Neutral Citation: 2008 ONFSCDRS 5

FSCO A02-001632

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

EDGARDO CORTEZ

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Lawrence Blackman

Heard: March 26, May 7 and 8, and July 27, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Cortez was self-represented

Mr. Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Mr. Edgardo Cortez, was injured in two motor vehicle accidents, which occurred on March 14, 2002 and September 11, 2002. Mr. Cortez applied for and received certain statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule. [See note 1 below] Wawanesa denied Mr. Cortez' entitlement to other benefits. The parties were unable to resolve their disputes through mediation, and Mr. Cortez applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Note 1: The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.

The issues in this hearing are:

Is Mr. Cortez entitled to receive a weekly income replacement benefit from March 14, 2003 to March 14, 2005, claimed pursuant to section 4 of the Schedule?
What is the amount of the weekly income replacement benefit to which Mr. Cortez is entitled pursuant to section 6 of the Schedule?
Is Mr. Cortez entitled to payment of chiropractic expenses of $2,142 for the accident of March 14, 2002 and $13,424 for the accident of September 11, 2002, claimed as a medical or rehabilitation expense pursuant to sections 14 and 15 of the Schedule?
Is Mr. Cortez entitled to payment of housekeeping and home maintenance services of $100 per week from March 14, 2002 to December 31, 2003, claimed pursuant to section 22 of the Schedule?
Is Mr. Cortez entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Which party is liable to pay the other's expenses in respect of the arbitration under subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

Mr. Cortez is not entitled to receive a weekly income replacement benefit from March 14, 2003 to March 14, 2005.
The income replacement benefit to which Mr. Cortez would have been entitled, pursuant to section 6 of the Schedule, is 80% of the net of his gross weekly income of $388.10.
Mr. Cortez is entitled to payment of chiropractic expenses of $2,142 for the accident of March 14, 2002. Mr. Cortez is not entitled to payment of chiropractic expenses of $13,004 for the accident of September 11, 2002.
Mr. Cortez is entitled to further payment of $30 in respect of housekeeping and home maintenance services from March 14, 2002 to December 31, 2003.
Mr. Cortez is entitled to interest in accordance with subsection 46(2) of the Schedule on the overdue payment of $2,142 benefits for chiropractic treatment and $30 in respect of housekeeping and home maintenance services.
I remain seized regarding the question of entitlement to the legal expenses of this arbitration proceeding and the quantum of same. Should the parties be unable to agree on these issues, the procedure set out in Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated — October 2003) (the "Code") shall be followed.

EVIDENCE AND ANALYSIS:

1. Is Mr. Cortez entitled to receive a weekly income replacement benefit from March 14, 2003 to March 14, 2005?

(a) The Essential Tasks of Mr. Cortez' Employment

Mr. Cortez claims weekly income replacement benefits ("IRBs") pursuant to section 4 of the Schedule on the basis that he was employed at the time of both accidents.

For the first 104 weeks of disability, the entitlement test under the Schedule is whether Mr. Cortez suffered a substantial inability to perform the essential tasks of his pre-accident employment. For any period longer than 104 weeks of disability, IRBs would be payable if Mr. Cortez was suffering a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.

Mr. Cortez submits that his disability began March 14, 2003. He is not claiming entitlement after 104 weeks of disability. Hence, his claim is solely with regard to the "own occupation" disability test. Accordingly, the first question is to determine the essential tasks of Mr. Cortez' pre-accident employment.

I find that at the time of the March 14, 2002 motor vehicle accident, Mr. Cortez was employed in two positions.

He had firstly been employed since November 16, 2001 with the Toronto District School Board (the "Board") as a part-time caretaker for its Facility Services Department. I find that Mr. Cortez was employed 20 hours a week (with additional hours not to exceed 30). I accept the unchallenged documentary evidence of a May 15, 2002 insurer's in-home occupational assessment conducted by Ms. C. Gray, an occupational therapist, that Mr. Cortez' hours were 3:30 p.m. to 8:00 p.m., Monday to Friday.

Documentation regarding Mr. Cortez' caretaking duties is provided by the Board itself, by Ms. Gray, and in a job analysis conducted by Lee Birbrager, an occupational therapist with West Park Healthcare Centre, which conducted an insurer's medical examination ("IME") in April 2003. On the basis of these reports, I find that Mr. Cortez' essential job duties with the Board, working as a "floater" at different school locations, included:

cleaning classrooms, hallways, libraries, washrooms, cafeterias and food preparation areas;
caretaking and housekeeping duties, including garbage removal, dusting, sweeping, mopping, vacuuming carpeted areas and emptying garbage cans;
climbing ladders to wash windows or change light bulbs;
cleaning sinks, water fountains, toilets, urinals, mirrors and showers;
wiping doors, walls, partitions, counters, tables, chairs and appliances;
care and cleaning of school grounds, including lawn maintenance;
scrubbing swimming pool decks and change rooms, vacuuming pools;
moving classroom furniture and equipment as may be required, including carrying heavy loads up to 50 lb. up and down stairways;
frequent standing, walking, and occasional to frequent stooping; and,
snow removal by hand shovel or by motorized equipment, including chipping and ice removal.

Prior to hiring Mr. Cortez, the Board required him to undergo a functional abilities evaluation. A November 23, 2001 report by CBI Physiotherapy & Rehabilitation Centre found that Mr. Cortez met all job demands at that time. These demands included safe lifting of 50 lb. on an occasional basis, frequent lifting of 30 lb. and safe carrying of 50 lb. for 40 feet on an occasional basis. Occasional crouching, squatting, above level reach and frequent stooping were also required. I find that the essential tasks of Mr. Cortez' employment included these duties.

Mr. Cortez' second job at the time of the both accidents was with Nick Marrelli Maintenance Ltd. ("Nick Marrelli"). Mr. Cortez testified that he did maintenance work in the mornings for this company. I accept the unchallenged documentary evidence of Dr. H. Kaye, psychologist, who prepared a March 11, 2005 report, that Mr. Cortez' employment was part-time maintenance work, five hours a day during the week, and four hours each day of the weekend.

(b) Causation

I find that Mr. Cortez was involved in a motor vehicle accident on March 14, 2002, wherein his motor vehicle was struck in the rear while stopped at a red light. At that time, Mr. Cortez was 40 years old. Mr. Cortez developed pain in his neck that same day, which became more pronounced over time. I find that Mr. Cortez sustained a cervical whiplash-type soft tissue injury in this accident, but that notwithstanding his injuries, he continued his pre-accident employment.

Mr. Cortez saw his family doctor, Dr. A. González, on March 19, 2002. Dr. González diagnosed Mr. Cortez as having sustained an acute strain of the cervical spine of a muscular and ligamentous nature, and referred the Applicant for chiropractic treatment. Dr. González saw Mr. Cortez a further twelve times until August 10, 2002. The doctor notes in his April 14, 2003 report that Mr. Cortez continued to work notwithstanding continued stiffness and limited and painful movements of the neck.

Mr. Cortez was involved in a second motor vehicle accident on September 11, 2002. He was stopped on the road when his vehicle was struck in the rear. Mr. Cortez testified that he continued with his prior therapy with Dr. O. Manias, D.C., until September 19, 2002, when he stopped treatment. He told Dr. Manias about the second accident. Dr. Manias advised him to see his family doctor, but the Applicant did follow this advice.

Mr. Cortez did not see Dr. González after August 10, 2002 until March 10, 2003, when according to Dr. González' April 14, 2003 report, the Applicant was complaining of an aggravation of cervical pain radiating to the right arm, with numbness and weakness of the right arm and limited and painful neck movements. Dr. González reported Mr. Cortez as saying that these symptoms had been with him since the September 11, 2002 accident and had been gradually been getting worse.

The Applicant's Medical Documentation

Dr. González opined that the second accident caused an aggravation of the cervical injury as Mr. Cortez did not complain of weakness and numbness of the right upper extremities until after the second accident and was able to continue working after the first accident.

Dr. A. Sanchez, a psychiatrist to whom the Applicant had been referred by Dr. González, stated in a June 27, 2005 consultation note that Mr. Cortez tried to work after the September 2002 accident, but the pain increased, and by 2003 Mr. Cortez could no longer continue his work. Based on this history, Dr. Sanchez provided a diagnosis of an adjustment disorder and depressed mood, secondary to the car accident. Dr. Sanchez did not indicate the accident to which he was referring.

Dr. Manias' April 19, 2003 report states that both accidents were rear-end collisions that resulted in strains of the cervico-thoracic spine, with the possibility of nerve root involvement in the second accident causing the right arm symptomatology. A note in Dr. Manias' records states that Mr. Cortez felt neck and upper back pain following the second accident, as well as pain in the right shoulder and down the right arm. It is not clear, however, when this note was written.

Nerve conduction studies, however, conducted March 13, 2003 showed, in the opinion of Dr. O. Veidlinger, no evidence of distal nerve entrapment involving the median nerve or any evidence of carpal tunnel syndrome. Contrary to Dr. González' report of symptoms continuing and worsening since the second car accident, Dr. Veidlinger states that Mr. Cortez' neck symptoms of neck pain radiating to his right hands had been occurring for two weeks.

Also contrary to the post September 11, 2002 history provided by Drs. González, Sanchez and Manias was the December 12, 2003 consultation note of Dr. I.B. Schacter, a neurosurgeon. Mr. Cortez had related that his neck complaints had eased after the second accident, but that in March 2003 he had an exacerbation of neck complaints with pain radiating down the right upper extremity.

Dr. González had referred Mr. Cortez to Dr. Schacter in December 2003, and again in November 2004. In his December 2003 consultation note, Dr. Schacter opined that based on the history and the findings, Mr. Cortez had a disc herniation, in all likelihood at C6, 7. However, Dr. Schachter had not reviewed the September 16, 2003 MRI results from the Princess Margaret Hospital, nor does he appear to have seen the Designated Assessment Centre ("DAC") or IME reports noted below. Dr. Schacter does not comment on causation regarding the accidents in question, and hence, his reports in this regard are of little assistance.

Dr. González also referred Mr. Cortez to Dr. R. Wong, an orthopaedic surgeon. In his September 23, 2003 consultation note, Dr. Wong noted that the September 2003 MRI showed a right-sided disc herniation impacting on the spinal cord and flattening it slightly and opined that the increased symptoms on the right side were consistent with the radiological findings of a lesion at the C6-C7 level on the right side. However, Dr. Wong does not address whether one or both of these car accidents were the cause of these problems.

Mr. Cortez was also referred to Dr. R. Harris, a clinical psychologist, by Dr. González. Dr. Harris' April 19, 2004 report provided a diagnosis of a pain disorder associated with both psychological factors and a chronic general medical condition. Dr. Harris opined that Mr. Cortez' "impairment is related to the accidents. I failed to uncover any pre-existing psychological conditions unrelated to the accident." Dr. Harris noted in his report that Mr. Cortez finished his previously scheduled physiotherapy after the September 11, 2002 accident and continued working, and that in March 2003, the Applicant started feeling pain in his neck again. Dr. Harris fails to address the more than five month gap in symptoms.

The March 11, 2005 report of Dr. Kaye reports Mr. Cortez as saying that he did not feel any pain after the September 11, 2002 accident and was not diagnosed with any injuries. He continued to work as a cleaner and to attend college, and after "a few months" he started "feeling bad," referring to problems in his neck and right arm, which got to the point that the pain was severe and he, therefore, stopped working on May 14, 2003. Mr. Cortez saw Dr. Kaye on a medical/legal referral from the Applicant's counsel.

In a January 21, 2005 consultation note to Dr. González, Dr. Picard, a physiatrist and neurologist, stated that he was unsure how the second accident "actually influenced whatever on-going symptoms there may have been" after the first accident, and could not "attribute the symptoms uniquely to one or other event." Dr. Picard further opined that:

Features such as those described in this man's MR study are common in persons of this age who have no symptoms. Their diagnostic importance therefore is highly diminished. This man has no clear evidence of a myelopathy or radiculopathy clinically . . . MR scans of the mobile portions of the spine are so frequently abnormal and the correlation generally poor for various degenerative disorders and post-traumatic pain, that they constitute a pitfall for those not highly familiar with them.

Further nerve conduction studies were arranged by Dr. Picard, and were performed by Dr. M. Sourkes in March 2005. Dr. Sourkes reported the studies as normal, and concluded that Mr. Cortez "had persistent neck and arm pain, with few and transient neurologic complaints," and that while Mr. Cortez may be describing symptoms of a cervical radiculopathy, neither this nor any other peripheral nerve problem could be demonstrated. Dr. Picard reported to Dr. González, on April 11, 2005 that Dr. Sourkes had provided an excellent report in which she "found normal electrodiagnostic studies and normal neurological examination."

Dr. S.W.J. Wong, a physiatrist, opined in his January 12, 2005 report that the September 2003 Princess Margaret MRI of the cervical spine confirmed that Mr. Cortez had a right side disc herniation and that clinical examination suggested C7 nerve root damage at the time of "the motor vehicle accident." Given an absence of any prior neck problems, Dr. Wong was of the view that "the disc herniation and the C7 nerve abnormality [were] a direct result of the motor vehicle accident."

Dr. Wong reports Mr. Cortez as saying that he received treatment until the end of 2002 and that he discontinued treatment because there had not been much improvement in his condition. Mr. Cortez is also reported as saying that his pain continued to flare up frequently and to worsen, and that he continued to work despite the pain from the car accidents because he was worried about losing his job, but that the pain worsened and he had to stop working by March 2003.

Dr. Wong notes that a July 23, 2004 repeat MRI did not show the small disc herniation commented on in the first MRI report. Dr. Wong was of the view that the second MRI report did show evidence of a C7 nerve root injury. He further opined that "the disc was small according to the first report and, therefore, I believe it was missed in the second report."

The Insurer's Supporting Medical Documentation

Wawanesa referred Mr. Cortez to an IME at West Park Healthcare Centre in the spring of 2003. Following an April 29, 2003 functional capacities evaluation ("FCE"), Ms. D. Westbrook, a physiotherapist, states that Mr. Cortez reported that in March he had started to experience pins and needles in his right lower arm and fingers, which he had never experienced before. Ms. Westbrook indicates that she could not reasonably determine a causal connection between the second car accident and the sudden onset of increased pain six months later, but deferred to an orthopaedic opinion.

Dr. R. Zarnett, an orthopaedic surgeon, notes in his May 5, 2003 IME report that Mr. Cortez also reported that his symptoms started in March 2003 and that he did not recall any recent injury or trauma that initiated his symptoms. Dr. Zarnett opined that Mr. Cortez' recent complaints were not directly attributable to the second accident but rather were due to pre-existing degenerative disease of the cervical spine. Dr. Zarnett based his opinion on Mr. Cortez' symptoms not starting for at least six months following the second car accident and medical attention not being sought during that period. Any significant soft tissue strain would, in Dr. Zarnett's view, have resulted in symptoms following the accident and Mr. Cortez would not have been able to continue to work as a school custodian without limitations or restrictions.

Dr. Jimenez is a physiatrist with the MDAC Medical Rehabilitation DAC. His September 30, 2003 report states that Mr. Cortez did not see his family doctor after the September 2002 motor vehicle accident, continued to work without interruption (albeit with residual discomfort in his cervical spine) and had no new symptoms until early March 2003 when he developed pain and tingling sensation along the right arm, the pain becoming severe. Dr. Jimenez found it very difficult to establish a relationship between the September 11, 2002 accident and the onset of symptoms in March 2003. The September 2003 MDAC report concluded that "the causal relationship of [Mr. Cortez'] March 2003 reoccurrence to the subject accident is unclear."

A January 28, 2005 DAC report of Dr. P.S.Y. Kim, D.C. and Dr. A. Oshidari, physiatrist, of the North Toronto Assessment Centre, held that Mr. Cortez' symptoms starting six months after the second accident were not related to either motor vehicle accident given Mr. Cortez' continued employment.

Dr. F. Lipson is a specialist in Internal Medicine and Physical Medicine and Rehabilitation who conducted a paper medical review in 2007. His June 18, 2007 report states that the first MRI was interpreted as showing a disc herniation as the cause of the C7 nerve root compression. The second MRI, however, had a very different finding, showing degenerative, not traumatic, major narrowing of the C6-7 neuroforamina without a disc herniation. Dr. Lipson states that if the latter interpretation was correct, then there was no relationship between the accidents of March 14 and September 11, 2002 and the symptoms developed by Mr. Cortez in March 2003.

Dr. Lipson further opined that even if there were a disc herniation, one would have anticipated neurological symptoms at a much earlier stage than six months after the second accident.

Dr. Lipson critiques the report of Dr. S.W.J. Wong, arguing that invalid assumptions were made without directly comparing both MRIs, namely that there was evidence of C7 nerve root injury in the first MRI, that the disc herniation was small which is why it was missed in the second MRI and that the severe narrowing of the neuroformen bilaterally at C6/C7 revealed in the July 23, 2004 MRI made the C7 nerve root more vulnerable to damage and more difficult to heal.

Decision on Causation

The onus is on Mr. Cortez to establish, on a balance of probabilities, that one or both of these motor vehicle accidents materially contributed to the injuries of which he complains.

I am not persuaded that Mr. Cortez has met his onus of establishing that the pain radiating from his neck down his right arm and the resultant right arm symptoms which I find, for reasons set out below, began in March 2003, were caused by either of these motor vehicle accidents.

In his final submissions, Mr. Cortez made reference to the x-ray, MRI and other medical investigations since his first motor vehicle accident. However, these documents, by themselves, provide little assistance as to whether one or both of the accidents in question were the cause of his significant physical complaints.

There is, firstly, a medical dispute over the meaning of the MRI reports. On the medical evidence before me, I am not persuaded that it is more likely than not that Mr. Cortez' right upper extremity complaints were caused by traumatic injury sustained in one or both of these accidents, rather than degenerative changes or some other cause.

The March 7, 2003 interpretation of x-rays from the College & Markham X-ray & Ultrasound indicates "chronic degenerative disc and arthritic changes most marked at C5-6." An earlier x-ray of the cervical spine, taken by Gam X-Ray Limited on April 1, 2002, also showed narrowing of the C5-6 intervertebral disc space with encroachment of osteophytes on the adjacent foramina in keeping with degenerative disc disease. As noted above, Dr. Picard reported on April 11, 2005 that Dr. Sourkes had provided an excellent report in which she "found normal electrodiagnostic studies and a normal neurological examination."

In any event, more fundamentally, the Applicant has failed to explain what I find to be a more than five month gap between the second accident and the onset of the significant injuries of which he complains.

I have no evidence that the Applicant sought hospital or any other medical treatment as a result of the September 11, 2002 accident. He did not see his family doctor, Dr. González, until March 10, 2003 (according to Dr. González' April 14, 2003 report). A decoded OHIP summary shows no medical attendance by Mr. Cortez between August 10, 2002 (noted as "ill-defined conditions" and a "minor assessment") and March 7, 2003. The Applicant did see Dr. Manias on September 19, 2002, but that was an appointment scheduled prior to the second accident and there was no follow-up treatment.

I have no evidence that Mr. Cortez took any prescription medication for the nearly six months following the second accident. A printout from College Medical Pharmacy shows a prescription filled on May 15, 2002 for Apo-Pravastatin. The next entry is March 7, 2003 for Celebrex and Tylenol No. 2. Documentation from Shoppers Drug Mart and Pharma Plus Drugmarts Ltd. all begin May 2003.

While Dr. Manias wrote the Applicant's counsel in April 2003 that the "distinguishing symptom in the accident of September 11, 2002 was the radiating pain into the right shoulder and right arm," his clinical entry of September 19, 2002 merely notes the second accident and states that the patient does not want to continue treatment. A September 14, 2002 treatment plan mentions only neck and upper back pain, but it is unclear whether Mr. Cortez had yet reported the second accident. The next entry, being March 10, 2003, indicates that Mr. Cortez was last seen September 19, 2002, was almost at discharge and had been feeling better after the first accident.

Mr. Cortez continued working two physically demanding jobs until January 2003, when he was laid off by Nick Marrelli. I have no evidence that this lay-off was due to injuries caused by either accident. Rather, in his final submissions, Mr. Cortez indicated that he had to return to his home country and when he returned, Mr. Marrelli would not give him his job back. After the accidents, Mr. Cortez was also able to continue his part-time studies in mechanical engineering design at Humber College which he had started in 2001 and completed in 2005.

Most importantly, I have no contemporaneous evidence for this five month period of a worsening condition, let alone continuing complaints. Rather, Mr. Cortez, himself, testified in chief on May 7, 2007 that after working for five months after the September 11, 2002 accident, he started to have pain in his neck and the right arm. The pain got worse, so he went to see Dr. González, who sent him to therapy. From then on, since March 14, 2003, he could not work anymore. Again, in final submissions on July 27, 2007, Mr. Cortez stated that when he had the second accident he did continue working but that in March 2003 he started to have problems and he reached the point that he could not continue because he was in so much pain.

Numerous medical practitioners note Mr. Cortez reporting the same history. These include treating doctors such as Dr. Veidlinger, Dr. Schacter, neurosurgeon, Dr. Harris, psychologist, and Dr. Kaye, psychologist, in addition to the IME practitioners Ms. Westbrook, physiotherapist, and Dr. Zarnett, orthopaedic surgeon, and DAC practitioners Dr. Jimenez, physiatrist, Dr. Kim, chiropractor, and Dr. Oshidari, physiatrist. I accept this weight of reporting, as well as the Applicant's evidence under oath, over the also non-contemporaneous reporting of Drs. González, Manias and Sanchez.

Wawanesa raises a very legitimate question as to why there is this more than five month gap in symptoms between the second accident and March 2003. Mr. Cortez' medical practitioners either ignore the causation question, ignore important questions or facts raised by the IMEs and the DACS, and/or presume continuing and worsening symptoms during that period, which I find is not supported by the weight of the evidence before me.

Accordingly, I find that Mr. Cortez has failed to establish that either of the motor vehicle accidents are the requisite cause of his significant complaints which began in March 2003, on which he bases his claim for ongoing benefits after that date. Accordingly, I find that those claims must fail.

(c) Substantial Inability

However, if I am in error regarding the question of causation, I wish to address the further entitlement and quantum issues in dispute.

Mr. Cortez testified that he could not work after March 14, 2003. He has had pain in his right arm and for a time he did not have feeling in his fingers. He continues to have pain in his neck. His arm feels weak and tired if he writes too much.

In its March 27, 2003 Employer's Confirmation of Income, the Board indicated that Mr. Cortez' last day of work was March 14, 2003. In an undated Disability Certificate based on a March 2003 examination, Dr. González states that Mr. Cortez was unable to return to work or to modified hours.

In his May 22, 2003 consultation note, Dr. R. Wong, orthopaedic surgeon, states that pain prevented Mr. Cortez from the requisite lifting and bending required in his work as a caretaker, and that he should avoid repetitive flexion of his cervical spine. Dr. Wong's September 23, 2003 consultation note states that any heavy lifting may exacerbate Mr. Cortez' condition and that he would have difficulty with prolonged flexion and extension of the cervical spine. Dr. Manias opines in his December 16, 2003 treatment plan that Mr. Cortez was impaired from his tasks of employment, a view he repeats in his April 7, 2004 (wherein he states that Mr. Cortez was not using his right arm for any forceful or heavy activity) and September 22, 2004 treatment plans.

Dr. Schacter does not comment on disability, other than saying that Mr. Cortez reported he had not been working and that even using a computer caused pain in his neck and down his arm.

Dr. Zarnett's orthopaedic May 5, 2003 IME report, however, was of the view that Mr. Cortez' examination did not demonstrate any significant abnormalities to suggest an ongoing impairment that would prevent him from returning to his essential employment activities. Ms. Westbrook's April 29, 2003 physiotherapy FCE IME opined that Mr. Cortez was capable of sustaining a medium level of work for an eight-hour day and that he matched every job requirement of a caretaker, including floor to waist lifting of 50 lb. and waist to eye lifting of 22 lb. She did note, however, that dynamic strength was limited by reported pain in the cervical spine and upper trapezius and by reported pins and needles in the right forearm and three digits in the right hand.

Surveillance was conducted on Mr. Cortez in mid-June 2003. The McNulty & Associates report indicates, amongst other things, a person matching the Applicant's description driving from his residence and entering a chiropractic clinic "at a quick, steady and even pace . . . [displaying] good head and neck rotation," appearing to be "in good spirits." The report is of little assistance in determining Mr. Cortez' ability to engage in the essential tasks of his demanding employment.

Dr. Harris, a psychologist, states in his April 19, 2004 report that Mr. Cortez had severe symptoms of anxiety, mild symptoms of depression and was very pain focused. Dr. Harris opined, however, that the "symptoms of trauma he reported do not seem to be strong enough to be substantially incapacitating." Dr. González had referred Mr. Cortez to Dr. Harris because pain had been making Mr. Cortez nervous and depressed, and he was sleeping poorly.

Dr. González' July 15, 2004 report notes Mr. Cortez' regular attendance at his office and that he was taking anti-inflammatory medication in addition to receiving chiropractic treatment and doing exercises. Dr. González was of the view that Mr. Cortez was unable to return to his prior employment as a caretaker because of persistent cervical and right upper extremity pain. The family doctor stated that Mr. Cortez had difficulty staying in the same position for prolonged periods of time, had a half inch right arm atrophy, and despite his enjoyment working on the computer, had to stop because of cervical pain radiating down to the right upper extremity.

Dr. González' subsequent January 13, 2005 report confirmed Mr. Cortez' continued regular attendance at his office. The Applicant's main complaints were cervical pain radiating to the right upper extremity, with limited and painful movements, and numbness of the right upper extremity. Cervical pain was aggravated by prolonged sitting, prolonged computer use and trying to pull or lift small objects. Dr. González was of the view that Mr. Cortez continued to be disabled from working as a school custodian or any form of work with physical activity.

The physiatrist, Dr. S.W.J. Wong, in his January 12, 2005 report, was of the view that Mr. Cortez was not able to return to physically demanding jobs in the future due to his permanent neck, upper back and C7 nerve root injury. It was Dr. Wong's opinion that Mr. Cortez required more sedentary work, as he would experience difficulty using his right arm for heavy pushing, pulling, above shoulder activities and activities involving repetitive neck movements.

In his March 11, 2005 report, Dr. Kaye noted that Mr. Cortez rated himself as 100% disabled. The Applicant was then taking his last course in the Mechanical Engineering Design Course at Humber College and was to graduate in April 2005. However, Mr. Cortez felt that he would not be able to work in that field, as he had to lift things, which he could not do. Even if he changed to a Design Technician program (for which he needed two more courses and another year to finish), his arm bothered him if he sat too long at a computer.

In June 2005 Dr. Sanchez, a psychiatrist, provided a similar diagnosis of a Pain Disorder. His differential diagnosis was a Major Depressive Disorder. Dr. Sanchez, however, in his consultation note to Dr. González, does not address the issue of disability. Dr. Picard's April 11, 2005 consultation note to Dr. González states that "at the moment, I cannot see any clear neurologic dysfunction."

Dr. Lipson, an expert in internal medicine and physical medicine and rehabilitation, commented in his 2007 IME paper review that Mr. Cortez showed no evidence of neurological deficit at this time, and that there was no contraindication, either by the MRI or by physical findings, for him returning to work doing a medium level job.

Notwithstanding the different medical opinions regarding causation and disability, the medical practitioners found Mr. Cortez to be honest and credible.

From the Applicant's treating and retained experts, Dr. Harris, clinical psychologist, stated that testing indicated that Mr. Cortez was honestly reporting his difficulties and that there was no evidence of exaggeration or feigning. Dr. Sourkes, who conducted nerve conduction studies in March 2005, felt that Mr. Cortez' reporting of his symptoms was genuine, although she was unable to demonstrate any peripheral nerve problem.

Dr. Jimenez, the DAC physiatrist, found Mr. Cortez pleasant and cooperative. Dr. Zarnett, in his May 5, 2003 IME orthopaedic report, states that he had no doubt that Mr. Cortez' symptoms were genuine. A pre-accident November 26, 2001 Evaluation Form from the Board rated Mr. Cortez as generally satisfactory regarding the quality and quantity of his work, his attitude and his dependability.

I am persuaded, on a balance of probabilities, that the requisite disability test for the period March 14, 2003 to March 14, 2005 is the "own employment" test, as there is no allegation, nor is there any evidence to support any disability prior to March 14, 2003. As noted above, the "any employment" test begins after 104 weeks of "disability."

I am also persuaded, on a balance of probabilities, that Mr. Cortez was substantially unable for the period claimed to perform the essential tasks of his employment, for the following reasons:

(a) the work, as set out above, was physically demanding, requiring, amongst other things, the ability to carry up to 50 lb. up and down staircases;

(b) Mr. Cortez had a good work history. He continued to work after both motor vehicle accidents, following the first accident in conjunction with physiotherapy and chiropractic treatment;

(c) Mr. Cortez faithfully attended numerous and various medical appointments, seeking answers for his medical complaints;

(d) Mr. Cortez was consistent in reporting contemporaneous complaints. I find Dr. Shane's September 2003 DAC report that Mr. Cortez was experiencing only mild residual discomfort inconsistent with his further statements that Mr. Cortez "has been experiencing a sharp pain at the bottom of the neck and 'tingling' in the right upper extremity," that he cannot sit more than 20 minutes, and that "yesterday, after a relatively minor exertion using his right arm, he experienced discomfort from the mid-arm to the wrist in the form of a dull pain;"

(e) numerous medical experts whom Mr. Cortez saw opined that there was an objective basis to his complaints;

(f) there was no disagreement by the medical practitioners who saw him that Mr. Cortez was honest in his complaints;

(g) that Mr. Cortez was able to continue with his part-time schooling did not detract from his work disability which was far more physically demanding. Mr. Cortez had been able to juggle two jobs as well as school before these two accidents. I am persuaded that he legitimately could not continue with these demands after March 14, 2003;

(h) I prefer the orthopaedic disability opinion of Dr. R. Wong to that of Dr. Zarnett. Dr. Zarnett provides no details in his report of the particulars of Mr. Cortez' employment and largely bases his disability opinion on the causation issue and the absence of what he calls "significant abnormalities" on examination. Unlike Dr. Zarnett, Dr. R. Wong does address the question of pain, and the effect of the requisite lifting and bending of the Applicant's employment on his symptoms;

(i) Ms. Westbrook states that Mr. Cortez was self-limited on 6 out of 20 assigned job tasks. The limitations were reported pain in the cervical spine and the upper trapezius areas and pins and needles in the right forearm and digits 3, 4 and 5 of the right hand. Ms. Westbrook does not explain how being able to complete a three-hour evaluation in a controlled artificial setting, even without added rest periods but with increasing symptoms, translates into being able to work in a competitive work setting at both a day and an evening job, five days a week (or more), week after week; and,

(j) I find that Dr. Lipson was at a distinct disadvantage in not having personally seen the Applicant and in commenting more than two years after the disability period in dispute.

However, due to my finding regarding causation, I find that no IRBs are payable by Wawanesa.

2. What is the amount of the weekly income replacement benefit to which Mr. Cortez is entitled?

Mr. Cortez seeks a weekly IRB of $350 based on earning $1,200 a month working for the Board and $900 a month working for Nick Marrelli at the time of both accidents.

The Insurer submits that Mr. Cortez was employed with the Board 20 hours a week, at $17.76 an hour, for a gross weekly income of $355.20. Wawanesa submits that 80% of his net weekly income results in a weekly IRB of $234.14.

A March 27, 2003 Employer's Confirmation of Income from the Board indicates that Mr. Cortez had earned $1,552.38 in the four weeks preceding "the accident." This translates to a gross weekly income of $388.10. It was not challenged that the four weeks noted were the four weeks before Mr. Cortez stopped working on March 14, 2003. The Board also indicated a gross yearly salary of $19,002. This would translate into a gross weekly income of $365.42.

Mr. Cortez' second employment was with Nick Marrelli. In the documentation filed during the hearing there was nothing included regarding the particulars of Mr. Cortez' earnings prior to these accidents, section 8 of the Schedule requiring that one look at one's income prior to the accident, not prior to the onset of disability. Two letters to Nick Marrelli from Mr. Cortez' prior counsel were included in a brief, the indication being there had been no response to those letters. Revenue Canada's 2002 Income Tax Return printout show Mr. Cortez' income in 2002 as $31,100. However, the details regarding the sources of this employment were not provided.

On the last day of the arbitration hearing, close to the end of his final submissions, Mr. Cortez produced a letter from Nick Marrelli dated May 20, 2003, stating that the Applicant had earned $900 a month.

Rule 39 of the Code provides that documentation to be allowed into evidence must be served on the other party at least thirty days prior to the start of the arbitration hearing. Based on Mr. Cortez being unrepresented at the hearing and having not received documentation from his prior counsel, I exercised my discretion in allowing him to file during the course of the arbitration hearing additional documentation. This included materials which had been filed with the Commission by Mr. Cortez' prior representatives, but which had not been served on Wawanesa. I also required the Insurer to re-serve, this time personally on the Applicant, the arbitration briefs in its possession.

In order to mitigate the prejudice of late production to the Insurer, I allowed Wawanesa an opportunity to retain an expert to do a paper review in response to this further evidence. On May 8, 2007, upon the close of evidence, I indicated that I was not allowing any further documentation into evidence.

Wawanesa's counsel indicated that as best he could tell me he had never seen the May 20, 2003 letter from Mr. Marrelli before, that he had reviewed the briefs and had not seen this material. The Insurer objected to the letter being allowed into evidence. Having concerns regarding the prejudice to Wawanesa in seeing the document at this late date and not having an opportunity to cross-examine on it, Mr. Cortez not being able to offer any explanation as to why this document had not been produced earlier, and having exercised my discretion earlier in allowing Mr. Cortez to file documents late, I did not allow the May 20, 2003 letter into evidence.

Accordingly, the only evidence before me regarding IRB quantum is that with regard to the Board. I find that the weekly IRB is 80% of the net of Mr. Cortez' gross weekly income of $388.10, based on the March 27, 2003 Employer's Confirmation of Income.

However, I note that subsequent to making my order near the close of the arbitration hearing, I came across, in Exhibit 2, at Tab 9, amongst several other documents, an Explanation of Benefits Payable by Insurance Company dated June 11, 2003 that notes receipt of a letter from Nick Marrelli indicating the Applicant was earning $900 a month, and indicating that the Insurer required Mr. Cortez' 2002 income tax return. The letter to which reference is made appears to be the same letter to which Mr. Cortez referred in his submissions, which would mean that the document in question had actually been in Wawanesa's possession for four years.

Although the said Explanation of Benefits Payable was in the possession of both parties at the time of my order, neither party brought it to my attention, presumably because it was lost in the volume of materials. Given my decision regarding causation, which makes the quantum decision moot, I do not deem it necessary to reopen the hearing pursuant to Rule 43 of the Code. However, should the decision regarding causation be reversed, one may wish to consider sending the IRB quantum issue back for arbitral reconsideration.

3. Is Mr. Cortez entitled to payment of chiropractic expenses of $2,142 for the accident of March 14, 2002?

Dr. Manias' account dated March 12, 2003 is in the amount of $2,142 for rehabilitation exercises, chiropractic treatment and acupuncture provided from July 24 to September 19, 2002, arising out of the first motor vehicle accident.

On referral from Dr. González, Mr. Cortez was initially treated at Physiotherapy Fix following the first motor vehicle accident. A March 21, 2002 treatment plan proposed eighteen treatments.

A discharge report by Ms. D. D'Abreo of Physiotherapy Fix of May 14, 2002, based on a May 9, 2002 reassessment, indicated that Mr. Cortez reported 90% improvement in his symptoms since starting treatment. Pain was now occurring once a week and was rated 3 out of 10, and Mr. Cortez was working his full duties and "performing all pre-accident activities without difficulty." Mr. Cortez was discharged from formal treatment and was to continue with his home exercise program.

A patient self-evaluation a week earlier, on May 7, 2002, however, while confirming 90% improvement and the said pain rating, also indicated that Mr. Cortez was having difficulty doing pre-accident activities. Mr. Cortez testified in chief that after a week without therapy and with his job demands, his pain returned. He went to see Dr. González, who sent him to Dr. Manias.

A July 24, 2002 treatment plan was prepared by Dr. Manias in the amount of $1,710. The stated purpose of the plan was to reduce residual pain, increase flexibility of the cervical spine, restore function and strengthen weakened musculature. A further treatment plan of September 14, 2002, in the amount of $990 was also prepared, which called for what was termed aggressive active rehabilitation, in addition to home education.

Dr. González, in his April 14, 2003 report, was of the view that the chiropractic treatment prior to the second accident helped, although not 100%. Dr. González noted that Mr. Cortez felt that the course of massage and acupuncture was helping him a fair amount. Dr. Jimenez, in his September 8, 2003 DAC report, noted Mr. Cortez as saying that he finished therapy on September 19, 2002 as his symptoms had substantially resolved.

Regarding this period of treatment, the Insurer, in its submissions, did not refer me to any medical evidence upon which it was relying, which commented on the reasonableness and necessity of this specific course of treatment.

I am persuaded that the further treatment provided by Dr. Manias following the first accident and ending September 19, 2002 contributed to Mr. Cortez' ability to mitigate his loss and continue working at both of his pre-accident jobs. I am also persuaded that the treatment was effective in reducing his symptoms. As such, I find that the treatment was reasonable and necessary.

4. Is Mr. Cortez entitled to payment of chiropractic expenses of $13,424 for the accident of September 11, 2002?

Dr. Manias' account dated August 28, 2006, is in the amount of $13,004 for rehabilitation exercises, chiropractic treatment and acupuncture provided from March 10, 2003 to January 26, 2005 arising from the second motor vehicle accident. I note the amount claimed by the Applicant is $13,424.00.

Dr. Manias prepared eleven treatment plans following the onset of Mr. Cortez' symptoms in March 2003, the first dated March 11, 2003, the last, September 24 2004. The first of these plans, in the amount of $3,320 was approved by Wawanesa on April 9, 2003, the following eight were denied. There appears to have been no response to the last two treatment plans.

Dr. González, in a report dated January 13, 2005, recommended that Mr. Cortez continue with his chiropractic treatment which he claimed helped him a fair amount.

Three of the treatment plans were assessed in September 2003 by Dr. Jimenez, physiatrist, and Dr. Shane, D.C., who were with MDAC Medical Rehabilitation DAC. Due to the lack of a causative link, Dr. Jimenez was of the view that the Plans were neither reasonable nor necessary. Dr. Shane was of the view that Mr. Cortez had sufficient therapy and that there were currently no significant anatomical or physiological impairments causally related to the accident that required further treatments. On the basis of these reports, and specifically the causation issue, Wawanesa denied payment of Dr. Manias' further treatment plans.

Dr. Zarnett, an orthopaedic surgeon, saw Mr. Cortez in a May 2003 IME. He found that Mr. Cortez' physical examination did not demonstrate any significant abnormalities to suggest an ongoing impairment and that he did not require any formal treatment for his symptoms.

Wawanesa, in its submissions, questioned the wisdom, if there was indeed a herniated disc, of treating same with chiropractic treatment.

I am not persuaded as to the reasonableness and necessity of this further treatment following March 2003. Firstly, as noted above, I am not persuaded as to the causative link between the symptoms arising in March 2003 and either of these motor vehicle accidents.

Secondly, it is not clear to me why nearly two years of treatment, at a cost of over $13,000, was reasonable and necessary in light of its apparent lack of overall effectiveness in treating the Applicant's symptoms. Mr. Cortez chose not to call any medical practitioner in support of his claim. Some of Dr. Manias' treatment plans are merely pro forma, with the specific questions set out in the form answered by "Refer to previous treatment plan" or "see last treatment plan." If any further treatment was warranted subsequent to the first treatment plan (which was approved by the Insurer), I am unable to determine the appropriate cut-off point.

5. Is Mr. Cortez entitled to payment of housekeeping and home maintenance services of $100 per week from March 14, 2002 to December 31, 2003?

Mr. Cortez provided very little oral or documentary evidence regarding his housekeeping benefits claim.

An invoice, dated May 14, 2002, notes Rosaura Cortez working 20 hours in the month of March 2002 cooking, doing dishes, laundry and ironing, cleaning the bathroom and the Applicant's room, at $10 an hour. A further invoice of the same date notes nine hours of assistance for the month of April 2002, also at $10 an hour.

Ms. Gray notes in her May 15, 2002 assessment that Mr. Cortez was a single man, living with his parents, another adult sibling and an infant in a two-storey, three bedroom, one bathroom, home. Prior to the first accident, Mr. Cortez shared the home maintenance and housekeeping tasks. Ms. Gray states that two weeks before, Mr. Cortez had returned to independent performance of all pre-accident activities and was performing his usual essential tasks, including assisting with meal preparation, dishwashing, grocery shopping, bathroom cleaning, dusting, sweeping, mopping, vacuuming and garbage removal.

Ms. Gray assessed Mr. Cortez on meal preparation, reaching/bending to cupboards, use of the dishwasher, grocery shopping, bathroom cleaning, dusting, sweeping, mopping, vacuuming, bed making, laundry, ironing and garbage removal. Ms. Gray opined that Mr. Cortez was capable of performing his essential daily tasks and that no assistance was reasonable or necessary.

Wawanesa, by letter dated May 24, 2002, enclosed Ms. Gray's in-home assessment and indicated that effective May 15, 2002, no further housekeeping benefits would be considered.

The Insurer submits that $260 was paid for housekeeping, at $7 an hour. In his final submissions, Mr. Cortez, acknowledged receipt of same.

Following the onset of symptoms in March 2003, Dr. González prepared a disability certificate stating that Mr. Cortez was unable to do vacuum cleaning. Dr. Manias, in his December 16, 2003 treatment plan, states that even light household chores were difficult for Mr. Cortez to accomplish because of pain and restriction.

An Activities of Normal Life form of March 18, 2003, has Mr. Cortez ticking off that he could not do cleaning, laundry and home maintenance activities (including snow shoveling). He was able to do shopping and making meals, with help.

Dr. Zarnett, in his May 5, 2003 IME report, opined that Mr. Cortez did not require any housekeeping assistance.

Although it is after the period in dispute, Dr. S.W.J. Wong, in his report of January 15, 2005, based on an assessment that month, comments that Mr. Cortez' parents left Canada in 2003 and that Mr. Cortez was renting a room. Dr. Wong states that Mr. Cortez was able to pace himself and perform his housekeeping duties as there was only limited space in his room. In May 2005, Dr. Kaye, a psychologist, also reported that Mr. Cortez had resumed his household chores, but that these were fairly minimal as he lived alone in a rented room.

I am persuaded that $10 an hour is reasonable for the housekeeping services provided. I see no basis in the Schedule for the proposition that family members are limited to $7 an hour.

I am not persuaded that the Applicant has established, on a balance of probabilities, entitlement to any further hours of housekeeping. The Applicant failed to call any witnesses to support his claims, failed to provide any further documentation in support of his housekeeping claim and failed to provide any oral testimony in support of any further entitlement.

Accordingly, I find that the Applicant is entitled to 29 hours of housekeeping, at $10 an hour, which totals $290. Having received $260, he is entitled to a further $30.

6. Is Mr. Cortez entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?

In accordance with section 46 of the Schedule, I find that Mr. Cortez is entitled to interest of two per cent per month, compounded monthly on chiropractic expenses of $2,142 for the accident of March 14, 2002 and an additional $30 with respect to housekeeping and home maintenance expenses, from the date the said amounts became due.

Regarding the housekeeping expenses, in accordance with section 41 of the Schedule, interest of two per cent per month, compounded monthly runs from thirty days after the Insurer received the application for the benefit. The housekeeping expense forms are date stamped May 22, 2002 by Wawanesa. Accordingly, interest runs from June 22, 2002.

As to the medical expenses, interest runs from 14 days after receipt by Wawanesa of the application, in accordance with section 38 of the Schedule. The best evidence I have in this regard is a March 7, 2005 letter from Dr. Manias to Mr. Cortez' prior counsel, in which he advises that the outstanding balance of the account was faxed to Wawanesa on March 11, 2003, once his office had received information regarding Mr. Cortez' insurer. Accordingly, interest runs from March 25, 2003.

EXPENSES:

Having determined all issues in dispute, other than legal expenses, I direct the parties to Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated — October 2003), should the parties not agree on entitlement to or the amount of such expenses. For the benefit of the parties, a copy of the Rule is included with this decision.

January 14, 2008

Lawrence Blackman Arbitrator

Date