Neutral Citation: 1992 ONICDRG 32

File No. A-000599

ONTARIO INSURANCE COMMISSION

BETWEEN:

FELIX CHARLES

Applicant

and

CONTINENTAL INSURANCE MANAGEMENT LTD.

Insurer

DECISION

Issues:

The Applicant was apparently injured in a motor vehicle accident on August 4, 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 March 23, 1991. The Applicant was paid at the rate of $1,050.00 per week for the 32 week period from August 11, 1990 to March 23, 1991. In August 1991, the Applicant applied for mediation on the issue of his continued entitlement to benefits. The Report of the Mediator, Douglas Franks, sets out the history of the issues between the parties:

At that point [March 23, 1991] the Insurer determined that the Claimant had been receiving income from a collateral source and that it had overpaid the Claimant.

The Insurer calculated that the correct amount of the Weekly Benefit should have been $806.76. They further calculated that the overpayment could be offset by extending the benefit period at the new weekly rate to June 1, 1991 and by paying $283.96 which was the excess of payments due for that period over the amount of the overpayment. The $283.96 was paid to the Claimant on June 10, 1991.

The Insurer decided that, having made that payment, no further benefits were due to the Claimant. The Insurer relied on a medical report dated May 3, 1991 which, in their opinion, established that, as of the date of that report, the Claimant was no longer substantially disabled.

The Claimant did not agree with the Insurer's calculations of his income for the purpose of determining his entitlement under the policy. He did not accept as correct the calculation as to what, if anything, ought to have been deducted from his benefits because of the existence of the collateral source of income. The Claimant also disagreed with the idea that he was no longer disabled as of May 3, 1991 and, to the contrary, maintained that his substantial disability continued at least to the date of the mediation of December 4, 1991.

Mediation failed to resolve the issue and the Applicant applied for the appointment of an arbitrator in February 1992.

The issues to be determined in this arbitration were as follows:

1. What is the correct amount of weekly income benefit payable to the Applicant?

2. Were the Applicant's weekly income benefits properly terminated effective June 1, 1991 on the basis that he was no longer substantially disabled from performing the essential duties of his occupation or employment?

Result:

The decision is:

1. The weekly income benefit to which the Applicant is entitled is $185.60.

2. The Applicant is not entitled to any additional weekly income benefit after June 1, 1991.

3. The Applicant shall repay to the Insurer the sum of $26,088.761.

Hearing:

An arbitration hearing was held at North York, Ontario, on June 22, 1992, before me, K. Julaine Palmer, arbitrator.

Present at the hearing were:

Insurer's Representatives:

Harry Brown

Barrister & Solicitor

Lesia Lawton

Senior Claims Supervisor

Neither the Applicant nor anyone representing him was present at the hearing, despite a Notice of Hearing which was mailed to both the Applicant and his previous solicitor on April 15, 1992. Subsequently, on May 12, 1992, a second copy of that Notice of Hearing was sent to the new solicitor for the Applicant, following a pre-hearing teleconference call that day, in which the pre-hearing arbitrator, the new solicitor for the Applicant and the Insurer's solicitor participated. No communication was received by the Commission from the Applicant or his representative to explain the absence of the Applicant and his representative. No request for adjournment had been received, either by telephone or in writing, as prescribed by s. 15.2(a) of the Dispute Resolution Practice Code.

The language of the Notice of Hearing sent to both parties reflects the provisions of s. 15 of the Dispute Resolution Practice Code and s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The Notice contained the following words:

You may attend this hearing in person and/or be represented. If you or your representative do not attend at the hearing, the arbitrator may proceed to dispose of the case in your absence and you will not be entitled to any further notice of the arbitration proceedings.

(emphasis added)

It is in these circumstances that the hearing proceeded at 10:20 a.m. on June 22, 1992, in the absence of the Applicant and his representative.

The following person testified under oath:

Lesia Lawton,

Senior Claims Supervisor

The Insurer filed 19 exhibits.

The proceedings were recorded by Barbara Doucette, Network Court Reporting, Toronto.

Evidence:

The evidence in this matter consisted of oral evidence given by Lesia Lawton, Senior Claims Supervisor, for the Insurer and the exhibits filed. Also before me was the Report of the Mediator and the correspondence of the pre-hearing arbitrator to the parties following the pre-hearing teleconference of May 12, 1992 and the pre-hearing discussion of April 7, 1992.

Lesia Lawton testified that she was the adjuster responsible for the Applicant's claim. She testified that throughout the administration of this claim, the Applicant had been uncooperative. She had arranged a medical examination for the Applicant on May 7, 1992 under the authority of s. 23(2) of the Schedule and he failed to attend, without explanation. She arranged two dates for a vocational assessment of the applicant: he did not attend on April 8, 1992 and he cancelled on June 16, 1992 an appointment for June 18, 1992 which he had previously agreed to attend.

The senior claims supervisor testified that the Applicant failed to disclose collateral income continuation benefit payments, which are deductible from the weekly income benefit under the provisions of s.12(4)(b) of the Schedule. She testified that it was her information that Toronto Mutual Life Insurance Company had been paying the Applicant $1,500.00 per month under a disability insurance policy. She had no particulars from two other insurers, except a report from an investigator that a life and health insurer had refused to pay the Applicant benefits, because he would not provide information regarding his other coverages.

Many of the exhibits filed by the Insurer related to a pattern of lack of co-operation by the Applicant and his solicitors, both past and present, to produce medical and accounting information which had been agreed to be exchanged at the pre-hearing discussion of April 7, 1992.

At the pre-hearing discussion, the Applicant's solicitor had agreed to provide copies of his client's 1989, 1990, and 1991 income tax returns. Only the 1989 returns were provided. No information was provided, as had been agreed, regarding any other income benefits from Toronto Mutual Life and Canada Life which the Applicant may have received following the accident. No consultation notes from two orthopaedic specialists to the Applicant's family doctor were provided as had been agreed. No hospital records were provided. No reports or notes of Dr. Moodley were made available. The report of a CT scan was provided when the Applicant attended with his x-ray file at an orthopaedic examination arranged by the Insurer with Dr. Ernest J. White on May 25, 1992.

No OHIP summaries showing the Applicant's attendance records and treatments after the accident were produced; the appropriate release forms had been prepared by the Insurer's solicitor and forwarded to the Applicant's then solicitor with a letter dated April 13, 1992 (Exhibit 2). Only one report of the Canadian Back Institute was provided, not their records including their assessment, as had been agreed.

No opportunity was made available for the Insurer's accountant to review the business records of the Applicant, for the purpose of attempting to calculate the weekly income benefit payable, as agreed by the parties at the pre-hearing discussion. Many letters were sent and telephone calls made by the accountant and the solicitor for the Insurer in an attempt to arrange such a meeting.

Submissions:

The Insurer's solicitor submitted that there was no information available to assess the amount of gross weekly income of the Applicant in the 4 weeks or 52 weeks prior to the accident.

He submitted that the independent medical examinations indicated that the Applicant could return to work. If the dispute resolution process is going to work generally, there has to be co-operation. Disclosure is necessary to see what benefits should be paid. To this point in time, at least, the claims of the insured person should be dismissed. The arbitrator should draw an inference from the failure of the insured to provide that information, that it would be harmful to his case, either regarding the quantum of benefit or his medical condition.

Findings:

Many of the exhibits filed by the Insurer related to a pattern of lack of co-operation by the Applicant and his solicitors, both past and present, to produce medical and accounting information which had been agreed to be exchanged at the pre-hearing discussion of April 7, 1992. This documentary evidence was submitted by the Insurer in light of the provisions of s. 15.3(b) of the Dispute Resolution Practice Code, which provides as follows:

An arbitration order shall not be made against a party solely on the failure of a party to attend at the hearing.

I accept this documentary and oral evidence.

With respect to the issue of the amount of weekly benefit, it is the task of the Applicant to prove his gross weekly income for certain periods of time prior to the accident, as prescribed by section 12 of the Schedule. The onus of proof is on him. The Applicant, not having appeared at the hearing and having filed no material, must be deemed to have a gross weekly income of $232, pursuant to s. 12(7)1.(iii). There is no issue as to his self-employment. I am reluctant to make such a ruling, however, I see no alternative.

On the issue of entitlement to further benefit from June 10, 1992, once again it is the task of the Applicant to prove that past that date he suffered "substantial inability to perform the essential tasks of his or her occupation or employment", according to the eligibility test prescribed in s. 12(1) of the Schedule. The medical evidence before me consists of reports of two medical examinations arranged by insurers. The report of Dr. James E. Bateman, Surgeon-in-Chief (Emeritus), Orthopaedic & Arthritic Hospital and Associate Professor of Surgery, University of Toronto, is the result of an examination of the Applicant held on May 3, 1991. Dr. Bateman's conclusions are set out below:

Clinical Impression

The patient suffered a contusion torsion type injury in the accident described which implicated cervical, thoracic, and lumbosacral areas. There has been involvement of soft tissues only with musculo-ligamentous response more obvious in the lower back than in the cervical spine. He has had adequate supervision and displays extensive recovery in both areas.

Prognosis and Assessment of Disability

The injuries this man sustained have been confined to soft tissues and at a point 8 months following the accident extensive recovery has been identified.

There are no continuing symptoms or signs indicating residual irritation either in his neck or back. Sufficient recovery has occurred to enable him to resume his responsibilities promptly.

Dr. Ernest J. White examined the Applicant on May 25, 1992. At that time, he also reviewed x-rays of the Applicant's left tibia and ankle, left ribs, left hand and wrist and also bone scan results and CT scan of the lumbar spine. A further CT scan of the head was also reviewed. Dr. White also read Dr. Bateman's report, a report of the Applicant's family physician, Dr. Dennis Forrester, dated December 28, 1991, and a report of the Canadian Back Institute dated November 29, 1991. Dr. White recorded that the Applicant was complaining of low back pain, pain in the lower chest, aching of bones in the flank, right sided neck pain, and pain in the left thigh and calf.

Dr. White reported a restriction of neck extension of 50%, but forward right and left lateral flexion to be normal. He observed no involuntary muscle spasm. He recorded his other observations of the Applicant testing his flexion, straight leg raising, and upper and lower limbs. The specialist concluded as follows:

...There is no clear cut evidence to suggest that he has sustained any serious injuries that are likely to cause permanent disability, and in the long-term, it could reasonably be expected that he would recover essentially to his pre-accident state.

However, the degree of his complaints seem out of proportion to the objective clinical findings, and there would appear to be some degree of pain amplification and symptom magnification. His response to his pain has been to decrease his activities and get into a state of physical deconditioning and disuse which certainly in part is largely responsible for his ongoing symptoms....

... I can see no contraindication to him returning to a more active lifestyle at this point, and increasing his physical activities. He might experience some degree of discomfort in his neck and back as he does so, but in the long term this would be helpful in his overall recovery and would not be "harmful" to him.

No doubt he has some ongoing symptoms which are of concern to him and which are genuine, however, he is not totally disabled and should be physically fit to return to the essential duties of his previous occupation, starting on a part-time basis, and gradually working up to full-time over the next three to four months....

The only evidence before me of the occupation of the Applicant is contained in the work and social history of the Applicant reported by Dr. White. The Applicant owned and operated a dump truck and did his own truck mechanics at the time of the accident.

Dr. Bateman's opinion is that the Applicant could return to his job in early May 1991. Dr. White concludes in May 1992 that the Applicant should be physically fit to return to his essential job duties, but that he should work up to full-time from a part-time basis. He also concludes that the Applicant's response to his pain has been to decrease his activities, which has resulted in a state of physical deconditioning he feels is largely responsible for the Applicant's ongoing symptoms.

On the basis of this medical evidence and the meagre evidence as to the duties of his occupation, then, the Applicant has failed to prove on a balance of probabilities that from June 10, 1991 he has suffered substantial inability to perform the essential tasks of his occupation.

Order:

1. The weekly income benefit to which the Applicant is entitled is $185.60.

2. The Applicant is not entitled to any additional weekly income benefit after June 1, 1991.

3. The Applicant shall repay to the Insurer the sum of $26,088.76. This amount is calculated as follows:

Amount of weekly income benefit paid by the Insurer:

$1,050. x 32 weeks = $33,600

plus $283.96 paid June 10, 1991 = $33,883.96 [amount A].

Amount of weekly income benefit which ought to have been paid:

$185.60 x 42 weeks (Aug. 11, 1990 to June 1, 1991) = $7,795.20 [amount B].

Difference between A and B = $26,088.76.

August 21, 1992

K. Julaine Palmer Arbitrator

Date