Neutral Citation: 2001 ONFSCDRS 18

FSCO A99-001158

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KOSA LEDENKO

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Nancy Makepeace

Heard:

September 5, 6, 7 and 8, 2000, and October 13, 2000, in Hamilton, Ontario.

Appearances:

David Hayward for Ms. Ledenko

John Pavoni for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Kosa Ledenko, was injured in a motor vehicle accident on September 26, 1997. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on July 23, 1998. The parties were unable to resolve their disputes through mediation, and Ms. Ledenko applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("the Act"). The issues in this hearing are:

1. Is the Applicant entitled to income replacement benefits, pursuant to sections 4 and 5 of the Schedule, between July 23, 1998 and September 26, 1999?

2. Is the Applicant entitled to interest on overdue benefits, pursuant to section 46 of the Schedule?

3. Is the Applicant or the Insurer entitled to reimbursement for arbitration expenses incurred, pursuant to section 282(11) of the Act and Ontario Regulation 664, as amended by Ontario Regulation 464/96, made under the Act?

Result:

1. The Applicant is entitled to income replacement benefits between July 23, 1998 and September 26, 1999, with interest calculated in accordance with section 46 of the Schedule.

2. The Applicant shall pay the Insurer's expenses for the first day of hearing, September 5, 2000, fixed at $500. Payment may be deferred pending resolution of the remaining arbitration expenses issues. I may be contacted with respect to those issues if the parties are unable to agree.

The parties resolved their disputes about medical and rehabilitation benefits and a special award shortly before the hearing. They agreed that the correct amount of the Applicant's income replacement benefits is $319.73 per week. They also agreed that September 26, 1999 is the C104 weeks of disabilityc date described in paragraph 5(2)(b) of the Schedule. The Applicant does not claim income replacement benefits after that date.

EVIDENCE AND ANALYSIS:

Background:

On September 26, 1997, the Applicant was driving in the passing lane of the QEW, near Oakville, when the van in front of her stopped suddenly. She was able to stop in time, but just barely, with only an inch or two to spare. She expected to be rear-ended by the vehicle behind her, and she was. The impact pushed her vehicle into the back of the van. A fourth vehicle rear-ended the car that had hit the Applicant, pushing that car into the ApplicantCs vehicle again, resulting in a second impact.

At the time of the accident, the Applicant was driving home to Oakville from her job as a bartender at Club Pro, an adult entertainment club on the airport strip. She returned to work after the accident, but by mid-October, 1997, she was forced to stop working because of ongoing headaches, neck pain and upper back pain, especially on the right side, extending to her whole back. The Applicant has not returned to her pre-accident job since then, and claims that she is substantially unable to perform the essential tasks of this job, especially reaching forward, working overhead, bending and lifting and carrying, because of her accident-related injuries.

Credibility:

On behalf of State Farm, Mr. Pavoni submitted that Ms. Ledenko’s evidence was not reliable and should not be accepted. Because of a number of gaps and discrepancies in Ms. Ledenko’s testimony, I approached her evidence with considerable caution. Though I concluded, ultimately, that Ms. Ledenko is entitled to benefits, the credibility concerns identified by State Farm need to be addressed.

Failure to appear on the first day of hearing:

The hearing was scheduled to begin on Tuesday, September 5, 2000 at 10:00 a.m. Mr. Hayward appeared on the first day, but the Applicant did not. Mr. Hayward was unable to explain her absence. At 10:20, I recessed the hearing until 11:30, in order to give Mr. Hayward an opportunity to contact his client. When we resumed, Mr. Hayward reported that the Applicant had called his office and left a phone number in Toronto (not her home) where she could be reached. However, it turned out to be a wrong number, and he had not been able to contact his client. I adjourned the hearing till 10:00 a.m. the next day.

The Applicant attended on Wednesday, September 6, 2000 at 10:00 a.m. She explained that she had gone out of town with some friends for the Labour Day weekend. They had car trouble on the way back, and as a result, she stayed with a friend in Toronto. She was unable to call Mr. Hayward's office until mid-morning.

I find that the Applicants conduct reflects a disregard for the arbitration process. The Applicant did not testify under oath about this incident. Though I found it troubling, I am not satisfied the incident warrants a finding about the Applicants credibility.

The Applicant's Resume:

The Applicant's resume was filed in evidence. Under "Education;' it states:

1991-1995 Carleton University, Ottawa, Ontario Bachelor of Arts [emphasis in original]

In examination-in-chief, the Applicant testified that she attended Carleton between September 1990 and quit, "a couple credits short of a degree," in April or May of 1993. Questioned about this in cross-examination, she admitted that the dates given in her resume are not accurate. She stated that she enrolled in the fourth year of the program, but then withdrew. The Applicant explained that she prepared this resume after the accident for the purpose of looking for a job. None of the jobs she applied for required a degree, but she wanted some credit for the work she had done. A little later, she stated that a friend prepared the resume for her.

The Applicant was reluctant to admit that her resume suggests she completed her degree, but I have no doubt that it does. Many resumes contain exaggerations, but claiming you have a degree you do not have is a serious matter.

The Applicant testified that after leaving university, she worked as a waitress in Ottawa for a while, then moved to Toronto. She worked at Runway 66, another club on the airport strip, for about a year. Her resume indicates this was between August 1995 and August 1996. She saved enough money to travel to Croatia for three months in the fall of 1996, and on her return in November, traveled to Florida for two months to be maid of honour for a friend. The Applicant testified that before starting at Club Pro, she had another bartending job at a similar club on the airport strip; this was not recorded on her resume.

The Applicant’s resume indicates that she started working at Club Pro in April 1997.² She testified that she started the job in July 1997. Mr. Domenic Marciano, a co-owner of the club, testified that she started on August 5, 1997. The Applicants Application for Accident Benefits form also indicates August 1997 as her start date. I accept that the Applicant started working at the club on August 5, 1997. Thus, her resume overstates her period of employment with Club Pro by about four months.

I find that these discrepancies indicate the Applicant is willing to exaggerate or misrepresent the facts to her own benefit.

Income Tax Returns:

The Applicant testified that she earned enough money at Runway 66 between August 1995 and August 1996 to travel to Croatia for three months. However, a computer printout of the information provided to Revenue Canada in her 1995 income tax return indicates she reported total income of $1,264 that year, all of it from social assistance. Her printout for 1996 indicates an income of $103 from interest. On cross-examination, the Applicant gave several explanations for failing to report her income from Runway 66. She testified that she received no wages there, but only tips. She did not receive a T4. She felt this was "like being in business for yourself." She also testified that by the time she filed her income tax returns (the printouts indicate both assessments were completed in May 1997), Runway 66 was involved in a dispute with its employees at the Labour Board. The Applicant stated she earned twice as much as the other bartenders because she was good, and she saved about $20,000 to $25,000 for her trip to Europe.

In the 1997 tax year, Club Pro issued a T4 in the amount of $2,508.10. The Applicant reported that amount, plus additional employment income of $8,000 in tips. State Farm's agreement to pay income replacement benefits of $319.73 per week suggests that it accepted that the Applicant earned significant unreported tip income in addition to her wages. When questioned in cross-examination about why she now reported her tips to Revenue Canada, the Applicant stated that she was now receiving an hourly wage as well as tips. I find it more significant that her 1997 income tax return was prepared and filed after the accident, when it could help support her benefit claim. This damaged her credibility further.

The Job at Club Pro:

The Applicant testified that the club could hold as many as 1,000 customers. Mr. Marciano testified that in 1997, the club's seating capacity was about 380 people, with about 100 or more tables for food service, and about 50 to 60 seats around the bar. He showed me a photograph of the club, and provided a floor plan, which was filed into evidence. He testified that on Friday and Saturday evenings, all the tables would be full, and the customers would be standing two deep at the bar. I find that Mr. Marciano's evidence is likely to be more accurate than the Applicants, based especially on the floor plan and the legal seating capacity of the club. Even allowing for customers standing at the bar, I do not accept that the bar ever held close to 1,000 customers. Moreover, the Applicant testified that she usually worked the day shift, which was much less busy, at the time of the accident. Not every discrepancy points to a credibility problem, and many people find it difficult to estimate the number of people in a given space. However, the discrepancy here is a significant one. Whether it is innocent or not, it undermined my willingness to rely on the Applicant’s evidence about her job duties.

There are two shifts of bartenders at the club: days (11:00 a.m. to 6:30 or 7:00 p.m.), and nights (6:30 p.m. to 2:30 a.m.). The accident occurred at around 7:30 p.m. on a Friday evening while the Applicant was returning home from work. The Applicant testified that when she started at the club, she replaced the daughter of one of the owners, and worked nights plus one day shift. She then shifted to a pattern of working days with one or two night shifts. The Applicant testified that she was unable to say when this change occurred. This was an important point because the Applicant conceded that the night shift is much busier than the day shift. I am skeptical of the Applicant’s claim that she was unable to remember when this change occurred because she remembered many other details about her work at the club, and seemed generally to have a good memory. In the absence of corroboration (Mr. Marciano was unable to assist on this point), I conclude that the Applicant generally worked days during the greater period of her employment with the club.

The Applicant testified that she worked one waitressing shift per week, usually on a Saturday.

Her job duties as a waitress included: wiping all chairs and tables in her section; moving the chairs into position (the Applicant testified they weighed about 50 lbs.); washing and refilling condiment containers; supplying cutlery, ashtrays and condiments from the kitchen; and serving drinks and food. The Applicant explained that this required carrying trays upstairs to the tables on the second floor.

Mr. Marciano did not know whether the Applicant worked any waitressing shifts. The Applicant’s resume, Application for Accident Benefits, and Employers Confirmation of Income all describe her job as "bartender." I am unable to find any reference to waitressing duties in any of the Applicant’s reports to the medical experts who examined her. In fact, the only reference I can find to waitressing duties is in the Physical Demands Analysis ("PDA") prepared by Ms. Leah Dix, an occupational therapist retained by the Insurer. Ms. Dix prepared the report based on information provided by the Applicant. Under the heading, "Squatting," the report indicates that Ms. Ledenko "occasionally would fill in if required for a waitressing shift and would have to squat down with trays to place on table." The remainder of the nine-page report details the Applicants duties as a bartender, including serving waitresses, without making further reference to waiting on tables herself. This is significant because waitressing requires lifting, carrying, reaching, bending and twisting, activities that are emphasized in the PDA. I find that any waitressing duties the Applicant had were minimal and insignificant.

I find that the Applicant was intentionally vague as to when she started working the day shift, exaggerated the number of customers in the club, especially with respect to the day shift, and exaggerated the waitressing component of the job. These discrepancies are especially troubling, because they pertain directly to an important issue in this proceeding: what were the essential tasks of the Applicant’s pre-accident employment?

Ms. Dix wanted to visit the club to do a work site assessment, but the Applicant refused consent on the basis that her job was no longer available and she did not feel the visit would be welcomed. Accordingly, Ms. Dix prepared the PDA based on the Applicant’s description of her job. Ms. Ledenko then made a few changes to the document and signed it. She testified at the hearing that the PDA, as amended, describes her job accurately. Ms. Dix testified that she had prepared assessments for other bartenders in the past, and the Applicant’s description of her job duties was typical, except for the requirement that she wear high-heeled shoes, which Ms. Dix felt was in keeping with the culture of the particular workplace.

The Insurer suggested that the Applicant refused consent for a work site assessment because she did not want the Insurer’s expert to have an opportunity to question her version of the physical demands of the job. Ms. Dix testified that in her experience, an insured person may refuse consent for a work site visit because the insured person is concerned about jeopardizing an ongoing employment relationship, or there are bad feelings if the job is no longer available, or the insured person has confidentiality concerns. Ms. Dix noted in her report that the Applicant was reluctant to disclose that she worked in a strip club. I formed the same impression based on the Applicant’s testimony at the hearing. Moreover, I find that the Applicant was probably right in thinking that a visit by an occupational therapist would not be welcome on a busy night at the club. I do not accept that the Applicant’s refusal of consent impacts adversely on her credibility.

The Applicant's return to work after the accident:

I heard contradictory evidence about the Applicants return to work after the accident, which occurred on the evening of Friday, September 26, 1997. The Applicant testified that she went to bed early that night. She could not remember whether she worked the next day, but said she probably did not. Her pay stubs for September 28th and October 5th indicate she worked 40 hours each week, although I have no evidence as to what shifts she worked. In any event, the Applicant testified that eventually she returned to work for about a week. Then, one Saturday morning, she could not move her head, hold up her head or get out of bed. She called into work, and spoke to Paul, her manager.³ He told her it was her responsibility to find someone to cover her shift. She called around, but could not get anyone else to come in, so she worked the shift herself, despite what she described as "extreme pain." She testified that she worked for about another week, but laid off when she could no longer continue because of headaches and pain in her neck, shoulders, and her entire back.

In cross-examination, the Applicant testified that the flare-up happened about a week and a half after the accident. When Mr. Pavoni, counsel for State Farm, asked whether she worked her regular job or modified duties, she stated that the club "wasn't very busy." She explained that as the schedule was already set when she had her flare-up, it was her responsibility to work the two shifts remaining before she could see Dr. Danielle M. Over, her family doctor.

The Applicant’s testimony in chief suggests that it was on Saturday, October 4th that she called Mr. Ciccini about finding a replacement for her shift. However, her last pay stub was dated October 5, 1997, which suggests that she did not work past her October 4th shift, contrary to her evidence that she worked for another week afterwards. Mr. Marciano was unable to provide any assistance on this point.

Shortly after the accident, Dr. Over referred the Applicant to Columbia Rehabilitation Centre ("Columbia") for physiotherapy. The Applicant was cross-examined about Columbia’s initial report, dated October 16, 1997, which says "MVA 3 weeks ago, has been in bed mostly." The Applicant explained that she had been in bed "just before I got there, after the muscle spasm."

Dr. Over initially testified, on cross-examination, that she understood the Applicant had only worked for one day after the accident. When Mr. Pavoni told her that the Applicant had testified she continued to work for about two weeks afterwards, the doctor stated she was not surprised, given the Applicant's European cultural background. Dr. Over described the Applicant as stoic, and explained her delay in seeking treatment as "strictly cultural." Mr. Pavoni then pointed out that Dr. Over’s own Disability Certificate gave October 14th as the date when the Applicant first became disabled. Dr. Over then said that the Applicant must have worked till October 14th: "I guess she just got so bad she couldn't go on." She speculated that her impression that the Applicant had only worked for one day may have come from her associate. This testimony indicated that Dr. Over’s medical assessment of the Applicant depended heavily on her assessment of the Applicant’s character. I did not find it helpful, and this exchange undermined the value of Dr. Over’s testimony generally.

In the absence of persuasive oral evidence, I prefer to rely on the Applicant’s pay stubs, which were prepared by her employer contemporaneously and in the ordinary course of business. Thus, I find that the Applicant probably stopped working before October 5th, the date of her last pay stub. I am troubled by the Applicant’s vague and inconsistent evidence about her return to work. Despite the lapse of time, I would expect the Applicant to remember the sequence of events that led to her losing her job, if not the exact details.

The significance of these credibility findings:

My concerns about the Applicant’s credibility undermined my willingness to accept her evidence without corroboration. However, Ms. Dix testified that the Applicant's description of her job tasks was typical for bartenders, in her experience, and, as I will explain, Mr. Marciano corroborated the main points in the Applicant’s evidence about her job. Turning to the medical evidence, I find it significant that none of the medical experts who assessed the Applicant suggested she is a malingerer or is exaggerating her symptoms. Though Dr. Over took a partisan approach, I find that the Applicant’s consistent complaints of right thoracic muscle spasms and stiffness are supported by the weight of the medical opinion. This is a close case, but ultimately I am persuaded that the Applicant, while far from unemployable, could not return to her demanding pre-accident job between July 23, 1998 and September 26, 1999.

Essential tasks of the Applicant's pre-accident employment:

To establish her entitlement to benefits, the Applicant must prove, on a balance of probabilities, that she is substantially unable to perform the essential tasks of her pre-accident employment.

A "substantial inability" is an impairment that to a substantial, significant or important degree, prevents the insured person from doing her job on a sustainable, productive and remunerative basis. It is not sufficient to establish entitlement that returning to work will aggravate the insured person’s symptoms. On the other hand, the insured person is not required to prove that working will cause further injury. The test is whether it is realistic and reasonable, in all the circumstances, to expect the insured person to return to work given her ongoing symptoms.

Mr. Marciano’s floor plan indicates that the Applicant worked at an oval-shaped bar surrounding a centre island. There are two fridges in the island, which Mr. Marciano marked in blue ink on the floor plan. He testified these are about chest-high, and are used to store beer and soft drink bottles seven deep. There are other coolers about 20 to 30 feet or more away in the back hall. Liquor bottles are stored on the centre island.

The Applicant testified that she worked at least 40 hours a week, over five or six days. Her pay stubs corroborate this evidence, which was not disputed by the Insurer, and I accept it. No breaks were provided. Mr. Marciano corroborated the Applicants testimony that the job is stressful and fast-paced.

Mr. Marciano testified that he was in the club on a daily basis, and was familiar with the job of the bartenders. The Applicant and Mr. Marciano agreed about most aspects of a bartender's job duties. These included: cleaning up from the night before, counting the bottles of beer and other drinks in the fridges, bringing a cash float from the office downstairs, cutting lemons and limes for drinks, filling three sinks with ice, serving customers at the bar and serving waitresses who came to the bar with drink orders for customers at the tables. During the day shift, there was one bartender on staff, and two waitresses. I accept the Applicant's testimony that the bar became busy at lunch hour, then picked up again in late afternoon. A busboy (or "barback") would start later in the afternoon, around 4:00 p.m. His responsibilities included restocking the fridge. During the evening shift, there were two bartenders on hand, four to five waitresses and a barback. I accept that the club was much busier in the evening, imposing greater demands on bartenders.

The Applicant testified that the most physically demanding parts of the job were bending and reaching to retrieve bottles from the fridge, and lifting and carrying cases of beer. She also referred to prolonged standing on high-heeled shoes.

The Physical Demands Analysis identified as major daily activities (requiring more than 3 hours a day):⁴

• prolonged standing on heels without a break

• walking around the bar to take orders and serve customers

• neck flexion and rotation, while serving customers at the bar

• reaching forward (to retrieve liquor bottles), overhead (to retrieve beer bottles), and down (to mix and serve drinks), and

• lifting and carrying light weights (up to 20 lbs.)

Ms. Dix noted that a 6-pack of beer weighs 8 lbs. She also identified, as a moderate daily activity (up to 3 hours daily) the need to lift or carry medium weights (up to 50 lbs.):

• Employee reports she must stock beer fridge daily and must therefore be able to carry and lift a case of 24 beer bottles. A case of 24 bottles of Labatt's Blue weighs 32 lbs.

• Employee reports a case of Evian water bottles must be carried and placed on top of the bar. Employee crawls under the bar as it does not lift and then picks up the Evian water bottles on the other side. Was not possible to weigh a case of Evian water bottles, but its weight would be consistent or lighter than the 24 beer bottle case.

In her narrative report, Ms. Dix drew the following conclusion:

According to the National Occupational Classification (NOC #6452 Bartenders) the duties Ms. Ledenko performed were classified as Light Strength Activities involving the following most frequent physical activities:

• Near vision.

• Verbal interaction.

• Standing and/or walking.

• Upper limb coordination.

• Light strength.

However, Ms. Dix concluded:

The actual position of Bartender described by Ms. Ledenko for the position of Bartender she performed prior to the MVA is Medium Level work, because it requires the ability to lift a 32 lb. case of 24 beer bottles when stocking shelves prior to each work shift. [emphasis in original]

The most significant change the Applicant made to the PDA was to identify squatting and repetitive bending and twisting as major activities of the job (required more than 3 hours daily); Ms. Dix had classified these as moderate activities (1 to 3 hours daily). The Applicant indicated these activities were required in relation to stocking the fridge and retrieving bottles from the fridge. She also identified cervical extension as a major activity while obtaining bottles, and serving customers.

Asked to review the Physical Demands Analysis prepared by Ms. Dix, Mr. Marciano did not agree that the job required overhead reaching, because glasses are stored on the bar. However, he agreed the bartender would have to reach forward at above-shoulder height to obtain liquor bottles. I accept his evidence on this point.

The main dispute about the Applicant's job duties concerned restocking the fridges. The PDA states that the Applicant had to restock the beer fridges every day at the start of the shift. At the hearing, the Applicant stated that she emphasized the bending and reaching, rather than the lifting demands of the job when she met with Ms. Dix. She also pointed out that the PDA indicates that she had use of a wheeled cart if there were too many cases to carry. Dr. Reuven Lexier, an orthopaedic surgeon who assessed the Applicant at State Farm’s request, understood that the Applicant was required to lift "at least 10-15 cases of either beer or water per shift. Each case is approximately 32 lbs." The Applicant conceded, on cross-examination, that this information "probably" came from her. At the hearing, the Applicant testified that restocking was done "as necessary." She testified there was usually a barback available at night, although he would sometimes be too busy to help. I accept State Farm’s submission that the Applicant’s evidence at the hearing represented a change from her earlier focus on her lifting and carrying duties, and a new focus on bending and reaching. This damaged her credibility.

Mr. Marciano testified that a bartender might need to restock the bar in the daytime, but should not need to do so, because of the lesser demand for beer. At night, the barback would look after restocking. Mr. Marciano described the physical demands of the job as "a lot of running around." He did not think there was much need for lifting, but agreed a bartender would have to bring out a case of beer if she ran out. He agreed this was an "essential task" if it needed to be done. In direct examination, he said he could help with this, if necessary. In cross-examination, he conceded he would probably not accommodate an injured employee if this was going to interfere with his bottom line. I accept that the owner of the club could not realistically be expected to assist with routine bartending tasks. I also heard no evidence that the employer would be willing to accommodate the Applicant by reassigning her more physically demanding duties. This is important evidence, because an insured person’s ability to return to work must be assessed realistically, keeping in mind an employer’s demands for productivity in a competitive environment.

I accept that prolonged standing, repetitive bending, repetitive reaching (at shoulder height and downwards) and light lifting and carrying were frequent physical demands as the Applicant served behind the bar. I accept that medium-strength lifting and carrying were required on an occasional basis, and this was an essential task. I also accept that the Applicant worked in a stressful, demanding and fast-paced environment.

The Accident and its consequences:

The Applicant described the two impacts involved in the accident, as set out above. She testified that while her car — a 1991 Ford Probe hatchback — needed no repairs, the back seats came down, despite being latched, and the muffler was hanging down later that day. She also testified that the two vehicles behind her suffered front end damage, and one was towed away. The Applicant waited to give her report to the police, then drove home. She had a headache, felt tingling in her head and shoulders, and felt anxious and "in shock." She went to bed early, feeling very tired.

The Applicant testified that by the time she saw Dr. Over on October 14, 1997, she could not turn her head, and had difficulty sitting and sleeping. Dr. Overcs Disability Certificate noted every stiff neck muscles bilateral and very tender - also slow onset of low back pain - C7 tender - reduced range of motion.c The diagnosis was cervical strain and strain of the upper and lower back. This was classified as a Grade II whiplash, which involves ccomplaint of neck pain AND musculoskeletal sign(s) including decreased range of motion and point tenderness."⁵ Dr. Over felt the Applicant could not return to work because of neck and shoulder pain and stiffness, and intolerance to upright position. She prescribed Robaxisil and referred the Applicant to Columbia for physiotherapy.

The Applicant's complaints continued. On October 21, 1997, she completed an Activities of Daily Living report for the Insurer. She reported that she could not move her head forward or back, or turn it completely; holding her head up for a long time caused fatigue. She was having frequent headaches, sometimes lasting all day. She described herself as irritable, depressed and frustrated, and stated she spent most of her time in bed. By October 31, 1997, when she next saw Dr. Over, she said she was unable to lift anything, and Dr. Over noted "very tender muscles around scapulae and upper back muscles practically no ROM [range of motion]."

The Insurer approved a Treatment Plan calling for eight weeks of physiotherapy at Columbia, initially on a daily basis. Further treatment plans were later approved, and the Applicant received treatment at Columbia between October 1997 and March 1998. Treatment initially focussed on passive therapies, then an active component was added. On initial assessment on October 16, 1997, the Applicant was noted to have very poor sitting and functional tolerance, as well as fear and anxiety when driving. A progress report dated November 19, 1997 indicated that the Applicant reported improved sitting and exercise tolerance, but still complained of muscle spasms in her neck and upper trapezoid muscles, especially on the right. Examination indicated improved passive mobility. The December 16, 1997 progress report indicated that the Applicant reported improved sitting and standing tolerance, but continued to complain of intermittent pain and stiffness, and neck and back pain. The therapist also noted joint hypo- and hypermobility in the cervical, thoracic and lumbar spine. She noted: zgoal is to return to same work in January (may need to take an easier job initially). This did not happen, and a second Treatment Plan was approved, dated January 30, 1998, calling for four weeks of twice-weekly treatment. The Applicant testified that she "improved slowly" while at Columbia. She gained mobility, though she still had pain and headaches.

On April 3, 1998, Dr. Lexier performed an Insurer Examination of the Applicant. He found that she had full range of motion in her neck, shoulders, arms and spine, although he observed a 10 per cent loss of mobility in cervical flexion and extension, and a 25 per cent loss in lumbar rotation, with right-sided pain on left rotation.

Dr. Lexier also reported that the Applicant’s left radial arterial pulse obliterated at 150 degrees of abduction, and she complained of her hand being cold, signs of thoracic outlet syndrome. He also observed signs of scoliosis. Dr. Lexiercs diagnosis was Grade I whiplash injury. The Whiplash Guideline states that the clinical presentation of a Grade I injury includes "[n]eck complaint of pain, stiffness or tenderness only; [n]o physical signs." Dr. Lexier felt the Applicantcs limitations would not prevent her from returning to her pre-accident work on a full-time basis. He did not feel the Applicant required actively supervised physiotherapy, but recommended she continue with her pre-accident exercise program. He also suggested further investigation for scoliosis and left thoracic outlet syndrome.

Dr. Over's clinical notes for April 23, 1998, three weeks after Dr. Lexier's assessment, give a different picture. Dr. Over reported the following findings on physical examination: "Lumbar spine full flexibility has marked increase muscle spasm along entire R [right] side thoracic spine. marked muscle spasm trapezius muscles also R." Dr. Over prescribed Flexeril. Two weeks later, the Applicant told Dr. Over she was sleeping much better. On that visit, Dr. Over noted "muscles improved a bit better ROM marked bulge R trapezius."

Based on Dr. Lexiercs report, the Insurer issued a stoppage notice with respect to the Applicantcs income replacement benefits. The Applicant requested a disability DAC assessment, as she was entitled to do pursuant to paragraph 37(3)(c) of the Schedule. Dr. Geoffrey R. French, an orthopaedic surgeon, conducted the assessment on July 7, 1998. Dr. French agreed with Dr. Overcs diagnosis of Grade II whiplash. He also diagnosed thoracic back strain. He reviewed a scoliosis series of x-rays, which confirmed ca very minimal, gentle, right thoracic and left lumbar scoliosis, c without a csignificant rotational component.c The x-rays were otherwise normal. His other findings were as follows:

Musculoskeletal and neurologic examination reveals a rather straight forward young lady who demonstrates no evidence of either Csomatoform pain behaviourC or Csymptom magnification.C I noted that she has regained a full range of motion of her neck and lumbar spine but that she still complains of pain at the extreme of cervical extension, lateral flexion and rotation to each side. She continues to have some tenderness over the posterior surface of her neck and upper back unassociated with visible or palpable muscle spasm. Neurologically, she is normal.

Dr. French concluded the Applicant did not have any organic impairment that would prevent her from returning to her activities of daily living or her pre-accident job, which Dr. French understood to be a medium-strength occupation, based on the Physical Demands Analysis conducted by Ms. Dix. Dr. French felt that returning to work would increase the ApplicantCs symptoms, but these could be controlled with over-the-counter analgesics. The Insurer terminated the ApplicantCs income replacement benefits based on this report, effective July 23, 1998.

The Insurer relied on Dr. Lexier’s report to deny the third Treatment Plan submitted by Columbia in late April 1998. Pursuant to subsection 38(12) of the Schedule, the Insurer referred the Applicant to the Credit Valley Rehabilitation Centre for a Medical/Rehabilitation DAC assessment in July 1998. There, she was examined by Dr. Can D. Nguyen, an orthopaedic surgeon, and Ms. Susan K. Krupica, a physiotherapist. On physiotherapy assessment, the following objective findings were identified:

1. Cervico-thoracic junction dysfunction secondary to joint restrictions into extension.

2. Mid thoracic dysfunction secondary to underlying joint restrictions into extension and left rotation. She has a pre-existing scoliosis which is concave to the left with her thorax positioned in right rotation as well as an elevated right shoulder and pelvis.

3. Abnormal posture demonstrating an increased lumbar lordosis with decreased dynamic lower abdominal stabilization.

Ms. Krupica recommended a trial of chiropractic treatment for a maximum of 16 weeks as well as four to six physiotherapy sessions.

Dr. Nguyen diagnosed mechanical low back pain and a Grade II whiplash. On examination, he noted a slight limitation in range of motion of the cervical spine, and recommended a short program of mobilization and strengthening exercises, as well as instruction in a home exercise routine.

In September 1998, Dr. Over found the Applicant's "muscles very tight esp [especially] right ROM." As Flexeril made the Applicant drowsy, Amitriptyline was prescribed. In November, Dr. George Southey, an associate of Dr. Over, noted restricted neck movement to the right, and diagnosed torticollis.⁶ He prescribed Percocet. Two days later, Dr. Over noted that this had helped the Applicant. The Applicant continues to use Percocet for muscle spasm and headaches. Dr. Over also put her back on Amitriptyline.

The Applicant began receiving twice-weekly chiropractic treatment from Dr. A. Roper in July 1998. On November 9, 1998, Dr. Roper reported she was "at least 80 per cent improved." However, when Dr. Over saw the Applicant on November 30, 1998, she still found muscle spasms in her neck and upper back, and concluded that the chiropractic treatments "are not getting her back to work." The Applicant explained that she was improving for a time, but suffered a setback in December 1998. She testified that she could not move her neck, her head felt like a bowling ball, her shoulder and neck muscles were stiff, and she could see a contraction in her muscle in the right scapular area. She was bedridden with headaches, for which she used Percocet. She needed medication for sleep. Dr. Over recommended replacing chiropractic with acupuncture and massage treatment, especially Shiatzu, for the Applicant's "multiple trigger points." The Insurer denied any further treatment. The Applicant testified that this setback lasted a few months. She continued with chiropractic treatment until May 1999. She feels that the Insurer denied appropriate treatment and this contributed to her inability to recover.

In accordance with the recommendation of the Credit Valley DAC, the Insurer approved physiotherapy treatment with Ms. France Laberge, a physiotherapist, at Oakville Active Rehab, in October 1998. Ms. Laberge testified that she "mostly agreed" with the findings of the Med DAC: the Applicant was dysfunctional in her cervical and thoracic spine with limited mobility, and was hyperlordotic in the lumbar spine. She summarized the Applicant's condition by saying she was too tight in her upper back and too loose in her lower back. The Applicant attended six treatment sessions with Ms. Laberge in October 1998. To deal with the postural deficits, muscular weakness and restricted mobility, Ms. Laberge gave the Applicant mobilization exercises for her cervical and thoracic spine and stablization exercises for her lumbosacral spine. The Applicant was discharged with instructions for a home exercise program, including use of a Pilates ball.

Ms. Laberge saw the Applicant in follow-up in December 1998. The Applicant reported that her low back was improved, but her upper back remained stiff. Ms. Laberge found that the Applicant was not doing her exercises correctly, and provided further instruction. The Applicant had done a home exercise program before the accident, including use of weights, a stationary bicycle, stairmaster, and abdominal exercises. She testified that when she did the exercises prescribed by Ms. Laberge, her shoulder, neck and low back muscles got very sore. However, she still does home exercises, goes to the gym and walks, especially in the summertime.

Through late 1998 and early 1999, the Applicant complained to Dr. Over about anxiety, depression and sleep disorder, as well as right-sided headaches related to neck pain, and ongoing right-sided pain and stiffness in her neck and upper back. She reported another flare-up of muscle spasms in April 1999. Dr. Over sent her for x-rays. According to Dr. Over, the x-rays "showed no bony abnormalities but a reversal of the usual curve in her Cervical spine, indicating the muscle spasm is present."

In May 1999, the Applicant returned to Ms. Laberge because her condition was deteriorating and she continued to experience neck and upper back spasms. She complained of constant pain in her neck, right shoulder and trapezius area, aggravated by activity and static postures, central low back pain, aggravated by prolonged sitting and standing, and headaches. Ms. Laberge recorded the following findings: cervical mobility was reduced at least 25 percent in all movements; the Applicant displayed moderate to severe weakness in the cervical musculature, especially on the right; on palpation, there was hypertonicity and tightness over the right paraspinal musculature of the neck and thoracic area; the right trapezius muscle was tender and spasmodic; and both scalene muscles were tight. In the Applicant’s low back, Ms. Laberge observed decreased mobility of the thoraco-lumbar spine, hypermobility of the lower lumbar spine, weak abdominal and back extensor muscles, and tenderness and spasm in the paralumbar muscles.

Based on the Applicants reported symptoms, range of motion testing, and clinical examination, Ms. Laberge concluded that the Applicant showed cno consistent improvementsc since she was initially assessed in October 1998. She recommended an on clinic monitor[ed] exercise program" for six weeks, three times a week, followed by two weeks of biweekly visits. The Insurer denied this treatment, again relying on the Credit Valley report.

In September 1999, the Applicant started taking acting lessons in a Toronto workshop. The classes were offered in courses of 10 classes each, at a cost of $315 per course. Classes were held in the evening, between 6 and 10 p.m., and Saturday afternoon, noon to 4 p.m. The Applicant testified that she attended two or three times a week. She felt that acting would offer versatility and would be suitable given her injuries. She felt that in September 1999, she remained unable to return to work as a bartender, because anytime she pushed herself at home — vacuuming, going up and down stairs with laundry, ironing or washing dishes — she could not move for the next three days.

Dr. Over prepared a medical-legal report in September 1999. She observed that the Applicant’s symptoms got worse as she participated in active treatment. It was her opinion that the Applicant was unable to do any repetitive movement with her right arm, or to lift anything more than 5 lbs. Dr. Over concluded that the Applicant would never be able to return to work as a bartender, even on a part-time basis.

In October 1999, Dr. Over referred the Applicant to Dr. Ruth E. Smith, a physiatrist. The Applicant was then complaining of chronic neck pain more than low back pain, as well as headaches. Her symptoms were worse with prolonged standing or sitting. Dr. Smith noted that x-rays revealed a 20 degree dorsal lumbar scoliosis which was not evident on clinical examination. Other objective findings were knots in the right upper trapezius, slightly stiff cervical range of motion, and painful and slightly restricted thoracic rotation to the right. Dr.

Smith’s assessment was that the Applicant had only minimal and very subtle objective abnormalities:

She is certainly functional. She is going to school for 4 hours a day. She is able to do light housekeeping chores. She drives, she gets out. I see no reason she would be deemed unemployable, although she may have poor tolerance to doing the exact type of work that she was doing at the time of the motor vehicle accident, i.e. bartending.

Dr. Smith was not sure that acupuncture or further physiotherapy would help.

The Applicant had another flare-up of muscle spasm in her neck in November 1999 through early 2000. She missed three or four acting classes, then started again the following month, quitting in July when she could no longer afford it. On examination, Dr. Over reported the Applicant had "severe muscle spasm, with marked limitation of her range of movement." She sent her for new x-rays which, in her opinion, revealed muscle spasm (reversal of the usual curve). Dr. Over reported in June 2000 that the Applicants "main very persistent complaint is pain in her upper back muscles, especially the right trapezius muscles...........On every visit to my office I am always very impressed how many knots are in that very sore muscle!" Depression continues to be a problem, and the Applicant remains on Amitriptyline and Paxil. At the hearing, Dr. Over testified there was "no way" the Applicant could return to work as a bartender. According to Dr. Over, the Applicant has chronic inflammation of her muscles, with trigger points. The main problem with the bartending job would be lifting.

Dr. Lexier assessed the Applicant again in June 2000. His examination of her cervical spine revealed full range of motion except for flexion, which was diminished 25 per cent. He now found signs of bilateral thoracic outlet syndrome, worse on the left, and reaffirmed his diagnosis of mechanical back pain related to scoliosis.

The Applicant testified that she still has frequent headaches, and there is no change in their severity since the accident. She still has chronic right shoulder, neck and back pain. Her depression has improved with Paxil.

Analysis and Conclusion:

The medical evidence in this case revolves around the conflicting opinions of Dr. Over and Dr. Lexier. The Insurer relies on Dr. Lexier's opinion that the Applicant sustained a Grade I whiplash injury, less serious than the Grade II injury diagnosed by Dr. Over. However, I find it significant that Dr. Over’s assessment was shared by Dr. French and Dr. Nguyen, the orthopaedic surgeons who performed the DAC assessments of the Applicant. I accept that the Applicant does show Grade II physical signs, including point tenderness and decreased range of motion.

I also do not accept Dr. Lexier’s diagnosis of mechanical back pain related to scoliosis. Although the medical consensus is that the Applicant’s x-rays show a 20 degree thoracic scoliosis, none of the other experts who have assessed the Applicant thought this was of clinical significance.

Dr. Lexier admitted on cross-examination that doctors begin to treat scoliosis at 35 degrees, though he also noted that a less serious curvature may still be clinically significant. He testified that the condition can go undetected, especially if the person is not in a physically demanding occupation. However, in re-examination, he stated that the Applicant’s occupation was "very demanding" and could have made any pre-existing condition symptomatic. The Applicant denied having scoliosis-related symptoms before the accident, and Dr. Over testified she did not know the Applicant had this condition until she had back x-rays done after the accident. I find that the Applicant’s scoliosis was of no clinical significance.

The Insurer submitted that Dr. Over’s decision to send the Applicant for investigation of thoracic outlet syndrome indicates there is some basis to Dr. Lexier’s suggestion. None of the other doctors who assessed the Applicant noted signs of this condition. In any event, I accept Dr. Over’s testimony that this diagnosis would not explain the Applicant’s neck and shoulder pain, stiffness and spasm. Moreover, Dr. Lexier suspected thoracic outlet syndrome on the left, whereas the Applicant complains of mainly right-sided symptoms.

Dr. Over, Ms. Laberge and Dr. Lexier were all questioned about the nature and detection of muscle spasms. Dr. Over’s reports and records refer frequently to muscle spasm, as well as pain, soreness, tightness, and stiffness. The latter terms suggest less severe symptoms. Mr. Pavoni challenged Dr. Over about her use of the term "spasm" in cross-examination, suggesting that muscle "stiffness" or "tightness" might be a more accurate description of what she observed. Dr. Over explained that stiffness is a sign of muscle spasm.

In contrast, Dr. Lexier did not examine the Applicant for muscle spasm. He gave four reasons for this: (i) the test relies on the patient’s subjective reporting of pain; (ii) he does not have time; (iii) palpation is usually done by physiatrists, chiropractors and physiotherapists, not orthopaedic surgeons; and (iv) Dr. Lexier believes palpation only has a role in assessing acute injuries in the first six to eight weeks. On cross-examination, Dr. Lexier was asked whether he knew in June 2000 that the Applicant had had a recent x-ray confirming muscle spasm. He explained that he did know, but had not seen the x-ray. He would like to have reviewed the film, but he would gloss over a radiologist’s report of muscle spasm in 99 per cent of cases. Dr. Lexier also feels the term "spasm" is overused by patients and general practitioners. In his view, a spasm is an acute condition, a visible contraction (increased tone) of a muscle. Thus, Dr. Lexier’s approach was to discount the Applicant's main complaint of muscle spasms, without examining her for spasms, on the basis of his view that they are only a problem in the acute post-injury period.

On cross-examination, Dr. Lexier admitted that muscle spasm is a sign of bony or muscle damage, is painful, and can limit function "in the acute phase." He also admitted it would be relevant to know if the patient complained of muscle spasms before the accident. Dr. Lexier expressed surprise that Dr. French, another orthopaedic surgeon, examined for spasm. He agreed this was a difference in their approaches, but pointed out that when Dr. French examined the Applicant, he found no spasm.

In response to Mr. Hayward's questions about the severity of the Applicant's whiplash symptoms, Dr. Lexier commented that since a Grade II whiplash is expected to resolve within six weeks, as opposed to the 3 to 5 days for a Grade I injury, his opinion that the Applicant was not disabled by April 3, 1998, when he assessed her, would not be affected if a Grade II diagnosis were accepted. However, Dr. Lexier conceded that some patients do not recover within the time frames described in the Guideline. I do not rely on Dr. Lexier's report because I find that his opinion was based mainly on his decided views about whiplash injuries in general, rather than his assessment of the Applicant.

I approach Dr. Over’s evidence with caution because of the partisan tone of her comments about the Applicant’s character. However, Dr. Over’s clinical notes and records reflect consistent findings of muscle tightness, stiffness, soreness and spasm, especially in the right thoracic area, as well as headaches and depression. I find it significant that Dr. French also accepted that the Applicant had suffered a Grade II whiplash injury and thoracic back strain in the accident, despite finding no spasms, mobility restrictions or neurological signs. He described the Applicant as "a rather straight forward young lady who demonstrates no evidence of either 'somatoform pain behaviour' or 'symptom magnification'." It is implicit in his report that he accepted her complaints of "pain at the extreme of cervical extension, lateral flexion and rotation to each side." The Applicant’s ongoing complaints of muscle pain, spasm and stiffness were also recorded by Dr. Southey, Columbia, Dr. Nguyen and Ms. Krupica.

Further, Dr. Over's conclusion that the Applicant cannot return to bartending work was supported by Ms. Laberge, whom I found to be objective, thoughtful, knowledgeable and thorough. In her report of May 20, 1999, Ms. Laberge recorded findings of muscle weakness in the neck and upper back, measured objectively using the Hanoun computerized strength test. She also reported the following findings:

On palpation, there is hypertonicity and tightness over the right paraspinal musculature of the neck and thoracic areas. The right trapezius muscle is spasmodic and moderate tightness is observed in the scalene muscle bilaterally. The right upper trapezius test is positive with soreness to resisted contraction and the medial and lower fibres of the trapezius are testing weaker. The scalene stretching test is also positive.

In cross-examination, Ms. Laberge agreed with Mr. Pavoni's definition of a muscle spasm as a sudden violent involuntary contracture; she added that it is "a cramp." She differentiated a spasm from a "knot," which she defined as tightness; in contrast, a spasm pulls the shoulder blade upward. She testified that a muscle spasm feels "ropy and soft," and can usually be seen. Because of the Applicant’s trapezius spasms, Ms. Laberge felt she would not be able to reach repetitively or work overhead. I find this evidence persuasive.

I also rely on the report of Dr. Smith, who found that the Applicant had "knots" in her right upper trapezius in October 1999. She also recorded the Applicant had slight reduction of her cervical range of motion and her thoracic rotation to the right. Although Dr. Smith described these as "only minimal and very subtle objective abnormalities," she concluded that the Applicant "may have poor tolerance" for her pre-accident bartending job. This is the crux of this case. The Applicant undoubtedly has minor residual complaints that do not render her unemployable. However, I accept that her bartending job placed physical demands on her that she could no longer meet after the accident — especially repetitive bending and reaching, repetitive light lifting and carrying, occasional medium lifting and carrying, and prolonged standing. I also accept that the club was a fast-paced service environment where there was little or no scope for modification of the Applicant’s job duties. For this reason, I place little significance on her failure to contact her former employer about returning to work after the accident.

I am somewhat troubled that the Applicant has not looked for other work, but I take note that State Farm did not offer her any assistance in this regard, and her educational and employment background left her with few alternatives to bartending. Moreover, she has continuously pursued treatment and rehabilitation. I am not satisfied she has failed to mitigate her losses.

EXPENSES:

Subsection 279(11) of the Act gives an Arbitrator discretion to award arbitration expenses to the insured person or the insurer according to criteria prescribed by regulation. The criteria are set out in subsection 12(2) of Ontario Regulation, R.R.O. 1990, as amended by Ontario Regulation 464/96, made under the Act⁷

12(2) An arbitrator may award expenses to an insurer or insured person under subsection 282(11) of the Act if the arbitrator is satisfied that the award is justified, having regard to the following criteria:

1. Each party's degree of success in the outcome of the proceeding.

2. Conduct of the insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders.

3. Whether the proceeding or any position taken by the insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.

4. The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.

5. If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of the arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the responses to the offers, having regard to the result of the proceeding.

6. Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

I find that the conduct of the Applicant in failing to appear on the first day of the hearing tended to prolong the hearing. I have no hesitation in denying the Applicant her expenses of the day or in ordering her to pay the Insurer’s expenses of the day. Mr. Hayward submitted these should be limited to Mr. Pavonis fees for 22 hours at the Legal Aid rate, noting that Mr. Pavoni’s office is not far from the hearing room and that there was little preparation time thrown away, given that the hearing resumed the next day. Mr. Pavoni was accompanied by an articling student, Mr. Greg Bailey. In addition, I find it likely that there was a certain amount of time thrown away because of the unexpected cancellation of the hearing day. I fix the Insurer's costs for the day at $500.

Mr. Pavoni also requested an order that the Applicant pay Dr. French’s cancellation fee of $1,000.

The hearing started on Wednesday September 6th. In opening statements, Mr. Hayward indicated he expected to call Dr. Over and Ms. Laberge as witnesses. Mr. Pavoni stated that he planned to call Dr. French, Dr. Lexier, Ms. Dix and Mr. Marciano. Dr. French was available the next morning, Thursday, September 7th, and Dr. Lexier was scheduled for Thursday afternoon, but Mr. Pavoni expressed concern about calling these witnesses out of turn; he had expected the Applicant's case to be completed on the first two days of the four-day hearing. I indicated this issue should be reconsidered as the hearing proceeded.

On Thursday, we resumed at 9:30 a.m., to complete cross-examination and re-examination of the Applicant. I then heard from Dr. Over, Ms. Dix and Ms. Laberge. Mr. Pavoni advised that he had decided not to call Dr. French.

On Friday, I heard from Dr. Lexier and Mr. Marciano, and the parties agreed to schedule a further day for closing argument.

Mr. Pavoni submitted that Dr. French would have been called on Thursday morning, as originally scheduled, if not for the need to reschedule all witnesses due to the late start of the hearing. Scheduling witnesses remained an issue throughout the hearing because of the loss of the first day. However, Mr. Pavoni conceded that his decision not to call Dr. French was also made in response to my comments to counsel following opening statements. At that time, I indicated that the Commission should be considered an expert tribunal with respect to soft tissue injuries, and that expert evidence was not needed to establish basic points about the nature, assessment and prognosis of such injuries. Consistent with the Commission’s mandate to conduct proceedings in a way that is "quickest, most just and most cost-effective,"⁸ and keeping in mind the difficulties in scheduling doctors, I encouraged the parties to consider whether they were prepared to rely on the doctors filed reports without calling the doctors to testify. It was my impression that Mr. Pavoni’s decision to forego Dr. French’s testimony was primarily a response to these remarks. I heard no submissions as to whether a cancellation fee charged by an expert witness is recoverable under paragraph 5 of the Expense Schedule. In any event, I am not persuaded it is appropriate in this case to order the Applicant to pay Dr. French’s cancellation fee.

Although the parties made submissions on the remaining arbitration expenses issues, after further discussion, they agreed I should reserve on this issue. If they are unable to agree on arbitration expenses, apart from the issues already disposed of, a further expenses hearing may be scheduled in accordance with Rules 73 to 77 of the Code. The Applicant may defer payment of the $500 pending resolution of the remaining arbitration expenses issues.

February 13, 2001

Nancy Makepeace

Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 18

FSCO A99-001158

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KOSA LEDENKO

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. State Farm shall pay Ms. Ledenko income replacement benefits of $319.73 per week between July 23, 1998 and September 26, 1999, plus interest calculated in accordance with section 46 of the Schedule.

2. Ms. Ledenko shall pay State Farm's arbitration expenses for Tuesday, September 5, 2000, fixed in the amount of $500. Payment may be deferred pending resolution of the remaining arbitration expenses issues. If the parties are unable to agree on these issues, a further expenses hearing may be arranged.

February 13, 2001

Nancy Makepeace

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
2. 2The resume actually identifies the club at "Pro Club" rather than "Club Pro." "Pro Club" is also the name given in the Application for Accident Benefits and Employer's Confirmation of Income form; the latter was signed by the club’s accountant. I place no weight on this discrepancy.
3. 3Mr. Marciano identified this as Paul Ciccini, and confirmed that he supervised the bartenders.
4. 4Physical demands not relevant to this proceeding are omitted: mental/sensory demands, atmospheric conditions; hazards, conditions and protective equipment.
5. 5This diagnosis is based on the 1995 report of the Quebec Task Force on Whiplash Associated Disorder ("WAD"), entitled Redefining "Whiplash "and its Management. The report made recommendations regarding the prevention, diagnosis and treatment of WAD. Its recommendations were incorporated into the Commissioner's Guideline on the Management of Claims Involving Whiplash-Associated Disorders (Commissioner's Guideline No. 5/96, effective October 19, 1996, known as the "Whiplash Guideline"). The Commissioner [now the Superintendent] is empowered to issue guidelines on the interpretation and operation of the Schedule pursuant to section 268.3 of the Act. Guidelines are not binding but "shall be considered" in any determination involving the interpretation of the Schedule.
6. 6Torticollis" is defined in Porland's Illustrated Medical Dictionary (28th Edition) as: "a contracted state of the cervical muscles, producing twisting of the neck and an unnatural position of the head."
7. 7The Expenses Regulation and the Expenses Schedule, which sets out the prescribed amounts that may be awarded, are appended as Schedule F to the Commission's Dispute Resolution Practice Code - Third Edition.
8. 8Rule 1.1 of the Dispute Resolution Practice Code - Third Edition.