Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 22

FSCO A03-000181

BETWEEN:

ROZANA LEE By Her Guardian of Property, WAI CHING LEE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Denise Ashby

Heard:

At the offices of the Financial Services Commission of Ontario in Toronto on January 10, 11, 12, 13 and 14, 2005.

Initial written submissions were concluded on May 24, 2005.

The hearing was reopened on December 20, 2005 and written submissions were concluded on January 13, 2006.

Appearances:

Andrew M. Lee for Mrs. Lee

Todd J. McCarthy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Rozana Lee, (Mrs. Lee)¹ was involved in a motor vehicle accident on August 21, 2000. She applied for and was denied statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.²The parties were unable to resolve their disputes through mediation, and Mrs. Lee 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 agreed to at the hearing are:

1. Did Mrs. Lee suffer a catastrophic impairment as defined in section 2(1)(g) of the Schedule?

2. Is Mrs. Lee is entitled to receive a post-104 week attendant care benefit pursuant to section 16 of the Schedule?

If yes, what is the monthly rate of the attendant care benefit?

3. Is Mrs. Lee entitled to receive an attendant care benefit at the monthly rate of $3,000.00 for the period June 15, 2002 to August 21, 2002?

4. Is Mrs. Lee entitled to receive a post-104 week housekeeping benefit at the weekly rate of $100.00 pursuant to section 22 of the Schedule?

5. What is the amount of the income replacement benefit Mrs. Lee is entitled to receive from September 1, 2001 to October 6, 2001 pursuant to the Schedule?

6. Is Mrs. Lee entitled to receive an income replacement benefit at the weekly rate of $290.20 commencing August 22, 2002 and ongoing, pursuant to section 5(2)(b) of the Schedule?³

7. Is State Farm entitled to repayment, in whole or in part, of payments advanced on a without prejudice basis totalling $30,196.95?

8. Is State Farm liable to pay Mrs. Lee's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

9. Is Mrs. Lee liable to pay State Farm's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

10. Is Mrs. Lee entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

11. Is State Farm entitled to interest on any amount advanced to Mrs. Lee on a without prejudice basis?

12. Is Mrs. Lee entitled to a Special Award pursuant to 282(10) of the Insurance Act?

Result:

1. Mrs. Lee is deemed to have been catastrophically impaired from April 1, 2003 and ongoing as defined in section 2(1)(g) of the Schedule.

2. Mrs. Lee is entitled to a post-104 week attendant care benefit commencing April 1, 2003 at the monthly rate of $5,226.06 and ongoing payable pursuant to section 16 of the Schedule.

3. Mrs. Lee is entitled to receive an attendant care benefit at the monthly rate of $3,000.00 for the period June 15, 2002 to August 21, 2002.

4. Mrs. Lee is entitled to receive a post-104 week housekeeping benefit at the weekly rate of $100.00 from April 1, 2003 and ongoing pursuant to section 22 of the Schedule.

5. Mrs. Lee is entitled to receive an income replacement benefit at the weekly rate of $400.00 from September 1, 2001 to October 6, 2001 pursuant to the Schedule.

6. Mrs. Lee is entitled to receive an income replacement benefit at the weekly rate of $290.20 from August 22, 2002 and ongoing, pursuant to section 5(2)(b) of the Schedule.

7. State Farm is not entitled to repayment, in whole or in part, of payments advanced on a without prejudice basis totalling $30,196.95.

8. State Farm is liable to pay Mrs. Lee's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

9. Mrs. Lee is not liable to pay State Farm's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

10. Mrs. Lee is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

11. State Farm is not entitled to interest on payments advanced on a without prejudice basis.

12. Mrs. Lee withdrew her claim to a Special Award pursuant to section 282(10) of the Insurance Act at the reopening of the hearing held December 20, 2005 and is not entitled to a Special Award.

Introduction:

On August 21, 2000, Mrs. Lee was a passenger in a vehicle being driven by her husband, Mr. James Lee. Mr. Lee testified that he was travelling at approximately 20 to 30 km per hour when he struck the car in front of him. Mrs. Lee was taken to hospital by ambulance and was discharged to Mr. Lee's care that day.

Mrs. Lee claims that the accident resulted in or materially contributed to her catastrophic impairment. As a consequence, she requires post-104 week attendant care and housekeeping benefits pursuant to the provisions of the Schedule. Further, Mrs. Lee claims that as a result of her impairment she has been completely unable to engage in any employment and is therefore entitled to income replacement benefits as provided in the Schedule.

State Farm denies that the motor vehicle accident caused or materially contributed to Mrs. Lee's condition.

Chronology of the Arbitration Hearing Proceedings:

The arbitration in this matter initially commenced in November 2003 and concluded on January 13, 2006. As the hearing was held over an unusually long period, the following chronology is provided to give a context to the protracted proceedings:

• On June 2, 2003, a pre-hearing was held which set the hearing date for November 10, 2003.

• On November 10, 2003 the arbitration hearing was adjourned by the previous hearing arbitrator as set out in her letter dated November 10, 2003.

• On November 27, 2003, the parties made submissions with respect to the appointment of a guardian of personal property and the production of Dr. R. I. Hershberg's Supplementary Report. The hearing arbitrator ordered the production of the report subject to any submissions that MDAC (the DAC facility which conducted the Catastrophic Impairment DAC) might make.

• On December 19, 2003, there was a resumption of pre-hearing. On consent, there was a further adjournment of the hearing to permit time for the appointment of a guardian of personal property.

• On March 24, 2004, the previous hearing arbitrator issued an order pursuant to Rule 10.2 of the Dispute Resolution Practice Code, 4th Edition, May 31, 2001, (DRPC) that the hearing was adjourned until a guardian of property could be appointed pursuant to the Substitute Decisions Act, 1992. As a consequence there was a further adjournment to June 2004.

• In June 2004, a guardian had not been appointed. A further adjournment was granted to January 10, 2005.

• On November 29, 2004, a further resumption of pre-hearing was held by teleconference. The parties agreed to add Income Replacement Benefits as an issue to be determined at the hearing.

• On January 4, 2005, the Order of Mr. Justice D. Stinson appointing Mrs. Wai Ching Lee as Mrs. Lee's guardian of property was filed with the Commission.

• On January 10, 2005, the previous hearing arbitrator heard the parties' submissions in respect of her withdrawal as the hearing arbitrator and issued an order removing herself as the hearing arbitrator. The hearing continued before me.

• On January 14, 2005 the oral portion of the hearing concluded.

• On May 24, 2005, initial written submissions were concluded.

• On December 20, 2005, the hearing was reopened to hear submissions in respect of Mrs. Lee's claim for a Special Award and recent case law. Mrs. Lee withdrew her claim for a Special Award.

• On January 13, 2006, further written submissions were concluded.

Preliminary Procedural Orders:

Withdrawal of the Hearing Arbitrator:

On January 10, 2005, the previous hearing arbitrator heard submissions respecting her inability to continue to hear the matter due to her appointment as Senior Arbitrator. She determined that she was unable to continue as the hearing arbitrator pursuant to Rule 71 of the DRPC and sections 4.4 and 25 of the Statutory Powers and Procedure Act. The hearing continued before me.

Admission of Dr. Hershberg's Supplementary Report:

Mrs. Lee sought an order disallowing the admission of Dr. Hershberg's Supplementary Report as evidence at the hearing. This was the same report which was the subject of the previous hearing arbitrator's order dated November 27, 2003. State Farm disputed the reopening of the issue, arguing that the order of the previous hearing arbitrator should bind the present hearing arbitrator. As well, State Farm argued that the Supplementary Report was admissible.

I ruled that I had authority to consider the issue of the admission of Dr. Hershberg's Supplementary Report as evidence before me pursuant to the DRPC. Although I ruled that I was not bound by the previous arbitrator's order, I determined that the Supplementary Report would be admitted.⁴

State Farm submitted that Dr. van Reekum's diagnosis of a traumatic brain injury was new evidence. Therefore, it had properly sought further clarification from Dr. Hershberg and his Supplementary Report was properly admitted by the previous hearing arbitrator. I determined that Mrs. Lee offered no compelling reason to exclude the Supplementary Report and concluded to do so, in these unusual circumstances, would prejudice State Farm.

EVIDENCE and ANALYSIS:

Witnesses:

Four medical witnesses gave evidence on behalf of Mrs. Lee: Dr. Berwin Yip, Mrs. Lee's family physician since 1987; Dr. David Shulman, who has treated Mrs. Lee for pain management since May 9, 2001⁵; Dr. Zul Wallani, her treating psychiatrist since August 22, 2001 and Dr. Robert van Reekum, who conducted an assessment on behalf of Mrs. Lee. Dr. Richard Hershberg, who conducted a CAT DAC assessment, was called by State Farm. Both Dr. Hershberg and Dr. van Reekum were qualified as experts in psychiatry and neuropsychiatry. Dr. Wallani was qualified as an expert in adult psychiatry and Dr. Shulman as an expert in anaesthesia and chronic pain management. I ruled that the complexity of the issues warranted an exception to Rule 42.4 of the DRPC thereby permitting Mrs. Lee to call more than two expert witnesses.

Mrs. Lee's husband, James Lee, her mother-in-law and guardian of property, Wai Ching Lee, and her daughter, Shannon Siewnarine, each testified at the hearing. Mr. Lee's evidence was given sensitively and dispassionately. Mrs. Wai Ching Lee's testimony was a warm and admiring testament to her daughter-in-law's career aspirations and the work she did to achieve her goals. Mrs. Wai Ching Lee testified to the intimate role she played in her daughter-in-law's family both before and after the accident. Ms. Siewnarine's testimony was direct, succinct and compelling, notwithstanding her apparent nervousness.

As well, Mrs. Lee's former work colleagues, Deodat Dahanraj and Alexander Figueiredo and her friend, Felicia Varuna, were witnesses. They each testified in a candid, open and forthright manner. I found the family and other lay witnesses to be credible.

Mrs. Lee was called as a witness. She was unable to express an understanding of the purpose of the proceeding or the meaning of an oath. However, on consent, counsel for State Farm addressed questions to her. He did so in an impressively courteous and professional manner. Mrs. Lee had no meaningful response.⁶ Therefore, I have determined that Mrs. Lee continued to lack capacity and therefore no weight should be attributed to her evidence.

Catastrophic Impairment:

Mrs. Lee must establish, on a balance of probabilities, that she developed a mental or behavioural disorder which meets the criteria of a class 4 or class 5 impairment in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (the Guides) pursuant to subsection 2(1.1)(g) of the Schedule. That is, the accident caused or materially contributed to the development of the disorder and the disorder has stabilized as required by subsection 2(2) of the Schedule. Stabilization is proven by either providing evidence that her health practitioner stated in writing that her condition has stabilized and is not likely to improve with treatment or that three years have elapsed since the accident.

Causation:

The fundamental dispute between Mrs. Lee and State Farm is causation. State Farm relies on Dr. Hershberg's opinion that Mrs. Lee's condition was a result of many pre-existing factors and her condition was not temporally related to the accident which occurred on August 21, 2000.

In his initial report, Dr. Hershberg stated that Mrs. Lee had a "longer standing passive dependent personality style."⁷ Later he states the following opinion:

While there was little formal documentation of prior psychiatric impairment, including an acknowledgement from her husband of 'only a couple of visits to a pyschiatrist 5 years ago as a result of arguments with her sister', there is certainly strong indication from review of the family doctor's notes of a pre-existing chronic pain disorder. In the absence of any demonstrable organic pathology accounting for her years of pain complaints, it is quite likely that psychological factors were playing a major role in maintaining and perpetuating this disorder, with narcotic drug abuse or at least dependence likely also being a factor, given the years of reliance on Tylenol #3s."⁸

On November 7, 2003, Dr. Hershberg submitted an addendum report in which he critiques Dr. van Reekum's assessment and opinion. Dr. Hershberg concluded:

In conclusion Dr. van Reekum failed to account for more than a questionable temporal relationship with Ms. Lee's 2000 MVA and current pattern of highly regressive and dissociative behaviour, that is no longer reflective of even a Major Depressive Disorder. Given her ability to return to work two weeks post MVA and then return to a modified job in February 2001 until let go for "lack of concentration," that even Ms. Lee attributed to the impact of her medication, it is more likely that subsequent development of a serious mood disorder and/or dissociative state is multi-factorial in its aetiology and represents previous passive dependant personality "traits", longstanding pain problems, marital conflict (and ?abuse), financial and vocational issues.⁹

Dr. Hershberg’s opinion that Mrs. Lee’s mental disorder is either unrelated or minimally related to the motor vehicle accident is based on his belief that prior to the accident Mrs. Lee exhibited passive dependent personality traits, suffered from a pain disorder, substance abuse or dependence and that the development of her disorder is temporally unrelated to the accident.

Pre-Accident Social, Employment and Medical History:

Mrs. Wai Ching Lee testified that after Mrs. Rozana Lee married her son, they lived in her home for approximately four or five years. Throughout the marriage, Mrs. Wai Ching Lee has had an opportunity to observe Mrs. Lee on an almost daily basis because they were living in the same home. Also, Mrs. Wai Ching Lee cared for her granddaughter, Candice, and has cared for Mrs. Lee following the motor vehicle accident.

Mrs. Wai Ching Lee testified that she left her job to care for Candice about 10 years ago because Mrs. Lee wanted to return to school:

She is very hard working...After, two months after giving birth to her kid, while others are still staying home resting, she went back to school. She is very interested in studying. She always wanted to have more education because she wants to get promotion to higher positions. That's why when I see her having to work so hard, I decided to quit my job to look after her kid so that she can go to work.¹⁰

Mr. Lee testified that he supported his wife's return to school.¹¹ The issue of further education had been discussed for some time and finally Mrs. Lee "put her foot down"¹² and investigated college level programs.

Mrs. Lee's family,¹³ a friend¹⁴ and co-workers¹⁵ described the pre-accident Mrs. Lee as a happy, hardworking woman who was devoted to her family and committed to her career.

Mr. G. Irwin, president of the firm where Mrs. Lee worked, wrote:

In August 2000 she was involved in a traffic accident. The complications of that accident prevented her from returning to her employment with our firm.

During her tenure at Irwin Industrial, Rose...was a punctual, hard working and efficient employee who got along well with her coworkers.¹⁶

Based on the evidence of Mrs. Lee's family, friend, co-worker and employment file, I find that prior to the accident Mrs. Lee was a socially active, hardworking, assertive wife and mother who fell well within the normal parameters of daily functioning.

Dr. Yip testified that for a number of years he treated Mrs. Lee for recurring headache and backache with Tylenol 2 or 3. He would prescribe 30 tablets. This equates to a four-day supply if taken at the maximum adult daily dosage set out in the Compendium of Pharmaceuticals and Specialties. In 1997, Mrs. Lee reported to him that she would take about 1 or 2 tablets a day as needed to relieve her symptoms.¹⁷ In each of the years between 1996 and 1999, Dr. Yip gave Mrs. Lee approximately 10 prescriptions of 30 tablets.

As well, Mrs. Lee sometimes complained of chest and flank pain.¹⁸ Dr. Yip had the back pain and headaches investigated.¹⁹ In 1998, he referred Mrs. Lee for a cardiac assessment of her chest pain.²⁰ Having investigated her complaints he continued to treat her pain with Tylenol 2 and 3. Dr. Yip notes these persistent complaints of pain in his report dated April 8, 2003 and states: "She has always worked and had no disability that I am aware of in the last 14 years."²¹

Dr. Yip's clinical notes and records indicate that in 1999 there were four prescriptions for Tylenol. None were given in the months from June to November 1999. Between January and August 2000 there were two prescriptions of 30 tablets of Tylenol 3 in February and April.²²

I find that for the 12-month period preceding the accident Mrs. Lee had received three prescriptions for 30 tablets of Tylenol 3, a decrease from previous years. Further, I find that there was no evidence that Mrs. Lee had attempted to obtain prescriptions from other doctors or had sought increased amounts of medication from Dr. Yip.

Dr. Yip and Mr. Lee both testified that they believed Mrs. Lee might have attended therapy sessions with her mother and sister regarding problems in the extended family. Dr. Yip testified that prior to the accident he had no record of Mrs. Lee suffering from psychological dysfunction.²³ Mr. Lee testified that he and his wife enjoyed a happy marriage prior to the accident. Any problems they had were the usual problems experienced by busy working parents.²⁴ I find that prior to the accident Mrs. Lee had a functioning marriage and there were no indicia of clinically significant psychological dysfunction.

Mr. Lee testified that since leaving his mother's house he and his wife have lived in two homes. Their present home was purchased in 2000. It is larger than the first house they bought in February 1996. Both homes were within walking distance of his parents' houses. Mr. Lee testified that he and his wife were able to comfortably carry the additional cost of their new home. It did not present a financial burden given their two incomes and the equity they had applied from their first house.²⁵ I accept Mr. Lee's testimony as an honest and credible description of his family's pre-accident financial circumstances. I find that there is no evidence that Mr. and Mrs. Lee were experiencing significant financial stress.

Dr. Hershberg agreed that the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM IV) is the standard by which psychiatrists diagnose mental disorders.

Following a review of the DSM IV diagnostic criteria for pain disorder,²⁶ Dr. Hershberg agreed that Mrs. Lee did not meet those criteria pre-accident.²⁷

Dr. Hershberg's assessment reports and testimony significantly rely on his opinion that Mrs. Lee had a pre-existing dependence or abuse of narcotic medications. The following are the DSM IV criteria for substance dependence:

A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1) tolerance, as defined by either of the following:

(a) a need for markedly increased amounts of the substance to achieve intoxication or desired effect

(b) markedly diminished effect with continued use of the same amount of the substance

(2) withdrawal, as manifested by either of the following:

(a) the characteristic withdrawal syndrome for the substance (refer to Criteria A and B of the criteria sets for Withdrawal from the specific substances)

(b) the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms

(3) the substance is often taken in larger amounts or over a longer period than was intended

(4) there is persistent desire or unsuccessful efforts to cut down or control substance use

(5) a great deal of time is spent in activities necessary to obtain the substance (e.g., visiting multiple doctors or driving long distances), use the substance (e.g., chain-smoking), or recover from its effects

(6) important social, occupational, or recreational activities are given up or reduced because of substance use

(7) the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worse by alcohol consumption)²⁸

The DSM IV criteria for substance abuse are:

A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:

(1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household)

(2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)

(3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct)

(4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)²⁹

As well, in order to be found to have a substance abuse disorder, the symptoms must not have met the criteria for Substance Dependence.³⁰ Both sets of criteria require the assessment of substance related behaviour within a 12-month period.

Dr. van Reekum's testimony was an extensive critique of Dr. Hershberg's opinion. Dr. van Reekum testified that Dr. Hershberg's diagnosis of passive dependent personality disorder or trait "does not exist"³¹ and supported his opinion with a review of the DSM IV-TR³² criteria for dependent personality disorder on the record. The following is the general description which was read into the record.

Pervasive and excessive need to be taken care of that leads to submissive and clinging behaviour and fears of separation. This must begin by early adulthood and be present in a variety of contexts as indicated by five or more of the following.³³

In his opinion, having reviewed the pre-accident medical and employment history together with the history that Mr. Lee had given him, Mrs. Lee did not exhibit 5 of the 8 criteria required to make the diagnosis of dependent personality disorder. Dr. van Reekum also testified that he did not agree with Dr. Hershberg's opinion that the accident gave Mrs. Lee the opportunity to become a care recipient rather than a care provider. Dr. van Reekum testified he saw no evidence upon which to base such a hypothesis.³⁴

From 1996 to August 2000 there is no evidence that in any 12-month period Mrs. Lee sought more frequent prescriptions or increased dosages or numbers of tablets. There is no evidence to suggest that Mrs. Lee exhibited symptoms of social, emotional or vocational dysfunction in the period from 1996 to August 2000. There is no evidence that she had restrictions on her driving, or had recurrent legal problems. There is no evidence to support a pre-accident history of either substance dependence or abuse that would meet the criteria set out above. Therefore, I find that Mrs. Lee did not have a substance abuse or dependence disorder prior to the accident. Similarly, there is no evidence that would support a diagnosis of dependent personality disorder. Therefore, I prefer the opinion of Dr. van Reekum and find that Mrs. Lee did not have a pre-existing dependent personality disorder.

Post-Accident Social, Employment and Medical History:

On August 21, 2000, Mrs. Lee was bent over looking for something in her purse when the impact occurred.³⁵ Mr. Lee testified that in the five to ten minutes immediately following the accident his wife was unresponsive to his inquiries about her health. She was taken by ambulance to hospital and was discharged home that day. Mrs. Lee complained of pain and stiffness. She was unable to recall the accident or how she got to the hospital and asked him for details.³⁶

Mr. and Mrs. Lee's daughter, Shannon Siewnarine, testified that in the weeks immediately following the accident, Mrs. Lee complained of dizziness, headaches, nightmares and anxiety when in the car. Ms. Siewnarine testified that her mother would awake screaming from nightmares. Ms. Siewnarine, who described her bedroom as being the farthest from her parents' bedroom, was awakened by her mother's screams. In the years since the accident the family's social activities have become infrequent as a consequence of her mother's condition.³⁷

Mr. Lee's evidence chronicled a steady decline in Mrs. Lee's health which began immediately following the accident and continued to the summer of 2002. There were brief periods of apparent improvement between August and November 2000 but thereafter it was essentially an unremitting decline to the person described by Dr. Tafler, an Attendant Care DAC assessor, in her September 2002 report, as follows:

The claimant experienced an Adjustment Disorder with Anxiety and Depression that eventually fulfilled the criteria for a Major Depressive Disorder, chronic, with sadness, psychomotor retardation, anhedonia, poor sleep, concentration, and acute suicidality. It is possible psychotic features (mood congruent) were present and not identified or treated. Psychotic features now predominate, with disorganized catatonic behaviour, incoherent speech and probably delusions and hallucinations. She has had significant social and occupational dysfunction.³⁸

On August 28, 2000, an In-home Assessment was conducted by Work Wellness. The assessor reported that Mrs. Lee complained of headaches, low back pain, dizziness and decreased appetite due to nausea.³⁹ On the succeeding follow-up visit, Mrs. Lee made similar complaints of pain and had to discontinue the assessment because she felt "groggy and fatigued from the medication."⁴⁰

On September 6, 2000, an Ergonomic Worksite Assessment was conducted at Mrs. Lee's workplace. The assessor was advised that the company could not provide modified duties or a gradual return to work program.⁴¹ On October 30, 2000, Mrs. Lee returned to full-time work. At a follow-up to the Work Site Assessment, the assessor noted that Mrs. Lee reported that she felt tired and drained at the end of her shift.⁴² On November 15, 2000, Mrs. Lee reported to the assessor that she had worked three days her second week back.⁴³

Mrs. Lee's employment file reflects that she made several attempts to return to work between October 2000 and June 2001. The employer gave Mrs. Lee flexible hours to accommodate medical appointments and modified duties. When her medical condition prevented her from fulfilling the essential duties of her employment as a quality control inspector, Mrs. Lee was transferred to a trainee position as a junior administrator in the accounting department.⁴⁴

Her employer's letter dated March 19, 2003 states that Mrs. Lee was employed by the firm from September 3, 1996 and in their opinion it was "complications" of the accident which prevented her return to work.⁴⁵ A further letter from the employer, dated March 25, 2003, seeks to correct errors in Dr. Hershberg's report. The letter provides:

...Within the excerpt is the line "Ms Lee was subsequently let go from her place of employment after a period of emotional discontrol when she apparently threw items about the lab". This line is inaccurate on several fronts. To my knowledge Ms. Lee never threw things at her place of employment. During the period of time mentioned she was working directly for me in the accounting department and not the QA lab. Ms Lee was never let go from her employment from Irwin. We were cooperating with her in her return to work when she became hospitalized due to her condition. She applied for and received short term and long-term disability benefits through our benefits plan. Rose's effort at returning to work was exemplary, unfortunately from my observations the pain was too much for her.⁴⁶

Dr. Yip referred Mrs. Lee to a physiatrist, Dr. J. Lo, in September 2000. He subsequently referred Mrs. Lee to Dr. Shulman for pain management and possibly for facet joint nerve blocks.⁴⁷ Dr. Lo reported that Mrs. Lee described constant neck pain, fatigue, nausea with regurgitation without vomiting, low back, left buttock pain and sensation that her left arm is weak. As well, she described anxiety when driving or in a car. He diagnosed whiplash associated disorder.⁴⁸

Dr. Shulman has treated Mrs. Lee for pain management since May 2001. He testified that he diagnosed Mrs. Lee as having fibromyalgia, chronic whip lash causing neck-pain generated headaches and other disorders associated with chronic pain.⁴⁹ Dr. Shulman initially prescribed codeine contin for pain relief and replaced it with long-acting methadone. He testified that he also prescribed codeine to deal with break through pain. As well, Dr. Shulman administered nerve blocks and botox injections. It was Dr. Shulman's opinion that the medication made the pain manageable and reduced the need for narcotic medication.⁵⁰ Dr. Shulman reiterated in his testimony his opinion set out in his reporting letter dated April 4, 2003:

It is clear [to] me that the sequence of events is acute pain leading to chronic pain, chronic pain syndrome and then to her psychiatric syndrome. The temporal relationship of these progressive illnesses points to the causal role of the motor vehicle accident in the genesis of the subsequent syndromes.⁵¹

Dr. Wallani has been Mrs. Lee's primary psychiatrist since August 2001. Dr. Wallani testified that he diagnosed Mrs. Lee as having a major depression, possibly traumatic stress disorder and chronic pain.⁵² The possibility of traumatic stress disorder was considered.⁵³ In his report dated July 22, 2003, Dr. Wallani expressed his opinion that: "the accident is causally related to first her physical injuries, subsequently post traumatic stress disorder, and gradually deterioration in her personality and as a final attempt to cope with life, a regression into a childhood state."⁵⁴

On the basis of the testimony of Mr. Lee and Ms. Siewnarine, the evidence of Mrs. Lee's treating physicians, the other medical assessments and employment file, I find that there is an identifiable chronological progression from the accident on August 21, 2000 to the regressed state described by Dr. Tafler. Therefore, I find the accident is temporally connected to Mrs. Lee's regressed state.

Dr. van Reekum testified that he believed Mrs. Lee showed symptoms of mild traumatic brain injury (TBI).⁵⁵ It was his opinion that the TBI probably resulted in a deterioration of the brain which led to a major depression. However, his opinion could only be established post-mortem which was the reason he qualified his opinion.⁵⁶ He agreed with Dr. Wallani and other doctors who assessed Mrs. Lee that there were indicators of post traumatic stress disorder. However, because Mrs. Lee was unable to meaningfully communicate with Dr. van Reekum during his assessment, he could not make such a diagnosis. Dr. van Reekum supported the opinions of Dr. Shulman and Dr. Wallani that the chronic pain disorder which developed post-accident caused the depression. He testified that TBI and chronic pain could alone or together lead to a major depression.⁵⁷ In Dr. van Reekum's opinion, the accident caused Mrs. Lee's disorder.⁵⁸

Conclusion:

The issue of causation has been considered by many FSCO arbitrators. One of the most recent cases is McMichael and Belair Insurance Company Inc.⁵⁹ which applied the test in Correia and TTC Insurance Company Limited⁶⁰ and found that the accident materially or significantly contributed to Mr. McMichael's cocaine addiction, the basis for his claim for benefits pursuant to 2(1.1)(g) of the Schedule. The significant or material contribution test was also applied in the case of Monks v. ING Insurance Co. of Canada.⁶¹ It is now well settled that the test to be applied in the absence of a direct causal connection is whether the accident significantly or materially contributed to Mrs. Lee's impairment.

In McMichael, Mr. McMichael had a history of cocaine use. Following a motor vehicle accident he became addicted. The arbitrator held that the pre-accident use of cocaine was not a significant pre-existing factor but rather it was the accident which materially and substantially contributed to Mr. McMichael's post-accident addiction. State Farm submits that McMichael unreasonably expands the material contribution test so that if an addiction developed following the accident, the accident caused the addiction.

In the case before me, the medical evidence, both oral and documentary, is replete with diagnoses and differential diagnoses ranging from chronic pain, major depression, to traumatic stress disorder and traumatic brain injury. Notwithstanding the array of diagnoses there is universal agreement that Mrs. Lee has regressed to a child like state. Did the accident cause the regression?

Dr. Hershberg's opinion that the accident did not cause and did not materially contribute to Mrs. Lee's post-accident condition stands alone amongst the numerous health practitioners who assessed her. I accept State Farm's submission that Dr. Hershberg's opinion should be considered in light of the facts and assumptions the report is based on and should not be disregarded merely because he stands alone. While I accept this premise, in order to accept Dr. Hershberg's opinion to the exclusion of the weight of contrary medical evidence, it must withstand close scrutiny. It does not.

Dr. Hershberg bases his opinion on pre-existing marital discord together with financial and vocational stress. None of these factors were significantly present in Mrs. Lee's life prior to the accident.

Dr. Hershberg's report bases his opinion on a pre-existing chronic pain disorder. However, he admitted in testimony Mrs. Lee's history would not support such a diagnosis pre-accident.

Dr. Hershberg opined that Mrs. Lee had a pre-existing dependence on prescription medications. A review of the DSM IV criteria for dependence and abuse leads to the conclusion Mrs. Lee does not meet those criteria either pre- or post-accident.

In his supplementary report, Dr. Hershberg opined that Mrs. Lee had pre-existing passive dependent personality "traits," a condition unrecognized in the DSM IV. However, it does set out criteria for a dependent personality disorder. I prefer and accept Dr. van Reekum's opinion that Mrs. Lee did not have a dependent personality disorder either before or after the accident.

Dr. Hershberg's opinion is based on inaccurate facts, unsupportable diagnoses and makes reference to conditions which are not accepted psychiatric disorders. His reports and evidence in respect of his opinion are therefore fatally flawed. I therefore prefer and accept the opinions of Mrs. Lee's treating doctors, Dr. Yip, Dr. Shulman and Dr. Wallani and the assessment of Dr. van Reekum that the accident was the cause of Mrs. Lee's post-accident condition.

State Farm has submitted that Mrs. Lee's post-accident depression and subsequent regression were caused by her loss of status at work. On the basis of the correspondence from the employer set out above, the other employment records, the evidence of Mrs. Lee's family and work colleagues, I find that the changes in Mrs. Lee's employment status were caused by injuries sustained in the accident.

I find that the totality of the evidence leads to the conclusion that the accident caused Mrs. Lee's regressed state. Were it to be found that the accident was not the direct cause of Mrs. Lee's regressed state then I would find that the overwhelming preponderance of the evidence leads to the conclusion that the accident materially and substantially contributed to her regressed state.

Impairment Criteria:

The Guides assesses severity of impairment due to mental or behavioural disorder in four areas: activities of daily living; social functioning; concentration and adaptation. Each area is assessed for level of impairment. Class 1 denotes no impairment. Class 4 equates with an impairment in which useful function is significantly impeded. Class 5 precludes useful function.⁶²Dr. Hershberg,⁶³ Dr. Wallani⁶⁴ and Dr. van Reekum⁶⁵ were all of the opinion that Mrs. Lee's mental or behavioural disorder met the Guides' criteria of both a class 4 and 5 impairment. I accept their opinions and find that Mrs. Lee developed a mental or behavioural disorder pursuant to subsection 2(1.1)(g) of the Schedule as a result of the accident.

Stabilization Criteria:

On January 6, 2003, Dr. Yip completed an OCF-19/59 Application for Determination of Catastrophic Impairment. In a note to the Catastrophic DAC assessment centre dated January 5, 2003, Dr. Yip expressed the opinion that Mrs. Lee: "is stable in the sense her psychological condition is not likely to change in the next six months."⁶⁶ Dr. Yip does not express an opinion that Mrs. Lee's condition has stabilized and is not likely to improve with treatment. Therefore, I find his note of January 5, 2003 does not meet the test set out in subsection 2(2)(a) of the Schedule.

Dr. Wallani, in his report of April 1, 2003, states: "...probably it is going to be a very long time before she is able to return to any normal semblance of life in coping, if it ever happens."⁶⁷I interpret this written statement as meaning that Mrs. Lee's condition has stabilized and is not likely to improve with treatment prior to the third anniversary of the accident, August 21, 2000. I therefore find that Mrs. Lee is deemed to have been catastrophically impaired from April 1, 2003 onward.

Attendant Care Benefits:

The relevant sections of the Schedule to Mrs. Lee's claim for an attendant care benefit are 16, 18, 19 and 39.

Subsection 16(2)(a) requires the insurer to pay an insured who sustains an impairment all reasonable and necessary expenses incurred by or on behalf of the insured for the services provided by an aide or attendant. The monthly amount payable by the insurer is determined in accordance with a Form 1.⁶⁸ The amount payable, in respect of accidents which occurred before October 1, 2003, is limited to $3,000.00 monthly, for a non-catastrophically impaired person and to $6,000.00 monthly for a catastrophically impaired person.⁶⁹

Subsection 18(2) provides that the attendant care benefit is limited to the period of 104 weeks post-accident for non-catastrophically impaired persons. Catastrophically impaired persons are not restricted to the 104-week benefit period pursuant to subsection 18(3) but the claim for attendant care cannot exceed $1,000,000.00 for any one accident pursuant to section 19(2).

On April 1, 2002, Mr. Lee signed an Assessment of Attendant Care Needs (Form 1). On April 27, 2002, Dr. D. Shulman signed a Certificate for Attendant Care certifying that the care set out in the Form 1 was reasonable and necessary. The Form 1 assessed a monthly attendant care benefit of $9,888.28.⁷⁰

On June 17, 2002, Mr. Lee submitted a claim for $35,855.00 in attendant care expenses incurred on Mrs. Lee's behalf for the period June 21, 2001 to June 14, 2002. State Farm denied Mrs. Lee's claim for attendant care on June 20, 2002. This claim was subsequently paid on November 4, 2002.

On July 15, 2002, a registered occupational therapist with Rehabilitation Management Inc. completed a further Form 1 which assessed Mrs. Lee's monthly attendant care benefit at $2,965.87.⁷¹ It was submitted to State Farm with a covering letter dated July 24, 2002.⁷²

On August 15, 2002, a Form 1 was completed by North York Rehab Centre as part of an Attendant Care DAC. It assessed the attendant care benefit at the monthly rate of $5,226.06. The DAC assessment report is dated September 30, 2002.

Section 39 of the Schedule sets out the procedure for claiming an attendant care benefit. Mr. Lee is not a health professional and therefore the Form 1 he signed does not meet the requirements of subsection 39(1)(b) of the Schedule, a defect which cannot be cured by a Certificate for Attendant Care signed by a designated health professional. Therefore, I find that State Farm did not have an obligation to accept Mr. Lee's Form 1. I infer from the timing of the Attendant Care DAC that it was triggered by Mr. Lee's Form 1. I also infer that the November payment of Mr. Lee's attendant care claim was a consequence of State Farm's receipt of the DAC report dated September 30, 2002. It thereby accepted the DAC finding that Mrs. Lee was entitled to an attendant care benefit which must include the period June 15, 2002 to August 21, 2002. State Farm waived the strict construction of the provisions of section 39 by paying Mrs. Lee's attendant care claim at the non-catastrophic monthly rate of $3,000.00 to June 15, 2002. Therefore, I find Mrs. Lee is entitled to an attendant care benefit at the monthly rate of $3,000.00 for the period June 15, 2002 to August 21, 2002.

There is a period between August 22, 2002, the date upon which the post-104 week period begins and April 1, 2003, the date upon which Mrs. Lee is deemed to have been catastrophically impaired, for which attendant care was required but not payable as a consequence of a lacuna in the legislation.

On the basis of the foregoing, Mrs. Lee is entitled to a post-104 week attendant care benefit commencing April 1, 2003 and ongoing at the monthly rate of $5,226.06.

Housekeeping Benefits:

Mrs. Lee claims a housekeeping and home maintenance benefit at the weekly rate of $100.00 for the period commencing August 22, 2002 and ongoing pursuant to section 22 of the Schedule. This benefit is also restricted to the 104 week post-accident period unless the insured person is catastrophically impaired.⁷³

Having found that Mrs. Lee was deemed to be catastrophically impaired on April 1, 2003 as a consequence of the accident, I find her to be entitled to a housekeeping benefit from April 1, 2003 and ongoing.

I accept the evidence of James Lee and Mrs. Wai Ching Lee that they and other family members share the housekeeping duties that were done by Mrs. Lee prior to the accident and the incurred housekeeping expense is beyond the statutory maximum weekly rate of $100.00.

On the basis of the foregoing, I find that Mrs. Lee is entitled to a housekeeping benefit at the weekly rate of $100.00 from April 1, 2003 and ongoing.

Income Replacement Benefits:

Pre-104 Week Period:

Mrs. Lee claimed that she is entitled to an income replacement benefit at the weekly rate of $400.00 from September 1, 2001 to October 6, 2001. State Farm agrees that Mrs. Lee meets the substantial inability test of section 4 of the Schedule⁷⁴

Mrs. Lee relies on her accountant, Mr. I. Wollach's report dated January 12, 2005 which was admitted as Exhibit "6" on January 14, 2005 on consent.⁷⁵ In his report, Mr. Wollach sets out the assumptions and the legislation he relied on. He makes reference to Welsh and Economical Mutual Insurance Company, an appeal decision released by the Commission,⁷⁶ in determining that Mrs. Lee is entitled to income replacement benefits at the weekly rate of $400.00 from September 1, 2001 to October 6, 2001.

State Farm submitted that the amount payable for the period is $290.20.⁷⁷ However, it had not yet had an opportunity to review Mr. Wollach's report. In its written submissions no reference was made to this issue notwithstanding Mrs. Lee maintained that the quantum of income replacement benefits for this period remained an issue.

Mr. Wollach's report was the only accounting report before me. I accept his analysis and having applied the provisions of section 6(1)(a) and section 61, I find that Mrs. Lee is entitled to an income replacement benefit at the weekly rate of $400.00 for the period September 1, 2001 to October 6, 2001.

Post-104 Week Period:

Mrs. Lee has not returned to work since June 2001. She claims entitlement to income replacement benefits at the weekly rate of $290.20 commencing August 22, 2002 and ongoing, pursuant to subsection 5(2)(b) of the Schedule.

Subsection 5(2)(b) provides:

(2) The insurer is not required to pay an income replacement benefit,

(b) 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;

The findings of fact in respect of Mrs. Lee's pre-accident and post-accident social and medical condition relating to the issue of catastrophic impairment are adopted and applied to the determination of Mrs. Lee's entitlement to post-104 week income replacement benefits. Therefore, I find that as a result of the accident, Mrs. Lee is suffering a disability due to a psychological or behavioural disorder which prevents her from engaging in any employment. Therefore, Mrs. Lee is entitled to an income replacement benefit at the weekly rate of $290.20 commencing August 22, 2002 and ongoing.

SPECIAL AWARD:

Mrs. Lee advanced a claim for a Special Award pursuant to section 282(10) of the Insurance Act, in written submissions. State Farm disputed the jurisdiction of the hearing arbitrator to consider the issue. On December 20, 2005, the hearing was reopened pursuant to Rule 43 of the DRPC to hear argument with respect to the claim for a Special Award. Mrs. Lee withdrew her claim at that time. Therefore, Mrs. Lee is not entitled to a Special Award.

WITHOUT PREJUDICE PAYMENT:

The parties agree that State Farm made an advance payment of $30,196.95⁷⁸ pursuant to Mrs. Lee’s potential entitlement to medical and rehabilitation benefits which was to be applied to attendant care benefits, housekeeping and income replacement benefits.

Mrs. Lee has successfully asserted her claim to attendant care, housekeeping and income replacement benefits. The parties agreed that a finding that Mrs. Lee was catastrophically impaired would result in an entitlement in excess of the amount advanced. Therefore, I find that State Farm is not entitled to repayment, in whole or in part, of payments advanced on a without prejudice basis totalling $30,196.95.

INTEREST:

I find that Mrs. Lee is entitled to interest pursuant to subsection 46(2) of the Schedule in respect of overdue benefits. If the parties are unable to agree on the period for which interest is to be calculated and the quantum, they may make an application pursuant to the Dispute Resolution Practice Code.

CONCLUSION:

On August 21, 2000, Mrs. Lee suffered injuries in a motor vehicle accident which caused a regression to a child like state in or about July 2002 but which met the stabilization criteria of catastrophic injury on April 1, 2003. As a result, Mrs. Lee is entitled to pre-104 week attendant care benefits, as claimed, and to post-104 week attendant care and housekeeping expenses from April 1, 2003. As well, Mrs. Lee is entitled to income replacement benefits at the weekly rate of $400.00 for the period from September 1, 2001 to October 6, 2001 and at the weekly rate of $290.20 from August 22, 2002 and ongoing. Mrs. Lee is also entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

EXPENSES:

Mrs. Lee has successfully asserted her claim that she is catastrophically impaired and therefore entitled to post-104 week attendant care and housekeeping benefits. As well, she has successfully asserted her claim to income replacement benefits and pre-104 week attendant care benefits for the period June 15, 2002 to August 21, 2002. Therefore, I exercise my discretion to award Mrs. Lee her expenses incurred in this hearing. If the parties are unable to agree on the quantum of those expenses, they may make an application pursuant to the Dispute Resolution Practice Code.

February 3, 2006

Denise Ashby Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 22

FSCO A03-000181

BETWEEN:

ROZANA LEE By Her Guardian of Property, WAI CHING LEE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mrs. Lee did suffer a catastrophic impairment as defined in section 2(1)(g) of the Schedule.

2. Mrs. Lee is entitled to a post-104 week attendant care benefit commencing April 1, 2003 at the monthly rate of $5,226.06 and ongoing payable pursuant to section 16 of the Schedule.

3. Mrs. Lee is entitled to an attendant care benefit at the monthly rate of $3,000.00 for the period June 15, 2002 to August 21, 2002.

4. Mrs. Lee is entitled to receive a post-104 week housekeeping benefit at the weekly rate of $100.00 from April 1, 2003 and ongoing pursuant to section 22 of the Schedule.

5. Mrs. Lee is entitled to an income replacement benefit at the weekly rate of $400.00 from September 1, 2001 to October 6, 2001, pursuant to the Schedule.

6. Mrs. Lee is entitled to receive an income replacement benefit at the weekly rate of $290.20 from August 22, 2002 and ongoing, pursuant to section 5(2)(b) of the Schedule.

7. State Farm is not entitled to repayment, in whole or in part, of payments advanced on a without prejudice basis totalling $30,196.95.

8. State Farm is liable to pay Mrs. Lee's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

9. Mrs. Lee is not liable to pay State Farm's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act.

10. Mrs. Lee is entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule.

11. State Farm is not entitled to interest on payments advanced on a without prejudice basis.

12. Mrs. Lee withdrew her claim to a Special Award pursuant to 282(10) of the Insurance Act on December 20, 2005 and is therefore not entitled to a Special Award.

February 3, 2006

Denise Ashby Arbitrator

Date

Footnotes

1. 1Mrs. Lee's claim for benefits was assumed by her guardian of property, Mrs. Wai Ching Lee, on January 4, 2005 pursuant to the Order of His Honour Mr. Justice D. Stinson, dated December 17, 2004, filed with the Commission on January 4, 2005.
2. 2The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation462/96.
3. 3Transcript of Proceedings, January 14, 2005, page 989, Lines 30 and 31 and page 990 lines 1 and 2
4. 4Transcript of Proceedings, January 10, 2005, pages 51and 52
5. 5Document Brief, Book V of VI, Tab 27
6. 6Transcript of Proceedings, January 13, 2005, pages 825 to 827
7. 7Document Brief, Book IV of VI, Tab 15, page 12 of Dr. Hershberg's report
8. 8Document Brief, Book IV of VI, Tab 15, page 11 of Dr. Hershberg's report
9. 9Supplementary Document Brief, Book 1 of 1, Tab 10, page 2
10. 10Transcript of Proceedings, January 13, 2005, Evidence of Wai Ching Lee, Page 747 lines 26 to 31, Page 748, lines 1 to 6.
11. 11Ibid, Evidence of J. Lee, Page 852
12. 12Ibid, Page 853
13. 13Transcript of Proceedings, January 13, 2005, Evidence of Wai Ching Lee, page 747, lines 18 to 21, page 759, lines 16 to 21; Evidence of James Lee, page 860, lines 13 to 19; Transcript of Proceedings, January 14, 2005, Evidence of Shannon Siewnarine, page 979, lines 20 to 23
14. 14Transcript of Proceedings, January 13, 2005, Evidence of Felicia Varuna, pages 807 to 809
15. 15Ibid, Evidence of Deodat Dahanraj, page 778, line 31 and page 779, lines 1 to 6; Evidence of Alexander Figueiredo, page 833
16. 16Document Brief, Book II of VI, Tab 9, letter dated March 19, 2003
17. 17Transcript of Proceedings, January 12, 2005, Evidence of Dr. B. Yip, pages 658 and 659
18. 18Transcript of Proceedings, January 12, 2005, Evidence of Dr. B. Yip, page 647
19. 19Document Brief, Book VI of VI, Tab 33, Markham Stouffville Hospital, Imaging Report dated February 15, 1997; Report of Dr. M. T. Wong dated September 11, 1997; Med-Chem Health Care Limited, Nuclear Medicine Report dated September 22, 1997
20. 20Document Brief, Book VI of VI, Tab 33, Report of Dr. Joseph Minkowitz dated April 1, 1998
21. 21Document Brief, Book VI of VI, Tab 33
22. 22Document Brief, Book V of VI, Tab 33
23. 23Transcript of Proceedings, January 12, 2005, Evidence of Dr. B. Yip, pages 653 to 656
24. 24Transcript of Proceedings, January 13, 2005, Evidence of J. Lee, page 871
25. 25Ibid, pages 845 to 851
26. 26Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, DSM IV, pages 458 to 461
27. 27Transcript of Proceedings, January 10, 2005, Evidence of Dr. R. Hershberg, page 145, lines 27 to 30
28. 28Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, DSM IV, page 181
29. 29Ibid, pages 182 and 183
30. 30Ibid, pages 182 and 183
31. 31Transcript of Proceedings, January 12, 2005, Evidence of Dr. van Reekum, page 515
32. 32Ibid, page 520, Dr. van Reekum testified that the DSM IV - TR is an updated version of the DSM IV and the amendments do not relate to dependent personality disorder criteria
33. 33Ibid, page 517
34. 34Ibid, pages 521 and 522
35. 35Transcript of Proceedings, January 13, 2005, Page 920
36. 36Ibid, pages 873 to 879
37. 37Transcript of Proceedings, January 14, 2005, pages 976 and 977
38. 38Document Brief, Book IV of VI, Tab 24, page 47 of the Attendant Care DAC report
39. 39Document Brief, Book V of VI, Tab30, Ergonomic Homesite Assessment Report, August 31, 2000, page 7
40. 40Ibid, Ergonomic Homesite Assessment, Follow-up Report, September 22, 2000, page 4
41. 41Ibid, Tab 31, Ergonomic Worksite Assessment Report, September 11, 2000, Paragraph entitled "Employer," page 3
42. 42Ibid, Ergonomic Worksite Assessment, Follow-up Report, November 3, 2000, page 5
43. 43Ibid, Update Letter, dated November 17, 2000, page 1
44. 44Document Book II of VI, Tab 9, Irwin Industrial Agencies Limited, letter dated November 2, 2001
45. 45Ibid, second document
46. 46Ibid, first document
47. 47Document Brief, Book IV of VI, Tab 22, reporting letter dated January 22, 2001
48. 48Document Brief, Book IV of VI, Tab 22, reporting letter dated September 19, 2000
49. 49Transcript of Proceedings, January 11, 2005, page 244
50. 50Transcript of Proceedings, January 11, 2005, page 264
51. 51Document Brief, Book V of VI, Tab 27, first document, letter dated April 4, 2003
52. 52Transcript of Proceedings, January 11, 2005, page 359
53. 53Ibid, page 360
54. 54Document Brief, Book V of VI, Tab 29
55. 55Transcript of Proceedings, January 12, 2005, Evidence of Dr. R. van Reekum, page 485
56. 56Ibid, pages 496 to 500
57. 57Transcript of Proceedings, January 12, 2005, Evidence of Dr. R. van Reekum, pages 501 and 502
58. 58Ibid, page 526
59. 59(FSCO A02-001081, March 2, 2005), appeal decision pending
60. 60(FSCO A00-000045, October 27, 2000), affirmed on appeal (FSCO P00-00061, July 16, 2001)
61. 61Superior Court of Justice, File No. 02-CV-20559, released June 16, 2005
62. 62American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, 7th printing April 2004, pages 292 to 301
63. 63Document Brief Book IV of VI, Tab 15, page 12 of Dr. Hershberg's report
64. 64Document Brief, Book V of VI, Tab 29, Reports dated April 1 and July 22, 2003
65. 65Document Brief, Book V of VI, Tab 28, Report dated September 16, 2003
66. 66Document Brief, Book VI of VI, Tab 33
67. 67Document Brief, Book V of VI, Tab 29, Report dated April 1, 2003
68. 68Section 16(4)
69. 69Subsections 16(5)(1)(i) and 16(5)(1)(ii), respectively
70. 70Document Brief, Book V of VI, Tab 27
71. 71Document Brief Book V of VI, Tab 26
72. 72Ibid
73. 73Subsections 22(1), (2), (3) and (4)
74. 74Transcript of Proceedings, January 14, 2005, page 989, lines 13and 14
75. 75Ibid, page 992, lines 10 to 15
76. 76(FSCO P02-00024, October 3, 2003)
77. 77Transcript of Proceedings, January 14, 2005, page 989, lines 22 to 32
78. 78Transcript of Proceedings, January 14, 2005, page 996, line 1, Submissions of Mr. McCarthy