Neutral Citation: 1992 ONICDRG 17

File No. A-000112

ONTARIO INSURANCE COMMISSION

BETWEEN:

DOUGLAS R.G. WILLIAMS

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Douglas R.G. Williams, was injured in a motorcycle accident on September 14, 1990. He applied for and received personal injury benefits payable under Regulation 273/90 under the Ontario Insurance Act, R.S.O. 1990, c. I-8, (the "No-Fault Benefits Schedule").

The Applicant is a self-employed motorcycle mechanic.

He received weekly income benefits at the minimum rate of $185.00 per week, from September 21, 1990 until February 28, 1991, when his benefits were terminated. The Applicant claimed that he was entitled to benefits at the maximum rate of $600.00 weekly, and that his benefits were wrongfully terminated.

The Applicant also claimed certain supplementary medical and rehabilitation benefits, including expenses for chiropractic services, rehabilitation and therapy, and transportation.

The Applicant applied for mediation of his dispute with the Insurer. The mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator. At the hearing, the Applicant also claimed entitlement to care benefits under Section 7 of the No-Fault Benefits Schedule, and his expenses at the hearing.

The issues to be determined at the arbitration hearing were:

(1) Is the Applicant entitled to weekly benefits from February 28, 1991 onwards?

(2) What is the correct amount of the weekly benefit payable to the Applicant?

(3) Is the Applicant entitled to the supplementary medical and rehabilitation benefits and care benefits claimed?

The Applicant also claims interest on any benefits found to be owing and his expenses in participating in the arbitration.

Result:

The decision is:

(1) The Applicant is entitled to weekly benefits from February 28, 1991 to March 21, 1991.

(2) The Applicant is entitled to weekly income benefits of $185.00.

(3) The Applicant is entitled to be reimbursed for his full mileage for travel to his chiropractor. He is not entitled to the other benefits claimed.

Hearing:

A hearing was held at North York, Ontario on September 12, 1991 and resumed on September 26, October 11, November 6, 1991, and January 16, 1992, before me, Frederika M. Rotter, Senior Arbitrator.

Present at the hearing were:

Applicant:

Douglas R.G. Williams

Applicant's Representative:

Steven Vano Barrister & Solicitor

Insurer's Representative:

James Minns Barrister & Solicitor

Witnesses:

Teresa Williams, Applicant's spouse Bruce Piluke, Client of Applicant

Gus Comello, Client Services Officer, Canada Employment Centre

Terence E. Corcoran Senior Associate Manager, The Prudential

Dr. Hugh U. Cameron Orthopaedic Surgeon

Joanne Edith King, Private Investigator

Documents before the Arbitrator:

Report of Mediator, issued April 10, 1991

Application for appointment of an arbitrator in Form 4, dated May 10, 1991

Response in Form 5, dated June 10, 1991

Exhibits:

Exhibit 1A

The Prudential - Claim for Disability Benefits, dated October 19, 1990

Exhibit 1B

Dr. K. O'Hara's Attending Physician's Statement dated October 26, 1990

Exhibit 2A

The Prudential - Claim for Accident and Sickness Benefits, Continuance of Disability Report, dated November 30, 1990

Exhibit 2B

Dr. K. O'Hara's Attending Physician's Supplementary Statement dated December 1, 1990

Exhibit 3A

The Prudential - Claim for Accident and Sickness Benefits, Continuance of Disability Report, dated February 6, 1991

Exhibit 3B

Dr. K. O'Hara's Attending Physician's Supplementary Statement dated February 13, 1991

Exhibit 4

Report from Michael Indech, M.D., F.R.C.S., F.R.C.S.(C), dated April 2, 1991

Exhibit 5

Videotape, taken June 8 and June 29, 1991

Exhibit 6

Photographs (5) taken June 8, 1991

Exhibit 7

Motor Vehicle Accident Report, dated Sept. 14, 1990

Exhibits 8 & 9

Reports from Brent Norton, M.D., M.B.A., dated September 4, 1991 and August 27, 1991

Exhibit 10

Report from Hugh U. Cameron, M.B.Ch.B., F.R.C.S.(C), D.A.B.O.S., F.A.A.O.S., dated July 31, 1991

Exhibit 11

Patient Transaction Record from Dr. K. O'Hara, for the period Sept. 14/90 to Feb. 6/91.

Exhibit 12

Referral Letter of Dr. K. O'Hara to Dr. E. Kosinka, dated March 14, 1991

Exhibit 13

Report of Eduard Kosinka, M.C., F.R.C.S.(C), dated March 21, 1991

Exhibit 14

Attending Physician's Statement of Disability of Dr. K. O'Hara, dated October 26, 1990

Exhibit 15

Chiropractic X-Ray Services Report, dated December 21, 1990

Exhibits 16 & 17

Ontario Automobile Insurance Medical Reports, dated October 3, 1990, December 10, 1990

Exhibits 18 & 19

St. Joseph's Health Centre Medical Reports, dated September 19, 1990 and August 26, 1991

Exhibits 20 & 21

Ontario Automobile Insurance Medical Reports, dated October 3, 1990, December 10, 1990 (with Medical Findings)

Exhibits 22, 22A, 22B, 22C

Letter and Car Rental Invoices from Garnet Automotive Specialists

Exhibit 23

Income Statement, Williams Motorcycle (Aug. 20 through Sept. 13/90)

Exhibits 24, 25, 26, 27

Work Orders, Williams Motorcycle Supply Service - Aug.20-26/90, Aug.27-Sept.2/90, Sept.3-9/90, and Sept.10-13/90

Exhibits 28A, 28B, 28C, 28D, 28E

Correspondence between Morden & Helwig Limited and Applicant

Exhibits 29A & 29B

Invoice and Claim for Personal Expenses,

Exhibit 29C

Correspondence outlining chiropractic and transportation reimbursement, dated April 20, 1990

Exhibit 29D & 29E

Correspondence re Dr. Norton's medical report

Exhibit 29F

Chiropractic X-Ray Services Letter, dated February 26, 1991

Exhibit 29G

Documentation re Medical Payments

Exhibit 29H

Repair Estimates from Racer's Edge Limited, dated Sept. 20/90

Exhibit 30

Report of Dr. K. O'Hara, dated Sept. 25, 1991

Exhibit 31

Notes and Records - Dr. K. O'Hara

Exhibits 32 & 33

Photographs (cars)

Exhibit 34

Curriculum Vitae - Dr. Hugh U. Cameron

Evidence:

The Applicant's evidence consisted of his testimony, the testimony of his wife, and one of his clients. He also presented documentary evidence of his earnings from his business, and medical documentation regarding his injuries and treatment.

The Applicant's evidence with respect to the issues in dispute is summarized as follows:

1. Duration of Disability:

The Applicant testified that he was 33 years old when the accident occurred on September 14, 1990. He lived at 95 Nordin Avenue in Etobicoke and made his living as a motorcycle mechanic. He carried on the business of motorcycle repairs from a garage at the back of his home, and was planning to expand his business into new premises.

The Applicant testified that he was trained in refrigeration, electronic engineering and military engineering. He had worked in the air force for about three years, and before that he worked as a mechanic doing odd jobs. He had two years post-secondary education in electronic and mechanical engineering.

The Applicant testified that he did everything involved in motorcycle mechanics, from taking a complaint from a customer about a problem, to diagnosing the problem, preparing a work order and repairing the machine. He testified that he usually worked on large, heavy motorcycles such as Harley-Davidsons, ranging in weight from about 600 to 950 pounds.

The Applicant testified that normally he had no assistants or helpers in his business.

At the time of the accident the Applicant had been travelling east along Gerrard Street. He had stopped at the intersection of Gerrard Street and Church Street to turn left, when he was struck from behind by another vehicle. He testified that he hung onto his own motorcycle but was hit and smashed about twice before falling off the motorcycle. He referred to Exhibit 7, the motor vehicle accident report prepared by the Metropolitan Toronto Police Force. He testified that after the accident he was taken to St. Joseph's Health Centre by a tow truck driver. The Applicant testified that he remained in hospital about three hours and that he received poor treatment there.

The Applicant's medical evidence regarding his injuries from the accident was submitted by way of the medical exhibits filed. He testified that since the accident, he has been unable to carry on his occupation as a motorcycle mechanic.

The Applicant testified that he tried to work for three days in early June 1991, but was physically unable to carry on. He earned approximately $200.00. About six weeks before the hearing, he earned approximately $200.00 assisting a friend with some paperwork. He has had no other direct income from employment.

The Applicant was cross-examined in detail about his injuries from the accident, starting from the head downwards. He testified that he suffered from headaches, dizziness, blurred eyesight, ringing in his ears, and problems with his orientation. He had not sustained any abrasions to his head from the accident, but he suffered pain from the top of his neck down. He had pain at the back and on both sides of his neck. He also suffered shoulder pain radiating downwards, on the right side. His right arm was injured, with bruises and contusions above the elbow. He does not recall whether he injured his elbow or forearm. He does not recall any injuries to his right wrist or hand, or to his left arm.

He experienced pain through the centre of his cervix which was slammed on the dashboard on the right side. His ribs were bruised. His upper back and neck were injured, causing a recurrence and aggravation of previous injuries. He also injured his lower back, right hip and right knee. He struck the ground on the right side, primarily with his right hip and arm. The knee pain was an indirect result of the trauma to his hip.

A rib was punched out of place between his shoulder blades, in the upper or mid-back area. He also suffered lower back problems at the belt line, around the spinal column. He suffered no injuries to his left leg, although his left knee sometimes bothers him because it must bear extra weight as a result of his right knee problems.

The Applicant testified that after the accident he consulted Dr. Kathleen O'Hara, a chiropractor who had treated him for an accident several years earlier. He also obtained treatment from Dr. Brent Norton, a sports medicine specialist.

The Applicant testified that he did not go to physiotherapy since he was not able to afford it. He did not have a regular family doctor. His only chiropractor was Dr. O'Hara. He saw Dr. Norton, a sports injury specialist, in March and April of 1991, and he saw orthopaedic specialists for insurance purposes.

The Applicant testified that soon after the accident he consulted a physician whose name he does not recollect, because he has not seen her in almost a year. He saw this doctor once, very briefly, and she prescribed some medication. The doctor's office is in Etobicoke near Queensway General Hospital.

He also saw a Dr. Levi whose advice was to continue with Dr. O'Hara, the chiropractor. Dr. Levi's office was off Lakeshore Blvd. near Queens Avenue. The Applicant testified that Dr. Levi is a general practitioner who he saw once or twice. He does not recall seeing any other doctors.

The Applicant testified that he was originally requested by the Insurer to see Dr. Wylie for an independent medical examination, but did not have enough notice of that appointment. He received a letter from the Insurer advising him of the appointment with Dr. Wylie less than an hour before the appointment time, and it was impossible for him to get there on time.

He testified that, apart from the chiropractic treatments, he had no other therapy for his injuries. He had started "craniosacral" therapy and had had five treatments after seeing Dr. Norton in March 1991. However, he was not able to complete the treatment regime because the Insurer would not pay for it, and he could not afford to pay for it himself. The treatments cost $75.00 an hour. The Applicant described the craniosacral treatment as manipulations and exercises, including fitness stances, and stretching exercises.

The Applicant testified that, prior to the accident of September 14, 1990, he had migraine headaches approximately once every two to three months. Now, he gets a migraine two or three times a week. Often the headaches last all day and into the next day. The Applicant had these headaches almost every day for the first three or four months after his accident. He was taking a strong painkiller called Ergomar for the headaches, prescribed by Dr. Norton and another physician who he saw. Dr. Norton also prescribed muscle relaxants.

Three months after the accident, the Applicant still had headaches two or three times a week. He believes the headaches are a result of the trauma. He spent Christmas on his couch crying because of the headache pain. In December 1990, the headaches sometimes lasted all day. The Applicant took pain medication when he could not handle the pain.

The Applicant testified that Tylenol has no effect on migraine headaches. He has found it useless. By March or April of 1991, his headaches were still the same. Even at the hearing, the Applicant testified, he had a headache. His headaches have improved in that they no longer last as long, and they are not generally as severe. However, he still gets them two and three times a week. He still takes the same medication for headaches and also some naturopathic medications.

The Applicant testified that since the accident his neck has been a problem. It crackles and pops with pain. He did have an earlier problem with his neck which was resolved two days before the accident when he saw Dr. O'Hara. His upper back and left shoulder also continue to bother him.

In cross-examination, the Applicant testified that he had had no other accident in almost ten years. He testified that on November 5, 1980 he was involved in an automobile collision which caused injuries to his right hand and right knee and degeneration of his right hip muscle. At that time, he was off work for about three weeks. That accident did not lead to problems with his neck. He had problems with his lower back which were related to his knee problem. However, those problems were resolved at least a couple of years ago. The Applicant then stated that between the accident of 1980 and the current accident, he was involved in no other serious motor vehicle accident where he was injured, although he was involved in one accident with a vehicle that was written off.

He was cross-examined about a dirt-bike accident in the summer of 1990 and first responded that he was not aware of such an accident. He remembered going to the chiropractor on September 12, 1990, when the chiropractor performed a manipulation of his right elbow. Upon further cross-examination, the Applicant admitted that he "washed out on a dirt-bike on light ground". He does not remember when it happened, but it was not a serious accident. He attended at the chiropractor and obtained relief. He had no back and neck pain as a result of this accident, and had no plans to see the chiropractor again.

He was cross-examined about whether the dirt-bike accident occurred on July 14, 1990 and testified that he does not recall the exact incident or its date. He was questioned about Exhibit 15, a report from Chiropractic X-rays dated December 21, 1990, which compared the x-ray results of December 20, 1990 to x-rays taken July 14, 1990.

The Applicant was asked whether he was seeing Dr. O'Hara for his lower back and hip prior to the September 1990 accident, and responded that he had not seen her very often for at least one year.

It was put to the Applicant that he had had an accident where he cracked his motorcycle on November 26, 1986. He responded that he had indeed damaged the motorcycle on that occasion, but had walked away from the accident uninjured. He was questioned whether he had had any other accident since the accident of September 14, 1990 and responded that he had only been involved in minor household accidents. He was referred to a clinical note of Dr. O'Hara dated December 21, 1990 but denied being involved in a car accident on that date. He stated that the note was incorrect. All the injuries of which he is complaining arose from the accident on September 14, 1990.

The Applicant's work repairing motorcycles involved lifting the motorcycle and placing it on a centre stand. He often had to remove motors and transmissions from motorcycles. He testified that working on motorcycles requires a fair amount of upper body strength.

The Applicant testified that his biggest problem in returning to his work as a motorcycle mechanic is doing the heavy lifting.

The Applicant testified that he does not have a formal license to repair motorcycles. However, the license is necessary only to perform safety checks on vehicles, and he is not interested in doing safety checks. He does possess a number of certificates, including one from Harley-Davidson. He was capable of doing everything from complete engine jobs to routine maintenance work on motorcycles. He also did some custom fabrication and built several motorbikes "from the ground up". He worked almost exclusively on Kawasaki, Harley-Davidson and some older British motorcycles. He would contract out certain specialist work, like work on crankshafts, after the motorcycle was dissembled. He testified that the only motorcycle repairs he would not do was work on Honda motorcycles.

The Applicant testified that after the accident he could not have done most of his work, because he was not able to lift a motorcycle onto a centre stand to work on it. The motorcycle must be physically lifted and balanced on the stand. This requires a lifting action and a substantial amount of force. When the repairs are completed, the cycle must be lifted down. The Applicant testified that he can currently lift a maximum of 80 pounds. The Applicant testified that, if the bike were placed on the stand, he could do some repairs.

The Applicant was cross-examined in detail about the work involved in the invoices he had submitted to confirm his earnings. He described in detail the work required on each of the invoices. His evidence was that he could do some of the work, but not the heavy work. Most jobs required that a heavy motorcycle be lifted onto a centre stand, which, the Applicant testified, he could not do. Once the bike was placed on the stand, he might be able to complete the repairs. However, some jobs required that wheels be pulled off, or that the motor be removed and replaced: tasks which the Applicant could not do. Some jobs required the Applicant to assume positions and stances that were not comfortable. Some jobs required that a motorcycle be picked up and transported and the Applicant testified that he could not do this: he was not physically capable of loading a motorcycle onto a truck.

The Applicant confirmed that although he could do some of the work indicated, normally a customer expects a full job. The Applicant also testified that it would now take him much more time than before to do the work. He could not charge four hours labour for a job that used to take him two hours. His business would not be viable if he had to work longer hours for less money.

The Applicant stressed that at the time of the accident he had been lining up a shop on Lakeshore Blvd. as a permanent address for his business. This was abandoned after the accident.

The Applicant testified that prior to working at motorcycle repairs, he had worked for a company called First Choice, with heavy construction, compressors and equipment. He worked on large engines and equipment, including 9-ton Bobcats. He did not work on small motors, such as lawn mowers. He testified that at a previous employer, McLeod Equipment, he worked on everything from chain-saws to 12-ton compressors. He started on small engines and ended up working on larger equipment. He was questioned why he could not go back to work on small engines, and he responded that at this point he could not even pull the cord of his own lawnmower to get it going. He stated that part of working on motors is getting them running.

The Applicant testified that he also has a problem sitting for an extended time. Therefore, he cannot work as a driver, a job for which he is otherwise qualified. The Applicant testified that he used to drive a heavy transport truck. He has a license to drive a truck, but does not have the medical clearance, as he has not taken the required medical tests.

The Applicant testified that approximately three weeks prior to the hearing resumption date of October 11, 1991, he tried to go out with a friend in a tractor-trailer truck, but he was unable to sit in the truck for a prolonged period of time.

2. Quantum of Weekly Income Benefit:

The Applicant filed a number of documents relating to his claim for maximum weekly income benefits. He testified that Exhibit 23 is a summary of his income which he prepared and calculated, based on his work orders from his business. Exhibits 24, 25, 26, and 27 are the invoices or work orders documenting his earnings for the four weeks prior to the accident.

His evidence was that his average week's earnings amounted to $921.85.

He testified that all the work orders referred to the year 1990, although the year was not indicated on any of the documents. The work orders all showed the day and the month. In cross-examination, the Applicant testified that he did the work and he knows that it was done in 1990.

The Applicant also confirmed that the work orders do not show or refer to any Provincial Sales Tax payable. He indicated that Provincial Sales Tax of 8% should have been remitted and subtracted from his total earnings, but never was remitted. This was why it did not appear as a separate business expense.

The Applicant stated that he had not remitted the Provincial Sales Tax because it was only payable once every three months if an individual does less than $1,000.00 worth of business a month.

The Applicant testified that the work orders were made out on the date a customer brought in a vehicle for repair and authorized the work. For the purposes of the income calculation, the invoices are grouped in the order that they were paid, and that is why certain work order numbers are not consecutive. The Applicant made no allowance for bad debts because he did not return a motorcycle until his bill was paid. He operated the business on a cash basis and did not take cheques or credit cards. He only took cheques from customers with whom he had been dealing for years - everyone else was obliged to pay cash. He did all the repair work himself. Occasionally, his wife would run for parts.

The Applicant stated that he spent a great deal of time figuring out his expenses in relation to each of the work orders submitted. He stated that he cannot be completely accurate about the mark-up as he had difficulty estimating what a part cost and what it was worth. In pricing the parts, he has referred to catalogues from distributors.

The Applicant calculated his gross income by totalling his income from labour and parts profit. Shop materials were included in the total for parts. Often, what he charged a client had no relation to his expenses, since he used parts from old stock that he did not replace. Any part or item that did not have to be replaced was sold for a profit.

The Applicant testified that he had previously spent three years operating another business called Toffy Cycle. That enterprise owned about $20,000 to $25,000 worth of stock largely made up of old motorcycle parts. The Applicant testified that his overhead in his current business was low, due to these parts. When he replaced a part, he usually took it from his stock, and charged the customer a market price. He would replace some parts that he had in stock, however, obsolete or out-of-date parts would not be replaced. The Applicant referred to Work Order No. 018270 (Exhibit 24) and testified that he charged the market price for the part supplied, but would not normally replace that part.

The Applicant was questioned about his business expenses and testified that his only ongoing expense was fluorescent lights in the garage, about $6.00 monthly in hydro-electric charges. He testified that he rarely used power tools, but indicated that he might save something on depreciation and the use of electricity if his business were not operating. He did not have a separate telephone for his business. The garage was not heated in summer. In winter he heated it with propane and kerosene. The garage has no water. On rare occasions, the Applicant's wife would "run" for parts. The Applicant testified that, if he had to pick up parts himself, he normally charged for his time by the hour.

The Applicant testified that courier charges for sending parts are normally paid for by the shipper and are included as part of the parts' cost. If you buy a specified minimum from a dealer, the dealer pays the shipping charges.

The Applicant testified that he normally used rags, but that rags did not cost much. They are readily available. He often threw away rags that were used and dirty, rather than laundering them. He washed his rags perhaps once a month. This cost approximately $1.00.

The Applicant testified that he wore "mechanics' blue" denim for work: a blue shirt and pants which he also wore casually. He still normally wears the same work clothes. His work was not that dirty. He used a variety of solvents in his work, which he would charge to customers, as necessary. His expenses for solvents were negligible. He did not use a special hand cleaner. He testified that bearings are usually packed in black grease, but clean grease will wipe black grease off the bearings.

The Applicant confirmed that from October 1990 to April 1991, his motorcycle loan of $411.00 or $412.00 a month was being paid by Prudential Insurance. He paid the loan himself for the month of September. The Applicant testified that he occasionally used his personal motorcycle for the business, to pick up parts. He used it for towing three times.

The Applicant testified that he had not filed income tax returns for the years 1990 or 1989.

The Applicant was cross-examined about his claim for unemployment insurance. He testified that he started collecting unemployment insurance in 1989 and the claim expired prior to the accident, in September 1990. He stated that his earnings were declared to the Unemployment Insurance Commission. He testified that he collected unemployment insurance for a period when he was not working.

In cross-examination, the Applicant initially refused to indicate whether he was collecting unemployment insurance benefits during July and August 1990, on the grounds that this information was confidential. He also initially refused to authorize any representative of the Unemployment Insurance Commission to disclose the information about his claim. However, he indicated that an arrangement for repayment had been made between himself and the Unemployment Insurance Commission, and stated that voluntary repayment is possible in the case of any overpayment.

3. Claim for Supplementary Medical and Rehabilitation Benefits:

The Applicant testified that he rented a vehicle because he did not own a car, and he required transportation for doctors' appointments. He could not take the T.T.C. because the jostling caused him pain. The Applicant testified that he rented a vehicle on the advice of the insurance adjuster, Mr. Kelly. He was never reimbursed for his car rental costs and the Insurer subsequently denied any responsibility to pay for car rentals.

The Applicant testified that he rented two vehicles from Garnet Adair, a car mechanic who operated a business nearby, and had done some work on a vehicle belonging to the Applicant. Mr. Adair was not specifically in the car rental business. The Applicant chose not to rent from a standard car rental company as he preferred to rent from an associate with whom he normally does business.

The Applicant was cross-examined about the invoices from Mr. Adair (Exhibit 22), documenting the car rentals. He confirmed that the invoices documenting the car rental were on standard garage repair order forms, purchased in packages of 50 from Grand & Toy. He used the same forms in his own business, and stamped them with his stamp. He confirmed that the invoices did not indicate the licence number of the vehicles. The Applicant also filed a letter from Mr. Adair, confirming the rental of vehicles.

The Applicant testified that he paid cash for the car rentals. He stated that he could not rent a full-sized car from a standard agency for less than $50.00 a day. He required a full-size car because he was not able to get in and out of a smaller vehicle. He testified that sub-compacts rent for about $35.00 a day, but insurance charges add to that price.

The Applicant testified that he rented a car because he owned no vehicle that was operational. He rented a four-door, cream-coloured Dodge Volare sedan from Mr. Adair. He did not recall the license number, and it is not indicated in the exhibits. The Applicant confirmed that he owned a white Dodge Volare stationwagon which sat in his driveway. He stated that it was a coincidence that the vehicles were the same make. However, he described his own car as "a rusted out piece of junk", which he would gladly get rid of.

The Applicant was shown a photograph of a vehicle (marked Exhibit 32 to the hearing) and was asked to identify it. The Applicant identified it as the car that was sitting in his driveway, and not the vehicle he rented from Mr. Adair. Exhibit 33, a photograph of another car identified as a Dodge Magnum, was introduced, and the Applicant testified that this was his father's car. It was neither licensed nor insured at the time of the accident. The Applicant testified that this car had a variety of things wrong with it and could not meet standard safety requirements. The Applicant confirmed that at some point he bought a pickup truck for $400.00.

Exhibit 29C documents the payments made to Dr. O'Hara by the insurance company, including payments to the Applicant for transportation costs. The Applicant testified that the mileage from his home to Dr. O'Hara's office was 16 to 17 km one way, but that his travel expenses to the chiropractor had been paid at the rate of three miles each way. Exhibit 29 indicates that three miles is the distance to the nearest chiropractor from the Applicant's home.

The Applicant testified that his motorcycle was repaired with the help of some friends. The testimony of his wife that she fixed the motorcycle alone was not correct. The Applicant testified that, in any case, he could not ride a motorcycle to go to the chiropractor and he only started riding it again on May 1, 1991.

Other witnesses:

Bruce Piluke gave evidence under oath on behalf of the Applicant. He identified Work Order #018276 (Exhibit 24) and stated that he had previously seen a copy of this document when it was given to him by the Applicant on August 23 or 24, 1990. He testified that the document referred to work done on the pan-head of his 1959 Harley- Davidson motorcycle.

He testified that the motorcycle in question is an antique collector's item, insured for $20,000.00. It is a custom-made vehicle which weighs about 800 pounds. The witness testified that a side-stand on the left-hand side of the vehicle is used to balance the vehicle. A simple movement of the foot pushes out the side-stand. The motorcycle also comes equipped with a more secure centre-stand which lifts the vehicle so that repairs can be performed.

The witness testified that, to the best of his knowledge, both stands were on the motorcycle when the repairs were done in August 1990. The witness brought the motorcycle to the Applicant's shop for repairs to the generator. The generator's armature had to be removed, and the generator had to be replaced. The witness testified that the generator itself is about 10 to 12 inches long and weighs 25 to 30 pounds.

The witness testified that he was satisfied with the repair work done by the Applicant. When he took the motorcycle to the Applicant it was not working, and after the repairs were done, it worked. The witness testified that he received a copy of the repair order, although he no longer has it.

The witness testified that he brought his machine to the Applicant because his regular garage was closed for the holidays. He heard through word-of-mouth that the Applicant was a competent mechanic. The witness testified that to his knowledge the work was performed by the Applicant at his home on Nordin Avenue.

The Applicant's wife, Teresa Williams, gave evidence under oath, on behalf of the Applicant. She testified that the Applicant's accident severely affected her life and harmed their relationship, generating stress and frustrations which led to a temporary separation. Since the accident, the Applicant has not been able to provide for the family. She has had to support herself. She has been going to school and, at the same time, she has had the burden of housework to do. The Applicant's spouse testified that she has been attending school since July 17, 1990, in a machinist's program for women. She and the Applicant have been married just over three years.

Prior to the accident, she and her husband used to spend a lot of time together on the motorcycle. Her husband used to do a lot of work around the home. Now, she does all the housework, including gardening, cleaning and maintenance of the car and motorcycles, work that her husband used to do.

The Applicant's wife testified that the Applicant can no longer do the mechanical work he did. The Applicant cannot remove a transmission weighing from 70 to 75 pounds from a motorcycle. If someone comes to the shop with an emergency job, she now does the work. The Applicant cannot even break loose a bolt.

The Applicant's wife testified that the Applicant cannot sit still for any length of time because, after a while, he has pain. The Applicant has tried to rehabilitate himself and went to everything available. The family currently has no funds to finance therapy. The Applicant stopped seeing his chiropractor in June 1991 because the financial situation was bad.

She confirmed that the Applicant had been repairing motorcycles out of the garage in their backyard. She testified that in 1985 the Applicant had worked at a business called Toffy Cycle, a motorcycle shop which he co-owned with a partner. Toffy Cycle went out of business in 1986 or 1987. It was through the business that she met her husband. She had been employed by the business and she serviced her own clients with her own tools.

The Applicant's wife testified that since the Applicant's accident, she herself has repaired five motorcycles. She did not make out work orders. She did the work as a favour to the individuals concerned, and to get some cash in her pocket. In total, she has made $300.00 or $400.00. She did the work out of the garage in her backyard. The garage contains lots of old stock, consisting of various motorcycle parts, mostly Kawasaki and British motorcycle parts. The garage also contains many tools, including wrenches, sockets, screwdrivers, drills, tire irons, motorcycle stands, and benches to work on. Both walls of the garage are equipped with benches and racks. There is no heavy mechanical equipment or painting equipment.

The Applicant's wife testified that she has a tool chest in the garage with her own tools. The other supplies in the garage belong to the Applicant.

The Applicant's wife confirmed that the garage was also equipped with motor oils, greases, and clean shop rags. She testified that she herself cleaned the dirty rags. She testified that since September 1990 she has done no work for the Applicant's clients. Prior to the accident, she did not work at the Applicant's business, other than do occasional running for parts.

The Applicant's wife testified that the Applicant has not worked on any motorcycles since September 14, 1990, including his own and hers. He has done no maintenance on either vehicle. She thought that the Applicant had probably tried to work, but commented that he is not capable of taking the lid off a jar of pickles.

She testified that the Applicant cannot do any heavy work. He cannot twist bolts off. He cannot lift a motorcycle. If a motorcycle fell over, he could not pick it up. He is able to ride a motorcycle, but cannot pry the covers off wheels. There is no compressor in the shop. The Applicant cannot untorque the bolts of a motorcycle, because this requires 80 to 120 lbs. pressure. He cannot take odd positions and do certain movements. To get at a certain area of a motorcycle, the Applicant must twist his upper back, and he cannot do this without a lot of pain. The Applicant's spouse testified that basic mechanics requires a lot of strength. At present, the Applicant cannot even carry a 10 to 20 pound sack of potatoes. The maximum he can carry is about five pounds. The heaviest things she has seen him lift since the accident is a bag of milk.

The Applicant's wife testified that the Applicant had been earning between $800.00 and $1,000.00 a week prior to the accident. Last winter, they were refusing work, and that there would have been lots of work if not for the accident. The Applicant's wife testified that he had not been involved in any accident since September 1990, that she could remember.

The Applicant's wife testified that she owns a 1981 Yamaha motorcycle, which she has not been using recently as it requires maintenance. She had used the Applicant's 1988 Harley-Davidson motorcycle before it got smashed up. It is not yet fully repaired. The Applicant's wife testified that she bent the fender back out with a hammer and crowbar and put a new tire on it in May 1991. It still needs a new exhaust pipe, and other damage needs to be repaired. The signal lights were destroyed, the tail-end of the rear fender was destroyed and one bolt was sheared off.

The Applicant's wife testified that when the Applicant was running the business, he normally picked up motorcycles he needed to work on with a trailer attached to the Harley.

The Applicant's wife testified that, apart from the 1988 Harley, the Applicant owns a 1977 Kawasaki motorcycle, which was not running in September 1990. The Applicant has not driven it since he purchased the Harley.

The Applicant's wife testified that a few other bikes are parked in the garage. All are for sale at the right price, but none of them are operational.

The Applicant owns a brown Ford pickup truck, a late 1970's model, bought around Christmas or New Year's of 1990/1991. The Applicant bought the truck because he needed transportation. The Applicant and his spouse still own the truck.

The Applicant owns no other cars, except a grey Dodge Magnum, a late 1970's model, which the Applicant's father gave them three winters ago. It was not operational in September 1990. Since then, some repairs have been done to it, but it would cost about $400.00 or more to fix, and is not drivable in its present condition. It has license plates and had plates in September 1990.

They also own a cream-coloured Volare stationwagon which the Applicant purchased for $50.00. This car does not operate and needs a lot of bodywork. The Applicant's spouse did not know whether the car has license plates.

The Applicant's wife testified that the car rented from Garnet Adair was a greyish, blackish car with a bad paint job, which she generally ignored. She thought it was a two-door vehicle, not a stationwagon. She did not know its license plate number. The Applicant rented this car some time after his accident, and used it to go to his chiropractor and to get groceries.

The Applicant's wife testified that the rent on their home was about $1,200.00 a month. A couple named Misty and Andy shared the house and helped pay the rent. The Applicant's wife does not remember their surnames. This couple moved in in March 1990 and moved out in January or February of 1991. They gave the Applicant and his wife $600.00 or $700.00 a month for the rent.

The Applicant's wife testified that they also rented out the basement of the house and it took seven months to get the tenant evicted. Afterwards, she and the Applicant moved into the basement apartment.

The Applicant's wife testified that the Applicant has been seeing the chiropractor since before she met him. They met in 1985 and the Applicant would see the chiropractor when his elbow or knee was bothering him. When she first met the Applicant, he was not able to close his right hand. The condition of his right hand was surgically corrected about one year later, in the spring of 1986.

The name of the Applicant's business is Williams' Motorcycle Supply and Service. The Applicant is the sole proprietor. The Applicant's wife does not know whether the business was registered or incorporated. The Applicant cannot afford an accountant and does his own book work. The same telephone is used for the home and business. The business is not advertised other than through word-of-mouth.

The Applicant's wife started her machinist course in July 1990. She did not work with the Applicant on motorcycles during this period because she was too busy with her homework. The Applicant did all the work on motorcycles. The Applicant became serious about this enterprise and he started keeping full-time hours working on the motorcycle repair business in spring 1990.

Before then, the Applicant was collecting unemployment insurance. He worked on construction equipment at a company called First Choice. He had been doing mechanical and maintenance work on hydraulic compressors. The Applicant was laid off from his job at First Choice at the end of 1989 and was unemployed all winter. The Applicant's wife testified that she thinks he started getting unemployment insurance benefits in January 1990. She did not know when the Applicant stopped getting unemployment insurance.

Evidence of the Insurer:

Terence E. Corcoran, Senior Associate Manager, The Prudential Insurance Company of America, gave evidence on behalf of the Insurer. He testified that he is a claims consultant and has been working for The Prudential Insurance Company for 20 years. The Prudential owned a policy of insurance in favour of The Toronto-Dominion Bank, taken out by the Applicant, with respect to a debt which he owed the bank. The witness gave the policy number and indicated that the insurance policy was taken out to cover loan payments for the insured debtor in the event of total disability.

In cross-examination, the witness explained that a definition of total disability was utilized for the purposes of insuring the loan. The definition requires that the Applicant be totally disabled from working at his own occupation for the first twelve months, and changes to include total disability for any type of work after twelve months.

The witness testified that he opened a file at the Prudential on this loan in November 1990, in connection with the alleged disability of the Applicant, commencing September 14, 1990. A diagnosis of hyperextension injury of the cervical thoracic spine was provided by Kathleen O'Hara, chiropractor, on a form dated October 26, 1990, submitted to the Prudential. A copy of the form was marked Exhibit 1 to the hearing.

The witness testified that the Applicant started receiving disability benefits on September 18, 1990. The Insurer paid the monthly loan payment of $422.00 per month. The Insurer requested a continuance of disability form which was completed on December 1, 1990. A copy of this document was marked Exhibit 2 to the hearing. A further medical statement was requested and completed on February 13, 1991. This was marked Exhibit 3 to the hearing.

The witness testified that at that juncture it seemed that the Applicant's disability was becoming protracted. Therefore, the Insurer decided to pay a routine call on the Applicant on March 2, 1991, using an investigator. The witness testified that, according to the investigator's report, the Applicant was not willing to co-operate in an interview. The Insurer therefore determined that an independent medical examination was required.

The witness testified that Dr. Michael Indech conducted an independent medical assessment on April 2, 1991. Dr. Indech is an orthopaedic surgeon. He is not an employee of the Prudential. The Insurer received a letter from Dr. Indech dated April 2, 1991. As a result of Dr. Indech's findings, benefits to the Applicant were terminated.

The witness testified that the Applicant phoned the Prudential on April 17, 1991 indicating that he did not agree with the decision to terminate his benefits. The Applicant was advised of his right to appeal the decision. There was no further activity on the file. The Applicant did not file an appeal and no further medical information regarding the Applicant was received by Prudential. Benefits were paid to the Applicant up to and including April 17, 1991.

Joanne Edith King, a private investigator, licensed in the Province of Ontario, with King, Reid & Associates, gave evidence on behalf of the Insurer. She testified that she has been a private investigator since 1987. She conducted an investigation of the Applicant and made film footage. She filmed on 8 mm film format, which was then transposed to a VHS videotape format, on June 8, 1991. She conducted a second investigation on June 29, 1991 when she made videotape.

The witness testified that during her first investigation of the Applicant she took 12 to 15 minutes of footage which was edited because the person filmed was not the Applicant. After this irrelevant footage was edited, the footage from the second day of observation was combined with the first videotape.

The videotaped evidence was shown at the hearing. The witness testified that the surveillance was conducted at the Applicant's home at 95 Nordin Avenue in Etobicoke. She observed the Applicant from a specially-equipped surveillance vehicle and took film footage starting at approximately 2:00 in the afternoon using a camera mounted on a tripod. The Applicant had been seated on the porch with another man. The film depicts him washing the car, using his right hand and arm, bending forward and using his upper body quite fully to wash the lower part of the car. The witness testified that she could not see any restrictions in the Applicant's movements. His movements appeared normal, not hesitant. He did not favour any side of his body.

The video shows the Applicant in a playful mood, smiling, laughing, and hosing his friend. He washed the hood of the vehicle using his right hand. His head, neck and upper torso were tilted forward. He was able to bend to the right and forward freely. He continued washing the rear of the vehicle, his body bent forward at the waist. He sprayed the vehicle, washed the top of the car, and threw a bucket of water on top of the car.

The tape showed the Applicant wearing jeans, with nothing on his upper body. The witness testified that his performance was normal. He was able to bend and move normally spraying below the car. In order to do this, he bent forward and squatted slightly. The videotape also depicted the Applicant spraying the yard and driveway beside the vehicle. The witness testified that after washing the car, the Applicant entered his house. He came out about 50 to 55 minutes later, backed his motorcycle out of the driveway, and left on the motorcycle.

The witness testified that the second tape was recorded on Saturday, June 29, 1991 in the vicinity of 95 Nordin Avenue, shortly after noon. The Applicant was shown at his residence with another man who had just arrived. The Applicant and the others in the driveway departed, and went to a restaurant, where he remained for one hour. He left the restaurant, got on his motorcycle and went to a gas station. The videotape showed the Applicant operating the vehicle, with his wife as a passenger. He was observed filling his motorcycle with gas. The witness followed the Applicant up Highway 427 north. The Applicant then went west on Highway 401 and surveillance was discontinued. The witness testified that on this occasion she did not observe the Applicant performing any strenuous movements.

In cross-examination, the witness confirmed that on the day of the first videotape, she observed the Applicant sitting on his porch for quite a long period. She did not videotape his actions sitting on the porch because she had just arrived. She confirmed that she took some black and white photographs which depicted the Applicant in various activities. These photographs were labelled Exhibit 6 to the hearing.

Gus Comello, a Client Services Officer at Employment and Immigration Canada gave evidence under oath on behalf of the Insurer, pursuant to a summons that had been served on him. He was represented by counsel who made submissions regarding the confidentiality of the information in the files of the Canada Employment and Immigration Commission. Ultimately, the Applicant consented to the disclosure of the information. The witness testified that unemployment insurance benefits were paid out to the Applicant after August 14, 1990 and up to August 18, 1990. He testified that, under the Unemployment Insurance Act, any monies that are earned are deducted dollar for dollar from unemployment insurance, to the maximum amount payable.

The witness testified that persons who are self-employed or working in their own business are not eligible for unemployment insurance benefits because, at that point, they are not considered unemployed: they are not looking for work as they are fully occupied with their own business. Under those circumstances, they cannot receive unemployment insurance benefits, even though they are not earning money from their business. Availability to look for work and not lack of earnings determines eligibility to collect unemployment insurance.

The witness testified that no benefits were paid to the Applicant after August 18, 1990. He was not authorized by the Applicant to answer any questions about whether any deductions were taken from the Applicant's benefits prior to August 18th. He was not authorized to answer any questions about why the Applicant's benefits had ceased.

In a resumption of the hearing on January 16, 1992, the witness re-attended in order to amend his testimony, based on new information, which he did not have on the previous hearing day. His information on the previous hearing day was based on a computer printout which had not been updated with the most recent information.

He testified that benefits were paid to the Applicant up to September 8, 1990, three weeks later than he stated in his earlier testimony. He testified that the Applicant's claim was exhausted on September 8, 1990.

Dr. Hugh Urquart Cameron gave evidence under oath on behalf of the Insurer. He testified that he is an orthopaedic surgeon, specializing in the treatment of musculoskeletal disorders. He described his credentials, indicating that he is an associate professor in the departments of Surgery, Pathology and Engineering at the University of Toronto, and he is also an adjunct professor of mechanical engineering at the University of Waterloo. He practices at the Orthopaedic & Arthritic Hospital in Toronto.

The specialist testified that he examined the Applicant on July 31, 1991 and that the Applicant's complaints were in the musculoskeletal field, which is his field of expertise. He stated that he has a standard examination for a medical/legal case. An appointment is generally booked for half an hour, which is ample time for an examination of this nature.

He testified that his medical report, Exhibit 10, was made contemporaneously with his examination of the Applicant, and was completed according to his standard format. He remembered that the Applicant came in wearing a motorcycle helmet and big boots. The specialist testified that the Applicant's history was that he had been involved in a motor vehicle accident on September 14, 1990.

The specialist asked the Applicant to walk on his toes and heels. The Applicant was able to do that, and showed no weakness in his legs. He then checked the Applicant's range of motion in his back. He also checked for pain by having the Applicant perform a pseudo rotation. He testified that if a patient complains of pain on pseudo rotation the pain is not real. In this case, the Applicant complained of pain on pseudo rotation.

The specialist testified that he checked the nerve function in the Applicant's legs, which appeared to be normal. He asked about pain on pressure. The specialist testified that the Applicant complained of tenderness in his neck, thoracic and lumbar spine - that is, in his whole back. The specialist stated that no one is tender in the whole back, and so he concluded that the Applicant's complaints were exaggerated. The specialist testified that the Applicant's neck showed full range of movement, although he complained of subjective pain. When he leaned on the Applicant's head and asked him whether it hurt, the Applicant complained of pain on light pressure to the top of the head. The specialist stated that he felt this could not possibly be true.

The specialist testified that he performed a standard examination of the Applicant's knee and found no abnormalities. He examined the Applicant's right hip and found a full range of painless motion. He testified that the Applicant's muscular strength in his hip was normal. The specialist testified that he found some tenderness over the Applicant's thigh bone (the greater trochanter).

The specialist stated that he noted large callouses with ingrained dirt on both the Applicant's hands. He stated that from this he deduced that the Applicant's hands were those of a working man. He testified that callouses only come about with heavy, prolonged manual labour. If work is stopped, the callouses are largely gone within three or four months, depending on how thick the callouses are. He stated that in the Applicant's case the callouses were large, and not soft. He found ingrained dirt, which indicates that the Applicant had recently done manual work.

When questioned whether using weights would produce callouses, the specialist responded "if a man can lift heavy enough weights to produce callouses, then he is not disabled". He confirmed that callouses could be removed with pumice. However, he testified that callouses such as the ones he observed on the Applicant's hands could not have been caused by something else, like weight lifting, or cleaning. Callouses on the hands of weight lifters are not as large as those on the hands of manual labourers. He examined the Applicant's hands at the hearing, and testified that he saw softened callouses, which indicated that the Applicant was not working and had stopped working in the recent past.

The specialist stated that he examined x-rays of the Applicant's neck and upper thoracic spine, done on September 14, 1990. The x-rays were normal. He also reviewed x-rays done September 20, 1990, and March 13, 1991. They were all normal.

The specialist testified that in examining the Applicant he found nothing objective. He found some complaints of pain where he considered there could not possibly be pain. He concluded that the Applicant was obviously exaggerating his symptoms. The specialist did not think that there was any ongoing disability. He did not believe that any further medical or chiropractic treatment was required. He testified that he was in complete agreement with Dr. Indech, the orthopaedic surgeon who had examined the Applicant at the request of the Prudential. He noted that Dr. Indech had also observed that the Applicant's hands were marked and scuffed, and had also concluded that he was using his hands for mechanical work.

The physician was questioned about Exhibit 13, the report of Dr. Kosinka. He responded that he examined the Applicant much more carefully than did Dr. Kosinka, who was providing an opinion about further treatment. However, Dr. Kosinka's conclusion, that the Applicant's problems were consistent with a pain fixation, means that Dr. Kosinka thought the Applicant was exaggerating his pain, and he could find nothing objectively wrong. Dr. Kosinka suggested psychotherapeutic support, which indicates that the problem was in the Applicant's head, and not in the back of his neck.

The specialist indicated that the term "pain fixation" as used by Dr. Kosinka could mean exaggeration, or someone dwelling on the experience of pain for purposes of financial gain. It could also be "psychogenic magnification", a term which refers to a complaint of pain for which there is no physical finding.

The physician was questioned about Dr. Norton's letter, Exhibit 9. He responded that Dr. Norton is a general practitioner, who has no specialized expertise in orthopaedics. He testified that Dr. Norton would probably not be likely to know about "tricks" to test credibility, such as checking pseudo rotation of the back.

He testified that he did not know about the craniosacral therapy recommended by Dr. Norton -it is not yet a standard medical treatment. It is "fringe therapy" and he knows of no beneficial applications or results. He considered that craniosacral therapy would not have any effect on pain fixation. He stated that from what he had heard of craniosacral therapy "it's exactly equivalent to voodoo".

The specialist indicated that there was some merit to brief chiropractic treatment. However, he saw no value in prolonged chiropractic manipulations, and stated that they can be harmful insofar as the patient begins to rely on those manipulations.

The specialist testified that it is his view that the Applicant is either working or capable of work. Dr. Indech said the same and Dr. Kosinka implied that the Applicant could work.

In cross-examination, the specialist was asked whether he had checked how much the Applicant could lift. He responded that he did not do so and it was not part of his standard examination. The Applicant did complain of his inability to lift and stated that his back was sore all the time. The specialist did not ask the Applicant to lift, as lifting tests are done by rehabilitation outfits all over the city. Normally, someone is asked to lift, and responds that he or she cannot. It is impossible to judge objectively whether or not the person can actually lift. It is also impossible to know objectively if the pain complained of is real. That is why supplementary tests are performed.

The specialist testified that 70% of the individuals he examined tend to exaggerate their pain. These individuals are a pre-selected group. They represent cases which have not been settled, and that lawyers are extremely suspicious of.

The physician indicated that he considered that a general practitioner is not qualified to do an examination of a victim of whiplash injury. He testified that a full examination of the back and neck can be done in 7½ minutes, and should not take much longer than approximately ten minutes. His examination of the Applicant took somewhat longer because he also checked the Applicant's knees. He confirmed that the Applicant had advised him that he had been seeing a chiropractor for months, and that he had seen some material from the chiropractor which he described as "pretty scanty".

Submissions:

1. Submissions of the Applicant:

Counsel for the Applicant submitted that as a result of the motor vehicle accident of September 14, 1990, the Applicant suffered real injuries to his neck, back and right shoulder. The accident report has been submitted, verifying that an accident occurred. Medical reports have documented the Applicant's injuries.

Counsel referred to the "thin skull rule", that is, the legal dictum that one must take an accident victim as one finds him. The Applicant cannot be faulted if he was more susceptible to an injury because of his prior accident. However, counsel submitted that the Applicant's earlier accident has no bearing on his current condition, and neither does the alleged incident with the dirt bike. The fundamental cause of the Applicant's injuries is the particular accident claimed for.

The Applicant is claiming no-fault benefits under various heads. He is seeking continued weekly income benefits under s. 12(1), based on both his physical and his psychological or mental injuries. The residual injuries prevent the Applicant's full recovery and benefits should continue.

The Applicant qualifies for weekly income benefits as a self-employed person, because he can no longer do the essential duties of his job as a motorcycle mechanic. He no longer possesses the required strength and the agility to get into awkward positions. He cannot lift weights of more than 80 pounds. He cannot lift a motorcycle onto a stand, or do many other tasks involved in motorcycle repair. At this point, he cannot perform competently enough to run his business. The Applicant's weekly income benefits should be continued until he is able to work again.

Counsel submitted that the Applicant should have received the maximum of $600.00 weekly, based on his invoices. According to the Applicant's documentation, his net earnings averaged $1,029.00 per week. This figure should be accepted and used as the basis for calculating the Applicant's weekly income benefits.

Although the legislation provides that expenses must be deducted from gross earnings, the evidence is that the Applicant's expenses have been minimal, because he was operating out of his backyard. Counsel submitted that the Applicant has been forthright in admitting that he did not make some deductions which he should have made, such as Provincial Sales Tax. However, the purpose of this hearing is not to punish the Applicant for failing to remit sales tax.

Counsel also submitted that whether or not the Applicant was collecting unemployment insurance benefits is unrelated to the issue of the quantum of the weekly income benefits, since the Applicant is basing his claim on his earnings from his business.

The Applicant is also claiming his travel costs for car rental and taxi expenses, incurred in order to attend at chiropractic treatments.

The Applicant was not able to ride his motorcycle to go to the chiropractor at the time in question. Taking the bus would have aggravated the Applicant's back. He therefore made arrangements to rent a more comfortable vehicle.

He is requesting continuing rehabilitation benefits. The Applicant feels that Dr. Norton's craniosacral therapy can rehabilitate him to carry on his occupation. The suggested therapy consists of 20 sessions over ten weeks, with two or three sessions per week. The cost of this therapy is between $1,000.00 and $1,700.00. The Applicant is also seeking continued chiropractic benefits under Section 6 of the No-Fault Benefits Schedule.

The Applicant has suffered pain as a result of his injuries and is making a claim for pain and suffering. He is also seeking care benefits under Section 7, as he can no longer do what he was previously doing, and needs to be cared for. The psychological and mental aspects of the Applicant's injuries must be addressed, as well as his physical problems.

Finally, the Applicant is claiming $813.85 for chiropractor's bills that have not been paid, as well as amounts of $490.00 and $390.00 for medical reports.

Submissions of Insurer:

Counsel stressed that the issue being arbitrated concerns an alleged physical disability. Counsel submitted that no medical evidence of a psychological or mental injury has been brought in this case, and therefore no benefits are payable as a result of a psychological injury.

The Insurer's position is that the Applicant can currently perform his essential tasks, and that his benefits were properly terminated on February 28, 1991.

Counsel submitted that the Applicant did not provide adequate medical evidence that his disability was ongoing.

As a matter of practice, the Insurer accepted reports from the chiropractor during the initial period of disability. However, once the disability became protracted, the Insurer required a doctor's report. Counsel submitted that benefits were terminated because the Applicant failed to attend the first independent medical appointment which had been scheduled for him on reasonable notice, and had failed to produce any other medical documentation of his disability.

Counsel submitted that the evidence of Terence Corcoran, the claims representative from The Prudential Insurance Company of America, was relevant. The Prudential paid out benefits until April 1991. Payments were stopped after the Prudential received the independent medical report of Dr. Indech.

Counsel referred to Dr. Cameron's evidence, and submitted that Dr. Cameron found nothing wrong with the Applicant. Dr. Cameron observed that the Applicant had callouses with ingrained dirt in them, which he concluded were formed as a result of prolonged, heavy labour. He felt that the Applicant was exaggerating his pain, that he had no ongoing disability and required no further treatment.

Counsel submitted that Dr. Indech's report, and Dr. Kosinka's letter also supported Dr. Cameron's views.

Counsel submitted that the Applicant's prior injuries could be relevant. This Applicant had a prior, very serious, automobile accident in 1980, where he injured his right hand, knee, hip and lower back. These are the same areas for which the Applicant is now claiming.

Counsel submitted that the notes and records of Dr. O'Hara (Exhibit 31) disclose that the Applicant had chiropractic treatment two days prior to the accident. The Applicant testified that he was involved in a dirt bike accident at some time prior to the accident of September 14, 1990 and injured his right elbow.

The chiropractor's notes indicate that on November 27, 1986 the Applicant was involved in an accident. The Applicant's evidence was that he was not hurt in this accident.

The Applicant was also involved in another motor vehicle accident subsequent to September 14, 1990, although he refused to answer questions about it, as he contended that it was not relevant.

Although he generally denied seeing other doctors, the Applicant gave evidence that he had consulted a number of physicians, including Dr. Levi, a general practitioner. Counsel submitted that the Applicant lacks credibility and simply says what he thinks is appropriate.

Counsel submitted that the evidence of Joanne King, the private investigator, goes to the issue of the Applicant's credibility. The Applicant claims to be disabled, but good quality videotape was obtained showing him engaged in horseplay and washing his car. The videotape shows that the Applicant moved without restriction, and washed his car in a normal fashion.

Counsel referred to the Applicant's work history and submitted that he is not, in fact, a motorcycle mechanic by trade. He does not have a mechanic's license and is capable of any type of general work on small engines.

The Applicant claimed to have earned $900.00 to $1,000.00 per week as a self-employed motorcycle mechanic during the four weeks preceding his accident. He therefore claimed he was entitled to the maximum weekly benefits.

Counsel submitted that the Applicant provided no evidence or documentation to substantiate his actual business costs. He has documented his earnings with self-serving, self-generated work orders, which are lacking in many respects. Counsel submitted that without accurate documentation of the Applicant's expenses, his net earnings cannot be properly calculated. Therefore the weekly income benefit cannot be correctly computed.

Counsel referred to the evidence of the Applicant's spouse, that the Applicant has been doing motorcycle repairs seriously since the spring of 1990. However, the Applicant was claiming unemployment insurance benefits from about January 1990 or late 1989. Therefore, the Applicant was collecting unemployment insurance at the same time as he was operating his business. Either he was lying about the business, or lying to the Unemployment Insurance Commission. In either case, his credibility is in question. Counsel submitted that an adverse inference should be drawn from the Applicant's refusal to answer questions about his unemployment insurance benefits.

Counsel submitted that the testimony of the Applicant's wife was not credible. She testified that there had been no work out of the shop since the accident, but she also indicated that she had done some emergency work, and had repaired about five motorcycles, thus generating some income.

Regarding the Applicant's claim for transportation expenses under s. 6(1)(d), counsel submitted that the Applicant's wife testified that she fixed the Applicant's Harley-Davidson motorcycle. Counsel submitted that the motorcycle could have been repaired in September 1990, after the accident, and the Applicant could have used it without incurring any new transportation expenses.

Counsel submitted that the Applicant brought a Ford pickup truck in December 1990, and therefore did not need to rent a car. The Applicant also owned other vehicles which could have been repaired and used for transportation.

Counsel submitted that in fact the rental car and the cream-coloured Volare parked in the Applicant's driveway were one in the same vehicle, and that no replacement vehicle at all was rented. Counsel submitted that the car rental was a complete fabrication. The invoices for the rental vehicle were on the same forms as the Applicant's own work orders. The invoices were deficient in information, and the rental rate quoted was in excess of the commercial rate.

Counsel submitted that nothing further should be allowed to the Applicant for transportation expenses. Expenses have been paid to the Applicant for the cost of travel for 37 visits to the chiropractor nearest his home.

With respect to the other supplementary benefits claimed by the Applicant, counsel submitted that there has been no evidence about the actual costs of the craniosacral therapy, and we do not know what it is. Therefore, no order should be issued. Counsel submitted that the Applicant's chiropractic costs have all been paid and that no future chiropractic treatments are warranted.

No evidence has been brought by the Applicant regarding care benefits. The arbitrator has no jurisdiction to award general damages to the Applicant or his spouse.

Counsel submitted that no interest should be paid or payable, even if I found that monies were owing. The hearing was being held because of the Applicant's lack of co-operation in providing the information requested by the Insurer - information which the Insurer requires in order to justify payments over the minimum. This is especially true in view of the credibility problems raised by this Applicant.

Counsel also submitted that, regardless of the outcome, no costs should be ordered in the Applicant's favour, for the same reason.

Findings:

1. Credibility:

This is a contentious and difficult case. The parties have failed to agree about almost all aspects of the benefits claimed. The crux of the dilemma is that, for various reasons, the Applicant has been unable to provide objective verification of his version of the facts. The Insurer has been unwilling to accept the Applicant's claims in the absence of such verification.

The Applicant is a self-employed small businessman. Because of the size and nature of his business, he has been unable to provide "objective" documentation of his earnings: all his documentation is self-generated and self-reported. No "objective" sources of data about the Applicant's earnings exist: the only source of information and evidence are the Applicant's documents and his testimony. That evidence is useful and credible only to the extent that I find that the Applicant himself is a truthful and reliable witness.

The issue of continuing disability raises the same problem. The Applicant bases his claim to benefits on his subjective experience of pain, rather than on a medically verifiable condition that can be established on the basis of objective data. Again, the credibility of the Applicant's testimony regarding his pain and how it affects his ability to work is crucial to my disposition of this issue.

I have concluded that the Applicant is not a credible witness and that his testimony, in general, is not reliable. I have based my assessment of the Applicant's credibility on the following factors:

(1) The Applicant's testimony was often inconsistent and contradictory.

For example, he originally denied seeing any doctors or other medical practitioners with respect to his accident, after he was discharged from hospital, other than his chiropractor, Dr. O'Hara. He presented no reports from any doctors he consulted after the accident. However, later in his testimony he referred to seeing at least two other doctors, and indicated that these doctors gave him prescriptions for pain medications. Nevertheless, these doctors were not identified and their opinions and treatment of the Applicant were not outlined in the evidence.

Similarly, the Applicant's evidence about prior accidents was vague and contradictory. He first stated unequivocally that he had been involved in no accidents between 1980 and the accident of September 14, 1990. He later conceded that he had "washed out" on a dirt bike in the summer of 1990, when it was put to him that Dr. O'Hara's clinical notes for September 12, 1990 (Exhibit 31) refer to "trauma" from a "few falls off dirt bikes". However, the Applicant denied any ongoing injury from this fall, although he conceded that he had attended for chiropractic treatment.

In cross-examination he also admitted that he was involved in an accident in 1986 where the vehicle was completely written off. He denied sustaining any injury.

Finally, the Applicant's testimony and the evidence in his work orders are often contradictory. This is discussed below in greater detail, in connection with the issue of the quantum of weekly benefits.

(2) The Applicant and his wife gave contradictory evidence about who fixed his Harley-Davidson motorcycle after the accident. The Applicant's wife said she did it alone. The Applicant testified that the bike was repaired with the help of "friends".

(3) The Applicant and his wife also gave contradictory evidence when describing the car that the Applicant allegedly rented. The Applicant's wife described it as a "greyish blackish" vehicle, while the Applicant said that the car was "cream-coloured". The Applicant and his wife also disagreed about whether their Dodge Magnum had license plates.

(4) I find that the entirety of the evidence regarding the rental vehicle is problematic and not credible. This evidence will be more fully discussed in my findings with respect to the Applicant's transportation claim. However, my conclusions with respect to this aspect of the claim must also influence my general assessment of the Applicant's credibility.

(5) Finally, the Applicant admitted under oath that he had failed to charge and remit Provincial Sales Tax, although he was aware of his legal obligations to do so. He admitted that he had not filed a Federal Income Tax Return for at least the past two years. He had also been claiming and receiving unemployment insurance benefits during a period when he claimed to be working and earning $900.00 to $1,000.00 a week from his motorcycle maintenance business. In light of the above, is difficult to place any reliance whatsoever on the Applicant's statements about his income or earnings.

2. Duration of weekly income benefits:

In this case, the Applicant's weekly income benefits were terminated effective February 28, 1991. The Applicant claims to be entitled to continuing benefits, and also claims to be entitled to a special award under s. 282(10) on the basis that his weekly income benefits were unreasonably withheld.

Under the legislation, weekly income benefits are payable as follows:

Section 12

(1) 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 income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

The Insurer's position is that weekly income benefits were terminated because the Applicant failed to provide medical verification that he continued to suffer substantial inability to perform the essential tasks of his occupation or employment. The Applicant had originally documented his disability by way of reports from his chiropractor, Dr. O'Hara.

When it appeared that the disability was becoming protracted, the Insurer requested a report from a physician rather than a chiropractic practitioner. The Applicant failed to provide such a report. The Insurer therefore scheduled an appointment with an independent medical examiner, apparently upon extremely short notice to the Applicant. The Applicant could not attend the examination because he did not have sufficient notice in advance. Upon this failure to attend at the independent medical examination, the Insurer terminated the Applicant's weekly income benefits.

I have concluded that the Insurer wrongfully terminated the Applicant's weekly benefits effective February 28, 1991, for failing to attend at the independent medical examination. The Insurer clearly has the right to require that the Applicant furnish a medical certificate from a duly qualified medical practitioner, and it also has the right to require on reasonable notice, that the Applicant attend at an independent medical examination. This is set out at Section 23 of the No-Fault Benefits Schedule, which provides as follows:

Section 23

(1) Unless waived by the insurer, the insured person or the person otherwise entitled to make a claim under Part IV shall furnish a certificate from a qualified medical practitioner or psychological advisor of the insured person's choice as to the cause and nature of the injury for which the claim is made, an estimate of the duration of the disability caused by the accident and a treatment plan.

(2) In respect of claims under Part IV, the insurer may, on reasonable notice, require an examination of the insured person by a qualified medical practitioner, psychological advisor or chiropractor as often as it reasonably requires, and require an autopsy of a deceased insured person in accordance with the law relating to autopsies.

(emphasis added)

However, the evidence is that the Applicant did not have reasonable notice of the arrangement for the independent medical examination. His uncontradicted evidence is that he learned of the appointment approximately one hour before it was scheduled to occur. Under the circumstances, I find that the Applicant's weekly income benefits were wrongfully terminated by the Insurer, for failure to attend at the appointment.

Accordingly, I must determine whether the Applicant's disability was ongoing from February 28, 1991, and for how long he continued to be unable to perform his essential tasks. The Applicant's position is that his disability has continued up to the present. The Insurer's position is that the Applicant's benefits were properly terminated effective February 28, 1991, because he has failed to establish that he continued to be disabled from performing his essential tasks.

The Applicant's evidence of his disability consists of his testimony and the testimony of his wife, to the effect that he is no longer capable of repairing motorcycles since his accident. He cannot lift and manipulate the large machines that he used to work on. He conceded that he is capable of doing repair work which does not require strenuous lifting or wrenching.

The Applicant testified that he cannot work at his former occupation as a driver because his back hurts if he sits for a prolonged period of time.

The Applicant presented no medical evidence which supports his claim of disability. A letter from his chiropractor dated September 25, 1991 (Exhibit 30) outlines the history of the Applicant's accident, and the findings and chiropractic treatment subsequent to the accident.

The letter concludes:

It is my clinical opinion that Mr. Williams sustained a hyperextension-hyperflexion injury to his cervico-thoracic spine. The nature of the trauma, the loss of normal range of motion, the myospasm and the sympathetic nervous system symptomatology (dizziness, blurred vision, tinnitus, etc.) support this diagnosis....

...Mr. Williams also sustained erector spine and intercostal muscular strain;...

...The patient has suffered as a result of the accident. Initially he had to use a cane for stair climbing and descending and had to sleep on the floor to be more comfortable. He was unable to run his motorcycle repair business; within five weeks of the accident he could not lift over ten pounds. The accident seriously affected his business and his life-style.

Prognosis

Upon re-examination on March 11, 1991 the patient reported no significant change regarding his neck symptomatology. Through his range of motion was full, pain was present with active rotation and extension at C5 on the right. He continued to experience pain in the right intrascapular region as well. I referred him to Dr. Kosinka, an orthopedic surgeon, in March 1991. I have neither treated nor examined Mr. Williams sine [sic] March 1991, I cannot offer a prognosis at this time....

Dr. O'Hara's letter, therefore, indicates that up to March 11, 1991 the Applicant continued to report that he experienced pain in his neck and upper back. The letter does not indicate whether the Applicant's pain disabled him from performing the essential tasks of his employment.

Dr. O'Hara's referral letter to Dr. Kosinka (Exhibit 12) dated March 14, 1991 states:

Although I feel Mr. Williams has achieved at least 75% recovery, he claims he experiences continuous pain at C5 on the right and at the right third costovertebral joint. He formerly ran a motorcycle repair business but feels he cannot yet work on bikes which often have to be lifted.

Dr. Kosinka examined the Applicant on March 21, 1991, at the request of Dr. O'Hara. His letter to Dr. O'Hara dated March 21, 1991 (Exhibit 13) states:

...On clinical examination however his lumbar spine is adequately mobile except for poor lateral shear. There is no pain on mobilization...

...The patient's cervical spine is freely mobile, without any spasm. There is pain at the level of the 7th cervical spinous process on terminal mobilization.

There are no signs of either cervical or lumbar radiculopathy. The x-rays of his cervical and dorsal spine, which were repeated several times, are repeatedly unremarkable.

Mr. Williams might have suffered cervical and lumbar strain. But the present formal orthopaedic examination is unremarkable and consistent with pain fixation.

The patient might need lots of psychotherapeutic support. I do not feel that any aggressive treatment is indicated....

Dr. Kosinka's letter indicates that on March 21, 1991 the Applicant had no objectively verifiable physical problem, that he was suffering from "pain fixation" and might require psychotherapeutic support. The letter does not indicate that the Applicant continues to be disabled from working because of his physical or psychological injuries.

The Applicant consulted Dr. Brent Norton, who indicated, in a letter dated September 4, 1991, (Exhibit 8):

...Dr. Kosinka and myself agree that he had pain and he required therapy.

Pain secondary to soft tissue injury is known to be a difficult problem to treat which frequently requires physical and psychologic therapy. In the case of MVA's it is not unusual for patients to require "therapy" for extended periods of time.

Mr. Williams has now become quite desperate. He talks about his frustrations, his innability [sic] to work, and has discussed killing himself....

...his present anxiety levels and pain fixation have rendered him less functional than he was six months ago.

Mr. Williams requires "therapy" and it is only with this support that he has a chance to return to his previous level of functioning.

Prognosis

It is my opinion that Mr. Williams could return to work immidiately [sic] as long as it is not heavy labour. I expect Mr. Williams to improve with therapy and that he will return to his previous work within 4-6 months. I have discussed with Mr. Williams that prolongation of this problem beyond this point might be due to a lack of the patient taking control of his problems rather than the natural history of the condition....

I note that Dr. Norton's letter focuses on the Applicant's subjective reports of pain and frustration, and his need for supportive "therapy". Dr. Norton considered that the Applicant was capable of working as long as it was not "heavy labour", but he did not indicate whether he thought that the Applicant's work as a motorcycle mechanic was "heavy labour".

In short, none of the Applicant's medical evidence specifically indicates that he suffered a substantial inability to perform the essential tasks of his employment, such that benefits would be payable under Section 12 of the No-Fault Benefits Schedule.

The evidence of Dr. Indech and Dr. Cameron is more specific. Dr. Indech's report of his examination conducted on behalf of the Prudential on April 2, 1991 states:

...Apart from an odd click in his shoulders, he really had a normal examination. I noted that his hands were quite marked and scuffed. He also had oil stains in them so that it was quite clear that he had been using his hands for mechanical work. He had no restrictions of neck or shoulder function. His discomfort appeared to be in the posterior scapulo-humeral structures but I could not determine any local tenderness. He had normal lower back function. He had no restriction of his right hip function. He had normal right knee mobility. There was no laxity of his right knee joint. His thigh and calves muscles were of normal bulk and the measurements were the same on each side. He walked around in a normal fashion without any obvious impairment....

...Mr. Williams attended my office on April 2, 1991. He gave a history of coming off his motorcycle on September 14, 1990, when he was apparently struck in the rear by a car which he did not see. He sustained multiple soft-tissue injuries from which he still claimed disability....

...All his x-rays were normal... I was totally unconvinced that he had any significant physical disability.

In my opinion, Mr. Williams did not require any more treatment from either physicians or paramedicals such as chiropractors. On the contrary, the lack of convincing findings led me to conclude that he was not disabled and that he could certainly find suitable work as he had already tried quite recently.

Dr. Indech therefore, on April 2, 1991, was convinced that the Applicant was not disabled from working, and concluded that the Applicant had in fact been working, since his hands were marked and scuffed with oil stains.

Dr. Cameron came to the same conclusion when he examined the Applicant on July 31, 1991. His report (Exhibit 10) states at p. 5:

...In my opinion this man was involved in an accident which resulted in a strain of his neck and doubtless various other contusions. He says that nothing is getting better. His headaches have remained the same, the ringing in his ears remains the same, his neck pain is getting worse, his back pain is getting worse, his hip, right knee and right foot all have remained unchanged.

Given the fact that this accident was almost a year ago -it is a little difficult to believe these statements.

When one examines this man, objectively there is nothing to find at all. He has a full range of movement in his neck and back with no evidence of any nerve root tension, compression or irritation. I can find nothing wrong with his right foot, right knee or right hip.

Given the fact that he has a full range of movement with no evidence of nerve root involvement and given the fact that his x-rays are all normal, I assume he sustained a musculoligamentous strain of various sites. The natural history of this is slow resolution with the passage of time.

The most important thing is that this man says he is not working and has not worked since September 1990. He is obviously miss speaking [sic]. His hands are those of a working man with large callouses on the palms of both hands and ingrained dirt.

Given the fact that this man is obviously working at the present time, I see no reason that he cannot continue with work....I think this man has largely recovered from the effects of this accident and any residual symptoms which may or may not persist are I think of nuisance value only and will disappear in due course....

Neither of the independent medical examiners believed that the Applicant's pain was disabling to the extent that it prevented him from working. Both concluded independently that the Applicant had been working, after observing the appearance of his hands. Dr. Cameron testified that he felt the Applicant was exaggerating his complaints of pain.

The Applicant, in his evidence, offered no reasonable explanation for the presence of oil stains and callouses on his hands during a period when he claimed to be unable to work.

In light of my conclusions about the Applicant's credibility, outlined above, I find the Applicant's failure to provide an explanation for the callouses and oil stains telling. This, combined with the absence of strong evidence from his own doctors and the definite findings of the independent practitioners leads me to conclude that the Applicant has failed to prove that he continued to be disabled from performing the essential tasks of his employment subsequent to March 21, 1991, the date when he was examined by Dr. Kosinka, who stated that the findings were "unremarkable".

The Applicant is therefore entitled to weekly income benefits for the period from February 28 to March 21, 1991.

The Applicant is not entitled to a special award, under s. 282(10). That section provides as follows:

Section 282

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The evidence is that the Insurer received no medical report from the Applicant documenting his disability subsequent to February 28, despite its request for such a report. In the circumstances, I do not find that benefits were unreasonably withheld by the Insurer, sufficient to warrant the granting of a special award under Section 282.

3. Quantum of Weekly Income Benefit:

Section 12 of the No-Fault Benefits Schedule sets out the method for calculating the Applicant's weekly income benefits as follows:

Section 12.

(4) Subject to subsection (5), the weekly benefit under subsection (1) will be the lesser of,

(a) $600 plus, if Optional Benefit 2 has been purchased, the amount of the benefit chosen; and

(b) 80 per cent of the insured person's gross weekly income from his or her occupation or employment, less any payments for loss of income,...

... (7) The following rules apply to the calculation of gross weekly income:

1 .A person's gross weekly income shall be deemed to be the greatest of,

i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,

ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,

iii. $232.

3. Business expenses which cease as a result of the accident shall be deducted from a person's income from self-employment before calculating his or her gross weekly income. O.Reg. 273/90, s. 12.

In the present case, the Applicant has presented no evidence about his weekly average earnings for the 52 weeks prior to the accident, and bases his entitlement to benefits solely on his income for the four-week period preceding the accident.

His evidence about his income for that period was based on the work orders marked Exhibits 24, 25, 26 and 27. Those work orders document his gross earnings from his business. I have carefully examined the work orders and have concluded that they are deficient in many respects. Although the work orders are all dated with a day and month, none show the year of the transaction. Many do not fully identify the customer, or show the customer's address. Many do not indicate the make, model or year of the machine repaired.

Two work orders (#018266 - Exhibit 24 and #018282 - Exhibit 27) indicate that payment was made by cheque. One work order (#018270 - Exhibit 24) is marked "AMEX". Some are marked "CASH" but many do not show a method of payment. One work order (#018281 - Exhibit 27) indicates that the customer still owes $35. This is contrary to the Applicant's evidence that all his work was done on a cash basis and that he rarely accepted cheques. The Applicant provided no explanation for the notation "AMEX".

One work order (#018272 - Exhibit 25) indicates that the Applicant towed a bike back from Tweed for free. Two work orders (#018268 - Exhibit 24 and #018282 - Exhibit 27) are marked "PREPAIR [sic] FOR CERT, CERT" and "CHECK FOR CERT, CERT" respectively, although the Applicant testified that he was not licensed to do safety checks. I note that one work order (#01274, Exhibit 25) indicates that the Applicant repaired a Honda motorcycle, although he testified he did not work on Hondas. None of the work orders indicate that Provincial Sales Tax was charged to the customer.

I am satisfied from the work orders that the Applicant was indeed employed as a motorcycle mechanic during the four weeks in question, as he claims. The earnings documented in the invoices represent income from his motorcycle repair business. The Applicant gave viva voce testimony about the repair work done in each case, and I am satisfied that, in general, the work was as he described it. However, the work orders are an incomplete and unreliable record of the Applicant's income from his work.

Moreover, the legislation requires that weekly income benefits be calculated based on gross income, less business expenses which cease, as set out above.

In this case, although the Applicant has provided some evidence about his gross earnings, he has failed to provide adequate evidence of his business expenses. He testified that he failed to charge or remit the applicable Provincial Sales Tax. His evidence about his other expenses was scanty. He testified that he had virtually no business expenses other than hydro-electric charges, but he failed to document even those hydro charges. He provided no evidence about transportation expenses (for towing or transporting motorcycles or parts), expenses for materials and equipment (other than expenses for parts on which he made a profit), stationery and office supplies, bank charges, cleaning supplies, solvents and the like.

Because of my general difficulties with the Applicant's credibility, as outlined above, I cannot rely on the Applicant's testimony that his business expenses were negligible. I find that it is likely that the Applicant has failed to fully disclose his real expenses, because by doing so his gross income would be reduced.

Since the Applicant provided no clear evidence about his expenses, and very problematic evidence about his earnings, I am not able to perform the calculation to deduct his ceasing expenses from his gross weekly income.

In short, the Applicant has failed to establish, on a balance of probabilities, his gross weekly income, or that it exceeded the deemed statutory minimum of $232. Therefore, I find that the Applicant was entitled to weekly income benefits of $185.00, based on the deemed statutory minimum.

4. Supplementary Medical and Rehabilitation Benefits:

(a) Claim for Transportation expenses:

The Applicant claims transportation expenses under Section 6 of the No-Fault Benefits Schedule, which provides for the payment of such expenses as follows:

Section 6.

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

As part of his transportation expenses, the Applicant claims his full travel expenses incurred to attend at chiropractic treatments at the office of Dr. O'Hara.

The evidence, verified in Exhibit 29C, is that the Insurer paid the Applicant mileage for his travel expenses to his chiropractor at the rate of three miles one way (six miles a trip), which represented the distance between the Applicant's home and the nearest chiropractor. The Insurer considered that it was unreasonable to reimburse the Applicant for his full expenses incurred to travel approximately 17 km (one way) to the office of Dr. O'Hara.

In my view, the Applicant has the right to attend at and seek treatment from the practitioner of his choice, so long as the resultant travel expenses are not clearly exorbitant or excessive. The Insurer cannot reasonably demand or require that an insured person attend at the treatment facility closest to his or her home. In this case, the evidence is that the Applicant had a long-standing relationship with Dr. O'Hara. Her clinical notes (Exhibit 31) indicate that she had been treating him since at least 1983. Under the circumstances, I find that the Applicant's travel expenses incurred to attend at Dr. O'Hara's for treatment are reasonable. He is entitled to be fully reimbursed for those expenses, pursuant to s. 6(1)(d) of the No-Fault Benefits Schedule.

I have more difficulty with the other travel expenses claimed by the Applicant. I am not persuaded that the Applicant required a rental vehicle as a consequence of his accident: he could have travelled by taxi for medical treatments, if necessary. The Applicant is claiming $2,200.00 for car rental expenses.

Moreover, I have carefully examined the three invoices (Exhibits 22A, 22B, and 22C) purporting to document the Applicant's car rental expenses, and I find the documents to be of dubious reliability. The rental invoices are on exactly the same printed forms as the Applicant's own work orders. The serial numbers of two of the invoices - 018162 and 018155 - are quite close to the serial numbers on the work orders submitted by the Applicant, which go from 018267 to 018285.

Furthermore the handwriting on the car rental invoices -- which is block printing -- is to my admittedly untutored eye identical to and indistinguishable from the block printing on the Applicant's work orders and correspondence. The car rental invoices are also deficient in that they fail to properly identify the rental vehicle: licence plate numbers and other identifying details are omitted. Two of the invoices refer to a "cream Dodge Volare" but do not indicate the model or year. The other invoice refers to a "1980 Merc Grand Marquis": the colour and style of that car is not indicated.

The rental invoices do not indicate that Provincial Sales Taxes were charged or paid. They do not show whether and what kind of insurance coverage was obtained and paid for. The rental rate quoted, $40.00 per day, is excessive, especially for a 1980 vehicle.

The letter submitted by the Applicant and purportedly signed by G.W. Adair (Exhibit 22) is no more helpful than the invoices. The letter itself constitutes unreliable hearsay evidence, as the writer was not available at the hearing for cross-examination. The letter merely repeats the information on the invoices, with the additional comment that the $40.00 daily charges are "insurance included".

From the documents provided, I am not satisfied that the Applicant actually rented a vehicle. Furthermore, as I have indicated above, the Applicant has failed to prove that he required a rental vehicle. Finally, I find that the rental expenses claimed are not reasonable. Therefore, I cannot allow the Applicant's claim for a rental vehicle.

(b) Claim for additional medical, psychological and rehabilitation services:

The Applicant claims that he requires further therapeutic services as he continues to suffer from his injuries sustained in the accident of September 14, 1990. The Applicant has requested ongoing chiropractic treatment, and he has also requested the craniosacral therapy recommended by Dr. Norton.

Such services are provided for under Section 6 of the No-Fault Benefits Schedule as follows:

Section 6.

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;

(c) rehabilitation, life-skills training and occupational counselling and training;

Regarding the claim for further chiropractic treatment, Dr. O'Hara indicated in her letter of September 25, 1991 (Exhibit 30) that she had not treated the Applicant since March 11, 1991, when she referred him to Dr. Kosinka. No evidence was brought, either from Dr. O'Hara or from any other medical or chiropractic practitioner, to indicate that the Applicant reasonably requires further chiropractic treatment as a result of the accident. I also note that Dr. Cameron expressed the view that additional chiropractic treatment would not be helpful to the Applicant. In the circumstances, therefore, I cannot allow the claim for further chiropractic treatment.

With respect to the claim for craniosacral therapy, the Applicant has presented very little evidence about the nature of this therapy, or its anticipated effects. There was no evidence about the contents or duration of the therapy sessions, other than an indication from the Applicant that they included "manipulations and exercises, including fitness stances".

Dr. Norton, in his letter of September 4, 1991 (Exhibit 8) opines that the Applicant requires supportive "therapy" to deal with "his present anxiety levels and pain fixation". Exhibit 8 indicates that the Applicant's problems are emotional or psychological, rather than physical. Dr. Norton's letter does not explain how the craniosacral sessions, which appear to consist of an exercise program, would address the Applicant's psychological difficulties.

In the absence of more complete evidence outlining how the proposed therapy would operate to benefit the Applicant, I cannot conclude that the cost of the therapy (estimated at between $1,000 and $1,700) is a reasonable expense arising from the accident, which the Insurer is obliged to pay for under s. 6(1)(c) of the legislation. I also note that Dr. Cameron assessed the therapy as "equivalent to voodoo". Accordingly the Applicant's claim for craniosacral therapy is not allowed.

5. Other Claims

At the hearing, the Applicant indicated that he wished to assert a claim for care benefits under Section 7 of the No-Fault Benefits Schedule, and that he was also seeking compensation for his pain and suffering.

The legislation regarding care benefits provides:

Section 7:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person.

(a) the reasonable cost of a professional care-giver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and

(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.

The issue of care benefits was not raised in the Applicant's original application for the appointment of an arbitrator, and there is no evidence in the Report of Mediator that mediation of this question was attempted. There is no evidence to indicate that the Insurer has consented to the arbitration of this issue.

My jurisdiction to rule on questions between the parties is limited by s. 281(2) and 282(3) of the Insurance Act, which state:

Section 281

(2) No person may bring a proceeding in any court or refer a matter to arbitration unless mediation has first been sought and has failed.

Section 282

(3) The arbitrator shall determine all issues in dispute and such other issues as the parties may agree.

In the case of Rosa DeCicco and State Farm (File No. A-000277, Dec. 18, 1991, upheld on appeal Feb. 21, 1992) Senior Arbitrator S. Naylor stated:

The legislation appears to draw a distinction between a "matter" and "issues". "Matter", it is suggested, is the broader term, and means the thing in dispute; "issues", the specific questions of fact or law that form the basis of the dispute.

The use of the definite article in the term, "the matter" suggests that the thing in dispute must be the dispute that has been previously referred to mediation "in respect of an insured person's entitlement to no-fault benefits or ... the amount of no-fault benefits..". Furthermore, the "issues in dispute" in arbitration reasonably correspond to those that have been identified as remaining in dispute by a mediator under s. 242b(8).

These questions are "issues in dispute" under s. 242d(3) if they have been identified as such in the course of mediation, they remain unresolved, and they are raised by either party to the arbitration. If such issues have not been mediated, however, they are not arbitrable under the terms of s. 242d(3) unless both parties consent to their inclusion.

I agree with this analysis and therefore find that I have no jurisdiction to deal with the issue of care benefits.

As for the question of pain and suffering, nothing in the legislation grants me the authority or jurisdiction to make an award in respect of this claim. On the contrary, the legislative scheme clearly provides that pain and suffering is not compensable per se. A benefit is only granted if pain has the effect of disabling an individual to the extent required under Section 12 or 13 of the No-Fault Benefits Schedule: that is, the person suffers from a substantial inability to perform his or her essential tasks.

6. Costs of the Hearing:

Counsel for the Insurer submitted that no interest or costs should be awarded to the Applicant, because of his lack of co-operation in failing to provide to the Insurer, in a timely fashion, medical and financial information which it reasonably required. However, it is not clear to me that this lack of co-operation unreasonably delayed or prolonged the hearing process.

Mediation and arbitration were duly sought and pursued on the basis that the parties had genuine differences with respect to the Applicant's entitlement to no-fault benefits. It was not argued and I do not find that the Applicant's application for the appointment of an arbitrator was manifestly frivolous or vexatious. Therefore, I conclude that the Applicant is entitled to an award for his costs, pursuant to the reasoning of Senior Arbitrator S. Naylor in McCormick v. Economical Mutual Insurance Company (File No. A-000139, Oct. 2, 1991):

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Applicant is also entitled to an award for his expenses incurred for medical-legal reports from Dr. O'Hara and Dr. Norton, pursuant to s. 282(11) of the Insurance Act, and Ontario Regulation 275/90, which sets out the nature of the expenses and the maximum amounts allowable. I remain seized of the matter in the event that a dispute arises regarding the amount of these expenses.

Finally, the Applicant is entitled to interest on any outstanding amounts at the rate of 2 percent per month pursuant to section 24 of the No-Fault Benefits Schedule.

Order:

1. The Applicant is entitled to weekly benefits of $185.00 under the No-Fault Benefits Schedule.

2. The Applicant is entitled to weekly income benefits from March 1, 1991 to March 21, 1991.

3. The Applicant is entitled to be reimbursed for his actual mileage for travel to his chiropractor.

4. The Applicant is entitled to interest at 2 per cent per month on all outstanding amounts owed.

5. The Applicant is entitled to his expenses incurred in respect of the arbitration proceeding, as prescribed under Ontario Regulations 275/90 and the Schedule to the Dispute Resolution Practice Code, including costs incurred for medical-legal reports.

May 6, 1992

Frederika M. Rotter Senior Arbitrator

Date