Neutral Citation: 1999 ONFSCDRS 62

FSCO A96-001617

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HARINDER PAL MANDER

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

REASONS FOR DECISION

Before: Dirk VanderBent

Heard: July 7 and 8, 1998, and February 5, 1999 at the Financial Services Commission of Ontario, Toronto

Appearances: Parmanand Prashad for Mr. Mander Gregory Heckel for General Accident Assurance Co. of Canada

Issues:

The Applicant, Harinder Pal Mander, was injured in a motor vehicle accident on April 26, 1996. He applied for statutory accident benefits from General Accident Assurance Co. of Canada ("General Accident"), payable under the Schedule¹ General Accident never paid weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Mander applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. At the outset of the hearing, General Accident disputed that Mr. Mander had been employed, but conceded this issue after evidence was led. The issues in this hearing are:

1. Is Mr. Mander entitled to weekly income replacement benefits from May 2, 1996?

2. Is Mr. Mander entitled to receive interest on any award of weekly income replacement benefits?

Result:

1. Mr. Mander is entitled to weekly income replacement benefits for a period of 24 weeks following the accident, plus interest.

EVIDENCE AND ANALYSIS:

Effects of the accident:

On April 26, 1996, Mr. Mander's vehicle was rear-ended. Photographs of damage to his vehicle indicate that the accident involved more than a minor impact. Mr. Mander asserts that, as a result of the accident, he suffered a soft tissue injury to his lower back, nerve damage in his right forearm, and a deviated septum, (described in lay terms as a broken nose). He was seen in the Emergency Department of the Etobicoke General Hospital immediately following the accident. The Emergency Room report does not document reports of injuries to his forearm or nose, and concluded a final diagnosis of right sciatica. An x-ray study of the lumbar spine was completed the same day, which confirmed no evidence of fracture or other abnormality. General Accident did not dispute that Mr. Mander injured his nose in the accident.

Issues:

The main issue raised in this proceeding is whether Mr. Mander sustained low back and right arm injuries in the motor vehicle accident and, if so, whether these injuries substantially disabled him from performing his essential tasks as a truck driver. These questions are complicated by Mr. Mander's pre-accident medical history. In a 1990 motor vehicle accident, he sustained a back injury which caused left sciatic pain of sufficient severity to necessitate a lumbar discectomy which was performed in April 1992. In addition, Mr. Mander suffered a work related injury in March 1994, when he fell from a truck and injured his right forearm. In February 1996, he also aggravated his persisting pain symptoms when he slipped and fell outside his home. Were these injuries different from those sustained in the accident on April, 26, 1996? If not, has the motor vehicle accident aggravated these pre-existing problems and materially contributed to any functional limitations which Mr. Mander has experienced since the motor vehicle accident?

Post-accident treatment and return to work efforts:

Mr. Mander commenced physiotherapy in May 1996, which continued for approximately nine months. He was followed by three family physicians, although he indicated Dr. Saeed was his primary family physician. He has continued to use analgesics. Since approximately June 1998, he has received weekly treatment from a neurologist, Dr. Saito, which at present includes massage therapy, to be followed in future by electrical muscle stimulation (TENS).

Other than two attempts to drive a friend's truck, Mr. Mander has not returned to work of any kind since the accident. He testified that just prior to the accident, he was experiencing only a little pain. However, after the accident, he has experienced a significant increase in his back pain, which he described as a sharp pain in his lower back and his right hip, radiating down the right side of his leg into his toes. He further indicated that he experienced the onset of debilitating low back and right leg pain, including numbness in his toes, if he attempted to drive more than an hour, and that operating the brake and accelerator of a truck provoked right leg pain. He also claimed that he sustained an ulnar nerve lesion in the accident when his right arm struck the steering wheel, and that this injury is different from the right forearm injury he sustained in 1994. Mr. Mander asserted that the ulnar nerve lesion causes pain and weakness when he uses his right hand, which also disables him from performing his job.

Employment and Essential Tasks:

On March 4, 1996, Mr. Mander commenced employment as a truck driver with a Toronto business known as Faan Cartage. The parties agreed that his weekly income replacement should be based on this employment, resulting in a benefit of $561.61 per week. Mr. Mander operated an 18 wheel transport truck, driving daily runs to either Ottawa or Montreal, three to four times per week. Each trip took approximately six hours one way. Mr. Mander primarily delivered skids of store inventory for 'White Rose' retail outlets.

The evidence respecting the functional demands of his job was sparse, to say the least. Only Mr. Mander and Mr. Gurbreet Sangha, a fellow employee who performed the same job, provided evidence on this aspect of the claim. I found their descriptions to be somewhat superficial, although it was consistent. Drivers were responsible for loading their own trucks. The goods to be delivered were packed on skids, each weighing 1,500 to 2,000 pounds. Skids would be moved by using a "hand pump", which I understood to be a hand operated pneumatic fork lift truck which slides underneath the skid. Mr. Sangha testified that pumping up the skid was sometimes heavy work, but that fellow employees were available to assist a driver if a skid was particularly heavy. Other than this, I received no evidence to suggest that pushing or pulling the skids with a wheeled forklift was heavy work. The skids would be unloaded by the driver at its destination in the same manner. The trucks had standard transmissions with 15 gears, which required frequent shifting of gears in heavier city traffic. Mr. Mander used his left foot to depress the clutch, and his right foot to operate the brake and accelerator pedals. He used his right arm to change gears. Mr. Sangha testified that the gears were easy to shift.

I find the above description constitutes the essential tasks of Mr. Mander's job. I do not find that the job was heavy in nature. Loading and unloading a truck does not require manual lifting, only the pushing and pulling of the manually-operated fork lift. Some work accommodation, in the form of assistance from other drivers, is included in the job profile. Also, drivers do not perform this function on a sustained basis during a significant portion of their work day. The majority of their time is spent driving, where the physical demands are relatively light. The most significant stresses of driving are repetitive gear shifting, and prolonged sitting. However, I note that repetitive shifting is required primarily for city driving, and therefore this is not a continuous requirement during a delivery run. I heard no evidence to suggest that Mr. Mander could not stop for rest periods during his work day.

Disability Evaluation – Right Forearm:

On March 18, 1994, while he was covering a load on his flatbed trailer, Mr. Mander slipped and fell, hitting the inside of his right forearm, as well as his right shoulder and the back of his neck. He submitted a claim for worker's compensation, which was allowed, and he received benefits for approximately four months. As a result of this slip and fall, he reported to the workers' compensation claims investigator that he was having trouble shifting gears and that he felt pain in his right forearm.² Mr. Mander consulted an orthopaedic surgeon, Dr. B. Sehmi, on June 20, 1994, who on clinical examination found that Mr. Mander had a tender thickening deep to the skin on the medial side of the right forearm in what looked to be the flexor muscles. Dr. Sehmi confirmed that Mr. Mander reported that he experienced pain in this area, and treated it with an injection. Dr. Sehmi also commented that Mr. Mander could work if a job was available. Mr. Mander continued to consult his family physician, Dr. B. Nanar, who had been one of his family physicians since 1989. Dr. Nanar made several notations in 1995, respecting Mr. Mander's complaints of pain in his right arm. On March 12, 1996, just six weeks prior to the motor vehicle accident, and one week after Mr. Mander commenced employment with Faan Cartage, Dr. Nanar wrote a letter in which he stated:

Mr. Mander is also suffering pain in his right forearm. This pain is continuous, but worsening in cold weather. Mr. Mander will also require physiotherapy for his right forearm.³

Mr. Mander testified that he never pursued physiotherapy.

Four days after the accident, Mr. Mander reported to General Accident's claims adjuster that he had suffered bruising to his right arm⁴. Mr. Mander subsequently consulted a plastic surgeon, Dr. A. Freiberg, on February 7, 1997,⁵ advising that during the preceding several months, he had developed painful swelling on the ulnar side of the midforearm. Dr. Freiberg requested nerve conduction investigations,⁶ and after reviewing the test results, he confirmed his diagnosis of an ulnar nerve lesion, resulting from an intraneural hematoma, and fibrosis and scarring. Dr. Freiberg's diagnosis, however, does not indicate whether this condition was caused by the accident. He accepted that the injury resulted from the motor vehicle accident, since Mr. Mander had told him that this was so. In cross-examination, Mr. Mander agreed that he did not advise Dr. Freiberg of his pre-accident problems, stating that he was never asked about them. He explained that his symptoms were different, testifying that the outer side of his forearm was injured in 1994, whereas the lower inner side of his forearm became painful after the motor vehicle accident.

Analysis - Right Forearm:

Mr. Mander led no medical evidence to indicate whether or not the problems with his right forearm were different than his previous injuries.

Mr. Mander's counsel provided me with an anatomical diagram of the forearm.⁷ Dr. Sehmi's reference to the medial side of the forearm in the flexor muscles would appear to place the thickening he observed, in the same area where Dr. Freiberg found the mass along the ulnar nerve. Therefore, this thickening could have been the lesion observed by Dr. Freiberg. It is also possible that the scarring observed by Dr. Freiberg may have resulted from the injection given by Dr. Sehmi. The 1994 injury continued to be symptomatic just prior to the accident. While Mr. Mander can testify as to his symptoms, I do not find that this enables him to reach persuasive conclusions on the cause of these symptoms. I therefore find that he has failed to adduce sufficient evidence to establish that his post-accident symptoms were caused by a separate and distinct injury.

Mr. Mander may have struck his right arm in the motor vehicle accident. However, I received no evidence to suggest that his post-accident symptoms were significantly worse than his pre-accident symptoms, other than Mr. Mander's assertion that they were. His subjective complaints are not supported by the medical evidence. In his report dated March 6, 1997, Dr. Freiberg commented that he was hesitant to pursue surgical intervention, because Mr. Mander:

really does not have a great sensory or motor deficit and that one of his main problems is pain and discomfort when he touches the neuroma while resting his forearm on an arm board, etc.

The absence of significant sensory or motor deficits does not support Mr. Mander's claims that he experiences significant pain and weakness in his right hand which would substantially disable him from operating the gear shift and steering wheel of his truck. If Mr. Mander did have such severe functional limitations, Dr. Freiberg would have recorded such important clinical data in his report.

Even if the motor vehicle accident exacerbated Mr. Mander's pre-existing problems, I do not find that the medical evidence supports a conclusion that his post-accident difficulties are significantly worse than they were pre-accident. I also find that Mr. Mander was inconsistent in his testimony respecting his functional limitations. In his examination-in-chief, he indicated that when he tried to drive a truck after the accident, he was unable to lift a skid because it was too heavy. However, in cross-examination, he stated that he did not do any loading or unloading on the two occasions after the accident when he attempted to drive a truck. No medical opinion was advanced which indicated that the ulnar lesion would disable Mr. Mander from performing his tasks as a truck driver, or that the use of his arm would result in any further physical harm. I am prepared to accept Mr. Mander's evidence that he suffers pain and discomfort when he uses his right arm. However, given that he does not suffer significant sensory or motor deficits, and the inconsistency in his evidence, I am unable to find that the pain he experiences would substantially disable him from performing the essential tasks of his job. Shifting the gears of his truck is neither heavy nor continuously repetitive work. Mr. Mander is not restricted to using only his right hand to operate the lift truck, and he has flexibility in his job to obtain assistance with heavier loads. Therefore, I am unable to find that his right arm difficulties substantially disable him from performing this aspect of his job.

Disability Evaluation – Low Back:

Pre-existing condition:

Mr. Mander agreed that, prior to the accident, he was beginning to experience pain in his right leg in addition to the pain in his low back and left leg, but he testified that his pain problems only became severe on days when he worked harder than usual.

The medical evidence does not support Mr. Mander's assertion that his pre-accident pain problems were insignificant. After his lumbar discectomy in April 1992, Mr. Mander continued to utilize the services of three family physicians, Drs. Sirah, Nanar, and Saeed. None of these doctors testified. Dr. Sirah's clinical notes and records covered a period from 1989 to December 1996. These notes show numerous entries in 1995 and 1996, documenting back pain and reduced range of motion. In fact, Dr. Sirah saw Mr. Mander on the day of the accident, before the accident occurred, and his clinical note confirms that Mr. Mander complained of neck and back pain with reduced range of motion. Dr. Nanar's clinical notes and records cover the period from late 1993 through to September 1997. These records also document numerous consultations respecting back pain. In particular, Dr. Nanar saw Mr. Mander in follow up once or twice per month throughout 1995, documenting complaints of low back pain and reduced range of motion on almost every visit. On February 5, 1996, Mr. Mander slipped and fell on some ice outside his home. He consulted Dr. Nanar the next day, who confirmed that he experienced a severe onset of left low back pain, with reduced range of motion. Dr. Nanar completed a form⁸ in which he stated that, in February 1996, Mr. Mander's back pain was severe, and that he was unable to ambulate. Dr. Nanar further confirmed that this disability prevented Mr. Mander from performing the essential functions of his daily duties. In cross-examination, Mr. Mander stated that he did not know why Dr. Nanar would make such a statement. In my discussion respecting Mr. Mander's right arm difficulties, I referred to a letter which Dr. Nanar wrote on March 12, 1996. In this letter, Dr. Nanar also commented that Mr. Mander continued to suffer from low back pain, and referred him for physiotherapy for this problem. Once again, Mr. Mander could not explain why Dr. Nanar felt his back problems were of sufficient severity to warrant a recommendation for physiotherapy.

Dr. Saeed's records were of little assistance. His notes show that he saw Mr. Mander only infrequently in the years 1992 and 1993, and not at all for the 18 month period immediately preceding the accident.

Dr. Glen McDonald, the orthopaedic surgeon who performed Mr. Mander's 1992 discectomy, examined Mr. Mander on April 1, 1996, just four weeks prior to the motor vehicle accident. His report⁹ states:

This patient has been reviewed. Subjectively he states that his pain is worse. Now the pain affects his right leg, as well as his left leg.

On examination today, the patient is totally disabled. He stands with significant deformity of his lumbar spine consisting of a sciatic scoliosis prominence of the right hip, and flattening. The patient's lumbar spine motion is grossly restricted... This patient is clearly disabled, and clearly not getting better. I think that he has recurrent disc herniation, and it is most likely that this is at the 5-1 level, although it is impossible to be certain.

In cross-examination, Mr. Mander again had no explanation why his physician described his condition as so severe.

Post-accident Condition:

Mr. Mander did not return to see Dr. McDonald prior to commencement of this hearing in July 1998.However, he indicated during the hearing that he would shortly see Dr. McDonald for a medical review of his back condition. I adjourned the hearing to enable the parties to obtain Dr. McDonald's further assessment, as it appeared that he was in the best position to ascertain whether there had been any significant changes in Mr. Mander's physical condition since the accident¹⁰. Dr. McDonald then prepared two reports dated January 13, 1999 and February 3, 1999. He confirmed that an MRI investigation, which was completed in December 1998, disclosed a small central disc herniation, and scar tissue around the first sacral nerve root on the left side. His opinion was that the nerve root fibrosis is the basis for Mr. Mander's major symptoms, not the disc herniation. Dr. McDonald did not recommend further surgery. He indicated that he could not comment on the effects of the motor vehicle accident, but he did state that Mr. Mander's condition was unchanged from his condition when he was last seen in April 1996. Dr. McDonald expressed the opinion that Mr. Mander was fit for work which does not involve repetitive bending and lifting, or prolonged standing or walking, and that Mr. Mander's condition would neither be likely to deteriorate nor improve.

In September 1996, Mr. Mander underwent an independent medical examination by Dr. J. Mayer, a neurosurgeon. Dr. Mayer concluded that Mr. Mander had sustained myofascial strains to his neck and low back. While Dr. Mayer was aware of Mr. Mander's discectomy, it does not appear that he reviewed Dr. McDonald's records, nor was he aware of Mr. Mander's work related injury in 1994, and his slip and fall in February 1996. Dr. Mayer described Mr. Mander's job as involving heavy lifting, even though Mr. Mander testified in cross-examination that his job did not include lifting. He found that Mr. Mander magnified and exaggerated his pain complaints. Despite the fact that he classified the job as heavy, Dr. Mayer concluded that Mr. Mander was physically capable of returning to work.

Analysis - Lower Back - Insurer's Examination by Dr. Mayer:

I am unable to accept Dr. Mayer's opinion on functional disability. His opinion was heavily influenced by the conclusion that Mr. Mander must be capable of performing his job, as the clinical examination did not disclose any physical injuries. This approach is not consistent with numerous arbitrations which have held that an insured person may be entitled to benefits because of disabling pain, despite there being no objectively confirmable impairment. Furthermore, Dr. Mayer's opinion was based in part on his acceptance of literature indicating that soft tissue injuries normally resolve over a three to six month period, with or without treatment. His report, however, does not indicate whether this assumption can apply to Mr. Mander, due to his serious pre-existing problems. Consequently, while I am prepared to accept that Mr. Mander either suffered new myofascial injuries, or an exacerbation of pre-existing myofascial injuries, I am unable to rely on Dr. Mayer's opinion that Mr. Mander was able to return to work.

General Accident submitted that Dr. Mayer might not have concluded that the motor vehicle accident resulted in myofascial injury, had he had known of Mr. Mander's symptoms resulting from the slip and fall. I do not accept this submission. I received no evidence which supported this assertion, or addressed the possibility that the motor vehicle accident may have worsened an already existing problem. Also, this submission does not account for the fact that Mr. Mander was able to work after the slip and fall.

Clinical Records of Dr. Sirah:

General Accident also pointed out that Dr. Sirah, who saw Mr. Mander prior to, but on the day of the accident, also saw Mr. Mander just two weeks later on May 8, 1996. The May 8th entry in Dr. Sirah's notes states "No new findings -- movements, flexion extension painful". There is also a short-hand notation signifying that there was a reduction in range of motion. General Accident argued that this notation establishes that the motor vehicle accident did not result in any change to Mr. Mander's condition. I do not accept this submission. There is no indication in the clinical records, one way or the other, that Dr. Sirah specifically considered the effects of the motor vehicle accident. Dr. McDonald's evidence makes it clear that Mr. Mander did not suffer any new physically identifiable injuries as a result of the motor vehicle accident. Therefore, Dr. Sirah's notation indicating that there were no new findings, is not inconsistent with the view that Mr. Mander experienced an aggravation of soft tissue injuries as a result of the accident.

Credibility:

I accept General Accident's submission with respect to concerns about Mr. Mander's credibility. In several instances, he was inconsistent or prevaricated in his evidence. Given that Mr. Mander holds a university degree and had the assistance of an interpreter when testifying, I do not attribute these inconsistencies to comprehension difficulties. I have already noted that Mr. Mander could not reconcile his own evidence that he suffered only a little bit of pain prior to the accident with the medical records which confirm he was experiencing significant pain symptoms caused by his serious back condition. There were other examples:

• Mr. Mander asserted that, prior to the accident, he told Dr. Sirah that he had pain in his right arm, indicating his full arm up to his shoulder. In cross-examination, he could not explain why Dr. Sirah's records only referred to his right forearm.

• Mr. Mander had difficulty conceding that his nose injury, in and of itself, would not disable him from performing his job as a truck driver, even though he stated that the sole symptom from this injury is a nose bleed which occurs only if he applies hard physical pressure to his nose.

Furthermore, it appears that Mr. Mander may have deliberately misrepresented his pre-existing health problems to both the Insurer's investigator and Dr. Mayer. His written statement to the investigator includes the statement that he had recovered from his previous injuries at the time of the accident. This is clearly contradicted by the medical evidence. Dr. Mayer's report states that Mr. Mander denied having any prior work-related accidents or injuries, and that he also denied having any prior motor vehicle accidents. Again, both statements are untrue. In cross-examination, Mr. Mander denied that he attempted to misrepresent his circumstances. While these latter two examples raise obvious concerns respecting credibility, I have placed lesser weight on this aspect of the evidence. Neither Dr. Mayer nor the investigator were available to give evidence respecting the circumstances in which Mr. Mander provided his information to them, and therefore it is unclear whether these are examples of misrepresentation, or merely the result of miscommunication.

As discussed below, the medical evidence supports Mr. Mander's subjective reports of pain and disability immediately following the motor vehicle accident. However, I find that Mr. Mander has grossly understated the severity of his pre-accident symptoms. Irrespective of whether he deliberately misrepresented his condition, he clearly showed no appreciation that his pre-accident condition has persisted since the accident. He did not acknowledge that his pre-accident problems might in any way have been a source of his post-accident functional difficulties. Therefore, I am unable to rely on his subjective reports that he suffers a continuing disability as a result of the accident.

Conclusions:

I find that Mr. Mander suffered soft tissue injuries to his neck and low back as a result of the motor vehicle accident. Dr. Mayer made this diagnosis, which agrees with the diagnosis made by Dr. Saeed¹¹. As I have already noted, the motor vehicle accident involved more than a minor impact, and Mr. Mander did suffer other injuries in the accident. Therefore, I find that these diagnoses are reasonable, notwithstanding Mr. Mander's pre-accident medical history. This medical evidence supports Mr. Mander's subjective reports of pain and functional disability following the accident. I also note that Mr. Mander had a good paying job which he performed prior to the accident despite his pre-existing back problems. Therefore, I find it reasonable to conclude that he would have returned to work after the accident had he been able to do so. Consequently, I accept Mr. Mander's assertion that he was unable to perform his job immediately after the accident.

However, the evidence is not sufficient to support the conclusion either that Mr. Mander has continued to remain substantially disabled, or that the sequelae of the motor vehicle accident have continued to materially contribute to his functional disabilities. Dr. McDonald's 1999 reports confirm that Mr. Mander's condition has not changed since April 1996. These reports also indicate that he has not suffered any decreased functional capacity, compared to his pre-accident status. Mr. Mander was able to work despite Dr. McDonald's findings in April 1996. Therefore, I can only conclude that he is able to work now. In this regard, I further note that the essential tasks of Mr. Mander's job fit within the functional restrictions specified by Dr. McDonald in his most recent reports. Mr. Mander's work does not involve repetitive bending and lifting, nor prolonged standing or walking

General Accident argued that Mr. Mander's employment with Faan Cartage was a sham, asserting that the severity of Mr. Mander's pre-accident condition would have made it impossible for him to perform this job. I am unable to accept this proposition, as I received no evidence to suggest that Mr. Mander was not legitimately employed by Faan Cartage. However, I do find that Mr. Mander's ability to work, despite the severity of his pre-existing condition, reinforces my conclusion that his job at Faan Cartage is not heavy in nature.

In summary, Mr. Mander was unable to perform his job as a truck driver immediately after the motor vehicle accident, but his condition subsequently improved to the point where he returned to his pre-accident status. The question I must answer is: At what time did this occur?

Assessing levels of functional disability resulting from myofascial pain cannot be achieved with precision, and therefore an arbitrator should consider all the evidence, in order to obtain a fair result.¹² I take Mr. Mander at his word when he told Dr. Mayer on September 9, 1996 that his condition was 30 to 40 per cent better. Extrapolating this rate of recovery, and bearing in mind that his pre-existing problems may have delayed his progress, I find that Mr. Mander would have continued to remain substantially disabled for a further period of no more than two months beyond September 9, 1996. Even if he remained disabled beyond this period, I find that Mr. Mander has failed to adduce sufficient evidence to establish, on a balance of probabilities, that the sequelae of the motor vehicle accident continued to materially contribute to such functional disability. His pre-existing low back and right arm problems, and the symptoms resulting from his slip and fall, were simply too severe to have ceased to significantly contribute to his pain symptoms and functional restrictions after the accident. Mr. Mander adduced no medical evidence to suggest that the sequelae of the motor vehicle accident were sufficiently severe, in and of themselves, to result in long-term disability.

In conclusion, therefore, I find that Mr. Mander has established his claim for weekly income replacement benefits, at the rate of $561.61 per week, for a total period of 24 weeks. I further find that he is entitled to interest on this amount, calculated in accordance with section 68 of the Schedule.

Expenses:

I have not addressed the issue of expenses in this decision. Counsel may return this issue before me if they are unable to resolve this matter between themselves.

April 19, 1999

Dirk VanderBent Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 62

FSCO A96-001617

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HARINDER PAL MANDER

Applicant

and

GENERAL ACCIDENT ASSURANCE CO. OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. General Accident shall pay Mr. Mander weekly income replacement benefits for a period of 24 weeks from April 2, 1995, plus interest calculated in accordance with section 68 of the Schedule.

2. Mr. Mander's weekly income replacement benefits are fixed at $561.61 per week.

3. The issue of payment of expenses incurred in respect of the arbitration, is deferred. This matter may be returned before me for adjudication, if the parties are unable to resolve this issue between themselves.

April 19, 1999

Dirk VanderBent Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Exhibit 17
3. 3Exhibit 26, page 21.
4. 4Exhibit 18, page 4.
5. 5Exhibit 7, Report dated February 7, 1997.
6. 6Exhibit 6
7. 7This diagram was not made an exhibit.
8. 8Exhibit 26, page 6
9. 9Exhibit 10
10. 10After the accident, Mr. Mander was assessed by orthopaedic surgeon, Dr. Howard Weinberg, on September 20, 1996. Although it appears that Dr. Weinberg did not have Dr. McDonald's records, Dr. Weinberg also suspected that Mr. Mander had a recurring disc problem. Dr. Weinberg did not assess the impact of the accident on Mr. Mander's condition. He recommended that Mr. Mander return to see Dr. McDonald, who would be in the best position to compare his current problem with the original problem.
11. 11Confirmed in a Health Practitioner's Certificate dated May 14, 1996, as noted in Dr. Mayer's report.
12. 12Edwards and State Farm Mutual Automobile Insurance Company (OIC A-001707, July 12, 1993), affirmed on appeal (OIC P-001707, February 26, 1996)