Neutral Citation: 1993 ONICDRG 20

File No. A-001030

ONTARIO INSURANCE COMMISSION

BETWEEN:

ALLAN WELLS

Applicant

and

AXA INSURANCE (CANADA)

Insurer

DECISION

Issues:

The Applicant, Allan Wells, was involved in a motor vehicle accident on September 30, 1990. He applied for and received accident benefits from the Insurer, payable under Ontario Regulation 672 (R.R.O. 1990, 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 disability benefits until November 2, 1991, when they were terminated on the basis that he no longer qualified to receive them. Mediation was unsuccessful in resolving the dispute between the Applicant and the Insurer, and the Applicant subsequently applied for this arbitration under the Insurance Act.

The issues in this hearing were:

1. Were weekly income benefits to the Applicant properly terminated on November 2, 1991 on the basis that as of that date he no longer suffered substantial inability to perform the essential tasks of his employment, as a result of injuries received in the motor vehicle accident?

2. Does the Applicant's claim for Weekly Income Benefits properly fall under section 12 (Income Benefits) or section 13 (Benefit if no Income) of the No-Fault Benefits Schedule?

3. Is there any repayment owing by the Applicant to the Insurer?

4. Should any of the payments which the Applicant receives from other sources be deducted from his weekly income benefits?

The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.

Result:

1. The Applicant is not entitled to any weekly income benefits as a result of any injuries he may have suffered in the motor vehicle accident of September 30, 1990.

2. Since the Applicant was working at the time of the accident, he would have been entitled to benefits under section 12 of the No-Fault Benefits Schedule.

3. The Insurer is entitled to a repayment of $25,660.07 plus interest, if demanded, according to the provisions of section 27(1) and (4) of the No-Fault Benefits Schedule.

4. It is not necessary for me to consider the question of deduction of collateral benefits in view of the findings set out above.

5. The Applicant is not entitled to his expenses of this arbitration proceeding.

Hearing:

The hearing was held in North York on March 1 and 2, 1993, before me, K. Julaine Palmer, arbitrator.

Present at the Hearing:

Applicant:

Allan Wells

Applicant's Representative:

Rebecca Nelson

Barrister and Solicitor

Insurer's Representatives:

W. T. McGrenere

Barrister & Solicitor

Sharon Clark

Casualty Claims Manager

Witnesses:

Allan Wells, Alan O'Brien, Jerry Vani, Louise E. Koepfler, Alfred T. May, F. Loy Yee, Sharon Clark.

The parties filed 49 exhibits.

Evidence and Findings:

The evidence in this case was very confusing. The confusion stemmed from the Applicant, who told different stories throughout the period following the accident until the date of the hearing.

The accident took place on a Saturday night -- September 30, 1990. The Applicant testified he stopped his vehicle at an intersection, then began to cross Roncesvalles Avenue, when his vehicle was struck on the right side by a streetcar. He stated he was jostled around inside the car and his elbow hit the door. However, he noticed no symptoms until the following day and went to see his doctor, Dr. M. Ostro, on Monday.

The Applicant is a single man, aged 56. He testified that at the time of the accident he was working for Mattco Foods Inc. as a meat cutter. He testified that he worked there for six weeks following the accident, during the months of October and November 1990. He filed a photocopy of a T4 form showing gross earnings of $3,952.

However, the Applicant also filed an Employer's Confirmation of Income Statement that showed he worked for Mattco Foods Inc. from July 30, 1990 to September 30, 1990. The Applicant explained that the owner of the business thought he was doing the Applicant a favour by altering the dates of his employment. The Applicant also testified that he worked for the following businesses during the 52 weeks prior to the accident:

Enterprise

Dates Employed

Gross Earnings

Bonanza Supermarkets

Nov.9/89 to Feb. 17/90

$9,893.98 (no T4) (Acct's letter)

Weston Produce Inc.

Mar. 27/90 to June 15/90

$7,168.20 (T4)

Monroe Meats (now defunct)

after Weston Produce (about 3 weeks' work)

$1,800 approx. (no T4)

Luigi Commisso Meat Market Ltd.

Aug. 7/90 to Aug. 25/90

$2,199.60 (T4)

S. J. Pilat Limited

Sept. 5/90 to Sept.24/90

$1,540.50 (T4)

Because the Applicant was working at the time of the accident, he is entitled to benefits under section 12 of the No-Fault Benefits Schedule if he can prove, on a balance of probabilities, that he suffered substantial inability to perform the essential tasks of his employment because of injuries he received in the accident. According to the provisions of the No-Fault Benefits Schedule, an applicant's weekly income benefit is to be based on the better of two sets of figures: what he earned in the four weeks preceding the accident, or, what he earned in the 52 weeks preceding the accident. The Insurer is also entitled to a deduction of 80 per cent of any earnings by the Applicant following the accident, while he was receiving weekly income benefits.

The Applicant testified that, during the six weeks following the accident, he lived on "Percocet and alcohol". He testified he did not work a full day -- only four to five hours -- taking four to five coffee breaks per day. He stated that the job at Mattco Foods involved cutting meat, getting the counter set up, and only very light lifting. He testified he left the job because his pain increased and he has not worked since that time. The Applicant stated that since then he has not been able to return to any sort of employment. He testified that his condition has become worse since the accident. He stated that his medication does not take the pain away. He is capable of doing less around the house, because his pain is severe.

The Applicant stated that he suffers from severe low back pain since the accident, with spasms down his right leg. He testified he has problems bending, brushing his teeth, putting on shaving cream, drying his feet after a shower, and putting on socks and shoes. He cannot clean his house and he has difficulty doing laundry or anything where he has to bend over.

The Applicant testified that he had two knee surgeries prior to the accident, in 1959 and 1969. Sometimes his knee will stiffen up and it causes him to limp, depending upon how much he has been on his feet. The Applicant testified that he had two neck-fusion surgeries in 1978 and 1982 and three back surgeries in 1981, 1984 and 1988, prior to this accident.

The Applicant also testified that he has received social assistance benefits in the sum of approximately $921 per month since November 1991. He also receives $US.622 monthly from United States Social Security. In 1991, he received $U.S.7,200 in social security payments. The Applicant stated he has twice applied for C.P.P. disability pension benefits. He was refused in 1989, but the second application from July 1992 is still pending.

No one testified on behalf of the Applicant with any knowledge of his employment, either before or after the accident. The Applicant's only witness was a friend, Alan O'Brien, who testified as to the help he and his friends had given to the Applicant when he moved in April 1992.

I find that the Applicant is not a reliable or credible witness. I find he changes his story to suit the purpose of the moment, as appears expedient to him. I find that, in the course of the adjustment of his claim for no-fault benefits, the Applicant has told falsehoods and fabricated on numerous occasions. Five examples follow:

• He told the adjuster in a recorded telephone interview on October 1, 1990, the day after the accident, that:

I work for different companies, like IGA one week, (Weston) Produce another week. I book myself a couple of weeks in advance..... (there's just) the two.

• He told the same adjuster in person on October 30, 1990 that he had a B.A. in Business Administration. He now denies saying this. The adjuster, Loy Yee testified. A form completed during the meeting was filed as an exhibit. I believe the adjuster is telling the truth.

• He told the adjuster he was self-employed with "Country Gourmet Foods" and later produced an Employer Confirmation of Income statement from that fictitious entity.

• At the time he was giving the interview on October 30, 1990, he now admits he was working at Mattco Foods.

• He presented an altered version of a computer printout of drugs paid by Social Assistance to the Insurer in an attempt to have over $1,800 in drug costs not paid by him, paid out to him. The Applicant explained at the hearing that he merely wished to show the Insurer the quantity of drugs he was taking. The adjuster also testified on this point. I do not believe the Applicant's version.

I learned from the exhibits filed in this case that the Applicant uses two Canadian Social Insurance numbers: one, when he is working, and the other, it would appear, when he applies for a social benefit. In 1991, he received $10,502 in Social Assistance payments under his second social insurance number. He stated at the hearing that he had not filed income tax returns for 1990 and that there was "no reason why he would not have filed" 1988 or 1989 returns. However, no income tax returns were produced.

The Applicant has presented no medical reports from his family doctor which postdate the accident, but filed several reports written by his current and past orthopaedic surgeons. These reports, on first reading, might enable one to reach the conclusion that the Applicant is currently disabled from work as a meat cutter or butcher. However, when viewed in the context of the Applicant's history and the apparent difficulty of the Applicant to be truthful, the reports take on a different appearance.

The report of Dr. Michael Ostro, family physician, dated May 17, 1989, to the United States' Social Security Administration, details his first contact with the Applicant, after a motor vehicle accident on March 31, 1986. It outlines his complaints and tests done, such as a myelogram, nerve blocks that were attempted, and finally the surgery of October 1988 to repair the broken wires of previous fusion surgery. The report records that the patient complained of daily, constant pain. The report implies that the operation of October 1988 was unsuccessful, in stating that two months after surgery the x-rays revealed "a broken screw and a failed fusion".

Dr. Stephen Esses' letter of August 21, 1989 to the Social Security Administration was also filed. However, the form which accompanied that letter was not produced. Dr. Esses wrote:

It is my opinion that this man is disabled and will not be able to return to work. [....]

This man has had major spinal surgery on more than one occasion. He now has a multiple-level arthrodesis. His range of motion in the lumbar spine is reduced as a result of this. It is my opinion that it would be unwise for him to be lifting anything over 10 lbs.

However, less than 22 months after this opinion was written, the Applicant returned to work, for Bonanza Supermarkets, where he earned nearly $10,000 over the next 32 months.

Dr. Esses wrote two short letters in October and December 1991, where he indicates that because of the "significant pathology" in the Applicant's lumbar spine that "it would be unreasonable for him to engage in any activity which would place additional stress on his lower back. In discussing with Mr. Wells the various duties required of him as a butcher, it seemed that it would be prudent to avoid returning to his position as a meat cutter." [emphasis added].

I do not know what the Applicant told Dr. Esses about his duties as a butcher. I do know that the Applicant testified that there is a significant difference between the job duties of various types of meat cutting. I accept that the Applicant, even prior to this accident, may not have been capable of the type of butchering which would involve moving heavy carcasses of beef and working inside and outside of a meat cooler. However, the Applicant testified that some of his jobs involved "boxed beef" only and setting up, cutting and serving at a retail meat counter.

I cannot accept Dr. Esses' reports written after the accident at face value, since his opinion that it would be unreasonable for the Applicant to work at his previous employment appears to be largely based on what the Applicant told him about his (unspecified) duties in that employment. In addition, I have read reports written by Dr. Esses before this accident with almost identical conclusions, yet I have evidence that the Applicant worked full-time after those reports were written, almost continuously from November 1989 until September 30, 1990.

Dr. Dana Wilson is the orthopaedic surgeon to whom Dr. Esses referred the Applicant after Dr. Esses relocated to the United States. Dr. Wilson appears not to have had Dr. Esses' records, however. Dr. Wilson's report of August 17, 1992 is three pages in length. The first page recounts the history of the Applicant as described to him by his patient. For the reasons I have set out above regarding my findings as to the Applicant's credibility, I have difficulty in accepting this history as being accurate. I have further difficulty with Dr. Wilson's report of his physical examination of the Applicant. It is not clear from Dr. Wilson's report whether the restrictions in the Applicant's motion he reported appeared to be voluntary or involuntary nor whether he made any conflicting observations.

Dr. Wilson's report contains a discussion of two screws in the Applicant's fusion being broken, as confirmed by x-rays in January 1992 and a CT scan sometime after June 4, 1992. An x-ray taken May 2, 1989 apparently showed only the L3 screw to be broken. I am not able to place any weight on Dr. Wilson's view that the motor vehicle accident of September 30, 1990 caused the second screw to break, based on the scant reasoning of this report. It is also unclear to me, based on Dr. Wilson's report of August 18, 1992 to Dr. Markov, what significance the broken screw would have to the Applicant's symptoms, given his opinion that the fusion appears solid.

Dr. Esses' report to Dr. Ostro of January 16, 1991 states that the x-rays are unchanged compared to the previous set. This was the first visit by the Applicant to Dr. Esses following the accident of September 30, 1990. This statement is repeated in his report to the adjuster of June 11, 1991. Nothing is made of the x-rays by Dr. Esses, in connection with the accident. Surely, if Dr. Esses concluded that the accident caused the Applicant to break a second screw in his back, this would be set out somewhere in one of Dr. Esses' reports.

In his report of June 11, 1991 to the adjuster, Dr. Esses states that prior to the accident the Applicant had minimal complaints of back pain and "no complaint of any sciatica". He states that after the accident the Applicant told him that "he developed both low back and right leg pain. The latter symptom was clearly radicular in nature, extending down past the level of his knee into the ankle." Dr. Esses states that his examination of January 16, 1991 did not reveal any neurologic deficit but some nerve root tension signs were positive. He concludes that the motor vehicle accident probably resulted in some nerve root compression. Dr. Esses did not know that the Applicant worked for six weeks after the accident at his occupation as a meat cutter.

However, in his clinical notes of September 27, 1990, just three days beforethe accident, Dr. Esses noted that the Applicant was complaining of pain in his buttocks and right leg. The Applicant recalled making this complaint and confirmed it at the hearing. Based on this report of a strikingly similar symptom prior to the accident, I cannot find that any possible nerve root compression was, on a balance of probabilities, caused by the motor vehicle accident of September 30, 1990.

The Applicant confirmed that throughout 1990 he saw Dr. Esses frequently: 7 times in his office before the accident as well as once a month at the clinic at Toronto General Hospital. He was also seeing his family doctor at least once a month in 1990 prior to the accident.

Unless one considers the report of Dr. E.P. Urovitz, Orthopaedic Surgeon, dated December 20, 1990, in the light of the Applicant's pre-accident medical condition, its conclusions would give one pause. Dr. Urovitz concluded the Applicant showed some signs suggesting radiculitis and would require further investigation to determine whether he was suffering from a single-sided disc protrusion. Dr. Urovitz did not know that the Applicant had worked for six weeks following the accident as a meat cutter. Dr. Urovitz considered the Applicant to be unable to work as a meat cutter, pending the outcome of such further investigations.

When he re-examined the Applicant on November 1, 1991, Dr. Urovitz still did not know that the Applicant had worked after the accident. However, after reviewing the Applicant's report from Health Recovery Clinic and examining him again, Dr. Urovitz concluded that the Applicant's view that "he is totally disabled and will never return to work again is largely self-limited and as a result of his own misperceptions and reflects a somewhat less than optimal degree of motivation." Dr. Urovitz concluded that the Applicant would be capable of performing in a semi-sedentary light to moderate job, but not in any job where heavy, repetitive physical labour would be involved.

This case has been a most troubling one to decide. On the one hand, there is medical evidence supporting a significant disability in the Applicant. On the other hand, there is evidence that the Applicant worked both before and after this accident, despite those reported disabilities. There is ample evidence that the Applicant has told falsehoods on many occasions since the accident and attempted outright fraud.

On the basis of the evidence before me, I am unable to conclude that the Applicant was ever entitled to weekly income benefits as a result of the motor vehicle accident of September 30, 1990. I find that at no time did he suffer a substantial inability to perform the essential tasks of his employment as a meat cutter/butcher as a result of any injuries he received in the accident.

In fact, although he concealed it from the Insurer and his doctors, this Applicant worked for a period of six weeks following the accident at his usual employment. This is not the case of an Applicant who had no medical difficulties before the accident. Indeed, prior to this accident, the Applicant had numerous back surgeries and ongoing complaints. Because I have found the Applicant to be very unreliable in his testimony, I cannot place much weight on what he testifies to have been his complaints both before and after the accident. Based on the objective medical evidence before me, I cannot find that the Applicant was injured to any significant degree in the accident of September 30, 1990.

Thus, I find there is a repayment owing by the Applicant to the Insurer in the amount of $25,660.07. The Insurer is entitled to interest on this amount pursuant to the provisions of section 27(4) of the No-Fault Benefits Schedule.

Because of my decision with respect to the entitlement of the Applicant to weekly income benefits, it is not necessary for me to consider the question of whether any collateral benefits the Applicant was receiving ought to be deducted from any weekly income benefits to which he might have been entitled.

The immediate payment of weekly income benefits under the No-Fault Benefits Schedule operates largely on the good faith of the parties. An insurer must pay weekly income benefits to an applicant on a very timely basis, based on evidence of income provided initially in some cases by the applicant alone.

It is difficult for insurers to deal with applicants who lie and produce false documents in order to be paid weekly income benefits to which they are not entitled. In this case, the Applicant led the Insurer on a merry chase with respect to a fictitious company for which he was supposed to have worked. He also lied about his actual income from employment and his ability to work. It is difficult in this case to sort out facts which might be true. Even after the hearing, I am not sure that the Applicant is receiving only the social benefits which he has divulged here.

I am not empowered to grant the Insurer expenses under the terms of the No-Fault Benefits Schedule. If I were, I would have in this case. However, my power to award expenses to the Applicant is discretionary. In this case, I decline to exercise that discretion in favour of this Applicant. The Applicant is not entitled to his expenses of this hearing based upon his fraudulent conduct throughout the adjustment of this claim.

Order:

1. The Applicant is not entitled to any weekly income benefits as a result of any injuries he may have suffered in the motor vehicle accident of September 30, 1990.

2. Since the Applicant was working at the time of the accident, he would have been entitled to benefits under section 12 of the No-Fault Benefits Schedule.

3. The Insurer is entitled to a repayment of $25,660.07 plus interest, according to the provisions of section 27(1) and (4) of the No-Fault Benefits Schedule.

4. It is not necessary for me to consider the question of deduction of collateral benefits in view of the findings set out above.

5. The Applicant is not entitled to his expenses of this arbitration proceeding.

April 15, 1993

K. Julaine Palmer

Arbitrator

Date