Neutral Citation: 1993 ONICDRG 52

File No. A-000532

ONTARIO INSURANCE COMMISSION

BETWEEN:

BALWINDER SINGH

Applicant

and

SIMCOE ERIE GROUP

Insurer

DECISION

Issues:

The Applicant, Balwinder Singh, was injured in a motor vehicle accident on August 31, 1990. He applied for and received accident benefits payable under Regulation 273/90 (the "No-Fault Benefits Schedule"), under the Ontario Insurance Act, R.S.O. 1990, c. I.8. Every motor vehicle policy provides for the no-fault benefits set out in the No-Fault Benefits Schedule.

The Applicant received weekly income benefits under the policy until April 26, 1991. The Applicant disputed the termination of his benefits, and also claimed payment for a rehabilitation program which he participated in during January and February 1992.

The Applicant applied for mediation of his disputes with the Insurer. The mediation was unsuccessful, and the Applicant subsequently applied for the appointment of an arbitrator.

The issues to be determined at the arbitration hearing were:

(1) Is the Applicant entitled to weekly income benefits for the period from April 26, 1991 to February 12, 1992?

(2) Is the Insurer obliged to pay for the rehabilitation program in which the Applicant participated?

(3) Is the Insurer obliged to pay the Applicant a special award, under Section 282(10) of the Insurance Act, because it unreasonably withheld or delayed benefits payable to the Applicant?

The Applicant also claimed interest on any outstanding amounts and his expenses of the hearing.

Result:

The decision is:

1. The Applicant is not entitled to weekly income benefits subsequent to April 26, 1991.

2. The Insurer is obliged to pay for the rehabilitation program in which the Applicant participated.

3. The Applicant is not entitled to a special award under Section 282(10) of the Insurance Act.

Hearing:

A hearing was held at North York Ontario, on April 13, 14 and 22, 1992, before me, Frederika Rotter, Senior Arbitrator.

Present at the hearing were:

The Applicant:

Balwinder Singh

Applicant's

Fern Silverman,

Representatives:

Audrey Doueck.

Insurer's Representative:

Ralph D'Angelo

Witnesses:

1. Balwinder Singh

2. Heather Lynn Sloman

3. Dr. Yacoob Barmania

4. Christopher Szybbo, Physiotherapist

5. Tricia Doyle

Documents before the Arbitrator:

Application for appointment of an arbitration in Form 4, dated October 15, 1991

Response in Form 5, dated November 15, 1991.

Report of Mediator, dated September 30, 1991.

Exhibits:

Exhibit 1:

Insurer's Medical Brief, prepared by Simcoe Erie Group

Exhibit 2:

Psychiatric Report, Dr. Pradeep Balakrishnan, dated 12 November, 1991

Exhibit 3:

Note from Dr. Pradeep Balakrishnan, dated 3 June, 1991.

Exhibit 4:

Note on prescription pad from Dr. F.Y.L. Ho, dated June 14, 1991.

Exhibit 5:

Report from F.I.T., dated August 13, 1991.

Exhibit 6:

Note on prescription pad from Dr. F.Y.L. Ho, dated September 10, 1991.

Exhibit 7:

Two photographs of damage to automobile, from Paragon Appraisals Limited.

Exhibit 8:

F.I.T. Final Report, to Ms. Susan LeVarno and Ms. Tricia Doyle, dated February 25, 1992.

Exhibit 9:

Curriculum Vitae of Heather Sloman

Exhibit 10:

Curriculum Vitae of Dr. Pradeep Balakrishnan

Exhibit 11:

Note on two sheets of prescription pad from Dr. F.Y.L. Ho, dated May 1, 1991.

Exhibit 12:

Letter from Dr. Kevin M. Rittenberg, F.I.T., to Ms. Susan LeVarno, dated August 21, 1991.

Exhibit 13:

Damage Appraisal form, from Paragon Appraisals Limited, dated September 10, 1990.

Exhibit 14:

Letter from Tricia Doyle, Simcoe Erie Group, to F.I.T., dated September 26, 1991.

Exhibit 15:

Letter from Liz Mullan, F.I.T., to Ms. Tricia Doyle, October 24, 1991.

Exhibit 16:

Letter from Tricia Doyle, Simcoe Erie Group, to F.I.T., dated November 12, 1991.

Cases referred to:

Ippolito v. Janiak et al, (1981), 1981 CanLII 1677 (ON CA), 34 O.R.(2d) 151

Tomizza et al v. Fraser et al, Tomizza v. State Farm Insurance Co., (1990), 1990 CanLII 6620 (ON HCJ), 71 O.R.(2d) 705

Fulton v. Manufacturers Life Insurance Company, [1990], I.L.R. & 1-262010,228

General Accident Assurance Company of Canada v. Darlene Walker, (unreported), S.C.O. Osborne, J.

Evidence:

Evidence of the Applicant:

The Applicant, Balwinder Singh, gave evidence under oath. He is 24 years old and was educated in England, where he completed Grade 13. After high school, he spent four years in college and received a diploma in motor vehicle mechanics. This course involved practical training, similar to an apprenticeship program.

The Applicant graduated in June 1988 and worked in England for a short time, as a mechanic. He came to Canada in June 1989 and was briefly employed as a mechanic for three different companies. He was laid off from a job at Ontario Jeep Eagle about Christmas of 1989, and then worked at various sales jobs through the first half of 1990.

The Applicant started working as a taxicab driver on August 30, 1990. He testified that he started working as a cab driver because he got bored with sales work. His uncle owned a taxicab and plate, so he decided to drive his uncle's cab.

The Applicant described his job duties as a motor vehicle mechanic, including servicing cars, and doing maintenance and tune-up work. He was required to lift 35 to 40 pounds. A mechanic's job involves standing all day and also bending and leaning over cars to work on them.

He stated that a cabdriver is required to work a 12-hour shift. He must be physically able to sit in a cab for that length of time, and mentally and physically he must have a good attitude. He must be alert and aware of road conditions, and considerate of the safety of passengers. He must be physically able to assist passengers with children and baggage.

The Applicant testified that before the motor vehicle accident, he was very physically fit. He played football and participated in other sports. He had never been involved in a motor vehicle accident before, and had never been treated for neck or back problems.

The accident took place on Friday, August 31, 1990, at 8:00 or 9:00 pm. The Applicant was travelling southbound down Kennedy Road towards Steeles. A car was travelling north in the wrong lane and collided with the Applicant's taxicab almost head-on. The driver's side of the cab was hit and the cab was scraped all along that side to the rear end.

The Applicant testified that he was pushed against the steering wheel and then thrown to the right. His passenger was injured and screaming. The police attended at the scene and an ambulance was called. The Applicant was taken to Peel Memorial Hospital where he remained for about six hours. He was examined, x-rays were taken, and painkillers were prescribed for him.

The Applicant testified that, immediately after the accident, his neck hurt him and he started to experience back and shoulder pain. He felt shaky and was in shock. He did not break any bones as a result of the accident. At the hospital, he was given a neck-collar to wear.

Afterwards, the Applicant saw his family doctor, Dr. Ho, who prescribed painkillers. The Applicant initially took painkillers three or four times a day. Dr. Ho advised him to wear his cervical collar and rest.

The Applicant testified that, at the beginning, the pain was continuous, and he saw Dr. Ho nearly every week. His neck, back and right shoulder bothered him. He could not lift. He experienced numbness in his right leg, and right hand. He had problems sitting and bending. He was obliged to walk around because he could not sit in one position for very long.

The Applicant was emotionally upset and frustrated because of the pain he was experiencing. He lost his appetite. He became so depressed and preoccupied with his pain that he could hardly do anything for himself. His family looked after him.

He had problems sleeping. He would wake up every hour or two as he could not sleep on one side because of the pain. He took painkillers and sleeping tablets prescribed by Dr. Ho, and was advised by Dr. Ho to rest until the start of a therapy program. Dr. Ho also recommended a heat-pad for his back.

The Applicant testified that the Insurer sent him for medical examinations on November 8, 1990. He was examined by different medical specialists. The Insurer's physicians recommended a rehabilitation program at the Canadian Back Institute ("C.B.I.").

The Applicant testified that he started at the C.B.I. at the end of November 1990. He stated he attended the program because he wished to return to work as soon as possible. A friend drove him there or he took a taxicab. He could not take public transit because it was winter and the nearest transit stop was three or four blocks away, a distance he was not capable of walking in winter.

At the C.B.I., the therapist, Mr Szybbo, showed him exercises such as push-ups and sit-ups and advised him to do these exercises daily. However, the Applicant testified, the exercises only made his condition worse and produced more pain. After about two weeks at the C.B.I. the Applicant told his family physician that he could not sit, and the pain was getting worse.

The Applicant testified that he was supposed to go to the C.B.I. every day; however, normally he attended about four days a week. He testified that he missed some days' attendance because he could hardly move. He used to attend for 20 minutes or half an hour. He was not advised how long the program at the C.B.I. was supposed to last.

In cross-examination, the Applicant testified that for a couple of days after his first appointment at the C.B.I. he did not go back, because he was in too much pain. He confirmed that he attended at the C.B.I. on November 29th and once in December, 1991.

He stated that Mr. Szybbo, the therapist, was only concerned about his back and neck, and just gave him exercises to do. Mr. Szybbo also gave him advice about his posture. No one explained his condition to him. He stated that Mr. Szybbo would watch him do his exercises, but the only exercise equipment or apparatus at the C.B.I. was a bench.

The Applicant testified that he could not follow the C.B.I. program because he was "in too much agony". He told his doctor that he could not follow the program. His doctor advised him to speak with Mr. Szybbo. When the Applicant did so, he was discharged from the C.B.I.

The Applicant testified that, when he spoke to Mr. Szybbo about the program, he was told he was not complying. He stated that he told Mr. Szybbo honestly that he could not move about or do the press-ups and sit-ups, because of the pain.

The Applicant testified that, after going to the C.B.I., his condition deteriorated, and he had more problems than before. He had problems bending, and the pain in his back was worse. The right shoulder pain was constant. He continued to have problems sleeping. The Applicant testified that, when he complained to Dr. Ho, the doctor told him that he would look for another program for the Applicant.

The Applicant broke up a relationship with a girlfriend around Christmas of 1990. His friends were not coming to see him. After the accident, the Applicant felt lonely and abandoned. He was unable to go out anywhere. He stopped socializing and doing activities such as dancing or football.

The Applicant testified that he told the therapists at the C.B.I. that he was feeling emotionally depressed, but he noted that the C.B.I. reports do not mention this. The Applicant also told Dr. Ho about his depression.

The Applicant testified that Dr. Ho recommended that he attend at the Kensington Sports Medicine Clinic, located near where he lived. This clinic provided an exercise program as well as other forms of treatment for each part of the Applicant's body. He had heat treatments and treatments on a TENS machine and he was put in traction. He was also given a physical exercise program to do at home, and obtained an obus-forme for sitting.

The Applicant testified that he attended this clinic daily from January until July 1991. He testified that this program improved his shoulder area -- the numbness was relieved, and his neck was better. However, he still had pain in his back. For this reason, the Applicant felt that the treatment was inadequate.

The Applicant described his activities during this time. In the morning, he would shower and have something to drink, read the papers or watch television. He would then go to the clinic. Afterwards, he would stay home or go for a short walk.

The Insurer sent the Applicant to see Dr. Barmania on or about April 12, 1991. The Applicant testified that Dr. Barmania told him straight away that there was nothing wrong with him. One week later, the Insurer cut off his benefits. He continued to attend at the sports medicine clinic. However, he was now forced to rely on his parents, who live in England, for financial support.

The Applicant testified that he could not work because of the pain and because he was feeling so depressed. He complained to Dr. Ho about his depression. Dr. Ho sent the Applicant to a psychiatrist, Dr. Balakrishnan, who prescribed medications to help the Applicant relax and sleep.

Dr. Balakrishnan's report is marked Exhibit 2 to the hearing.

The Applicant testified that he started off seeing Dr. Balakrishnan every two to three weeks. He then saw him on a monthly basis. He last saw Dr. Balakrishnan in September 1991. The Applicant testified that he discussed his emotional problems and family situation with Dr. Balakrishnan.

The Applicant testified that Dr. Balakrishnan tried to encourage him to concentrate less on his pain. The Applicant was at this time attending the sports medicine clinic which was helping him feel better.

The Applicant testified that in the summer of 1991 he was sent by his doctor for an assessment at the F.I.T. for Work Centre ("F.I.T."). Exhibit 4 is a copy of Dr. Ho's referral for an assessment at F.I.T., dated June 14, 1991.

The Applicant had a half-day assessment at F.I.T. on August 2, 1991. On that day, the various programs and routines at F.I.T. were explained to him. He was told that a normal rehabilitation program at F.I.T. takes about four to six weeks. He was advised that a report from F.I.T. would be sent to the Insurer.

The Applicant testified that, from that point until January 1992, he was waiting for the Insurer to approve the F.I.T. program. Exhibit 5 is the F.I.T. assessment dated August 13, 1991. Exhibit 6 is a note from Dr. Ho dated September 10, 1991 recommending that the Applicant start the F.I.T. program.

The Applicant testified that he visited his family in England in October 1991, as his parents had been worrying about him. He returned to Canada after Christmas. The Applicant testified that, although the flight was about five and a half hours long, he did not have to remain seated constantly, and was able to walk around in the airplane.

The Applicant testified that, while he was in England, he stayed with his parents and saw other relatives. He did not go out sightseeing around the country.

The Applicant started the F.I.T. program on January 20, 1992. He testified that the F.I.T. centre was equipped with a gymnasium and many machines. The therapists at F.I.T. showed him how to lift and carry the right way. They also explained to him that the exercise program would hurt at first, and they showed him how to relax and cope with the pain. The Applicant testified that his major concern was to deal with his pain, so that he could return to work quickly. He was not asked to do sit-ups and other difficult exercises straight away.

The Applicant found that the F.I.T. program helped him improve quickly, and taught him to cope with his pain. He was given a program to do at home, and started to build up his strength.

The Applicant testified that he attended the F.I.T. program on a daily basis. He took two days off from the program, on or about February 3rd or 4th, to make job applications, although at that time he was not ready to start work right away. He testified that prior to starting F.I.T. he did not look for work because he felt he could not work.

He attended the F.I.T. program all day, which helped him get used to a work routine. He learned how to relax when he got tired. He met new friends at F.I.T. He worked with a group of others with similar problems, which was better for him than sitting home alone and seeing nobody. The Applicant stated that if the F.I.T. program had been funded earlier, he could have returned to work six months earlier.

After starting at F.I.T., the Applicant felt that he would be able to return to work. He eventually found a job as a sales person at Sodhi Furniture. The Applicant confirmed that in 1990 he had worked as a furniture salesman at the same company. His job did not require heavy lifting. However, he wished to complete the F.I.T. program before starting work.

The Applicant testified that he has been working continuously since February 13, 1992 when he completed the F.I.T. program.

The Applicant testified that he continued to take painkillers up to January 1992, when he started at F.I.T. In January, he was taking painkillers much less frequently than previously. About half way through the F.I.T. program, he stopped taking pain medication altogether.

The Applicant testified that he is no longer taking medications. He learned a daily routine at F.I.T. which helps him carry on without pain. He is now sleeping better and no longer feels as tired coming home from work. He attributes his full recovery to the F.I.T. program.

In cross-examination, the Applicant was questioned about why he had not pursued the C.B.I. program one year earlier. He stated that the C.B.I. did not have a physical hardening program such as existed at F.I.T. Also, he said the C.B.I. did not have any equipment apart from a bench.

The Applicant testified that could not start at F.I.T. prior to January 20, 1992, because the insurance company had not approved the funding. He testified that he waited until the end of September and, when the F.I.T. program was not approved, he made arrangements for his trip to England in October.

Applicant's Witness:

Heather Lynn Sloman gave evidence on behalf of the Applicant. She is an occupational therapist employed at F.I.T., and has a B.Sc. in occupational therapy and an M.Sc. in exercise physiology.

She testified that the Applicant was assessed at F.I.T. on August 2, 1991, pursuant to Exhibit 5. A physiotherapist did a physical examination and assessment of the Applicant. An occupational therapist interviewed the Applicant to establish his general level of functioning. Tests were performed, measuring the Applicant's consistency of effort. He was asked to complete a disability questionnaire, which provides a subjective view of how disabled by pain an individual perceives her or himself to be.

The physical assessment revealed specific areas of stiffness in the Applicant's thoracic spine, and mechanical imbalance in his lumbar spine. The Applicant also showed postural deficits and muscular weakness.

The witness testified that the Applicant's limitations in movement were partially the result of his pain, and partly related to his postural deficits. The Applicant's poor posture actually increased his pain and caused secondary problems. The Applicant also reported some subjective feelings of numbness and altered sensation in his right hand and leg.

The Applicant's response to the subjective questionnaire scored in the range of "crippling disability", which indicates that the Applicant saw himself as very disabled.

The witness was questioned about the subjective questionnaire. She explained that it consists of ten questions designed to measure an individual's subjective feelings of pain and disability. The Applicant's score, in the median range of "crippling" disability, is the second highest level. The highest level is "bedridden", then the scores descend to "crippling", "severe", "moderate", and "minimal" disability.

The Applicant also scored in the "severe" level for depression. He reported that he felt anxious and nervous at the interview. He was afraid to do many physical activities for fear of re-injuring himself.

The test results indicated that the Applicant was not able or ready to return to work, and a functional restoration program was recommended. The witness opined that it was unlikely that the Applicant would return to work without such a program.

The F.I.T. assessment was sent to the Insurer and the Insurer responded with a letter dated September 26, 1991, acknowledging receipt. The Insurer requested that F.I.T. send further information about the treatment program and the cost of the treatment.

The information requested was provided on October 24, 1991. It was indicated that the Applicant required a program lasting approximately six weeks. The cost of a half-day treatment program was $200.00 per day, and the full-day's program was $375.00 daily.

The witness stated that the F.I.T. program aims to restore individuals to their pre-traumatic, or to an adequate level of functioning. The program addresses the physical, work, and psycho-social needs of clients, providing counselling and classes, as well as exercise regimes. Many clients, like the Applicant, are very anxious and protective about their pain. Anxiety usually increases an individual's perception of pain. Clients are educated about their pain and their physical deficits. They become less anxious about experiencing pain, and can begin to be in control, rather than fearful of it.

The Applicant started with half-day sessions at F.I.T. As the Applicant's tolerance increased, he progressed to the full-day program.

The witness described the exercise program which patients learn on their own, using weight machines and cardiovascular machines. All parts of the body are exercised, especially those areas where there are actual physical deficits.

The Applicant was given exercises as part of a general conditioning program. He also participated in a graduated-weight training program, where the weights and the number of repetitions were increased gradually.

The F.I.T. program also provided a separate work-fitness component. As well, the Applicant had individual counselling sessions with behavioural therapists, normally two one-hour counselling sessions weekly. Much of the counselling focused on the Applicant's anxiety about driving. The Applicant also participated in relaxation and bio-feedback sessions to help him manage his pain.

The witness testified that the Applicant attended the F.I.T. program for 14 days. Nine of the days were half-day sessions and the others were full-day sessions.

The half-day program generally lasted from 9:00 to 12:30 in the morning, with a 15-minute break. The program was increased progressively to a full day, with classes to 4:00 or 4:30 p.m., with a 15-minute break in the afternoon.

The witness testified that the Applicant's motivation was very high. From the beginning, he was very responsive to all aspects of the F.I.T. program and had no problems with attendance or punctuality. He was very co-operative as long as he felt that what he was doing was safe. Although he missed some days because of illness, when he had to be away, he advised the program.

The witness encouraged the Applicant to apply for jobs. At the beginning of the program, he was not ready, but it was anticipated that the Applicant would soon be ready for work, and applying for jobs was part of his rehabilitation process.

The witness testified that, by the time the Applicant did get a job, he had progressed to almost a median level of work demands. He was five pounds from the median level in his ability to manipulate weights. His subjective complaints were less, especially around numbness. His sleep had improved and his fatigue disappeared. He had increased flexibility. He was now moving in a safe way because his posture had improved.

The witness testified that the Applicant's program was not terminated prematurely. The Applicant improved very quickly, and responded to the program better than had been expected. He began to seek advice about readiness for work at the beginning of the second week of the program, January 27, 1992. From the point of view of the program, the sooner the Applicant was discharged the better.

The witness testified that the Applicant required reassurance about his own capabilities. He was encouraged to look for work. By the third week, the Applicant had filled out an application for work at a computer store, and discussed a particular job with the therapists at F.I.T.

The therapists interpreted the Applicant's interest in going back to work as a sign of progress. He felt he was employable again.

The witness gave evidence about the Applicant's day by day attendance and hours at the F.I.T. program. The witness testified that the ability to stay at the program all day was very important in demonstrating the Applicant's tolerance for a full day's work. If he were able to remain at the program until 4:00 p.m., that showed he could cope with working for a full day. However, to show work tolerance, the Applicant had to perform consistently for a few days.

The witness testified that by February 10th the Applicant was working out at a level which allowed him to do light to medium level work, such as sales work. He could handle a job that required standing for a length of time and assuming certain positions, but he could not tolerate too much bending. There was no indication of limited sitting tolerance.

When the Applicant entered the F.I.T. program, he thought he had a sitting tolerance of about half an hour, but he never actually had problems sitting for any length of time, according to the staff at F.I.T. His concern about taxi driving was more anxiety about driving than difficulty with sitting.

The witness testified that by February 10th the Applicant's condition had not plateaued. He was continuing to progress. He attended on February 12th from 9:30 in the morning until 4:30 in the afternoon. He had a final physiotherapy assessment either on the 10th or the 12th of February.

By February 12th, the Applicant had found a job as a furniture salesman. The work involved mostly light duties, including standing and talking to customers.

The Applicant started at F.I.T. with low back pain which eventually was resolved. On his last day at the program, the Applicant indicated that he had no complaints of pain.

The witness testified that all the counselling goals for the Applicant had been reached during the last week of his attendance. However, the behavioural therapist commented that she could not pursue the Applicant's driving problem because he had no money for gas.

Physically, the Applicant was continuing to make progress. By the time the Applicant was discharged from F.I.T., he could go up and down thirty flights of stairs in two minutes. When the Applicant started at the program, he managed five flights of stairs in half a minute. He had increased his ability by about two flights a day.

The witness testified that many of the Applicant's problems stemmed from fear and lack of confidence. She indicated that, if he had been enrolled in F.I.T. in August 1991, he would have been ready for work that much earlier.

The witness testified that she knew that the Applicant went to the C.B.I. in December 1990 and that the program there did not work out. The witness had reviewed the reports of the C.B.I., which indicated poor compliance on the part of the Applicant. She noted no problem of compliance at F.I.T. She testified that the Applicant's problems stemmed from his anxiety about activities. Once he understood what was necessary and safe, he complied with all instructions.

The witness testified that it is usual for participants in the program to demonstrate some anxiety. The exercise program does cause pain, and participants are reluctant to do things that cause pain.

The witness was aware that the Applicant had been treated by way of passive modalities at the Kensington clinic. She agreed that, in the Applicant's case, passive modalities were not adequate and that the Applicant required an active program. She stressed, however, that the Applicant also required a program which addressed his anxiety about his pain, his emotional concerns, and fears about re-injuring himself.

The witness was cross-examined by counsel about the C.B.I. program. She indicated that the C.B.I. treatment plan did not contain some of the components that the Applicant required. However, she agreed that in November 1990 the Applicant might not have had the emotional problems that he presented with later on.

The witness was questioned about the steps that were taken by F.I.T. to obtain funding from the Insurer. She was not able to explain why the Applicant did not start the F.I.T. program earlier.

Insurer's Witness:

Dr. Yacoob Barmania gave evidence which he solemnly affirmed was true. He is a general practitioner, licensed to practice in the province of Ontario. He testified that he works for Boeing of Canada at DeHavilland, as an occupational health physician. He has worked there three days a week for 13 years.

As an occupational health physician, Dr. Barmania assesses the fitness for work of injured employees and attempts to return workers to their jobs, as suitable. The physician testified that, although he is not registered as a physiatrist, he does practice physical medicine. The physician identified his report, Exhibit 1-E, dated April 12, 1991. He testified that he saw the Applicant on a referral from the Insurer.

Dr. Barmania testified that he was provided with the reports of Dr. Ali, (Exhibit 1-C), Dr. Weinstock, (Exhibit 1-B), and Dr. Hamilton Hall, (Exhibit 1-D), from the Personal Injury Clinic (P.I.C.). He also saw the medical reports completed by the Applicant's family physician, dated September 19, 1990, October 24, 1990 and January 4, 1991 (Exhibit 1-A).

At the request of the Insurer, Dr. Barmania examined the Applicant on April 12, 1991. The examination lasted about one hour. The physician testified that this included a complete physical examination and assessment of the Applicant.

The physician confirmed that the Applicant complained of back pain. The Applicant also complained that he was depressed and "crazy".

The physician thought that the Applicant's back pain was not severe because the Applicant did not shift in his seat while giving his medical history. The physician confirmed that the Applicant stated that he could not stand comfortably for a long time, but he did not question the Applicant about what that meant.

The physician testified that he had not seen the report of Dr. Balakrishnan, but it was his view that the Applicant did not appear depressed. He testified that normally people show by their facial expressions and demeanour, and flat monotonous tone of voice that they are depressed. The physician testified that, although he has no special training in psychiatry, as a general practitioner he treats many cases of depression and anxiety. However, he confirmed that he did not do an intensive psychiatric examination of the Applicant.

The physician testified that, as part of his normal examination procedure, after taking the history and performing a musculoskeletal inspection, the patient is examined manually, to check for curvatures or other musculoskeletal abnormalities.

The physician testified he found that the Applicant suffered from some kyphosis, which is a curvature of the spine from back to front. The physician attributed this trait to the Applicant's pre-existing poor postural habits.

He found that the Applicant was tender and sensitive in the spinal area L 1-2 and 3-4. He attributed this tenderness to muscle strain most likely connected with the accident.

The physician also assessed the Applicant's range of movement. He found that the Applicant had an excellent range of movement, almost 100% normal. The physician testified that he found no signs of disability in the Applicant. He felt that the Applicant's examination was excellent considering his complaints.

The physician testified that he checked for neurological deficits and problems. He also checked for muscle power using a resistance test.

The physician testified that the Applicant did everything he was asked to in a normal fashion and behaved appropriately at all times. He was co-operative during the examination and performed all the tests correctly, without any complaint of pain. As a result of the examination, the physician felt that the Applicant was likely suffering a minimal complaint in the lumbar area. However, he concluded that the Applicant was not substantially disabled from his job as a taxicab driver.

The physician did not accept the Applicant's complaints that he could not sit, because he observed the Applicant sitting without difficulty for more than half an hour in his office.

The physician indicated that he was aware that taxicab drivers must lift luggage, assist disabled passengers, carry parcels and often climb stairs. They also must be able to sit for prolonged periods of time. However, the physician testified that he felt that the Applicant could do all these things.

The physician testified that he felt the Applicant was exaggerating his symptoms to a tremendous degree. The Applicant was trying to convince him that his pain was so severe that he could do nothing. The physician testified that he observed a discrepancy between what the Applicant said he could do and the results of the examination.

The physician felt that the Applicant was suffering from an adjustment disorder which was related to his ongoing reactive depression in response to his problems.

In cross-examination, the physician confirmed that he understood that the Applicant was receiving passive modality therapy and doing standard exercises. He testified that the current medical feeling is that individuals benefit by getting into an aggressive, active program early on. Recovery is enhanced and the disability period is shortened.

The physician testified that he was familiar with the treatment program at the C.B.I., which he considered excellent. He opined that the Applicant was not feeling better because he had not followed the prescribed treatment at the C.B.I.

Tricia Doyle of the Simcoe Erie Group gave viva voce evidence. She is a supervisor in the Insurer's O.M.P.P. benefits unit. In 1990, she was a claims examiner in the unit and had carriage of the Applicant's case.

The Applicant first contacted the Insurer on September 7, 1990. He explained that he was driving a cab when he was injured. He complained of injuries to his neck, mid-back, right shoulder. The Insurer received the Applicant's claim on September 25, 1990.

The Applicant's initial application for benefits was accompanied by a medical report from Dr. Ho, dated September 19, 1990 (Tab A of Exhibit 1). At that time, Dr. Ho reported that the Applicant would be off work for one more month. Another medical report from Dr. Ho, dated October 24, 1990, was received on October 29th, indicating that the Applicant was still not able to return to work.

The Insurer then arranged for an independent medical assessment at the Personal Injury Clinic. The witness spoke to the Applicant on November 20th and advised him that the program at the C.B.I. was being arranged, on the referral of Dr. Hamilton Hall. She explained to the Applicant that this was an aggressive therapy designed to get him back to work.

The witness had some information about the C.B.I. program. She had made a personal inspection of the C.B.I. facility in Hamilton and had a brochure that described the program in other places. The C.B.I. had a six-week program which an Insurer could purchase.

The program consisted of five days a week of physiotherapy treatments, including an hour and a half to two hours a day in the gym. Patients are assessed at the end of four weeks when they can either be discharged or re-evaluated. The witness testified that, at that point, the Insurer was looking for a physical activation program as recommended by the P.I.C. doctors. The Insurer had experienced more success with the C.B.I. program than with other facilities or institutions.

The witness testified that on January 10, 1991 the Applicant called her to advise that his doctor was referring him to a different physiotherapy program. On January 22, 1991, the witness got a call from the C.B.I. advising that the Applicant had been discharged for "not complying" with that program. On January 23rd, the Applicant called to advise that he was attending at the Kensington clinic in Bramalea, and wished to travel there by taxi.

The witness testified that on February 22nd she asked the Applicant why he was no longer going to the C.B.I. program. The Applicant said it hurt him to do the exercises.

The witness confirmed that the Insurer paid the C.B.I. account of $80.00 for the initial assessment of the Applicant on November 27, 1990, and treatment on November 29, 1990. The only other bill from the C.B.I. was dated December 19th and was a $30.00 invoice for physiotherapy treatment.

The witness testified that on March 19, 1991 the Applicant questioned her about the possibility of a membership in a gym. At that point, the witness arranged for another medical examination, with Dr. Barmania.

Benefits were paid to the Applicant until the Insurer received Dr. Barmania's report dated April 25, 1991. Benefits were paid up to and including April 26, 1991.

The witness confirmed that the Applicant's weekly income benefits were cut off, based on the medical assessment of Dr. Barmania and on the other medical reports which indicated that with an activation program he could return to work.

The witness testified that the Insurer continued to pay for the Applicant's travel expenses, for his physiotherapy treatments. The Insurer also paid for all the Applicant's prescriptions related to the motor vehicle accident, including a prescription for anti-depressant medication.

The Insurer was advised on June 25, 1991 that the Applicant's counsel had retained F.I.T. to do an assessment of the Applicant.

The witness gave evidence about the correspondence between the Insurer and F.I.T. She indicated that the Insurer required more detailed information about the methods and objectives of F.I.T. before it could approve funding for the Applicant. The witness thought that the Insurer would not fund a rehabilitation program unless it was specifically recommended by a physician.

The witness confirmed that the Insurer was not convinced that the F.I.T. program was medically necessary for the Applicant. The Insurer was concerned about the Applicant's tendency to prefer passive treatment models. The Insurer was also concerned about double funding and whether the Applicant was simultaneously having other treatments elsewhere.

The Insurer wanted specific details about the methods of the F.I.T. program and an ability to track the progress of the Applicant.

The witness testified that she received a letter from the Applicant's lawyer in June 1991. At that point, she was not quite sure who she should have been dealing with -- the F.I.T. program, the Applicant or the lawyer.

The witness indicated that in July the dispute about the Applicant's case was referred to mediation. She testified that up until the arbitration hearing no decision had been made about funding the F.I.T. program, as the Insurer wanted further information from the facility.

By November 1991, the Applicant had applied for arbitration of his dispute with the Insurer. In January 1992, the Applicant contacted the witness and advised her that he had been instructed to begin the F.I.T. program. The witness testified that at that point the Insurer had no rehabilitation caseworker involved with the Applicant.

The witness stated that she did not know whether the C.B.I. program would have worked for the Applicant if he had complied, or whether he needed a more comprehensive treatment.

Christopher Mark Szybbo, gave evidence on behalf of the Insurer. He testified that he is the clinic manager of the Mississauga location of the C.B.I. and has worked in that capacity since the opening of the facility in November 1991. Prior to that, he had worked at other branches of the C.B.I. in various capacities, starting from October 1990. Before that, he was a staff physiotherapist at the Credit Valley Hospital, and at Laurentian Hospital in Sudbury, for two years at each location.

The witness testified that he graduated in 1986 with a Bachelor of Science degree in physiotherapy. He took further courses out of Scarborough General Hospital. He is currently an assistant instructor in post-graduate physiotherapy.

The witness referred to his notes in giving his evidence. He testified that the Applicant was referred to the C.B.I. by his family physician, Dr. Ho. The witness assessed the Applicant on November 27, 1990. The assessment lasted one hour, and consisted of a mechanical and musculoskeletal evaluation of the Applicant.

The witness testified that he found that the Applicant suffered from a mechanical pattern of low back pain, together with evidence of adaptive soft tissue shortening. The witness explained that the Applicant's soft tissues had tightened and shortened as a result of the trauma and his subsequent inactivity. The witness noted that the Applicant had faulty postural habits. He was neurologically intact and there was no evidence of other visible pathology.

The witness noted no signs of depression in the Applicant. He stated that he would have recorded any overt sign of depression.

The witness testified that he recommended a program which progressively put the Applicant through postural exercises, and functional strengthening and conditioning.

The witness testified that all C.B.I. facilities are equipped with standard equipment which includes Norwegian sequence equipment (5 pieces), wall pulleys, functional conditioning apparatus, and free weights. Specific areas are designated for standing, sitting and tolerance. The witness testified that all the equipment was in place at the Brampton facility, in November 1990.

The witness testified that his standard practice is to show patients around the facility, and to explain to them what is going on and what they can expect.

The witness testified that the C.B.I. emphasized educating patients about their condition. Patients are reassured that they are suffering from a mechanical problem which is not serious.

The witness testified that he treated the Applicant in his own treatment office, which is furnished with a desk, a mobilization bed and a postural mirror. The treatment office is in the same area as the gym facilities. The gym was visible to someone who walked in the area, as it was next to the reception area.

He indicated that, with a complaint such as the Applicant's, it takes about 30 to 40 minutes to establish some mechanical pattern of the pain. Then, another 20 or 30 minutes are spent in discussing the situation with the patient.

The witness testified that at the initial session he gave the Applicant a lumbar roll and showed him three specific exercises to do -- two extension exercises and one flexion exercise. These exercises were part of the examination process and, as such, the Applicant had already done them. The witness explained to the Applicant how the exercises should be done.

The therapist testified that on November 27, 1991 he booked a week's worth of appointments for the Applicant, but the Applicant did not attend until November 29th. On November 29th, he stated that he did not like the flexion and extension exercises that had been prescribed for him because they were causing him discomfort. He was not doing the exercises at all.

The Applicant was not using the lumbar roll that he had been given. The therapist reviewed the postural exercises with the Applicant and also reviewed the educational points which had been previously raised, including why the exercises hurt and what the pain meant. The focus of the conversation was the difference between hurt and harm, and explaining that the exercises did not cause harm.

He testified that at the C.B.I. education is viewed as essential to compliance. Therapists warn patients that they may experience discomfort initially on doing exercises.

The therapist's notes indicate that the Applicant complained that the exercises caused pain, but no more pain than when he was not doing the exercises.

The witness testified that the Applicant would normally have progressed through a functional recovery program and data would have been collected about his employability requirements. After the assessment is completed, three to five consecutive appointments are booked with a physiotherapist. After that, the patient starts working in the gym program on consecutive days.

Initial sessions with the physiotherapist run 20 to 30 minutes. Gym sessions vary anywhere from one to four hours per day. Normally, patients should spend at least an hour a day in the gym.

The Applicant was booked for appointments after November 29, 1990, and was expected to attend regularly. However, he next presented himself on December 19th, 1990. He either cancelled or did not show up for his other appointments.

The witness testified that the next time he saw the Applicant was the mirror of the second time. Again, he was not complying with the exercises. At that point, the Applicant had not yet been referred to the gym program.

On December 19th, the therapist reviewed the same complaints with the Applicant as on November 29th. The Applicant's situation had not changed. He was still not doing the exercises prescribed. He was not getting the message about working through his pain. Therefore, the Applicant was referred back to Dr. Ho, his general practitioner.

The witness testified that he never heard back from Dr. Ho. The witness completed two reports about the Applicant, reproduced at Tabs F and G, in Exhibit 1.

The witness testified that it is possible for a patient not to make the connection between the difference between hurt and harm. It is reasonable to assume that patients understand and register the contents of the discussion: however, it appears that in this case the discussion "did not register" with the Applicant.

The witness testified that about 70% of people are employable after completing the CBI program.

Thirty per cent of individuals do not achieve an employable level. The witness testified that the C.B.I. does not keep statistics about clients discharged for non-compliance. He testified that most people do comply with the program, even though their pain level may not change.

The witness testified that the Insurer was billed for the sessions that the Applicant had attended: $180.00 for the initial evaluation and two subsequent sessions at $33.00 per session.

Submissions of Counsel:

Submissions for the Applicant:

Counsel for the Applicant submitted that the Applicant was involved in a serious collision, which had serious physical and emotional consequences for the Applicant.

Counsel submitted that the medical reports substantiate that the Applicant was unable to perform his essential tasks, either as a taxi driver or as an auto mechanic until February 12, 1992. The Applicant's physical problems were complicated by his emotional and psychological difficulties. Under the circumstances, the Applicant was not able to return to work until February 13, when he was discharged from the F.I.T. program and commenced employment.

Counsel submitted that the F.I.T. program was necessary for the Applicant's rehabilitation and, as such, the Insurer was obliged to pay for the cost of the program, under section 6(e) of the No-Fault Benefits Schedule. Counsel submitted that the cost of the F.I.T. program was reasonable. The program successfully met the needs of the Applicant and restored him to the workforce.

Counsel submitted that, if the Insurer had funded the F.I.T. program for the Applicant in a timely manner, the Applicant could have returned to work earlier. Counsel further submitted that the Insurer had an obligation to provide a speedy and comprehensive rehabilitation program to its insured, and that a penalty should be imposed on the Insurer for its failure to meet this obligation.

Submissions of Insurer:

Counsel for the Insurer submitted that the Applicant was able to perform his essential tasks as of April 26, 1991, according to the report of Dr. Barmania, and the other medical evidence available. Counsel submitted that after April 26, 1991, all the evidence suggests that the Applicant's complaints were entirely subjective in nature.

Counsel submitted that, in assessing these subjective complaints, regard must be had to the credibility of the Applicant. Counsel questioned the Applicant's credibility and submitted that much of the Applicant's testimony was inconsistent and misleading.

Finally, counsel submitted that, if the Applicant did continue to be disabled, this resulted from his own failure to take reasonable steps to mitigate the damage that occurred. The Applicant did not follow the active treatment program available to him at the C.B.I. It was not reasonable to incur the expense of the F.I.T. program ($4,700.00) when the Applicant could have achieved a similar result at the C.B.I. for $1,000.00.

Counsel cited the cases of Ippolito v. Janiak et al,(1981), 1981 CanLII 1677 (ON CA), 34 O.R.(2d) 151 and Tomizza et al v. Fraser et al, Tomizza v. State Farm Insurance Co., (1990), 1990 CanLII 6620 (ON HCJ), 71 O.R.(2d) 705, and submitted that the rules regarding mitigation in tort cases should also apply to benefits under the No-Fault Benefits Schedule. Counsel submitted that the Applicant might have been back at work one year earlier had he followed the recommended treatment at the C.B.I. Counsel cited the case of Fulton v. Manufacturers Life Insurance Company, [1990], I.L.R. & 1-262010,228, which addresses the question whether taking physiotherapy treatments can be viewed as part of the duty to mitigate.

Counsel submitted that it was not reasonable to expect the Insurer to pay for ongoing disability benefits as well as the F.I.T. bill, in the context of the Applicant's obligation to mitigate. Counsel submitted that the Insurer's liability for a physiotherapy program should be limited to $1,000.00, the cost of the C.B.I. program.

Finally, Counsel submitted that costs should follow the event in this hearing. Counsel submitted that section 282(11) of the Insurance Act is similar to the wording at section 141 of the Courts of Justice Act. Counsel submitted, therefore, that as a matter of public policy, arbitrators should exercise their discretion to award costs in the same way the discretion is executed by the courts. Counsel submitted that an unsuccessful applicant at arbitration should not be in a different position from an unsuccessful plaintiff in the court system.

Counsel for the Applicant made reply submissions with respect to the issue of mitigation. She argued that the Ippolito and Tomizza cases were distinguishable on their facts, and that the question of mitigation cannot arise in the absence of clear proof of what the applicant's chances of returning to work would be upon completion of the C.B.I. program.

With respect to the issue of costs, counsel submitted that the aim of the current dispute resolution system, under the Insurance Act, is to facilitate the provision of benefits to insured persons, and to assist individuals in having their concerns dealt with as expeditiously as possible. Counsel argued that in this context, to deny unsuccessful applicants their costs would be totally inappropriate.

Findings:

1. Weekly income benefits:

The Applicant claims entitlement to ongoing weekly income benefits under section 12 of the No-Fault Benefits Schedule. The Applicant's benefits were terminated effective April 27, 1991, following the Insurer's receipt of the medical report of Dr. Barmania (Exhibit 1-E).

Section 12(1) of the No-Fault Benefits Schedule provides as follows:

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly 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).

In this case, I must determine whether the Applicant continued to suffer a substantial inability to perform the essential tasks of his occupation or employment subsequent to April 26, 1991.

The Applicant was employed in various capacities in the year prior to the motor vehicle accident. He worked as an auto mechanic for a number of months, and then in sales. He was last employed as a taxicab driver, but the accident took place the day after he started driving cab.

The Applicant gave evidence as to the physical requirements of his job as a taxi driver. He testified that he could not do these tasks, because of the physical and psychological effects of the accident.

The Applicant presented no convincing medical evidence to indicate that he was substantially physically disabled from performing his essential tasks subsequent to April 26, 1991. His family physician, Dr. Ho, completed accident benefit medical forms regarding the Applicant's disability, but the most recent of those placed in evidence before me, was dated January 4, 1991. No other evidence from Dr. Ho was provided, apart from notes on prescription pads, which referred the Applicant to physiotherapy and for an assessment and treatment at F.I.T.

Exhibit 5, the F.I.T. report dated August 13, 1991, indicates that the Applicant presented with soft tissue disfunction of the thoracic and lumbar spine, and pain local to those areas. The report states that the Applicant has not returned to work as a result of these injuries, but the report does not state that these physical injuries have substantially disabled the Applicant from performing the essential tasks of his employment.

The weight of the expert evidence before me does not support the Applicant's claim of disability on the basis of his physical condition. Exhibit 1-E, Dr. Barmania's report to the Insurer dated April 12, 1991, provided the following opinion:

... I feel that this gentleman is not substantially disabled from returning to work as a cab driver....In my opinion, this gentleman is exaggerating his symptoms to a gross extent. His disability is self-perceived. He does not wish to follow the appropriate physiotherapy programmes that are recommended to him by the specialists. He is more resigned to accepting passive modalities of treatment and exercise programmes that are not supervised. His current physiotherapy sessions should be discontinued immediately as they only appear to be pampering this individual into a long term disability for non-medical reasons.

Once more, I must emphasize that I cannot consider that this gentleman is substantially disabled from returning to work as a cab driver, either from the physical or the psychological point of view.

The only other evidence pertaining to the severity of the Applicant's physical disabilities came from the Applicant himself. The Applicant, in his testimony, described his pain as "agonizing", and indicated that this pain prevented him from returning to work as a cab driver, or from working at any other occupation, prior to February 1992.

While I accept that the Applicant did genuinely experience pain as a result of his injuries from the motor vehicle accident, I am not persuaded that his account of the extent and effect of his pain is accurate.

It is clear that pain is a subjective experience, and that each individual's response to pain is unique. It is impossible for an arbitrator to accurately evaluate or adjudicate the personal experience of pain. As an adjudicator, I can only assess the Applicant's subjective reports of his pain in the context of a general assessment of the Applicant's reliability and credibility as a witness.

In this context, I note that the bulk of the expert evidence points to a discrepancy between the Applicant's subjective accounts of his disability, and his actual physical status.

Dr. Hamilton Hall, at Exhibit 1-D, referred to the Applicant's "disability behaviour" as early as November 13, 1990. He stated, "If this patient is allowed to persist in his present pattern of disability behaviour, we will witness the initiation of a prolonged disability problem". Exhibit 1-D, suggests that it was this disability behaviour, rather than an objective pathological condition, which required therapeutic attention.

Dr. Barmania, as indicated above, felt that the Applicant was "exaggerating his symptoms to a gross extent".

Finally, the evidence from the F.I.T. assessment suggests that the Applicant's subjective reporting of his pain and disability was exaggerated and out of proportion, having regard to the Applicant's objective physical status and limitations.

For example, the Applicant claimed that one of the factors which disabled him from resuming his occupation as a taxi driver was his inability to sit for any extended length of time. Yet none of the specialists who examined him confirmed that the Applicant had a problem with extended sitting. Dr. Barmania specifically found that the Applicant was able to sit without any obvious signs of discomfort for more than one-half hour.

Heather Sloman, the F.I.T. therapist, confirmed that although the Applicant initially complained that he was unable to sit comfortably for any extended period of time, the Applicant never had a problem sitting, throughout the course of his rehabilitation program at F.I.T.

I also note that the Applicant was less than candid or credible in his account of his attendance at the C.B.I.

In his evidence, the Applicant claimed that he attended at the C.B.I. for approximately three weeks in November and December 1990. He stated that he went to the C.B.I. four days a week during this period. He indicated that the C.B.I. facility which he attended had no equipment other than a bench, and he stated that the therapist who dealt with him failed to give him an adequate explanation of his pain, or the purposes of the exercises that were prescribed.

This evidence of the Applicant is completely at variance with the evidence of Christopher Szybbo, the C.B.I. therapist. Mr. Szybbo's evidence was that the Applicant attended at the C.B.I. on three occasions -- and not for three weeks. This evidence was supported with documentation in the form of invoices from the C.B.I. to the Insurer, billing the Insurer for the three attendances.

Mr. Szybbo also testified about the equipment at the C.B.I., and about the general educational approach taken at the C.B.I. Mr. Szybbo gave his evidence in a straightforward and reliable manner. He appeared candid and credible. Mr. Szybbo had no motive for misrepresenting the facts. I prefer his account of the Applicant's attendance at the C.B.I. to the Applicant's own account, and I find that the Applicant deliberately exaggerated or misrepresented the evidence about his attendance at the C.B.I.

I therefore conclude that the Applicant's testimony as to the disabling effects of his physical injuries subsequent to April 1991 cannot be accepted as reliable. I find that the Applicant was not physically disabled from performing his essential tasks subsequent to April 26, 1991.

However, the Applicant has not limited his claim to the physical effects of his injuries. The Applicant also claims he became profoundly depressed as a result of the accident, and accordingly, was also unable to return to work for that reason.

If an individual claims that he or she is prevented from returning to work by reason of a mental or psychological injury resulting from an accident, the individual is obliged to reliably document the extent and effect of the disability, and its causal connection to the accident. A simple assertion that the person is too depressed to work does not amount to proof.

I find that, in the present case, the Applicant has failed to establish that he was prevented from returning to work by reason of a psychological injury arising from the motor vehicle accident.

I do not find the expert evidence which the Applicant tendered in support of his position sufficiently persuasive. The Applicant submitted a letter from a psychiatrist, Dr. Pradeep Balakrishnan (Exhibit 2), dated November 12, 1991. However, Dr. Balakrishnan was not called to testify, and his evidence was not tested by cross-examination.

In Exhibit 2, Dr. Balakrishnan states that the Applicant "presented with symptoms of depression". He describes the Applicant's symptoms, and provides a diagnosis, as follows:

...He was sleeping poorly and eating poorly. He had aches and pains all the time. He had a poor social life. He broke up with his girlfriend. He was angry at himself all the time. He was irritable and had little energy and motivation. He was unable to work due to his accident. He had last worked in August of 1990 as a taxi driver when the accident occurred. Since then he describes himself as being in pain and agony all the time.

My diagnosis was that of an Adjustment Disorder with Depressed Mood (DSM III R)...."

Dr. Balakrishnan goes on to outline the medication he prescribed for the Applicant, and concludes that as of September 12, 1991 the Applicant was "in my opinion still unfit to work on account of both his physical symptoms and some depressive symptoms that were still present".

There is no evidence that Dr. Balakrishnan carried out a physical examination of the Applicant. He is a psychiatrist, and not a specialist in orthopaedics or physiatry. Therefore, I prefer the evidence of the physical medicine specialists regarding the Applicant's physical condition and his ability to work.

Moreover, I am not persuaded by his opinion that the Applicant was disabled from working because of "some depressive symptoms". No clear explanation of why and how these depressive symptoms disabled the Applicant from working was provided in Dr. Balakrishnan's letter.

The Applicant claimed that he was depressed after the accident, and was not eating or sleeping properly. However, I note that the Applicant's depression did not prevent him from participating in activities such as attending at regular physiotherapy sessions, or at F.I.T., or from travelling to England.

I am therefore not persuaded that the depression itself would have or should have disabled the Applicant from returning to work, had he wished to do so.

While I do not doubt that the Applicant was depressed as a consequence of the accident, I am not persuaded that the depression was so severe that it amounted to a substantially disabling psychological or mental injury.

Furthermore, the Applicant's evidence suggests that his depression did not result solely from the motor vehicle accident: it may equally have been connected to the break-up with his girlfriend at or about Christmas 1990.

Because I have found that the Applicant is not a credible witness as outlined above, I cannot rely on his testimony as proof of the severity or cause of his depressive condition.

Accordingly, I find that the Applicant is not entitled to ongoing weekly income benefits past April 1991, either on account of his physical, mental or psychological injuries.

2. Supplementary Medical and Rehabilitation Benefits:

The Applicant has claimed payment for the F.I.T. program under section 6 of the No-Fault Benefits Schedule. The relevant portions of section 6 provide as follows:

Section 6.

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

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

As I have indicated in a previous decision, Plows v. Jevco Insurance Company (Commission File Nos. A-000175, A-000588 dated January 16, 1992), the legislation sets out three criteria that must be met before an Insurer's liability to pay for a good or service under subparagraph 6(1) can be established. Those criteria are:

(1) it must be a reasonable expense resulting from the accident

(2) it must be required because of the accident

(3) a medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the Insurer so requires

In this case, I am satisfied that the F.I.T. program was necessary for the Applicant's treatment or rehabilitation. Although I have found that the Applicant was neither physically nor psychologically disabled from returning to work after April 1991, that fact does not disentitle him from receiving rehabilitation benefits under section 6 of the No-Fault Benefits Schedule.

I refer to the decision of arbitrator J. Palmer in the case of Surbir Singh Gaba v. Allstate Insurance Company (Commission File No. A-000624), which states, at page 16:

...I stress that the tests of eligibility under s. 6 and s. 12 of the Schedule are completely different. There may well be occasions when insured persons will be entitled to supplementary medical and rehabilitation benefits, although they are not substantially unable to perform the essential tasks of their employment ...

While I find that the Applicant was capable of returning to work without the intervention of F.I.T., that intervention was necessary to rehabilitate the Applicant to a condition where his mental and physical status more closely approximated his pre-accident condition.

The Applicant apparently lacked the motivation or confidence to return to work. I find that the counselling services provided by F.I.T., in conjunction with the physical therapy program, effectively restored the Applicant to a more productive level of functioning. The program provided enabled the Applicant to cope more appropriately with his residual pain. This, in turn, enhanced his confidence and helped dissipate his depressive symptoms.

The Insurer has argued that the cost of the F.I.T. program does not constitute a reasonable expense, because the Applicant was offered, more than a year earlier a similar, but much less expensive, program at the C.B.I., which he did not pursue. The Insurer's position is that, if the Applicant had diligently followed the C.B.I. program, he might have been successfully rehabilitated much earlier, and the expense for the F.I.T. program would not have been necessary.

Moreover, the Insurer has argued that the Applicant had an obligation to mitigate his losses, and so reduce the costs of benefits which would be required to be provided.

The evidence is that, had the Applicant persisted with and completed the C.B.I. program, he might have been able to return to work earlier. However, that possibility remains a matter of speculation. In the absence of proof that the Applicant would have been successfully rehabilitated, I cannot find that the doctrine of mitigation should apply in this case.

As I understand the facts, the Applicant did attend at the C.B.I. on the suggestion of the Insurer, but did not persist with that program because he found it too difficult or demanding.

He complained to his own family physician. Dr. Ho told the Applicant to quit the C.B.I. program, and indicated that he would find an alternative form of therapy for the Applicant. He subsequently referred the Applicant to the Kensington Sports Clinic, and the evidence is that the Applicant regularly attended at this facility for approximately six months. Dr. Ho also referred the Applicant to the psychiatrist, Dr. Balakrishnan, for counselling and therapy. The Applicant went to see Dr. Balakrishnan as required.

In summary, the evidence is that the Applicant consulted with his own family physician and followed the instructions of his doctor. In so doing, I am satisfied that he took the "reasonable steps" which he was required to take to mitigate his loss.

I agree with the view expressed by arbitrator Palmer in Gaba (supra), that "insurers and injured persons should work co-operatively to achieve a consensus as to the appropriate rehabilitation...that an injured person should pursue". However, an insurer has no right to insist that its own choice of product or therapy be adopted, in preference to a reasonable alternative proposed by the Applicant's medical advisors.

In the present case, I am satisfied that the F.I.T. program was reasonably required by the Applicant as a result of his injuries, and in light of the fact that one and a half years after the accident, he still had not recovered to an optimum degree of functioning.

I am also satisfied that the F.I.T. fees were reasonable, having regard to the nature of the services provided by F.I.T. and required by the Applicant. F.I.T. provided not only an active physical therapy program, but also personal support and counselling services which proved to be beneficial to the Applicant.

Accordingly, I find that the Insurer should pay for the F.I.T. program for the Applicant.

In light of the fact that the Applicant did not start the FIT program until January 1992, (after the application for arbitration was filed) I do not feel that it is appropriate, in the circumstances, to grant the Applicant's request for a special award penalizing the Insured for unreasonably withholding benefits.

3. Expenses:

The Insurer argued that in arbitration hearings, as in court cases, costs should follow the award, and should therefore only be granted when an applicant is successful. Counsel submitted that the expense provision in the No-fault Benefits Schedule is worded similarly to the provision for awarding costs in the Courts of Justice Act, R.S.O. 1990, Chapter C. 43, and that therefore a similar practice in awarding costs should be adopted.

I do not accept this proposition. The current arbitration system under the Insurance Act was specifically developed in order to provide an alternative forum for the resolution of disputes about no-fault benefits. Section 282(1), the expense provisions under the Insurance Act, are quite different to the provisions in the Courts of Justice Act, because an arbitrator may only award expenses to an insured person, and has no authority or jurisdiction to award expenses to an Insurer. It is clear, then, that the principles guiding an award of expenses under the Insurance Act cannot be analogous to the system established by the courts.

It was intended that arbitration be speedier, less formal, less expensive and more accessible to injured persons than the courts. One of the keys to accessibility, in my view, is to make the costs of litigation less onerous for an insured person, where that person has a reasonably arguable claim. For that reason, I adopt the comments of Senior Arbitrator Naylor in the McCormick case, as follows:

...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.

Accordingly, the Applicant is entitled to his expenses, as set out in Schedule 1 of the Dispute Resolution Practice Code.

Order:

1. The Applicant is not entitled to weekly income benefits from April 26, 1991, onwards.

2. The Insurer is required to pay for the rehabilitation program at the F.I.T. centre, which was required by the Applicant.

3. The Applicant is not entitled to a special award under Section 282(10) of the Insurance Act.

4. The Applicant is entitled to the expenses that he has incurred in respect of this arbitration hearing, in accordance with Schedule 1 of Regulation 275/90.

December 31, 1992

Frederika M. Rotter Senior Arbitrator

Date