissue injury to his neck and his cervical spondylosis, which have been flared up by the motor vehicle accident, are severe enough to render him disabled for any and all type of heavy or repetitive factory work.

Finally, during the course of the hearing I viewed the video surveillance tape relied upon by Dr. Clifford and find that it does not demonstrate Mr. Gneo's physical capacity to perform heavy labour. Mr. Gneo's activities as captured on the video surveillance are neither strenuous nor sustained. He is seen sweeping, bending over and gathering leaves at a slow, not a vigorous, pace. He is shown picking up and carrying a child who appears to just have reached the walking age. There is a considerable lapse of time between some of these actions. This level of activity cannot, in my opinion, be equated with the requirements of a heavy labour job in a competitive work environment.

I turn then to the question of whether the injuries Mr. Gneo sustained in the April 21, 1991 accident have continuously prevented him from engaging in any other occupation or employment for which he is reasonably suited by education, training or experience under section 12(5)(b) of the Schedule.

Counsel for the Insurer relied upon the decision in Caruso and Dominion of Canada General Insurance³ in support of his submission that the burden of proof under section 12(5)(b) lies with the applicant. I agree with this submission. Counsel cited, in particular, the following passage from page 30 of the same decision:

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 do not read this passage to mean that only the Applicant is under an obligation to make a bona fide effort to identify suitable employment. While it is clearly only the Applicant who can make a sincere effort to actually engage in any suitable employment identified and found, both the Applicant and the Insurer have an obligation to try to identify such employment. On the Applicant's side, this obligation arises out of the burden of proof. On the Insurer's side, the obligation arises out of section 6(1)(c) of the Schedule to pay all reasonable expenses for "rehabilitation, life-skills training and occupational counselling and training."

As was pointed out in Pedden and Dominion of Canada General Insurance Company⁴ at page 18:

...in order to reduce or eliminate the need for an insurer to pay ongoing weekly income benefits under section 12(5)(b), it is in the insurer's interest not to sit back and wait for an applicant to submit a specific proposal for rehabilitation. The insurer must be proactive and take steps to maximize the applicant's reintegration to the workforce and his or her earning potential.

Likewise in Maybee and Jevco Insurance Company,⁵ referred to by counsel for the Applicant, the Arbitrator made the following ruling:

...Mr. Maybee still needs ongoing vocational rehabilitation assistance, and occupational counselling and training in order to return to the workforce, and this is his right under the policy, until August 23, 2001 [ten years after the accident] or until the maximum under section 6(8) has been expended. In my judgment, until he receives such training, he will be entitled to weekly income benefits under section 12(5)(b).

On the facts of the case before me, it would appear that neither the Applicant nor the Insurer started trying to identify suitable alternative employment, if any, until near the end of the 156-week period. Mr. Gneo was referred by his counsel to Boghean Rehabilitation Associates in November, 1993, about five months before the end of the 156-week period. Mr. Gneo was referred by the Insurer to Career Probe West Inc. in March, 1994, one month before the end of the period.⁶ I received in evidence two reports from George Boghean, dated November 8, 1993 and June 4, 199, and one report from the Career Probe evaluator, dated March 23, 1994. George Boghean also testified as an expert witness. I measure the value of this evidence against the following established criteria for determining the suitability of proposed employment, set out on page 29 of Caruso and Guarantee Company of North America.⁷

• 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.

• 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.

• 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.

• 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.

Mr. Boghean's oral evidence was to the effect that Mr. Gneo has been unemployable since 1993. His report of November 8, 1993 describes a 57-year-old man who had performed heavy labour since his arrival in Canada until the accident and who possessed very few "transferabilities that would qualify him for more sedentary occupations." Mr. Boghean did not think that educational programmes or retraining would be of any "vocational significance" and concluded that Mr. Gneo's competitive position in the labour market was "greatly compromised." Mr. Boghean wrote:

Looking further into the future, one must also consider Mr. Gneo's marketability. Potential employers often have serious reservations about hiring individuals who have changed careers so late in life. To compound this, employers will also be reluctant to hire employees with physical restrictions and chronic physical problems. These are realistic concerns as chronic pain usually limits work efficiency and often results in greater than average number of days lost secondary to exacerbations of pain. In today's labour economy employers are somewhat at an advantage in being able to select from job applicants that are young, skilled, and not disabled. This, as well as the unemployment situation in our area, does not paint a bright picture for future employability of Mr. Gneo, nor for all members active in the local labour market.

Career Probe's evaluator confirmed Mr. Gneo's "low average" verbal and reading skills but nevertheless identified five employment alternatives within his vocational reach. The list of alternatives and future earnings capacity portions of the report reads as follows:

Employment Alternatives:

1. Cashier, Self-Serv Gas Bar on-the-job training

4133-138

$6.70-8.00/hr

up to 30 days

2. Video Movie Rental Clerk

5199-199

$6.70-8.00/hr

up to 30 days on-the-job training

3. Sales Clerk training

5137-114

$6.70-9.00/hr

up to 30 days on-the-job

4. Parking Lot Attendant on-the-job training

6199-122

$6.70-8.00/hr

up to 30 days

5. Locker Room Attendant

6149-150

$6.70-8.00/hr

up to 30 days on-the-job training

At the time of his injury Romolo [Gneo] was earning approximately $12.00 per hour working as a Die setter. The job goals which have been identified have listed earnings in the $6.70-$9.00 per hour range. It is felt that this wage range represents a realistic estimate of Romolo's earnings capacity based on his educational background and previous work experience.

Mr. Boghean was then asked to respond to the report of Career Probe and did so in the following terms in his report dated June 4, 1997:

In terms of suitability, the first three of the above sales-related occupations recommended, in my opinion, do not meet with Mr. Gneo's profile. According to the National Occupational Classification - Career Handbook - Human Resources Development Canada -1996, each of these occupations require some high school, training and/or experience in the related field. Mr. Gneo has no education, experience or training related to the occupations in question. Furthermore, these occupations require a functional level of general intelligence, verbal reasoning, numerical reasoning, and clerical perception to be within the middle third percent of the working population, which is greater than what he demonstrated psychometrically both in our and Career Probe Assessments. These occupations would seem to be quite unrealistic given Mr. Gneo's status.

In terms of the two remaining occupational recommendations, that of Parking Lot Attendant and Locker Room Attendant, although no education or training (other than on-the-job) is required, I cannot visualize Mr. Gneo running to, getting in and out of, and delivering customer automobiles in an efficient manner to customers, nor, do I believe that he has the social etiquette, and verbal reasoning ability to direct customers in the manner required by such occupations.

To conclude, I believe that those occupations and types of job categories that were deemed suitable for Mr. Gneo are not within his capacities, nor are they felt to be realistic from an economic and availability standpoint. Unfortunately, I am at odds with respect to alternative occupational recommendations, and I feel that there has been no evidence in the documentation provided that would lead me to alter my impressions given in my original assessment of November 8, 1993.

I accept Mr. Boghean's opinion in evaluating the suitability of the employment options provided by the Career Probe evaluator.

First, I note the $3.00 to $4.00 wage differential between what Mr. Gneo was earning as a die-setter in 1991 and what he might have earned in 1994, three years later, in the jobs identified in the Career Probe report. Moreover, while I heard no evidence about whether these alternative jobs would be full or part-time, Mr. Gneo testified that he frequently worked overtime as a die-setter at both Windsor Bumper and Maidstone. The resulting annual difference in remuneration would be substantial and, in my view, would render these jobs unsuitable.

Second, I am satisfied that Mr. Gneo's education, training and experience were not sufficient to permit him to realistically pursue the employment alternatives identified in the Career Probe report. These jobs may not be physically demanding but I accept Mr. Boghean's opinion that they require reading, verbal and social skills which Mr. Gneo does not possess at a competitive level.

In determining whether or not Mr. Gneo has discharged the burden of proof to establish his entitlement under section 12(5)(b), I agree with the following comments made by the Arbitrator on page 5 of Gagnon and Jevco Insurance Company:

As part of discharging the onus of proof, applicants must explore career options that take into consideration their remaining capacity and establish that these options are somehow unsuitable. This burden could possibly be met by the applicants demonstrating that the occupations suggested by the insurers are unsuitable.

I find that the occupations suggested by the Insurer in this case are unsuitable.

As far as other employment prospects are concerned, I find Mr. Gneo's "competitiveness in the existing marketplace" to be at or near zero given his age, now 61, and the nature of his disability. A person of Mr. Gneo's education, training and experience could, in theory, be retrained for manual jobs without heavy lifting. However, I accept Mr. Boghean's opinion that if these jobs could be found, they would, in all likelihood, go to younger candidates who do not suffer from flare-ups of chronic pain.

I therefore find that Mr. Gneo has discharged the burden of proof to establish his entitlement to benefits after April 20, 1994.

Order:

1. The Applicant is entitled to weekly income benefits after April 20, 1994.

August 7, 1997

David Leitch

Arbitrator

Date

Schedule A

Exhibit 1

Medical Brief Index of Mr. Gneo

Tab 1

Medical Report from Metropolitan General Hospital, dated October 6, 1988.

Tab 2

Medical Report from Dr. Robert A. Gibb, dated January 31, 1990

Tab 3

Medical Report of Dr. Robert A. Gibb, dated August 15, 1990

Tab 4

Physiotherapy report from Windsor Physiotherapy Services, dated March 20, 1991

Tab 5

Medical Report of Dr. John C. Clifford, dated February 26, 1992

Tab 6

Medical Report of Dr. Robert A. Gibb, dated April 9, 1992

Tab 7

Medical Report of Dr. A. Haliburton, dated April 13, 1992

Tab 8

Clinical notes and records of Dr. Robert A. Gibb

Tab 9

Medical report from Dr. Robert A. Gibb, dated November 9, 1992

Tab 10

Medical report from Dr. Robert A. Gibb, dated November 11, 1992

Tab 11

Canadian Back Institute clinical notes and records

Tab 12

Report from Windsor Physiotherapy Services, dated July 12, 1993 with enclosures

Tab 13

Dr. C.M. Hamilton, clinical notes and records

Tab 14

Medical report of Dr. Lacerte, dated October 14, 1993

Tab 15

Big V Drug Store Family Profile medication summary, dated March 26, 1991

Tab 16

Big V Drug Store Family Profile medication summary, dated June 22, 1993

Tab 17

Report from Mr. George Boghean, Vocational Rehabilitation Consultation, dated November 8, 1993

Tab 18

Medical report of Dr. John C. Clifford, dated April 19, 1994

Tab 19

Career Probe report dated March 23, 1994

Tab 20

Medical report of Dr. Steven Bartol, dated November 8, 1996

Tab 21

Clinical notes and records of Dr. Robert A. Gibb from 1993 to 1997

Tab 22

Medical report of Dr. Jacob Danial, dated January 13, 1997

Tab 23

Medical report of Dr. Garth Annisette, dated March 4, 1997

Tab 24

Medical report of Dr. S. Bartol dated May 12, 1997

Tab 25

Vocational assessment report of George Boghean, dated June 4, 1997

Exhibit 2

Medical Brief of Wellington Insurance Company

Tab 1

Dr. Sol Goldenberg

August 24, 1991 report

Tab 2

Dr. John C. Clifford

February 26, 1992 report

February 10, 1992 consultation note

March 29, 1994 consultation note

April 19, 1994 report

Tab 3

Dr. R.A. Haliburton

April 13, 1992 report

Tab 4

Dr. Jacob Danial

February 10, 1994 report

May 11, 1994 report

July 8, 1994 report

July 27, 1995 report

January 13, 1997 report

Tab 5

Dr. S.W. Bartol

November 8, 1996 report

May 12, 1997 report

Exhibit 3

Surveillance video

Schedule B

Cases referred to:

Caruso and Guarantee Company of North America (May 9, 1996), OIC A-006856

Gagnon and Jevco Insurance Company (May 1, 1996), OIC A-015357 (confirmed on appeal on June 9, 1997)

Maybee and Jevco Insurance Company (January 29, 1996), OIC A-015141

Pedden and Dominion of Canada General Insurance Company (December 29, 1995), OIC A-008977

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 On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2(May 1, 1996), OIC A-015357 (confirmed on appeal - June 9, 1997)
3. 3(May 9, 1996), OIC A-006856
4. 4(December 29, 1995), OIC A-008977
5. 5(January 29, 1996), OIC A-015141
6. 6Documents contained in Dr. Gibb's file indicate that Mr. Gneo's re-employment potential had been considered but, for reasons not explained to me, it was not pursued at an earlier point. Mr. Gneo was referred by the Insurer to an organization called International Services of Canada sometime in the spring of 1993. A representative of that organization interviewed Dr. Gibb on May 4, 1993 and, according to a confirming letter, Dr. Gibb apparently informed the representative that he did not feel that Mr. Gneo would "ever be able to return to work as a dye [sic] setter" but that "if a suitable and secure job can be obtained" he would release Mr. Gneo to "modified sedentary work." However, one month later, on June 4, 1993, that same representative wrote the following letter to Mr. Gneo:
   This letter is to inform you that the disability management services provided by Rehabilitation Services of Canada are being discontinued.
   It has been a pleasure working with you on behalf of Rehabilitation Services of Canada and Wellington Insurance. I wish you well in your future endeavours.
   If you have any further questions/concerns, please contact your claim representative, Ms. Patti Carter, at Wellington Insurance, at 310 Wellington Rd., South, London.
   I heard no evidence as to why this re-employment assessment was terminated or if any other assessment was requested by Mr. Gneo or arranged by the Insurer prior to Mr. Gneo's referral to Career Probe in March, 1994.
7. 7Supra, note 3