Neutral Citation: 1998 ONFSCDRS 64

FSCO A96-000313

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

GIUSEPPE ZEPPIERI

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Giuseppe Zeppieri, was injured in a motor vehicle accident on May 14, 1993. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under Ontario Regulation 672.¹ Liberty Mutual terminated weekly income benefits on June 28, 1996. The parties were unable to resolve their disputes through mediation, and Mr. Zeppieri applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits from June 28, 1996 and ongoing under section 12(5)(b) of the Schedule?

2. Is the Applicant entitled to the following medical and rehabilitation benefits under section 6 of the Schedule?

(a) travel (mileage) allowance and parking expenses relating to treatment attendances;

(b) acupuncture;

(c) massage therapy;

(d) chiropractic treatment;

(e) a gym membership;

(f) car maintenance repair expenses;

(g) snow removal costs: and

(h) home renovation expenses.

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

Mr. Zeppieri also claims interest on any amounts owing to May 6, 1997, the previous scheduled hearing date; it was adjourned at the Applicant's request, and the parties agreed that no interest is payable after that date. The Applicant also claims his arbitration expenses.

Result:

1. The Applicant is not entitled to further weekly income benefits.

2. The Applicant is entitled to medical and rehabilitation benefits of $1,129.75 plus interest.

3. The Applicant is entitled to a special award of $100 plus interest.

4. The Applicant is entitled to be reimbursed for his arbitration expenses incurred, subject to the Expenses Schedule.

Hearing:

Details about the hearing are found in an Appendix to the decision.

Reasons:

Background and issues

The Applicant is 63 years old, married, and the father of 3 grown children, one of whom still lives at home. He completed four years of education in Italy, then began working in farming. He emigrated to Canada in 1951 at the age of 17. He began working for a paving company in the early sixties, initially as a heavy equipment operator. In 1969, he suffered a workplace injury to his lower back, which culminated in his having an L4-5 and L5-S1 laminectomy on May 30, 1969. After a disability leave of about 9 months, he returned to work for the same company as a heavy equipment mechanic. The Insurer did not dispute the Applicant's claim that this was also a heavy job, although lighter than his previous job. The Applicant held the mechanic's job until the accident, but has not returned to it since.

On May 14, 1993, the Applicant was rear-ended while stopped at a light preparing to make a left turn. The Applicant says that the car needed about $2,500 in repairs. He immediately felt pain in his neck and left shoulder, and also felt dizzy and "shocked." He was taken by ambulance to Humber Memorial Hospital, where he was discharged after being x-rayed. He reported that he was trembling and felt tingling in his hands at the hospital. The x-rays of the Applicant's left shoulder were negative, and neck x-rays showed only mild degenerative disc disease at C5-7. The Applicant claims that he is unable to return to his pre-accident job as a heavy equipment mechanic or any other suitable job because of persistent neck and left shoulder pain radiating down his left arm, headaches, dizziness, a tremor in his hands, psychological problems including depression, and chronic pain syndrome. He claims that the tremor makes it difficult for him to hold things and creates a safety problem. He cannot change positions quickly or work underneath machinery because of his dizziness. His neck and shoulder pain restrict his posture and preclude overhead work. Headaches and limited endurance also preclude full-time work.

Though the Insurer questions the Applicant’s disability after June 28, 1996, when benefits were terminated, the main dispute is about causation. All the Applicant’s physical symptoms, except for the tremor, pre-dated the accident. The Insurer submits that the tremor is unrelated to the accident and that the accident did not significantly contribute to the Applicant’s other post-accident symptoms. The Applicant submits that the tremor resulted from the accident and that the accident significantly aggravated his pre-accident problems, which had not interfered with his ability to work before the accident.

The Applicant's treatment and history since the accident

The Applicant's family doctor at the time of the accident was Dr. Abe Cohen. He saw the Applicant three days after the accident, and noted complaints of neck, back and shoulder soreness. He found the Applicant "tender from top to bottom" and noted that back mobility was reduced. His form report dated May 25, 1993 indicated that the Applicant was indefinitely disabled. Within the first few months, the Applicant also began complaining of bilateral hand shaking and numbness (the left worse than the right), anxiety and depression, headaches, and fatigue. Dr. Cohen’s notes of the Applicant’s many visits (about twice a month) between the date of the accident and June 21, 1995, when he last saw the Applicant, reflect little change in the Applicant's complaints.

Dr. Cohen referred the Applicant to a number of specialists. In the late summer of 1993, Dr. Max Kleinman, a physiatrist, diagnosed "a cervical myofascial strain predominantly, with an element of lumbar involvement as well." Nerve conduction studies showed left carpal tunnel syndrome which Dr. Kleinman said "one certainly can see . . . in a post-traumatic situation." A carpal tunnel splint failed to help the Applicant.

In September 1993, the Applicant began seeing Dr. Harold Becker, a family doctor whose clinic specializes in the assessment, treatment and rehabilitation of accident victims. Dr. Becker and his associates, Drs. Grossman and Sedran, continued to treat the Applicant at the time of the hearing. Dr. Becker diagnosed cervical and upper thoracic back strain; lumbar deconditioning and disuse syndrome; carpal tunnel syndrome (left more than right); left ulnar nerve entrapment; essential or postural tremor; anxiety, depression and marital difficulty; and symptoms consistent with post-concussion syndrome (memory loss, dizziness, irritability).

In August 1993, Dr. Kleinman referred the Applicant to be assessed for a pain management programme at the Health Recovery Clinic. On initial assessment, the physiotherapist reported that the Applicant "displays many of the signs and symptoms of a developing chronic pain syndrome" and that his "emotional distress and pain focus appeared to be as disabling as any specific physical limitations". Limitations in his neck, shoulder and right arm mobility were noted. The assessment could not be completed because of the Applicant's "pain focus and self-limitations." Because of the Applicant's dissatisfaction with that clinic, Dr. Becker referred him to the Columbia Health Care Clinic, where he underwent a daily functional restoration programme between October 22, 1993 and January 21, 1994. On discharge, the Applicant had improved posture, mobility, strength, and cardiovascular endurance, but his headaches, fatigue, tremor and pain were unchanged. The assessors still felt the Applicant was disabled from his pre-accident work. His emotional difficulties were a major barrier. Individual and family therapy and an exercise program were recommended. As a result of this latter recommendation, the Applicant began a self-directed exercise programme at a community gym which he was continuing on an almost daily basis at the time of the hearing.

The Applicant began seeing psychiatrist Dr. Hans Arndt in November 1993. Dr. Arndt diagnosed Post-Traumatic Stress Disorder, severe depression, and Chronic Pain Syndrome. He prescribed antidepressants and continued to see the Applicant once a month at the time of the hearing. In August 1995, Dr. Arndt reported that there had been "some improvement" in the Applicant's psychological problems, but his physical problems were still significant enough to be disabling. His opinion was essentially unchanged at the time of the hearing.

In March of 1994, the Applicant and his wife began seeing Mr. Barry Brown, a social worker, for marital counselling. In addition to his physical problems, the Applicant complained of memory and concentration problems and feeling agitated, frustrated and sad about not being able to work. Mrs. Zeppieri complained that the Applicant had become withdrawn and verbally abusive to her. His isolation had limited their social life as a couple, and his inability to engage in his former household chores placed a burden on her. Mr. Brown found that the couple’s relationship had "eroded considerably" and recommended ongoing marital counselling sessions.

Mr. Brown's subsequent reports through November 1997 indicate that counselling stabilized the marriage, and that the Applicant was better able to manage his behaviour towards his wife. However, Mr. Brown reported in November 1997 that the Applicant’s household activities remained minimal and the spouses remained extremely frustrated by the changes in their relationship.

The Insurer retained Rehabilitation Management Inc ("RMI") to undertake a vocational rehabilitation assessment of the Applicant in October 1994. Occupational Therapist Sue Wilkinson concluded that he was unable to work as a heavy equipment mechanic even on a modified return to work programme because of his limited endurance and because he cannot work overhead, change positions frequently or quickly because of his dizziness, or hold objects securely because of his tremor. His cognitive and emotional difficulties were also identified as barriers.

Ms. Wilkinson conducted a Functional Job Analysis/Work Site Analysis in December 1994. The Applicant’s former employer told her that his position remained open. However, the job analysis confirmed Ms. Wilkinson’s view that a return to work in any capacity was premature. She continued to monitor the Applicant’s progress through October 1997, when she prepared a Long Term Functional Needs and Costs Analysis. Her opinion that the Applicant remained totally disabled was unchanged at that time.

Investigation and treatment of the Applicant's problems continued through 1995 and 1996, focussing especially on his headaches, dizziness and tremors. The Applicant testified that he has experienced little or no improvement in his symptoms. By mid- or late 1994, the Applicant had resigned himself to retiring. At the time of the hearing in December 1997, Dr. Becker felt that the Applicant was still disabled from his pre-accident job or any other suitable job, primarily because of his psychological problems.

The Insurer’s Medical Evidence

The Insurer terminated the Applicant’s weekly income benefits effective June 28, 1996, on the basis of medical-legal reports from Dr. A. Ameis, a physiatrist (May 5, 1995), Dr. F. Langer, an orthopaedic surgeon (December 12, 1995), Dr. S. Shapiro, a psychiatrist (March 19 and April 18, 1996), and Dr. G. Turrall, a psychologist (June 5, 1996).

Dr. Ameis felt that the Applicant "has genuine neurologic and orthopedic [sic] problems", but he felt they were atraumatic and unrelated to the car accident. He believed that the tremor was "a significant problem." He also reported probable "ulnar nerve entrapment at the elbow and median nerve compression at the wrist." Dr. Ameis reported that only the Applicant's neck problem was potentially related to the accident, and that the Applicant’s pre-existing problems had forced his withdrawal from the workplace.

Dr. Langer felt that the Applicant had likely sustained soft tissue injuries in a minor motor vehicle accident, and that his musculoskeletal complaints were likely due to pre-existing degenerative changes in the Applicant’s spine. He also felt that psychological factors were enhancing the Applicant's perception of his pain and disability, and recommended further psychological or psychiatric investigation. It was his opinion that the Applicant had already returned to his pre-accident functional status, and could return to work, avoiding heavy lifting, repetitive bending and heavy carrying, restrictions which Dr. Langer felt were consistent with the Applicant’s age. Dr. Langer noted that the tremor was "embarrassing and frustrating" for the Applicant, and he agreed with Dr. Ameis that it was unrelated to the accident.

Following up on Dr. Langer's recommendation, the Insurer had the Applicant assessed by a psychiatrist. Dr. Shapiro "did not find any definitive psychiatric diagnosis" in April 1996, and specifically rejected Dr. Arndt's diagnosis of Post-Traumatic Stress Disorder, severe depression and chronic pain syndrome.

Psychologist Dr. Turrall reported that the Applicant was suffering from anxiety, depression and frustration, compounded by his age and personality structure. Dr. Turrall felt the Applicant was unlikely to be able to work because anxiety had "adversely affected his cognitive abilities", which would interfere with safe work performance. He felt that the Applicant’s pain "stems primarily from the motor vehicle accident and his ability to cope with chronic pain symptoms are [sic] judged to be exacerbated by his advancing age and symptom magnification."

In preparation for the hearing, the Insurer obtained two further reports from Dr. F. Lipson, a physiatrist (November 10, 1997) and Dr. McIlroy, a neurologist (November 24, 1997).

Dr. Lipson’s opinion was that the Applicant’s neck injury related to the accident was essentially resolved, and that the Applicant was now functioning at his pre-accident level with respect to his neck and low back. He agreed with Drs. Ameis and Langer that the Applicant’s main functional problem was his tremor, and that the tremor, carpal tunnel syndrome (which Dr. Lipson described as "slight") and dizziness did not result from the accident.

Dr. McIlroy reported that the Applicant suffered primarily soft tissue injuries to his neck and back which may have aggravated his pre-existing cervical and lumbosacral degenerative disc disease. He felt these symptoms should have resolved within 6 months to a year after the accident. He found the tremor to be unrelated to the accident. He found no evidence of carpal tunnel syndrome. He did not accept that the Applicant had suffered a head injury, and felt that psychological factors would explain any cognitive problems.

Conclusion: Disability

The Insurer did not challenge Ms. Wilkinson's assessment of the Applicant's pre-accident job as a heavy equipment mechanic. Based on her evidence, I accept that the essential tasks of the job included frequent changes of position; "carrying, pushing, pulling reaching high and low (into awkward or restricted spaces whilst working on an engine/machine)" up to three hours a day; lifting up to 100 lbs, and 50 lbs on a regular basis; bending, kneeling, crawling and twisting for more than three hours a day; completing fine motor work (welding, for example) on a part he could not see; working outside (5-10% of the time); working with sharp tools, vibrating tools, and welding tools and equipment. The job did not include any administrative component. Mr. DiProfio, the Applicant's supervisor, testified that there are no light duty jobs in the shop, since all the work involves heavy equipment. I heard no evidence that suitable modified work could be made available.

Of the Insurer's medical experts, only Dr. Langer stated definitively that the Applicant is physically able to return to his former job. I find Dr. Langer's restrictions (heavy lifting and carrying, repetitive bending) inconsistent with the essential tasks of a heavy equipment operator as determined by Ms. Wilkinson. Moreover, these standard spinal restrictions take no account of the Applicant’s tremor, dizziness and upper body mobility problems, which pose special problems for a mechanic and are clearly among the Applicant's main physical problems. Nor do I accept Dr. Shapiro's report, which perfunctorily dismisses the clear evidence of depression and other psychological difficulties.

The Applicant has been granted Canada Pension Plan disability benefits on the basis of Dr. Becker's July 8, 1994 opinion that he is totally disabled. He was also granted long term disability benefits. His consistent complaints of significant physical and psychological problems are well documented in the records of his treating and consulting physicians. I find no persuasive evidence of conscious exaggeration of symptoms. Though the clinical notes and records of his doctors suggest some improvement in his symptoms over time, I am not satisfied that he has experienced a substantial and consistent improvement which would allow him to return to employment. I accept that the Applicant is disabled from his pre-accident job because of his tremor, dizziness, headaches, limited endurance, soft tissue injuries and psychological problems. Because of the Applicant's age, limited English, education, experience and skills, his range of suitable alternative occupations is very restricted. I find that his many physical and psychological problems continuously prevent him from engaging in any suitable work.

Did the Applicant's disability result from the accident?

However, the Schedule requires the Applicant to prove, on a balance of probabilities, that he sustained disabling injury "as a result of" the motor vehicle accident. I am not satisfied that the Applicant’s residual problems resulted from the accident. I find that by June 28, 1996, when weekly benefits were terminated, the accident was no longer a significant factor in the Applicant’s ongoing symptoms. What follows are my detailed reasons with respect to the Applicant’s various complaints.

Tremor

The Applicant testified that his hands began to tremble after the accident, the left more than the right, and that the problem has worsened over time. Dr. Barry Little, a neurologist, described the tremor as "moderately coarse" and posture-related: it was worse when the Applicant stood with arms outstretched.

The experts were divided as to whether the tremor was caused by the accident. The Applicant relied on the opinion of Dr. A. Lang, a neurologist and a specialist in movement disorders. He reported in March 1995 that the Applicant "seems to have an organic tremor which has been precipitated by his motor vehicle accident."² He noted that the tremor was activity-related, involuntary, and had worsened since the accident. Dr. Becker testified that while he would tend not to attribute the Applicant’s tremor to a motor vehicle accident, he would defer to Dr. Lang as a tremor expert, especially since further tests had ruled out the other possible organic causes of the tremor suggested by Dr. Lang.

Dr. Little did not accept that the tremor was post-traumatic, and stated that this sort of tremor usually occurs spontaneously.³ Dr. Mayer felt that the tremor was "probably not caused by the accident." The Insurer's experts Dr. Lipson and Dr. Ameis, physiatrists, and Dr. Langer, an orthopaedic surgeon -- also did not accept the tremor as accident-related. Dr. McIlroy, a neurologist who assessed the Applicant for the Insurer, felt the tremor was a "benign essential tremor, which is an idiopathic condition which . . . should not be attributed to a traumatic event."⁴ There is some evidence that the tremor may be partially non-organic. In his report, Dr. Lang said the tremor is "likely physiological, also in view of his personality and other behavioural changes after the accident." Dr. Little noted that the tremor "quickly disappeared with distraction."⁵ Dr. Langer found it variable and related to an "intention element."⁶

A mere possible causal connection is not enough to satisfy the civil standard of proof on a balance of probabilities. I find Dr. Lang's report inconclusive with respect to the cause of the tremor. He stated only that the tremor "seems" to have been or "could have also been" precipitated by the accident. I heard no evidence as to how this accident could have caused the tremor, as the Applicant did not have a brain injury. Given the opinions of Dr. Little and Dr. McIlroy, I find that Dr. Lang's inconclusive report falls short of establishing that the accident "probably" (or "more likely than not") contributed significantly to the tremor.

Dr. Little reported that on July 22, 1993 the tremor was severe enough to interfere "with even holding a cup of coffee and [the Applicant] feels that he would not be able to go back to welding if this tremor were to continue."⁷ In cross-examination, the Applicant denied that he made this statement to Dr. Little, a doctor to whom he was referred by his family doctor; I do not accept his testimony on this point. A few months later, the Applicant is reported to have told Dr. Becker, his new family doctor, that "he was very concerned about his ability to return to work, about his ability to hold tools, not only because of weakness but because of shaking."⁸ He grudgingly admitted ("I guess so") that he told Dr. Ameis the tremor was "a chief reason for his disability" in May 1995 because it would interfere with welding.⁹ A month later, he reportedly told Dr. Little that the tremor prevented him from returning to work.¹⁰ In December 1995, Dr. Langer reported that the Applicant was "particularly distressed" by the tremor.¹¹ I find that the Applicant's concern about the tremor is the main reason he has not returned to work and that the tremor is, on its own, disabling.

Neck and shoulder pain

The Applicant has a lengthy pre-accident history of disabling neck pain resulting in the same symptoms and restrictions he has complained of since the accident.

On May 26, 1975, while repairing a paving machine at work, the Applicant suddenly felt neck pain radiating into his left shoulder. When he saw Dr. Little on July 4, 1975, he still had intermittent incapacitating pain, aggravated by forward and lateral flexion, and despite using a cervical collar and attending physiotherapy. He reported that at times his entire left arm became numb and weak. Dr. Little diagnosed cervical spondylosis¹² with nerve root encroachment, probably at C6-7.¹³ The Applicant was off work 2 or 3 months as a result of this incident.¹⁴

On April 7, 1978, about three years later, the Applicant suffered another neck injury at work. Again, he complained of neck pain radiating to his left shoulder and left arm. Dr. Mayer diagnosed acute cervical and upper back sprain and degenerative disc disease at C4-5, C5-6 and C6-7.¹⁵ In his May 3, 1978 progress report to the WCB, the Applicant said he was "very bad, cannot move upper part of body because of pain to left arm and shoulders."¹⁶ He was disabled for at least two and a half months as a result of this incident.¹⁷

The Applicant hurt his neck and left shoulder again in a third workplace incident on April 3, 1981. He now complained of bilateral hand pain as well as his previous symptoms. X-rays confirmed degenerative disc disease at C4-7. The injury was again treated conservatively, and the Applicant returned to work two months later on June 8.

The next incident seems to have happened in about 1982, when the Applicant injured his neck and right shoulder and was off work for 3 to 4 months.¹⁸

On March 14, 1990, the Applicant developed neck and left shoulder pain in another workplace incident. Dr. Kwok reported that this time, the Applicant's pain did not radiate down his arm, but he began to complain of related headaches. However, the WCB physiotherapy discharge report indicates that the Applicant was also complaining of bilateral numbness in his hands. Cervical x-rays now showed "significant degenerative changes" at C4-7 "with some neuroforaminal encroachment."

On June 21, 1990, the Applicant’s employer reported to the WCB that modified or light work had been offered to the Applicant, but he had refused because of his headaches. Dr. Masi, the Applicant’s family doctor at the time, reported that the Applicant’s "severe neck pain" persisted in June. The WCB had the Applicant examined by Dr. Lithwick, who noted that his neck problem dated back 8 years. Dr. Lithwick diagnosed C4-5, C5-6 and C6-7 spondylosis, "with some degree of embellishment." He recommended a return to work after 4-6 weeks of conservative treatment, but noted that the Applicant may need modification of his heavy work, and gave a guarded prognosis. Dr. Painvin, another WCB doctor, diagnosed C4-7 stenosis¹⁹ with guarded prognosis in May 1991. The Applicant returned to modified duties on September 4, 1990, about 52 months after the injury, but he continued to complain about neck pain to Dr. Masi for the next month or so. He told Dr. Morgenthau a month later that his neck pain was worse since his return to work, and that he experienced neck pain with almost any movement.²⁰In summary, the Applicant’s medical and WCB records indicate that between 1975 and the motor vehicle accident he suffered five episodes of acute onset of neck and left shoulder pain, not associated with trauma, which led to at least 15 months of medical leave from work. His pre-accident cervical x-rays showed a deterioration of his degenerative disc symptoms over this period. The March 1990 incident appears to have been particularly serious, disabling the Applicant for months. Dr. Becker agreed, on cross-examination, that the finding of C4-7 stenosis is especially significant, and means that the Applicant would likely have experienced recurrent symptoms even if he had not been involved in a motor vehicle accident or other traumatic incident.

I am prepared to accept that the Applicant’s neck and left shoulder pain associated with his degenerative disc disease was exacerbated by the soft tissue injuries sustained in the accident. But I am not persuaded that the accident remained a significant factor in any symptoms he continued to have more than three years later. In reaching this conclusion, I considered the significant diagnosis of cervical stenosis, as well as the Applicant's age and work history, the nature of degenerative disc disease (which is related to age and wear and tear, and can flare up without further traumatic incident), and the Applicant's history of recurrent disabling symptoms since 1975.

Headaches

On April 9, 1987, Dr. Haight, an ENT specialist the Applicant was seeing for dizziness, reported that the Applicant told him "[h]e has had headaches all of his life daily."²¹ In cross-examination, the Applicant reluctantly admitted that this was "probably" accurate. The Applicant is also reported to have told Dr. Listgarten, whom he saw about allergies in April 1988, that he had "frequent frontal headaches."²²

Despite these reports, the Applicant subsequently attributed his chronic pre-accident headaches to his March 13, 1990 neck injury at work. In April 1990, he told Dr. Kwok he was "quite worried" about his headaches, which now seemed to be of two kinds: frontal headaches and occipital headaches associated with neck pain.²³ A month later, Dr. Morgenthau reported that the Applicant "presents now with a neck strain injury which has extented [sic] to include chronic daily headaches."²⁴ The Applicant's employer reported to the WCB in May that the Applicant had refused light work because of "concern over possible headaches." Dr. Masi reported in June 1990 that the Applicant had begun to experience headaches after the March 1990 incident.²⁵ The Applicant complained about "essentially daily headache" again to Dr. Morgenthau on June 19, 1990. Dr. Morgenthau reported "some decrease" in the Applicant’s headaches in October 1990 in response to Amitryptilline. Dr. Cohen’s notes between December 16, 1991 and the accident indicate that the Applicant complained about headaches on February 28, 1992, March 25, 1992, July 13, 1992, and April 6, 1993.

The Applicant testified that his post-accident headaches are more frequent, more severe and of a different kind than his pre-accident headaches, and that he lost no time because of headaches before the accident. Though there is no evidence that the Applicant’s headaches were disabling at the time of the accident, they were chronic and serious enough to warrant medical attention. I find that the Applicant has for years before the accident suffered from chronic headaches mainly related to his neck and shoulder injuries. I accept that his headaches worsened because of the further neck injury he sustained in the motor vehicle accident. However, I do not accept that the accident was a significant factor in the Applicant’s neck pain or related headaches more than three years afterwards.

Carpal tunnel syndrome

Since the accident, the Applicant has consistently complained of pain, tingling, numbness and weakness in his left arm, extending to his elbow. In August, 1993, Dr. Kleinman diagnosed left carpal tunnel syndrome on the basis of electrodiagnostic studies. He prescribed a splint, but it didn’t help. Dr. Becker diagnosed bilateral carpal tunnel syndrome, the left worse than the right. Dr. Ameis also noted clinical signs of carpal tunnel syndrome in May 1995, when he assessed the Applicant on behalf of the Insurer. In November 1997, Dr. Lipson, another Insurer expert, found "slight changes" of carpal tunnel syndrome. The Insurer's doctors stated that these problems were not related to the accident.

These symptoms were never the Applicant’s principal complaints, and were clearly not significant after the date of termination. I am not satisfied that they were disabling on their own. In any event, Dr. Masi’s clinical notes indicate that these symptoms appeared after the Applicant’s March 1990 injury. Dr. Morgenthau suspected left carpal tunnel syndrome on the basis of the Applicant's complaints (pain extending from the neck down the left arm to the hand, bilateral hand numbness waking him at night) and his clinical findings on May 1, 1990.

Electrodiagnostic studies confirmed "bilateral mild to borderline carpal tunnel syndrome." A left arm splint was of no benefit. In his last report, in October 1990, Dr. Morgenthau reported that these symptoms were unchanged.

Again, the Applicant is not precluded from entitlement just because he made the same complaint before the accident. What I find significant is the chronicity of the complaint (at least 7 months) and its genesis in the March 14, 1990 neck and shoulder injury, which was evidently a serious incident.

Dizziness

The Applicant testified that he suffers from almost daily dizziness and balance problems since the accident, especially when laying down and getting up, bending, or looking upwards. Dr. Becker initially suggested that the Applicant’s dizziness and some other symptoms were consistent with post-concussion syndrome "although there has been no significant evidence of head trauma." The ambulance and emergency records do not report loss of consciousness and subsequent objective tests have been normal. The Applicant’s counsel conceded at the hearing that the Applicant did not sustain a brain injury in the accident.

Dr. Haight reported that the Applicant suffered from dizziness and balance problems related to the motor vehicle accident. Benign Paroxysmal Positional Vertigo ("BPPV") is an inner and middle ear problem characterized by episodes of vertigo lasting about 20 seconds, brought on by rapid head movements (looking up or down) or changes of position (getting into or out of a horizontal position). Dr. Haight testified that BPPV commonly follows motor vehicle accidents, and the Applicant’s report that he had felt dizzy immediately after the accident was an important factor in his conclusion that the Applicant’s BPPV was accident-related. However, he testified that BPPV can also be idiopathic and tends to come and go. Aside from the BPPV, Dr. Haight stated that balance problems may also follow whiplash injuries which cause minor brain damage, even where the damage is not localized enough to appear on a CT scan. It was Dr. Haight's opinion that when he last saw the Applicant in September 1996 he would still be unable to cope with the constant postural changes required for his job.

The Applicant first complained of dizziness accompanied by nausea in early 1987, six years before the motor vehicle accident. Dr. Ivan Likar, an internist to whom he was referred by his family doctor, reported that the Applicant became dizzy when fully flexing or extending his neck, particularly when getting up after working in a horizontal position under a vehicle. When the Applicant saw Dr. Likar on March 10, 1987, he had been off work for 3 weeks because of his dizziness.²⁶ Dr. Likar referred him to Dr. Haight and recommended that the Applicant stay off work in the meantime. Dr. Haight's diagnosis in 1987 was BPPV.

Dr. Haight saw the Applicant five times between March and June 1987, and noted that his dizziness had improved by mid-June. He did not see the Applicant again until October 1993, six months after the motor vehicle accident, and he had no record of any complaint of dizziness between June 1987 and October 1993. This six-year gap was an important factor in his conclusion that the Applicant’s post-accident dizziness was not a spontaneous recurrence but resulted from the accident.²⁷ However, Dr. Masi's notes indicate that the Applicant had problems with dizziness again in March, April and May 1990 while attending a WCB-sponsored physiotherapy programme for the neck strain suffered in March 1990.²⁸ He was discharged from the programme on May 11, 1990. On June 19, 1990, the Applicant complained to Dr. David Morgenthau that he was less dizzy than previously but had recently tried to work under a car and found that dizziness prevented him from doing much. Further complaints of dizziness were made on July 26 and September 14, 1990²⁹ .

Questioned by the Applicant's counsel about the 1990 recurrence, Dr. Haight said that spontaneous recurrences of BPPV usually do not happen after a year, but he admitted that the 1990 recurrence would affect his opinion about causation, assuming the Applicant’s symptoms were the same as those he experienced in 1987 and 1993. He also admitted that the initial 1987 episode seems not to have been related to any trauma. I place little weight on Dr. Haight’s comment that the "dizziness" reported in the 1990 records could refer to "light-headedness", "weakness" or "confusion." Though the Applicant also complained of confusion on some occasions, I find that his complaints of dizziness have consistently related to rapid changes of position from the horizontal to the vertical, which is characteristic of BPPV. Eventually, Dr. Haight agreed that the 1987 episode predicted future recurrences and probably showed a predisposition to BPPV.

When Mr. DiProfio, the Applicant’s former supervisor, was asked by the Applicant’s counsel whether he remembered the Applicant complaining about dizziness before the accident, he said that "towards the end" the Applicant had problems working on his back with his hands raised, though he did not miss any time because of it. Again, evidence of the Applicant’s recurrent pre-accident dizziness, unrelated to trauma, undermines his claim that the motor vehicle accident was a significant contributing factor to his residual post-accident dizziness and balance problems after June 28, 1996.

Low back pain

On March 28, 1969, after a workplace incident, the Applicant felt immediate and severe low back pain radiating down his right leg. Dr. Masi referred him to Dr. R.M. Curkowskyi, an orthopaedic surgeon, who diagnosed acute lumbosacral strain, with possible root irritation, superimposed on pre-existing degenerative changes at L4-5 and L5-S1. Dr. Curkowskyi performed a laminectomy on May 30, 1969. He reported post-operatively that he had found a herniated disc at L5-S1 on the right side, and also operated on L4-5 on the left.

The surgery improved the Applicant’s symptoms but did not completely resolve them, and he experienced a number of flare-ups of his pain without further traumatic incident. The Applicant returned to work on December 5, 1969, but took on the lighter duties of a heavy equipment mechanic. He was awarded a permanent partial disability pension from the WCB in relation to his low back injury, but no evidence was led as to the amount or effective date of the pension.

Based on the medical records led into evidence, the Applicant’s low back problems seem not to have been a major concern for him in the two or three years before the accident. However, they were the subject of persistent complaints as late as July 1990, more than twenty years after the surgery.³⁰ This is not a case of a traumatic soft tissue injury followed by full recovery within a few months: the Applicant's low back symptoms were long-standing and recurrent, if not chronic.

In the months immediately following the motor vehicle accident, the Applicant’s main complaints were about neck pain, shoulder and arm pain and headaches. The ambulance and emergency records do not refer to low back pain at all. The clinical notes of Dr. Cohen, the Applicant’s family doctor at that time, indicate reduced back mobility and tenderness "from top to bottom" in the weeks and months after the accident and continuing through 1995, when his records end. However, the reports of all the experts who examined the Applicant in 1993 and 1994 indicate that low back pain was a secondary concern and related to his pre-existing problems. The Applicant’s low back complaints seem to have become more prominent in 1995 and 1996, but all the medical experts have attributed these complaints to underlying degenerative changes. No expert has suggested that the accident played a significant ongoing role in the Applicant’s low back pain.

Though the accident primarily affected the Applicant’s neck, I have no difficulty accepting that it mildly aggravated his low back complaints for a short time afterwards. However, I am not satisfied that the accident significantly contributed to the Applicant’s persistent low back problems after the date when benefits were terminated, considering the Applicant’s age and work history, the nature of degenerative disc disease, the Applicant's long history of recurrent low back complaints since 1969, the nature of the accident, and the delay before the Applicant make significant low back complaints. I find that the Applicant’s disc herniation at L5-S1 and degenerative changes at L4-L5 and L5-S1 were the significant factors in his ongoing symptoms.

Psychological problems

The Applicant testified that he has been depressed, angry and nervous with his wife and family since the accident. In cross-examination, he admitted that losing his job was the main reason for his depression. Consistent with this was his testimony in chief that he stopped visiting his former workplace because it made him feel depressed to see someone else in his job. Dr. Arndt, his treating psychiatrist, felt that his depression related to his losing his "breadwinner" role. Dr. Rosenblat, a consulting psychiatrist, agreed that the Applicant’s inability to work played a role in his psychological problems.

This does not preclude entitlement. If the Applicant establishes that he is unable to work because of injuries sustained in the accident, his depression about not being able to work would be a secondary impairment resulting "indirectly" from the accident. However, for the reasons given above, I do not accept that the Applicant was disabled from work as a result of physical injuries resulting from the accident. Nor am I persuaded that he sustained any direct psychological impairment as a result of the accident. In any event, the Applicant has not established that he was disabled by any psychological problems after benefits were terminated on June 28, 1996.

Dr. Cohen referred the Applicant to Dr. Arndt, a psychiatrist, in the fall of 1993, after noting that the Applicant seemed depressed. Dr. Arndt diagnosed post-traumatic stress disorder ("PTSD"), "depression +++" and chronic pain syndrome. He prescribed antidepressants.³¹ Dr. Arndt testified that he had seen the Applicant about 25 times and continues to treat him. He testified that by the time of the hearing, the Applicant's post-traumatic stress disorder had "largely been dealt with", and that antidepressants had helped the Applicant with his depression. By August 1995, Dr. Arndt noted some improvement in the Applicant's psychological condition. However, Dr. Arndt’s opinion was that the Applicant remained disabled by his physical injuries and chronic pain syndrome, which had not responded to anti-depressants.

In July 1996, Dr. Arndt referred the Applicant to Dr. Henry Rosenblat, another psychiatrist, for a consultation with regard to his chronic pain. Dr. Rosenblat diagnosed Chronic Pain Disorder associated with psychological factors and a medical condition. The psychological factors were sadness, memory and concentration problems, sleep problems and fatigue, reduced ability to enjoy himself, and sexual difficulties. Dr. Rosenblat felt that the Applicant’s psychological problems were related to the accident because the Applicant told him he had been doing well before the accident in his job and his marriage. Dr. Rosenblat treated the Applicant with 11 sessions of chronic pain counselling, medication for sleep and pain, and 18 sessions with a TENS device. These produced no change in the Applicant’s symptoms between July 1996 and March 1997, the Applicant’s last visit with Dr. Rosenblat.

Dr. Arndt also referred the Applicant to Dr. E. Sheffman, a pain specialist, in March 1996. Dr. Sheffman reported that the Applicant did not appear depressed, and exhibited signs of nonphysiogenic pain. He diagnosed "Chronic Pain Syndrome, said to be Post-Traumatic", but made no recommendations for further treatment.

In early 1995, the Applicant was assessed by a neuropsychologist, Dr. A. Cancelliere, on referral from his counsel. Dr. Cancelliere reported that the Applicant "reported a number of the DSM-IV criteria for Post-Traumatic Stress Disorder and these sequelae are directly attributable to the MVA of May 14, 1993." He also identified the "likely presence of a somatoform disorder", based on psychometric assessment. Dr. Cancelliere concluded that the test results "suggest the presence of a disability" based on the Applicant's "emotional, personologic, and social status." He thought "significant gains" were possible with treatment, but "little further spontaneous recovery is likely to occur."

In the same month, the Applicant was examined by psychiatrist Dr. S. Shapiro at the Insurer’s request. Dr. Shapiro felt that the Applicant did not have PTSD, Pain Disorder, or Major Affective Illness (Major Depressive Episode).

Asked to comment on Dr. Shapiro’s report in his testimony, Dr. Rosenblat agreed that the Applicant has neither PTSD nor a major depression. But Dr. Rosenblat and Dr. Arndt both reaffirmed their diagnosis of Chronic Pain Disorder when questioned about Dr. Shapiro's report. They testified that they found no evidence to support Dr. Shapiro's suggestion that intentional or unintentional secondary gain factors were involved.

The Insurer also had the Applicant assessed by a psychologist, Dr. Graham Turrall, in June 1996. Dr. Turrall did not feel that the Applicant had Chronic Pain Disorder, though he felt the Applicant’s symptoms "mirrored" that condition. Instead, he diagnosed "Somatoform Disorder Secondary to Generalized Anxiety Disorder and Dysthymia", "Personality Disorder not otherwise specified (NOS) with dependent and obsessive-compulsive personality traits", and adjustment difficulties. For the purposes of this proceeding, which is concerned with function and causation rather than diagnosis, I did not find Dr. Turrall’s assessment significantly different from those of Drs. Arndt and Rosenblat. In essence, they agreed that psychological and personality factors have affected the Applicant’s response to the accident and exacerbated his pain and other symptoms, as well as leading to psychological difficulties including anxiety, depression, and frustration.

In his report, Dr. Turrall stated that "the Applicant's post-MVA functioning has caused difficulty for him to return to his previous line of employment as a heavy duty diesel mechanic as well as carrying out his activities of daily living. His psychological difficulties are judged to be secondary to his presenting physical problems as they relate to the motor vehicle accident." Dr. Turrall predicted that the Applicant "will most likely be unable to return to his former position."³²

Post-Traumatic Stress Disorder

Dr. Arndt is the only psychiatrist who has diagnosed PTSD. Dr. Rosenblat testified that the Applicant "absolutely" does not have PTSD, and Dr. Shapiro also dismissed this diagnosis.

I am not satisfied that the Applicant has ever suffered from Post-Traumatic Stress Disorder. First, I accept Dr. Shapiro’s opinion that the accident was not "a sufficient stressor" to lead to PTSD as defined by the criteria set out in DSM-IV.³³ Second, the Applicant's medical records do not reflect the characteristic symptoms of PTSD. I could find only a few -- and early -- references to driving phobia, or anxiety while driving, and there is no evidence that the Applicant stopped or significantly reduced his driving activity. Dr. Arndt admitted on cross-examination that the Applicant’s nightmares (which do not appear to have been repetitive or recurrent) were about his job, not the accident; I could find only one reference to the Applicant having nightmares about driving.³⁴ In any event, I could find no reference to any symptoms of PTSD after June 28, 1996.

Depression and Other Psychological Problems, Marital Problems

Weekly income benefits are intended to compensate for an insured person’s loss of income resulting from an accident. They do not compensate for pain and suffering -- physical or psychological -- that does not affect function. Accordingly, I need not decide whether the accident significantly contributed to the Applicant’s marital troubles.

However, I find that Mr. Brown’s reports reveal a coherent picture of a marriage under stress because of the husband's loss of the "breadwinner" role that was central to his self-image. While I accept Dr. Shapiro’s opinion that the Applicant does not suffer from a Major Depression, I accept that he is depressed because of his disability. However, I find that he is disabled mainly because of his tremor, which I find unrelated to the accident, and because of his pre-existing neck and back problems, headaches and dizziness. Accordingly, the Applicant’s depression and other psychological problems do not result from the accident "directly or indirectly."

Chronic Pain Syndrome

I dismiss the Applicant's claim with respect to Chronic Pain Syndrome for the same reason.

I do not find it necessary to deal with the Insurer's submission that the Applicant's pain symptoms are psychologically based, except to say that the Schedule compensates insureds for "physical, psychological or mental injury as a result of an accident." I apply the approach to chronic pain set out in Quattrocchi and State Farm Mutual Automobile Insurance Company³⁵and many other arbitration decisions.

Dr. Arndt and Dr. Rosenblat conceded in cross-examination that a diagnosis of Chronic Pain Syndrome is based simply on a person's having complained of pain for more than 6 months, where the pain is disproportionate to the injury or the pain continues though the organic injury has resolved. A diagnosis of Chronic Pain Syndrome neither precludes nor guarantees entitlement.

In diagnosing Chronic Pain Syndrome, Dr. Arndt and Dr. Rosenblat relied entirely on the Applicant’s account of his chronic symptoms, and neither seems to have been provided with any medical reports. Both doctors admitted that they were unaware of the extent of the Applicant's pre-accident problems, though they insisted it would not have affected their opinion that the Applicant’s problems resulted from the accident because the Applicant was working before the accident. However, on cross-examination, both doctors conceded that the Applicant’s significant pre-accident degenerative changes, and especially the diagnosis of spinal stenosis, were significant and could explain his post-accident symptoms.

I do not accept that the accident significantly contributed to the physical or psychological aspects of the Applicant's chronic pain after June 28, 1996.

Conclusion: Causation

In assessing whether an applicant’s post-accident symptoms resulted from the accident, arbitrators have put a lot of weight on the applicant's pre-accident work history. In this case, the Applicant was working full-time as a heavy equipment mechanic in the years immediately prior to the accident. However, he also had a strong history of chronic and recurrent neck and shoulder pain, headaches, carpal tunnel complaints, dizziness and low back pain for years before the accident. His multiple injuries, superimposed on severe degenerative changes in his neck and low back, led to numerous disability leaves and chronic complaints. By his own account, his headaches were longstanding and daily. He suffered from a type of vertigo that commonly recurs spontaneously. I have no doubt that the accident aggravated these problems for a significant period of time. However, considering the Applicant's multiple pre-accident symptoms, I find it unlikely that the accident, which was not severe, played a significant role in these residual symptoms more than three years later. Further, I find that the Applicant's tremor, one of the main reasons for his disability, followed the accident, but was not caused by it. Since the Applicant's psychological symptoms are secondary to his physical injuries, it follows that they too do not result from the accident after June 28, 1996.

Medical and Rehabilitation Benefits:

The Insurer's Assessment of Claim form, dated June 12, 1996, indicated that medical and rehabilitation benefits, as well as weekly income benefits, would terminate on June 28, 1996. For the reasons given above, I do not accept that expenses incurred after June 28, 1996 are accident-related.³⁶

However, I do accept that the accident aggravated the Applicant’s pre-existing conditions for some time afterwards. Accordingly, I accept that the Applicant’s treatment and rehabilitation expenses before June 28, 1996, including related transportation expenses, were necessary expenses resulting from the accident. I heard no evidence that these expenses were exorbitant or excessive. The Insurer submitted that the Applicant’s gym membership and acupuncture treatment fees should be denied because they provided only short-term symptomatic relief. I do not agree: temporary pain relief and reactivation can be the first step to breaking the pain and disability cycle.

The remaining pre-June 28, 1996 benefits in dispute are for labour costs for car maintenance and repairs (regular oil and filter changes, brake work, muffler replacement) and home renovation (painting the interior of the house, sanding the hardwood floors throughout the house). The Applicant and his wife and daughter testified that he did this work himself before the accident, and can no longer do it because of the accident. Dr. Becker provided a supportive medical report.

The Applicant claims that these benefits are payable under paragraph 6(1)(f) of the Schedule, which provides that in addition to the medical and rehabilitation benefits specifically set out in paragraphs (a) through (e), the Insurer shall pay for reasonable expenses resulting from the accident for:

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.

The scope of the benefits provided under this paragraph has been the subject of several arbitration decisions. It is now clearly established, as Arbitrator Palmer stated in Ferreyra and Royal Insurance Company, that "the principal focus of the No-Fault Benefits Schedule [now the Statutory Accident Benefits Schedule] is on the needs of the insured person who sustained injury, not generally on replacement of the services formerly provided by the insured person who sustained injury." For this reason, Arbitrator Palmer dismissed the claim of the applicants in that case to be reimbursed for the cost of hiring their teenaged son to drive the younger children to soccer games and language classes since the parents could no longer provide this service.³⁷ It has also been held that the benefit must have "a treatment or rehabilitation nexus"³⁸ and must be one about which a doctor may validly give an opinion as to its necessity.³⁹I find no medical or rehabilitation nexus in these claims.

The total amount of medical and rehabilitation benefits payable is $1,129.75, to be paid with interest under section 24 of the Schedule.⁴⁰

Special award:

The transportation expenses related to treatment and rehabilitation are "pay pending dispute" benefits under subsection 6(7) of the Schedule. Although the Insurer had legitimate reasons for disputing the Applicant’s entitlement to these benefits, the Schedule required the Insurer to pay them pending resolution of the dispute.The Insurer appears to have simply terminated medical and rehabilitation benefits at the same time it terminated weekly benefits, and without considering the different entitlement tests under section 6 and section 12 of the Schedule. I find that the Insurer acted unreasonably in withholding these benefits in the face of subsection 6(7) of the Schedule. In this case, I find that a nominal award of $100 is the appropriate amount considering the amount of benefits withheld.

Expenses:

As the Application for Arbitration was filed before November 1, 1996, the amendments to the expenses provisions of the Act and the Regulation do not apply. Though the Applicant was largely unsuccessful, I find this an appropriate case for an exercise of my discretion to award the Applicant his arbitration expenses. As I do not find that the Applicant commenced an arbitration that was frivolous, vexatious or an abuse of process, no award shall be made under subsection 282(11.2) of the Act.

Order:

1. The Insurer shall pay the Applicant the sum of $1,129.75 with interest pursuant to subsections 6(1)(f), 24(1) and 24(4) of the Schedule.

2. The Insurer shall pay the Applicant a special award of $100 with interest pursuant to subsection 282(10) of the Act.

3. The Insurer shall reimburse the Applicant for his arbitration expenses in accordance with Regulation 664 (Schedule F, Dispute Resolution Practice Code, April 15, 1997). In case of disagreement about the amount payable, the parties should follow the procedure set out in Rule 77 of the Code.

October 29, 1998

Nancy Makepeace

Arbitrator

Date

APPENDIX

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on December 1, 2, 3, 4 and 11, 1997, before me, Nancy Makepeace, Arbitrator. Written submissions were completed on February 27, 1998.

Present at the Hearing:

Applicant:

Giuseppe Zeppieri

Mr. Zeppieri's Representative:

Adam Wagman Barrister and Solicitor

Liberty Mutual's Representatives:

George Frank and Sherree Mosoff Barristers and Solicitors

Liberty Mutual’s Officer:

Tina Gicas

Ms. Lina Perruzza provided English-Italian translation services for the Applicant.

Witnesses:

The Applicant Ms. Anna Zeppieri, the Applicant’s wife Ms. Bruna Battaglia, the Applicant’s daughter Dr. Harold Becker, the Applicant’s family doctor Mr. Mario DeProfio, the Applicant’s former supervisor Dr. H. Rosenblat, the Applicant’s psychiatrist Ms. Sue Wilkinson, occupational therapist Dr. Hans Arndt, the Applicant’s psychiatrist Dr. Graham Turrall, psychologist

Exhibits:

Exhibit 1

Applicant’s Medical Brief, volume 1

Exhibit 2

Applicant’s Medical Brief, volume 2

Exhibit 3

Applicant’s outstanding expenses

Exhibit 4

Excerpts from Applicant’s Workers Compensation Board file

Exhibit 5

Dr. Becker’s CV

Exhibit 6

Excerpts from the employer’s file (5 pages)

Exhibit 7

Dr. Haight’s CV

Exhibit 8

Dr. Rosenblat’s clinical notes and records

Exhibit 9

Dr. Rosenblat’s CV

Exhibit 10

Ms. Wilkinson’s CV

Exhibit 11

Letters, February 18, 1997 and April 9, 1996 (3 pages)

Exhibit 12

Dr. Little's CV

Exhibit 13

Dr. Lang’s CV

Exhibit 14

Dr. Arndt’s CV

Exhibit 15

Dr. Turrall’s CV

Exhibit 16

Applicant’s Supplementary Medical Brief

Exhibit 17

Dr. Shapiro’s CV (Filed after 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. 2Exhibit 1, Tab 2
3. 3Report of June 28, 1995, Exhibit 1, Tab 8, p. 16
4. 4Report of November 24, 1997, Exhibit 2, Tab 26
5. 5Report of January 31, 1995, Exhibit 1, Tab 8, p. 9.
6. 6Exhibit 2, Tab 22, p. 7
7. 7Exhibit 1, Tab 8
8. 8Report of September 14, 1993, Exhibit 1, Tab 3, p. 4
9. 9Report of May 5, 1995, Exhibit 2, Tab 21, p. 3
10. 10Report of June 28, 1995, Exhibit 1, Tab 8, p. 15
11. 11Exhibit 2, Tab 22, p. 7
12. 12"Cervical Spondylosis" is defined in Dorland’s Illustrated Medical Dictionary (28th edition) as "degenerative joint disease affecting the cervical vertebrae, intervertebral disks, and surrounding ligaments and connective tissue, sometimes with pain or paresthesia radiating down the arms as a result of pressure on the nerve roots."
13. 13Report of July 4, 1975, Exhibit 16, Tab 3
14. 14Dr. Mayer's report of May 1, 1978, Exhibit 16, Tab 3
15. 15Supra, note 7 above
16. 16Exhibit 4
17. 17June 22, 1978 letter from WCB Medical Adviser to Dr. Aguzzi, the Applicant’s family doctor at that time: Exhibit 16, Tab 3. In response, Dr. Mayer cleared the Applicant to return to work in a week's time, despite residual but less severe symptoms. No evidence was led as to the Applicant’s actual return to work date.
18. 18Report of July 11, 1990, Exhibit 4 . The Applicant did not dispute Dr. Lithwick's report but no further evidence was led about this injury.
19. 19Dorland's defines spinal stenosis as "narrowing of the vertebral canal, nerve root canals, or intervertebral foramina caused by an encroachment of bone upon the space."
20. 20Report of October 9, 1990, Exhibit 16, Tab 3
21. 21Exhibit 1, Tab 9, p. 7
22. 22Exhibit 16, Tab 3
23. 23Report of April 5, 1990, Exhibit 16, Tab 3
24. 24Report of May 1, 1990, Exhibit 16, Tab 3
25. 25Report of June 19, 1990, Exhibit 16, Tab 3
26. 26Exhibit 16, Tab 3
27. 27Dr. J.A. Mayer, a neurologist, also diagnosed "post-traumatic syndrome of headache and dizziness. The dizziness appears to be due to benign positional vertigo.": Exhibit 2, Tab 18, July 24, 1995. Dr. Mayer appears not to have known about the Applicant’s pre-accident history of headache and dizziness.
28. 28Exhibit 16, Tab 3
29. 29Exhibit 4
30. 30In December 1970, Dr. Curkowskyi reported that the Applicant was now complaining of low back pain radiating to both knees. He felt that the Applicant’s complaints were consistent with his degenerative disc disease and believed he could continue working while avoiding heavy lifting. On July 4, 1973, Dr. Curkowskyi reported that while the Applicant had been experiencing only "odd aches and pains" since his return to work, he developed increased back pain on June 5, 1973 "for no apparent reason" and had stopped working a few days before the appointment. Dr. Curkowskyi diagnosed degenerative disc disease and did not suspect nerve root irritation. He prescribed another short course of physiotherapy and a change in medication. In July 1975, when the Applicant saw Dr. Little about a neck and shoulder injury, he was still reporting ongoing low back and right leg pain. He reported "occasional low back ache now and then" when he saw Dr. Kwok about another neck injury in April 1981. When he was back to see Dr. Curkowskyi again in June 1986 about a right knee injury, he reported back discomfort radiating to the right leg "maybe lately more than before", which Dr. Curkowskyi attributed to his "long standing degenerative disc disease ... without evidence of nerve root involvement." In May 1990, the Applicant told Dr. Morgenthau, a neurologist he was seeing about his confusion, dizziness and neck pain, that "he has continued to have mainly minor episodes of back pain, but on a few occasions has required either days to weeks or on one occasion a couple of months off work because of back pain." In July 1990, he told Dr. N. Lithwick, who assessed him for the WCB, that "he continues to experience problems in his low back to the present time."
31. 31Report of November 9, 1993, Exhibit 1, Tab 5, p. 21
32. 32I put no weight on Dr. Turrall's testimony that there were any number of jobs the Applicant could do, including greeting the public in his employer’s front office. The Applicant has no reception-related duties, and the Insurer presented no evidence as to the suitability of such work for the Applicant.
33. 33The diagnostic criteria set out in the DSM-IV include that "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. Examples given include "severe automobile accidents", along with war, physical assault, a life-threatening diagnosis and other similar events.
34. 34Dr. Cancelliere, February 7, 1995: Exhibit 1, Tab 7, p. 4.
35. 35(OIC A-006854, September 29, 1997).
36. 36In his opening statement, the Applicant’s counsel advised that the outstanding medical and rehabilitation expenses were: $167.84 for labour costs for four car repairs in February, September, October and December 1994 (Exhibit 3, Tab 2A); $3,000 for labour costs for sanding the hardwood floors and painting the interior of the house in March 1995 (Tab 2C); $200 for labour costs for brake work in August and September 1995 (Tab 2D); $1,254 for labour costs for car repair work in April 1996, mileage allowance and parking fees, and acupuncture treatment costs (Tab 2E); $868.68 for mileage allowance and parking fees between May and October 1996, a renewal of the Applicant’s gym membership in October 1996 and massage treatment costs in October 1996 (Tab 2F); and $1,896.63 for mileage allowance and parking fees in late 1996 and 1997 (and relating to attendance at Dr. Arndt's office between 1993 and 1997), snow removal for the winter of 1996-97, renewal of the Applicant's gym membership for the year November 1996-October 1997, brake work in August 1997 and acupuncture and chiropractic treatment in 1997 (Tab 2G)
37. 37(OIC -000301, OIC A-000325, OIC A-000384, July 9, 1992). Followed in Chiacchia and General Accident Assurance Company of Canada (OIC A-003904, September 26, 1994).
38. 38Zehr and The Guarantee Company Of North America (OIC A-001963, July 30, 1993).
39. 39Plows and Jevco Insurance Company, (OIC A-000175, A-000588, A-003502, July 25, 1994).
40. 40$979 for items listed at Tab 2E, $144.75 for claims at Tab 2F, and $6 for claims at Tab 2G.