C.G. v. The Guarantee Company of North America, 2020 CanLII 40333

17-007300/AABS

Released Date: 05/29/2020

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

C.G.

Applicant

and

The Guarantee Company of North America

Respondent

REASONS FOR DECISION AND ORDER

PANEL:

Sandeep Johal, Adjudicator

APPEARANCES:

For the Applicant:

Samia M. Alam

For the Respondent:

Kerry L. Figliomeni

HEARD:

In-person, teleconference and by way of written submissions.

OVERVIEW

1The applicant was injured in an automobile accident on February 20, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2The applicant has a significant pre-accident history. She was involved in a motor vehicle accident in 2004 and then a subsequent accident in 2009. The applicant suffered physical and psychological injuries as a result of these previous accidents and was deemed catastrophically impaired as a result of the first accident in 2004.

3As a result of the injuries sustained from the previous accidents, the applicant does not wear a seatbelt as a passenger based on the advice of her family doctor. On the date of the subject accident in 2015, the applicant was a passenger in a vehicle being driven by her husband which was rear-ended by another vehicle. As a result of the subject accident, the applicant sustained injuries to her back, right elbow and post-accident headaches as well as an exacerbation to her pre-existing injuries.

4The applicant applied for medical benefits that were denied by the respondent because she was placed into the Minor Injury Guideline (the “MIG”). The applicant also applied for a non-earner benefit (“NEB”) which was denied because it was the respondent’s position that the applicant did not suffer a complete inability to carry on a normal life as a result of the subject accident. The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

5Written submissions were filed by the parties and the in-person portion of the hearing was scheduled for cross-examination on the affidavits filed by the insurer examination (“IE”) doctors of the respondent and for the applicant and her husband.

6The in-person hearing for the cross-examinations was scheduled for 3 days on June 11, 12 and 13, 2018 in Hamilton, Ontario. Approximately half way through day 2 of the hearing on June 12, 2018 the applicant became ill during the lunch break and had to be taken to the hospital by an ambulance. The hearing was adjourned.

7A teleconference hearing to complete the cross-examination of the applicant took place on July 25, 2019 and the in-person cross-examination of the applicant’s husband was completed on September 11, 2019 in Hamilton.

8After the cross-examinations were completed, the parties filed written closing submissions.

ISSUES TO BE DECIDED

9The following are the issues to be decided:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to a non-earner benefit in the amount of $185 per week from November 13, 2015 to date and ongoing?

If the answer to issue i. above is no, then;

iii. Is the applicant entitled to the cost of examination in the amount of $2,278.08 for a psychological assessment pursuant to a Treatment and Assessment Plan (OCF-18) completed by Canadian Health and Wellness dated February 2, 2016 and denied on April 4, 2016?

iv. Is the applicant entitled to the cost of examination in the amount of $2,486.00 for an In-Home and Attendant Care assessment pursuant to a Treatment and Assessment Plan (OCF-18) completed by Canadian Health and Wellness submitted on November 17, 2015, and denied on December 1, 2015?

v. Is the applicant entitled to interest on the overdue payment of benefits?

9In its submissions, the respondent raised this issue of causation and whether the injuries the applicant suffers from were as a result of the accident, therefore, I will address the issue of causation before the substantive issues in dispute.

RESULT

10Based on the totality of the evidence before me, I find:

(i) the applicant has chronic pain as a result of the subject accident and is therefore precluded from the definition of the MIG;

(ii) the psychological assessment is reasonable and necessary; and,

(iii) the applicant is entitled to interest on the psychological assessment in accordance with the Schedule.

(iv) The applicant is not entitled to an In-Home Attendant Care assessment nor is the applicant entitled to a NEB.

ANALYSIS

Causation

11Based on the evidence on a balance of probabilities, I find that the accident was a necessary cause of the applicant’s injuries for the following reasons.

12The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities.² The applicant must show that she would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause.³

13The respondent’s submissions on causation are that the applicant would have suffered from pain, impairments, limitations and restrictions in her right arm as well as her catastrophic mental and behavioural impairments if the subject accident had not occurred due to her pre-existing injuries and impairments from the motor vehicle accidents of 2004 and 2009.

14The respondent’s IE assessor, Dr. Marino, confirmed in his affidavit and on cross-examination that he was aware that the applicant suffered from chronic pain and anxiety which limited her functional abilities prior to the subject accident and that she has not reached maximum medical recovery. However, according to the respondent, this is not compelling evidence as these diagnoses are unrelated to the subject accident.

15Both parties agree that Sabadash is the leading case that determines the “but for” test and that it is the correct test to apply in an accident benefits context.

16The applicant submits that it would be incorrect to suggest that the applicant must prove on a balance of probabilities that the accident alone could have caused the impairment.⁴ The applicant further submits and relies upon the following passage from Sabadash:

“there is no indication in the [Schedule] of a legislative intent that an insurer’s liability for the accident benefits in issue in this case should be subject to discount for apportionment of causation due to an insured’s pre-existing injuries.”⁵

17The applicant submits that if pre-existing injuries have been worsened by the accident, it can meet the “but for” test and relies upon the IE assessors, Dr. Marino, psychologist, and Dr. Kopyto, general practitioner, who testified that the subject accident may have aggravated the applicant’s impairments and that there may have been a further deterioration in her condition.⁶

18The applicant’s evidence is that she does not wear a seatbelt as a passenger in a vehicle based on her doctor’s recommendation due to her existing RSD (Reflex Sympathetic Dystrophy) also known as Complex Regional Pain Syndrome or CRPS, Type 1 in her right arm. As a result of the accident, the applicant submits she was thrown forward and she hit her right elbow on the passenger door of the vehicle.⁷

19The applicant relies upon the clinical notes and records of her treating practitioners that she suffers from pain as a result of the injuries to her elbow and back and that she suffers from headaches from the subject accident.⁸

20Dr. Kopyto testified that that he accepts the fact that the applicant’s symptoms were worse after the accident,⁹ and he opines in his report that there may have been an exacerbation of her right upper extremity impairment.¹⁰

21Dr. Marino’s testimony is that the applicant deteriorated further since the 2015 subject accident and she presents with chronic pain issues and driving related anxiety which may have been aggravated by the accident.¹¹

22According to Sabadash, the accident does not need to be “the cause” of the injuries, but at least “a necessary cause.”¹² As a result of the above, I find that on a balance of probabilities, the evidence establishes that the pre-existing injuries of the applicant may have been necessarily caused by or worsened by the accident.

23Or put another way, I find that the applicant would not have suffered the injuries “but for” the accident.

24I will move now to discuss whether the applicant’s injuries are considered “minor injuries” under the MIG. The applicant submits she suffered, chronic pain, psychological impairments and an exacerbation of her pre-existing injuries, and as a result, she should not be placed within the monetary limit of the MIG.

Does the applicant suffer from chronic pain that would remove her from the MIG?

25For the following reasons, I find that the applicant suffers from chronic pain as a result of the accident and her injuries should be treated outside the monetary limits of the MIG.

26The applicant submits that she suffers from chronic pain and relies upon the OCF-3 from her family doctor and the IE assessments where it is noted that the applicant has chronic pain.

27The respondent submits that the chronic pain was not diagnosed as a result of the subject accident.

28The applicant during her cross-examination testified that she suffered from RSD as a result of the previous accident and that pain was tolerable, however as a result of the subject accident, she experienced right elbow pain which she described as “hitting your funny bone all the time…elbow pain is always in the way.”¹³

29The clinical notes and records of the applicant’s family doctor diagnosed the applicant with right elbow contusion and back strain shortly after the accident on February 23, 2015, April 2, 2015 and July 16, 2015.¹⁴

30The applicant continued to complain of ongoing right elbow pain as noted in the clinical notes and records of the family doctor, Dr. Hadcock, from May 25, 2015, Setpember 25, 2015, April 20, 2016 and April 27, 2016.¹⁵

31Dr. Wierzbicki, rheumatologist, in his report dated January 25, 2017 notes the applicant’s accident in February 2016, (which appears to be a typographical error and should be noted as February 2015) resulted in her right elbow injury and notes the following with respect to her elbow pain:

[The applicant has] exquisite pain and dystheslas at the medial aspect of her right elbow, extending down her right forearm and into her 4th and 5th fingers. Symptoms are worse with flexion of her elbow. She also has constant background pain.”¹⁶

32The respondent submits that the applicant has the onus to prove on a balance of probabilities that chronic pain is more that just sequelae or symptoms arising from soft tissue injuries and relies upon the Tribunal cases of B.U. and Aviva Canada,¹⁷ G.K and Wawanesa Mutual Insurance¹⁸ and Y.X.Y and the Personal Insurance Company.¹⁹

33The respondent further submits that to be considered to be removed from the MIG based on chronic pain, consideration will be given to the general diagnoses listed in the file, the records provided to the assessors in preparing opinions, corroborating evidence (i.e. what other practitioners are saying and the basis for their opinion), the frequency of treatment and whether there are inconsistencies in the assessor’s reports.²⁰

34In my view, the medical evidence establishes that she suffers from chronic pain. She has visited her family doctor and other medical practitioners with respect to her elbow pain as discussed above repeatedly since the subject accident. Furthermore, the applicant’s treating physician, Dr. Hadcock, notes in an OCF-3 dated November 5, 2017, which is more than two and a half years post accident that the anticipated duration of pain will be more than 12 weeks “due to severity of injuries (sic) & current chronicity, poor prognosis for return to significant activities.”²¹

35The applicant also relies upon the reconsideration decisions of the Tribunal in T.S. and Aviva Insurance Canada²² and the decision in P.L. and Aviva Insurance Canada²³ in support of her position that chronic pain is not a minor injury and does not fall within the definition of the MIG. It is the applicant’s position that a formal diagnosis of chronic pain syndrome is not required to remove an applicant from the MIG.

36In P.L. and Aviva, Vice-Chair Trojek stated the following:

I find that an actual diagnosis of CPS [chronic pain syndrome] is not required to remove an applicant from the MIG. My finding is based on the reconsideration decision of Executive Chair, Linda Lamoureux, in T.S. v. Aviva General Insurance Company. The Executive Chair in that decision found that chronic pain is by definition a condition that persists for three to six months, and that a diagnosis of CPS is not required to remove an applicant from the MIG.

37I agree with the reconsideration decisions in T.S. and Aviva and P.L. and Aviva and adopt the reasonings in those decisions regarding chronic pain for the purposes of this hearing. Chronic pain is a condition that persists for three to six months and a formal diagnosis of chronic pain is not required to remove an applicant from the MIG.

38I find that the applicant has persuaded me on a balance of probabilities that her pain has persisted for more than three to six months and is chronic in nature.

39As a result of the above, I find on a balance of probabilities that the applicant has chronic pain as a result of the injuries sustained in the subject accident and she is therefore outside the definition of the MIG and entitled to treatment beyond its monetary limits.

40As a result of finding the applicant to be outside the definition of the MIG, I will now turn to discuss whether the cost of examinations are reasonable and necessary.

Is the applicant entitled to the cost of examination in the amount of $2,278.08 for a psychological assessment?

41I find that the applicant is entitled to a psychological assessment for the following reasons.

42The applicant submits that s. 25(1) of the Schedule provides that the insurer shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. The applicant further submits it is her onus to prove on a balance of probabilities that each treatment and assessment plan is reasonable and necessary and relies upon the Tribunal case of 17-0045098 v. Certas Home and Auto Insurance,²⁴ in support of her position that to meet her onus, the evidence must demonstrate that there is a reasonable possibility that she has the condition the assessment will investigate.²⁵

43The respondent submits the applicant advised Dr. Marino during the IE assessment that she was unaware that the psychological assessment plan was submitted on her behalf. The applicant also denied speaking to the health practitioner who completed the treatment plan and according to Dr. Marino, the applicant was ambivalent about attending for psychological treatment. Therefore the respondent submits that it is not reasonable and necessary.

44I disagree with the respondent. During cross-examination of Dr. Marino, he was asked about his handwritten notes during the IE assessment and what was ultimately written into his report. In his handwritten notes he wrote as follows about the applicant:

“Easily overwhelmed over small things, sometimes flashbacks. When asked about therapy, if she needed it, crying. ‘I don’t know.’ [When asked] “Do you need it? Crying. ‘I don’t know.’ [When asked if she is] Interested? [she replied] ‘Maybe’²⁶

45I note that Dr. Marino’s report mentioned the applicant responded with “I don’t know, you tell me” when asked about treatment, however that was not a part of his handwritten notes. His report went on to state that the applicant was “ambivalent” about receiving psychological treatment.

46In my view, I do not find an applicant who may be “ambivalent” about receiving psychological treatment automatically suggests the psychological assessment is not reasonable and necessary. I would not place much weight on an applicant’s self-assessment of whether they are in need of psychological treatment.

47To determine whether an applicant should be entitled to a psychological assessment, the applicant is not required to prove that she requires the treatment. As stated in 17-0045098 v. Certas Home and Auto Insurance, the evidence must demonstrate that there is a reasonable possibility that she has the condition the assessment will investigate.

48In order to show a reasonable possibility, the applicant relies upon a pre-screening interview by Dr. Kanth dated January 26, 2016. Dr. Kanth arrived at his conclusion that an assessment is required in order to prepare a treatment plan to address her accident-related mental health conditions based on the Beck Anxiety Inventory (BAI), the Beck Depression Inventory, (BDI-II) and the Pain Disability Index (PDI) tests. Based on those tests, there was an indication that her current psychological complaints are directly accident-related.²⁷

49In Dr. Marino’s report dated March 28, 2016 his response to the question of what diagnosis the applicant has sustained as a result of the motor vehicle accident, was that she presents with Somatic Symptom Disorder with Predominant Pain, Persistent as well as Specific Phobia, driver and passenger. His report goes on to state that these issues are pre-existing from her two previous accidents and continue to persist at this time. He also states that she continues to present with driving and passenger related anxiety and that she has not reached maximum medical recovery.

50However, during Dr. Marino’s cross-examination he testified that the reference to the applicant not reaching maximum medical recovery in his report was actually in regards to the applicant’s previous accidents and not the subject accident, despite that not being written in his report.

51Based on the clinical testing done by Dr. Marino, he found the applicant’s test results to be valid and that she scored in the average range for depression and somatization and below average for anxiety. He also found that her experience of depression may play a role in her experience of pain.²⁸ Dr. Marino goes onto testify and stated the following:

“I ruled out a major depressive disorder because what I was being asked to comment on was specifically the index accident. The (sic) what I did diagnose was somatic symptom disorder with predominance of pain, and within that diagnosis features of somatic symptom disorder are issues of depression and anxiety.”²⁹

52Despite Dr. Marino’s testimony that he was referring to the applicant’s previous accidents when opining on her diagnosis, I find that his opinions in his written report, which are based on clinical testing, to be more persuasive.

53As a result of the above, based on the pre-screening report of Dr. Kanth and Dr. Marino’s opinion that her psychological symptoms still persist, I find on a balance of probabilities that the evidence demonstrates that there is a reasonable possibility that the applicant has a psychological condition that would warrant a psychological assessment. In my view, a psychological assessment is reasonable and necessary.

Is the applicant entitled to the cost of examination in the amount of $2,486.00 for an In-Home and Attendant Care Assessment?

54I find that an In-Home Attendant Care Assessment is not reasonable and necessary for the following reasons.

55The onus is on the applicant to prove entitlement and I have not been persuaded on a balance of probabilities that the evidence demonstrates that this assessment is reasonable and necessary.

56The applicant’s submissions are that the In-Home Attendant Care assessment is reasonable and necessary because it has been incurred which shows the need for ongoing attendant care.

57The respondent submits the list of injuries listed in the treatment plan are outside the scope of an occupational therapist. In addition, based on the medical records provided to the respondent, the records confirmed that the applicant was independent with her self-care tasks. Furthermore, the applicant testified during her cross-examination that she has not required the assistance with attendant care tasks and that she has not incurred any such expenses.³⁰

58I agree with the respondent. The applicant has not directed me to any evidence on the need for an In-Home Attendant Care assessment, nor has the applicant directed me to any evidence that the assessment has been incurred.

59As a result of the above, I find that the In-Home Attendant Care Assessment is not reasonable and necessary.

60I will now move on to discuss whether or not the applicant is entitled to a non-earner benefit.

Does the applicant meet the requirements for a non-earner benefit?

61I find that the applicant has not satisfied her onus and has not convinced me on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident for the following reasons.

62The test for entitlement to a NEB is for the applicant to show that she sustained an impairment as a result of the accident and that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident and does not qualify for an income replacement benefit.³¹

63Both parties have cited the Heath³² case where the Ontario Court of Appeal has provided an analysis of the proper approach to interpret the test for NEBs. The principles from Heath are as follows:

I. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

II. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident; the duration of which will depend on the facts of the case.

III. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

IV. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

V. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

VI. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.

63In order for me to assess the applicant’s claim for NEBs, she must show what her life was like before and after the accident and greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

64The applicant submits the activities that are most important to her are:

• Taking care of her children
• Taking care of herself
• Helping take care of the family home
• Having a relationship with her husband

65The applicant further submits that as a result of the three OCF-3 Disability Certificates and records from her treating physician, neurologist, rheumatologist and plastic surgeon she should be found to be entitled to NEBs.

65The applicant has not pointed me to evidence in support of her claim other than her submissions. However, upon review of the medical evidence, I am not persuaded on a balance of probabilities that the applicant has a complete inability to carry on a normal life as a result of the subject accident.

66In the present case, the applicant has provided multiple OCF-3’s from her family doctor, Dr. Hadcock, that check marked “yes” to the question of whether she suffers a complete inability to carry on a normal life and that she has difficulty with activities of daily living. However, the OCF-3 does not address the components from the Heath test and it does not provide a comparison or a snap shot of the applicant’s pre and post accident activities.

67After a review of the neurology reports of Dr. Savelli, the rheumatology reports of Dr. Wierzbicki, and the reports from Dr. Thoma, I do not find them to be of assistance with respect to the NEB test. Other than a discussion of the applicant’s pre-existing injuries, I am not able to locate any pre and post-accident analysis in accordance with the Heath case.

68The applicant’s family doctor, Dr. Hadcock, does mention that the applicant has difficulty with ADL’s (activities of daily living), however, other than the notation itself, I have not been directed to evidence within his clinical notes and records that shows her pre and post-accident activities in accordance with Heath.

69The respondent submits that during the IE assessments, the applicant confirmed that her mother and mother-in-law were primarily responsible for housekeeping tasks pre-accident. Post-accident, her mother and mother-in-law also assisted with heavier cleaning tasks, grocery shopping, laundry and outdoor maintenance.³³ According to the IE reports, the applicant self-reported that she is able to do light household chores such as cleaning and laundry with pacing, she was still able to drive (with reported anxiety which was pre-existing) and that she was independent with her self-care tasks. Some assistance was required with dressing tasks and that there was no change in her childcare activities post-accident.³⁴

70The respondent further submits that despite the applicant’s family doctor’s OCF-3 notation that the applicant met the test for a NEB, he did not provide any evidence in support of his opinion that she has a complete inability to carry on a normal life.

71The applicant and her husband testified that prior to the subject accident in 2013 and 2014 the applicant was learning to accept her new life and cope with the pain from her previous accidents. She was able to do her kids’ hair but after the subject accident she was unable to do it.³⁵

72Her husband also testified that the applicant was starting to feel better in 2014 and he did not have to help out as much with certain things. She was functioning as a person and was contributing to the family unit, however, as a result of the subject accident she was more edgy with him and the kids.³⁶

73However, despite the testimony from the applicant and her husband, the evidence suggests the applicant was receiving assistance from her mother, mother-in-law and husband prior to the accident and also similar assistance post-accident.

74With the onus on the applicant to prove on a balance of probabilities, I find that the onus has not been met. After a review of the evidence, I am not persuaded that the applicant has a complete inability to carry on a normal life as a result of the accident and as a result, I find that the applicant is not entitled to NEBs.

ORDER

75As a result of the above and on a balance or probabilities, I find that:

(i) the applicant has chronic pain as a result of the subject accident and is therefore precluded from the definition of the MIG;

(ii) the psychological assessment is reasonable and necessary; and,

(iii) the applicant is entitled to interest on the psychological assessment in accordance with the Schedule.

76The applicant is not entitled to an In-Home Attendant Care assessment nor a NEB.

Footnotes

1. 1O. Reg. 34/10.
2. 2Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 (“Sabadash”).
3. 3Ibid at para. 36.
4. 4Sabadash at para. 39.
5. 5Sabadash at para. 31.
6. 6Transcript of Dr. Marino, June 11, 2018, p. 39 at 159-160 and Dr. Kopyto’s Report dated October 5, 2015 at pages 9-10.
7. 7Applicant’s affidavit of May 7, 2018 at para. 27.
8. 8Initial Written Submission of the Applicant at Tabs 10, 13-17 and 24.
9. 9Dr. Kopyto’s Transcript dated June 12, 2018 at page 38.
10. 10Dr. Kopyto’s Report dated October 5, 2015 at page 10.
11. 11Dr. Marino Transcript dated June 12, 2018 at page 39, 159-160.
12. 12Sabadash at para. 39.
13. 13Transcript of the applicant dated June 11, 2018 pgs. 23-24 at 131-138 as well as the Transcript of the applicant dated July 25, 2019 at page 38.
14. 14Initial Written Submission of the Applicant at Tabs 10, 17 and 24.
15. 15Ibid at Tabs 13, 14, 15 and 16.
16. 16Ibid at Tab 28.
17. 172016 CanLII 96167 (ON LAT at paras 14 and 17
18. 182017 CanLII 46356 at paras 15-16.
19. 192017 CanLII 59515 (ON LAT) at para. 23.
20. 20C.A and the Dominion of Canada General Insurance Company, 2017 CanLII 63662 (ON LAT) at paras 15, 17, 18, 23, 24; Applicant and Aviva Insurance, 2017 CanLII 70685 (ON LAT) at paras 15, 22-23.
21. 21Applicant’s Initial Submissions, at Tab 32, OCF-3 Part 6 at page 3.
22. 22T.S. v. Aviva Insurance Canada, 2018 CanLII 83520 (ON LAT)
23. 23P.L. v. Aviva Insurance Canada 2019 CanLII 22223 (ON LAT)
24. 242018 CanLII 13412 (ON LAT).
25. 25Ibid at para. 15.
26. 26Transcript of Dr. Marino, Dated June 11, 2018 at page 64, at 237.
27. 27Applicant’s Initial Written Submissions at Tab 39.
28. 28Transcript of Dr. Marino Dated June 11, 2018 at pages 29, 30-32.
29. 29Ibid at page 35, at para. 145
30. 30Transcript of the Applicant dated July 25, 2019 at pages 30-31.
31. 31Section 12(1) of the Schedule.
32. 32Heath v Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”).
33. 33Written Submissions of the Respondent at Tabs 2A and 3A.
34. 34Ibid.
35. 35Transcript of the Applicant, July 25, 2019 at pages 41-42.
36. 36Transcript of the Applicant’s husband, September 11, 2019 at pages 67, 72-73.