NOTE: This Decision is NOT A TRUE COPY OF FINAL DECISION.

Neutral Citation: 1991 ONICDRG 1

File No A-000064

ONTARIO INSURANCE COMMISSION

B E T W E E N:

Norman Downs Applicant

and

Allstate Insurance Company of Canada Insurer

DECISION

Issue:

The Applicant was injured in an automobile accident on June 23, 1990. He applied for and received weekly no-fault benefits payable pursuant to s. 13 of the No-Fault Benefits Schedule. Ontario Regulation 273/90, enacted under the Ontario Insurance Act, R.S.O. 1980 c. 218, as amended by the Insurance Statute Law Amendment Act. S.0. 1990, c. 2. Weekly benefits were paid from June 30, 1990 to December 11, 1990. At that time, weekly benefits were terminated by the Insurer on the basis that medical evidence did not establish that the Applicant suffered substantial inability, as a result of the accident, to perform the essential tasks in which he would normally engage.

The Applicant applied for mediation. The mediation was unsuccessful in respect to the issue of weekly benefits and the Applicant subsequently applied for the appointment of an arbitrator under s. 242d of the Insurance Act, as amended.

The issues to be determined in this arbitration are: (1) Is the Applicant entitled to weekly benefits from December 11, 1990, onwards, (2) Is the Applicant entitled to interest for any outstanding amounts payable

The Application for Appointment of an Arbitrator dated March 12, 1991 also raised an issue regarding the payment of expenses for medical services. However, the parties agreed that this was not an issue in dispute for the purpose of this arbitration proceeding.

Result:

The decision is:

(1) The Applicant is not entitled to weekly benefits pursuant to s. 13 of the No-Fault Benefits Schedule as a result of injuries sustained in an automobile accident on June 23, 1990.

(2) No interest for outstanding amounts is owed or payable to the Applicant by the Insurer.

Hearing:

An arbitration hearing was held at North York, Ontario on May 28 and 29, 1991 before me, Susan Naylor, arbitrator.

Present at the hearing were:

The Applicant: Norman Downs

The Applicant's representative: CJ. Tritt, assisted by Gerald Tritt

The Insurer: Allstate Insurance,

represented by: Pam Pigott, Senior Claims Representative, and

May Gibillini, Casualty Claims Manager,

The Insurer's representative: W.T. McGrenere, Barrister & Solicitor

The following witnesses testified at the hearing:

The Applicant

Dr. David E. Greenberg

Dr. Robert Ogilvie

Xay Luu

Tran Lai

Dr. Stephen Tishler

Police Constable Daniel Robinson

May Gibillini

Documents before the arbitrator:

Exhibit 1: Report of Dr. Robert Ogilvie, B.Sc., D.C., dated May 3, 1991.

Exhibit 2: Report of Dr. John T. Hart, M.D., F.R.C.S.(C), dated January 16, 1991.

Exhibit 3: Report of Dr. Michael C. Hall, M.B., Ph.D.,F.R.C.S.(C),, dated August 30, 1990.

Exhibit 4: Report of Dr. Michael C. Hall. M.B.,Ph.D.,F.R.C.S.(C), dated January 30, 1991.

Exhibit 5: Copy of Report of Dr. Herbert Basian, M.D., F.R.C.S.(C) D.AB.S., dated October 25, 1990.

Exhibit 6: Copy of Report of Dr. Gianni Maistrelli, M.D.,F.R.C.S.(C), dated December 11, 1990.

Exhibit 7: Report of Dr. David E. Greenberg, B.A., M.D., dated January 11, 1991.

Exhibit 8: Copy of Report of Dr. David E. Greenberg, B.A., M.D., dated May 27,

1991

Exhibit 9: Invoice from Albany Medical Clinic. undated.

Exhibit 10: Copies of Patient History and Clinical Notes in regards to the insured person, of Dr. Robert Ogilvie, B.Sc.,D.C.

Exhibit 11: Copy of Hospital Records in respect to the insured person, from St. Michael's Hospital, Toronto.

Exhibit 12: Report of Dr. Hugh U. Cameron, M.B.Ch.B.,F.R.C.S.(C), D.A.B.O.S., F.A A O.S., dated May 24, 1991.

In addition, the following documents were provided to the arbitrator, but not marked as Exhibits at the hearing:

Curriculum Vitae of Dr. Michael C. Hall.

Curriculum Vitae of Dr. Hugh U. Cameron.

Copy of Request for Consultation, dated October 29, 1991, from Dr. David E. Greenberg to Dr. Maistrelli.

Application for Appointment of an Arbitrator, dated March 12. 1991.

Response by Insurer, dated April 9, 1991.

Report of Mediator, dated March 8, 1991.

Case Authorities:

The following cases were cited to the arbitrator in the course of the hearing:

Machado v. Berlet (1986) 57 O.R.(2d) 208

Jones v. Heidel (1985) 6 C.P.C.(2d) 318

Evidential Issues:

At the conclusion of the Insurer's case, the Insurer's representative sought to introduce a surveillance videotape of the Applicant performing certain activities, taken several days prior to the hearing.

Counsel for the Insurer had provided no prior notice of the existence of the film, or of an intention to introduce it in evidence. In cross-examination, he had put to the Applicant the activities depicted in the film, but in a generalised way. He did not advise the Applicant of the existence of the film, or give particulars of its contents.

The Insurer's representative submitted that there was no obligation to provide notice of the evidence, as the sole intent in introducing the material in evidence was to impeach the testimony of the witness in relation to evidence given on cross-examination respecting the disabling effects of the accident. He argued that the provision of notice of the evidence in advance would defeat its purpose. In support of his argument that no notice of the evidence was required, he cited the cases of Jones v. Heidel (1985) 6 C.P.C.(2d) 318, and Machado v. Berlet (1986) 57 O.R.(2d) 203.

In the former case, Mr. Justice Potts concluded that the use of surveillance photographs at trial to impeach the testimony of a witness, without prior disclosure, was permitted under Rule 30.09 of the Rules of Civil Procedure, governing court proceedings.

In the case of Machado v. Berlet, (supra), Mr. Justice Ewaschuk also allowed surveillance films to be admitted in evidence for the purpose of impeaching the testimony of the plaintiff. The defendant had previously claimed privilege for the films, and therefore, had not disclosed them. The court concluded that, by failing to put to the plaintiff the fact that the films had been taken, and particulars of their contents, the defence had breached the rule of fair advocacy enunciated in Browne v. Dunn (1894) 1893 CanLII 65 (FOREP), 6 R. 67, (H.L), adopted by the Supreme Court of Canada in Peters v. Perras et al.(1909) 1909 CanLII 178 (SCC), 42 S.C.R. 244.

He described the rule in Browne v. Dunn as follows (p.210):

" (it) imposes on an opposing party the duty of giving a witness an opportunity of explaining evidence which the cross-examiner intends to use later to impeach the witness' testimony or credibility. In other words, a crossexaminer must expressly put to the witness the substance of evidence which is to be later tendered in an attempt to contradict the witness. Thus, a witness' testimony cannot later be impeached by contradictory evidence unless the contradictory evidence has been previously put to the witness in an express and particularised manner."

However, the court did not exclude the evidence, but allowed it to be tendered, subject to the right of the plaintiff to call reply evidence to explain it, and the right of adverse comment to the jury by plaintiff's counsel and the judge during address and charge.

It was noted, however, that counsel for the defence gained an advantage of further cross-examination of the impeached witness. The breach was also taken into account in awarding costs

The representative of the Insurer submitted that the reasoning of the court in Machado v. Berlet should be followed and the surveillance evidence be admitted, subject to the right of the Applicant to call reply evidence.

The representative of the Applicant objected to the admission of the evidence. He argued that prior notice of the evidence should have been given under the Dispute Resolution Practice Code governing the conduct of arbitrations, and, therefore, that the admission of the evidence was precluded.

I declined to admit the evidence on the grounds set out below:

Firstly, it should be noted that the Insurer sought to introduce the evidence solely to impugn the testimony of the Applicant. However, my decision in this case does not turn upon the credibility of the Applicant. Neither the evidence, or this ruling, therefore, are relevant to the outcome of the case.

I am satisfied that, in failing to advise the Applicant of the film, and of particulars of its contents, counsel for the Insurer breached the principle of fair advocacy, applied in Machado v. Berlet. However, in my view, the reasoning of the court in admitting the evidence, notwithstanding the breach, does not apply in the circumstances of these proceedings.

Pursuant to the section 15(1) of the Statutory Powers Procedure Act, R.S.0.1980, c. 4, and restated in section 18(1) of the Dispute Resolution Practice Code, enacted under section 60 of the Insurance Act, as amended, an arbitrator is not bound by the strict rules of evidence.

However, when exercising a discretion to admit evidence, the arbitrator must apply the principles of natural justice and fairness. The arbitrator must also have regard to the underlying purpose of the evidentiary rule, and evaluate it in the context of the particular adjudicative process.

The purpose of the rule in Browne v. Dunn, is to ensure that the witness has the opportunity of giving an explanation in respect to the impeaching evidence. It is a matter of fairness to the witness.... as Mr. Justice Ewaschui; states in Machado v. Berlet, a n basic rule of fair advocacy," and as stated by Lord Herschell in Browne v. Dunn (p.70), "not only a rule of professional practice in the conduct of a case, but ... essential to fair play and fair dealing with witnesses."

The failure of counsel to advise the Applicant of the film, and of particulars of its contents denied the Applicant an opportunity to give an explanation. In my view, the provision of a right of reply may not appropriately or adequately redress the breach in the context of an arbitration proceeding.

Arbitration hearings are intended to be swift and relatively straight-forward and informal proceedings. The parties are not necessarily represented by counsel. The practices governing arbitrations should facilitate access for all participants and ensure proceedings are conducted speedily.

In this case, the evidence was withheld for tactical reasons only. To adrnit the evidence, subject to a right of reply, would likely have prejudiced the Applicant, and thereby resulted in delay in the completion of the proceedings. The Applicant would be unnecessarily exposed to further cross-examination. The prejudicial effect of evidence, if admitted, in my view, clearly outweighs its value.

The Facts:

(a) The Occurrence of the Accident

The accident involving the Applicant occurred on June 23, 1990, at approximately 9.45 am. at the intersection of Dunn Ave and Queen St. in the City of Toronto.

The Applicant testified that he was crossing Dunn Ave, at Queen St. from east to west, on a red light. His left foot was run over by the wheel of a car, turning right at the intersection. He fell back on his right elbow, jamming his shoulder into his neck. As a result of the accident, he sustained injuries to his left foot and leg, right shoulder, neck and upper and lower back.

The Applicant's evidence was that the wheel of the car remained on his foot for approximately five minutes. After the Applicant shouted, the driver of the car got out of the car, viewed the situation, and then returned to the car to reverse it off his foot. The Applicant remained on the roadway, until a policeman attending the scene ordered him to move. An ambulance attended the scene, and the ambulance attendants helped him to the side of the road.

The testimony of the Applicant was that the ambulance attendants told him his injuries were insufficient to warrant an ambulance, and that he would have to pay extra for the service. He declined to go in the ambulance because he could not afford the expense. He testified that the ambulance attendants drove away without inspecting his injuries. He stated the police constable in attendance suggested he should go to a hospital, but did not offer to drive him there. The Applicant took the streetcar to St Michael's Hospital in Toronto, where he was seen in the Emergency Department.

At the time of the accident, the Applicant was aged 51. He was not employed, and had not engaged in his former employment as a commercial fisherman for many years. The precise number of years was not specified. The Applicant testified that he suffered from emphysema. He was in receipt of a federal disability pension on account of his condition.

The car involved was driven by the policy-holder, Xay Luu, and also occupied by the policyholder's spouse, Tran Lai. Both testified through an interpreter at the hearing. Mr. Luu indicated that he was driving slowly - at about 10 to 15 kilometres per hour - approaching an intersection to turn right. His spouse, who was a passenger in the car, called out to him to stop the car, which he did immediately. He got out of the car, and saw the Applicant fallen in the roadway, propped on both hands, and with one foot approximately 6 inches from the wheel of the car. He did not notice the other foot. He did not see any injuries, other than scratches. He did not get back into the car and move it, as testified by the Applicant.

Ms. Lai testified that she saw the Applicant fall down from the window of the car, and told her husband to stop the car. She stated that the car was not moving at the time but had slowed to a halt, ready to turn right at the intersection. Both she and her husband got out of the car immediately. She estimated the time from seeing the Applicant fall down to getting out of the car at, at most, one minute. She saw the Applicant sitting on his seat, leaning back on his elbows, with both feet on the ground and knees bent. The wheel was a few inches from his feet. She heard the Applicant refuse the services of the ambulance because he would have to pay for them.

Police Constable Daniel Robinson of the 14th Division, Metropolitan Police, also gave evidence. He carne across the accident at 9.46 am. as he was travelling past the scene, and notified the dispatcher. He saw the Applicant sitting on the south-east corner of the sidewalk, rubbing his foot. He called the dispatcher for an ambulance. An ambulance arrived shortly afterwards.

The Applicant declined the services of the ambulance, and stated he would seek his own medical attention. The officer testified that the Applicant did not ask him for assistance, and that he would have driven him to a hospital, if requested. Statements were taken from both parties. The constable reported the accident as a "short-form, non-reportable accident," involving only property damage under $700 value. He stated that the Applicant left the scene unaided, limping.

The Applicant testified that he went to the Emergency Department of St. Michael's Hospital, Toronto by public transit, following the accident. He was suffering from pain in hic left ankle and shin. his elbows. ribs. lower back and collarbone.

(b) The Medical Evidence

The Applicant was seen in the Emergency Department of St. Michael's Hospital at approximately 11.45 am. on the same day. Dr. Stephen Tishler, a new intern, attended to him. A copy of the hospital records relating to the Applicant (Exhibit 11) were introduced in evidence and Dr Tishler testified in person at the hearing.

The Emergency Department Record indicates that the Applicant complained of pain in his left foot, the joint of his right hand, and in his left chest. A complaint of back and flank pain was specifically ruled out, and no mention was made of a complaint of shoulder or neck pain. Dr. Tishler testified that he would have made a note of shoulder pain, had a complaint been made.

Dr. Tishler examined the Applicant. He found tenderness over the dorsum of the right hand and the left foot and abrasions over the left and right elbows. He found full range of motion of the neck without pain. X-rays of the foot and chest were taken. They revealed that the Applicant had no fractures. The Applicant's abrasions were cleaned and he was given Tylenol for pain. He was told to follow up with his family physician, and a note was provided indicating that he was fit to return to work. The final diagnosis was of a bruised left foot and bruised lower left ribs.

On August 30, 1990, the Applicant was examined by Dr Hall at the request of the

Insurer. The Applicant testified that, at this time, he could hardly get around because of pain in his left leg, and he was prevented from raising his right arm due to shoulder pain.

He also indicated he had complained about pain in his top collarbone and lower back at his ribs.

Dr. Hall's report (Exhibit 3) identified the Applicant's complaints as discomfort at his right shoulder, with some loss of comfortable movement, and a sore left foot, causing him to limp. The report noted no complaint of neck or back pain.

Dr. Hall examined the Applicant. He noted a complaint of pain with elevation and external rotation of the shoulder, but he found that, with slight passive assistance, the range of motion on the right side was equal to that on the left. Dr. Hall found that the Applicant's legs were swollen, and the left leg markedly so. He thought that the swelling in the legs was related to a possible cardiac condition, and varicose veins, unrelated to the accident.

Dr. Hall concluded that:

"he (the insured) is fully mobile and gets around as much as he would wish to get around. There is also no evidence of any significant injury, and I do not anticipate any significant continuing problems as a result of the accident."

Dr. Hall did not see the Applicant again. He filed a further report of January 30, 1991 (Exhibit 4). The report adds nothing material to the above.

On October 4, 1991, the Applicant was seen by Dr. David Greenberg, a family practitioner. Dr. Greenberg filed a report of January 11, 1991 (Exhibit 7) and a further report of April 4, 1991 (Exhibit 8) He also testified at the hearing.

Dr. Greenberg first saw the Applicant on October 4, 1990. At that time, the Applicant complained that pain in his foot prevented him from walking properly and for any distance.

His shoulder was painful, with reduced strength and range of motion, and the pain kept him from sleeping comfortably at night. He also complained of upper and lower back pain.

Dr. Greenberg examined the Applicant. He found the left foot was tender, and his left leg to the calf was swollen and red. He found no varicose veins. He referred the insured to a vascular surgeon, Dr. Basian, for a more conclusive opinion as to his foot pain.

Dr. Greenberg noted that the right shoulder was swollen, with a markedly decreased range of motion and noticeably less strength than the left shoulder. He testified that the right shoulder was atrophied. X-rays conducted were normal.

The Applicant also complained of back pain, the first mention of this complaint in the medical reports. Some tenderness and stiffness were found in the back muscles, particularly in the thoracic and lower lumber regions.

On cross-examination, Dr. Greenberg was asked why back pain would not have materialised earlier if it was related to the accident. He stated that it could be, in part, because the doctors were concentrating on the other more immediate problems. Also, the back pain could be the result of the body compensating for the effects of the other injuries, particularly the limping. Dr. Ogilvie also gave the same assessment, when asked.

Dr. Greenberg referred the Applicant to Dr. Maistrelli, an orthopaedic surgeon for a specialist opinion.

Dr. Greenberg concluded that the Applicant's injuries were consistent with the Applicant's description of the accident.

Dr. Greenberg saw the Applicant again on October 29, 1990, after his visit to Dr. Basian. The Applicant's complaints were essentially the same as before. He placed the Applicant on a regime of anti-inflammatory medication.

Dr. Basian saw the Applicant on October 25, 1990. His consultation report (Exhibit 5) noted that the Applicant was still limping a bit, but had obviously improved. He thought the Applicant might have developed a reflex sympathetic dystrophy. He ruled out varicose veins. He recommended an elastic support, and concluded that n hopefully, with elastic support and progressive ambulation, the complaint would resolve."

The Applicant was also referred to Dr. Giarmi Maistrelli, an orthopaedic surgeon, who saw him on December 11, 1990 (Exhibit 11). His report (Exhibit 6) notes that the Applicant had improved over the past few weeks and the main complaint was of right shoulder pain. Dr. Maistrelli found that the Applicant had some difficulty bringing his right hand behind his head, and neck and to his back. He concluded that the Applicant had sustained a right rotator cuff tendobursitis, and referred him to physiotherapy.

The Applicant testified that he received physiotherapy treatment at the Albany Clinic on a number of occasions in December 1990, and January and March, 1991, but discontinued it because he could not afford it. He acknowledged giving a statement to the Insurer on January 25, 1991 that he had not started therapy.

On December 11, 1990, the Applicant's benefits were terminated. According to the evidence of Ms. Gibillini, a Casualty Claims Manager for the Insurer, the termination was based on Dr. Hall's earlier report of August 30, 1990. The Insurer also requested a specialist opinion in respect to any cardiac or vascular problems. The Applicant was examined by Dr. Hart on January 15, 1991. His report (Exhibit 9) disclosed no significant circulatory problems.

Dr. Greenberg saw the Applicant again on March 3, 1991 (Exhibit 8). He found "minimal if any improvement", because of the lack of physiotherapy treatment. The Applicant's complaints and his findings on examination were essentially the same as before. He noted limitation in the range of motion of the right shoulder and also of his back, due to paralumbar and parathoracic vertebral muscle spasms. He referred the Applicant back to Dr. Basian, and to Dr. Ogilvie, a chiropractor.

After the chiropractic treatment had commenced, Dr. Greenberg saw the Applicant again on May 3, 1991. He found a slight improvement in his condition. He concluded that the Applicant's foot and leg injuries would heal in time. However, he indicated that there had been minimal improvement over the prior 10 months due to a lack of access to therapy, particularly with regard to the injuries to his back, neck and right shoulder. In his evidence, he indicated that it was difficult to know if the Applicant would ever get full strength back in his shoulder. His prognosis with regards to an eventual complete recovery to the Applicant's pre-accident state remained guarded.

Dr. Robert Ogilvie filed a report in respect to his chiropractic treatment (Exhibit 1), and testified at the hearing. He first saw the Applicant on April 15, 1991 and commenced treatment on April 16, 1991. The Applicant's complaints were similar to those recorded by Dr. Greenberg: pain and limited mobility in the right shoulder, restricting sleep to 3 to 4 hours, and preventing the Applicant from lying on his shoulder or turning over in bed; foot pain causing him to limp and limiting walking to one or two blocks, and upper thoracic and lower back pain. The Applicant also complained of neck pain and headaches.

Dr. Ogilvie examined the Applicant. He found movement deficits in a number of joints, including the trunk, right shoulder, neck, right ribs, upper and lower back and left forefoot and ankle.

Dr. Ogilvie concluded that:

Mr. Downs sustained a compression strain to his left forefoot, and a contusion to the anterior aspect of his left leg. In an effort to protect himself, he sustained soft tissue injuries about his right shoulder girdle. These included a second degree sprain to the right acromioclavicular joint, and contusions to the rotator cuff tendons, from forceful impingement between the humerus and acromion of his right shoulder. Mr. Down's impact with ground also caused torsional sprain and strain injury to his cervicothoracic spine, upper right ribs and lumber spine. The above findings are consistent with and suggest an accidental injuries such as described... "

In his evidence, Dr. Ogilvie indicated that some objective improvement had been noted, with a slight reduction in the Applicant's symptoms, following the commencement of the chiropractic treatment. He concluded that full recovery was "highly likely" after a further intensive course of treatment of at least 3 months

The Applicant was examined by Dr. Hugh Cameron, an orthopaedic surgeon, on May 24, 1991, at the request of the Insurer.

Dr. Cameron's report (Exhibit 12) noted a complaint of pain in right shoulder, which prevented the Applicant from lying on it during the night, and bothered him in doing any work with his right arm. He also noted a complaint of pain on point of the elbow on lifting too much. The Applicant also complained of pain in his upper right ribs, lower back and in his foot, although the latter, he felt, was gradually getting better.

Dr. Cameron examined the Applicant. He found no major pathology in respect to the foot or evidence of reflex sympathetic dystrophy. He concluded that the Applicant's symptoms had largely resolved, and no ongoing disability relating to the foot existed.

Dr. Cameron concluded that the Applicant's right shoulder appeared to have suffered a strain, and that he continued to have symptoms at that site. He found no muscle wasting. He did not feel that the symptoms were of sufficient severity to disable the Applicant, and concluded that he was fit for any occupation in which he formerly engaged. In his view, the complaints of neck and back pain did not relate to the accident, due to the absence of a more immediate temporal relationship. He concluded that:

"I do not believe this man to be disabled from the essential tasks that he normally engages in.

(c) The Applicant's Pre-Accident Medical History

The Applicant's pre-accident medical history is unclear. He testified that he had suffered from prior neck and lower back problems, which had originated approximately 25 to 30 years ago. In the past, he had taken occasional anti-inflammatory medication. The accident aggravated his condition, and after it, he had to take pain-medication and was placed on more anti-inflammatory medication.

The Applicant testified that he had fractured his left elbow and suffered an abdominal injury in a motor vehicle accident 25 years ago. He had also fractured both femurs in a separate accident. The St Michael's Hospital Records indicated surgery in 1982 and 1985 related to a left elbow condition, problems with the ulnar nerves in both arms and neck pain in 1986, and treatment for a bruised left foot in 1987, resulting from a fall in the home.

Dr. Ing was the Applicant's family physician before the accident. The Applicant testified that, prior to the accident, he received occasional anti-inflammatory medication from Dr. Ing for his back. He continued to see Dr. Ing twice a week for anti-inflammatory medication and pain medication for the aggravation of his back problem after the accident.

I received no evidence from Dr. Ing. He was not called to testify, nor were his clinical notes or a report filed. During the course of the hearing, the applicant's representative sought to introduce in evidence a very brief notation from the physician. There had been no prior disclosure of the document, although the representative had been advised on several occasions of the requirement of notice. No explanation was given either for the lack of prior disclosure or for the manifestly incomplete nature of the evidence. Therefore, the document was not admitted in evidence

Dr. Greenberg did not recall being told of a prior back condition, and was unaware of a prior neck condition. He indicated, however, that the nature of the accident could either have caused the Applicant's complaints or have aggravated them. He also stated that he did not know whether the Applicant's emphysema had prevented him from walking further than one or two blocks before the accident.

Dr. Ogilvie testified that he was told of a history of low back pain, although he did not know its duration. He was told that the back pain had been mild prior to the accident in comparison with after it, and he concluded that the accident had aggravated the problem. Dr. Ogilvie could not state conclusively whether the Application's limitations in movement were greater after the accident than before it, since he had not examined the Applicant previously; however, he concluded that there was a likely relationship between the injuries complained of and the accident.

(d) The Applicant's Evidence of Disability

At the hearing, the Applicant stated that he continued to limp as a result of left foot pain. His right shoulder continued to be painful, with restricted motion, and he still suffered from upper and lower back pain and neck pain related to the accident.

The Applicant stated that he could only walk for one or two blocks, because of his limp. His evidence was that, prior to the accident, he was able to walk essentially the same distance, due to breathing difficulties arising from his emphysema. He was unable to walk beyond three or four blocks because he might collapse as a result of breathing difficulties. He stated that he was currently able to walk the same distance as before, but with greater difficulty, because of his limping. He also had difficulty walking up stairs.

He testified that he continued to suffer from right shoulder and back pain. He was unable to bend down and touch his toes or pick up an object off the ground if he dropped it. He indicated that he was unable to play baseball or engage in fishing. He conceded however that he had performed neither activity for some years prior to the accident.

He stated that he could dress and bathe himself, although he could not do so immediately after the accident, and as of the date of the hearing, he could not perform either activity as well as before the accident. He was able to feed himself and go to the bathroom without assistance. He stated that he could perform the essential tasks he used to do, but he could not do them as well as before.

The Submissions of the Parties

(a) The Applicant

The position of the Applicant is that he sustained injuries to his left foot and leg, neck, right shoulder and upper and lower back, as a result of the accident. The Applicant's representative did not argue that these injuries substantially prevented the Applicant from performing the essential tasks in which he would normally engage. Indeed, he expressly stated that the Applicant was able to perform his usual essential tasks. However, he argued that the Applicant was not able to perform such tasks as well as he had done prior to the accident. It was his position that the Applicant was entitled to weekly benefits under s.13 of the No-Fault Benefits Schedule, until he had recovered to the condition he was in before the accident.

(b) The Insurer

The position of the Insurer is that the injuries of which the Applicant complained did not disable him to the extent required under s. 13. of the No-Fault Benefits Schedule - that is, the Applicant was not, as a result of the accident, substantially unable to perform his essential tasks

The Insurer's representative further argued that, in any event, the evidence did not establish that the Applicant suffered the injuries he alleged as a result of the accident. He challenged the credibility of the Applicant. He argued that the medical evidence in support of the Applicant was essentially based on his subjective complaints, rather than on objective findings. He suggested that the Applicant had grossly exaggerated the length of time the car had remained on his foot, and argued that, at best, the evidence supported a momentary passing over of the foot. He particularly emphasised the evolution of the onset of complaints - the absence of a complaint of shoulder, neck or back; pain immediately after the accident, the absence of a complaint of neck or back pain at the time of the visit to Dr. Hall, and the emergence of a complaint of neck pain only on visiting Dr. Ogilvie. He submitted that an adverse inference should be drawn from the absence of evidence from Dr. Ing. He also drew attention to the Applicant's prior medical problems and the fact they had not been disclosed to the physicians who examined him.

Decision:

Section 13 of the No-Fault Benefits Schedule sets out the statutory standard to be established for the payment of weekly benefits. It provides as follows:

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

There is no issue with respect to the qualifications in subsection (2).

Under the terms of section 13, weekly benefits are payable "during the period in which the insured person suffers substantial inability to perform the essential tasks in which he would normally engage".

In order to establish entitlement to weekly benefits under s. 13, an applicant must prove, on the balance of probabilities, that, for the period for which benefits are claimed, the applicant is disabled as a result of the effects of his or her injuries, to the degree required by the terms of the section. The limitation may be physical, mental or psychological in nature.

Pain and suffering which is experienced as a result of injuries sustained in an automobile accident are not, per se, compensable under section 13, unless the experience of pain causes an insured to be substantially disabled, within the meaning of the section.

To establish entitlement to weekly benefits, evidence must be adduced that the effects of the injury, to some significant extent, prevent an applicant from carrying out the necessary and key tasks that were normally performed before the accident. It requires an individualised inquiry into the circumstances of the particular applicant, in order to identify the activities of daily living prior to the accident and compare them with the post-accident activities.

I heard minimal evidence as to the tasks, activities or lifestyle of the Applicant either before or after the accident.

The Applicant testified that the pain in his left foot caused him to limp, and prevented him from walking a distance of more than two blocks. However, he acknowledged that the distance he was able to walk was essentially the same as prior to the accident, except that walking was more difficult and painful because of his injuries. He could walk, but with a limp.

He also indicated he had difficulty climbing stairs. However, he did not testify that his injuries rendered him substantially unable to climb stairs.

The Applicant also testified that he had limited motion and pain in his right shoulder, and back. This limited his ability to bend over, and prevented him from touching his toes or picking up items that had been dropped. However, when asked how this affected him, he said that he would be unable to play baseball or fish, activities which he conceded he had not performed for a considerable period of time prior to the accident.

The reports and testimony of the doctors who examined the Applicant did not suggest he was substantially disabled as a result of his injuries, although they indicated that his injuries caused him discomfort and rendered certain activities more difficult.

I am not satisfied on the evidence before me that, for the period under review from December 11, 1990, the Applicant was substantially unable to perform any essential task that had formed part of his normal activities before the accident. He gave no evidence that he was suffering from a "substantial inability" to perform any of the "essential tasks" in which he normally engaged. His evidence was, on the contrary, that he performed his essential tasks, but with pain and discomfort. The medical evidence supports this conclusion

In the circumstances, therefore, the Applicant has not met the requirements of section 13 of the No-Fault Benefits Schedule, and i not entitled to weekly benefits for the period from December 11, 1990 to the date of the hearing.

Counsel for the Insurer argued that the evidence does not establish that the Applicant was disabled as a result of the accident to the degree alleged. In view of my decision above, it is unnecessary for me to determine this issue.

The order is as follows:

(1) The Applicant is not entitled to weekly benefits under section 13 of the No-Fault Benefits Schedule for the period from December 11, 1990 to the date of hearing.

(2) The Applicant is not entitled to payment of interest for the period from December 11, 1990 to the date of the hearing.

Susan Naylor Senior Arbitrator

Dated: July 18, 1991