Neutral Citation: 2001 ONFSCDRS 103

FSCO A00-000017

BETWEEN:

WILLIAM TERRY

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

K. Julaine Palmer

Heard:

May 28- 31, 2001, in Peterborough.

Appearances:

Rod E. Johnston for Mr. Terry

Hugh G. Brown for Wawanesa Mutual Insurance Company

William Terry was injured in a motor vehicle accident on May 22, 1997. He received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ Wawanesa terminated Mr. Terry's income replacement benefits on July 29, 1999. The parties were unable to resolve their disputes through mediation, and Mr. Terry applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Terry entitled to receive weekly income replacement benefits from Wawanesa, pursuant to subparagraph 5(2)(b) of the Schedule, from July 30, 1999 ongoing?
Who should pay the expenses of this arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Mr. Terry also claims interest on any amounts owing.

Mr. Terry is entitled to receive weekly income replacement benefits from Wawanesa, from July 30, 1999 ongoing, in the agreed sum of $266.74 per week, plus interest as set out in section 46(2) of the Schedule.
Wawanesa should pay the expenses of this arbitration.

Background of Injuries, Treatment, and Dispute Resolution:

Bill Terry was injured in a motor vehicle accident on May 22, 1997 while on his way to work as a member of a paving contractor's crew. Mr. Terry testified that he had been employed with Fred Curvin Paving for 13 years, generally working from May to November each year.

Mr. Terry testified that in the accident his vehicle was hit on the passenger side and driven across two lanes of a major city street, over a curb, and into a parking lot. As a result, his left shoulder and the left side of his head impacted on the driver's door and window of his vehicle. Since the time of the accident he has complained of neck pain, upper back pain, left shoulder pain, and head pain.

Mr. Terry has participated in several courses of physiotherapy treatment. His first program at Peterborough Physiotherapy and Sports Injuries Clinic lasted 11 weeks until the end of August 1997. At the time of his discharge from physiotherapy, Julie Woodbeck, Mr. Terry's physiotherapist, recorded that Mr. Terry reported that his neck pain had improved but he was having occasional head pain at the base of his skull. He continued to take muscle relaxant and anti-inflammatory medication. Ms. Woodbeck reported that Mr. Terry had a full range of motion in his neck, but she noted tightness in the left trapezius with left rotation and left side flexion. Mr. Terry continued to complain of left shoulder pain following activity.

The Insurer set in motion the process under the Schedule to terminate Mr. Terry's weekly income replacement benefits in August 1997. However, Mr. Terry was unable to return to his job in mid-September 1997, because his employer had no "light duty" work for him. Mr. Terry requested a disability assessment at a designated assessment centre (DAC). The assessment was carried out on October 1, 1997 in Peterborough. The DAC team concluded that Mr. Terry was substantially disabled from his pre-accident employment at the paving company. The physiotherapist assessor also suggested that Mr. Terry's "significant dysfunction of the left shoulder (originating from the rotator cuff mechanism)" should be investigated by an orthopaedic surgeon. Mr. Terry was referred to an orthopaedic surgeon in late October or early November 1997 by his family doctor, Dr. John van Dorsser.

Mr. Terry was first examined by the orthopaedic specialist, Dr. Darren S. Drosdowech, on May 20, 1998, more than six months later. Dr. Drosdowech ordered x-rays and an ultrasound test of Mr. Terry's left shoulder. On May 26, 1998, Dr. Drosdowech injected the subacromial space of Mr. Terry's left shoulder, to help him determine the source of Mr. Terry's primary pain and provide him with some pain relief. In late August, on a follow-up visit to Dr. Drosdowech, Mr. Terry reported that the injection had provided him with pain relief over a period of four to five weeks. Dr. Drosdowech placed Mr. Terry on his waiting list for elective surgery for an arthroscopic investigation of his shoulder. The arthroscopy was carried out on February 3, 1999, more than 20 months after the accident, and a partial thickness tear of Mr. Terry's supraspinatus muscle was repaired. Dr. Drosdowech decompressed Mr. Terry's subacromion and excised his distal clavicle. Mr. Terry completed a program of physiotherapy following the surgery. When Dr. Drosdoswech examined Mr. Terry on May 4, 1999, three months after his surgery, Mr. Terry reported to him that his pain had decreased by half and that he was continuing with his rehabilitation protocol.

About this time the Insurer advised Mr. Terry, once again, that Wawanesa intended to terminate his income replacement benefits, effective May 21, 1999, because the company believed that he did not suffer, in the words of the adjuster, "a complete inability to engage in any employment as per the statutory accident benefits schedule." This advice from the adjuster coincided with the second anniversary of the accident and reflects the Schedule's provision, at subparagraph 5(2)(b), that the insurer is not required to pay an income replacement benefit "for any period longer than 104 weeks of disability, unless as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience."

Mr. Terry elected to be assessed again by a DAC. The assessment was carried out over a period of nine days from May 27 to July 7, 1999. The DAC summary report concluded that Mr. Terry was not suffering "a complete disability from performing other occupations as described, for which he is reasonably suited by education, training or experience."

In accordance with the DAC's conclusions and as permitted by the provisions of the Schedule, Wawanesa terminated Mr. Terry's income replacement benefits effective July 29, 1999. Mr. Terry promptly began the mediation and arbitration process at the Commission. A pre-hearing conference was held in March 2000 and the hearing was scheduled for September 2000. The hearing finally took place in late May 2001.²

Parties' Positions:

Wawanesa agrees that Mr. Terry could not resume a heavy job such as the one he performed for the paving company, but says that Mr. Terry's residual injury is a soft tissue complaint and the DAC assessment proves that he is employable. Wawanesa submits that Mr. Terry could work as a carpet cleaning service manager or supervisor, a cleaning service sales representative, a motor vehicle dispatcher, and three other similar, sedentary jobs identified by the DAC.

Mr. Terry's position is, essentially, that he has too much pain to be able to work at even a sedentary job. He submits the evidence supports his contention that he is unable to sustain a high enough level of activity to be regularly and competitively employed.

Applicant's Evidence:

Mr. Terry testified that he would like to work, but that when he increases his activity level, he needs more analgesic medication to cope with the increased pain. Mr. Terry's position is supported by the opinion of his family doctor, Dr. John van Dorsser, and two medical specialists engaged by Mr. Terry's counsel, Dr. Peter Lee, a rheumatologist, and Dr. Raymond Chow, a specialist in physical and rehabilitation medicine (a physiatrist). Mr. Terry also relies on the evidence of Ms. Kim Lamont, an occupational therapist, who arranged a work trial for him.

Dr. van Dorsser, who testified at the hearing, has practised family medicine in Peterborough since 1973. Bill Terry has been his patient since 1993. He confirmed that Mr. Terry had complained of head pain, neck pain, pain in the upper back, and left shoulder pain since the accident in 1997. Mr. Terry consulted Dr. van Dorsser in relation to the arrangements for his work trial and its termination in January 2001. Dr. van Dorsser wrote in December 1999 as follows:

[Mr. Terry] still lacks normal range of movement of his neck and upper thoracic spine. Repetitive flexion, extension and rotatory movements of his cervical and thoracic spine result in significant increases in pain in these areas and headaches. He is only able to function to the level that he does with the use of medication (Naprosyn, Elavil and Percocet). ...

His range of motion of his neck and thoracic spine have not increased with physio-therapy, nor with time. Persistent activity required by the listed jobs could only aggravate his condition. ...

It is my considered medical opinion, that Mr. Terry might be capable of some of the employment activities suggested in the DAC assessment, only if he uses increased amounts of analgesic medication. This is medically unacceptable—his future health and well being depends on reduced use of analgesic medication.

Dr. Lee, the rheumatologist, and Dr. Chow, the physiatrist, both commented on the work trial arranged by Kim Lamont, an occupational therapist. Ms. Lamont testified that she reviewed Mr. Terry's file, assessed him, and selected a work placement for him that was the most sedentary of the options identified as feasible for him in the two vocational assessments he had undergone. Both Ms. Lamont and Mr. Terry testified at length about the work placement. In addition, Ms. Lamont's report and the notes of the job coach were filed. Dr. van Dorsser and Ms. Fulton, Mr. Terry's girlfriend, also testified about the work placement.

I was impressed with Ms. Lamont's sustained attempts to help Mr. Terry succeed in the work placement, with her credentials as an occupational therapist, her assessment and reporting skills, and her professional demeanour as a witness.

In his work trial Mr. Terry functioned as a "second" to the regular dispatcher at a taxi firm. On two occasions when he attempted to dispatch the taxis, rather than just answer the telephone and pass on the calls for dispatch, the regular dispatcher was still working with him.

Based on both the written reports and the oral testimony of Dr. van Dorsser, Ms. Lamont, Mr. Terry and Ms. Fulton, I am satisfied that Mr. Terry made a concerted, genuine attempt to return to the workforce in a position that was modified in many ways to attempt to accommodate his impairments. Despite his conscientious efforts, Mr. Terry was never able to achieve longer than three hours on the job, was never able to work more than three days in a week, never worked consecutive days, and never performed the full job of the dispatcher. At the same time as he was engaged in the work trial, Mr. Terry was receiving complementary physiotherapy treatment, twice per week, in an attempt to alleviate any pain he might experience. Nevertheless, he reported pain levels that increased to between 6 and 8, on a scale of 0 to 10, by the time he left the office after each work session. In order to cope with the pain he was ingesting increased amounts of analgesic medication.

To quote from Ms. Lamont's report:

It is the requirement that Mr. Terry be present in an activity for durations of greater than two hours which is the main barrier to competitive employment for Mr. Terry. Although he is able to perform the tasks of this placement quite well, he is not able to sustain this performance for more than three hours at a time. In addition, Mr. Terry suffered higher levels of pain, as indicated by inactivity and increased consumption of pain medications, as well as Mr. Terry's subjective report, on the days following his work at Capitol Taxi. In a competitive employment setting, in which Mr. Terry would be expected to work two or more days consecutively, he would not be able to meet this demand. In looking at the whole of Mr. Terry's daily activities, it is apparent that Mr. Terry is not able to participate in any sustained activity, no matter how modified it is to his needs, without experiencing increased pain. Mr. Terry deals with this increased pain by lying down with a hot pack, taking a hot shower, and/or taking pain medications. These coping strategies require time, and cannot be pursued in a work environment.

Dr. Lee and Dr. Chow both agreed that work trials are a more valid assessment tool than the artificial situation of a functional assessment because they simulate a true work environment. Dr. Lee agreed with Ms. Lamont's conclusions that Mr. Terry is currently unemployable, even for modified work. Dr. Chow commented in his report of May 14, 2001 that it was not unreasonable that Mr. Terry had difficulty coping even with sedentary work "since postural activities such as prolonged static neck position or repetitive neck movement would create strain and stress over the injured tissue of the neck causing his pain." Dr. Chow was of the view that Mr. Terry "would have to pace his activities. Give[n] his education and job experience, it would be difficult to find the appropriate job for him. He has a physical impairment with decreased range of motion of the cervical spine with pain and decreased endurance."

Dr. Chow testified that he had reviewed Dr. Siegel's examination of Mr. Terry at the disability DAC in June 1999. He found the results of Dr. Siegel's examination consistent with the results of his own examination of Mr. Terry in May 2001. Dr. Chow felt that Mr. Terry showed a consistent presentation from the time of the accident until the present, which to him indicated he suffered from pain of long duration throughout this time period. Dr. Chow used a pressure threshold meter to measure Mr. Terry's neck and shoulder girdle pain. Mr. Terry consistently reported the same intensity of pain at corresponding sites when this instrument was used three times. Mr. Terry did not report pain or tenderness in control sites when a high intensity of pressure was exerted. Dr. Chow felt the x-ray of May 30, 1997 which was reported as showing degeneration at C5-6 and C6-7 was compatible with the nerve distribution and pain which Mr. Terry reports within his shoulder girdle. Dr. Chow's opinion is that Mr. Terry was vulnerable to the type of injury he suffered in the accident because of pre-existing, asymptomatic degenerative changes in his neck prior to the accident.

DAC Evidence:

Dr. Mark Siegel, family practitioner, and Derek Julian, kinesiologist, two members of the 1999 disability DAC assessment team, testified at the arbitration hearing. Mr. Julian graduated in 1995 from University of Waterloo with an honours bachelor of science in kinesiology. Mr. Julian was the disability DAC coordinator, and the actual author of the "Executive Summary" report of the DAC. He testified that in 1999 there was no physiatrist who was a member of the disability evaluating team at the Peterborough DAC. Mr. Julian had to choose from among the following health professionals to constitute a post-104 week DAC assessment team: an orthopaedic specialist, a rheumatologist, a family practitioner, two psychologists, an occupational therapist, two physiotherapists, a certified kinesiologist, and a dentist.

Dr. Siegel has been a family practitioner in Peterborough since 1976. He testified he has been performing assessments at the designated assessment centre since 1995 and post-104 weeks DACs since 1998 or 1999. He thought he had participated in about 25 post-104 week DAC assessments. Dr. Siegel described in detail the process of his examination, from greeting the "patient" in the waiting room, to the physical examination, to the reading of reports in the file. His own thorough report of some nine pages was filed. Dr. Siegel testified he had to rely on the expertise of the other team members in performing their examinations and reports. In the Impression section of his report, Dr. Siegel wrote: "...I believe that there are significant impairments with regards to lower cervical and upper thoracic facet joint dysfunction which is probably related to his current pain syndrome and limitations. ... I believe that this impairment is a direct result of his motor vehicle accident... My conclusion with respect to Mr. Terry's disability status will be formally addressed in the Executive Summary. This opinion will be made after a case conference and review of reports submitted by the remaining DAC team members."

Despite Dr. Siegel's remarks in the final sentence of his report about his intention to participate in a case conference and review of reports of other DAC team members, this meeting never took place. Dr. Siegel thought that the assessors might have talked informally about the impending results. He admitted Mr. Julian wrote the final summary. Dr. Siegel testified that the functional abilities evaluation ("FAE") was very important in Mr. Terry's case, because he relied on it to determine if Mr. Terry was capable of "x" or "y" activity. Dr. Siegel testified that, with the appropriate job, people could work through pain; he had seen people function with pain. He did admit, however, that a reported level of 6 or 7 at the end of an assessment was a "significant amount of pain." (Mr. Terry reported levels of pain of between 6 and 7 out of 10 in his head, neck and upper back at the conclusion of the FAE testing each day.)

I am troubled by the manner in which the conclusion about Mr. Terry's ability to work was achieved by the disability DAC team in 1999. None of the individual reports of the physiotherapist, the medical doctor, the psychologist, or the kinesiologist draws any independent conclusion as to Mr. Terry's abilities to engage in any employment for which he is reasonably suited by education, training or experience, even from that person's point of view or area of expertise.

Mr. Julian's evidence about the manner in which the team decision was reached was somewhat vague. He testified that he had talked to Dr. Platt, the psychologist on the DAC team, because Dr. Platt looked at Mr. Terry's aptitudes and the occupation codes and cross-referenced these with the physical findings to see whether there was a match. He thought he had talked to Dr. Siegel on the telephone and that he had talked with the physiotherapist as well.

Mr. Julian, the actual author of the final report, testified that all the assessors had to "sign off" on the report. However, he admitted that the four assessors were never together as a group to reach a joint decision. Mr. Julian's evidence about the predictive validity of FAE as a measure of an individual's ability to work a regular eight-hour day over time is based on a single study reported in 1986 in the American Journal of Occupational Therapy. Although he questioned Mr. Terry about his activities on the evening of May 31, 1999 after the first day of the FAE assessment, Mr. Julian did not question him after the second day of assessment as to his condition or activities on the evening of June 1, 1999 or the day following. He did testify, however, that Dr. Siegel conducted his examination of Mr. Terry on June 2, 1999 and he would have expected Dr. Siegel to hear about Mr. Terry's activities after the second day of FAE examination.

Mr. Julian testified that his understanding of the "complete inability" test under the Schedule is that a person cannot perform 51 percent of the job duties. He stated that the jobs the DAC team decided Mr. Terry can do are less physically demanding than the level of function Mr. Terry presented as able to do in the functional abilities testing.

ANALYSIS AND CONCLUSION:

In this case I find the Applicant's evidence about his inability to work more persuasive than the evidence offered by the Insurer.

Wawanesa essentially relied upon the reports of the 1999 disability DAC in support of its contention that Mr. Terry is capable of some suitable employment. It cannot be faulted for that.

However, I am not as persuaded by the DAC's conclusion. Firstly, Mr. Terry's disability is physical. The lack of an appropriate specialist's opinion weakens the overall persuasiveness of the assessment. Although Dr. Siegel is an experienced family practitioner, no specialist in physical medicine and rehabilitation examined Mr. Terry as part of the DAC or participated in the decision-making process with respect to the question in issue.

Secondly, the physical demands testing did not measure Mr. Terry's ability to carry out the duties of jobs for which he was reasonably suited. The FAE testing was designed on a standardized model to measure Mr. Terry's "function" at a point in time. Many of the tests measured activity for which Mr. Terry claims no disability like standing, walking, and climbing stairs. The FAE purported to determine Mr. Terry's functional abilities and compare them to the "essential physical demands required of any occupation for which Mr. Terry is reasonably suited with regard to education, training and experience." None of the tests measured his actual ability to act as a carpet cleaner supervisor or service manager, act as a sales representative, or motor vehicle dispatcher. Those jobs, however, happen to fall within the physical demands category of sedentary work, whereas Mr. Julian determined Mr. Terry could function at a level of light work.

Thirdly, the process by which the DAC reached its conclusions was flawed. Each individual health professional's report that comprised the disability DAC report reached no conclusion about Mr. Terry's ability to work at suitable employment. Each report, except Dr. Platt s, suggested that Mr. Terry's disability status would be discussed by the team members after each had reviewed the reports of the others. Accordingly, then, one would expect the DAC team to discuss the combined results of their testing and examination of Mr. Terry compared to the question the DAC was asked to address. However, no discussion by the panel ever occurred. Mr. Julian wrote the report based on his interpretation of the results of the functional abilities evaluation cross-referenced with the jobs identified as possibilities in the psychologist's report. It is true that each practitioner did sign the final report and must be taken to support its conclusion. However, the fact that there was little discussion of Mr. Terry's case, the test imposed by the Schedule, and consideration of the various opinions of the team members, when a meeting to engage in this type of evaluation was stated to be part of the process, weakens the persuasiveness of the final report.

Fourthly, because it is not set out in the summary report, or in any of the individual reports, I have no evidence, except Mr. Julian's, as to what the DAC panel considered the 'complete inability' test of subparagraph 5(2)(b) of the Schedule to mean. Mr. Julian, who wrote the summary report, testified that the test of "complete inability to engage ..." to him meant "50% plus one" or "Could this individual do at least 50% of an occupation?" I agree that the jobs the DAC concluded Mr. Terry can do are categorized as less physically demanding than the level Mr. Julian determined Mr. Terry would be able to perform at, given his results in the functional abilities testing. The Executive Summary report of the DAC expressed it as follows: "his functional and physical abilities will allow him to participate in the occupations stated above in the National Occupational Codes." However, I do not agree with Mr. Julian's characterization or description of what the test at 104 weeks is.

Fifthly, there is absolutely no discussion in the report about what weight or value any assessor assigned to Mr. Terry's subjective report of pain at a level of 6 or 7 out of 10 after 4.5 hours of functional testing each day. Dr. Siegel admitted that this was a "significant" level of reported pain. I have no sense from reading the reports as to what level of pain, if any, the assessors would consider to be "too much pain" if a person was still able to perform the functional tasks.

Case Law

Only one case has been decided at arbitration that required interpreting the language of paragraph 5(2)(b) of the Schedule. That is the Lombardi case, that I will discuss below. However, the language of paragraph 5(2)(b) is similar to the test at 156 weeks in the 1990 Schedule. In that regime to receive income benefits after 156 weeks an insured person had to establish that "the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience."

In the present Schedule, the language of paragraph 5(2)(b) dictates that payment after 104 weeks of disability is restricted to those who can prove they are "suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience."

What is the difference between "complete inability to engage in any employment ..." and "the injury continuously prevents the insured from engaging in any occupation or employment It would appear that continuity need not be present in the current test, but it is not clear that a "complete inability to engage" is any more stringent a test than a test where "the injury ... prevents the insured from engaging."

I agree with Arbitrator Sampliner's conclusion in the Lombardi and State Farm Mutual Automobile Insurance Company case (FSCO A99-000957, April 11, 2001), that the language used by the drafters indicates "complete inability" represents a higher degree of disability than the pre-104 week "substantial inability" test. I also agree that the intention was "to raise the standard beyond a relatively sizable inability" to do any reasonably suitable job. Arbitrator Sampliner's conclusion that the drafting in the Schedule presents a continuum of disability also makes sense.

In a case called Spicer and State Farm Mutual Automobile Insurance Company, (OIC A-010158, May 24, 1995), Arbitrator Draper discussed the principles that he believed applied to the interpretation of section 12 (5)(b) of the 1990 Schedule:

The focus of the inquiry must be on the applicant's injuries, not the availability of jobs.
The injuries must prevent the applicant from performing the duties of the alternative work, not simply make the job more difficult, or make the applicant somewhat less productive. However, the test is not limited to whether the applicant is physically capable of performing each component task of the job without risking further injury. The question is whether the applicant is substantially able to do the alternative job, considered as a whole, including reasonable hours and productivity.
The range of alternative employment that may be considered depends on the applicant's background. It may include jobs that are different from the work that he or she was doing at the time of the accident, but only if they are reasonably suitable or appropriate for the applicant. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative.

It is not my sense of the test of paragraph 5(2)(b) that the meaning of "complete inability" is that the applicant has to suffer an inability to do more than 50 percent of the job, as Mr. Julian characterized it. Real world jobs should not be broken down into their component parts such that if an applicant is able to do a little more than half of any suitable job, that he should be found to be disentitled from receiving income replacement benefits (and an employer should be obliged to hire him for that job). As Arbitrator Sampliner pointed out in Lombardi, a literal reading of total disability clauses has been rejected in many previous cases and a literal reading of "complete inability" would mean an insured would have to be unable to perform any function of any job to qualify.

Somehow the ability to engage in a reasonably suitable job, considered as a whole, including reasonable hours and productivity must be addressed. In my view, Mr. Terry has convincingly demonstrated in his attempt at a work trial that he is completely unable to engage in a sedentary job for which I find he was reasonably suited. He would be unable to consistently attend and sustain a reasonable number of hours of employment as a taxi dispatcher or any similar job.

Mr. Terry's inability to work is supported by the expert opinions of his family doctor, who has treated him both before and after the accident, a consultant rheumatologist, a consultant physiatrist, and the opinion of the occupational therapist who arranged the work placement. The records of his physiotherapist, Julie Woodbeck, support the finding that although repeated sessions of physiotherapy have improved Mr. Terry's physical movement in his neck from time to time, he has not been able to achieve a sustained level of satisfactory mobility in his neck. Even the records of the DAC support the contention that Mr. Terry has an identifiable physiological problem in his neck and upper thoracic spine that results in head pain.

The DAC report was prepared in June 1999 and the work trial was carried out in December 2000 and January 2001, more than 18 months later. The evidence with respect to Mr. Terry's condition over that interim period is mainly found in Dr. van Dorsser's clinical notes and records but also in periodic reports from Julie Woodbeck, the physiotherapist. Dr. van Dorsser's clinical notes and his report of December 30, 1999 confirm Mr. Terry's neck, upper thoracic spine, and head pain did not improve over this period. Ms. Woodbeck's reports confirm that in January 2000, Mr. Terry's objective findings were worse than in comparison to her discharge report in September 1997. By the time she had treated Mr. Terry for six weeks, marked improvement was noted. However, a month after her treatment ended, on re-assessment in early April 2000, Mr. Terry's condition had regressed. Ms. Woodbeck was puzzled by this pattern and recommended six sessions to help resolve the neck pain, headache and tightness, then continued massage therapy at weekly intervals to attempt to wean Mr. Terry from maintenance therapy.

When she testified at the hearing, Ms. Woodbeck was uncertain as to whether Mr. Terry ever received the treatment she recommended in April 2000. When she re-evaluated Mr. Terry in September 2000, once again she found a decrease in his active range of motion and increased tone in his left trapezius, sternocleidomastoid and paraspinal muscles. On repeated testing in January 2001, decreased mobility and continued tenderness over his cervical spine was noted. Ms. Woodbeck treated Mr. Terry twice weekly during the period of his work trial.

For the above reasons, I reject the conclusion of the Peterborough DAC that Mr. Terry does not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. I find that he met the test at May 22, 1999 and since then has suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

My order, then will be that Wawanesa must pay Mr. Terry an income replacement benefit at the agreed amount of $266.74 per week from July 30, 1999 ongoing. According to the provisions of section 287 of the Act, the Insurer shall not reduce benefits to Mr. Terry on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless he agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding.

EXPENSES:

Wawanesa submitted that expenses should be paid to the successful party in this arbitration. Mr. Terry submitted that where an application has merit and there are no extraordinary circumstances, an applicant should receive his expenses in any event and success is only one of the criteria the arbitrator should consider. I have considered these submissions and the criteria stipulated in the Expense Regulation, Schedule F to the Dispute Resolution Practice Code.

Mr. Terry has been successful in this proceeding. No conduct by either party is noteworthy, save the comments made in the letter of Arbitrator Allen, dated September 8, 2000 with respect to the adjournment granted on the basis of the late service of Dr. van Dorsser's clinical notes and records. Dr. van Dorsser explained how these records were "lost" for a time in the business office of his group practice. I am satisfied by his explanation and that the Applicant was not involved in this delay. This arbitration was not unduly complex, although it is one of the first to consider the issue of post-104 weeks benefits under this Schedule. No offers to settle need be considered in this case. I conclude that taking all these factors and submissions into consideration, I should award Mr. Terry his expenses of the arbitration.

July 12, 2001

K. Julaine Palmer Arbitrator

Date