Neutral Citation: 1993 ONICDRG 1

File No. A-000984

ONTARIO INSURANCE COMMISSION

BETWEEN:

MOHAMED K. KHAN

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Mohamed Khan, suffered injuries after being hit by a motor vehicle while crossing Wellesley Street in Toronto, on February 19, 1991. He was insured under a standard automobile owner's policy issued by the Insurer. He applied for accident benefits, payable under Regulation 273/90, (the "No-Fault Benefits Schedule"), enacted under the 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 Insurer paid the Applicant weekly income benefits until April 3, 1992, when the benefits were terminated, because the Insurer claimed that the Applicant no longer qualified to receive them. The Applicant was initially paid weekly income benefits of $326.00 per week. These benefits were subsequently increased to $465.50 per week, and then later reduced to $185.00 per week. In total, weekly income benefits of $20,323.67 were paid.

The Applicant claims that he should have been paid $600.00 per week, based on his earnings in the last four weeks of employment preceding the accident. The Applicant also claims supplementary medical and rehabilitation benefits for vocational rehabilitation, for a fitness program, and for all medical expenses recommended by his physician.

Following the denial of his claim for weekly income benefits, the Applicant applied for mediation. Mediation failed to resolve the dispute and the Applicant then applied for the appointment of an arbitrator to decide the issues.

The issues before me in the arbitration were as follows:

1. Is the Applicant entitled to weekly income benefits from April 3, 1992, onward, on the basis that he suffered substantial inability to perform the essential tasks of his employment, as set out in section 12 of the No-Fault Benefits Schedule?

2. What is the correct amount of weekly income benefits?

3. Is the Applicant entitled to payment under section 6 of the No-Fault Benefits Schedule for vocational rehabilitation training, for a fitness program, and for other medical expenses as recommended by his doctor?

The Applicant also claims interest and his expenses of this hearing.

Result:

1. The Applicant is not entitled to weekly income benefits from April 3, 1992, onward.

2. The correct amount of weekly income benefits is $10,579.20 ($185.60 per week, for 57 weeks).

3. The Insurer paid the Applicant $20,323.67. Therefore, an overpayment of $9,744.47 is owed by the Applicant to the Insurer.

4. The Insurer shall pay the rehabilitation and transportation expenses associated with the Applicant's attendance at the Premier Treatment Centre for four weeks.

5. The Applicant is entitled to his expenses incurred in respect to the arbitration.

Hearing:

A hearing was held at North York, Ontario, on December 7 and 8, 1992, before me, K. Julaine Palmer, Arbitrator.

Present at the hearing were:

Applicant:

Mohamed K. Khan

Applicant's Agent:

Mohamed Mobin

Insurer's Representatives:

Rudolph Lobl, Barrister & Solicitor

George Hamilton, Claims Manager

The following gave oral evidence under oath at the hearing:

1. Yash Bhardawaj

2. Frederick Mondesire

3. Caroline Morrison

4. Fred Langer

5. Mohamed Khan

6. Daniel Martin Edwards

7. George C. Hamilton

The parties filed a production book and twenty-seven other exhibits at the hearing.

Evidence:

Yash Bhardawaj:

Yash Bhardawaj has owned a roofing company since 1984. The Applicant worked for Yash Pal Roofing as a sub-contractor from June 9 to September 9, 1990, and earned $16,000.00. The Applicant's duties were to take away the old shingles, remove garbage, and to assist in the demolition of a house. The Applicant asked to be paid in cash and was paid in cash. Yash Bhardawaj testified that the Applicant prepared and signed a receipt each week when he was paid. Mr. Bhardawaj testified that he called the Applicant again for work, after September 8, 1990, but he did not come to work.

Frederick Mondesire:

Frederick Mondesire operates a business called Mondesire Services, General Contractor. He is involved in construction and demolition work and specializes in the removal of mechanical systems. Mr. Mondesire testified that this is very dangerous work. He takes apart large boilers, usually in the basements of high-rise buildings. This heavy manual labour includes lifting, carrying, and climbing. Mr. Mondesire testified that when the old boilers were cut apart, Mohamed Khan's job was to carry the sharp, heavy steel pieces from the building. His work required alertness, because of the danger with gas lines, oil lines, main hydro lines and sprinkler systems commonly found in these mechanical rooms.

Mr. Mondesire testified that the Applicant used to remove the scrap and would use a hoist on his truck or manually work together with a helper to lift the heaviest pieces of equipment onto his truck. He stated that the Applicant was very competent in his work.

Mr. Mondesire testified that the heaviest weight that one would have to lift, depending upon the material, would be 80 to 100 pounds. He testified that Mohamed Khan started working for him occasionally in 1988, when he established his business, and from 1990 "full-time". The Applicant worked on an "as-needed" basis, from contract to contract. In 1991, he earned $6,716.00.

Since the motor vehicle accident of February 18, 1991, the Applicant has come to the job site a few times. On October 24, 1991, he tried to do some work and Frederick Mondesire took him to Wellesley Hospital Emergency Department because of his pain.

Mr. Mondesire stressed that his job involves long hours, from 8 hours to 18 hours in a day, because most general contractors want the job done quickly. Frederick Mondesire paid Mohamed Khan weekly. He was paid on an hourly basis and, depending upon how fast he finished a job, he might receive a bonus. The Applicant received $100.00 for eight hours' work --therefore, approximately $12.50 per hour. If there was more than 8 hours worked in one day, Frederick Mondesire would often provide a bonus at the end of the contract. If there were significant amounts gained from the salvage, as well, Frederick Mondesire would pay the Applicant more. [The Applicant worked for Yash Pal Roofing mostly in the summer]. Frederick Mondesire testified that he got a receipt each time he paid Mohamed Khan. He was adamant that he received the receipt that day. Frederick Mondesire compiled his own records every two or three weeks, and not necessarily at one sitting. The Applicant was always paid in cash and Frederick Mondesire remembered that one of the things that Mohamed Khan mentioned to him was that he, Mohamed Khan, did not have a bank account. Frederick Mondesire stressed that the receipts represented the money he owed to the Applicant, not any specific number of hours worked.

Mr. Mondesire noted that sometimes the Applicant had a helper with him on a job. Most of the time, amounts paid to the Applicant would include his helper. Sometimes, however, Frederick Mondesire would pay his helper separately. For example, if it was for two or three hours, Frederick Mondesire would let it go and the Applicant would pay the helper. If it was more hours, then Frederick Mondesire would pay the helper directly.

Frederick Mondesire denied that all of his documents seemed to have been generated by the Applicant. He stated, to the contrary, that they were his own records.

Frederick Mondesire testified with respect to the document "Employer's Confirmation of Income" that his input was to sign his name, print his name, the word "owner" and "date".

With respect to Exhibit 9, a list of payments, Frederick Mondesire testified the handwriting was that of his girl friend/bookkeeper. Ultimately, Mr. Mondesire admitted that Exhibit 9 was in the Applicant's handwriting. This fact was acknowledged by the Applicant's agent.

The writing in Exhibit 6, another list of payments, was not his own writing, either. Frederick Mondesire testified, with respect to Exhibit 6, that his bookkeeper had prepared the list, from information the Applicant had given to him. Mr. Mondesire testified that he gave the receipts approximately eight months ago to the Applicant, and the receipts were returned to him approximately four months ago, although he had no precise recollection of the dates.

Caroline Morrison:

Caroline Morrison, Director of Clinical Programs at the F.I.T. Centre, testified. She explained the functional inter-disciplinary approach of the therapy, and characterized it as a broad ranging program that can deal with all aspects of a client's problems. The gym program provides strengthening, lifting, and individual physiotherapy components, as well as work-fitness programs geared to specific job-related tasks. The program also features a strong educational component which increases the understanding of clients about their pain. There is also individual and group counselling and stress management education.

Mrs. Morrison reviewed the conclusions of the F.I.T. therapists, that at the end of a program carried out 25 days between February 17 and April 2, 1992, the Applicant could lift a maximum weight of 43 lbs. and could carry 34 lbs. for 55 meters. This assessment was carried out during a work fitness session which would last from three-quarters to one and a half hours. The witness reiterated the conclusion of the F.I.T. staff, that the Applicant could meet the general demands of working full-time, provided it was within his functional abilities. She stated that the therapists concluded he could not have performed his roofing job as outlined on the Job Demands Analysis, where 60 to 70 lbs. of regular lifting ability was required.

Dr. Fred Langer:

Dr. Fred Langer, Orthopaedic Surgeon, testified as an expert witness. He examined the Applicant on October 22, 1992, at the request of the Insurer. Dr. Langer's curriculum vitae was filed as an exhibit. He is an Associate Professor of Surgery at the University of Toronto, and has been a consultant to the Workers' Compensation Board, Extremity Clinic.

Dr. Langer's opinion is that the Applicant is not disabled and could be working. He testified the Applicant told him that he was a roofer, not that he removed scrap metal from buildings, nor that he occasionally had a helper. Dr. Langer stated that the Applicant's complaints were consistent with having suffered a soft-tissue injury on February 19, 1991. However, his examination revealed no significant physical findings; and therefore, in his opinion, the Applicant has no significant physical disability.

In Dr. Langer's view, the Applicant did not suffer a fracture of L1 in the motor vehicle accident. The x-rays of the Applicant's spine revealed either an old injury or a natural abnormality of L1 in the Applicant's body. He stated that the Applicant has degenerative changes in his spine, and the condition which he now complains of could be as a result of the normal progression of degenerative disc disease, entirely unrelated to the motor vehicle accident.

Dr. Langer stated, in his opinion, that the slight wedging of L1 could be a developmental phenomena which occurred to the Applicant during a period of growth. He indicated that there was a great deal of degenerative disc disease visible around that wedging, which indicated to him that the vertebral abnormality pre-dated the motor vehicle accident by decades.

Dr. Langer expressed the opinion that the injury the Applicant received in the motor vehicle accident could have caused the Applicant's asymptomatic degenerative disc disease to become symptomatic. In his opinion, there would have been a period of acute inflammation following the blow, then gradual healing. By 1992, that healing would have taken place, so the underlying degenerative disc disease would not be a factor. He stated the Applicant may have become more aware of minor back problems because of a heightened perception following the accident.

Mohamed K. Khan:

The Applicant testified that he was injured in a motor vehicle accident on February 19, 1991. He stated that his spine is now a problem, and that he has not worked since the motor vehicle accident. In 1991, he testified he worked with Frederick Mondesire all the time. He earned around $6,000.00 in 1991 at that job. Frederick Mondesire worked at cutting up boilers. The Applicant stated that he took them out. He would move the plates with a dolly and lift them up. Sometimes he alone lifted weights of 100 to 150 pounds.

In his roofing job, he would remove the old shingles, get the new shingles and put them on the roof, carrying them up the ladder one bundle at a time. Some bundles would weigh between 60 and 70-lbs.

The Applicant stated that he is now attending a rehabilitation program at Premier Health Care Centre, four days a week. He receives heat and massage treatments, and performs exercises. He was referred to that program by Dr. Lee.

The Applicant testified that an employee of Rehabilitation Management Inc. contacted him after he finished the F.I.T. program, but since the insurance company doesn't want to pay for him to go there, he didn't.

The Applicant stated he completed Standard 4 in Guyana. He explained that is 5 or 6 years of school, to approximately age 12. A friend, Ayube Baksh, helped him complete his application for accident benefits. The Applicant stated that he was happy with his job and that he had been in that business for a long time. Now, he cannot operate a truck with a clutch, or even his son's car with a clutch. He must stop such driving after thirty minutes to stretch his back.

The Applicant stated that he put forth his maximum effort in the F.I.T. program. He tried to return to work on a number of occasions, and on the second occasion he had to go to Emergency at Wellesley Hospital. On other occasions, he has only been able to work three or four hours.

The Applicant testified that, after examination, Dr. Conn told him "you're not glass --you should be able to go back to work". He owned a truck, but he sold it for $400.00 or $500.00. He hasn't tried to return to work again because of a lot of pain in his back. The Applicant testified that because he is Muslim he does not believe in receiving interest from the bank. He has a bank chequing account only to pay his rent, Visa, etc. The Applicant denied that he ever told Fred Mondesire that he didn't have a bank account.

The Applicant confirmed that he reported his income to Revenue Canada in 1988 and 1989, but not in 1990 because he had to pay money. He reported in 1991 because he was expecting a refund.

The Applicant was asked about his Application for Accident Benefits, where he signed a statement as to his income from employment. He admitted that the information recorded there was not truthful.

He suggested that it could be at that time he was drinking, but he could not remember.

Daniel Martin Edwards:

Daniel Martin Edwards, Chartered Accountant, of the Business Investigations Group, Coopers & Lybrand, testified as an expert witness. Mr. Edwards gave evidence about the credibility of the records which he had reviewed relating to the Applicant's income. He concluded that the Applicant was entitled to claim a gross weekly income of no more than $232.00 per week.

Mr. Edwards' report was filed as an exhibit at the hearing. Some of the points which he considered significant with respect to his evaluation were as follows:

1. The Applicant's 1990 income tax return was signed October 27, 1992 --18 months after the due date, but only days before it was provided as "evidence" in connection with this claim. The return shows a balance owing of $6,125.00 and carries the notation "to be forwarded at a later date". Mr. Edwards questioned why the Applicant would prepare a tax return eighteen months after the due date, when he was unable to pay the tax owing. In addition, there is no evidence that this tax return has actually been filed. Mr. Edwards concluded that this document was not a reliable confirmation of the numbers contained in it.

2. The information on the Application for Benefits, completed March 11, 1991, is inconsistent with the Statement of Revenues allegedly received from Mondesire Services. According to the Application for Benefits, Week 4 was the Applicant's best week during the last four weeks prior to the accident, but according to the Schedule of Revenues, Week 2 was the best week. In Mr. Edwards' view, the numbers on the application cannot be correlated with the numbers on the schedule from Mondesire Services.

3. The documentation provided makes it impossible to determine the dates when the Applicant worked for Mondesire Services during 1990.

4. For every week during 1990, except the week September 3 to 8, the Applicant received revenue from either Mondesire Services or Yash Pal Roofing, but not both. During the week September 3 to 8, the Applicant received revenue from both Mondesire Services and from Yash Pal Roofing. Mr. Edwards concluded that this was a clerical error made by the Applicant, in fabricating the list of revenues received.

5. Mr. Edwards referred to vehicles with license numbers MZ1-831 and VJ7-767. Various scenarios were outlined in his report. At the hearing, I received evidence which satisfied me that these two numbers related to the same vehicle, which was owned by the Applicant throughout.

6. Mr. Edwards commented with respect to inconsistencies and dates on Visa slips from various suppliers.

7. Mr. Edwards noted that the Applicant presented fuel receipts from January and early February 1991. Some of the receipts from Olde York Service were for cash purchases, but they were receipted on credit card slips. Each receipt contained a number and the sequence of receipt numbers is different from the sequence of receipt dates. In addition, he observed on two of these receipts, evidence that the license plate number written on another receipt has impressed through the carbon of the receipt in question. In Mr. Edwards' expert opinion, this suggested that the receipts from Olde York Service were all made out at the same time, presumably after the accident.

Mr. Edwards also performed a number of calculations which led him to conclude that the correct amount of weekly income benefit payable to the Applicant could be $215.82, before considering post-accident income. That calculation was based on a number of assumptions made in a rather arbitrary fashion. The calculations performed by Mr. Edwards did not change his recommendation that the Applicant's average gross weekly income should be the minimum of $232.00 per week, resulting in a weekly income benefit of $185.60 per week, before any deductions for post-accident income.

Credibility of Records:

Mr. Edwards made several observations about the Applicant's business records, which were not included in his report. He noted that the revenues from Mondesire and from Yash Pal added to even thousands of dollars. He observed that, mathematically, there was only a very small chance of taking thirty numbers and having them add up to exactly $22,000.00.

He noted with respect to the gas receipts that the date was written on receipts where the date would normally be imprinted.

Mr. Edwards noted that the motivation for preparing the 1991 Income Tax Return seemed to be to corroborate the records which had previously been provided to the Insurer. He noted that the typed page of "Expenses" listed the four weeks as being January 21, 1991 to February 18, 1991, whereas in the Income Tax Return the same Expenses were listed for seven weeks, from January 1, 1991 to February 18, 1991. Mr. Edwards noted that some of the gas receipts are dated prior to January 21, 1991. Mr. Edwards referred to Mr. Mobin's letter of February 25, 1992, noting the Expenses were for the period January 21, 1991 to February 18, 1991. He indicated that, in his opinion, this type of mistake can be made when documents are generated under questionable circumstances.

With respect to the receipts, Mr. Edwards testified "these receipts are far too clean, neat and legible to have been made out under the circumstances described (by the Applicant)". There are no dirty thumb prints, no coffee stains, etc. on the receipts. They do not appear to have been made out at a work site. For some reason, these receipts have been numbered; however, these were Mr. Mondesire's receipts for amounts paid in cash. In every case, the date on the receipt is the last day of the period worked, except for one, so there was not one occasion when Mr. Khan was not there on the last day of the work period, although in Mr. Edwards' view, it is "quite unlikely" that he always returned to the job site.

With respect to receipt number 2004, dated February 24, 1990, it is noted that the period worked is February 19 to February 24, 1991. Mr. Edwards testified that it is highly improbable that one would mistakenly write the next year's date in the month of February 1990. This provides more assurance to him that this was a blunder when the receipt was fabricated after the accident.

The last receipt, dated February 18, 1991, is dated the very day of the accident. Mr. Edwards questioned why this receipt for the last week's work would not have been dated several days after the accident --Mr. Khan did not expect to be hit on his way home on February 18, 1991. Mr. Edwards testified that the only possible explanation is a fabrication with respect to the weekly income claim.

Another observation resulted from Exhibit 6, Frederick Mondesire's notes of amounts earned by Mohamed Khan. The last receipt before the break is dated May 26, 1990. The first period after the summer break is September 3rd to 8th. When compared with the Yash Pal Roofing receipts, one notes that a week is missing between May 26 and June 4, and that the week of September 3 to 8 is duplicated. If one presumes that the person who crafted Exhibit 6 was provided with single dates for the receipts, and that person erred and took the date as the first day of the period worked instead of the last day of the period worked, then this would explain why there is subsequent confusion and a missing week at the end of May, and a duplicate week beginning September 4.

When one looks at Exhibit 9, the handwritten list crafted by Mondesire covering all of the payments from February 5, 1990 to May 26, 1990, it is identical to Exhibit 14, except for one item. In Exhibit 14, the week of September 3 to September 8, 1990 has been added. To Mr. Edwards, this was confirmation that there had subsequently been determined to be a problem relating to that week. It would appear that Exhibit 9 was the first list, but the problem with it was that it already had the words "Total" on it at the bottom.

Mr. Edwards made several comments regarding the deposits to the bank account following the accident. In October of 1991, $50.00 was paid by Frederick Mondesire to Mr. Khan following the accident. There is no notation for the first day worked following the accident. He queried how the Insurer could deal with post-accident income when it believed it existed, but was unable to estimate it.

He asked if it was reasonable that the onus still be on the Insurer to establish an amount of post-accident income or, in cases like this, should the onus shift to the Applicant?

George C. Hamilton:

George C. Hamilton, Claims Manager, Operations, Pilot Insurance Company, testified as to the manner in which the accident benefits weekly income payments were calculated. Five letters from Pilot Insurance were filed, with respect to the adjusting of this claim.

Submissions:

The Applicant's agent submitted that the Applicant is substantially disabled until this time. The Applicant's representative referred to the conclusions of the F.I.T. Report of April 1992, that the Applicant could perform a job only with "light to medium physical demands", and cannot operate a truck with a clutch. The Applicant's representative submitted that the Applicant has been referred to Rehabilitation Management by F.I.T. He reviewed Dr. Vansen Lee's report, which indicates that it is doubtful the Applicant can return to work.

The Applicant's representative submitted that the Applicant's initial application was incorrectly completed and, in error, did not indicate his earnings for the last four weeks before the accident. The Applicant's representative submitted that in those weeks the Applicant had gross revenues of $6,656.00 and expenses of $544.00. He is, thus, entitled to $600.00 per week in weekly income benefits.

The Insurer's representative submitted that there were two issues in this case: the on-going disability and the amount to be paid, if any. He submitted that credibility is the sole important factor here. He submitted that most of the documents have been authored by the Applicant and that information which is erroneous, misguided, or intentionally misdated has been provided. The 1991 Return and Notice of Assessment are of no significance and no probative value, because the Applicant was in no jeopardy to report only $6,000.00 in income. The 1990 Income Tax Return has been created only to show a trail, or to record income supposedly earned. No Notice of Assessment for 1990 has been submitted. It is not even clear whether this return has been filed.

The Insurer's representative submitted that Mr. Edwards had reviewed all of the documents received by Pilot Insurance and made very clear comments. The onus is on the Applicant to prove his income on a balance of probabilities, he submitted. He submitted that all of the documentation provided by the Applicant have serious flaws. The appearance of the receipts is totally inconsistent with the manner in which these receipts were supposedly produced.

We do not really know the extent of the Applicant's work for Frederick Mondesire --all of the records are those of the Applicant or re-constructed from the receipts. With respect to Yash Pal Roofing, as well, there is no independent source to verify the earnings.

The Application for Benefits is in clear and simple language; the Applicant submitted information which is simply not accurate.

With respect to the medical evidence, once again credibility is an issue because it is a soft-tissue injury, he submitted. Dr. Langer and three other orthopaedic surgeons have conducted examinations of the Applicant, and only Dr. Mayer indicates that the Applicant suffered a fracture of a lumbar vertebrae.

With respect to rehabilitation, the Applicant is now going to Premier, a treatment centre like F.I.T. There is no evidence to continue benefits for treatment or rehabilitation.

The Insurer submitted that in the event that the Insurer is successful, there should be no costs awarded to the Applicant.

Findings:

1. Amount of Weekly Income Benefit:

I will deal with the issue of the amount of weekly benefit first.

The Applicant is a 52 year old man, who suffered injury after being hit by a motor vehicle while a pedestrian. Prior to the accident, his work was as a sub-contractor, performing heavy, manual labour for two contractors --one a roofing contractor and the other a demolition and mechanical contractor.

The Applicant was paid for his work largely on a cash basis. The reasons why the Applicant's pay was received in cash are not relevant. After the accident, however, it became necessary to provide evidence of his income and the Applicant produced a series of receipts and other documents. The authenticity of those documents has been questioned in this hearing.

The Applicant insisted in his testimony that the receipts which he produced were prepared on a weekly basis on the very day which he was paid. Frederick Mondesire, one of the Applicant's general contractors, testified at the hearing and produced a handwritten list of payments. Ultimately, after much ado about the mysterious author of the document, it was revealed that the document was in the handwriting of the Applicant, himself, and that it was he who had provided the information to the contractor.

The Insurer hired a forensic accountant to examine the records provided by the Applicant. This expert, Mr. Edwards, produced a lengthy report and testified at the hearing. His testimony cast grave doubts on the veracity of the records which had been submitted.

I have sympathy for small contractors who work hard at manual jobs to earn their living. It is difficult at the same time to be disciplined and to maintain accurate accounts when you are trying to make a living in this way. However, to me, the evidence is overwhelming that the financial records in this case were constructed after the accident.

I am particularly concerned with the receipts which were produced by the Applicant. The Applicant insisted that these had been prepared on a weekly basis, however, the receipts are as pristine as if they had just recently been torn from a receipt book. In the words of Mr. Edwards, the expert, "these receipts are far too clean, neat, and legible to have been made out under the circumstances described (by the Applicant)". Receipt number 2004 is dated February 24, 1990, but it is noted that the period worked was from February 19 to February 24, 1991. When combined with these other factors, it is incredible to believe that the Applicant would have made the mistake of writing the next year's date as being the week worked, during the month of February 1990. I have similar concerns with the evidence relating to business expenses for the four weeks preceding the accident.

At the hearing, the Applicant was invited to admit that the receipts and other records had been prepared after the accident. He refused to do so. He was adamant that the records were produced as stated. Had the Applicant admitted that the records had been produced after the accident, then questions would have been asked with respect to the source of the figures which were used as gross revenues. It might then have been possible to match the figures with some other source documentation, perhaps from the general contractors. However, no corroborating evidence was presented which was worthy of belief, by either general contractor.

I believe that the amounts of earnings which have been set out by the Applicant in his documents could possibly be accurate. However, the Applicant's evidence as to the manner in which the documents were produced is totally unworthy of belief. I find I cannot rely on the figures which he has submitted to me.

Accordingly, since I cannot give any weight to the Applicant's figures of gross revenue or expenses, he has failed to meet the onus of proof of a gross weekly income greater than $232.00, so must be accorded the minimum amount of benefits of $185.60, as provided under Section 12(7) of the No-Fault Benefits Schedule.

I now turn to the question of the Applicant's credibility with respect to his evidence of disability following the accident.

2. Eligibility for Weekly Income Benefits after April 3, 1992:

The Applicant is now 52 years old. He was injured in a motor vehicle accident on February 19, 1991. He is now faced with the prospect of returning to heavy, manual labour jobs such as those he performed prior to the accident. In order to carry out that work, the Applicant will need to regain a very good level of fitness. The experts who have examined the Applicant have stressed the need for a vigorous exercise program. None of the experts, apart from Dr. J.A. Mayer, has concluded that the Applicant suffered any more than a contusion and strain to his back.

In my view, no compression fracture of L1 resulted from the accident. I accept the opinion expressed by Dr. Langer that the L1 abnormality was caused by an accident which pre-dates the motor vehicle accident or was a developmental anomaly. Dr. Indech comes to the identical conclusion in his report of January 17, 1992.

After a careful review of all the evidence, including 10 medical reports, I conclude that from April 3, 1992 the Applicant has been able to substantially perform the essential tasks of his occupation as a sub-contractor in the roofing business and in the demolition business. The report of F.I.T. confirms the Applicant's ability to work at the conclusion of its program on April 2, 1992. I agree that certain aspects of the Applicant's business would be likely to cause him difficulty, for example, carrying the heaviest of loads and operating the truck, which he used to own.

In my view, the Applicant suffered at April 2, 1992 from some inability to perform some of his essential tasks, but the level of inability is not substantial. I find that the Applicant has exaggerated his testimony and declined to mention factors which might be thought to work against his favour, such as the fact that from time to time he had a helper and did not always work alone.

I reiterate what has been stated previously in other arbitration decisions: the pain and suffering which are experienced as a result of injuries sustained in an automobile accident are not, per se, compensable, unless the experience of pain leaves the person substantially unable to perform his essential tasks.

3. Supplementary Medical and Rehabilitation Benefits:

With respect to the Applicant's claim for payment under section 6 of the No-Fault Benefits Schedule for vocational rehabilitation training, for a fitness program, and for other medical expenses as authorized by his doctor, there was very little evidence put before me at the hearing with respect to these issues. I received a form report from Premier Treatment Centre dated October 23, 1992, which was entered as an exhibit. The chiropractor who performed the initial assessment of the Applicant recommended a program of rehabilitation exercises to increase the Applicant's range of movement, toning and strengthening; psychological assessment and therapy; and massage therapy for muscle tension and spasm. The program was to be re-evaluated in four weeks, which should have occurred just prior to the hearing.

Dr. Vansen Lee, the Applicant's family doctor, referred him to this program. In his report of November 17, 1992, Dr. Lee noted that the Applicant reported during his visit of November 13, 1992 that he was attending the rehabilitation program. He also noted: "He needs some support especially social-economically and psychologically on his course of rehabilitation." Dr. Lee makes no other comments with respect to the regular exercise in a fitness facility initially recommended by F.I.T. in April 1992, or with respect to any other therapies which he considers necessary for the Applicant's treatment and rehabilitation.

In this hearing, there was no issue made of the reasonableness of the cost of the program at the Premier Treatment Centre, itself, or in comparison with other such programs. The insurer took the position that the program was unnecessary for the Applicant's treatment or rehabilitation. At the time of the hearing, the Applicant was attending for rehabilitation four days each week. The Insurer had paid two accounts of the Premier Treatment Centre: one for $538.50 and one for $458.50. No details of this billing were provided.

The test to determine whether this rehabilitation program should be paid is set out in section 6 of the No-Fault Benefits Schedule. That section requires the Insurer to pay all reasonable expenses for rehabilitation, life-skills training, and occupational counselling and training, where a person has sustained physical, psychological or mental injury as a result of an accident. Before making a payment, under section 6(1), the insurer may require the applicant 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". An extended period of time for receiving such supplementary medical and rehabilitation benefits is contemplated by the No-Fault Benefits Schedule, for up to ten years in the case of an adult.

It is implicit in the report of Dr. Lee that he supports the attendance of the Applicant in the Premier Treatment Centre program, for at least the initial four-week period. I agree that the attendance of the Applicant at this program, for that period, should be paid by the Insurer under section 6(1)(c) of the No-Fault Benefits Schedule. I will remain seized of this matter, in the event the parties are unable to agree with respect to any such ongoing program.

In so finding, I stress that the tests of eligibility under section 6 and section 12 of the No-Fault Benefits 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, and thereby qualify for weekly income benefits.

Expenses:

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

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

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

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

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

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

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

Order:

1. The Applicant is not entitled to weekly income benefits from April 3, 1992, onward.

2. The correct amount of weekly income benefits is $10,579.20 ($185.60 per week, for 57 weeks).

3. The Insurer paid the Applicant $20,323.67. Therefore, an overpayment of $9,744.47 is owed by the Applicant to the Insurer.

4. The Insurer shall pay the rehabilitation and transportation expenses associated with the Applicant's attendance at the Premier Treatment Centre for four weeks.

5. The Applicant is entitled to his expenses incurred in respect to the arbitration.

January 27, 1993

K. Julaine Palmer

Arbitrator

Date