Neutral Citation: 1992 ONICDRG 21

File No. A-000683

ONTARIO INSURANCE COMMISSION

BETWEEN:

THI VE VINH

Applicant

and

CANADIAN SURETY CO.

Insurer

DECISION

Issues:

The Applicant was injured in a motor vehicle accident on July 23, 1990. He was insured under a standard automobile owner's policy issued by the Insurer. Every motor vehicle liability policy provides the no-fault benefits specified in Ontario Regulation 273/90 ("the Schedule"), enacted under the Insurance Act, R.S.O. 1990, c. I.8 ("the Act").

The Applicant applied for weekly income benefits under Part IV of the Schedule which the Insurer paid until December 27, 1990. Thereafter, the Insurer claimed the Applicant failed to meet the criteria of Section 12(1) of the Schedule for these payments because he was not suffering "substantial inability to perform the essential tasks of his or her occupation or employment". In the summer of 1991, the Applicant applied for mediation on the issue of his continued entitlement to benefits from December 28, 1990 forward. Mediation failed to resolve the issue and the Applicant applied for the appointment of an arbitrator in December 1991. The issues to be determined in this arbitration were as follows:

1. Is the Applicant entitled to weekly income benefits from December 28, 1990 forward?

2. Should a penalty be assessed against the Insurer pursuant to Section 282(10) of the Insurance Act?

The Applicant also claimed interest on any unpaid benefits and his expenses of the arbitration.

Result:

The decision is:

1. The Applicant is not entitled to weekly income benefits from December 28, 1990 forward.

2. No penalty should be assessed against the Insurer pursuant to section 282(10) of the Insurance Act.

3. The Applicant is entitled to his expenses of this arbitration under section 282(11) of the Act and Regulation 275/90.

Hearing:

An arbitration hearing was held at North York, Ontario, on March 30 and 31, 1992 before me, K. Julaine Palmer, Arbitrator.

Present at the hearing were:

Applicant:

Thi Ve Vinh

Applicant's

Altor Shields

Representative:

Barrister & Solicitor

Insurer's

Brian Atherton

Representatives:

Barrister & Solicitor

Gail Horner

Vietnamese

Interpreter:

Thanh Gian

The following persons testified, under oath or solemn affirmation: Thi Ve Vinh, Lam Chi Thanh, and Arthur Ameis, M.D. The parties filed 12 exhibits. The proceedings were recorded by Diane Erickson, stenotype reporter, Office of Paul Rosenberger, Toronto.

Evidence:

Applicant's Testimony:

Direct Examination:

The Applicant, who is now 28 years of age, gave his evidence through an interpreter. He testified that he was born in Vietnam and came to Canada in February 1980. He obtained high school education in Vietnam. After his arrival in Canada, he worked first as a dishwasher, then at a series of factory jobs. The Applicant studied English for three months soon after his arrival in Canada.

In 1984, the Applicant married. He is the father of two children. He separated from his wife in 1990, prior to the accident. The Applicant now lives with a friend, Mr. Lam. He has not worked since the motor vehicle accident of July 23, 1990. Prior to the accident, he was employed as a machine operator. The machine cut metal and punched holes in it. A physiatrist, called as a witness by the Insurer, classified this job as "medium-heavy". The Applicant testified that some sheets of metal which he had to load into the machine were so large as to require two people to carry the raw material. The Applicant carried such pieces of metal a distance of approximately 20 feet. This sheet metal was the thickness of a 254 piece. In order to carry out his duties, the Applicant had to hold both the cutting and the punch machine, both of which transferred motion to his body. He would repeat the cutting and punching operation approximately 100 times per day.

On July 23, 1990, the Applicant's motor vehicle was stopped at a red light when it was hit from behind. After the accident, the Applicant did not go to the hospital, but he saw a doctor. He has seen that doctor approximately twice monthly since the accident, and four or five other specialists on his recommendation. The Applicant could not recall the names of all the doctors; in fact, he could only recall Dr. Low's name. He attended physiotherapy for three or four months. He stopped going to physiotherapy because he was afraid he would have to pay for this treatment from his own pocket. A representative of the clinic had telephoned him and told him that the Insurer had refused to pay for any further physiotherapy treatment.

In the accident of July 23, 1990, the following parts of Mr. Thi's body were injured: his head, neck, right shoulder, low back, and left knee.

The Applicant complains that he still has a headache very frequently, when he sits a long time or is thinking or tries to do something. He cannot read too long or he will get dizzy. These headaches occur approximately twice a day and if he takes medication (Tylenol No. 2), they last approximately one hour. The Applicant had no headaches before the accident. He testified that these headaches are just as severe now as they were shortly after the accident.

Whenever the Applicant gets a headache, it affects his neck and the right shoulder as well. If Tylenol No. 2 brings no relief from the neck pain, the Applicant will take another medication called Atasol (acetaminophen). The Applicant denied having any neck pain prior to the accident. It first began after the accident and is more severe now than it was previously.

The Applicant testified he had no problems with his right shoulder before the accident; the pain began after the accident and has resolved now, except for days when the weather is cold. The Applicant's low back pain also began following the accident. This pain varies with the weather, but is gradually resolving. Similarly, the Applicant had no problem with his left knee before the accident, but after the accident, he had pain. This problem resolved, but whenever the Applicant climbs stairs and walks fast, he feels pain.

In April 1991, the Applicant got a job at Lee Lee Jewellery. He polished jewellery and worked as a cleaner. This job lasted three or four days, and he was paid more than $100 - he cannot recall the exact amount. The job required a great deal of bending and lifting. He did not feel well and asked for a day off to see his doctor. The boss telephoned him at home and told him not to return.

Now, the Applicant spends his time watching T.V. and sleeping. He testified he is unable to do the sports he enjoyed prior to the accident - soccer and volleyball. Prior to the accident, he also went dancing on the weekends, which he now cannot do.

When he was living in Vietnam, the Applicant's scalp was injured by a piece of metal, following an explosion. This scratched the top of his scalp, but did not enter his skull. That injury never stopped him from working.

Cross-Examination:

The Applicant did not remember how much property damage had been done to his car as a result of the accident. He also did not recall if any doctors had asked him about it. He stated that he always spoke to the doctors in English and occasionally used an interpreter to assist him. His treating physician's secretary speaks Vietnamese, as does the secretary of Dr. Low. The Applicant testified he usually understood the doctors and was able to make himself understood. Only if there was great difficulty would he ask the secretary/interpreter to assist him.

The Applicant was asked why he waited three days after the accident before he saw Dr. Talangbayan. His response was that after he got home he felt pain all over his body and he then made an appointment by telephone to see the doctor. He did not go to a hospital after the accident. Dr. Talangbayan was not his family doctor before the accident.

The Insurer's counsel asked the Applicant if he could recall going to the office of Dr. Ameis, "the insurance company doctor". The Applicant answered that he could recall the appointment, but he couldn't recall the doctor's name. Neither could he recall how he was feeling that day. He was asked whether he told Dr. Ameis that he could not drive. He was not able to remember.

The Applicant was asked if he had any problem speaking with Dr. Ameis, and he replied that yes, some questions he could not understand. However, if he was asked in English whether he could drive, he would have understood that question. The Applicant could not remember the doctor talking about driving, but he did remember being examined by him. He could remember being asked to move his head, his arms and his body. He was able to move his neck to the right, but not to the left.

Q: Is your neck about the same now?

A: Yes, I cannot move it to the left. I hurt my neck if I move it to the left. When I get up early now, I feel stiff.

The Applicant was asked when he separated from his wife in 1990. He could not recall the date, but was sure it was before the accident.

The Applicant was asked about the different sizes of metal that he handled in operating the machine and agreed that most of the time he worked with smaller pieces of metal. There was no need for two men to handle the smaller pieces. The Applicant was asked whether he knew if Dr. Talangbayan feels that he can return to work now. He answered that he has been seeing his doctor and receiving prescriptions but the doctor never says he can return to work -"no, I'm still injured."

Evidence of Lam Chi Thanh:

Mr. Lam gave evidence through the interpreter. He is 32 years old and has known the Applicant for five years. Prior to the accident, he used to play soccer and volleyball with the Applicant on most weekends and also went fishing with him in the summer. Sometimes in the winter they attended dances. The witness testified that the Applicant was a happily married person before the accident and very outgoing. After the accident, the Applicant has refused to play soccer and if they play chess or dominoes, often the Applicant has a headache. Mr. Lam has seen the Applicant as often after the accident as he did before the accident. He testified that after the accident the Applicant became a silent person who does not talk a lot.

The Applicant has been living with Mr. Lam for the last four months. Mr. Lam drives him to the doctor about twice a month. During the day, the Applicant sleeps a lot and watches television.

Evidence of Arthur Ameis, M.D.:

Dr. Arthur Ameis, physiatrist, was presented as an expert witness by the Insurer. His curriculum vitae was filed as an exhibit. Dr. Ameis specializes in the assessment and treatment of disability-about one half of his practice involves treating injuries from motor vehicle accidents and, in total, two-thirds of his practice involves injuries produced by trauma. Dr. Ameis' practice includes referrals from family doctors, other specialists, lawyers and insurance companies. On November 20, 1990, he examined the Applicant.

Dr. Ameis described his methodology on the examination. In the case of Mr. Thi, who had a limited capacity in English, Dr. Ameis recalled that the set of questions he routinely asks became somewhat tedious. Dr. Ameis asked the Applicant to perform a set of prescribed actions while he observed him, as well as noting the Applicant's actions when he did not perhaps realize he was being closely observed.

In inquiring about the Applicant's previous medical history, the physiatrist paid particular attention to trauma or work injuries. The Applicant indicated he had no previous problem. He told the specialist that on July 23, 1990, he was the seat-belted driver of a motor vehicle, which received $3,000 damage when it was hit from behind.

The Applicant complained to Dr. Ameis of pain in his neck, mid back and low back. He said he was married, his wife worked, and they had two young children. There were no preparations nor plans at that time to return to work. Mr. Thi stated he was in a lot of pain and it was up to his family doctor when he would return to work. He told the physiatrist that he could not drive a car because of the pain (he could not turn his head enough) and that he had travelled to the doctor's office that day by taxi.

Dr. Ameis viewed the x-rays of Mr. Thi's neck taken two days after the accident which showed straightening and a loss of curve associated with muscle spasms, as a result of a whiplash injury.

The doctor's general impression was that the Applicant was a tall, slim man, who was moving en bloc, in a rigid and frozen manner. He had no coat, although it was a cold day, and was wearing a pullover sweater. Dr. Ameis made particular note of the pullover sweater as a seemingly trivial but important point. The physiatrist expressed the view that when one is significantly disabled, it is with considerable difficulty that one is able to put on and take off a pullover. The Applicant had a set of car keys with him.

In the course of the interview, Dr. Ameis noted that some of the Applicant's movements would not match other movements.

1. When he was demonstrating with the toy cars on the doctor's desk what happened in the accident, the Applicant made significant turns of his head.

2. At one point, there was a distraction, and the Applicant turned his head fully to look at the door, close to a 90° turn.

3. While pulling off his sweater, Mr. Thi tucked his chin down and popped his head up. This was in sharp contrast to the Applicant's movement on direct testing - then it was comfortable for him to tuck his chin merely by a few degrees, and he would not look up at all into extension, indicating severe pain. The Applicant would not turn his head more than 45 ° to either side and only would incline his head a few degrees toward either shoulder.

Dr. Ameis outlined additional behaviours which he believed to be further inconsistencies by the Applicant at his examination:

1. When the Applicant lay on the examining table, he locked his neck with his muscles, full strength, and it was virtually impossible to get his neck to move. When he was next asked by the doctor to see how strong he was, Dr. Ameis observed a medical condition known as "collapse". The doctor was then able to complete a full left and right rotation of the Applicant's neck. The Applicant explained that "he has no strength".

2. On his stomach, the Applicant adopted an almost full extension of his neck, although he was probably not aware of it. There was no grimace, no moan, no note of discomfort.

3. Thrust test to mid back - inappropriate reaction of a magnified response.

4. Forward bending movement - the lumbar spine provided appropriate movement, but limitation came from Applicant's hips, a response only appropriate in cases of hip disease.

5. Getting up from the lying down position, the Applicant had no problem. The physiatrist believed that if he had severe back problems, there should have been more apparent difficulty.

6. When changing position on the table from supine to prone, the Applicant appeared to carry out this manoeuvre in an arduous and painful manner, with many small movements and a lot of twisting. In Dr. Ameis' experience, this is not typical of how patients with genuine, severe back problems move - they do so quickly and all at once so as to minimize the pain.

7. Inappropriate responses to axial loading test and simulated rotation test.

8. The Applicant left the doctor's office in a hurry and was observed by the doctor getting into a car and driving himself away.

Dr. Ameis concluded that this was a young man, previously in good health, who had held a physically difficult job. The motor vehicle accident had not led to complicated injuries such as fractures, dislocations, blood loss, or loss of consciousness. It was not a particularly unusual event from a psycho-emotive point of view. The Applicant was properly restrained by a seat-belt; he did not go to hospital.

Objectively, there was no significant indication of injury. Subjectively, there were severe difficulties and inappropriate responses. The Applicant was not seriously, physically hurt and the physiatrist was not concerned that returning him to physical work would lead to complications. Emotionally, the man was magnifying his problems and Dr. Ameis believed he should be encouraged to believe that there was nothing wrong with him.

Dr. Ameis reviewed the report of Dr. James Low from August 1991. Nothing in that report has caused him to change his opinion of November 1990. On cross-examination, Dr. Ameis admitted that he was not a psychiatrist, but stated that he did not agree with Dr. Low's opinion or diagnosis of post-traumatic stress disorder, as defined in the DSM-III-R. He also would not agree with Dr. Maser's view that the Applicant had vascular headaches. Dr. Ameis would conclude that the Applicant had tension headaches. Dr. Ameis saw no sign of a shoulder-hand syndrome as described by Dr. Maser.

Dr. Ameis saw no need for the Applicant to be prescribed either anti-inflammatory medication or an anti-depressant, but had no objection to the latter. Dr. Ameis stated that Mr. Thi made no comments to him regarding phobia nor depression. He did not describe to the physiatrist being afraid of cars, but said that it was physically painful for him to drive. Dr. Ameis saw nothing that would suggest that Mr. Thi was depressed. Dr. Ameis agreed, however, that the treating physician who sees a patient on a regular basis has a better opportunity to draw out the patient regarding phobia and depression.

With respect to the attempted job at the jewellery store, Dr. Ameis stated three or four days is too short a work trial to prove anything regarding a physical disability. One needs a longer period to physically and psychologically acclimatize. From his point of view, Dr. Ameis saw full strength, full range of movement and no reason why the Applicant could not do his job, except "pain behaviour", a set of behaviours that appear to reflect pain, but are disassociated from objective findings. If one was working slowly, showing immense pain and calling in sick, Dr. Ameis had no doubt that an employer might feel that the person should not be working there.

I asked Dr. Ameis why he does not agree with Dr. Low's diagnosis of post-traumatic stress disorder. He answered that he felt Dr. Low's comments with regard to disturbed sleep were inconsistent with the Applicant's stated sleep pattern. The Applicant's ability to maintain a normal appetite was also inconsistent with the diagnosis. Dr. Ameis views post-traumatic stress disorder as belonging more to the realm of war-related trauma, requiring a central validation of phobia and development of characteristic symptoms, outlined in the DSM-III-R, such as intense fear, terror and numbing. For example, the sight of uniformed guards would numb a concentration camp survivor suffering from the disorder. Accordingly, to jingle car keys calmly in Dr. Ameis' office six to eight months before Dr. Low's diagnosis would not indicate post-traumatic stress disorder following a car accident to Dr. Ameis.

Findings:

Disability Issue:

Weekly income benefits are paid under Section 12 of the No-Fault Benefits Schedule (Ontario Regulation 273/90). Section 12(1) defines the period in which an insured person will be paid:

(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).

It was agreed that the Applicant met the qualifications of employment or self-employment at the time of the accident.

The Applicant clearly sustained physical injury in the motor vehicle accident of July 23, 1990. For a period of time following the accident, his physical injuries were such that he suffered "substantial inability to perform the essential tasks of his occupation or employment". I accept Dr. Ameis' opinion that by November 20, 1990 the Applicant's objective physical symptoms had generally resolved. Although I accept the Applicant's evidence of ongoing headaches, in my view this problem alone, to the degree described by the Applicant, is insufficient for him to qualify for further weekly income benefits. The Applicant described headaches which occur approximately twice daily, but which are successfully treated with medication. Although he stated that the headaches are just as severe now as in the early days following the accident, at no time did the Applicant give evidence from which I might have concluded that the headaches were of such an acute and debilitating nature as to disable him from work.

Similarly, the residual neck, right shoulder, low back and left knee symptoms that remain are not of a nature that they cause the Applicant substantial inability to perform the essential tasks of his previous factory employment. The pain in the neck accompanies his headaches, but is resolved with medication. The pain in his right shoulder and low back has decreased to the point that he only feels any discomfort when weather conditions are cold. The problem with his left knee is getting better and is only apparent with brisk walking or stair climbing. None of these complaints would prevent the Applicant from carrying out the essentials tasks of his previous employment.

Whether the Applicant suffered "psychological or mental injury" as a result of the accident, and, as such, has suffered or continues to suffer "substantial inability to perform the essential tasks of his occupation or employment" is less clear. I have reviewed the medical reports, as a whole, including the psychiatric reports of Dr. Low and Dr. Furlong, with a view to ascertaining whether the Applicant sustained a disabling psychological or mental injury as a result of the accident of July 23, 1990.

I reject the conclusion of Dr. Low that the Applicant suffers from "post-traumatic stress disorder". Dr. Low comes to this opinion in his report of August 10, 1991, after seeing the Applicant on two occasions - April 21 and June 23, 1991. Dr. Low's report of four and a half pages outlines neither the results of any testing of the Applicant nor does it offer any persuasive evidence to support its conclusion. Dr. Low's examination of June 23, 1991 is summarized very briefly.

On June 23, 1991, his mental status examination was essentially unchanged. There was no improvement noted. He was still ruminative about the motor vehicle accident and his vegetative symptoms still persisted, especially his sleep difficulties and his poor short-term memory and concentration. He slept during most of the day and restricted his activities to staying home and primarily watching television.

Dr. Low concludes at page 5:

Mr. Thi's diagnosis is that of post-traumatic stress disorder. While, at the present time, he is not fit to return to work, I believe that his prognosis is reasonable in terms of his ability to return to gainful employment. The time frame will depend on his response to the present treatment.

Dr. Furlong's report expresses difficulty with obtaining any information from the Applicant, because he was not accompanied by an interpreter. He comments upon Dr. Low's report as follows:

"Post Traumatic Stress Disorder is diagnosed, without any particularly good reason or evidence that the diagnostic criteria are met."

Dr. Ameis testified at the hearing as to the accepted criteria for diagnosis of post-traumatic stress disorder, according to the DSM-III-R. I find that the criteria for that diagnosis have not been met in any of the medical reports offered in evidence.

I have reviewed the Applicant's medical evidence to try to ascertain, apart from the rejected diagnosis of post-traumatic stress disorder, whether the Applicant has established that he suffered a psychological or mental injury as a result of the accident, which would substantially preclude him from performing the essential tasks of his occupation or employment. The medical reports are unhelpful in this regard, including the reports of the "treating practitioner". No narrative report authored by the Applicant's general practitioner was filed. Only three form reports were filed as exhibits.

The first report is dated one week following the accident. At that date, Dr. Talangbayan had not reviewed any x-rays taken after the accident. Under "Objective Findings", he found "tender over cervical lumbosacral spines and right shoulder joint. Paraspinal muscle spasm". Under "Other Limitations", (psychological/ psychiatric), it was noted "anxious, poor sleep". The primary diagnosis was cervical strain, lumbosacral strain, right shoulder strain, post-traumatic headache. The secondary diagnosis was "sleep disturbance". Physiotherapy was prescribed.

The next report from Dr. Talangbayan is dated almost nine months later on April 19, 1991. On examination, under "Limitations" (psychological/ psychiatric), I note "Poor Sleep. Headaches. Dizziness. Depressed. Flat Affect.". The primary diagnosis is "post-traumatic headaches". Under the "Treatment Plan", it is noted that "I've made an appointment with psychiatrist to rule out the possibility of a post-traumatic stress disorder".

The last report of Dr. Talangbayan, who examined his patient on March 2, 1992, notes the following:

"3. Examination/Objective Findings

Physical and Mental Findings and Limitations (for Medical Use)

Tender Cervical & Lumbar-Sacral Spines, I ROM, Pain on Extreme of Motion, No Sensory Changes, No Radiations.

Other Limitations (psychological/psychiatric)

Occasional Headaches, Dizziness at Times I Energy, I Concentration

5. Diagnosis or Classification

Primary

Cervical & Lumbar-Sacral Strain, Post-Traumatic Stress Disorder

6. Treatment Plan

Medications

Anti-Inflammatory

Physiotherapy

Heat, Active Exercises

Consultation

Saw Dr. Maser (Internist)

Dr. Low (Psychiatrist)

7. Duration of Disability

What, after discussion, is the estimate of when the claimant will be able to return to work or normal activities? Few Weeks"

Dr. Maser has not seen the Applicant since his two visits on May 30, 1991 and June 7, 1991. It is not clear why the Applicant was referred to an internist. Dr. Maser's report is of no assistance with respect to any psychological or mental injury as a result of the accident.

In the end, I have been unable to conclude that the Applicant suffered a psychological or mental injury as a result of the accident which would substantially disable him from performing the essential tasks of his occupation or employment from December 28, 1990 forward. The burden of proof is on the Applicant to convince the arbitrator, on a balance of probabilities, that any psychological disability he may have arises from the accident and disables him to the required extent.

The Applicant appeared to me throughout the hearing to be a very placid individual. His friend, Mr. Lam, told me he had become very quiet after the 1990 motor vehicle accident. In 1990, the Applicant also separated from his wife and children. From the reports filed as exhibits, it appears that he has lived since then with a sister and brother and now with Mr. Lam. His evidence at this hearing was that, if he were physically able to, he would return to work. He testified that he had attempted to get work, but had only been successful in obtaining three days of work at a jewellery store. His old job was not available to him. The Applicant has failed to present sufficient evidence to entitle him to weekly income benefits after December 28, 1990.

Business Practices of the Insurer:

In the course of the Applicant's testimony, I heard evidence of intervention by the Insurer with a course of physiotherapy that had been prescribed for the Applicant by his treating physician. The Applicant stated that the physiotherapy clinic had telephoned and told him that the Insurer had refused to pay for any further treatment. He stated that he had not continued with physiotherapy after this because he could not afford it. This evidence given by the Applicant was not discredited on cross-examination nor contradicted in any manner by any evidence offered by the Insurer.

The provisions of Section 6(7) of the No-Fault Benefits Schedule govern such cases. That section states as follows:

(7) In case of a dispute concerning an expense described in clause(1)(a),(b) or (d), the insurer will pay the expense pending resolution of the dispute.

(emphasis added)

The services of physiotherapists are covered in clause 6(1)(a).

(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;

(emphasis added)

I consider it a serious breech of the Regulation for an insurer to act in such a manner which deterred this Applicant from receiving further physiotherapy treatment. If I were able to impose a penalty upon the insurer under the provisions of section 282(10) of the Act in this case, I would.

The result of this interference by the Insurer may have been serious for the Applicant. Dr. Ameis, the physiatrist called by the Insurer, commented that it appeared the treatment that the Applicant had received was "exceedingly passive", and that such treatment was inappropriate as it is more likely to produce problems than a cure. I am unable to assess how significant an impact the failure of the Insurer to continue to pay for any type of physiotherapy for the Applicant had on his recovery. I do not know the date when the Applicant stopped attending physiotherapy. I have accepted the evidence of Dr. Ameis, that, as of the date of his examination of the Applicant on November 20, 1990, could find no objective signs of impairment and was not concerned about returning the Applicant back to a job such as he had held.

Dr. Ameis also testified that in his opinion vigorous rehabilitation can be done at work, at a health club, or at a physiotherapy clinic, and all of these are equivalent. However, the Applicant was not able to even attempt to return to his old job because there was no position held open for him. The lack of continued physiotherapy treatment and any subsequent deconditioning of the Applicant may have contributed to the Applicant's continued belief that he is unwell. Certainly, the supplementary benefits set out in s. 6 of the Schedule may carry on for a longer time than the weekly income benefits set out in s. 12. The tests of eligibility under the two sections are not the same.

There was no evidence before me to show: (1) any reason the Insurer may have believed the physiotherapy expenses were not reasonable expenses resulting from the accident and thus not covered by s. 6(1)(a) of the Schedule, nor (2) why such a course of conduct was followed in the face of the clear wording of s. 6(7).

Despite this action on the part of the Insurer, because I have found the Applicant is not entitled to receive further weekly income benefits, and since there are no outstanding physiotherapy accounts, no amount is owed to the Applicant to be increased by an appropriate penalty percentage under the provisions of s. 282(10). Section 282(10) reads as follows:

(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.

In this case I am able only to request that the Director of Arbitrations, Ontario Insurance Commission, review this decision, pursuant to Section 288 of the Act.

Section 288

The Director shall review arbitration orders and may recommend to the Superintendent that the Superintendent investigate the business practices of an insurer if the Director is of the opinion that any arbitration or appeal from an arbitration reveals unfair or deceptive business practices. 1990, c. 2, s. 65, part.

Expenses:

The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under s. 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 275/90 "Schedule".

In the McCormick vs. Economical Mutual Insurance Company case (O.I.C. No. A-000139), Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

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 entitled to his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. In the event that the parties cannot agree as to the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.

June 10, 1992

K. Julaine Palmer

Arbitrator

Date