Neutral Citation: 1993 ONICDRG 11

File No. A-001159

ONTARIO INSURANCE COMMISSION

BETWEEN:

EDGAR COWIE

Applicant

and

THE NON-MARINE UNDERWRITERS, MEMBERS OF LLOYD'S

Insurer

DECISION

The Applicant, Edgar Cowie, was injured in an automobile accident on February 14, 1991. He applied for and received Weekly Benefits (Non Income) payable pursuant to section 13 of the No-Fault Benefits Schedule, Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, Chapter 1.8.

Weekly benefits were paid until March 23, 1991, according to the Applicant's records, and until May 15, 1991, according to the Insurer's submissions. Weekly benefits were terminated by the Insurer on the basis that medical evidence, submitted by the Applicant, did not establish that the Applicant suffered substantial inability to perform the essential tasks in which he would normally engage.

The Applicant applied for mediation. The mediation was unsuccessful in respect of the issue of weekly benefits and the Applicant subsequently applied for the appointment of an arbitrator under section 282 of the Insurance Act.

Issues:

The issues in this hearing are:

1. Is the Applicant entitled to Weekly Benefits (Non Income) under section 13 of the No-Fault Benefits Schedule from March 24, 1991 to June 30, 1992?

2. If the Applicant is not entitled to weekly benefits, is he liable to repay benefits received under section 27 of the No-Fault Benefits Schedule?

3. Is the Applicant entitled to payment of prescription costs?

4. Is the Applicant entitled to payment of the expenses he has incurred in relation to the arbitration?

The Applicant also claims interest on any outstanding amounts owing.

Result:

1. The Applicant is entitled to receive Weekly Benefits (Non Income) for the period from March 24, 1991 to April 18, 1991. The Applicant is not entitled to receive weekly benefits from April 19, 1991 to June 30, 1992 or thereafter.

2. The Applicant is not required to repay to the Insurer weekly benefits under the provisions of section 27 of the No-Fault Benefits Schedule.

3. The Applicant is entitled to payment of prescription costs.

4. The Applicant is entitled to his expenses incurred in respect of this arbitration as prescribed in Ontario Regulation 664 (R.R.O. 1990).

Hearing:

The first day of the hearing was held in the offices of the Ontario Insurance Commission on September 9, 1992. The hearing was adjourned to permit the Applicant to retain counsel. The hearing concluded on December 17, 1992 before me, Janice Mackintosh, Arbitrator.

Present at the Hearing were:

Applicant:

Edgar Cowie

Applicant's Representative:

For December 17, 1992 proceedings only:

Shale Wagman, Barrister & Solicitor

Insurer's Representative:

For September 9 date of the proceedings:

Grant Connell, Branch Manager, Adjusters Canada

Insurer's Representative:

For December 17, 1992 date of the proceedings:

Berzoor K. Popatia, Barrister & Solicitor

The following gave oral evidence under solemn affirmation at the hearing:

Edgar Cowie:

Applicant

Michael Stephen:

Senior Investigator, King-Reed & Associates Ltd.

Nino Calabrese:

Investigator, King-Reed & Associates Ltd.

The parties filed 14 exhibits at the hearing, particulars of which are contained in Schedule 1 to this decision.

Evidence and Findings:

The relevant portion of section 13 of the No-Fault Benefits Schedule reads as follows:

(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

To be successful in his claim for weekly benefits under section 13, the Applicant must establish:

1. that he sustained physical, psychological or mental injury as the result of a motor vehicle accident;

2. that the injury results in a substantial inability;

3. to perform the essential tasks in which

4. the applicant would normally engage

5. during the time period claimed.

The Applicant is a 57 year old retired person. He resides in Mississauga with his wife of 25 years, his two children aged 25 and 23 years, his two grandchildren aged 4 and 5 years, and two long time friends, who rent space in an informal arrangement with the Applicant. The Applicant retired from selling real estate in 1990, due to the downturn in the economy.

Pre-accident activity:

Prior to the motor vehicle accident of February 14, 1991, the Applicant states he enjoyed good health and a pleasant lifestyle. He described his pre-accident activities as follows:

1. He swam approximately twice a week at the invitation of friends. He did not have a regular membership to a pool.

2. He went dancing with his wife approximately once a week.

3. He played with his children or grandchildren approximately once a week, including cards, darts and Nintendo games.

4. He helped out a little around the house, as his wife was employed. He did a little vacuuming, washed dishes occasionally, took out the garbage, and did some shopping. He did not usually do snow shovelling or lawn care around the house, as these tasks were generally done by one or the other of the two friends living with his family.

5. He took care of his personal hygiene including daily showers, shaving, brushing his teeth, dressing;

6. He had daily conjugal relations;

7. He drove his car.

On February 14, 1991, the Applicant was involved in a motor vehicle accident. The Applicant states that his car was rear-ended by a second car while both cars were travelling westbound. The Applicant states that after the accident he was confused. He believes he was unconscious for a brief period.

Dr. I. Sekely's Medical Reports:

On the day after the accident, the Applicant attended at the office of Dr. Istvan Sekely, family physician. The Applicant states he informed Dr. Sekely of neck and back pain with stiffness and loss of consciousness following the accident, as well as a problem with nightmares.

In a medical report dated April 8, 1992 (Exhibit 4), Dr. Sekely reports:

As a result of the impact, Mr. Cowie sustained a flexion/extension movement of his cervical spine. He did not hit his head or any other part of his body on the inside of the car. Immediately after the impact he was able to get up and walk around...

The Applicant disagrees with Dr. Sekely's description of the events immediately following the impact.

In the Form 4 Report dated March 13, 1991 (marked as Exhibit 1), Dr. Sekely notes only complaints of neck pain and tender paravertebral neck muscles.

Dr. Sekely's April 8, 1992 medical report (Exhibit 4) states:

The first time that I saw Mr. Cowie was on February 15, 1991 at which time he complained of neck pain and decreased range of motion of the cervical spine. Physical examination on February 15, 1991 revealed a fair degree of paravertebral cervical muscle spasm. The range of motion of the cervical spine was limited. The rest of the musculoskeletal and neurological examination was essentially normal.

Counsel for the Applicant conceded that none of the three medical notes or reports of Dr. Sekely, which cover the period February 15 to September 10, 1991 (filed by the Applicant and marked as Exhibits 1, 3 and 4), refer to a loss of consciousness following the accident, or complaints of nightmares.

On cross-examination, the Applicant asserted that he informed Dr. Sekely of his problems with nightmares throughout his treatment.

During his second day of evidence, the Applicant added that he suffered constant headaches and insomnia following the accident which he also reported to Dr. Sekely.

In the medical report dated April 8, 1992, Dr. Sekely notes that, on his final visit in September 1991, the Applicant complained of intermittent neck pain radiating to the occipital area. The medical reports do not otherwise refer to complaints of headaches or insomnia.

Dr. Sekely concludes his April 8, 1992 report as follows:

Mr. Cowie is a retired gentleman, hence was not actually off work following the accident. However, in my opinion Mr. Cowie was completely disabled from doing any type of physical activity for approximately six weeks following the accident of February 14, 1991 and partially disabled for another three weeks. However, his symptoms of neck pain persisted right through until his last visit of September 10, 1991 on an intermittent basis.

The Applicant disagrees with Doctor Sekely's assessment of the number, degree and duration of his symptoms following the accident. The Applicant states that his symptoms included headaches, insomnia and nightmares, and the disability continued much longer than reflected in Dr. Sekely's reports.

In argument, counsel for the Applicant suggested that the medical reports of Dr. Sekely omit reference to unconsciousness following the accident, constant headaches, nightmares, and insomnia, because the family doctor had referred these aspects of the Applicant's care to another doctor, Dr. Kitching. Counsel proposed that Dr. Sekely was relying upon Dr. Kitching to deal with these other complaints in his treatment of the Applicant, and therefore Dr. Sekely limited his observations and findings exclusively to the overt physical, rather than the psychological aspects of the Applicant's injuries.

I do not accept these submissions. The Applicant visited Dr. Sekely six times during the period February 15 to March 20, 1991, followed by a period of approximately six months, during which the Applicant did not see him. The Applicant's final visit to Dr. Sekely occurred on September 10, 1991. The Applicant's first visit to Dr. Kitching did not occur until April 27, 1992, approximately seven months after the Applicant's last visit to Dr. Sekely. These two doctors were not dividing the care of the Applicant between them in the way suggested by counsel. Dr. Sekely could not have been relying upon the participation of Dr. Kitching in the treatment of the Applicant, when preparing his medical reports, as suggested by Applicant's counsel. All of the medical reports prepared by Dr. Sekely pre-date the Applicant's first visit to Dr. Kitching.

Moreover, the Applicant chose not to file the clinical notes and records of Dr. Sekely nor to call upon him to give testimony at this hearing, in support of the Applicant's version of the facts.

Period from February 14, 1991 to September 10, 1991:

I accept Dr. Sekely's assessment of the Applicant's physical condition. I find that, during the period February 15, 1991 to September 10, 1991, the Applicant's chief complaints, as reflected by Dr. Sekely's medical reports, were of neck pain, tender paravertebral neck muscles and a decreased range of motion of the cervical spine. If the Applicant was disturbed by headaches, insomnia and nightmares during this period, these symptoms were not serious or frequent enough to be noted by Dr. Sekely in any of his reports.

To establish entitlement to weekly benefits under section 13(1) of the Schedule, the Applicant need not show a total inability to perform any activity, but rather a substantial inability to perform essential tasks. As Senior Arbitrator Naylor stated in Dana B. Levenson and The General Accident Assurance Company of Canada (O.I.C. File No. A-000260), dated February 18, 1992, at page 20:

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

In view of the fact that Dr. Sekely describes the Applicant as completely disabled from all activity for the first six weeks, I am prepared to accept that Dr. Sekely's description of him as partially disabled for another three weeks meets the less stringent test of substantial inability to perform essential tasks. I therefore find the Applicant substantially disabled for the period February 14, 1991 through to April 18, 1991, with continuing symptoms of pain until September 10, 1991.

Doctor Kitching's Medical Reports:

Counsel for the Applicant submitted that, while the Applicant's physical complaints may have resolved over time, his psychological complaints relating to nightmares and insomnia persisted until June 30, 1992, when Dr. Kitching reports "...a state of fitness had returned."

Both the Applicant and his counsel refer to Dr. Kitching as a psychologist. In his letter dated December 10, 1992 (Exhibit 12), Dr. Kitching describes his areas of practice as family and industrial medicine. The Applicant states that he was referred to Dr. Kitching by his family doctor, for the treatment of insomnia, nightmares and constant headaches.

In his report dated November 4, 1992 (Exhibit 9), Dr. Kitching states Mr. Cowie was referred to him for psychotherapeutic counselling for treatment of insomnia and nightmares which the Applicant attributed to the accident. None of the medical reports of Dr. Kitching, filed by the Applicant, refer to the complaint of headaches. If the Applicant was disturbed by headaches from April 27, 1992 and beyond, they were not serious or frequent enough to be noted by Dr. Kitching in his reports.

In the report dated November 4, 1992 (Exhibit 9), Dr. Kitching describes the first visit with the Applicant on April 27, 1992.

He (Mr. Cowie) described episodes of nocturnal disturbances occurring from "nightmares" of increasing frequency and malicious content. No doubt such symptoms are purely subjective and are nebulous to quantitate clinically. Otherwise, he appeared to be physically fit and emotionally stable person, both sincere and quite direct in his communicative skills.

Dr. Kitching saw the Applicant six times from April 27, 1992 to September 29, 1992. On the second visit, May 11, 1992, Dr. Kitching noted an "early resolution of the insomnia by the action of the prescribed medication". On the third visit, June 30 1992, Dr. Kitching noted "Essentially a state of fitness had returned." On the fifth visit, Dr. Kitching noted that the Applicant reports "he sleeps routinely, eats routinely, performs everyday activities routinely." On the final visit, on September, 29 1992, Dr. Kitching noted that Mr. Cowie "was willing to accept this date as the termination of all symptoms as related to the former motor vehicle accident." (emphasis added)

The Applicant disputes Dr. Kitching's assessment of his condition. The Applicant states that he still suffers from insomnia, even though he continues to take the prescribed medications. He does not agree that he has returned to performing his "routine activities". The Applicant does not accept the date of September 29, 1992 "as the termination of all symptoms as related to the former motor vehicle accident". On the contrary, the Applicant maintains that he cannot do certain routine activities as well as he did before the accident, or at all. He does not agree that a "state of fitness" has returned. The Applicant explains that he is not 100 per cent. He estimates that at present he has reached only 75 per cent of his former level of fitness and well- being.

On the second day of hearing, Applicant's counsel conceded that the period of disability claimed by the Applicant is February 14, 1991 through to June 30, 1992.

In his submissions, counsel for the Applicant noted Dr. Kitching's opinion that by June 30, 1992 "essentially a state of fitness had returned". Mr. Wagman also relied upon Dr. Kitching's statement contained in his letter dated December 10, 1992 (Exhibit 12), which reads:

As stated, Mr. Cowie was willing to consider himself fit for work by September 29, 1992. Clinically he could be considered fit for work by June 30, 1992. His stated symptoms prior to June 30, 1992 were subjective in content and his personal priorities directed his enthusiasm when to consider himself fit for work.

In reports dated August 7, 1992 (Exhibit 6,), November 4, 1992 (Exhibit 9), and December 10, 1992 (Exhibit 12), Dr. Kitching refers to the Applicant's return to work. The Applicant denies he informed Dr. Kitching he was employed or working.

It is not clear what tasks or activities Dr. Kitching considered when he opined that the Applicant could clinically be considered fit for work on June 30, 1992. It is difficult to place reliance upon Dr. Kitching's conclusion, when the Applicant himself casts doubt upon many of the doctor's underlying observations and assumptions.

Counsel for the Insurer questioned the credibility of the Applicant's testimony concerning the nature and extent of his psychological injuries and complaints. He submitted that the Applicant's psychological complaints were either too remote to be connected to the motor vehicle accident or a mere fabrication for the purpose of pecuniary gain. In support of this argument, counsel referred to the section of Dr. Kitching's report (Exhibit 9) which states:

At this time, it appears what is equally important to him [Mr. Cowie], is the completion of insurance papers. He even arrives with the suggested documentation of post-traumatic psychosis. At no time has he presented with any symptoms to justify this disability diagnosis. Only speculation would suggest the origin of the same.

I do not accept counsel for the Insurer's submission that the Applicant's complaints of nightmares were too remote to be connected to the accident, or that they were complete fabrications. I do find, however, that the Applicant's symptoms were not so disturbing or disabling as to prompt the Applicant to seek medical attention between September 10, 1991 and April 27, 1992.

Period from April 27 1992, to June 30 1992:

I must now consider the period between April 27, 1992 and June 30, 1992 to determine whether the Applicant's complaints of nightmares and insomnia were disabling to the extent set out in section 13 of the Schedule.

The operation of section 13 of the Schedule has been examined in several earlier decisions before this Commission. At page 31 of Lily Steele and Zurich Insurance Company, Commission File No. A-001024 dated December 3, 1992, Arbitrator Palmer states:

To be successful in this case, the insured person must provide evidence of the essential tasks in which she would normally engage. She must then convince me, on a balance of probabilities, that she suffers a substantial inability to perform those same essential tasks.

The word 'essential' has been defined in the Concise Oxford Dictionary Eighth Edition, (1990) as meaning:

1. absolutely necessary; indispensable.

2. fundamental, basic.

3. of or constituting the essence of a person or thing.

What does the legislation mean by "tasks?" The Concise Oxford Dictionary, Eighth Edition, provides the following definition:

"a piece of work to be done or undertaken"

The definition of the word "work" includes the following:

1. The application of mental or physical effort to a purpose; the use of energy.

2. a) a task to be undertaken...

3. a thing done or made by work; the result of an action; an achievement; a thing made.

"Tasks" must be distinguished from the more general meaning of the word "activities" which appears in the test under section 13(8) of the Schedule. The following definition of the word "activity" appears in The Concise Oxford Dictionary:

"1. a. the condition of being active or moving about.

b. the exertion of energy; vigourous action.

The Applicant stated that swimming, dancing and sexual relations were essential to him. He observed that his disturbed sleep caused him to be too tired to enjoy these activities. He urged me to apply a purely subjective and personal test, in determining his essential tasks.

In the decision Norman Downs and Allstate Insurance Company of Canada, Commission File No. A-000064, dated July 18, 1991, Senior Arbitrator Naylor recognized that the inquiry under section 13(1) is necessarily subjective to the extent that:

"It requires an individualized inquiry into the circumstances of the particular applicant, in order to identify the activities of daily living prior to the accident and compare them with the post-accident activities." (pages 22 and 23)

However, this subjective inquiry cannot ignore the objective parameters of the words used in the section. Not every activity which occupied the Applicant prior to the motor vehicle accident will meet the criteria of an "indispensable", "basic", "effort to a purpose" as defined. I therefore find the Applicant's essential tasks to consist of:

1. helping out around the house, a little vacuuming, a little washing of dishes, taking out the garbage, a little shopping.

2. taking care of his personal hygiene including daily showers, shaving, brushing his teeth, dressing.

3. driving his car.

This list of essential tasks does not include spontaneous, casual social activities described by the Applicant, such as swimming at the invitation of friends, dancing, and playing with his children and grandchildren. These activities undoubtedly contributed to the quality of the Applicant's life. However, they cannot be considered "essential tasks" within the ordinary meaning of the words. The No-Fault Benefits Schedule is not intended to replace general damages under the tort law system and does not compensate individuals for loss of enjoyment of life or a reduction in the general quality of life.

Although the Applicant disagrees with Dr. Kitching's assessment of the date when the Applicant returned to "a state of fitness", both appear to consider fitness as the complete elimination of symptoms and a return to the former level of activity.

However section 13 does not provide benefits pending a complete return to the former level of fitness. Rather, the Applicant must convince me, on a balance of probabilities, that he suffers a substantial inability to perform the essential tasks (identified earlier), during the period claimed, if he is to receive benefits.

The word 'substantial' has been defined in the Oxford Dictionary, eighth edition, (1990) as meaning:

"A real importance or value...of large size or amount."

At pages 22-23 of the Lily Steele decision, Arbitrator Palmer goes on to state:

"Accordingly, it is not some inability to perform key tasks, but a sizeable inability which is compensable.

The evidence of the Applicant concerning his essential tasks was:

1. He no longer helps out around the house doing light housekeeping. Dr. Sekely did note some continuing neck pain on September 10, 1991. The Applicant offered no other evidence or explanation for his failure to perform these tasks.

2. The Applicant does not dispute that the surveillance photographs and evidence of Mr. Michael Stephen of King-Reed & Associates Ltd., taken April 30, 1991 (Exhibit 13), show the Applicant carrying a small bag of garbage from his front door to the curb side; The Applicant conceded that he has begun doing a little shopping.

3. The Applicant couldn't shower for a few weeks after the accident as it was painful for him to turn his neck. He still doesn't shower every day, as it gives him headaches and neck pain. He now showers once or twice a week.

4. He was unable to brush his teeth for two weeks after the accident as it hurt his neck too much. During this period, he gargled instead of brushing. When questioned, the Applicant explained that, while gargling, he didn't tip his head back too far. The Applicant has been able to brush his teeth for some time.

5. Following the accident, the Applicant stopped shaving because it hurt his neck. He resumed shaving some time after the accident. The photographs marked as part of Exhibit 13, dated April 30, 1991, show the Applicant without a mustache or beard.

6. The Applicant continued to dress himself and to drive his car throughout the period following the car accident.

In summary, I find that, during the period February 14, 1991 to April 17, 1991, the Applicant was unable to carry out his essential tasks due to his neck injuries. During the period between April 19, 1991 to April 27, 1992, the Applicant was troubled by intermittent neck pain, headaches, insomnia and nightmares. These symptoms were not so disturbing or disabling to cause the Applicant to continue treatment with his family doctor (other than the single visit on September 10, 1991) or to follow up the referral to Dr. Kitching, until April 27, 1992. During the period April 27, 1992 to June 30, 1992, the Applicant had returned to performing the great majority of his essential tasks. Mr. Cowie's complaints, as they relate to his essential tasks, are of residual neck and headache pain. The headaches were neither serious nor disabling enough to be noted by either of the Applicant's treating physicians. Dr. Sekely's opinion was that, while the Applicant's intermittent neck pain continued beyond April 17, 1991, disability ceased on this date. Nightmares and insomnia may have prevented the Applicant from engaging in some of the social amusements and pleasurable activities of his life to his former level of enjoyment, however, these complaints did not significantly interfere with the Applicant's ability to carry out the essential tasks in which he would normally engage.

It is important to keep in mind the often repeated observation of Senior Arbitrator Naylor, found at page 23 of Downs v. Allstate (supra):

Pain and suffering which is experienced as a result of injuries sustained in an automobile accident are not, per se, compensable under Section 13, unless the experience of pain causes an insured to be substantially disabled, within the meaning of the section.

Repayment of benefits to the Insurer under section 27 of the Schedule:

Counsel for the Insurer sought repayment of Weekly Benefits (Non Income) from the Applicant for a period of four weeks. Counsel for the Insurer argued that weekly benefits had been paid by the Insurer for 12 weeks following the one week statutory waiting period (February 22, 1991 to May 16, 1991). The Insurer called no evidence and filed no exhibits in support of this submission. I heard no evidence establishing that benefits were paid to the Applicant through error or fraud.

The Applicant stated his records showed payments of weekly benefits received from the Insurer to March 23, 1991. The Applicant did not submit his records into evidence. The Applicant's evidence was not challenged by the Insurer.

On the evidence before me, the Insurer has not met the burden of proving the claim for repayment of weekly benefits under section 27 of the Schedule.

Supplementary Medical and Rehabilitation Benefits:

The Applicant stated he continues to take medication prescribed for him by Dr. Kitching, in particular, the drug Triazolam, which assists him to cope with insomnia and nightmares. The Applicant submitted a receipt for this prescription, dated 12/10/92 (Exhibit 10).

The Applicant is entitled to be compensated for all reasonable expenses for supplementary medical and rehabilitation services which are required as a result of the accident. The November 4, 1992 report of Dr. Kitching (Exhibit 9) notes an early resolution of the insomnia by the action of the medication. The Applicant disputes Dr. Kitching's statement that his insomnia was resolved and asserts that the medication continues to assist him to cope with nightmares and insomnia. The Insurer submitted no evidence to the contrary.

I therefore conclude that the Applicant is entitled to payment of prescription costs related to medications prescribed by Dr. Kitching for the treatment of nightmares and insomnia.

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 664 (R.R.O. 1990).

In the Ralph McCormick and Economical Mutual Insurance Company decision (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 will remain seized of this matter and either party may apply for assessment of the expenses before me.

Order:

1. The Applicant is entitled to receive weekly benefits for the period from March 24, 1991 to April 18, 1991. The Applicant is not entitled to receive weekly benefits from April 19, 1991 to June 30, 1992 or thereafter.

2. The Applicant is not required to repay to the Insurer weekly benefits, under the provisions of section 27 of the No-Fault Benefits Schedule.

3. The Applicant is entitled to payment of prescription costs of Triazolam from Dr. Kitching, including the prescription for Triazolam dated October 12, 1992 marked as Exhibit 10.

4. The Applicant is entitled to his expenses incurred in respect of this arbitration as prescribed under Ontario Regulation 664 (R.R.O. 1990).

March 9, 1993

Janice Mackintosh Arbitrator

Date

SCHEDULE 1

Exhibits:

Exhibit 1

Medical Report from Dr. I. Sekely, dated March 13, 1991

Exhibit 2

Letter from Adjusters Canada to Applicant, dated November 26, 1991

Exhibit 3

Medical Note from Dr. I. Sekely, dated September 10, 1991

Exhibit 4

Medical Report from Dr. I. Sekely, dated April 8, 1992

Exhibit 5

Medical Report from Dr. D. Kitching, dated May 11, 1992

Exhibit 6

Medical Report from Dr. D. Kitching, dated August 7, 1992

Exhibit 7

Letter from Adjusters Canada to Applicant, dated August 27, 1991

Exhibit 8

YMCA Day Pass, dated January 7, 1991

Exhibit 9

Report of Dr. D. Kitching, dated November 4, 1992

Exhibit 10

Prescription for Triazolam, dated 12-10-92

Exhibit 11

Police Report

Exhibit 12

Report of Dr. D. Kitching, dated December 10, 1992

Exhibit 13

Report of King-Reed & Associates Ltd., Investigation Services, dated April 30, 1991

Exhibit 14

Report of King-Reed & Associates Ltd., Investigation Services, dated August 27, 1992