Neutral Citation: 1997 ONICDRG 72

OIC A-013531

ONTARIO INSURANCE COMMISSION

BETWEEN:

SUPRIYA R. N. BASU

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Supriya R. N. Basu, was injured in a motor vehicle accident on September 3, 1993. She applied for statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under Ontario Regulation 672.¹ The parties were unable to resolve their disputes through mediation and Mrs. Basu applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to combined weekly benefits and weekly childcare benefits of $285 per week under section 13 of the Schedule after January 28, 1994, with interest under section 24 of the Schedule?

2. Is the Applicant entitled to supplementary medical and rehabilitation benefits claimed under section 6 of the Schedule, with interest under section 24 of the Schedule?

3. Is the Applicant entitled to ongoing interest on medical and rehabilitation benefits of $8,595.99 paid on November 8, 1995?

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

Mrs. Basu also claims her arbitration expenses incurred.

Result:

1. The Applicant is entitled to benefits of $285 a week between June 17, 1995 and December 31, 1995 with interest.

2. The Applicant is entitled to the following medical and rehabilitation benefits, with interest:

(a) $1,415, for physiotherapy, massage and chiropractic treatments at Physiosport Therapy Clinic between August 8, 1995 and December 31, 1995;

(b) travel expenses of $143 for taxi fare to medical and rehabilitation appointments;

(c) reimbursement for that portion of the purchase price of the Applicant's orthopaedic bed that relates to the cost of the mattress and box spring, and an amount for the reasonable cost of an appropriate steel frame;

(d) $639.43 for prescription drugs;

(e) $27.59 for a cane;

(f) $101 for a lumbosacral support;

(g) $45 for ambulance services provided on June 18, 1995 between the Applicant's home and Scarborough Grace Hospital; and

(h) telephone expenses of $21 incurred during the Applicant's stay at Central Hospital in June 1995.

I remain seized of the issue of the Applicant's entitlement to medication benefits for Zantac and Prenisone.

3. No interest is payable on the medical and rehabilitation benefit payment of $8,595.99 after November 8, 1995, when the benefits were paid. However, the Insurer shall replace the original cheque, which is now stale-dated.

4. The Applicant is entitled to a special award of $500 inclusive of interest under section 282(10) of the Act.

5. The Applicant is entitled to be reimbursed for half her arbitration expenses.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on May 6, 7, 8 and 21, 1996.

Present at the Hearing:

Applicant:

Supriya R. N. Basu

Mrs. Basu's

Peter F. Haber

Representative:

Barrister and Solicitor

Zurich's

Albert Conforzi

Representative:

Barrister and Solicitor

Stella Loparco

Law Clerk

Zurich's

Judy Pay

Officer:

Arbitrator:

Nancy Makepeace

The hearing was recorded by Catherine Boyle, of Rosenberger & Weir.

Witnesses:

Mrs. Basu, the Applicant

Dr. Khan, the Applicant's family doctor

Dr. Taverniti, the Applicant's chiropractor

Susan Neal, the Applicant's former supervisor

Gordon Faber, son of Klaus Faber, the independent adjuster retained by the Insurer

Michael Lee, Metropolitan Toronto Social Services

Dr. Sattarian, orthopaedic surgeon

Exhibits:

Exhibit 1

Applicant's Medical Records

Exhibit 2

Applicant's Expert Reports

Exhibit 3

Pleadings and Other Documents (Applicant's Brief)

Exhibit 4

Applicant's Schedule of Unpaid Benefits and Receipts

Exhibit 5

Insurer's Welfare Records Brief

Exhibit 6

Insurer's Document Brief

Exhibit 7

Form report concerning the Applicant's husband

Exhibit 8

Letters with respect to primary caregiver benefits

Exhibit 9

Documents with respect to Rosedale Clinic

Exhibit 10

Receipt for Orthopaedic Bed, with notation by store clerk

Exhibit 11

Income Maintenance Eligibility Record

Exhibit 12

Job Search Planner and Record

Exhibit 13

Diagram of Disc Prolapse

Exhibit 14

Dr. Sattarian's Curriculum Vitae, and amended version of p. 5

Exhibit 15

Letter from Philip Shing, Pharmacist, dated May 8, 1996

After the hearing, I received copies of correspondence between counsel with respect to the Applicant's ongoing expenses incurred at the Physiosport Therapy Clinic. Mr. Conforzi also filed written submissions with respect to arbitration expenses.

Evidence and Findings:

Background:

The Applicant is a 43-year-old married woman and mother of two children aged about 15 and 9. At the time of the accident on September 3, 1993, she was an unemployed homemaker. She claims that as a result of injuries sustained in the accident - especially low back pain, neck and right shoulder pain, and headaches - she remains disabled from engaging in her pre-accident activities. The Insurer terminated her benefits effective January 28, 1994.

Test for Entitlement to Benefits under Section 13(1) and 13(4):

In order to establish her entitlement to weekly benefits and weekly childcare benefits, the Applicant must prove, on a balance of probabilities, that because of her accident-related injuries she is substantially unable to perform the essential tasks in which she would normally engage.

The Applicant's Essential Tasks:

The Applicant, her husband, and their two children lived in an apartment before the accident. The Applicant was responsible for the childcare and housework. She described her daily activities in a document prepared for this proceeding,² and in her testimony at the hearing. The document listed the following activities: cleaning/mopping floors (18 minutes a day), cleaning/scrubbing appliances (40 minutes a day), cleaning bathtub and tiles (5 minutes a day), laundry (done in a laundry area downstairs, 35 minutes a day), vacuuming (nine minutes a day), sports/exercise (17 minutes a day), knitting/sewing (30 minutes a day), preparing traditional Indian style meals (160 minutes a day), preparing western style meals (50 minutes a day), washing dishes (40 minutes a day), making beds (10 minutes a day), cleaning counters/surfaces (25 minutes a day), teaching music (21 minutes a day), walking to errands (40 minutes a day), grocery shopping (20 minutes a day), attending temple (2 hours a week), personal bathing (30 minutes a day), playing with the children (15 minutes a day), and prayers (30 minutes a day). In addition to these activities, the Applicant volunteered at a Heritage program her children attended on Saturday mornings.

In cross-examination, the Applicant admitted that she did not do all of the listed activities every day: for example, she did not do laundry every day. She described her "sports/exercise" activities as playing badminton with her children, doing stomach exercises and yoga. When asked how often she performed these activities, she responded "in the morning some times, at the community centre." I have the impression that the Applicant engaged in sports/exercise activities sporadically, infrequently and with little commitment.³ I am not persuaded that they were activities in which she normally engaged. I heard no evidence at all about knitting and sewing, and I do not accept that these were essential tasks in which the Applicant would normally engage.

In general, I heard little oral evidence about the Applicant's pre-accident housework and childcare activities, and I have the impression that the Applicant exaggerated the duration of some of the activities listed on the document. For example, 20 minutes of grocery shopping a day means 140 minutes - more than two hours - per week. The Applicant's list would also have her spending 210 minutes a day - 32 hours - cooking. In the absence of persuasive, detailed oral evidence from the Applicant, or independent corroboration from others, I find that the Applicant exaggerated her pre-accident essential tasks. Nevertheless, I accept that as a wife and mother of two children, the Applicant was busy with housework and childcare activities.

The Applicant also testified that she completed a number of courses in the year and a half before the accident.⁴ The last of these courses ended on July 31, 1993, a little more than a month before the accident.

The Applicant and her husband began receiving social assistance benefits in 1992 while attending job skills courses. In August 1993, a couple of weeks before the accident, a caseworker advised the Applicant that she must begin looking for work and filing a monthly job search report. The first report, filed with Social Services after the accident, indicates that the Applicant had made several job search contacts in the weeks before the accident.

Accordingly, I find that the essential tasks in which the Applicant would normally engage included job skills courses and looking for a job, as well as looking after her children and home.

Credibility:

In addition to my finding that the Applicant exaggerated her essential tasks, the Applicant's evidence includes several other significant discrepancies.

On September 7, 1993, the Applicant's husband, Rabindra Basu, signed a statement made in the presence of Mr. Klaus Faber, the independent adjuster retained by the Insurer. The statement includes the following: "My wife is employed with (name will be made available at a later date)." Mr. Basu did not testify at the hearing. When asked in cross-examination whether her husband was telling the truth in making this statement, the Applicant responded "I can't say, it depends on the circumstances." When the question was repeated, she said that she did not know what her husband was telling people, it was his business: "you can judge." I found her response to be evasive.

When the Applicant first attended Dr. Taverniti's clinic in February 1994, she told Dr. Taverniti that she worked as a secretary before the accident, and that her duties involved using a computer, answering the phone, data entry, and translation services.⁵ Dr. Taverniti based his report and assessment on this information.⁶ Asked to explain this in cross-examination, the Applicant said she was referring to her work in one of her co-op courses which had ended more than a year before the accident. The Applicant also explained that she volunteered as an interpreter at a heritage program on Saturdays. In examination in chief, she said this lasted a day a week; in cross-examination, she said it lasted four hours. She was paid for neither job, and she admitted that neither was a secretarial position.

Although the Insurer initially questioned whether the Applicant had in fact been working before the accident, at the hearing, the Insurer accepted that the matter should proceed as a section 13 claim based on the Applicant's having been unemployed before the accident. However, the Applicant's misrepresentation to Dr. Taverniti undermines her own credibility and the value of his report.

In addition, the Applicant did not tell Social Services about the statutory accident benefits she received. In her testimony, the Applicant admitted that she knew she was obliged to report income from employment. Initially, she testified that she did not know she was required to report statutory accident benefits. On cross-examination, she said, "no one asked." I find that this answer indicates that she knew she should report statutory accident benefits received. The Applicant's failure to report her accident benefits to Social Services indicates that she is willing to misrepresent her financial situation in order to maximize her social assistance benefits, and suggests that she may be willing to misrepresent her situation in order to receive further statutory accident benefits. This further undermines her credibility.

On May 16, 1994, about nine months after the accident, the Applicant began a 12-month job incentive placement as a volunteer at a community centre. She worked 35 hours a week providing administrative support for special events and fundraisers. The Applicant shared an office and a computer with her supervisor, Ms. Susan Neal. The Applicant was dismissed from the placement effective July 14, 1994. She testified that she left because Ms. Neal asked her to do some outside work that involved lifting, which she could not do, and because Ms. Neal would not accommodate her doctors appointments. The Applicant's evidence was that she told Ms. Neal about her back problems and her doctors appointments, but not about the accident, although she told "Peggy," another worker at the centre, about the accident. Ms. Neal testified that she observed no signs of any disability during the Applicant's placement, knew nothing about a motor vehicle accident, and that the Applicant's dismissal was for reasons unrelated to any disability. "Peggy" did not testify.

Ms. Neal appears to have no interest in the outcome of these proceedings. Her testimony that the Applicant did not complain of or show signs of having any neck, back or other injuries, though they worked together in the same office for two months, is compelling. Moreover, her testimony as to the reasons for the Applicant's dismissal was consistent with her contemporaneous report to the Applicant's Social Services caseworker. In the absence of independent evidence corroborating the Applicant's testimony, I am not satisfied that any residual symptoms the Applicant might have experienced during this placement were disabling or had anything to do with her dismissal. The Applicant's misrepresentation with regard to the placement further undermines her credibility.

For these reasons, where there is any conflict between the Applicant's testimony and the objective evidence of medical experts and independent witnesses, I prefer to rely on the latter.

The Applicant's Condition and Treatment between the time of the Accident and the Termination of Benefits on January 28, 1994:

On September 3, 1993, the Applicant was travelling in a van along with three other adults and four children in Batavia, New York. The Applicant was sitting in the middle seat of the van, behind the front passenger seat. She wore a lap belt. After passing a tractor-trailer, the van re-entered the curb lane in front of the truck, but did not clear the truck, which struck the van's right rear end. The van lost control, went into a ditch and flipped end over end.

The Applicant was taken by ambulance to Genesee Memorial Hospital in Batavia. The Ambulance and Hospital Emergency records indicate that her main complaint was severe right-sided low back pain. She also complained of shortness of breath, as well as pain in her head, neck, right shoulder and the back of her chest. On examination, she was found to be tender at the back of her right lower ribs and over her right posterior iliac crest. She also had two bumps on her forehead and minor abrasions on her back. X-rays of her back showed minimal osteoarthritic changes in her cervical spine and mild changes in her lumbar spine. The Applicant was admitted to the hospital for observation, and discharged on September 5 with instructions to use Tylenol for pain, as well as a cervical collar and rib belt. Though she was non-ambulatory on admission because of pain, she was able to walk by the time of her discharge.⁷

The Applicant saw her family doctor, Dr. S. Khan, on September 9, 1993, complaining of pain in her upper and lower back, especially on the right side, bilateral shoulder pain, and neck pain. Dr. Khan prescribed Tylenol 3, anti-inflammatory medication and physiotherapy. The Applicant continued to see Dr. Khan regularly, reporting ongoing pain.⁸

The Applicant began receiving chiropractic and physiotherapy treatment at the Rosedale Chiropractic Clinic ("Rosedale") on September 14, 1993. She attended daily at first, then about three times a week.⁹ Her initial passive treatment included spinal manipulation therapy, trigger point therapy, electrical muscle stimulation with heat and massage therapy.¹⁰

On November 2, 1993, the Applicant was examined by Dr. George D. Kay, an orthopaedic specialist, at the Insurer's request. Dr. Kay found the Applicant's clinical examination "surprisingly very close to normal and without complaint nor [sic] distress." He reported that the Applicant's neck muscles were "perhaps just a little tight," lateral flexion and rotation of her neck were "close to normal," and cervical extension was two-thirds. Examining the Applicant's lumbar spine, Dr. Kay found that her paravertebral muscles may also have been "a little tight;" the Applicant had three-quarters flexion, "almost full" extension, and lateral flexion of "a third." He felt that the Applicant should be able to do light housework in three weeks and should be able to undertake all her housework in about six weeks. He recommended that she cease her passive physiotherapy and begin an active program.

Mr. Klaus Faber, the independent adjuster retained by the Insurer, sent Dr. Kay's report to Dr. Khan.¹¹ On January 20, 1994, he telephoned Dr. Khan. His confirmation letter, written the day after their conversation, indicated that Dr. Khan was "essentially in agreement" with Dr. Kay's opinion that the Applicant should be able to do all her housework activities in "about six weeks" after the date of Dr. Kay's November 2, 1993 report, though she might not yet be employable outside the home.¹²

Mr. Faber did not testify, and Dr. Khan's testimony about their conversation was unclear and not very helpful. Essentially, Dr. Khan testified that by January 20, 1994, the Applicant could perform her normal housework activities if she worked at her own pace and did not, for example, lift large piles of laundry all at once. In any event, Dr. Khan did not respond to Mr. Faber's invitation to reply if she disagreed with the contents of the letter. Accordingly, the Insurer terminated the Applicant's benefits on January 28, 1994.

Dr. Khan's clinical notes confirm that the Applicant had reported some improvement in visits in late 1993 and early 1994. Dr. Khan's notes are also consistent with the Applicant's self-evaluations at the Rosedale clinic during this period, which reported steady improvement, despite ongoing symptoms.

In February 1994, Dr. Henrikson, the Applicant's chiropractor, referred her to Dr. A. Taverniti, a chiropractor and rehabilitation specialist, for a Functional Abilities Evaluation ("FAE"). Dr. Taverniti found that the Applicant showed signs of cervical and lumbar injury and severely reduced range of movement in her neck and back. He concluded that because of severely reduced strength, endurance and flexibility, the Applicant was unable to perform her housework and childcare tasks or return to the secretarial work she told him she had been performing before the accident.

Dr. Taverniti testified that he disagreed with Dr. Kay's conclusion that the Applicant was "surprisingly close to normal." Dr. Taverniti suggested that his use of various instruments to measure restriction of movement ensured an objective functional assessment. Although I found Dr. Kay's description of his clinical findings quite vague, I am not persuaded that measurement tools convert a range of motion assessment from subjective to objective, although they provide some additional precision. I find that Dr. Taverniti's range of motion findings relied, as Dr. Kay's did, on the Applicant's subjective pain complaints.

I have other concerns about Dr. Taverniti's report. He did not have an opportunity to review the Applicant's medical records, so he was entirely dependent on the Applicant's history and complaints. He did not test the Applicant's ability to do housework, childcare or secretarial work. Moreover, on cross-examination, he was reluctant to admit that the Applicant's misrepresentation of her pre-accident activities might affect the validity of his assessment. Dr. Taverniti testified that his first report was requested by Dr. Henriksen, another chiropractor, who wanted to justify his plan for a structured rehabilitation program. I have the impression that Dr. Taverniti was acting as the Applicant's advocate in this matter.

Dr. Kay's conclusions were supported by Dr. B.S. Sehmi, an orthopaedic surgeon to whom Dr. Khan referred the Applicant in April 1994. Dr. Sehmi found that the Applicant had mild tenderness and stiffness in her neck and back, and pain in her right shoulder with movement. He found no evidence of neurological involvement.¹³ Dr. Sehmi's findings were little changed when he assessed the Applicant a year later on March 10, 1995. He recommended that she do more exercises on her own, using Zostrix cream for pain relief.

The minimal objective findings of Dr. Kay and Dr. Sehmi do not necessarily mean the Applicant is able to return to her pre-accident activities. Arbitrators have frequently accepted that chronic pain unexplained by organic findings may be disabling. However, in the absence of objective medical evidence of disability, other factors become critical, including the Applicant's general credibility, the consistency and continuity of complaint and treatment, and independent evidence about the Applicant's functional level before and after the accident.

For the reasons given earlier, I did not find the Applicant credible. I received no independent evidence supporting her claims about her activity level before and after the accident. However, the Applicant did make regular and consistent complaints to Dr. Khan and to the massage therapist at Rosedale. In her self-evaluations at Rosedale in June and September 1994, the Applicant reported ongoing pain of about 5-6 out of 10 in severity in her neck, upper back, shoulders (trapezius muscles), lower back (especially on the right side), legs (posterior quadriceps), upper arms, neck, forehead, and the suboccipital area of her skull. She also complained about frequent headaches and sleeplessness. Tightness in her neck and shoulders was frequently noted. Despite my concerns as to the Applicant's credibility, I do not think she manufactured these complaints; I accept them as genuine. The more difficult question is whether they continued to be disabling after benefits were terminated on January 28, 1994.

The Applicant's Social Services file includes no mention of the Applicant's accident or accident-related injuries. The Applicant's first Job Search Report, received by Social Services on September 23, 1993, indicated that the Applicant made two telephone contacts on September 7 and 9 - four days and seven days, respectively, after the accident. The Applicant reported that she was looking for work as a receptionist, clerk, cashier, or bank teller. Subsequent Job Search Reports between September 10, 1993 and May 15, 1994 indicate that the Applicant made about 150 job contacts. On November 23, 1993, about 2 1/2 months after the accident, the Applicant told her massage therapist at Rosedale that she had a headache all day that may have resulted from using a computer at home the day before.¹⁴ In cross-examination at the hearing, she explained that she "corrected" some papers for her husband. I think it likely that she was preparing job applications for her husband and herself.

I accept the Applicant's submission that her willingness to apply for a particular job does not necessarily prove she could do the job. However, the Applicant was not employed before the accident. As a section 13 claimant, she must prove that the accident rendered her substantially unable to perform her pre-accident essential tasks, which included looking for a job, but did not include performing a job. I find that the Applicant was able to resume her job search by mail and by telephone within days of the accident, and she began making in-person contacts on October 9, about a month after the accident.

Though I accept that the Applicant continued to suffer some ongoing symptoms in late 1993 and early 1994, I find that they were not serious enough that the Applicant felt it necessary to ask Social Services to release her from her job search obligations. I contrast the Applicant's silence about the accident with her willingness to call her caseworker about needing a pair of glasses (October 5, 1993, one month after the accident), or about her need to stay home from her job placement while her son's daycare centre was closed (July 11, 1994). I also find it significant that after meeting with the Applicant on February 16, 1994, the Applicant's Social Services worker made no note of any sign or complaint of disability. This was only a week after Dr. Taverniti's assessment, which identified numerous disabling functional limitations and rated the Applicant as "crippled."

I heard little evidence about how the Applicant's accident-related injuries affected her ability to look after her children and home. In November 1993, the Applicant told Dr. Kay that "a little light cooking" was the only household task she was then able to perform. In February 1994, she told Dr. Taverniti that she was slowly increasing her housework, but could not do more than one or two hours of work before she fatigued, and was unable to lift her son, who was then six years old and weighed 24 kg. In her "List of Daily Activities,"¹⁵ the Applicant indicated that until September or October of 1994, she was disabled from all her pre-accident housework and childcare activities except for preparing western style meals for 70 minutes a day, playing with her children, praying, writing letters, and watching television. She also indicated she could bathe with help.

I am not satisfied that the Applicant remained substantially disabled from her essential housework and childcare tasks a year after the accident. I find the Applicant's claimed disability inconsistent with her relatively minor injuries, and her testimony lacked persuasive detail and was not independently corroborated. Moreover, I found it inconsistent with her resuming her job search within days or weeks of the accident.

For these reasons, I find that the Applicant is not entitled to weekly benefits and weekly childcare benefits after January 28, 1994, when benefits were terminated.

After benefits were terminated, the Applicant continued her job search. As noted above, she worked full-time between May 16 and July 14, 1994, when she was dismissed for reasons unrelated to the accident. In late July 1994, she began another full-time clerical placement at another community centre, which she quit when the family's social assistance benefits were terminated in August 1994.¹⁶ There was no evidence to suggest that she left because of medical problems.

On September 8, 1994, the Applicant began a 30-hour a week co-op course training to be a Customer Service Representative ("CSR") or bank teller. She quit on December 16 to travel to India because of her mother's death. She re-enrolled in February 1995, and had completed most of the course by June 17, 1995, when she suffered her exacerbation of back pain. In early 1995, during the tax season, the Applicant also earned income of about $800 at H & R Block.¹⁷Accordingly, I am not satisfied that the Applicant experienced any recurrence of disabling symptoms between January 28, 1994 and June 17, 1995.

Exacerbation of pain June 1995:

On June 17, 1995,¹⁸ the Applicant woke up with severe back pain radiating down her buttocks and left leg to her foot, such that she was unable to sit or stand. When Tylenol failed to relieve her pain, her husband called Dr. M.S. Randhawa, a doctor who made house calls. Dr. Randhawa visited the Applicant and prescribed range of motion and strengthening exercises.¹⁹ The following evening, the Applicant was taken by ambulance to Scarborough Grace Hospital. The Ambulance Report indicates that she was unable to walk due to pain. Lumbosacral x-rays were negative, except for "straightening of the normal lumbar lordosis [which] indicates presence of paravertebral muscle spasm."²⁰ The Applicant was discharged with instructions to continue with her current medication.

When the Applicant's pain continued, Dr. Khan sent her back to Dr. Sehmi, who examined her on June 23, 1995 and reported as follows:

Clinically, she had symptoms and signs of lumbar disc derangement with left sciatica. I had difficulty in obtaining her left ankle jerk and there was numbness in the left leg. She was in quite a lot of pain and was hardly able to move and therefore, I have arranged admission for her at Central Hospital where further investigations including CT scan will be done. She may well need discotomy.²¹

The Applicant was admitted to Central Hospital on June 23, 1995 and assessed by Dr. G. Ahmad, an orthopaedic surgeon, and Dr. O.F. Veidlinger, a neurologist. Both doctors found positive clinical signs of disc herniation. This was confirmed by the CT scan, which revealed "a small herniated disc present at the L5-S1 centrally and projecting to the left of the midline," as well as minor degenerative changes in the posterior facet joints. The Applicant was discharged on June 30, 1995 with prescriptions for analgesic, anti-inflammatory and muscle relaxant medication.²² The hospital records indicate that the Applicant's ankle jerk had returned, and she was somewhat more mobile on discharge.

After moving to a house in Scarborough, the Applicant began seeing a new family doctor, Dr. B. Purewal. Dr. Purewal referred her to Dr. J. Sattarian, an orthopaedic surgeon, in August 1995. The Applicant told Dr. Sattarian that although she had "slight improvement" in her symptoms since June 17, 1995 she still had lower back and left leg pain as well as left leg numbness aggravated by standing and walking. Dr. Sattarian observed that the Applicant walked with a limp favouring her left side. He confirmed the diagnosis of disc protrusion and left-sided L5-S1 radiculopathy. He recommended that the Applicant continue with anti-inflammatory medication and physiotherapy.

When Dr. Sattarian examined the Applicant on October 25, 1995, he found that her lumbar range of motion and straight leg raising had improved, though they were still below normal. On November 29, 1995, the Applicant "had noticed improvement in her leg and back pain but she was still experiencing occasional pain in her leg," as well as neck and shoulder pain and headaches. When she saw Dr. Sattarian on January 24, 1996, the Applicant reported residual lower back and leg pain exacerbated by prolonged sitting or standing.

However, Dr. Taverniti assessed the Applicant on January 23, 1996, and concluded that the Applicant's accident-related symptoms "continue to be severe enough ... to prevent her from performing the essential tasks of a care giver and prevent her from engaging in a normal life."²³

Dr. Michael C. Hall, an orthopaedic surgeon, assessed the Applicant at the Insurer's request on February 26, 1996.²⁴ Dr. Hall agreed that the Applicant showed the signs of L5-S1 radiculopathy. His positive findings are consistent with those of Drs. Sehmi, Veidlinger, Sattarian and Taverniti, all of whom diagnosed disc herniation with left sciatica after June 17, 1995. I accept the diagnosis of L5-S1 disc herniation with left radiculopathy, which was not challenged by the Insurer.

Dr. Hall did not, however, accept that the Applicant's disc herniation was related to the motor vehicle accident, for two reasons. First, it is Dr. Hall's general view that disc herniations occur spontaneously:

It is fully accepted in the orthopaedic world that disc herniations occur without preceding injury and that there is rarely any connection between injury and disc herniation. It is not unnatural that workers think back to the time when they might have hurt themselves and presume that that was the cause of a herniation, but it is generally believed that herniations occur spontaneously, with equal frequency between males and females, and equal frequency between heavy workers and non workers.

Dr. Sattarian, who is also an orthopaedic surgeon, disagreed with this statement. He testified that in the absence of other possible long-term factors - like excessive weight or repetitive strain, neither of which was an issue in this case - "it is quite reasonable to conclude" that a disc herniation has occurred because of a particular event. Based on the evidence presented, I am not persuaded by Dr. Hall's general statement.

Dr. Hall's second objection was as follows:

[The Applicant] was involved in a motor vehicle accident in September 1993 and sustained some rather ordinary soft tissue bruises and sprains from which she appeared to have effectively recovered by the time Dr. Kay examined her in November of that year. Nearly two years later she had herniation of a disc.

In my view, the lapse of about 21 months between the accident and the episode of June 17, 1995 certainly suggests, at first blush, that the disc herniation was either spontaneous or related to an incident other than the accident.

In Dr. Sattarian's first report (August 16, 1995), he stated that "[i]t is possible" that the Applicant's disc protrusion is related to the accident. He changed his opinion in his second report to "I strongly believe" that the Applicant's June 17, 1995 exacerbation was related to the injury. Dr. Hall stated that the second report represented "patient advocacy" rather than "medical logic." Dr. Sattarian made a further amendment to his January report²⁵ by replacing the statement "she, however, never had any leg pain in her lower extremities" with "she had leg pain after the motor vehicle accident." Dr. Sattarian explained at the hearing that his views changed after he reviewed the Applicant's medical file, which was not available to him when he first examined the Applicant.

My own review of the Applicant's medical records indicates that the Applicant complained frequently about low back pain between September 3, 1993 and June 17, 1995. Her massage therapist at the Rosedale Clinic noted that she complained of bilateral sciatica on October 26, 1993, November 11, 1993, and March 23, 1994. Left leg pain down to the knee was noted on October 26, 1993 and May 3, 1994. The Insurer pointed out that these were the notes of the massage therapist, not the chiropractor, Dr. Henrikson. However, the Applicant's self-evaluations at Rosedale also reported bilateral aching in the buttocks, the front of the thighs and the back of the calf on June 18, 1994, August 24, 1994 and September 17, 1994. Her pain diagram for January 15, 1995 recorded aching in the left buttock and the back of the left thigh, burning behind the left knee, and numbness in the back of the left thigh and calf. Her pain diagram for February 28, 1995 indicated stabbing pain down the left leg. These complaints are typical for sciatica. The Applicant also complained to Dr. Khan about left leg pain on October 13, 1993, although Dr. Khan agreed with the Insurer's counsel that she saw no signs of disc herniation between September 9, 1993 and March 1995, when she saw the Applicant for the last time.

The Insurer also pointed out that the Genesee Memorial Hospital records indicated that the Applicant had mainly right-sided injuries immediately after the accident. In addition, Dr. Khan's note of September 9, 1993 and the massage therapist's note of December 21, 1993 indicated predominantly right-sided pain. However, the Genesee hospital records also indicated left posterior hip pain, and the records of Dr. Khan and the Rosedale Clinic show that the Applicant began reporting bilateral low back and leg pain by October 1993 at the latest.

The Insurer also relied on Dr. Ahmad's discharge report,²⁶ which stated that the Applicant told him her low back pain had ultimately gone away before the June 17, 1995 episode.

Dr. Veidlinger reported that the Applicant had not had a sciatica problem previously. The Insurer's counsel invited me to draw an adverse evidence from the Applicant's failure to correct these reports, but there was no evidence that the reports were given to the Applicant before this proceeding was commenced. The Insurer's counsel also submitted that I should draw an adverse inference from the Applicant's failure to call these doctors for cross-examination. I am troubled by the Applicant's reported statements to Drs. Ahmad and Veidlinger, but I have no reason to believe that she manufactured her complaints of low back and left leg pain in her three years at Rosedale.

Dr. Sattarian's comment on the reports of Drs. Ahmad and Veidlinger was that it is not unusual for back pain to be intermittent. He suggested that the Applicant probably injured the outer part of the disc (annulus fibrosus) in the accident, causing a bulge that would irritate the nerve and cause the pain the Applicant reported before June 17, 1995 in her buttocks and legs. Dr. Sattarian explained that he was not troubled by the absence of neurological signs before June 17, 1995 because neurological signs appear only when a disc prolapses far enough to pinch the nerve. He suggested that some new injury in June 1995 - perhaps caused by a sudden combined bending and lifting movement - may have exacerbated a prolapse caused by the accident.

Dr. Sattarian admitted in cross-examination that he was not aware that the Applicant had been completing a co-op bank teller course between September and December 1994 and between February and June 17, 1995. He dismissed the possibility that the Applicant might have suffered a new injury at work or at home.

I am less prepared than Dr. Sattarian to dismiss this possibility, but in the absence of any evidence of subsequent injury after the motor vehicle accident, I am unwilling to rely merely on the Insurer's speculation that such an event occurred. In any event, even if the Applicant sustained another back injury, she is still entitled to benefits if the accident significantly or materially contributed to any subsequent disability. Based on the evidence of ongoing back and left leg complaints, and in the absence of any evidence of an intervening event, I accept that it did.

I am satisfied that the Applicant's low back and left leg pain were disabling throughout the summer and fall of 1995, based on Dr. Sattarian's reports of August, October and November 1995. I do not accept Dr. Taverniti's opinion that the Applicant remained non-volitionally restricted to ten minutes of standing on January 23, 1996, as his opinion was based on the Applicant's subjective reports, and she did not tell him that she had started or was about to start working one day a week as a bank teller, a job which involves prolonged standing. I find the Applicant's ability to do this job on an ongoing basis after January 1996 compelling evidence that her low back and left leg symptoms had substantially resolved and were no longer disabling. As I received no evidence about the Applicant's start date, benefits will terminate on December 31, 1995.

Medical and Rehabilitation Benefits

(a) Physiotherapy, Chiropractic and Massage Treatment

The Applicant began treatment at Rosedale Chiropractic and Physiotherapy Clinic about three times a week on September 14, 1993. Initially, her treatment consisted of passive physiotherapy, chiropractic and massage therapy. In early 1994, she began to have active therapy as well, including what Dr. Henriksen described as "a progressive program including flexibility, strength training, cardiovascular fitness" and posture education. The Insurer denied the Applicant's claims for reimbursement of these expenses by letter of August 26, 1994,²⁷ but the Applicant continued her treatment at Rosedale until June 22, 1995.

No payments were made until November 8, 1995, when the Insurer sent the Applicant's counsel a cheque for $8,595.99.²⁸ I heard nothing to indicate that this payment was made on a "pay pending dispute" basis, and the Insurer did not seek repayment of benefits overpaid.²⁹ The issue is whether interest continued to accrue on this amount after payment.

On April 11, 1996, Mr. Haber wrote to Mr. Conforzi stating that the Ontario Legal Aid Plan had a lien on this payment under section 17 of the Legal Aid Act. As a result of the lien, the funds could not be paid out to the Applicant. She claims ongoing interest on this amount from the date the benefits became due, to the date they are paid to her.

Statutory accident benefits, including benefits for rehabilitation treatment given by third parties, are payable to the insured person. Therefore, I find that by giving the Applicant's counsel sufficient funds to pay the amount owed, the Insurer met its obligations under the Act and the Schedule. Interest on overdue benefits is intended to prevent an insurer from profiting from a delay in paying out benefits, and to reimburse the insured person for the loss of use of the benefits owed. As far as the Insurer was concerned, after November 8, 1995, this benefit had been paid. The Insurer had no control over the disposition of the money once the Applicant's counsel received it. Accordingly, no further interest is payable under section 24 after the payment was made on November 8, 1995. However, the Insurer shall replace the stale-dated cheque.

On August 8, 1995, about seven weeks after the exacerbation of her low back pain and left sciatica, the Applicant resumed physiotherapy treatment, this time at Physiosport Therapy Clinic. She was still being treated at Physiosport at the time of the hearing. The Insurer refused to pay for these treatments. At the time of the hearing, Physiosport's outstanding invoices totalled $2,655.³⁰ In June 1996 (after the hearing), Mr. Haber forwarded an invoice for $1,960, which the Insurer paid pending resolution of the dispute. Another invoice was filed for $2,007 for physiotherapy treatment, as well as a cervical pillow and lumbar support.³¹

I have found that the Applicant's increased pain and disability after June 17, 1995 resulted from the accident. The Applicant relied on three prescriptions for physiotherapy: Dr. Randhawa's prescription of June 17, 1995, Dr. Purewal's prescription of August 3, 1995, and Dr. Sattarian's prescription of August 16, 1995.³² None of these doctors indicated the duration of prescribed treatment. In January 1996, Dr. Taverniti and Dr. Sattarian recommended that the Applicant continue with physiotherapy, but neither doctor knew that the Applicant had begun working one day a week as a bank teller in January 1996. Although an insured person may be entitled to medical and rehabilitation benefits beyond the period when she is entitled to weekly benefits, I prefer to rely on independent, objective evidence of the Applicant's condition because of her lack of credibility. Accordingly, I find that the Applicant is entitled to benefits of $1,415 for physiotherapy treatment provided by the Physiosport Clinic between August 8, 1995 and December 31, 1995.

(b) Taxi expenses:

The Applicant claimed outstanding taxi expenses of $143 incurred between October 13, 1993 and February 15, 1994 for trips between her home, Dr. Khan's office and the Rosedale Clinic. Receipts were provided.³³ Despite my finding that the Applicant is not entitled to weekly benefits after January 28, 1994, I accept that the Applicant had significant symptoms affecting her mobility in the first few months after the accident. In previous decisions, arbitrators have held that recoverable medical and rehabilitation expenses must be reasonable, but the insured person need not show that the expense is necessary for treatment or rehabilitation.³⁴ I find that the Applicant's use of taxis in the first 4 1/2 months following the accident was a reasonable expense.

(c) Orthopaedic Bed:

On December 24, 1993, the Applicant purchased an orthopaedic bed for $1,409.39, and claimed this amount from the Insurer. The Insurer denied the claim on June 6, 1994.

The claim was supported by a prescription note from Dr. Khan dated December 13, 1993.³⁵ The Insurer challenged the prescription on a number of grounds. First, the Insurer suggested that the claim should not be paid because Dr. Khan had not seen the Applicant's old bed. I heard no evidence to suggest that the Applicant already owned an orthopaedic bed, and I do not accept that section 6 requires a doctor to inspect the Applicant's current bed before prescribing an orthopaedic bed. Initially, the Insurer also took the position that it was not required to pay for an orthopaedic bed for two people, when only the Applicant needed it. The Insurer did not press this submission at the hearing.³⁶ I do not accept that the Applicant, who shared a bed with her husband before the accident, should be forced to change that arrangement or prevented from recovering the full cost of replacing the couple's shared bed. The Insurer's third submission was that the Applicant did not need an orthopaedic bed. Although I was not persuaded that the Applicant's symptoms were disabling for more than a few months after the accident, I accept that she suffered from residual ongoing symptoms. I am not satisfied that I should look behind Dr. Khan's prescription, which the doctor reaffirmed in her testimony.

The Insurer's main objection was that the Applicant bought an oak (or oak veneer) bed-frame, rather than a steel frame like the kind she used previously. The Insurer felt that the Applicant had secured a windfall by purchasing a piece of decorative furniture rather than a steel frame. The Applicant testified that she was told she needed a firm platform to produce a hard surface. There was no evidence to corroborate this. The manufacturer's warranty and information slip indicates that a steel frame is appropriate for the mattress and box spring purchased.³⁷ Based on this document, I am not persuaded that the Applicant needed an oak or oak veneer bed frame as a result of the accident. She is, however, entitled to the appropriate steel frame to support the orthopaedic bed.

The Insurer is ordered to reimburse the Applicant for the cost of her orthopaedic mattress and box spring, and the appropriate steel frame, with interest as set out in section 24 of the Schedule. If the parties cannot agree on the amount payable, the matter may be brought before me.

(d) Prescription Medication after February 1995:

There are outstanding claims of $770.56 for prescription drugs purchased between February 2, 1995 and April 3, 1996.³⁸ With the exception of prescriptions for Zantac (February 2, 1995), Zovirax (May 25, 1995), Prednisone (September 26, 1995) and Thyroxine (February 1996), all the medications prescribed - analgesics, anti-inflammatories, muscle relaxants, sedatives and antidepressants - post-date the June 17, 1995 exacerbation of the Applicant's symptoms and appear to be related to that episode. Dr. Khan testified that she had not treated the Applicant for anxiety or depression before the accident, and I received no evidence of pre-accident psychological problems. I allow $639.43 for these medications, plus interest under section 24(1) of the Schedule.

The Zovirax and Thyroxine prescriptions are clearly unrelated to the Applicant's accident-related injuries. Zantac is often prescribed in connection with anti-inflammatory medications, which tend to upset the stomach. However, I received no evidence that the Applicant was still using anti-inflammatory drugs in February 1995, when she returned to the bank teller co-op program. Although I found that the Applicant was not disabled from her essential pre-accident tasks during that period, she may be entitled to medication for any residual symptoms under section 6 of the Schedule. The Applicant is entitled to be reimbursed for this medication on production of evidence that Zantac was prescribed in connection with anti-inflammatory drugs for her musculoskeletal problems. I remain seized of this issue, in case the parties are unable to agree. I also remain seized as to the Applicant's entitlement to Prednisone, a steroidal anti-inflammatory prescribed by Dr. Chauvin, from whom I heard no evidence.

Section 9(1) of the Schedule provides that the Insurer is not liable to pay any medical and rehabilitation benefit which is payable under any other law or plan. The Applicant's Social Services file indicates that she did not recover her medication expenses from Social Services between September 3, 1993 and August 1994, when her social assistance benefits were terminated. Because this was raised for the first time at the hearing, and the Insurer did not seek repayment for medication expenses paid, I ruled that the issue is not before me.³⁹ A May 8, 1996 letter from the Applicant's pharmacist indicates that the Applicant's medications between May 25 and September 26, 1995 were not paid under the Ontario Drug Benefit Plan.⁴⁰

(e) and (f) A cane and lumbosacral support:

The Applicant claimed $27.59 for a cane and $101 for a lumbosacral support prescribed after the June 17, 1995 episode.⁴¹ As I have found that the Applicant's symptoms after that date resulted from the accident, and given that the Insurer gave no other reason for disputing these claims, I find them recoverable.

(g) and (h) Ambulance fees and hospital telephone fees:

The Applicant was charged $45 for transportation to Scarborough Grace Hospital on June 18, 1995, and $21 for a telephone during her admission to Central Hospital.⁴² As I have found that the June 17, 1995 exacerbation of the Applicant's low-back and sciatic pain resulted from her accident and the Insurer put forward no other reason for disputing these expenses, I find them recoverable.

(i) Dr. Taverniti's Functional Abilities Evaluation:

The Applicant claims $1,200 plus interest for Dr. Taverniti's functional abilities evaluation of February 7, 1994.⁴³ Dr. Taverniti's assessment was requested neither by the Insurer nor by Dr. Khan but by Dr. Henrikson, another chiropractor. Dr. Taverniti testified that he was asked to prepare the report because Dr. Henriksen wanted to justify his current and ongoing treatment of the Applicant. I found that Dr. Taverniti was acting as an advocate for chiropractic care as well as for the Applicant. Accordingly, I find that Dr. Taverniti's fee for this report is not recoverable under section 6 of the Schedule.

Special Award:

Section 282(10) provides that the Arbitrator shall order a special award, in addition to awarding the benefits and interest owing, if the Arbitrator finds that the Insurer "unreasonably withheld or delayed payments."

The Applicant submitted that the Insurer acted unreasonably in terminating her weekly benefits and weekly childcare benefits on January 28, 1994 based only on Dr. Kay's prognosis in his report of November 2, 1993. In my view, the Insurer should ideally have sent the Applicant back to Dr. Kay for reassessment at the end of the six week period set out in his report. However, the Insurer was entitled to rely on Dr. Khan's failure to respond to Mr. Faber's January 21, 1994 confirmation letter.

Although Dr. Taverniti's February 7, 1994 report was copied to the Insurer's adjuster, I heard no evidence that the Insurer reconsidered its decision to terminate benefits after receiving it. It should have done so, but as no further weekly benefits or weekly childcare benefits are payable between January 28, 1994 and June 17, 1995, the issue of a special award does not arise.

I find nothing unreasonable in the Insurer's denial of weekly benefits and weekly childcare benefits after June 17, 1995, considering the time elapsed since the accident, because not until late January 1996 did the Applicant present Dr. Sattarian's opinion that the Applicant's symptoms after June 17, 1995 were related to the accident. The Insurer's response was to request an Insurer Medical Examination with Dr. Hall, who disputed Dr. Sattarian's view. The Insurer acted appropriately.

The Insurer's handling of the Applicant's medical and rehabilitation claims has been more problematic. Section 6(7) of the Schedule provides that certain claims, including claims for physiotherapy and chiropractic services, and transportation to and from medical appointments and treatment sessions, must be paid pending resolution of any dispute about entitlement. As arbitrators have said in many decisions, the "pay pending dispute" provision is intended to ensure early access to treatment and rehabilitation.

In this case, the Insurer paid none of the Applicant's claims for treatment at the Rosedale Clinic until November 1995, and refused the Physiosport claims on the basis that the Applicant's symptoms after June 17, 1995 were not related to the accident. As I said in the Patrick White decision, "I am prepared to accept that an insurer may not be required to pay medical and rehabilitation benefits pending dispute where, for example, the insurer raises a serious question of fraud, or where the claim is clearly unreasonable."⁴⁴ I find that the Insurer's reasons for disputing the Applicant's claim for this treatment, though a legitimate ground for disputing entitlement at arbitration, fell far below the standard for refusing a "pay pending dispute" claim. Further, an insurer is not entitled to refuse the Applicant's claim for medical and rehabilitation benefits in reliance on an insurer medical report obtained under section 23(2) of the Schedule.

The Insurer also contravened section 6(7) by refusing to pay the Applicant's claim for taxi fare to and from appointments with Dr. Khan and the Rosedale Clinic. I heard no explanation for the Insurer's failure to pay the Applicant's transportation expenses on the basis of public transit fare, despite taking the position that the Applicant should have used public transit rather than taxis.

As I heard no submission that an orthopaedic bed is a "medical device" covered by section 6(7), I make no finding on the point. However, I find that the Insurer unreasonably withheld partial benefits for the orthopaedic bed claim, despite issuing an Assessment of Claim form indicating that the proper amount of the benefit would have to be negotiated. I find no reasonable basis for the Insurer's disputing the Applicant's entitlement to this item, except for the dispute about the amount.

I am also concerned that the Insurer refused to pay the Applicant's medication expenses in 1995. However, medication claims appear not to be governed by s. 6(7). Until Dr. Sattarian prepared his second report in January 1996, there was no medical opinion supporting the Applicant's claim that her symptoms after June 17, 1995 resulted from the accident. I find that the Insurer had some basis for disputing these claims based on the time elapsed since the accident.

Section 24(1) of the Schedule provides that medical and rehabilitation benefits claims are overdue if not mailed or delivered within 30 days of the completed application. Section 24(8) of the Schedule requires the Insurer who refuses to pay an amount claimed to "forthwith give written notice to the insured person giving the reasons for the refusal." The Insurer appears to have given no written reasons with respect to the Applicant's treatment at Physiosport. With respect to Rosedale, the Insurer provided only Mr. Haber's one-line explanation in his letter of August 26, 1994, almost a year after the accident, and benefits were not paid until November 8, 1995, another 14 months. The Insurer's Assessment of Claim form denying the Applicant's claim for an orthopaedic bed was issued on June 6, 1994, almost four months after Dr. Khan's February 27, 1994 letter to Mr. Faber. I heard no explanation for this delay. The Insurer provided no written notice of its reasons for refusing the Applicant's medication claims in 1995.

For these reasons, I find that the Insurer's conduct of the Applicant's claim merits a special award. However, the Insurer's conduct is not the most egregious, and in general the Insurer had legitimate reasons for disputing the Applicant's claims. I find an award of $500, inclusive of interest, appropriate in the circumstances.

Expenses:

The Applicant was partially successful in her application for arbitration. Though I did not find her to be entirely credible, I accepted that she was disabled for a time as a result of her accident. I find this an appropriate case for the exercise of my discretion to award the Applicant half her arbitration expenses incurred. I remain seized of the issue, in case the parties are unable to agree on the amount owed.

Order:

1. The Insurer will pay the Applicant the sum of $8,019.90 (weekly benefits of $285 per week between June 17, 1995 and December 31, 1995) plus interest under section 24 of the Schedule.

2. The Insurer will pay the Applicant's outstanding medical and rehabilitation claims in the amount of $2,392.02, plus interest under section 24 of the Schedule.

3. The Insurer will reimburse the Applicant for the portion of the purchase price of her orthopaedic bed attributable to the mattress and box spring, and will pay her the reasonable cost of an appropriate steel bed frame, with interest under section 24 of the Schedule. I remain seized of the issue, in the event the parties are unable to fix the amount payable.

4. I remain seized of the issue of the Applicant's entitlement to reimbursement for Zantac and Prednisone.

5. The Insurer will pay the Applicant a special award of $500.

6. The Insurer will reimburse the Applicant for half her arbitration expenses incurred. I may be spoken to in case of any dispute about the amount payable.

April 29, 1997

Nancy Makepeace Arbitrator

Date

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 3, pp. 43-5
3. 3See Chor Ting Lui and Willington Insurance Company (April 28, 1993), OIC A-013531; Edgar Cowie and the Non-Marine Underwriters, Members of Lloyd's (March 9, 1993), OIC A-001159
4. 4The courses included a co-op program between February 3 and June 26, 1992; a job search course between July 13 and August 7, 1992; a customer service (bank teller) co-op program between September 16, 1992 and January 30, 1993; secondary school courses between February 2 and February 28, 1993; and a computer course between March 2 and July 31, 1993: Exhibit 3, p. 45.
5. 5Exhibit 1, p. 56
6. 6Exhibit 1, p. 42
7. 7Exhibit 1, Tab 10
8. 8Exhibit 3, p.1
9. 9Exhibit 1, Tab 1
10. 10Exhibit 1, Tab 1, p.8
11. 11Exhibit 6, Tab 11c
12. 12Exhibit 3, p.9
13. 13Exhibit 1, Tab 4
14. 14Exhibit 1, Tab 1, p. 18
15. 15Exhibit 3, pp.43-5
16. 16Exhibit 3, p.45
17. 17Exhibit 3, p. 66-71
18. 18There is some inconsistency in the records as to when the exacerbation occurred. I rely on the Scarborough Grace Hospital records which indicate that the Applicant was admitted on the evening of June 18, 1995 complaining of pain beginning the day before.
19. 19Exhibit 1, Tab 9
20. 20Exhibit 1, Tab 5
21. 21Exhibit 1, Tab 4
22. 22Exhibit 1, Tab 6
23. 23Exhibit 2, Tab 1
24. 24Exhibit 2, Tab 3
25. 25The amended p. 5 is found in Exhibit 14
26. 26Exhibit 1, Tab 6, pp. 79-82
27. 27Exhibit 9, p. 3, and Exhibit 3, p. 26
28. 28Exhibit 3, p. 46-7
29. 29Exhibit 9, p. 19
30. 30Exhibit 4, pp. 2-4, items 18, 21, 22, 23, 25, 26, 27 and 28
31. 31Mr. Haber's letters of September 18 and October 17, 1996. Mr. Haber's final letter, dated January 15, 1997, encloses an invoice for $2,942; this invoice includes the unpaid bills for the cervical pillow and lumbar support. I am puzzled by the latter claim because the Applicant's Schedule of Unpaid Medical and Rehabilitation Benefits indicates that the Applicant purchased a lumbosacral support for $101 on August 5, 1995: Exhibit 4, item 17, pp. 1, 30-31.
32. 32Exhibit 1, Tab 8, p. 122, Exhibit 4, p. 32, 33
33. 33Exhibit 4, items 3, 5 and 9, pp. 7, 8 and 10
34. 34Shirley J. Walker and State Farm Mutual Automobile Insurance Company (February 23, 1996), OIC A-009905
35. 35Exhibit 10
36. 36Nor did the Insurer pursue its earlier challenge based on the fact that the sales receipt was signed by the Applicant's husband, not the Applicant.
37. 37Exhibit 3, p. 23
38. 38Exhibit 4, items 14, 20, 24 and 29, pp. 24-27, 36, 40-42 and 48
39. 39I note that on November 24, 1993, the Applicant claimed $266 for replacement eye glasses. The claim was paid by the Insurer. (Exhibit 4, item 2, p. 7) The Applicant's Social Services file includes the following note of the caseworker on October 5, 1993: "PC [phone call] from W [wife] - needs glasses - to send copy of prescrip [prescription] ASAP." The Applicant's entitlement to replacement eye glasses was not an issue before me.
40. 40Exhibit 15
41. 41Exhibit 4, items 17 and 19, pp. 30-1 and 35
42. 42Exhibit 4, item 15, p. 28.
43. 43Exhibit 4, item 13, pp.22 and 23
44. 44Patrick White and Pilot Insurance Company (June 6, 1995) OIC A-008462