Neutral Citation: 2001 ONFSCDRS 95

FSCO A00-000835

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SHARON GLAGOW

Applicant

and

PAFCO INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before:

K. Maine Palmer

Heard:

May 7, 8, and 9 (a.m.), 2001, at Orangeville and May 9 (p.m.) and May 25 at the Financial Services Commission of Ontario, Toronto.

Written submissions were received up to June 14, 2001.

Appearances:

Patrick J. Mazurek for Mrs. Glagow

John P. Pavoni for Pafco Insurance Company Limited

Issues:

Sharon Glagow was injured in a motor vehicle accident on September 12, 1997. She received medical benefits from Pafco Insurance Company Limited ("Pafco"), payable under the Schedule.¹ Pafco never paid Mrs. Glagow any income replacement benefits because she continued to work following the accident. After she stopped working, in April 1998, Pafco refused to pay her income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Glagow 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:

1. Is Mrs. Glagow entitled to income replacement benefits from May 1, 1998 to February 5, 2001, or for any part of that period, as a result of any impairment she sustained in the motor vehicle accident?

2. What is the amount of income replacement benefit to which Mrs. Glagow is entitled? At the time of the accident, was Mrs. Glagow employed or self-employed?

3. Is Mrs. Glagow entitled to a rehabilitation benefit under section 15 of the Schedule for the cost of a course to qualify as a driver education instructor and other associated expenses?

4. Is Mrs. Glagow entitled to a special award under the provisions of subsection 282(10) of the Insurance Act?

5. Should Pafco pay Mrs. Glagow's expenses of this proceeding or should Mrs. Glagow pay Pafco's expenses of the arbitration?

Result:

1. Mrs. Glagow is entitled to income replacement benefits, at the agreed amount of $100 per week, for 103 weeks, from May 8, 1998 to April 30, 2000, or $10,300. She is entitled to income replacement benefits of $185 per week for nine weeks from May 1, 2000 to June 30, 2000 or $1,665.

2. At the time of the accident Mrs. Glagow was self-employed. In accordance with the agreement of the parties, she is entitled to $100 per week for IRBs.

3. Mrs. Glagow is entitled to a rehabilitation benefit under section 15 of the Schedule of $2,942.52, plus an amount for transportation expenses, to be calculated as set out in the decision.

4. Mrs. Glagow is not entitled to a special award.

5. Pafco shall pay Mrs. Glagow's expenses of this proceeding.

EVIDENCE AND ANALYSIS:

The Law - Income Replacement Benefits — First 104 Weeks:

An insurer must pay income replacement benefits ("IRBs") to an insured person who sustains an impairment as a result of an accident, if the person was employed at the time of the accident and "as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment."² In this case, I must determine Mrs. Glagow's essential employment tasks and weigh the evidence of her ability to perform those tasks as a result of any impairment or injury she suffered in the accident.

Essential Tasks:

Mrs. Sharon Glagow, now age 37, testified that in the spring of 1997 she graduated with a diploma from the Court and Tribunal Agent program of Seneca College. She had returned to college three years earlier, after spending five years at home caring for her three sons. Her last long-term employment outside the home was in 1989. Mrs. Glagow was successful in obtaining a position as a process server for York Regional Document Services Inc. and began working near the end of June 1997, about two and a half months before the accident on September 12, 1997.

Normally, Mrs. Glagow attended in the late afternoon on weekdays at the offices of York Regional Document Services to collect the documents she was to serve that evening. She could serve documents anywhere in the Greater Toronto Area and occasionally as far away as Keswick, Collingwood or Owen Sound. According to Mrs. Glagow, Warren Brown, the owner of the business, would give her a quantity of documents to serve in a geographic area he estimated she could cover in one evening.

Mrs. Glagow was paid a base rate for the first eight "serves" and more for serving additional documents. Occasionally, she would be asked to "stake out" a residence to wait for a person to come out of his home in order to serve some documents. Mrs. Glagow used her own car to perform her work. She estimated she easily performed an average of 10 serves every evening. Mrs. Glagow testified that, physically, the job entailed a great deal of driving to destinations that were largely unknown to her, usually the homes of the people to be served. She testified that approximately 30 per cent of the people served were hostile or belligerent towards her. She worked Tuesday to Friday evenings from 4:00 p.m. to 10:30 or 11:00 p.m. Saturdays, she usually worked from 10:00 a.m. to mid-afternoon. Usually she had Sunday and Monday off, but later in the summer she sometimes worked on Mondays too.

Mrs. Glagow testified that she was supposed to keep track of the kilometres she travelled in her work, but she did not always succeed in this. She estimated that she travelled 500 to 700 km each week and more in some weeks. She estimated she drove 125 to 150 km per shift. Apart from getting out of the car to serve the documents, she was in her car for the entire shift.

In late August, 1997 a college friend of Mrs. Glagow's, Bruce Flannigan, began to ride with her as her assistant. Usually, Mrs. Glagow would drive and Mr. Flannigan would read the map. He also accompanied her, like a bodyguard, in serves in less desireable locations. Mrs. Glagow testified that she could accomplish more serves more quickly with Mr. Flannigan accompanying her, planning the route, and directing her to each location.

According to Mrs. Glagow's 1997 income tax return, she drove 11,523 km to earn income that year with one vehicle and 10,229 km with a second vehicle. Over a six-month period in 1997 she claimed she drove an average of 167 km for business, five days each week.

I find that the essential tasks of Mrs. Glagow's employment included driving for up to six hours at a time in all kinds of weather and traffic conditions with approximately 10 stops over the course of an evening. I find that to drive for this job meant that she was required to be seated in a relatively fixed position for long periods with her arms extended to hold the steering wheel and with her seat belt buckled across her left shoulder and chest.I find it was essential that she be able to walk, climb stairs, fill in forms, and behave in a professional manner while serving documents. I find Mrs. Glagow had to be alert and resourceful in order to locate persons to be served. I find she had to be brave enough to venture into unknown situations in less desirable neighbourhoods. I find she had to have the ability to read street maps. I find that she required some mathematical ability to calculate the invoices she delivered to York Documents.

Pre-Accident Health:

Mrs. Glagow testified since the spring of 1994, when she was 30 years old, she suffered from intermittent sciatic pain in her right leg, after a lifting incident at her job at a book publisher. She also admitted she suffered from occasional low back pain, which she dated back to the birth of her first son in 1984 when she was 20. Mrs. Glagow testified that the degree of low back pain she suffered before the accident did not stop her from vacuuming, cleaning her home, gardening, walking with her children, or playing ball with them. She estimated that she would suffer back pain approximately twice or three times a year prior to the motor vehicle accident.

Mrs. Glagow testified that she told several of her professors at Seneca College (where she attended from 1995 to 1997) about circulation problems in her legs if she sat too long. They told her to get up and move around if she wished. In March 1996, Mrs. Glagow was referred to Dr. G. Soon-Shiong, an orthopaedic specialist, by Dr. S.D. Gordon, a family doctor practising with Mrs. Glagow's regular family doctor, Dr. Lorne Kilman, in Richmond Hill. Mrs. Glagow testified, however, that she received no treatment for back problems in her last school year, 1996-97.

Mrs. Glagow testified that some evenings after she returned home from serving documents before the accident, her right leg would be a little sore. She attributed this to the fact that she did not have cruise control on her car and she would have just spent six hours driving in the car. She testified that she sought no treatment for her back nor any prescription medication over the five months from the time of her graduation from Seneca until the motor vehicle accident.

Dr. Gregory Soon-Shiong's consultation note to Dr. Gordon, dated March 15, 1996 was filed. Dr. Soon-Shiong took a history from Mrs. Glagow of back pain with radiation of pain into her right foot and associated numbness. Dr. Soon-Shiong found Mrs. Glagow had pain in her back and referred pain into her thigh with straight leg raising, however he believed she did not have true symptoms of radiating back pain. He reported that x-rays of her spine revealed significant degenerative disc disease in the last two mobile segments of her lumbar spine. He advised her that surgical intervention was not a good idea at that point and that she would need to work "extremely hard at an active therapy program in order to achieve good control of her symptoms... she also needs to focus intently on improving her postural mechanics."

Dr. Lorne D. Kliman was Sharon's family doctor from 1993 to 1998. According to his transcribed notes of the period June 23, 1994 until the accident in the fall of 1997, Mrs. Glagow had complained to him about back pain on only two occasions, once in June 1996 about her right upper back and once in May 1997 about pain in her right hip and leg, for which he gave her a sample prescription of Toradol, an analgesic, and diagnosed lumbar spasm. Dr. Kliman wrote a report to Mrs. Glagow's solicitors dated December 4, 1998. In that report he noted he had assessed Mrs. Glagow for complaints of right hip and back pain, four and a half years before the accident, in April 1993. Mrs. Glagow was seen by one of Dr.Kliman's associates with complaints of back pain on February 15, 1994 and once again later that year. According to Dr. Kliman's report, none of Mrs. Glagow's nine other clinic visits in 1994 related to back pain. She complained of back pain to one of his associate doctors on May 25, 1995 and January 30, 1996.

On the latter occasion, Dr. Gordon, Dr. Kliman's associate, ordered a CT scan of Mrs. Glagow's back and referred her to Dr. Soon-Shiong, the orthopaedic surgeon, whose report was referred to above.

Course After the Accident:

Mrs. Glagow described the mechanism of the accident. She was travelling at approximately 80 km/hr in the passing lane on Rutherford Road when a van sideswiped the driver's side of her vehicle, forcing her vehicle over the median curb into the oncoming traffic lane. Mrs. Glagow testified that she pulled hard on the steering wheel to pull her car back over the median onto her side of the road. She testified that in the accident her left knee hit the dashboard of the car, her head hit the side window, and her shoulder impacted the side of the car.

Mrs. Glagow and Mr. Flannigan continued their work later that evening after the accident, in a rented vehicle. Mrs. Glagow testified that she was suffering pain in the whole of the left side of her body and that she could see the shape of the seat belt in the extensive bruising across her chest and collar bone area. She attended at her doctor's office the next day.

At her visit to Dr. Kliman on September 14, 1997 Mrs. Glagow complained of left shoulder pain, neck pain, mid-back ache and soreness in her left knee, according to Dr. Kliman's report of December 4, 1998. Dr.Kliman found normal range of motion in her left knee, but noted bruising over the left patella. He felt her cervical spine showed 20 degrees lack of flexion and 10 degrees lack of extension. Her trapezius muscles on both sides of her body were tender and a large "seat belt bruise" across her left shoulder was present.

Dr. Kliman prescribed analgesic and anti-inflammatory medications. Mrs. Glagow testified that Dr. Kliman suggested she take time off work. She testified she told him she could not afford to take time off because she had no benefits from her workplace. Dr. Kliman prescribed a course of treatment at Rapid Rehab of Richmond Hill Inc. The clinic records show that Mrs. Glagow attended 32 sessions until February 17, 1998. According to the report of Klarita Sirota, physiotherapist, dated September 30, 1997 the planned treatment consisted of passive physiotherapy, massage therapy, an active conditioning program and a home exercise routine.

At the first assessment performed by physiotherapist Klarita Sirota, about two weeks after the accident, on September 30, 1997 Ms. Sirota reported that Mrs. Glagow complained of not sleeping due to the "throbbing" pain in her neck and back. Ms. Sirota recorded Mrs. Glagow's chief complaints at the time as follows:

1. Cervical pain

This pain is present in both shoulders, however it is worse on the left side; with pain into the chest especially on the left side. This pain is described as a constant achiness, and rated as 6/10. The pain is aggravated by sitting. Mrs. Glagow also complains of numbness into the left hand.

2. Lumbar Pain

This pain presents with symptoms into the left leg. This pain is described as achiness with stabbing pain into the left foot. This pain is rated as a 6/10. She also states that there is numbness in the leg when she sits down. Mrs. Glagow also states that her right thigh is normally painful and achy and, since the motor vehicle accident, is slightly worse.

3. Headaches

Mrs. Glagow complains of constant headaches and blurred vision, with migraine type headaches more often now than prior to the accident. Her pain is alleviated by hot packs and laying down in her waterbed.

The physiotherapist also reported that Mrs. Glagow "did return to work immediately following the accident and she continues to work. She states that it does increase her pain to higher levels than she can tolerate, however, she is not able to stop working." [emphasis added] This report was forwarded directly to the claims examiner at Pafco Insurance.

Mrs. Glagow testified that she continued treatment at the clinic until the benefits from a collateral policy of extended health insurance from her husband's workplace ran out. She testified that she became uncomfortable attending the last sessions at Rapid Rehab because she had an outstanding balance of $800 that she did not know how she would pay. She testified that Dr. Kliman cut her off treatment in October 1998, after about one year of treatment. She testified that progress was very slow and she felt the physiotherapy was not working since she did not feel better. Later under cross-examination, Mrs. Glagow admitted her last attendance at Rapid Rehab was in February 1998, not one year after the accident. She testified she was confused as to the duration of the treatment.

Months prior to Stopping Work — April 30, 1998:

Mrs. Glagow testified that after the accident, she could not drive as long without becoming very sore. She stated that the pressure of the seatbelt aggravated her left shoulder, as did the positioning of her hands on the steering wheel. She testified that she asked Mr. Flannigan to do some of the driving and took his car quite a lot. After Christmas 1997, into the spring of 1998, Mrs. Glagow testified that she continued with her job although she was in constant pain no matter what she did. Nothing was fixing her problem. She felt no one was really listening to her. The muscle relaxant medication was seeming to have no effect.

On January 14, 1998, Mrs. Glagow was reassessed at Rapid Rehab by physiotherapist D. Schaefer, who had treated her on several occasions that fall and winter. According to the physiotherapist's notes Mrs. Glagow had suffered an "acute flare-up of post-injury state of low back. "The physiotherapist noted that Mrs. Glagow complained that she was experiencing exacerbation of low back pain and spasms on a regular basis. The physiotherapist noted that Mrs. Glagow "sits during working hours stressing the low back." On January 19, 1998 the same physiotherapist noted that Mrs. Glagow was in severe pain in her low back and moderate pain in her neck. The therapist recorded that Mrs. Glagow was planning to go to work following her treatment. The therapist also recorded her advice that Mrs. Glagow needed rest and medication to reduce inflammation and spasm and that she should not go to work. The therapist recorded Mrs. Glagow reported no relief following the treatment.

About this same time, Mrs. Glagow was also examined by Dr. Kliman. On January 13, 1998 Dr. Kliman noted Mrs. Glagow's complaint of low back pain. He found decreased flexion and extension of her lumbosacral spine — 15 degrees decreased in each direction. He noted tight paralumbar muscles on both the right and the left sides. Dr. Kliman prescribed 500 mg of Naprosyn-E twice daily on that occasion and discussed referring Mrs. Glagow to an orthopaedic surgeon. On January 21, 1998, Mrs. Glagow was back to see Dr. Kliman complaining of constipation and heartburn from taking the Naprosyn he prescribed the previous week. Dr. Kliman prescribed 10 mg of Toradol as required on this occasion, noted decreased flexion and decreased extension in her lumbosacral spine and noted "whiplash back."

According to the records of Rapid Rehab, Mrs. Glagow last attended there for treatment on Februrary 17, 1998. Three later appointments were booked, but she did not appear for two and cancelled one because one of her children was ill.

On April 6, 1998 Mrs. Glagow attended on Dr. Kliman with continued complaints of neck and low back pain. He noted that she was not attending any therapy and that her insurance wanted a treatment plan. He filled in a treatment plan in a most unusual manner. In the spaces for the treatment plan goals and description of the treatment plan, Dr. Kliman wrote: "I advise Sharon Glagow receive a DAC." My interpretation of this cryptic treatment plan is that Dr. Kliman wished opinions from other health professionals at an independent, designated assessment centre about how to best treat Mrs. Glagow or what further treatment should be offered to her. At that visit, Dr. Kliman and Mrs. Glagow discussed her forthcoming insurer's examination scheduled for April 17, 1998 with orthopaedic specialist, Dr. Ezra Silverstein.

On April 17, 1998 at her insurer's examination by Dr. Silverstein, Mrs. Glagow complained that she was "in constant pain, every day, all of the time." She complained of neck pain, left shoulder pain, tingling or numbness in the back of both hands, and severe low back pain. Dr. Silverstein's impressions are discussed below.

Mrs. Glagow testified that about this time she decided she could not continue with her work as a process server—"it just became too much for me." She testified she spoke to her boss, Warren Brown, before leaving. She stated she reiterated to him that she liked her job and didn't want to leave, but "my body was telling me otherwise." She testified at the hearing that her neck, left shoulder and left shoulder blade were causing her such intense pain that she had reached her limit. She felt she could endure a half hour in the car, but not four to six hours at one time.

Mrs. Glagow testified that in the spring of 1998 the pain she was suffering was making her into a snappy, snarly, erratic person and was affecting her both mentally and physically. She could not garden, which previously had been a source of joy and pride for her; she could not use the vacuum or lift a load of laundry. She was not productive at home. She testified that no doctor was listening to her and she was frustrated and hurting. She admitted on cross-examination that she did not consult any medical doctor about stopping work in the spring of 1998. She testified that she did not want to stop working so never asked them about stopping.

Later in 1998:

After leaving work, Mrs. Glagow testified she continued to suffer pain. She stated that the pain was there whether she was working or not, although it "dissipated slightly." To this day, the pain is still there and she feels like it will never go away. The pain is constant and never alleviated; "the more I do the worse it gets." In the morning, if she feels okay, she may start doing dishes and laundry, but then she finds it "messes me up and I'm on the couch with the heating pad."

In August 1998, Mrs. Glagow's father-in-law succumbed to a fatal heart attack while Sharon and Tim Glagow and their family were present with him at a family reunion. This sudden, unexpected death upset the whole Glagow family. Mrs. Glagow agreed to take part in a drug study run by Dr. Kliman for a weight-loss drug and she began to lose weight in the fall of 1998. When Dr. Kliman saw Mrs. Glagow in October 1998 he prescribed Tylenol no.3 for her back pain. Mrs. Glagow testified at the hearing that she eventually lost more than 36 kg from 1998 to 2000, although she left the drug study, and that with her weight loss her low back pain decreased. She testified that at the time of the accident she weighed about 104 kg and estimated her weight at the hearing to be about 73 kg.

Mrs. Glagow testified that after she moved from Richmond Hill in November 1998 to a farm north of Shelburne, she tried to find a new family doctor for months, without success. No doctors in the area were accepting new patients. She finally spoke personally with Dr. Michael Hodgins, from Flesherton, who had been her family doctor in the early 1990s before she moved to Richmond Hill. He accepted her back into his practice, although he was generally not accepting new patients. According to OHIP's records, Mrs. Glagow was seen only once by a physician between her last visit with Dr. Kliman in October 1998 and her next visit with Dr. Hodgins on September 16, 1999. That was a visit in the emergency department of the Markdale Hospital in April 1999, coded on the OHIP records as "acute bronchitis."

Mrs. Glagow testified that Dr. Hodgins prescribed several different medications for her. She was having trouble sleeping, and he prescribed medication to help her relax and sleep. He also prescribed a muscle relaxant, a narcotic pain pill, and Doxepin (a tricyclic antidepressant).He tried her on an antidepressant, Paxil, "to calm me down and keep me on an even keel."

In his report of March 16, 2000 Dr. Hodgins described his findings on his examination of Mrs. Glagow in September 1999. He note that he found no deformity or swelling and that she had a full range of motion of her shoulders, elbows and neck. Her grip strength and reflexes were normal. He found marked tenderness in the mid-thoracic spine and also the left paraspinal muscles and trapezius. Dr. Hodgins noted that Mrs. Glagow appeared to be quite angry and frustrated and was tearful at times. He tentatively diagnosed her as suffering from myofacial pain syndrome and prescribed a low dose of Amitriptyline to help her sleep. He also prescribed Percocet, a narcotic analgesic medication. In December 1999 he added Flexeril, a muscle relaxant, to her medications.

Mrs. Glagow described how after two to three months of beginning treatment with Dr. Hodgins, the dosage of analgesic medication was not enough to release the pain. She increased the dosage of pain killers and muscle relaxants on her own until she was doubling the prescribed dose. She testified that she could do more things and was not in constant pain. She was doing more housework than she can do now. However, one evening, after drinking one beer at a friend's home, she "totally crashed and scared" herself. She drove off the road on highway 89 and hit a mailbox. She does not know why she was on highway 89. The police took her home. She testified her doctor and her mother wanted her to go to hospital to be weaned off the medication, but she refused. Her husband took all her pills and she withdrew from the medication on her own, at home in bed. On cross examination, Mrs. Glagow admitted she was also smoking marijuana at this time on occasion, thinking it would help relieve her pain. According to Dr. Hodgins' notes, it was about May 31, 2000 that Mrs. Glagow stopped taking all her medication.

Mrs. Glagow testified after the mailbox incident she saw a mental health counsellor in Orangeville. She said she felt like a failure and was scared about her future. Her marriage was in dire straights. She tried to figure out what to do. Her confidence level had dropped, but she was determined not to let the pain beat her. She saw an advertisement in the newspaper about driving instructors. This job interested her. She had no traffic tickets and an excellent driving record. She thought the nature of the job would give her some flexibility when she was not feeling well. Mrs. Glagow was successful in obtaining an interview with the owner of the Young Drivers of Canada franchise in Orangeville. She was hired after a five week training course in Hamilton, in late July and August 2000, for which the owner of the franchise loaned her the tuition cost of $1,500 and helped her with the gasoline expense. Mrs. Glagow borrowed her mother's car to travel back and forth to the course. Her sister-in-law helped with early morning childcare, since Mrs. Glagow left home at 5:00 a.m. and did not return till after 7:00 p.m. During the day, her children went to a day care centre. Her husband picked them up after he returned from his work.

Mrs. Glagow testified that she finds she can manage driving instructing because the seatbelt is on her right shoulder when she is instructing. Although she has a brake on her side of the car, the student does most of the driving. Each lesson lasts about 45 minutes. Since her husband changed jobs in February 2001 it is less easy for her to organize her timetable, since he is often away. She has also found she has difficulty tolerating the high speed manoeuvres taught in the last few lessons of the course — threshhold braking, ABS stops, avoidance swerve, and emergency swerve, especially if she has several students reaching this part of the course during the same weeks. Mrs. Glagow explained that some of these stops are performed at 80 km/hr. and her body has to endure the forces exerted by the restraining of the seatbelt many times. She testified that these stops "mess up my shoulder" and she must use her heating pad on it. Mrs. Glagow testified that she would like to take a two-day course that would allow her to teach the in-class portion of the Young Drivers course.

Present Symptoms:

Mrs. Glagow testified that she is "back to where I started, in constant pain." She testified that she likes the job of driving instructor itself and wants to be "out there in the world." She is trying to be productive and it's not working. She is determined to find out what's wrong with her left shoulder. She was prescribed and obtained a short course of ultrasound therapy at Shelburne hospital in 2000, funded by OHIP, and found only the first of six treatments helpful. Mrs. Glagow intends to look into treatment for pain management and getting an MRI of her shoulder. She testified in cross examination that her frustration and anxiety are all returning.

Mrs. Glagow testified that around home she is "back to doing next to nothing." Her husband does the dishes and she tries to get her children to help as much as possible. The less she does, the better she feels. Mrs. Glagow described a sensation in her left arm and hand that feels like a tight glove; her left shoulder pains constantly. Her collar bone is not the same height, shape or position as on the right side. Her left shoulder blade is painful, to the point where it sometimes hurts to breathe, and the left deltoid muscle of her shoulder feels hard. Her left shoulder hurts no matter what her arm position.

Applicant's Supporting Witnesses:

Mr. Robert Vlaming, a former neighbour and friend of the Glagows, testified. He has known Sharon Glagow since 1992. Mr. Vlaming testified that before the accident Sharon was an active and happy-go-lucky person. She volunteered for the membership committee of the cooperative housing project in which they lived. She also volunteered with the maintenance committee for groundskeeping. Mr. Vlaming testified that his wife and Mrs. Glagow gardened together. He felt she kept her home very clean, even with three children. She was helpful to do housekeeping chores at his home during the tax season, when he was working 14 hours a day and his wife was away visiting her family for several weeks at a time.

After the accident, Mr. Vlaming lived at the cooperative about 2.5 months until November 30, 1997. He saw a big difference in Sharon's home. It was not as neat and clean. She did not clean up her garden that fall or work on any committees. He had never known her to be a complainer before the accident about anything, but now she complained about her neck and shoulder problems. Mr. Vlaming testified that after his family moved, he would see Mrs. Glagow about once a week and she and his wife would talk more often on the telephone. He knew her family life was deteriorating and that she was trying to continue to work with pain. He understood that making dinner sometimes was a real challenge for her. A couple of times when Mr. Vlaming visited Mrs. Glagow's home, and her husband was on the night shift, he bathed her children for her, as she could not bend down in front of the bathtub.

Mr. Vlaming recalled a specific conversation in the early spring of 1998 when Mrs. Glagow complained about being sore and in pain all the time. They discussed that she had not given her body a rest and time to heal. They talked about children being young only once.

Mr. Vlaming testified he was aware of the nature of Mrs. Glagow's work. He did her income taxes for her. He testified that she was very excited about getting the job with York Documents after being in school for so many years. Mr. Vlaming testified that he still speaks on the telephone with Mrs. Glagow about once or twice a month. His family has visited at her farm, especially in the summer. He has seen improvement in Mrs. Glagow in the last couple of years, although she still complains "now and then" that this or that is sore. She is still not 100%.

Mr. Warren Brown, the owner of York Region Document Services Inc. testified that Sharon Glagow worked for him as a process server. He testified she was very reliable, liked the job, and did a good job. She complained to him after the accident that she had a lot of trouble getting into and out of the car and that driving and sitting was hard on her. He knew she would even have trouble negotiating the stairs to his office on the second floor. Mr. Brown knew that Mr. Flannigan travelled with Mrs. Glagow; she told him that she felt more secure with him.

Dr. Michael Hodgins, Mrs. Glagow's family doctor, testified. He first met Sharon Glagow in 1989 and was her doctor through at least one pregnancy. She moved away in 1991. He resumed caring for Sharon Glagow in September 1999. She complained then of pain in her thoracic spine and left shoulder. She related to him that she had had a lot of physiotherapy since the accident. She hoped he would be able to fix her. Dr. Hodgins knew Mrs. Glagow had a long history of low back pain and intermittent, right-sided sciatica. He diagnosed her problem as chronic myofascial pain syndrome. Since that time, his working diagnosis is still myofascial pain syndrome with complicating emotional problems. He feels she is in chronic pain because of the accident.

Dr. Hodgins testified that in the spring and summer of 2000, emotional factors played a huge role in Mrs. Glagow's inability to work. A lot of the emotional turmoil stemmed from the chronic pain. Dr. Hodgins discussed the medication that he prescribed for Mrs. Glagow. Dr. Hodgins testified that Mrs. Glagow has marked tenderness of her upper back and left shoulder girdle. Dr. Hodgins described Mrs. Glagow as a stubborn patient who tried to continue working for several months until she was no longer able to do it because of the pain. He testified that she was certainly incapable of working full-time in the spring and summer of 2000. Dr. Hodgins testified that Mrs. Glagow had related to him in November 2000 that she had been off all medication since August 2000. His note of June 9, 2000 states that she had stopped all medication 10 days previously. Dr. Hodgins believes taking no medication is better for Mrs. Glagow's longterm health than taking medication.

Dr. Hodgins commented on some of the other expert reports, that he had reviewed only the Friday preceding his testimony. He felt Dr. Silverstein, the orthopaedic specialist who examined Mrs. Glagow at Pafco's request, was not sympathetic to Mrs. Glagow, found little physical findings, and had a belief that any soft-tissue injury should have healed by April 1998 when he examined her. Shortly after that first examination by Dr. Silverstein, Mrs. Glagow quit work because she couldn't do it anymore. As for Dr. Silverstein's second report from July 1998, Dr. Hodgins commented that he has several patients with similar soft-tissue injuries that have gone on to develop chronic pain, although Dr. Silverstein saw no physical basis for Mrs. Glagow's "perceived disability." Dr. Hodgins felt the TOTA occupational therapy report was more objective. He agrees she cannot do the process server job. He feels she would benefit from a psychological assessment and pain management counselling. He was quite impressed that Mrs. Glagow had taken retraining and returned to work. Dr. Hodgins was absolutely sure that she was better off to have done this than not.

Dr. Dana Wilson, an orthopaedic surgeon from Mississauga, examined Mrs. Glagow at the request of her lawyer in August 1999. He reviewed the results of the functional abilities evaluation performed in September 1999 by TOTA before rendering his report. Dr. Wilson concurred with other practitioners that Mrs. Glagow sustained a soft tissue injury to her neck in the accident and now continues to experience neck and left shoulder pain as a result. He also found that the twisting force exerted to her lumbar spine aggravated her pre-accident history of episodic low back pain to a point the pain remained constant at the time he examined her. Dr. Wilson did not expect Mrs. Glagow's condition to either improve or deteriorate over time. He was pessimistic that she would ever be able to perform her previous job, based on the results of the FAE.

Mrs. Margaret Dunlop, Sharon Glagow's mother testified. Mrs. Dunlop is 71 years old and retired from the aerospace industry. She testified that her daughter was a pretty capable person and a go-getter before the accident. However, initially, she did not think she would be able to handle a college program with three children at home. She was proud Sharon graduated from the paralegal course. Mrs. Dunlop spent about two weeks helping at the Glagow's home after the accident. She has returned from time to time when the family needed her or "if I felt I could be useful and to see how things were going." Mrs. Dunlop described Sharon's overuse of medication and her withdrawal from that in early summer 2000. She described Sharon's returning to work as a good move for her, but the timing was unfortunate with her husband's new job which followed soon thereafter, which takes him away for up to three weeks at a time. Mr. Tim Glagow, Sharon's husband for 12 years, testified at length. He described their family situation, his wife's return to college, her job with Warren Brown, the aftermath of the accident and the course of his wife's treatment and recovery. Mr. Glagow often attended with Sharon for her medical appointments. He appeared to have a good recollection of events following the accident.

Bruce Flannigan, Mrs. Glagow's friend and coworker at the process serving job, testified. Mr. Flannigan was also in the car the night of the motor vehicle accident of September 12, 1997. He testified that they both enjoyed the job and that Sharon Glagow had no trouble doing the job physically before the accident. It was like two friends getting together and going for a drive. Mr. Flannigan described Mrs. Glagow's visible discomfort after the accident and contrasted her extreme reluctance to get out and do the job after the accident with her enthusiasm before the accident. He testified that he was surprised she carried on as long as she did. However, he recognized Sharon Glagow as a "fairly stubborn lady and if she decided to work, she'd work." He testified that by the spring of 1998 Sharon was just miserable and not seeing any progress with her back. In some ways he felt relieved when she "called it quits." He thought she should look for something else without all the driving. He had found Mrs. Glagow could become very irritable over the course of an evening. Mr. Flannigan testified Sharon complained about her whole spine hurting, from her neck to her upper and lower back. Mr. Flannigan testified he had lost contact with Sharon when she moved to the farm in 1998 and only heard from her occasionally thereafter.

Insurer's Evidence:

Dr. Ezra Silverstein, an orthopaedic specialist, was called by the Insurer to testify. He examined Sharon Glagow twice, on April 17 and July 27, 1998. When Dr. Silverstein originally examined Mrs. Glagow, he had a copy of her statement to the adjuster, the notes of Rapid Rehabilitation, and the treatment plan of Dr. Kliman, dated April 6, 1998, which contained no treatment proposal but instead the unusual statement, in the section of the form designed for a description of the treatment plan, that Dr. Kliman advised that Sharon Glagow receive a DAC examination. Subsequent to his examinations of Mrs. Glagow, Dr. Silverstein received the reports of Dr. Dana Wilson, Dr. Hodgins, and the functional abilities' evaluation or TOTA report.

Dr. Silverstein disagreed with Dr. Kliman's report of December 4, 1998 in which he commented that Sharon Glagow had a genuine rotator cuff injury to her left shoulder. Dr. Silverstein felt Mrs. Glagow had bruised left shoulder from the seatbelt restraint, not injured her rotator cuff. He felt Mrs. Glagow may have had traumatic tendinitis or traumatic tendinopathy of the rotator cuff. He found Mrs. Glagow had "mechanical" back pain, that is back pain not due to tumour, infection or a herniated disc.

Dr. Silverstein did not identify any physical abnormalities or objective symptoms that would limit Mrs. Glagow's function or inhibit her work or household activities. In his second report, Dr. Silverstein recommended psychological counselling for Mrs. Glagow because he felt further treatment to the musculoskeletal system would be ineffective. He thought psychological counselling would help her cope with the pain or get to the social/psycho/emotional basis for pain by trying to treat its origin. Dr. Silverstein stated that patients with chronic pain syndrome seem to have more sensitivity to pain, but this does not verify the validity of their complaints. In his opinion, any pain Mrs. Glagow continues to suffer is not as a result of physical injuries ongoing from the accident.

Dr. Silverstein stated that "we recognize that ten to fifteen per cent of patients with soft tissue injuries of the neck and back continue to complain of pain." It is not ungenuine pain, in his opinion, but he feels the injuries inflicted at the accident are not responsible for that pain. No residual physical abnormality persists to cause that pain. He stated we cannot tell you why they have pain. He feels it is a social/psycho/emotional cause outside of her physical injuries.

Analysis & Conclusion re Ability to perform Essential Tasks and Causation:

Mrs. Glagow was injured in a motor vehicle accident on September 12, 1997. I conclude from the oral and documentary evidence presented that Mrs. Glagow sustained a physical impairment in the accident in the form of musculoskeletal injuries to her head, neck, left knee, left shoulder and entire spinal column. I accept Dr. Wilson's opinion and find considerable forces were exerted on Mrs. Glagow's body in the impact and in the manoeuvres she performed in trying to control her vehicle after the impact.

I also find Mrs. Glagow suffered from some pre-existing degenerative disease in her low back prior to the accident. She suffered intermittently from low back pain. However, I accept her contention that this problem did not stop her from leading an active life prior to the accident. After the accident, the situation changed. I accept that Mrs. Glagow's pain in her left shoulder and neck was unremitting, despite physiotherapy treatment and medication. According to the notes of the treating physiotherapist, although her condition began to improve gradually in October and early November, she suffered from acute flare-ups of neck and low back pain in January 1998.

Although Mrs. Glagow emphasized the problem with her left shoulder and neck in her testimony before me, I find that she also suffered from considerable low back pain following the accident. I find that Mrs. Glagow had a vulnerable spine prior to the accident, evidenced by her prior complaints and consultation with Dr. Soon-Shiong. However, I accept that the accident aggravated this low back condition and that the additional injury from the accident was the major contributing factor relating to the ongoing symptoms in her low back. Many cases at the Commission have held that the symptoms following an accident do not have to be solely related to the accident itself.

I find that Mrs. Glagow is a generally credible witness with a straightforward, unsophisticated character. I find she struggled for many months after the accident trying to juggle treatment, her job duties, and her tasks at home, all the while being in pain. During the course of the hearing I observed that Mrs. Glagow appeared to have a tenacious and somewhat stoic character. At least two of the other witnesses, Mr. Flannigan, who was her daily coworker, and Dr. Hodgins called her stubborn. Mrs. Glagow's perseverance should not be held against her in this situation where she attempted for several months after the accident to continue working. In order to cope at all with work, I find the evidence is that every other part of her family life suffered significantly. The Schedule insists, at section 11, that accident victims who try to return to work after an accident within the first 104 weeks may do so "without affecting his or her entitlement to resume receiving benefits." The spirit that is reflected in that section should be observed in Mrs. Glagow's case, even though she never did take a break from her work, until she could stand it no longer.

Although I accept Dr. Silverstein's report of his physical findings on his two examinations of Mrs. Glagow, I do not accept his conclusion that Mrs. Glagow could manage all her pre-accident work and lifestyle activities without restriction. I accept her subjective complaints of pain, although Dr. Silverstein, in his reports, finds them out of proportion to the "essentially normal physical findings identified." I feel Dr. Silverstein was much more "sympathetic" to Mrs. Glagow's predicament in his oral testimony than would appear from a perusal of his two reports from 1998. In my view, Mrs. Glagow falls within the 10 to 15 per cent of patients with soft tissue injuries of the neck and back that continue to complain of pain, that Dr. Silverstein recognized on his cross-examination and that Dr. Hodgins spoke of in his testimony. Even though Dr. Silverstein does not know why she feels this pain, that he accepts is genuine, he nonetheless does not believe the injuries inflicted at the motor vehicle accident are responsible for that pain.

In my view, it is more likely than not, however, that Mrs. Glagow's chronic pain has arisen as a result of the injuries she suffered in the motor vehicle accident of September 12, 1997. Dr. Kliman, Dr. Hodgins and Dr. Wilson also concur in this view. She has taken physiotherapy treatment on two occasions with little improvement. I accept the conclusions of the occupational therapist, Kelly Hayes, in her assessment of Mrs. Glagow dated September 7, 1999 that Mrs. Glagow would not be able to sit more than about one hour in any comfort, without changing position. Although no one has been able to deduce the source of her ongoing pain, I find Mrs. Glagow and her supporting witnesses to be credible, and I find that she suffers from continuing debilitating, chronic pain in her left shoulder, neck and spinal column as a result of the accident.

I find that Mrs. Glagow was substantially unable perform to perform the essential tasks of her job as a process server after May 1, 1998. I conclude that Mrs. Glagow is entitled to receive weekly income replacement benefits (IRBs) for a period of 104 weeks from the date which I find to be the onset of her disability — May 1, 1998 — because thereafter she suffered a substantial inability to perform her essential tasks. Mrs. Glagow's entitlement to IRBs was delayed by her laudable, sincere attempt to persevere and remain at work following the accident until April 30, 1998. Despite the Insurer's arguments, I find Mrs. Glagow's entitlement to IRBs does not run from the date of the accident. According to the terms of a combined reading of subsections 4-1 and 5(1) and (2) of the Schedule, she is entitled to up to 104 weeks of disability payments as long as her substantial inability to perform the essential tasks of her employment arises within 104 weeks after the accident.

Entitlement to IRBs after May 1, 2000 to February 5, 2001:

For Mrs. Glagow to be entitled to IRBs after May 1, 2000 she must meet a more stringent test. Subparagraph 5(2)(b) of the Schedule provides that an insurer is not required to pay IRBs 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." At the outset of the hearing, the Applicant's counsel informed me that Mrs. Glagow was not presenting a claim for IRBs after February 5, 2001, by which time she had returned almost full-time to work.

In his submissions Mrs. Glagow's counsel did not concentrate on Mrs. Glagow's claim for post-104 weeks' benefits. The evidence shows that in August 2000 Mrs. Glagow was well enough to pursue training as a driving instructor. Over a period of five weeks she attended classes in Hamilton, without any absence, and commuted back and forth to her home north of Shelburne. This training course resulted from an initial application Mrs. Glagow completed for Young Drivers on June 21, 2000 and an interview held on June 26, 2000. However in late April, May and June 2000 Mrs. Glagow was in a severe crisis relating to her abuse of prescription painkillers and muscle relaxants. Mrs. Dunlop testified that her daughter was in bed for a week to 10 days withdrawing from her drugs. Dr. Hodgins testified that Mrs. Glagow was "certainly not" capable of working full-time in the spring and summer of 2000. I accept the evidence of Mrs. Glagow, her husband, and Mrs. Dunlop that Sharon's chronic pain and failure to improve in her physical symptoms after the accident of September 12, 1997 was a major contributing factor in the development of this crisis.

I did not hear much evidence about Mrs. Glagow's health condition from September 2000 to February 2001. Obviously, she was well enough to begin teaching young drivers by February 5, 2001.

I conclude that for two months, from May 1, 2000 to July 1, 2000, during this crisis period, Mrs. Glagow was completely unable to engage in any employment for which she was reasonably suited by education, training or experience, as a result of the accident of September 12, 1997. Pafco must pay Mrs. Glagow $185 per week during this period, in accordance with the provisions of subparagraph 6(1)(b) of the Schedule.

Employed or Self-Employed?

I find that Mrs. Glagow was self-employed as an independent contractor performing duties as a process server at the time of the accident. I find she was engaged in a business activity for profit and hired Mr. Flannigan as an assistant in her business. She did not necessarily work a set number of hours per week and negotiated the fees for her services with Mr. Brown. She was paid according to invoices she submitted. In coming to a conclusion on this question I have considered the Commissioner's Guideline 4/96, as provided by subsection 268.3(2) of the Insurance Act.

Rehabilitation:

The rehabilitation benefit claimed in this arbitration is less than $3,000 — not as large a sum as claims for retraining tend to be. The fact that the sum claimed is relatively modest has influenced my view of the amount and quality of evidence required to substantiate the insured person's claim for this benefit.

Subsection 38(1) of the Schedule requires that before rehabilitation expenses are incurred, the insured person shall submit an application for the benefit to the insurer, which must include a treatment plan. Pafco relies on this section of the Schedule. Mrs. Glagow never submitted a treatment plan for this rehabilitation claim.

Pafco also objected to the short timelines relating to the request for funding this rehabilitation scheme. On July 10, 2000 Mrs. Glagow received written confirmation of an offer of employment from Young Drivers of Canada, Orangeville, contingent upon her completing a five-week course which was to begin about two weeks later. On July 14, 2000 Mrs. Glagow's lawyer, wrote to Pafco about this prospect. Pafco declined to pay for the course in a letter enclosing an Explanation of Benefits form dated July 21, 2001. An application for mediation on the issue was filed on August 10, 2000. Pafco's counsel submitted that the case for taking the course was not properly supported and that there was a very small window of opportunity for the Insurer to respond to the request. Pafco's counsel also submitted that it was unfair for the Applicant to characterize Pafco's treatment of the request as "brushing off" Mrs. Glagow. Pafco submitted that Insurers are criticized for not following the provisions of the Schedule from time to time. Here, the Insurer submitted, it did follow the Schedule and is being chastized by an insured person for it.

I disagree that Pafco followed the provisions of the Schedule. The problem with Pafco's insistence at arbitration that Mrs. Glagow should have provided a treatment or rehabilitation plan on an approved form is that Pafco never notified Mrs. Glagow of this at the relevant time. The Explanation of Benefits form Pafco filed does not deny Mrs. Glagow a benefit because she did not submit the required forms, it says that Dr. Silverstein's two reports say she is capable of "returning to your occupation as Process Server." The Explanation also refers to Dr. Kliman's disability certificate dated September 30, 1997 that states she was working full-time and had not lost time from work.

Arbitrator Renahan dealt with a similar situation in the case of Beaman and Guarantee Company of North America, (FSCO A00-001016, May 1, 2001). I drew the parties' attention to this case and received their written submissions with respect to its application in Mrs. Glagow's case. In the Beaman case Arbitrator Renahan wrote:

The real issue is what are the consequences of Mrs. Beaman's failure to submit a treatment plan. With specified exceptions, section 38 provides that before the insured incurs expenses for medical or rehabilitation benefits, she must submit an application and the application "must" include a treatment plan. Under subsection 38(22) an insurer can agree to pay an expense without the submission of an application or treatment plan. The only legislated consequences of failing to comply is set out in subsection 38(17) which allows an insured to submit an application and treatment plan "within 30 days after incurring the expenses."

Mrs. Beaman has medical and rehabilitation coverage under her policy with Guarantee for ten years from the date of the accident. Guarantee has a statutory duty under paragraph 32(2)(c) of the Schedule to "promptly provide the person with information to assist the person in applying for benefits." Under section 268.3 of the Insurance Act, I am bound to consider any guideline issued by the Commissioner in the interpretation of the Schedule. Commissioner's Guideline No. 2/96 advises insurers to:

• Inform claimants about the kind of accident benefits that are available under the SABS, let claimants know all the procedures to be followed and documentation needed when applying for benefits.

I do not believe it is fair to allow Guarantee to rely on Mrs. Beaman’s failure to submit a treatment plan when it has not complied with its duty to assist her by promptly advising her that it required a treatment plan. This is particularly unfair, when instead of informing Mrs. Beaman that it required a treatment plan,

Guarantee discouraged Mrs. Beaman from applying for medical benefits by telling her that it would not consider further applications and that it planned to close its file.

The drafters of section 38 could not have intended to allow an insurer to deny coverage in a situation such as this where the insurer has not complied with its duties.

I agree with Arbitrator Renahan's reasoning in the Beaman case. In this case Pafco should have replied to Mrs. Glagow's solicitors that the Schedule called for her to provide a treatment plan with this request, and enclosed the blank form. Mrs. Glagow then would have had the opportunity to have her family doctor or other member of a health profession complete the form giving details of the plan and indicating his support for it. If Pafco disagreed with funding the rehabilitation, then subparagraph 38(12)(b) of the Schedule calls for Pafco to give Mrs. Glagow a notice to be assessed at a designated assessment centre. Mrs. Glagow then would have an opportunity to withdraw her request (subsection 38(13)) or proceed to the assessment. The DAC would ultimately give its opinion on whether the expense was reasonable and necessary for Mrs. Glagow's rehabilitation. If it said yes, Pafco would have to pay (s. 38(14)(a)), subject to its right to dispute the issue in accordance with sections 279 to 283 of the Insurance Act. As she did in this case, in any event, Mrs. Glagow would have been free to proceed to take the course and find out later about whether or not it was going to be paid by the Insurer.

The provisions relating to rehabilitation are set out in section 15. Subsections (1)(2) and (3) of section 15 read as follows:

Rehabilitation Benefit

15.(1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a rehabilitation benefit.

2. The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person's reintegration into his or her family, the rest of society and the labour market.

(3) Measures to reintegrate an insured person into the labour market include measures that are reasonable and necessary to enable the person to, (a) engage in employment that is as similar as possible to employment in which he or she engaged before the accident; or (b) lead as normal a work life as possible.

I have found that Mrs. Glagow was disabled for a period of 104 weeks after May 1, 1998 in a job that involved a considerable amount of driving. Pafco questioned the seeming inconsistency between Mrs. Glagow’s alleged inability to perform the job of process server with the tasks required of a driving instructor. Although both jobs involve sitting in a motor vehicle, Mrs. Glagow testified that the driving instructor job mostly requires her to be a passenger, where the seatbelt crosses her right shoulder, not the injured left shoulder, and her hands are not required on the steering wheel. In addition, she is able to get out of the car more frequently and has some flexibility in her scheduling. I accept that there are enough differences between the two jobs to make the pursuit of the driver instructor training, at a relatively modest cost, reasonable. In addition, Mrs. Glagow now has the potential to deliver the in-class portion of the training.

I consider that Mrs. Glagow has proven that the five-week course she took from Young Drivers was a reasonable and necessary measure to facilitate her reintegration into the labour market as required by subsections 15(1) - (3) of the Schedule. She was unemployed at the time she embarked on the course and had assurance of employment after its end. It was not an extended course and its cost was comparatively modest. Mrs. Glagow felt the conditions of the job as a driving instructor were such that it offered her the flexibility she felt she would need to continue in a job. Pursuing this course was an effort by Mrs. Glagow to rehabilitate herself. Although he did not know about it at the time, her family doctor testified at the hearing that he was quite impressed with his patient that she had pursued this course and returned to work.

I find that Mrs. Glagow is entitled to $1,500 for tuition for the course. I also find she is entitled to transportation expenses under subparagraphs 15(5)(k),15(11), and 15(12) of the Schedule and that Pafco is not liable to pay the first 50 km of transportation for each training session. Mrs. Glagow presented records of her gasoline expenses to the course in Hamilton, but no evidence of the number of kilometres she travelled. I find she is entitled daily to $0.22 per kilometre travelled, the mileage rate set out in the Transportation Expense Guidelines, published by the Commission for the period in question, from her home to the course location in Hamilton, return, less 50 kilometres per day. If the parties are unable to agree on the mileage, a party may apply to me to re-open the hearing for additional evidence on this issue.

In order to care for her children during the period of this course, Mrs. Glagow required additional, extended daytime childcare for her children. I find these services fall under the provisions of subparagraph 15(5)(l) of the Schedule and allow them at $1,342.52. I also allow parking expense of $100, which was proven by means of receipts in exhibit 5. I disallow the claim for food, for which no receipts were provided.

Special Award:

An arbitrator must grant a special award under the provisions of subsection 282(10) of the Insurance Act if she finds an insurer unreasonably withheld or delayed benefits to an insured person. In this case, the Insurer received two reports from Dr. Silverstein which indicated Mrs. Glagow should be able to perform the essential tasks of her employment. If Mrs. Glagow was reasonably able to continue in her former job, then there would be no reason to pay a rehabilitation benefit to reintegrate her into the labour market. Further, there were lengthy delays, evidenced in the documents filed at the arbitration, in Mrs. Glagow providing details of her self-employment earnings and expenses to obtain the correct calculations for any IRB that might be owing.

Although I disagree with Dr. Silverstein’s conclusion, I do not believe it was unreasonable for Pafco to rely on his advice. Neither was the evidence provided by Mrs. Glagow, from the fall of 1999 and the spring of 2000, in the form of reports from other health professionals of such a degree of persuasiveness that I feel it was unreasonable for Pafco to maintain its original position. Accordingly, I grant no special award in this case.

EXPENSES:

Each party has asked that the other pay its expenses in this proceeding. Mrs. Glagow has been largely successful in this proceeding. Nothing in the conduct of her case would lead me to the conclusion that she should not have her expenses of the arbitration or that she should pay Pafco's expenses. The parties have not advised me that any offers of settlement need to be considered in connection with this award. Pafco shall pay Mrs. Glagow her expenses of the arbitration.

June 27, 2001

K. Julaine Palmer

Arbitrator

Date

Neutral Citation: 2001 ONFSCDRS 95

FSCO A00-000835

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SHARON GLAGOW

Applicant

and

PAFCO INSURANCE COMPANY LIMITED

Insurer

ARBITRATION ORDER

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

1. Pafco Insurance Company Limited shall pay Mrs. Glagow income replacement benefits, at the agreed amount of $100 per week, for 103 weeks, from May 8, 1998 to April 30, 2000, or $10,300. In addition, Pafco Insurance Company Limited shall pay Mrs. Glagow income replacement benefits of $185 per week for nine weeks from May 1, 2000 to June 30, 2000, totalling $1,665.

2. Pafco Insurance Company Limited shall pay Mrs. Glagow a rehabilitation benefit under section 15 of the Schedule of $2,942.52, plus an amount for transportation expenses, to be calculated as set out in the decision.

3. Pafco Insurance Company Limited shall pay interest on the amounts owing at the rate of 2 per cent per month, compounded monthly, from the date the amounts became overdue, as required by section 46 of the Schedule.

4. Pafco Insurance Company Limited shall pay Mrs. Glagow's expenses of this proceeding.

June 27, 2001

K. Julaine Palmer

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. 2This language is set out in section 4—1 of the Schedule. The definition of "impairment" is found in section 2.