S. M. v. Markel Insurance Company of Canada, 1997 ONICDRG 181

Ontario Insurance Commission

Neutral Citation: 1997 ONICDRG 181

OIC A96-000258

BETWEEN:

S. M.

Applicant

and

MARKEL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, S. M., was injured in a motor vehicle accident on February 5, 1992. She received statutory accident benefits from Markel Insurance Company of Canada ("Markel"), payable under Ontario Regulation 672.¹ Markel terminated her weekly income benefits on July 26, 1993. The parties were unable to resolve their disputes through mediation, and Ms. M. applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. M. entitled to weekly income benefits after July 26, 1993 under section 12 (1) and 12(5)(b) of the Schedule?

2. Is Ms. M. entitled to a special award under section 282(10) of the Insurance Act?

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

At the beginning of the hearing, counsel advised that the amount of Ms. M.'s weekly income benefit was no longer in issue. They agreed that Ms. M. was entitled to be paid at the rate of $224.00 per week.

Result:

1. Ms. M. is not entitled to weekly income benefits after July 26, 1993. Since she is not entitled to benefits, no interest is payable.

2. Ms. M. is not entitled to a special award.

3. I remain seized of Ms. M's entitlement to expenses.

Evidence and Findings:

Background

The Applicant, S.M. is 29 years of age. She claims that she was injured on a Toronto Transit Commission ("TTC") bus on February 5, 1992. She has developed psychological problems which include depression. Some of her symptoms include impaired memory and concentration. Her depression interferes with her cognitive abilities to the point that her vocabulary is impaired, and she tests in the borderline mentally retarded range. She has a tendency to speak dramatically.

Ms. M. overstates things, and, at times, health care professionals have stated that she is delusional. Not surprisingly, these symptoms have impacted on her testimony in general. They give rise to the questions of whether she was in fact injured on a TTC bus, and whether her ongoing problems are attributable, as she claims, to an accident on a TTC bus.

On February 5, 1992, Ms. M. boarded a TTC bus at the corner of Finch and Islington Avenues in Toronto. Ms. M. claims that she was injured shortly after she boarded the bus, when the driver braked sharply. She claims that as a result of her injuries she has become substantially unable to perform the essential tasks of her employment and is entitled to be paid weekly income benefits on an ongoing basis, including post 156 week benefits.

Markel, the Insurer for the TTC, accepted Ms. M.’s claim for statutory accident benefits and paid her weekly income benefits until July 26, 1993. At the arbitration hearing, Markel alleged that Ms. M. had given different histories of the accident and of her injuries. Markel therefore disputed that Ms. M. was injured on the bus, and, if she was, that she was entitled to further weekly income benefits.

Was Ms. M. injured on a TTC bus?

Ms. M.'s testimony

Ms. M. testified that she was the last passenger to board a northbound TTC bus at the corner of Islington and Finch Avenues on February 5, 1992. She testified that she boarded the bus with a number of students dressed in gray and white uniforms. In her statement to the TTC on February 14, 1992, she stated that she placed her coat and bag on a seat near the front of the bus and was about to sit, when a black "4x4" vehicle cut in front of the bus, causing the driver to brake sharply to avoid a collision.

Ms M. was thrown backwards and hit her back against the handrail near the fare box. She refused the driver’s offer to call an ambulance. She testified that she felt numb after the accident and simply wanted to get home. Ms. M. testified that another passenger, a female student who boarded the bus with her, fell to the floor of the vehicle when the driver applied the brakes. That student moaned in pain about her leg, but refused the driver’s offer to call an ambulance.

Ms. M. gave a similar history of striking her back against the handrail near the fare box, to her family doctor, Dr. B. Lasko, on the day following the accident, and to Dr. M. Ford, an orthopaedic surgeon, who examined her on behalf of Markel in November 1992. Dr. Ford testified that in his opinion, Ms. M.’s injuries were consistent with the history she gave him. He was the only physician to be asked for an opinion on this point, and I accept it.

I accept that in her subsequent statements to health care practitioners, and during her testimony, Ms. M. has stated that additional parts of her body were hit on the bus. For example, she testified that she "slashed" the driver in his face with her right hand as she fell. Her statements as to the number of passengers who boarded the bus with her have varied over time.

I found Ms. M. to be a poor historian. I find that her recollection of events has been hampered by her significant psychological difficulties following the accident. Some of the symptoms of her psychological difficulties include delusions, and problems with memory and concentration. Dr. Day, a psychologist who treated Ms. M., noted that she "experienced the original injury in overly intense and exaggerated form." Dr. Camenietzki, a psychologist who examined Ms. M. at the request of Markel, was also of this opinion.

I prefer Ms. M's earlier history of the incident, as recounted to Dr. Lasko, Dr. Ford, F.I.T., and in her statement to the TTC, as these statements were made closer to the time of the incident, and therefore are more likely to be accurate.

The driver's testimony

Mr. Wade Rutherford testified at the hearing that he was the driver of the TTC bus in question. He testified that he made a note of the incident in his book, but did not report it to the TTC until March 3, 1992, almost a month later. Mr. Rutherford testified that following Ms. M.'s report of the incident, a TTC inspector interviewed a number of possible drivers to determine whether any of them recalled an occurrence similar to that described by Ms. M. Mr. Rutherford testified that he prepared an occurrence report as a result of these inquiries. He had not done so earlier because the passenger who appeared to have injured her leg adamantly refused medical attention.

Mr. Rutherford testified that an elderly lady and two students wearing school uniforms boarded his bus at the intersection of Finch and Islington Avenues on February 5, 1992. He could not remember seeing Ms. M. board the bus, or speaking with her on that date. He acknowledged that he could not remember every person who had been on the bus on February 5, 1992, and that it was possible that he might have spoken to Ms. M. on that day.

According to Mr. Rutherford, he had stopped to pick up passengers at the bus stop. He was moving from the bus lane into the driving lane of traffic at the intersection, when a black Jeep cut in front of him to make a right turn. Instead of proceeding through the intersection, the Jeep stopped abruptly in front of the bus to avoid hitting pedestrians who were crossing in the intersection. Mr. Rutherford testified that he applied the brakes sharply to avoid hitting the Jeep. He heard a "tussle" behind him. He then learned that one of the students was complaining of a sore back or of pain in her right leg. He noted that "she was thrown against a pole during the braking....She repeatedly denied assistance."

Mr. Rutherford testified that he was not struck on his face by Ms. M. or by anyone else on the bus, and that no one struck the farebox, the railing beside the farebox or the railing behind him.

He acknowledged that when he hit the brakes he was looking straight ahead of him; however, he had peripheral vision, and since he was travelling at a low speed, he believed that he would have been aware of what was happening around him. Mr. Rutherford acknowledged that Ms. M. would have to have been in the front of the bus to have seen the black Jeep, or "4x4" vehicle pull in front of him. Ms. M. disputed that the driver produced by the TTC at the hearing was in fact the driver of the bus.

Finding

I accept that both Ms. M. and Mr. Rutherford testified about the events of February 5, 1992 to the best of their ability. Although some aspects of the incident as related by these witnesses cannot be reconciled, they relate the cause of the bus coming to a sudden stop in a similar manner, from the perspective of persons at the front of the same vehicle. There are also similarities in some of the surrounding details, such as their shared recollection of uniformed students boarding the bus at the stop, and the subsequent injuries and complaints of one of these students. Ms. M.'s injuries were consistent with the impact she initially described. I find, on a balance of probabilities, that Ms. M. was a passenger on a Toronto Transit Commission bus and that she was injured on February 5, 1992, in an "accident" within the meaning of the Schedule.

Entitlement to weekly income benefits

Under section 12(1) of the Schedule, Ms. M. must establish on a balance of probabilities that the injuries she sustained in the accident cause her to be substantially unable to perform the essential tasks of her occupation or employment after her weekly income benefits were terminated on July 26, 1993. Under section 12(5)(b) of the Schedule, after 156 weeks of benefits, Ms. M. must establish that her injuries continuously prevent her from engaging in any occupation for which she is reasonably suited by her education, training, or experience.

Essential tasks

At the time of the accident, Ms. M. was employed full time as an assembler at Acrylicraft Creations Ltd. She assembled and cemented a variety of acrylic display cases to customers' specifications. The cases were used primarily in retail stores for the display of items such as perfumes, eyeglasses, earrings, and cosmetics. The components of the display cases were of varying weights and sizes.

Ms. M. was required to stand for prolonged periods, bend repetitively, and sit occasionally. She would heat, bend and shape pieces of acrylic, precisely assemble them to make the display case, and then cement the pieces in place. She would polish the unit with a welding torch before lifting the finished display case onto skids. Ms. M. testified that she worked quickly and was often asked to do rush orders.

Ms. M. testified that she also worked on a part-time basis as a telephone solicitor for the Tobie Foundation between August 1991, and February 5, 1992, the date of motor vehicle accident.

Post-accident condition

Dr. Lasko, Ms. M.’s family doctor, examined her on February 6, 1992. He found that Ms. M. had a thoracic strain and multiple contusions to her rib and chest area mostly on her right side. He found marked tenderness around her thoracic vertebrae (T9-T12), right posterior ribs, right anterior ribs over the pectoralis major muscles, and on her back in a semicircular pattern just below her shoulders. He also diagnosed a lumbar strain. Dr. Lasko prescribed Tylenol #3, anti-inflammatory medications, and passive physiotherapy. He discontinued physiotherapy on April 6, 1992, and recommended that Ms. M. return to work.

Ms. M. testified that she returned to work at Acrylicraft but found herself unable to continue after two weeks. She then began a short-term job as a packer of books, at General Publishing, filling an order for a bookstore. That job lasted approximately five weeks, and ended on May 29, 1992. Ms. M. testified that this work involved lifting books, placing them in plastic shrink wrap, packing the books into boxes and placing the boxes onto skids. After the job was complete, she again returned to work at Acrylicraft. She testified that her employer placed her on modified duties such as peeling plastic wrap from the acrylic sheets. Ms. M. testified that she complained of pain while working. According to the Record of Employment, she worked between June 1, 1992 and July 17, 1992, when she was laid off by Acrylicraft, due to a shortage of work. A number of employees at Acrylicraft were also laid off at the same time.

Ms. M. testified that she attempted to return to her part-time work as a telephone solicitor for the Tobie Foundation in July 1992, but found herself too distracted by pain to function effectively. She testified that after three weeks she resigned from telephone soliciting at the request of her employer. Following the lay off from Acrylicraft in July 1992, Ms. M. claimed unemployment insurance benefits on the basis of the lay off. In August 1992, likely after she stopped her telephone work, she amended her claim to one for unemployment sick benefits.

Ms. M. testified that she felt herself becoming weaker and experiencing more pain throughout her body. She complained to Dr. Lasko of pain all over her body in August 1992. She had significant problems lifting, performing personal care, travelling by bus, with sitting and standing and social activities. She slept fitfully and complained that sexual activity was painful. Prior to the accident Ms. M. had been the primary homemaker. Following the accident, her husband did all of the grocery shopping and the majority of the housework. She was able to cook, dust and wash dishes. She described herself as "more than depressed."

In September 1992, Dr. Lasko diagnosed Ms. M. with fibrocytis, also known as fibromyalgia. He noted that she was "weepy," and seemed to be depressed. Dr. Lasko testified that fibrocytis is a difficult problem to treat, and he was aware that it was usually associated with depression. He referred Ms. M. to F.I.T., a rehabilitation facility, for a functional restoration program. Since there were psychologists and psychiatrists attached to F.I.T., Dr. Lasko hoped that they would also address Ms. M.’s emotional difficulties.

Ms. M. attended the program at F.I.T. for 13 half days between September 28, 1992 and October 28, 1992. She concluded that this program was not right for her and terminated her involvement. On September 28, 1992, Acrylicraft called her back to work. Ms. M. testified that she felt that she was unable to return to work since she was experiencing increased pain. She did not attempt to return to work.

In February 1993, Dr. Lasko was provided with a copy of a report of Dr. Ford, an orthopaedic surgeon, who examined Ms. M. at Markel’s request. Dr. Ford reported that he found little in the way of physical problems when he examined Ms. M., but a great deal of symptom magnification. Dr. Lasko agreed with Dr. Ford that Ms. M. was very pain focussed. In his opinion, Ms. M.’s problem was psychological. He felt that she was sincere about her pain complaints and that she was not malingering. He wanted a psychiatric opinion as to the cause of Ms. M.’s depression, and referred her to a psychiatrist.² Dr. Lasko also recommended that she try light duties in the hope that this push would get her back to work. Ms. M. did not follow through with the referral to the psychiatrist or a return to work.

In August 1992, Dr. Lasko had referred Ms. M. to Dr. A. Kachooie, a physiatrist. Dr. Kachooie was able to engage Ms. M. in a rehabilitation program. In April 1993, Dr. Kachooie referred her to a psychologist, Dr. Day, because of post-traumatic depression, marital discord and sexual dysfunction. In May 1993, Dr. Kachooie noted that Ms. M. had done "remarkably well." He was of the opinion that Ms. M. could do part-time work, four hours a day for three weeks, then increase her schedule an hour a day each week until she reached full-time capacity. He encouraged her to seek work in a retail store, which would impose lower physical demands, than a return to a factory setting. Ms. M. obtained application forms from several retail stores. According to her psychologist's records of August 30, 1993, she also applied for a part-time job; the rehabilitation worker assigned to the file noted that Ms. M. had not followed through with applying for jobs in retail stores. I find that at best, Ms. M. made a minimal effort to comply with Dr. Kachooie's recommendations.

On August 3, 1993, Dr. Kachooie saw Ms. M. for her final assessment. He found her mood had improved, and her headaches and back pain had decreased. He was of the opinion that work was both mentally and physically therapeutic for her. Dr. Kachooie released Ms. M. to return to her former job on a full-time basis as an assembler. Dr. Day, Ms. M.'s treating psychologist, also supported her return to work at this time. Both Dr. Kachooie and Dr. Day subsequently signed notes prepared by a rehabilitation worker in this regard.

Ms. M. felt that a return to work was premature. She testified that she then began looking for a doctor who would believe in her pain. She saw Dr. R. Richards, Dr. A. Friesner and Dr. S. Black as family physicians. She saw Dr. D. McNeely, a rheumatologist, in 1993, Dr. Prutis, a physiatrist, in 1995, and Dr. J. Digby, a rheumatologist in 1996. With the exception of Dr. Black,³ all of these physicians stated that Ms. M. meets the diagnostic criteria for fibromyalgia, has features of fibrositis fibromyalgia or have diagnosed her as suffering from fibroymalgia. Ms. M. has also been diagnosed as suffering from severe depression, chronic pain syndrome, and symptoms of post-traumatic stress disorder.

Dr. McNeely testified at the hearing that he attributed Ms. M.’s fibromyalgia to the accident, based on the history Ms. M. provided to him. He testified that there were different pathways into the diagnosis, such as trauma, stress, and illness. Some of the causes are not yet known. He acknowledged that the history he was given was critical to his opinion that Ms. M.’s fibromyalgia was the result of the accident on the bus, and that Ms. M.’s situation is particularly complex.

Findings and Conclusion

I find that Ms. M. has led a difficult life both before and after the accident. Her difficulties include giving birth to a child at the age of 15, while she was in Grade 10. She left school and raised her son in her mother’s home for approximately four years. She migrated to Canada at about age 19. She testified that upon her arrival in Canada in 1988, she was exploited as a nanny, then molested at her job at a beauty supply store. She attended school part-time while attempting to support herself through part-time work. One employer went bankrupt, and another overworked her.

In March 1990, she worked full time as an assembler and part-time as a telephone solicitor. In July 1991, she was fired from her full-time job. She continued to work at a part-time job earning between $38.00 and $105 per week. Ms. M. started her new job as an assembler at Acrylicraft in January 1992. She was doing well at that job, and also continued to work at her part-time job. She had been at her new full-time job for just over a month when she was injured on the bus.

I find that following the accident, Ms. M. was able to return to work for about two weeks, worked at another job for five weeks and then returned to her job for another six weeks. She was then laid off in mid-July. In August, she began complaining of pain all over her body. She was recalled to work in September and was unable to return because of her pain. In September 1992, she discovered that she was pregnant; in October 1992, she had an abortion, without her husband's knowledge. In March 1993, her brother died in an accident. In April 1993, she was diagnosed with post-traumatic depression, marital and sexual dysfunction. She suspected that her husband had been having an affair. In July 1993, her husband left her and moved to British Columbia. In October 1994, she moved into an apartment which is specially designed to accommodate persons with physical disabilities. In 1996, she began taking correspondence courses in bookkeeping. She testified that she had to repeat her examinations because of her inability to concentrate. Ms. M. testified that in February and March 1996, she attempted to work as a receptionist at Accountrite, but was only able to work for 22 hours over a one month period. She continues to obtain psychotherapy from her family physician. Her medications include an antidepressant, Prozac.

Ms. M. attributes all of her problems to the motor vehicle accident. Dr. McNeely acknowledged that he was unaware that Ms. M. had quit or been fired from her full-time job in July 1991, that she had a child at the age of 15, who was being raised by her mother, that following the accident she had an abortion, that following the accident she had worked, and that following the accident she had already been diagnosed and treated for fibromyalgia by Dr. Kachooie.

Dr. McNeely acknowledged that there were differences in the history Ms. M. gave to him and to Dr. Digby, a rheumatologist and to Dr. R. Lexier, an orthopaedic surgeon. Dr. McNeely agreed that he would have liked to have known a number of these facts before attributing her fibromyalgia to the accident on the bus. The histories set out in the reports of Dr. Prutis, Dr. Digby, Dr. Friesner, Dr. Richards are even more limited than that available to Dr. McNeely. I have similar concerns in accepting their opinions attributing Ms. M.'s disability to the accident on the bus. Dr. Prutis has also stated that Ms. M. suffers from chronic pain syndrome. Insofar as she attributes this to the motor vehicle accident, I have similar concerns in accepting her opinion, given her limited knowledge of Ms. M.'s history.

In June 1994, Dr. S. Black, a family physician, wrote a four line report stating that Ms. M. was totally disabled from doing any type of work as a result of the accident of February 5, 1992, and that he anticipated that she would be disabled in the foreseeable future. Although reports of other consultants were filed as part of his clinical notes and records, Dr. Black does not state the basis for his opinion, nor does he indicate why he attributes this disability to the accident. In the context of Ms. M.’s complex factual situation, I am not prepared to give any weight to this bald opinion.

Ms. M. was examined by Dr. Lexier, an orthopaedic surgeon, on May 13, 1994, at the request of Markel. In Dr. Lexier’s opinion, since soft tissue injuries usually resolve in six to eight weeks, Ms. M.’s return to work in 1992 was consistent with a recovery from her physical injuries. Dr. Lexier was of the opinion that from an orthopaedic point of view, she was able to return to her pre-accident employment. However, in his opinion, Ms. M. had developed a full-blown psychopathology and required psychiatric intervention.

The Insurer has accepted that Ms. M. was disabled as a result of the accident following her lay off in July 1992 until it terminated weekly income benefits on July 26, 1993. There was no claim for a repayment of benefits paid during this period, and no issue before me as to whether Ms. M. was disabled as a result of the accident during that period of time. I am not persuaded on the evidence before me that Ms. M.’s physical difficulties after July 26, 1993 are attributable to the accident on the bus.

On May 24, 1994, Ms. M. was assessed by Dr. H. Arndt, a psychiatrist, at the request of Markel. In his opinion, Ms. M. was primarily depressed and suffering from chronic pain syndrome. She also displayed considerable anxiety and several of the cardinal symptoms of a post-traumatic stress disorder. Dr. Arndt was of the opinion that Ms. M. was in considerable distress and genuinely so, that is to say, she was not consciously malingering. However, Dr. Arndt found it "too difficult to believe that Ms. M. was fully functional until the motor vehicle accident and then suddenly was unable to continue in her usual lifestyle." He wished additional background information on Ms. M., her work history and records of her academic performance since her arrival in Canada. No further report was provided from Dr. Arndt, and he did not testify at the hearing.

Dr. Arndt also recommended a complete psychological assessment, which was conducted by Dr. Camenietzki on behalf of Markel on June 27 and 28, 1994. Dr. Camenietzki testified that he conducted a brief clinical interview and administered five psychological tests.

Dr. Camenietzski agreed with Dr. Arndt's diagnosis that Ms. M. had a depressive disorder and chronic pain disorder. He concluded that she was a very unhappy, disturbed and distressed person with a moderate to severe paralyzing depression. In his opinion, Ms. M. has very low self-esteem, sees herself as a person who is doomed and who will not get anywhere in life. Her depressive disorder was causing her vocabulary to be impaired, her concentration to be practically non-existent, and her test scores to read as if she were borderline mentally retarded. Dr. Camenietzki testified that he had difficulty understanding how Ms. M. is able to get out of bed in the morning.

Dr. Camenietzki testified that the role of the motor vehicle accident in causing Ms. M.'s psychological difficulties was not clear-cut. He testified that he found it a puzzling and complicated fact situation: before the accident she had a job, was enjoying life, and was married. Following the accident, she worked for a while, was laid off, did not return to work when recalled, and then went into a career of being a patient. Her pain was not explained by physical findings, and "she had this incredible preoccupation with the accident and attributed everything to it." Her post-accident losses complicated the picture, since a cluster of losses will predispose to the development of depression.

Dr. Camenietzki felt that Ms. M. had legitimate reasons for being angry, since she had been in pain for two years when he saw her and had been through a number of treatments over a period of two years which had not been very helpful to her.

I accept that Ms. M. is disabled by her psychological problems. I must determine whether this is as a result of the accident on the bus. Many arbitrators have concluded that under section 12 of the Schedule, the accident need not be the sole cause of disability.⁴ Ms. M. need only establish that the accident significantly contributed to her psychological problems. I agree with and adopt this approach.

Dr. Camenietzki was provided with a number of hypotheticals which were not borne out by the evidence. Dr. Camenietzki provided two possible explanations as to how the accident contributed to the development of Ms. M.’s psychological disorders. One was that the accident was an unexpected trauma which caused her a shock. The second was that her pre-accident personality traits — that she was angry, dependent, clingy, obsessive-compulsive and had a tremendous amount of pre-existing aggression, could have predisposed her to developing the disorders.

Neither of these explanations take into account Ms. M.’s ability to engage in the reactivation program recommended by Dr. Kachooie and her progress in that program. Neither explanation takes into account the opinions of Dr. Day, her treating psychologist, and Dr. Kachooie, her treating physiatrist, that by August 3, 1993, Ms. M. was mentally and physically able to return to her former job. While I accept that Ms. M. is disabled for psychological reasons I am not persuaded by Dr. Camenietzki’s opinion that the accident on the bus was the cause of that disability. I conclude that Ms. M. has not established on a balance of probabilities that the cause of her psychological disability is the accident on the bus. I also conclude that Ms. M. has not established that she is entitled to weekly income benefits after July 26, 1993.

Special Award:

Counsel for the Applicant advanced a claim for a special award in the course of his submissions. This is a discretionary award, made under the provisions of the Insurance Act, where an arbitrator is satisfied that the Insurer has unreasonably withheld or delayed the payment of benefits. Since I have determined that Ms. M. was not entitled to further weekly income benefits, there is no basis upon which I can make a special award.

Expenses:

Counsel agreed to provide written submissions with respect to Ms. M.'s entitlement to expenses within thirty days of this decision. I remain seized of this issue.

Order:

1. Ms. M. is not entitled to weekly income benefits after July 26, 1993.

2. Ms. M. is not entitled to interest on overdue benefits.

3. Ms. M. is not entitled to a special award.

4. I remain seized of the issue of Ms. M.'s entitlement to expenses.

September 30, 1997

Suesan Alves Arbitrator

Date

APPENDIX A

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on November 26, 27, 28, and December 2, 1996, before me, Suesan Alves, Arbitrator.

Present at the Hearing:

Applicant: S. M.

Ms. M.'s Representative: David Brooker Barrister and Solicitor

Markel's Representative: Boyd Critoph Barrister and Solicitor

Witnesses:

Ms. S. M., Dr. Lasko, Dr. Camenietzki, Dr. McNeely, Dr. Ford, Mr. Wade Rutherford

Exhibits:

Ten exhibits were filed at the hearing.

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. 2Dr. Lasko, Ms. M.'s family doctor, was unable to shed much light on Ms. M.'s pre-accident psychological or psychiatric condition. In July 1991, Ms. M. complained to Dr. Lasko of shortness of breath, and tension headaches when she wished to claim sick benefits from UIC. "Anxiety neurosis, hysteria, neurasthenia, reactive depression" appears as the diagnostic code for Dr. Lasko’s services on that occasion. At the hearing Dr. Lasko testified that this was a "mixed bag" category which was used for the OHIP billing, but should not be considered as a differential diagnosis of her condition on that occasion. She could have had asthma or it could have been anxiety. It is clear from the clinical notes of Dr. Lasko’s associate that Ms. M. had no medical basis on which to claim unemployment insurance sick benefits. UIC rejected her claim for sick benefits. Dr. Lasko was able to clarify that prior to the accident Ms. M. had not been treated by him for any musculoskeletal problems.
3. 3Dr. Black opined that Ms. M. is totally disabled. His report is discussed at page 12
4. 4Donna Flemming and Wawanesa Mutual Insurance (April 28, 1992), OIC A-000406; Chor Ting Lui and Wellington Insurance Company (April 28, 1993), OIC A-001894; Bahadur Chhokar and Allstate Insurance Company of Canada (December 2, 1993), OIC A-004294; Jennifer I. Rustico and Royal Insurance Company of Canada (February 15, 1994); OIC A-002539; P.S. and Toronto Transit Commission (MarkelInsurance) (May 4, 1994), OIC A-001116; Gail MacNeill and Royal Insurance of Canada (October 1, 1994), OIC A-000057; Filomena Furtado and York Fire and Casualty Insurance Company (June 22, 1995), OIC A-008927 (under appeal); Shelly L.P. and Royal Insurance Company of Canada (June 23, 1995), OIC A-002235 (upheld on appeal); Dragica Mladenovic and Dominion of Canada General Insurance Company (September 11, 1995), OIC A-008849, (under appeal); David Freeman and Wellington Insurance Company (October 16, 1995), OIC A-013578; Bruna Pisani and Simcoe and Erie General Insurance Company and Canadian General Insurance Company (December 11, 1995), OIC P-00039297/P-005693; Narinder Tiwana and Allstate Insurance Company of Canada (February 13, 1996), OIC A-950155; Barbara Edwards and State Farm Mutual Automobile Insurance (February 26, 1996), OIC P-001707; Klime Milevski and State Farm Mutual Automobile Insurance Company (June 6, 1996), OIC A-010292; Ms. B and Non-Marine Underwriters, Members of Lloyd's, London, England (June 24, 1996), OIC A-013947; Lawrence Whitney and Co-operators General Insurance Company (July 10, 1996), OIC A-001005 (upheld on appeal); Ghenet Worku and Cooperators General Insurance company, (August 29, 1996), OIC A-002172; Teodor Brait and Allstate Insurance Company of Canada (July 23, 1997) OIC A-96-000786;