Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 155

FSCO A04-001146

BETWEEN:

FRANK M. RODRIGUES

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Edward Lee

Heard: January 3 and 4, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Frank M. Rodrigues represented himself

Chris Blom for Jevco Insurance Company

History:

The Applicant, Frank M. Rodrigues, was injured in a motor vehicle accident on May 25, 1996. He applied for and received statutory accident benefits from Jevco Insurance Company ("Jevco"), payable under the Schedule.¹ Jevco has refused to pay income replacement benefits for seventy-and-one-half days which are set out in the Applicant's Summary of Claim for Loss of Sick Days.

The parties were unable to resolve their disputes through mediation, and Mr. Rodrigues applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

There were numerous pre-hearing conferences in this matter to clarify the issues in dispute. For completeness, I have reproduced in its entirety, the portion of the pre-hearing letter prepared by Arbitrator Blackman following his arbitration turned into pre-hearing conference of September 19, 2005, which sets out the issues in dispute.

These issues were identified and agreed to by the parties:

1. Is Mr. Rodrigues entitled to receive a weekly income replacement benefit for the dates set out in the attached Summary of Claim for Loss of Sick Days, claimed pursuant to section 8 of the Schedule, on the basis that Mr. Rodrigues suffers a substantial inability to perform the essential tasks of his pre-accident employment as a paralegal?

A subsidiary issue encompassed within the question of the Applicant's entitlement to income replacement benefits ("IRBs") is subsection 14(2) of the Schedule, that is, whether Mr. Rodrigues is not entitled to IRBs on the basis that he returned to employment for periods of more than ninety days.

2. Are the sick leave benefits received by the Applicant payments for loss of income received as a result of the accident under an income continuation plan, and can Jevco deduct them from the IRB payable under Part II of the Schedule pursuant to paragraph 75Q) Q) of the Schedule?

This issue was added on consent of both parties. I wish to confirm that paragraph 75(1)(1) of the Schedule was the only collateral benefit defence ultimately raised by the Insurer.

2. Is Mr. Rodrigues entitled to the payment of five reports of Dr. Ogilvie-Harris, orthopaedic surgeon, and one report of Dr. Peck, the Applicant's family doctor, claimed pursuant to section 57 of the Schedule?

3. Is Mr. Rodrigues entitled to a special award, claimed pursuant to subsection 282(10) of the Insurance Act?

The Applicant undertook to provide the Insurer with written confirmation of the particulars of his claim for a special award, as are then within his knowledge, within sixty days of September 12, 2005, and to provide further written particulars as they come to his knowledge.

4. Is Jevco liable to pay Mr. Rodrigues's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

5. Is Mr. Rodrigues liable to pay Jevco's expenses in respect of the arbitration under section 282(11) of the Insurance Act?

6. Is Mr. Rodrigues entitled to interest for the overdue payment of the benefits, pursuant to section 68 of the Schedule?

The parties confirmed that there was no issue in dispute in this proceeding regarding entitlement to Loss of Earning Capacity Benefits under part VI of the Schedule. The parties also confirmed that they had resolved the issues of Mr. Rodrigues's entitlement to the medical benefits enumerated in Arbitrator Sampliner's October 21, 2004 pre-hearing letter, as well as the issue of the Applicant's entitlement to payment of Dr. Jowett's January 2003 report."

Result:

1. Mr. Rodrigues is entitled to receive a weekly income replacement benefit for the dates set out in the Summary of Claim for Loss of Sick Days, when he was on leave without pay.

2. Jevco can deduct the sick leave benefits received by the Applicant from the income replacement benefits payable.

3. Mr. Rodrigues is entitled to the payment of five reports of Dr. Ogilvie-Harris, orthopaedic surgeon, and one report of Dr. Peck, the Applicant's family doctor.

4. Mr. Rodrigues is entitled to a special award of $2,500.00.

5. Jevco is liable to pay Mr. Rodrigues's reasonable expenses in respect of the arbitration.

6. Mr. Rodrigues is not liable to pay Jevco's expenses in respect of the arbitration.

7. Mr. Rodrigues is entitled to interest for the overdue payment of the benefits.

EVIDENCE AND ANALYSIS:

Mr. Rodrigues was involved in a motor vehicle accident on May 25, 1996 resulting in injuries to his knee, shoulder, mid and low back, ankle, and elbow. At the time of his accident he was employed as a paralegal, and he returned to his work approximately three weeks after his accident. Nevertheless, he continued to have medical problems and he underwent several surgeries in 1996, including surgery on his knee in August 1996. He then returned to work in September 1996, opening his own business as a paralegal. He remained there in a part-time and full-time capacity until September 1998. He then worked part-time as a fraud investigator with CIBC Visa until October 1999. In November 1999, he began work as a customs officer with the Canadian government and he currently remains employed in that position on a full-time basis.

Since September 1996, Mr. Rodrigues has undergone further surgeries, and he has remained at home for periods of up to three weeks for convalescence. During some of these periods he was paid income replacement benefits ("IRBs") by Jevco.

Despite his return to and continuation of work since his accident, Mr. Rodrigues maintains that he has days or periods when he is substantially disabled from performing the essential tasks of his employment. Mr. Rodrigues is claiming IRBs for these seventy-and-one half days.

Those days occurred from February 2000 to November 2005, and are listed in Ex. R-2, the Summary of Claim for Loss of Sick Days. The parties have indicated to me that they were in agreement that Mr. Rodrigues was absent from work during the days claimed in the Summary of Claim for Loss of Sick Days and that the IRB rates are correct for those periods listed.

1. Is Mr. Rodrigues entitled to receive a weekly IRB for the dates set out in the attached Summary of Claim for Loss of Sick Days, claimed pursuant to section 8 of the Schedule, on the basis that Mr. Rodrigues suffered a substantial inability to perform the essential tasks of his pre-accident employment as a paralegal?

A subsidiary issue encompassed within the question of the Applicant's entitlement to IRBs is subsection 14(2) of the Schedule, that is, whether Mr. Rodrigues is not entitled to IRBs on the basis that he returned to employment for periods of more than ninety days.

Mr. Rodrigues's Return to Employment

The Insurer relied on section 14(2) of the Schedule to argue that Mr. Rodrigues was not entitled to resume receiving IRBs because Mr. Rodrigues had worked for periods longer than ninety days. The period for which IRBs are claimed is also after the expiry of the 104-week period referred to in section 14(1) of the Schedule.

Section 14(2) of the Schedule reads as follows:

14. (2) After the 104-week period referred to in subsection (1), a person receiving weekly income replacement benefits under this Part may return to or start an employment for periods of up to ninety days without affecting his or her entitlement to resume receiving benefits under this Part if, as a result of the accident, he or she is unable to continue in the employment.

Mr. Rodrigues argued that he fell under section 14(1), and thus was entitled to resume receiving his IRBs.

Section 14(1) of the Schedule reads as follows:

14. (1) A person receiving weekly income replacement benefits under this Part may return to or start an employment at any time during the 104-weeks following the onset of the disability in respect of which the benefits are paid without affecting his or her entitlement to resume receiving benefits under this Part if, as a result of the accident, he or she is unable to continue in the employment.

The facts of this case are similar to those in the decision of Wright and Allstate Insurance Company of Canada² In that case, the applicant's disability commenced with the motor vehicle accident on January 6, 1994. She returned to work on August 12, 1994 and continued to work until January 28, 1997.

On appeal, the Director's Delegate made the following ruling:

...As the arbitrator held, the plain meaning of section 14 is to create two rules based on whether the insured person returns to or starts employment before or after the 104-week mark. Because Mrs. Wright returned to work within 104 weeks of the onset of her disability, subsection 14(1) applies. Also, she does not fit within the plain meaning of subsection 14(2) because she was not receiving IRBs after the 104-week mark. Nothing in subsection 14(1) limits the duration of the employment or creates a different rule if it continues beyond 104-weeks....³

Here, as in Wright and Allstate Insurance Company of Canada, Mr. Rodrigues returned to work within the 104-week period. Mr. Rodrigues also seeks a resumption of benefits for a period or periods that occurred after the expiry of the 104-week period. I find that Mr. Rodrigues falls under section 14(1), and the fact that he worked for periods exceeding ninety days is irrelevant to his claim.

Was Mr. Rodrigues Substantially Disabled From Preforming the Essential Tasks of His Employment as a Customs Officer and of His Former Employment as a Paralegal?

Having passed this first hurdle it was still incumbent on Mr. Rodrigues to prove that he met the legal test of entitlement for IRBs. Mr. Rodrigues falls under that class of persons described by section 14(1) and he must prove that for the days set out in his Summary of Claim for Loss of Sick Days, "... as a result of the accident, he ...[was] unable to continue in the employment." He would be entitled to resume receiving benefits for time lost after he returned to work, if he met the usual eligibility test which requires him to prove that he was substantially unable to perform the essential tasks of his employment.

Mr. Rodrigues testified that he had good and bad days. On his good days, Mr. Rodrigues was able to perform the essential tasks of his employment to a satisfactory or more than satisfactory level. He had been employed continuously as a customs officer since November 1999 and has received satisfactory performance evaluations from his supervisors. Nevertheless, he also claimed that he had lost opportunities and income because of his continuing physical problems.

On bad days, his impairments from the accident of May 25, 1996 caused him swelling, instability, and extreme pain in his knee. He experienced pain in his right shoulder, resulting in problems with overhead lifting. He also had low back pain, and he suffered from insomnia and difficulties with concentrating on the job. The pain required him to take medications causing drowsiness and confusion. On such days he had to stay home, sleep, or sit and ice his knee. This had also led to depression and emotional instability and problems.

The Insurer did not contest that Mr. Rodrigues had bad days and agreed that there was no suggestion of malingering on the part of Mr. Rodrigues. In fact, the Insurer accepted that most of the absences in Mr. Rodrigues's Summary of Claim for Loss of Sick Days were due to impairments sustained from the motor vehicle accident of May 25, 1996.

Nevertheless, the Insurer argued that Mr. Rodrigues's testimony in regard to his problems as a customs officer could not be applied to a claim for entitlement to IRBs because he had to prove that he could not perform the essential tasks of his pre-accident employment as a paralegal. Alternatively, even if Mr. Rodrigues met that first test, he still would not be substantially disabled because his inability was only temporary or periodic.

The Insurer did not substantiate its argument that Mr. Rodrigues's evidence in regard to his work as a customs officer was irrelevant to this claim, but my findings below make this a moot point.

The Evidence in Regard to Mr. Rodrigues's Employment

Mr. Rodrigues and Mr. Milcic testified that the duties of a paralegal included the following tasks: carrying boxes of files, meeting clients, doing legal research, preparing legal arguments, driving, travelling to the courthouse and the Office of the Registrar, and appearing before decision makers, standing, walking, prolonged sitting, and going to people's homes and taking interviews.

As a customs officer, both Mr. Rodrigues and Ms. Andrejew testified that his duties were quite varied. There were four different functions where a customs officer could work. These functions included acting as security in a booth, processing documents, and questioning and interviewing passengers who had disembarked from an aeroplane. They also monitored passengers while seated or standing in a long hallway, collected and studied customs data cards, referred suspicious passengers to other officers, and watched for suspicious luggage. They examined transported goods, and dealt with the payment of duties and taxes. They also worked at information counters, responding to inquiries in person or on the phone.

In the recruitment position for the Customs Office that he held now, Mr. Rodrigues testified that he could sit from time to time, and that no heavy lifting was required. He worked five days on and three off but averaged thirty-seven-and-a-half hours per week. He was not required to carry boxes of files, or prepare and draft legal arguments, or appear in Court and before the Registrar. He did not have to attend at people's homes to conduct interviews.

The Medical Evidence

Mr. Rodrigues's family doctor, Dr. Peck, made the following comment about Mr. Rodrigues in his August 7, 2005 report:

He has suffered and will continue to suffer from right knee pain of fluctuating intensity. He has consulted me on numerous occasions for exacerbations of knee pain which have rendered him unable to work for one to several days at a time. Occasions when he was unable to work due to severe right knee pain include, but are not limited to, March 20, 2003, August 27-28, 2003, September 3 and 11, 2003, November 12-13, 2003, March 6-10, 2004, May 19, 2004, August 8-9, 2004, September 8, 2004, October 2, 2004, October 27 to November 9, 2004, December 23, 2004, February 28, 2005, March 8, 2005, April 1, 19 and 22, 2005 and June 22, 2005 and July 25, 2005. On these occasions he required narcotic pain medication to control the pain. On these occasions his knee has been swollen and warm with a decreased range of motion.⁴

In his letter of February 8, 2005, Dr. Peck stated that there are days on which Mr. Rodrigues's impairment "...continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged in before the accident...."⁵

Dr. Jowett's letter of January 12, 2003 stated that Mr. Rodrigues has had his "... chronic post traumatic right knee pain affect many aspects of his life.... His work absences are reasonable and correlate with significant increased [sic] in the level of pain he experiences."⁶

Dr. Ogilvie-Harris's report of October 18, 2000⁷ stated that Mr. Rodrigues's injuries were directly related to the motor vehicle accident, and that Mr. Rodrigues had sustained a serious injury to his knee that will require continuing surgical interventions in the future. He listed arthroscopy and debridement as interventions that would take place within one to two years, and cartilage grafting in ten years. By 2010, there would be a greater than 50% chance that Mr. Rodrigues would require total knee replacement.

The Insurer argued that its own medical assessments concluded that Mr. Rodrigues had not been substantially disabled from performing the essential tasks of his employment. Dr. Alcock's Psychological Report of February 14, 2002 stated that Mr. Rodrigues had no psychological disorders of any kind and that he was not psychologically disabled from performing his pre- or post-accident employment duties.⁸

The February 15, 2002 report of the orthopaedic surgeon, Dr. Saplys, had the following conclusion:

...Of more significant concern is the injury that he suffered to his right knee. He had a serious and permanent injury to his right knee secondary to the damage to the articular surface of the knee particularly in the medial femoral condyle which cannot be reversed. This is a permanent injury. His anterior cruciate ligament tear was treated with reconstruction surgery which will help stabilize this knee but not enough to prevent ongoing degeneration in the knee over time.

It is my orthopaedic opinion then that although Mr. Rodrigues is able to engage in his work as a customs inspector, he does so with pain and there will be episodes in the future where his knee may cause him such pain that he may have to miss periods of time off work....⁹

The Functional Abilities Evaluation done on February 15, 2002 had this conclusion:

...His present employment as a customs inspector is rates [sic] as limited strength required. The client may have difficulty with any task that requires him to stand or walk for long periods of time due to decreased positional tolerance; he is unable to kneel or squat and unable to perform a lift from floor level using proper lifting techniques due to decreased range of motion. Based on this evaluation, the client does not suffer from a substantial inability to perform the essential tasks of his pre-accident or present employment but does have some physical restrictions post accident as noted above.¹⁰

I found Mr. Rodrigues to be wholly credible. Both his pre and post accident employments have certain physical and mental demands which are essential to their performance. I accept his testimony that he has bad days during which his knee pain is so severe that he takes medications which make it difficult for him to concentrate, or work consistently, or require him to remain at home. He has trouble sitting or standing for prolonged periods. He still cannot weight bear on his right knee.

Based on the Insured's testimony, and the weight of the opinions in the medical reports he provided, I find that the Insured suffered a substantial inability to perform the essential tasks of his employment as a customs officer during the days he listed in his Summary of Claim for Loss of Sick Days. The evidence given in regard to his former employment as a paralegal convinces me that he would also have been substantially unable to perform the essential tasks of that position during the periods in question, had he continued in his employment as a paralegal.

Does the Inability Suffered by the Insured During the Periods Listed in His Summary of Claim for Loss of Sick Days Entitle Him to Resume Receiving IRBs?

The Insurer argued that Mr. Rodrigues's inability is temporary or periodic as it only arises during his "bad" days. As such it is insufficient to lead to a finding that he is substantially unable to perform the essential tasks of his employment.

In Bland and Allstate Insurance Company of Canada,¹¹ an arbitrator held that an insured could collect IRBs for five miscellaneous days when he was unable to work, as a result of injuries received in his accident.

...The issue is whether he is able to prove, on a balance of probabilities, that for days he did not work after March 14, 1997 it was "as a result of the accident, he... [was] unable to continue in the employment." In my view, Mr. Bland is entitled to "resume receiving benefits" for any time lost after he returned to work, if he meets the usual eligibility test, even though section 14 may be principally intended to address situations of more prolonged absence after a trial return to work.

This issue of claiming assorted days was also addressed in Lewis-Lamoureux and Zurich Insurance Company,¹² where the arbitrator made the following comment:

...While a claim for income benefits usually involves weeks, months or even years of disability, subsection 11(1) is worded broadly, providing for benefits to be paid "during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment." The use of the phrase "the period" as opposed to "the week" or some other term suggesting a set time frame leads me to conclude that benefits can be claimed for miscellaneous days or hours of work missed as long as an applicant meets the threshold set out.

Similarly, I find that Mr. Rodrigues is entitled to receive IRBs for the days listed in his Summary of Claim for Loss of Sick Days when he was unable to work because of impairments caused by his motor vehicle accident, and during which he was on leave without pay. This amounts to forty-nine-and-a-half days, at the agreed rates of IRBs, which adds up to $7,869.64. Those days for which he received payment through his sick bank are discussed in the next section of this decision.

2. Are the sick leave benefits received by the Applicant payments for loss of income received as a result of the accident under an income continuation plan, and can Jevco deduct them from the IRB payable under Part II of the Schedule pursuant to paragraph 75(1)(1) of the Schedule?

Mr. Rodrigues testified that he had been paid for some of the days he was off work through his sick bank days. He described them as days which should have been available to him for the flu, colds, or headaches, and submitted that they should not be deductible from benefits payable to him by the Insurer. Mr. Rodrigues did not provide any evidence on the number of sick days that were available to him per year, how the days were accrued or allocated, whether the sick days were available to him at the commencement of his contract, whether the days could be "banked" from year to year, or whether they were paid out to him at the end of each year if not used. No representative of his employer was called by either side to elucidate the terms of these payments, and Jevco did not elicit such information from Mr. Rodrigues on cross-examination.

Nevertheless, the evidence is clear that these amounts had been paid to Mr. Rodrigues because he had been absent from work due to illness. Based on what was before me, I find that these were indeed payments received under a sick leave plan and as such, deductible by the Insurer under section 75(1)(1) of the Schedule.

3. Is Mr. Rodrigues entitled to the payment of five reports of Dr. Ogilvie-Harris, orthopaedic surgeon, and one report of Dr. Peck, the Applicant's family doctor, claimed pursuant to section 57 of the Schedule?

The Insurer did not contest that these reports were reasonable expenses incurred by the Insured. I find that they are reasonable expenses. The Insured is entitled to their payment.

4. Is Mr. Rodrigues entitled to a special award, claimed pursuant to subsection 282(10) of the Insurance Act?

The Insured had been ordered by Arbitrator Blackman at the arbitration turned into a pre-hearing conference to particularize the details of his special award claim. The Insured did so in his letter of November 2, 2005, entered as Ex. A-13, and I have restricted myself to the grounds outlined in that letter in my examination of this portion of the Insured's claim.

The most convincing argument raised was that the Insurer unreasonably delayed or withheld the payment of IRBs for the days the Insured claimed from February 18, 2000 to November 2005. Ms. Durber, the Insurer's representative, testified that the Insurer did not accept that Mr. Rodrigues was entitled to those IRBs because the medical evidence did not substantiate his claim. The Insurer relied on the Health Impact Report,¹³ the orthopaedic surgeon's report,¹⁴ the psychological assessment,¹⁵ and the Functional Abilities Evaluation.¹⁶ None of these reports concluded that the Insured was substantially disabled from performing the essential tasks of his employment.

Ms. Durber admitted receiving the medical documentation provided by Mr. Rodrigues, which included the reports of Dr. Ogilvie-Harris, Dr. Jowett, and Dr. Peck (already discussed above). Despite the findings in those reports, Ms. Durber repeatedly maintained that no IRBs were payable because it was Jevco's position that an occasional disability did not amount to a substantial disability to perform the essential tasks of the employment.

I find that the Insurer acted unreasonably in withholding payment of IRBs for these periods. The medical documentation submitted by the Insured unequivocally described the severity of his continuing medical problems and his inability to perform the essential tasks of his employment. This documentation was detailed and convincing.

The Insurer's own medical documents echoed many of the findings in the Insured's medical reports. Both the orthopaedic assessment and the Functional Abilities Evaluation clearly outline the severity of the Insured's medical problems. I find that it was unreasonable for the Insurer to have maintained its position that a temporary or occasional disability could not amount to a substantial disability in the face of the arbitral decisions which I have already cited.

Having determined that a special award is warranted in the present case, I now turn to the quantification of that award. Applying the principles set out in Persofsky,¹⁷ I must first determine the amount of benefits unreasonably withheld. That amount has already been calculated to be $1,869.64. The next step is to calculate the maximum special award that can be awarded under the interest component of section 282(10) of the Insurance Act.

The additional interest component of section 282(10) of the Insurance Act (two per cent per month, compounded monthly) is then added to the initial amount of $7,869.64. The interest component amounts to $6,397.42. The maximum special award is 50% of the total of these two numbers or $7,133.53.

Taking into account the amount of benefits withheld, and the conduct of the Insurer, as well as the other criterion suggested in the Persofsky case, I find that a modest special award is warranted. The Insurer shall pay a lump sum special award of $2,500.00 to the Insured. No interest is payable on this amount, except as part of the enforcement process.

5. Is Jevco liable to pay Mr. Rodrigues's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

I find that Jevco is liable to pay Mr. Rodrigues's reasonable expenses in respect of this arbitration.

6. Is Mr. Rodrigues entitled to interest for the overdue payment of the benefits, pursuant to section 68 of the Schedule?

Mr. Rodrigues is entitled to interest for the overdue payment of the benefits pursuant to section 68 of the Schedule.

EXPENSES:

Mr. Rodrigues is entitled to the reasonable expenses in respect of this arbitration. If the parties are unable to agree on this amount they may seek an assessment of expenses as set out in the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

September 27, 2006

Edward Lee Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 155

FSCO A04-001146

BETWEEN:

FRANK M. RODRIGUES

Applicant

and

JEVCO 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. Mr. Rodrigues is entitled to receive a weekly income replacement benefit for the dates set out in the Summary of Claim for Loss of Sick Days, when he was on leave without pay.

2. Jevco can deduct the sick leave benefits received by the Applicant from the income replacement benefits payable.

I. Mr. Rodrigues is entitled to the payment of five reports of Dr. Ogilvie-Harris, orthopaedic surgeon, and one report of Dr. Peck, the Applicant's family doctor.

II. Mr. Rodrigues is entitled to a special award of $2,500.00.

III. Jevco is liable to pay Mr. Rodrigues's reasonable expenses in respect of the arbitration.

IV. Mr. Rodrigues is entitled to interest for the overdue payment of the benefits.

September 27, 2006

Edward Lee Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2Wright and Allstate Insurance Company of Canada, (FSCO A97-001633, August 31, 1998) upheld on appeal in Allstate Insurance Company of Canada and Wright, (FSCO P98-00051, January 18, 1999)
3. 3Allstate Insurance Company of Canada and Wright, (FSCO P98-00051, January 18, 1999 appeal) at page 7
4. 4Report of Dr. Jonathan Peck of August 7, 2005, Ex. A-1, Tab 29 at page 12
5. 5Letter of Dr. Peck of February 8, 2005, Ex. A-1, Tab 27
6. 6Letter of Dr. Jowett of January 12, 2003, Ex. A-1, Tab 21
7. 7Dr. Ogilvie-Harris, Report, October 18, 2000, Ex. A-1, Tab 14
8. 8Dr. Alcock, Psychological Report, February 14, 2002, Ex. R-1, Tab 9
9. 9Dr. Saplys, Orthopaedic Assessment, February 15, 2002, Ex. A-1, Tab 19
10. 10Functional Abilities Evaluation, February 15, 2002, Ex. R-1, Tab 10
11. 11Functional Abilities Evaluation, February 15, 2002, Ex. R-1, Tab 10
12. 12Lewis-Lamoureux and Zurich Insurance Company, (FSCO A98-000649, May 26, 1999) at page 11
13. 13Ex. R-1 at Tab 7
14. 14Ex. R-1 at Tab 8
15. 15Ex. R-1 at Tab 9
16. 16Ex. R-1 at Tab 10
17. 17Liberty Mutual Insurance Company and Persofsky et al.,(FSCO P00-00041, January 31, 2003 appeal)