Neutral Citation: 1992 ONICDRG 5

File No. A-000260

ONTARIO INSURANCE COMMISSION

BETWEEN:

DANA B. LEVENSON

Applicant

and

THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

DECISION

Issue:

The Applicant was injured in an automobile accident on September 1, 1990. At the time, she was a university student. The accident occurred at the end of the summer vacation between the second and third years of her university degree. The Applicant returned to university on September 9, 1990 to continue her studies, a week after term commenced.

The Applicant was insured under an automobile owner's standard policy issued by the Insurer. Every motor vehicle liability policy provides for the no-fault benefits specified in Ontario Regulation 273/90, ("the No-Fault Benefits Schedule"), enacted under the Insurance Act, R.S.O. 1990, Chapter I.8.

The Applicant claimed and received no-fault weekly benefits for the period from September 8, 1990 to April 13, 1991, when benefits were terminated. A total amount of $5,735.00 was paid. Subsequently, the Insurer sought to recover these benefits on the basis that the Applicant was not disabled to the extent required during this period.

Mediation of this dispute was unsuccessful, and the Applicant applied for the appointment of an arbitrator under Section 282 of the Act.

The issues to be determined in this arbitration are:

1. Is the Applicant entitled to weekly benefits under Section 13 of the No-Fault Benefits Schedule from September 9, 1990 to April 13, 1991?

2. If the Applicant is not entitled to weekly benefits, is she liable to repay benefits received under Section 27(1) of the No-Fault Benefits Schedule?

3. Is the Insurer required to pay the amount of $1,600.00, being the cost of a psychological assessment and report by Dr. Cancelliere, pursuant to Section 6 of the No-Fault Benefits Schedule?

The Applicant also claims an award for the expenses she has incurred in relation to the arbitration under Section 282(11) of the Act.

Decision:

1. The Applicant suffered substantial inability to perform the essential tasks in which she would normally engage for the period from the date of the accident to October 16, 1990.

2. The Applicant did not suffer substantial inability to perform the essential tasks in which she would normally engage from October 17, 1990 to April 13, 1991.

3. The Applicant is liable to repay weekly benefits paid in respect of this period.

4. The Applicant is not entitled to recover the cost of the physiotherapy assessment and report of Dr. Cancelliere, dated May 29, 1991, as a reasonable expense incurred under Section 6(1)(f) of the No-Fault Benefits Schedule.

5. The Applicant is entitled to recover the cost of this report, to a maximum amount of $800.00, as an expense incurred in respect to the arbitration proceeding under Section 282(11) of the Act and Regulation 275/90.

6. The Applicant is entitled to the other expenses incurred in respect to the arbitration under Section 222(11) and Regulation 275/90.

Hearing:

A hearing was held at North York on October 17, 1991, before me, Susan Naylor, Arbitrator. Present at the hearing were:

The Applicant Dana Levenson

The Applicant's Representative: Mitchell Schachter Barrister & Solicitor

The Insurer Debbie Hastings Claims Manager

represented by:

The Insurer's Representative: T.H. Rachlin Barrister & Solicitor

In addition, Fern Silverman attended with the Applicant to observe the proceedings.

Witnesses:

The following gave oral testimony at the hearing, under oath:

Dana Levenson Applicant

Bailey Levenson The Applicant's Mother

Debbie Hastings Claims Manager The General Accident Assurance Company of Canada

Documents before the Arbitrator

Exhibit 1: Medical Report, Form 4, from Dr. Irving Grosfield, dated September 25, 1990

Exhibit 2: Medical Report, Form 4, from Dr. Irving Grosfield, dated May 23, 1991

Exhibit 3: Report from Dr. Dick Allatt, Physical Medicine & Rehabilitation, Parkwood Hospital, dated October 16, 1990

Exhibit 4: Letter from Pat Jones, PT, The Downtown Clinic, to Ms. Judy Gelman, Physiotherapist, dated April 26, 1991

Exhibit 5: Report from Dr. A. Cancelliere, Psychologist, dated May 29, 1991

Exhibit 6: Handwritten Note of the Applicant's grades for 1990/1991

Exhibit 7: Application for Accident Benefits, dated September 7, 1990

Exhibit 8: Medical Report of Dr. Michael C. Hall, dated May 30, 1991

Exhibit 9: Letters from Yvonne Preece, Claims Adjuster, of The General Accident Assurance Company to Gluckstein, Neinstein, dated October 18, 1990, December 18, 1990, February 6, 1991 and March 20, 1991; Notice to Dana Levenson, dated January 18, 1991; and from Gluckstein, Neinstein to Ms. Preece dated September 12, 1990.

Documents before the Arbitrator, but not marked exhibits:

• Curriculum Vitae of Dr. Cancelliere, Ph.D., C.Psych.

• Statement of Ms. Levenson's activities, dated September 24, 1991

• Report of Mediator, dated July 3, 1991

• Application for Appointment of an Arbitrator, filed on July 15, 1991. Response of Insurer, filed August 15, 1991. Reply of Applicant, filed August 21, 1991

Preliminary Issue:

In the course of his submissions, counsel for the Insurer sought to raise the issue of the application of Section 16(3) of the No-Fault Benefits Schedule in this case. This section states that "an insurer is not required to pay weekly benefits under Section 13 for any week in which the insured person attends school."

Counsel for the Applicant objected to the raising of this issue. In an interim decision issued on October 29, 1991, I ruled that the Insurer was not entitled to raise this new issue. This was because, as a new issue, it was not an "issue in dispute" under Section 282(3) of the Act, the parties had not agreed to its inclusion, and it would be unfair to the Applicant to require her to deal with it at this late stage of the proceedings.

A copy of that decision, with reasons, is attached.

Evidence:

The Applicant gave oral testimony at the hearing. She injured in an automobile accident on September 1, 1990. She was taken by ambulance to North York General Hospital, where she was discharged the same day. Subsequent medical reports indicated that x-rays were taken at that time, which were normal. The Applicant was told to take head injury precautions, fitted with a cervical collar and prescribed analgesics.

At the time of the accident, she was enroled at the University of Western Ontario. She was about to embark on the third year of a degree in arts, majoring in film studies. Because of her injuries, the Applicant missed the first week of school, orientation week. Instead, she remained at home under the care of her mother. She returned to school on September 9, 1990.

The Applicant applied for no-fault accident benefits because of the effect of her injuries. Her application is contained at Exhibit 7. In it, the Applicant's complaints are listed as headaches, dizziness, jaw pain, neck and shoulder blade pain, pain in the arms and low back, lack of concentration, and depression. The application indicates that the Applicant is unable to continue her normal work and activities and that she is "unable to sit through classes, sleepiness, and lack of concentration makes it very difficult to study, combined with other physical problems".

Attached to the application is a medical report from Dr. Grosfield, marked Exhibit 1 to this hearing. The Applicant went to see Dr. Grosfield, an orthopaedic surgeon, several days after the accident. Dr. Grosfield had not previously treated the Applicant, but she was able to see him because he was the father of a friend. Dr. Grosfield diagnosed a soft tissue injury to the cervical spine. He prescribed anti-inflammatory pain medication and recommended a collar and physiotherapy treatment.

The Applicant testified that her injuries affected her school work and her social life in a number of ways.

Firstly, because she missed orientation week, she was not able to change her courses. In particular, she wished to register for a speech course, for which she was on a waiting list. Moreover, line-ups for course changes were lengthy, and she was not able to stand in the lines for the required time. She had wanted to apply for a position at the University radio station. She needed experience in university radio in order to apply for a radio program course at Ryerson University after graduation. Auditions for the radio station took place in orientation week, and she missed them.

The Applicant testified that she was on heavy medication for pain, and for the first few weeks of school, she was "out of it". She had difficulty sleeping. She stated that she tried to cut down on the medication, but could not. She was very fatigued. She was unable to sit through lectures until well into October. This was in part because of the effects of the medication, but also because of pain.

Three of her courses were at night, from 7:00 until 10:00 PM, at the Film Faculty. The Applicant stated that the first six weeks, she barely attended these classes. She could not sit through lectures. She had to use an Obus Forme. She had a burning pain when she sat for long, and this continued throughout the whole year.

The accident also affected her ability to concentrate and powers of memory.

She suffered from headaches. These problems affected her ability to study and to write exams. Her grades over the year suffered. She testified that she knew there was a problem, when she wrote a psychology examination at the end of October or beginning of November, and could not remember anything she wrote. She got a "C" on the exam. She testified that she was a "B+" to an "A" student during the second year, but fell to "C+" at school during the third year. She attributed these changes to the effect of her injuries.

Because of her grades, she did not go on to graduate school. She had dreamed of doing graduate studies in fine arts at an Ivy League University in the United States. She could not have written the standard graduate test, because of her memory problems. Because she did not get any experience in radio, she was unable to apply to Ryerson University. Instead, she had to go back to York University for a fourth year of undergraduate studies. She felt disadvantaged by this because graduate schools would want to know why she was doing a fourth year.

The Applicant's major was in film. In the school year, she took seven courses (including half courses), for a total of five credits. Exhibit 6 is a hand-written list of her grades. On cross-examination, the Applicant was challenged about the deterioration of her grades in the accident year.

The Applicant testified that she took the following courses in film, with the following grades:

Great Directors: B-

Aesthetics (1/2): B-

Contemporary Film (1/2): B-

Documentary Film (1/2): B-

Women & Film (1/2): B-

She also took the following full-year elective courses:

Social Psychology: C

Religious Studies: B-

She acknowledged that Exhibit 6 did not contain + or - grades.

The Applicant stated that in 1988, her first year, she took five courses. In these, her grades were two "B's", one "C" and two "D's". The Applicant conceded, on cross-examination, that these were "pretty bad marks".

In her second year, the Applicant took five courses. In these, her grades were three "B's", one "A" and one "C" (Math/Science). She stated that these marks were better, because the top marks were in her choice of speciality, film.

On cross-examination, the Applicant stated that her second year marks were a 12% improvement, from a 63 to 75 average. In her view, the courses were structured in the expectation that students would improve throughout the three years. She felt that she was denied this improvement.

The accident also had an impact upon the Applicant's life as a student. She became dependent on others for transportation. She stated that, in her third year, she had moved to an apartment off the campus. There was a bus stop outside her apartment, but the bus drops students at the gate of the campus, where there is a ten minute walk to classes. Due to her injuries, she was unable to take the bus and had to get to school by taxi or ride with friends. Sometimes she missed classes because her schedule did not coincide with that of her friends. In that case, she would either take a cab or stay in bed.

She was taking physiotherapy treatment while at university once or twice a week. This was time consuming and meant that she did not have any flexibility to rearrange her classes to accommodate travel arrangements.

Also, the Applicant had planned to take a part-time job in her third year. Although she had not worked in her previous two years, she needed the money to pay for her new flat, which was more expensive than her previous accommodation. She could not get a job because her injuries prevented her from working on her feet as a waitress or in retail, and her physiotherapy schedule did not allow her the necessary time flexibility for a job.

The Applicant testified that her social activities were totally curtailed by the accident. She lost a lot of friends, because of her moodiness. At the beginning, she could not go out because she could not sit or stand for any length of time. She had difficulty enjoying herself, was depressed and lacked motivation. Before, she was a sociable person and went out frequently. Now, she stayed in a lot.

The accident also changed the frequency of her visits home while a student. In the second year, she stated that she came home frequently. The trips in the third year were very infrequent. She described herself as "terrorized" by doctors and lawyers on the trips. She lacked motivation and found travelling backwards and forwards difficult because of her injuries.

She also stated that her injuries affected her holiday plans for Christmas. She had plans to go skiing with friends in Collingwood. Because of her injuries, she could not ski and stayed alone at home. This made her very depressed.

Bailey Levenson, the Applicant's mother, testified. She noted a great personality change in her daughter as a result of the accident. Before, her daughter had always been a leader - alert, sociable, enthusiastic and competitive. She had none of these qualities in her third year of school. Instead, her daughter was constantly crying, morose and depressed. Until February 1991, she was always depressed. After that time, she remained intermittently depressed. She knew that her daughter was planning to apply to graduate school in theatre. However, her daughter felt that she had had an unsuccessful year at school, and that deprived her of her aspirations. She testified that her daughter was previously registered with a talent agency in Toronto. Because of her injuries, her daughter was unable to return to Toronto as required by the agency. Therefore, the arrangement had been terminated.

She confirmed that her daughter came home very little during the school year, other than on designated holidays. She had come much more frequently in her second year.

Mrs. Levenson testified that she was in constant communication with Yvonne Preece, the adjuster from the Insurer, and that she got along very well with her. The Insurer knew that her daughter had returned to school. At no time was her daughter told that, if she returned to school, she would not get any benefits.

Mrs. Levenson was cross-examined about the failure of her daughter to attend a medical examination set up by the Insurer. She stated that she had told Ms. Preece in advance that her daughter was unable to attend, and was told it was "OK". She was also asked why authorizations for the release of medical information had not been sent to the Insurer, despite several requests. She stated that her daughter's lawyers were handling the return of medical waivers, and that she had returned all the forms, completed, to them.

She confirmed that her daughter did not see any other doctors than Dr. Grosfield, and Dr. Allatt. She did not think there was anything wrong with this because she accepted Dr. Grosfield's evaluation and her daughter was attending physiotherapy, as recommended. She testified that she was in touch with the Downtown Clinic, the physiotherapy clinic, approximately twice a week.

A number of medical reports were introduced in evidence. The Applicant was seen by Dr. Grosfield on September 4, 1990. Exhibit 1 is his report, attached to the Applicant's application for benefits. It states that the Applicant had sustained a soft tissue injury of the cervical spine. On examination, the doctor found limited range of movement to the neck, and unrestricted range in the upper extremities. The report stated that the Applicant had returned to school, and would suffer intermittent pain for up to two years. Dr. Grosfield recommended that the Applicant continue to wear a collar. He prescribed anti-inflammatory medication and indicated that the Applicant required pain medication and physiotherapy. The report indicates that no further visits were planned.

The Applicant saw Dr. Grosfield again on May 9, 1991 after she had had a second accident on May 5, 1991. The report, contained at Exhibit 2, confirms the doctor's prior diagnosis. The report notes that the Applicant was still undergoing physiotherapy treatment. Under the heading of "duration of disability", the report states: "anticipated September/91 (before second injury)".

On October 16, 1990, the Applicant saw Dr. Dick Allatt, a physical medicine and rehabilitation specialist. His report indicates that the referral was made by Dr. Grosfield at the suggestion of the Applicant's physiotherapist. Dr. Allatt's report is marked Exhibit 3. It confirms the diagnosis of a muscle strain to the cervical and lumbar area, with reduced flexibility, strength and fitness. Dr. Allatt recommends continued ongoing physiotherapy. The Applicant was advised to protect neck mobility and avoid heavy labour or vigorous sporting pursuits until she had recovered. The report noted that the Applicant reported a 70 per cent improvement in her condition, and indicated that this suggested an excellent prognosis for full recovery. The report suggested a follow-up appointment after three months. However, the evidence is that the Applicant did not see the doctor again.

The Applicant attended physiotherapy once or twice a week, at the Downtown Clinic throughout the period under review. Exhibit 4 contains a report from Pat Jones, a physiotherapist at the clinic. It indicates that the Applicant also had weekly massage treatment and attended the gym three times weekly for strengthening exercises.

The report indicates that the Applicant's original problems were limited range of movement in the neck, shoulders and lower back, and hips. As of April 26, 1991, the report states that the Applicant had improved considerably but still suffered from problems in the right shoulder, neck and in her posture and gait. The report notes considerable neck pain after holding position, which created problems with studying. It recommends continued instruction with body mechanics and posture, and physiotherapy for the right shoulder.

The Applicant was referred by her lawyers for a psychological assessment by Dr. Cancelliere. Dr. Cancelliere's curriculum vitae indicates that he is a practising clinical psychologist, with a doctoral degree, specialising in the field of neuropsychology.

Dr. Cancelliere saw the Applicant on October 6, 1990 and again on December 17, 1990. He interviewed the Applicant and conducted a number of psychological tests upon her. His medical-legal report is marked Exhibit 5. Dr. Cancelliere concluded that the Applicant's performance on the tests was wholly inconsistent with her pre-accident abilities, and indicated that her abilities had declined as a result of the mild head injury she sustained in the accident (p.8). Dr. Cancelliere concluded that the Applicant had sustained a "significant brain injury with consequent deleterious impact upon her intellectual and cognitive abilities" and also suffered from post-traumatic stress disorder (p.9).

Dr. Cancelliere stated that the Applicant was tested rather soon (approximately five weeks) following her mild head injury, and he expected significant recovery in the next six months. However, he thought that during this time the Applicant would not be able to cope with her university studies as she had done in the prior year, and that her injuries would likely preclude the achievement of her goal to go on to graduate school in the United States. He recommended therapy and counselling for post-traumatic stress disorder to aid her recovery.

Debbie Hastings, Claims Manager of The General Accident Assurance Company, also gave evidence. Ms. Hastings confirmed that the Insurer was aware that the Applicant was back at school. It paid benefits on receipt of the application. The Insurer received a letter from the Applicant's lawyers, dated September 12, 1990. This is marked Exhibit 9. The letter indicated that the lawyers had retained the services of F.I.T. for Work Centres to provide a comprehensive rehabilitation assessment of the Applicant because of the difficulties she was experiencing with her schooling, and that the Insurer would be contacted shortly to discuss a vocational rehabilitation plan and its financing.

Ms. Hastings testified that the Insurer thought that a F.I.T. assessment was not the way to proceed. In its reply of October 18, 1990 (also Exhibit 9), the Insurer refused to agree to the suggested assessment because it had been told that the proposed facility was a centre for physiotherapy and testing. The Applicant was already in physiotherapy on the advice of her doctor, and the Insurer concluded therefore that there was no need for a comprehensive assessment. The letter indicated that the Insurer did not see the benefit of vocational rehabilitation at that time, because it had been advised by the Applicant's mother that there were a number of activities that the Applicant could not do. The letter stated that if the Applicant experienced personal adjustment problems once physiotherapy treatment had finished, a rehabilitation specialist would be assigned. Ms. Hastings, on reviewing the file, indicated that a request for an authorization to obtain the Applicant's medical records in respect to the accident was made of the Applicant's mother, because the Applicant had not returned the form on October 2, 1990. Mrs. Levenson stated that her daughter had mailed out the form and would have her complete another one. A further request was made on November 19, 1990. However, the Insurer did not receive the authorization.

In a further letter of December 18, 1990, the Insurer indicated that it had engaged the services of Rehabilitation Services of Canada to develop a rehabilitation plan for the Applicant, but that the lawyers had declined to authorize the activity. The letter indicated that it did not feel vocational rehabilitation was needed because the Applicant was involved in the film program she wished to pursue. However, the Insurer was concerned about the Applicant's personal adjustment and ability to continue with her studies, and the extra time required for physiotherapy. The letter indicated that the Insurer wished to establish the Applicant's normal activities, and determine which of these the Applicant could not do, and provide help accordingly. The letter requested the immediate return of a signed medical authorization, which had been previously requested of the Applicant's mother three times.

No response was received to this letter.

The Insurer set up a medical examination with Dr. John Clifford on February 19, 1991. The notice of appointment is contained at Exhibit 9. However, it was cancelled by the Applicant. Ms. Hastings stated that there was no indication in the file that Mrs. Levenson had called Ms. Preece in advance to tell her daughter could not attend or that Ms. Preece said that was "OK".

The Insurer sent a further letter to the Applicant's lawyers dated February 6, 1991. This indicated that the Applicant had cancelled the appointment with the doctor's office on January 30, 1990. The lawyers were asked to advise the Insurer when the Applicant was available for another appointment. The letter indicated that the Insurer would make the appointment and provide details to the lawyers. The request for a medical authorization was repeated.

No response was received from the lawyers.

On March 20, 1991, Ms. Preece wrote again to the lawyers. The letter stated that it was written further to a telephone call of March 14, 1991 concerning arrangements for a medical examination. The letter stated that

"in order that we may bring our file up to date, we would appreciate receiving the following:

1. Exactly what activities is Dana unable to perform that she was able to do prior to the accident?

2. An estimate as to the duration of her disability.

3. What treatment is being provided to her?"

No response was apparently received. Ms. Hastings stated that the Insurer checked with the doctor's office on April 16 to determine if another time had been arranged. Following a further call on April 19, 1991, the Insurer terminated benefits.

Subsequently, an appointment was made for the Applicant to see Dr. Hall on May 30, 1991, apparently as a result of the matter being referred to mediation. On examination, Dr. Hall found free range of movement in all joints, with soreness along the neck. He noted residual complaints of headache and some neck and back pain. The doctor concluded that the Applicant was not in need of treatment, and there was no evidence of disability.

In reply, the Applicant stated that she had received a letter respecting her appointment to see Dr. Clifford. However, it was Reading Week and she asked to re-schedule it. She called, but there was no availability until after she had left London. She, therefore, did not pursue it.

Submissions of Counsel:

Counsel for the Applicant submitted that the Applicant was substantially unable to perform her usual tasks for the period she was at school. The Applicant had not had a normal year at school because of the accident and had to take a fourth year. Her grades had fallen because of her inability to concentrate. Also, physiotherapy took away from her studying time. The test for benefits was not simply whether she had passed her year. She should not be penalized because she had the motivation to return to school. Moreover, benefits had not been paid through "error", so there was no obligation to repay any benefits. The Insurer was aware that the Applicant had returned to school. The Applicant had no obligation to provide a release. The Insurer could have asked for an early independent medical examination, and was offered an opportunity to find a rehabilitation program at an earlier stage. He submitted that it was the insured's choice where to go for rehabilitation.

Counsel for the Insurer submitted that the issue was not general damages, but whether the Applicant was disabled to the extent required. He submitted that, in order to determine what the Applicant's tasks are, it is necessary to examine the language of Section 12. In the context of summary proceedings, the test must be whether a student has returned to school. Moreover, in his submission, her marks in her third year were as good or better than in prior years.

Counsel for the Insurer submitted that there was a heavy onus on the Insurer to pay benefits promptly. The Insurer had tried to behave responsibly and therefore did not terminate benefits early. No medical evidence was supplied except for the initial application for benefits, and the Applicant had refused to provide a release for medical information. The Insurer acted reasonably in refusing to agree to the proposed comprehensive rehabilitation assessment only eleven days after the accident when the Applicant had already returned to school, and when it did not agree with the Applicant's choice. Since it did not know what activities she could do, it tried to find out by engaging a rehabilitation expert. However, the Applicant did not co-operate. Counsel noted that the Applicant had virtually no medical care at all. In his submission, the weekly benefits were paid through error as the Insurer was responsible to continue making payments, in the expectation that it would be provided with relevant medical forms.

Both counsel also made submissions in regards to the report of Dr. Cancelliere. Counsel for the Applicant submitted that the report was a reasonable expense under Section 6(1)(f) of the No-Fault Benefits Schedule.

Counsel for the Insurer submitted that the psychological investigation was done for medical/legal purposes and had no real value in determining the issue in arbitration. Also, it was not clear whether the report was payable under another plan.

Findings

The Applicant claims weekly benefits under Section 13 of the No-Fault Benefits Schedule. The relevant provisions of Section 13(1) provide as follows:

(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 benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

I am called upon to determine whether the Applicant suffered substantial inability to perform the essential tasks in which she would normally engage for the period from the date of the motor vehicle accident on September 1, 1990 to April 13, 1991, when benefits were terminated.

In the event that I find that the Applicant was not disabled to the extent required, I must determine whether the Insurer is entitled to recover the money paid to her.

Under Section 13, the onus is on the Applicant to establish disability to the extent required.

Subsection 13 requires an individualized inquiry into the circumstances of the particular applicant, in order to identify the tasks and activities in which he or she engaged prior to the accident, and compare them to the post-accident tasks and activities.

What does the legislation mean by "tasks"? The Concise Oxford Dictionary provides the following definition of the "task":

"a piece of work to be done or undertaken."

The context of the legislation distinguishes between a "task" and an "activity". Subsection 13(8) provides that, after 156 weeks, it must be shown that an applicant is incapable of "substantially all of the activities" normally engaged in. This is clearly intended to be a more stringent test.

Counsel for the Insurer submitted that Section 13 must be construed in context. Under Section 12, benefits are paid to persons in the work-force if they are unable to do their job. Correspondingly, he submitted, a student is only entitled to benefits under Section 13 when he or she is unable to attend school.

However, the test under Section 12 is not whether an applicant is able to do some or part of his or her work, but whether the applicant is substantially unable to perform the essential tasks of his or her employment.

Correspondingly, the fact that the Applicant has returned to school does not determine the issue of disability under Section 13. The wording of the section requires that the tasks in which she engaged at school be identified, and that her ability or inability to perform them after the accident be determined.

It should be added that my jurisdiction as an arbitrator is limited to determining whether the Applicant suffers substantial inability to perform the essential tasks in which she would normally engage, for the purposes of determining her entitlement to no-fault weekly benefits. I have no jurisdiction to award general damages for pain and suffering or damages for loss of future earning capacity or loss of opportunity.

The evidence is that the Applicant was injured in an automobile accident on September 1, 1990. She was taken to North York General Hospital and released the same day. She saw Dr. Grosfield shortly afterwards, who diagnosed a soft tissue cervical injury.

As a result of her injuries, the Applicant was unable to return to school and to continue her undergraduate studies until September 9, 1990, a week late. She therefore missed orientation week.

The Applicant testified that missing orientation week caused her to lose the opportunity to apply for work at the university radio station and also prevented her from the opportunity of taking all the courses she wanted to take. She testified that she needed the experience of working in radio at school in order to be eligible to apply for a graduate course in radio at Ryerson University after her undergraduate studies.

In the first place, it is not disputed that the Applicant was disabled to the extent required during the period that these opportunities were lost - when the Applicant was at home and unable to return to school. Moreover, these contingent opportunities - to change courses and to audition for university radio work - cannot be viewed as "essential tasks" in which she would normally engage. The Applicant had already selected her courses, with the possible exception of a speech course for which she was on a waiting list. She may or may not have successfully auditioned for the university radio had she been present during orientation week. However, beyond providing her with useful experience, there was no evidence that the radio work constituted an essential part of her studies.

The evidence indicates that the essential tasks in which the Applicant would normally engage as a student are (1) attending classes, (2) studying, (3) successfully completing assignments and exams.

The evidence is that the Applicant returned to school a week after the accident but was substantially unable to engage in the requirements of her school work for approximately six weeks following her return. Dr. Allatt's report indicated that by October 16, the date of the examination, the Applicant was reporting a 70 per cent improvement. This time-frame is consistent with the Applicant's own testimony at the hearing. In her evidence, the Applicant stated that for the first few weeks she was at school she was "out of it", and, until well into October, was barely able to attend classes, particularly night classes, because of pain, and the effect of the pain killers. After that time, the Applicant could attend classes, although she had difficulty sitting through them without a break, and required an Obus Forme for her back.

There is insufficient evidence that the Applicant was unable to perform her essential tasks after that time.

Save for two one-time visits to Dr. Grosfield, in early September, and Dr. Allatt in mid October, the Applicant was not under the care of a medical physician for the duration of the period claimed. The medical certificate provided by Dr. Grosfield (Exhibit 1) indicated a diagnosis of a soft tissue cervical injury. It noted that the Applicant had returned to school and that she would continue to suffer from intermittent pain for up to two years. Dr. Grosfield recommended a cervical collar, analgesics and physiotherapy treatment. No follow-up treatment was indicated as required.

The Applicant did not return to see Dr. Grosfield during the period claimed. She next saw Dr. Allatt, a physical medicine and rehabilitation specialist on October 16, 1990 (Exhibit 3). The referral was apparently made by Dr. Grosfield at the initiation of the Applicant's physiotherapist. Dr. Allatt also recommended continuation of physiotherapy treatment and that the Applicant protect her neck mobility. He advised the Applicant to avoid heavy labour or vigorous sporting pursuits pending recovery. However, there is no suggestion that the Applicant's injuries were likely to impair her ability to engage in school activities beyond these limited restrictions. A follow-up appointment was suggested for mid January but the Applicant did not see Dr. Allatt again.

Neither Dr. Grosfield's certificate nor Dr. Allatt's report therefore supports the Applicant's entitlement to benefits beyond mid October. The Applicant continued to engage in physiotherapy treatment once or twice a week for the duration of the period. She also undertook massage treatment and an exercise program at the gym and at home. However, it would be an unusual case in which a lengthy period of disability, such as this, did not require some form of ongoing medical supervision.

Counsel for the Applicant submitted that the requirements of physiotherapy detracted from the Applicant's study time. While I have no doubt that this was so, there was no evidence that the time taken for physiotherapy was so significant that it substantially precluded study time. The Applicant's own evidence suggests that physiotherapy did not significantly prevent her from attending classes although it reduced her flexibility in the scheduling of classes.

It is noted that the Applicant did see Dr. Grosfield again in May 1991.

The was apparently after the Applicant had sustained a second motor vehicle accident. On that occasion, Dr. Grosfield filed a further medical report in respect of the September 1 accident (Exhibit 2). Dr. Grosfield indicated that the expected duration of disability was "September 1, 1991 (before the second accident)". However, the basis for this opinion was not specified. A medical examination conducted by Dr. Hall at the end of the month concluded that the Applicant was not disabled. Neither of these reports are of material assistance in relation to the extent of the Applicant's disability for the earlier period claimed.

The Applicant testified that she experienced difficulty in studying. In addition to pain, she suffered from headaches, loss of concentration, loss of memory, depression and lack of motivation as a result of the accident. No particular time frame was attached to these complaints.

These symptoms generally were reported by the Applicant on her application for benefits (Exhibit 7).

The Applicant's testimony is supported by the findings of Dr. Cancelliere in his medical-legal report of May 29, 1991 (Exhibit 5). He concluded a psychological assessment of the Applicant on October 16, 1990 and December 17, 1990. He found that the Applicant had suffered a brain injury that affected her intellectual and cognitive abilities, and that the Applicant was also suffering from post-traumatic stress disorder as a result of the accident.

He noted that the testing was "rather soon" after the accident (approximately 5 weeks) and indicated that there would likely be significant spontaneous recovery in the Applicant's condition over the ensuing six months. However, he concluded that the Applicant would be unlikely to cope with university studies in the manner that she had become accustomed to and that her injuries would preclude achievement of her academic goals for graduate studies in the United States.

This is the crux of the Applicant's argument. It is argued that her injuries - in particular, the closed head injury and post-traumatic stress disorder identified by Dr. Cancelliere - significantly affected her academic performance in her third year of school. As a result of her poorer grades after the accident, the Applicant was prevented from a realistic opportunity of going to graduate school at an Ivy League school in the United States and had to do a fourth year of undergraduate studies. The Applicant testified that she fell from being a "B+" or an "A" student in her second year to a "C+" student after the accident.

However, in the first place, I do not accept that the Applicant's ability to perform the essential tasks in which she would normally engage as a student is defined by her ability to achieve equal or better academic results than she achieved before the accident. This would be to substitute the test established in the No-Fault Benefits Schedule with something quite different - compensation akin to general damages or damages for loss of opportunity. Counsel for the Applicant cited no authorities to me to support this interpretation of the legislation.

This is not to say that the grades a student receives are not relevant indicia of his or her ability to engage in those studies. However, I am not satisfied that, in this case, the Applicant's academic results were so substantially below her pre-accident performance as to warrant a finding that she was substantially unable to perform her essential tasks as a student. It is clear that entitlement to Section 13 benefits extends to persons who sustain injuries in an automobile accident, regardless of whether such injuries are physical, psychological or mental in nature. However, to establish entitlement to no-fault benefits, the Applicant must demonstrate "substantial inability" to perform the essential tasks normally engaged in, not that she could have performed them better or with greater facility but for her injuries.

In any event, the evidence before me fell short of establishing the loss complained of. I did not have the benefit of any formal university transcripts or school records by which to compare the Applicant's academic experience and history. I note that Dr. Cancelliere in his report also recommended the production of these records to allow a more accurate evaluation of the Applicant's pre-injury abilities.

The evidence provided by the Applicant herself in the form of a handwritten list of grades (Exhibit 6) does not assist her claim because it does not indicate the + or - degrees of grades. In fact, it does not indicate that the Applicant's record was significantly different than in prior years: three "B's" one "C" and two "D's" in first year, three "B's", one "A", and one "C" in second year, and four "B's" and one "C" in her third, post-accident year.

Based on the foregoing findings, I find that the Applicant was substantially unable to perform the essential tasks in which she would normally engage from the date of the accident on September 1, 1990 to approximately six weeks after she returned to school. I put this to be the date of the Applicant's visit to Dr. Allatt.

The evidence is that the Applicant returned to school shortly after the accident, and - at least, from approximately mid-October was able to attend classes, to study, and to successfully complete assignments and exams in the course of the academic year, although these tasks were done with pain and discomfort.

I find that the evidence does not establish that the Applicant suffered substantial inability to perform the essential tasks in which she would normally engage as a result of the automobile accident beyond this date.

I wish to state clearly for the record that, in making these findings, I do not question that the injuries sustained by the Applicant caused her pain and discomfort. Her injuries affected the Applicant's ability to participate fully in student life, and rendered her tasks and activities during the period more difficult. I found both the Applicant and her mother to be credible witnesses and I accept their evidence in this regard. However, this evidence does not establish that the statutory requirements for entitlement to no-fault weekly benefits have been fulfilled.

Repayment of benefits

The next issue, therefore, is to determine whether the Applicant is liable to repay any benefits that have been paid to her from October 17, 1990 to April 23, 1991.

Repayment of benefits is governed by Section 27 of the No-Fault Benefits Schedule. This section provides as follows:

(1) A person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud.

Section 27(1) requires that benefits must be repaid when they have been paid to the person "through error or fraud". Fraud is not in issue here. It is a term readily understood. However, the meaning of the phrase "paid through error" is less clear.

The Concise Oxford Dictionary defines "error" as follows;

1. A mistake. 2. the condition of being wrong in conduct or judgement. 3. a wrong opinion or judgement 4. the amount by which something is incorrect or inaccurate in a calculation or measurement.

There is therefore a number of meanings in ordinary usage that may be attributed to the word used. However, some assistance is provided by the statutory context in which the words appear. Subsection 27(2) and (3) provide for repayment of benefits in circumstances where there is no "error" but where the recipient is disqualified from payment or where deductible payments have been received, in which case repayment is required to the extent of the deduction.

These provisions suggest that the requirement of "error" in section 27(1) requires more than an error of judgement or "being wrong" on the part of the insurer in paying benefits. Otherwise, the broader wording of Section 27(2) and (3) would be redundant. It is not sufficient therefore to establish merely that an applicant has received benefits to which he or she is subsequently adjudged not to be entitled. To give meaning to the terminology of the section, the stipulation that benefits be paid "through error" in order to be recoverable must require that responsibility for the payment be attributable in some material way to the actions of the applicant.

In this case, it is clear that the Insurer was aware that the Applicant had returned to school throughout the period that benefits were paid. This was stated in the Applicant's Application for benefits (Exhibit 7) and was acknowledged in the testimony of Ms. Hastings on behalf of the Insurer.

Counsel for the Applicant submits that benefits were not paid "through error" because the Insurer knew that the Applicant had returned to school. However, this argument is, in my view, incompatible with the position taken by the Applicant throughout these proceedings, and accepted by this arbitrator - that the fact that the Applicant had returned to school in itself does not determine whether she was capable of performing the essential tasks in which she normally engaged.

The evidence is that Insurer paid benefits promptly on the basis of the Applicant's application and Dr. Grosfield's medical certificate. On September 12, 1990 the Applicant's lawyers proposed referring the Applicant for a comprehensive rehabilitation assessment to a FIT for Work Centre. This proposal (contained in Exhibit 9) was rejected by the Insurer by letter dated October 18, 1990. It did not feel that the Applicant required vocational rehabilitation at this point as she was unable to do a number of activities, and was undergoing a course of physiotherapy treatment. The letter suggests that the need for a rehabilitation specialist would be reviewed once physiotherapy had finished if there continued to be problems. In late November-early December, it appears that the Insurer did retain a rehabilitation firm of its own because of the Applicant's continuing problems. However, the Applicant's lawyers would not agree to this. A letter from the Insurer dated December 18, 1990 details this further communication and indicates that the Insurer wanted to use the rehabilitation firm to identify the activities that the Applicant was not able to do, and provide help accordingly.

The Insurer then set up an appointment for a medical examination with Dr. Clifford in London for February. However, the Applicant cancelled the appointment. Further communication from the Insurer (of February 6, 1991, and March 20, 1991) indicates that the Insurer tried to set up another appointment, but finally terminated benefits on April 19, when its efforts were unsuccessful. In the letter of March 20, the Insurer asked for information about what activities the Applicant could do, an estimate of the duration of disability and the treatment provided. No response was received to this letter. A second Form 4 medical report was subsequently received from Dr. Grosfield dated May 23, 1991 as previously described.

The evidence also shows that the Insurer repeatedly requested that a signed release by the Applicant be provided to allow it to obtain the Applicant's medical records in relation to the accident. No response was received from the Applicant or her lawyers to these requests.

In my view, the evidence clearly indicates that this Insurer acted both reasonably and responsibly in this case. It paid benefits promptly on receipt of the application, followed by the medical certificate. Knowing that the Applicant had returned to school and was undergoing a course of physiotherapy, it sought clarification of what tasks and activities the Applicant could and could not do after a reasonable period of time - approximately three months - after the accident. It also requested on a number of occasions a medical release. When these efforts to establish the condition of the Applicant failed, the Insurer resorted to its right to require a medical examination of the Applicant. The Applicant cancelled the appointment because it was inconvenient. The Insurer continued to make efforts to accommodate the Applicant in rescheduling the appointment. However, finally, when its efforts failed, it terminated benefits. This action was, in the circumstances, the Insurer's last resort.

In my view, the actions of this Insurer complied fully both with the letter and the intent and spirit of the no-fault benefits scheme.

In response, however, counsel for the Applicant submits that the Insurer was offered and refused to approve a rehabilitation assessment at an early opportunity, and that the choice of rehabilitation services is that of the Applicant. He submitted further that the Insurer has no right to obtain an authorization for the release of medical information. He argued that the Insurer's right is to require an independent medical examination, and that it could have done this at any time.

The issue before me is not to determine these respective rights and responsibilities of the parties in this case. It is to determine whether benefits were paid through error, and therefore must be repaid. As stated previously, I am therefore required to determine whether the actions of the Applicant, in a material way, were responsible for the overpayment. In my view, the answer is yes.

The proposal for a comprehensive rehabilitation assessment was made on behalf of the Applicant less than two weeks after the accident, days after the Applicant had returned to school, and according to the report of the Downtown Clinic (Exhibit 4), only one day before the Applicant embarked upon a course of physiotherapy treatment there, on the recommendation of Dr. Grosfield. Furthermore, based on the evidence, I have found that the Applicant was substantially unable to perform her essential tasks for approximately six weeks following her return to school. In light of the above, it is questionable what would have been accomplished by a comprehensive rehabilitation assessment at the time suggested.

Counsel for the Applicant also submitted that it was open to the Insurer at any time to require an independent medical examination if it wished to determine the Applicant's medical condition. In my view, however, the Insurer acted both reasonably and responsibly in trying to determine the Applicant's evolving condition on the basis of the medical information from her own treating physician, and to regard its right to an independent examination - an intrusive right - as a measure for reserve.

I note that in any event the evidence is that the Applicant did not attend the medical examination set up by the Insurer in February, and that the Insurer received no co-operation in relation to a further appointment until after benefits had been terminated.

Accordingly, I find that these actions of the Applicant or her representatives were responsible in a material way for the error of the Insurer in continuing to pay benefits during the period when the Applicant ceased to be entitled to such benefits. I therefore find that the Applicant is required to repay these benefits that were paid to her for the period from October 17, 1990 to April 13, 1991.

Payment of psychological report of Dr. Cancelliere and arbitration expenses

There is also an issue of whether the Insurer is required to pay for the psychological assessment and report of Dr. Cancelliere (Exhibit 5). The amount claimed was $1,600. There was no dispute that this was a legal-medical report, obtained on the advice of the Applicant's lawyers in contemplation of possible adjudication.

Counsel for the Applicant submitted that this amount was payable under Section 6(1)(f) of the No-Fault Benefits Schedule. This section provides as follows:

(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,

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident;

(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.

The medical-legal report of Dr. Cancelliere does not meet these criteria because there is no evidence that the assessment and report were necessary for the purposes of the treatment and rehabilitation of the Applicant. Moreover, as a privileged document, the report of the assessment was not disclosed to the Insurer until well into the proceedings and therefore cannot meet the requirements of Section 6(4).

However, this does not end the inquiry. Under Section 282(11) of the Act, an arbitrator has the discretion to award an applicant his or her expenses in the arbitration. This section states:

(11) Expenses. - 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.

Ontario Regulation 275/90 sets out the nature of the expenses, and the maximum amounts that are recoverable. The relevant Section 5 states:

(1) The amount of the following witness fees paid by or on behalf of the insured person may be awarded:

3. For a report prepared by an expert, provided to the other parties to an arbitration, appeal or variation/ revocation and necessary for the conduct of the hearing, in accordance with subsection (4)

(4) The maximum amount that may be awarded for a report prepared by an expert is $800.00.

I am satisfied that the report of Dr. Cancelliere meets these requirements. The report claimed is a medical-legal report prepared by an expert in the field of psychology.

The report was provided to parties in the arbitration hearing, was introduced in evidence on behalf of the Applicant and is relevant to the issues in dispute. It speaks to the Applicant's psychological condition as a result of the automobile accident, and to the degree of disability suffered. I find therefore that the report is necessary for the conduct of the hearing within the meaning of Section 5(1) 3. of the Regulations. In my view, it is irrelevant that the report was prepared before arbitration was initiated, provided these conditions are met.

No evidence was introduced in regards to the reasonableness of the amount claimed. Given the time expended in relation to the assessment - the report itself indicates that two appointments were made, with each assessment being 6 hours - and the fullness of the report, I am prepared to allow the Applicant the maximum amount payable for a report under Section 5(1) 3, being $800.00.

In addition to the cost of the above report, the Applicant claims her expenses incurred in the arbitration. In the arbitration decision of McCormick and Economical Mutual Insurance Company (S. Naylor, arbitrator, October 19, 1991, File No. A-000139), this arbitrator set out criteria guiding the exercise of an arbitrator's discretion to award expenses under Section 282(11). In that decision, I stated that it would be appropriate to award expenses to an applicant unless the application was improper, or the conduct of applicant had unreasonably prolonged the proceedings. I received no submissions that these criteria are inappropriate or otherwise inapplicable in this case. Therefore, having regard to them, I find that the Applicant is entitled to her expenses as prescribed in the Ontario Regulation 275/90. I remain seized of this matter in the event that there is a dispute regarding the amount of such expenses.

Order:

It is ordered that:

1. The Applicant is entitled to weekly benefits as a result of an automobile accident on September 1, 1990 for the period to October 16, 1990, inclusive.

2. The Applicant is not entitled to weekly benefits for the period from October 17, 1990 to April 13, 1991.

3. The Applicant is required to repay weekly benefits paid to her in respect of the period from October 17, 1990 to April 13, 1991.

4. The Applicant is entitled to recover the cost of a report of Dr. Cancelliere, dated May 29, 1991 in the total amount of $800.00 as an expense incurred in respect of this arbitration.

5. The Applicant is entitled to her other expenses incurred in respect of the arbitration proceeding as prescribed by Ontario Regulation 275/90.

February 18, 1992

Susan Naylor Senior Arbitrator

Date