Neutral Citation: 1993 ONICDRG 27

File No. A-001478

ONTARIO INSURANCE COMMISSION

BETWEEN:

M. P.

Applicant

and

THE DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

The Applicant was injured in an automobile accident on August 18, 1990. He was insured under an automobile insurance policy issued by the Insurer, and is receiving no-fault benefits under the policy, in accordance with the No-Fault Benefits Schedule, Ontario Regulation 672, (the Schedule).

In February 1992, the Insurer substantially reduced the amount of weekly income benefits paid to the Applicant from $632.19 to, ultimately, $279.70, on the basis of new documents that it had received. Subsequently, it disputed the Applicant's entitlement to any such benefits.

The issues in this arbitration are:

1. Does the Applicant suffer substantial inability to perform the essential tasks of his occupation or employment as a real estate agent as a result of a psychological injury caused by the automobile accident on August 18, 1990?

2. What is the correct amount of the Applicant's gross weekly income? Specifically, should income from a real estate commission be calculated as of the date of the agreement of purchase and sale or as of the date of closing?

3. Is the Insurer liable to pay a special award to the Applicant on the basis that it unreasonably reduced the Applicant's benefits as of February 1992?

4. Is the Applicant liable to repay money to the Insurer in regards either to the period of entitlement or to the calculation of benefits?

Result:

1. The Applicant's inability to work was not a result of psychological injury caused by the automobile accident on August 18, 1990.

2. The correct amount of the Applicant's gross weekly income is $2,674.27. Income from a real estate commission should be calculated as of the date of closing.

3. The Insurer is not liable to pay a special award to the Applicant on the basis that it unreasonably reduced the Applicant's benefits as of February 1992.

4. I make no order regarding the Applicant's liability to repay benefits.

Hearing:

The hearing was held in Ottawa from November 2 to November 7, 1992.

The following were present at the hearing:

Applicant:

M. P.

Counsel for the Applicant:

Robert MacQuarrie Barrister & Solicitor

Counsel for the Insurer

James Touhey Brian Ward Barristers & Solicitors

The following persons testified at the hearing:

Applicant, M. P.

Constable Samuel Smith

Dr. Selwyn Smith

Ms. N., the Applicant's former common law spouse

Richard Nectall

Dr. M.J. Hamilton

Thirty-two exhibits were filed, listed in Appendix A. These included clinical notes and records from the Applicant's treating general practitioner and psychiatrist, hospital records from two addiction treatment facilities, reports from a psychiatrist appointed by the Insurer, vocational rehabilitation reports and a number of documents relating to the Applicant's income.

Due to the personal nature of the information disclosed at the hearing, I ordered that the hearing be held in the absence of the public, pursuant to section 9 of the Statutory Powers Procedure Act. Correspondingly, any information that would identify the Applicant has been deleted from this decision.

Reasons:

1. Entitlement to weekly income benefits

a) Overview:

The Applicant claims continuing weekly income benefits under section 12 of the No-Fault Benefits Schedule. The relevant part of section 12(1) provides:

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment...

To qualify for benefits, therefore, it is necessary to meet a three-pronged test:

1. That an applicant suffered physical, psychological or mental injury,

2. That such injury was sustained as a result of an accident, and

3. That such injury renders the applicant substantially unable to perform the essential tasks of his or her occupation or employment.

It is the position of the Applicant that he suffered from a psychological condition, diagnosed as anxiety disorder or panic disorder, which was caused by a prior motor vehicle accident in 1988 (the first accident), and was exacerbated by the motor vehicle accident on August 18, 1990 (the August accident). Counsel for the Applicant submitted that the August accident was the proximate cause of the Applicant's anxiety state.

It is the position of the Insurer that the Applicant's symptoms of anxiety or panic attacks were related to the Applicant's alcohol abuse and substance dependence, compounded by personal stressors, and do not relate to the automobile accident.

b) Credibility:

In weighing the evidence before me, it is necessary to address the credibility of the Applicant's testimony. After hearing the evidence, I am left with grave reservations as to the accuracy of his recollection of events, and as to the general reliability of his testimony.

The Applicant repeatedly denied statements attributed to him in the medical records. He also denied being told things by his doctors that were recorded in the records. Some of these discrepancies are outlined later in this decision. In particular, the Applicant denied or downplayed evidence in respect of his history of alcohol abuse and dependence.

Care must be taken in accepting hearsay evidence, contained in medical records, over the Applicant's testimony, which was given on oath and subject to cross-examination. However, in this case, I am satisfied that the medical notes are a more reliable record. The Applicant disputed the accuracy, in some measure, of virtually all medical records that were filed in evidence. It was open to the Applicant to call the doctors to testify as to discrepancies in the evidence had he wished to do so.

The Applicant did call his treating psychiatrist, Dr. Hamilton, to testify on his behalf. In his testimony, the Applicant denied numerous statements attributed to him in Dr. Hamilton's notes. Dr. Hamilton testified under oath that his records were correct, that the Applicant had made the statements attributed to him, and that he would not have recorded the information unless the Applicant had provided it to him.

Throughout his testimony, the Applicant suggested that others--his doctors, his spouse, the Insurer-were responsible for his problems. For example, he stated that he left the Meadow Creek addiction treatment centre before completing the course of treatment because the Insurer had terminated his benefits. However, no mention of this reason appeared in the medical records, and evidence introduced by the Insurer showed it did not notify the Applicant of the suspension of benefits until after he left the facility. The Applicant's explanation was untrue.

In assessing the Applicant's credibility, I also take into account the fact that the Applicant misrepresented his income to the Insurer. Benefits were paid on the basis of a document that showed the Applicant's gross earnings to be $22,565 when, in fact, his share of commissions was half this amount. I do not accept the Applicant's explanation of the discrepancy, and find that the Applicant knew that the information that was submitted to the Insurer included amounts that he had not earned.

The Applicant's psychological condition may be a factor in his inability to testify accurately as to his history and circumstances. Dr. Selwyn Smith, a psychiatrist called on behalf of the Insurer, testified that denial and projection of problems to others is not unusual in persons with alcohol dependence. In any event, however, I cannot rely on the Applicant's testimony. I prefer to rely on the evidence in the medical reports and the credible oral testimony of other witnesses, where the Applicant's testimony contradicts such evidence.

c) The Applicant's prior medical history:

The Applicant, who is 52 years old, has a complex psychological and personal history. His physical health is not in issue in these proceedings.

The Applicant has a long history of alcohol abuse and dependence, evidenced in the medical records before me. The medical evidence indicates that his family background and personality likely predisposed him to substance abuse and anxiety disorders.

According to the evidence, the Applicant started drinking excessively after joining the army at age 17. He left the army in 1970, when he was 30, and worked in a number of sales-related jobs, ultimately becoming a real estate agent in 1980. Although his early sales experience appears to have been successful, towards the end of this period the Applicant was suffering severe personal stress, in particular, financial problems resulting in bankruptcy in 1979, and marital difficulties. These problems exacerbated his drinking.

In late 1979, the Applicant was first seen at the Royal Ottawa Hospital for "habitual excessive drinking". The 1979 hospital records, marked Exhibit 3, record that the Applicant reported a pattern of alcohol "binges", with intervals of 10 to 12 months between binges, and a drinking history of up to 30 beers a day.

The Applicant's testimony indicates that he continued to binge on alcohol between 1980 and 1988. Periods of abstinence of between four to eleven months were interspersed with periods of daily or semi-daily heavy drinking, lasting two to three weeks. During this time, the Applicant was employed by a number of real estate companies. He experienced further financial difficulties, leading to a second bankruptcy in 1986.

The Applicant saw Dr. Hamilton, his psychiatrist, on February 22, 1988, after the first accident. At that time, the Applicant was recorded as saying that he used alcohol as his stabilizer:

...mostly all my life. I wouldn't say I'm an alcoholic but I use it as my crutch

The Applicant challenged evidence of the extent of his prior alcohol problems. He denied making the above statement to Dr. Hamilton. He suggested that his admissions to treatment facilities were not principally for alcohol treatment, but for personal problems or, later, medication dependence.

I accept the evidence as recorded in the medical records. They show that the Applicant has been diagnosed as a person suffering from alcohol abuse and dependence, according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (currently, DSM 111R). Dr. Selwyn Smith, a psychiatrist who examined the Applicant at the request of the Insurer, testified with certainty that the Applicant suffered from alcoholism.

I also accept Dr. Smith's evidence, that a negative liver function impairment test is not determinative of the extent of alcohol use in individual cases. This evidence was unchallenged.

In my view, the evidence of the Applicant's long-standing history of alcoholism is clear and overwhelming.

In January 1988, the Applicant was involved in a first car accident. He received a whiplash injury which ultimately resolved. However, he subsequently experienced acute, incapacitating anxiety attacks.

The Applicant testified that he first suffered an anxiety or panic attack driving home after the incident, and then experienced repeated attacks, often in situations where he was in a shopping mall or while he was driving. During panic attacks, he suffered physical symptoms--he felt terror, like a black cloud coming over him, and experienced chest pains, a lump in his throat, sweating and difficulty breathing. He felt faint. He developed social phobias, and would have to leave the situation he was in quickly. He lost any self-confidence. He developed a phobia of driving.

The Applicant was referred to a psychiatrist, Dr. Hamilton, who diagnosed an acute and possibly permanent anxiety disorder and prescribed anti-panic benzodiazepines (Ativan and clonazepam) to control the Applicant's symptoms. The Applicant took the clonazepam daily until after the August accident, but became increasingly concerned about its addictive effect.

The Applicant was unable to return to work for more than a year after the first accident because of frequent panic attacks. He stated that he wanted to find a less stressful occupation. However, he was forced to go back to work as a real estate agent in February 1989, because of financial pressures. While business was poor for the first few months, exacerbating the Applicant's anxiety, things started to improve in October 1989 when the Applicant joined the P. Residential Real Estate Company. He made two sales with that company, earning a total commission of $7,290.

The Applicant testified that he was still unable to drive, but could function effectively because he was being driven by a co-worker. During this time, the Applicant became involved in a relationship with Ms. N., who was a real estate agent with the same company. He separated from his second spouse and moved in with Ms. N. in December 1989.

In February 1990, Ms. N. transferred to C. Realty Network Inc. (C. Inc.). The Applicant testified that he was taken up with family matters for the first four months of the year, during which time his father died of chronic lung disease after a period of illness. Shortly thereafter, on May 15, 1990, the Applicant joined Ms. N. at C. Inc.

In summary, therefore, the Applicant was unable to work for a year after the first accident in January 1988, and made virtually no money from real estate until the last two months of 1989. He was then occupied with personal matters for a further four months. His return to full-time employment as a real estate agent essentially commenced when he joined C. Inc.

The Applicant's return to real estate in the few months leading up to the 1990 accident was successful and profitable. In partnership with Ms. N., he completed four sales at C. Inc.

One of the sales involved a particularly valuable commercial property (called the Gloucester property). The property was listed with the Applicant's company on May 17, 1990, and sold on July 3, 1990, through the Applicant's agency. The agreements of purchase and sale are marked Exhibits 12 and 13. The transaction finally closed on July 27, 1990.

The Applicant and Ms. N. testified that the negotiations were difficult and stressful, and required a great deal of work throughout the process. The Applicant said that he was working on another large deal in August, but had to find an agent to replace him after the accident. The executed agreement of purchase and sale for the property, dated August 31, 1990, was marked Exhibit 31.

The Applicant stated that he experienced fewer anxiety attacks in the spring and summer of 1990. He testified that he felt "great-- I was making money and feeling a lot better... Apart from personal problems, I was getting a lot better."

Dr. Hamilton's clinical notes, marked Exhibit 5, show that he saw the Applicant on April 19, June 26 and July 12, 1990. On these occasions, Dr. Hamilton recorded that the Applicant continued to improve.

On its face, it appeared that the Applicant's level of functioning had been restored, with medical and pharmacological management, to the point where he was able to resume full-time employment as a real estate agent, and do so successfully in a difficult market.

However, the evidence reveals the extreme fragility of the Applicant's state during this period. He started to drink again excessively, as a result of stress from his father's death and the pressure of work.

The records of Beech Hill Hospital, marked Exhibit 4, which the Applicant attended in September 1990, report the Applicant as stating:

I became really nervous and frightened after my father died four months ago. I also increased my drinking.

Dr. Hamilton's note for June 26 indicates that the Applicant "appears to be in high spirits...says his drinking has increased". The following entry for July 12, 1990 (and the last entry before the accident) noted:

admits to drinking more alcohol...feels he is in need of a place to get off all substances...he would like to go to Beech Hill in New Hampshire for 28 days.

Impression-...(the Applicant) appears to be in a state of mania - he is over-talkative and hyper...He is cautioned re alcohol.

Dr. Hamilton testified that, in his view, the Applicant was on a "pink cloud" and going "too quickly and too rapidly". He was sufficiently concerned about the Applicant's mood swings, that he placed him on lithium for a possible bi-polar affective disorder.

Dr. Hamilton testified that the Applicant's return to work in 1990 was on "shaky ground", and that these subsequent developments militated against a successful return. He agreed that there had been no significant improvement in the Applicant's condition between the first and the August accidents.

Ms. N. testified as to the Applicant's drinking in the months before the accident. I have exercised extreme caution in attributing weight to Ms. N.'s testimony, because the Applicant ended their relationship in the summer of 1991, and the Applicant and Ms. N. were evidently hostile towards each other at this hearing. It is clear that their relationship was deteriorating during the summer of 1990 and that Ms. N. had her own personal troubles. She testified that she had abused alcohol and had smoked hash regularly for twenty years.

Ms. N. supplied information to the Insurer which caused the Applicant's benefits to be reduced in February 1992. She testified that she contacted the Insurer because she was angry at the absence of checks in the system. She wanted to tell the Insurer that the Applicant's reported income was wrong, and that there was no difference in his anxiety or addiction to medication after the accident. She admitted that she was aware that the Applicant had incorrectly reported his income at the outset, and had benefited from the money he received while she was living with him. The evidence is that both the Applicant and Ms. N. resigned from C. Inc. at the same time in early September. Subsequently, C. Inc. went into bankruptcy. Ms. N. returned to work as a real estate agent in December 1990.

Ms. N. gave her evidence in a frank and forthright manner, and I found her testimony generally credible. The Applicant seriously challenged only her testimony as to the circumstances immediately surrounding the August accident. He did not challenge her account of his drinking or of his attempts at treatment.

Ms. N. testified that the Applicant's drinking increased markedly after he returned to work. She described the Applicant's drinking before that time as fairly moderate "in his terms". She stated that there were periods of weeks where he did not drink, including the period around when the Applicant's father passed away.

Ms. N. testified that the Applicant started to drink heavily after he obtained the agreement of purchase and sale for the Gloucester property. She stated that the deal was very stressful. The Applicant received an advance on his commission and could afford to go to bars to drink. Ms. N. testified that the Applicant stayed out frequently at bars drinking from mid-morning to late night, "binging" on alcohol. She described the Applicant as at "kind of a frantic pace", and testified that things started to get really out of hand.

Ms. N. wrote a letter, dated November 28, 1990, to a counsellor at Bowling Green addiction treatment centre, which the Applicant attended in late 1990. The letter was written in response to a questionnaire from the institution, and is marked Exhibit 19. The letter describes the Applicant's drinking during the period, and confirms Ms. N.'s testimony. The letter stated that the Applicant's drinking became a major problem in the summer--late July and August. It stated that:

The nights when he had drank very heavily he would fall down and very often came home with scratches, bruises and dirty clothes. He never could remember what happened.

The Applicant denied that his drinking increased, and stated that his tolerance for alcohol decreased as a result of a change in his medication. I do not accept this explanation, which contradicts the medical records and other testimony.

It appears that during this period the Applicant also started to suffer from blackouts. In the Beech Hill records, marked Exhibit 4, the Applicant was recorded as stating on September 19, 1990:

I've been having black-out times which scare me - one time I found myself at a bar, another I got into a car accident.

The Applicant testified that he first experienced the blackouts after taking lithium. However, Dr. Hamilton testified that the lithium dosage that he prescribed could not have caused the Applicant to blackout. His testimony was confirmed by Dr. Selwyn Smith.

The Applicant alleged that he was taking more lithium than appeared in Dr. Hamilton's records, because his family physician, Dr. Evans, had told him to "take another one in the middle of the day". There is no indication of this in Dr. Evans' notes at Exhibit 2, and I reject the Applicant's uncorroborated evidence in this regard.

While there was no specific expert evidence of the effects of alcohol superimposed on the Applicant's medication regime, Dr. Smith was clear that alcohol was contra-indicated in the circumstances.

d) The August 1990 accident:

On August 18, 1990, the Applicant was involved in a second automobile incident. The Applicant's car and a second car collided, while the Applicant was making a left turn into his apartment building. The Applicant left the scene without stopping, drove approximately 70 to 90 yards to his parking spot, and went to his apartment. There, he was located by the police. He was charged with failing to remain at the scene of the accident, and pleaded guilty to the lesser charge of failing to report the accident. A third charge of making an unsafe left turn was dropped.

The Applicant suffered no physical injuries in the accident. He claims that as a result of the accident he suffered and continues to suffer from severe anxiety with episodic panic attacks and low self-esteem, all of which have prevented him from working as a real estate agent. The Applicant has not returned to work since the accident.

The Applicant's account of the circumstances surrounding the accident is confusing. He emphatically and categorically denied that he had been drinking beforehand.

The Schedule sets out those circumstances which disqualify a person from income benefits. These include where the driver has been convicted of operating a vehicle while impaired. In this case, the Applicant was not convicted of an alcohol offence, nor of any other offence that disqualifies him from receipt of benefits.

It is the position of the Insurer, however, that the Applicant's anxiety condition was related to his alcohol abuse and dependence, not to the effects of the accident itself. The Insurer submitted that the accident itself could not have caused the alleged psychological injury. The Insurer submits that, to the extent that the events contributed to the Applicant's anxiety level, such anxiety related only to his fear of the pending charges, not to the accident itself.

The Applicant testified that he had gone out that morning to deliver house keys in regards to a real estate closing, and to run some other errands. After finishing his chores, the Applicant purchased a six-pack of beer and then cigarettes from a local variety store. He testified that it was raining heavily, and he could hardly see his face.

He testified that he was making a left turn, when a car ran into the side of his vehicle. He stated that he did not remember much of what happened, but pulled into his parking spot and went up to his apartment.

Subsequently, the Applicant testified that he remembered leaving the store, but most of the circumstances relating to the accident and its aftermath were a blank. He remembered a crunch on impact, and then remembered sitting in the police car. He stated that he had not been drinking before the accident, but opened a beer in his apartment afterwards.

On cross-examination, the Applicant said, "I remember the guy running into the side of me..", but said that he did not see the car, "otherwise I wouldn't have turned in front of it".

The Applicant firmly denied that drinking played any role in the accident, or in his leaving the scene of the accident. All the other evidence, including subsequent reports in the Royal Ottawa Hospital records and the testimony of other witnesses, strongly suggest otherwise.

Constable Samuel Smith, who attended at the scene of the accident some 25 minutes after the incident had occurred, testified at the hearing. He found the Applicant at his apartment, after locating the Applicant's damaged car in the parking lot.

Constable Smith testified that the Applicant appeared intoxicated. His eyes were bloodshot, his pupils dilated and he slurred his speech. Constable Smith noted a strong odour of alcohol, and observed a freshly poured glass of beer on the table. The Applicant gave no explanation why he had left the scene and could not remember any details.

Constable Smith stated that the Applicant staggered and had difficulty walking to the police car. The Applicant denied he had been drinking prior to the accident, but told Constable Smith that he had consumed two or three beers since arriving home.

Constable Smith testified that, from the physical signs of impairment, he thought the Applicant must have consumed considerably more beer than the amount acknowledged.

Constable Smith testified that he did not order a breathalyser test because too much time had elapsed since the incident (some 45 minutes). He did not lay charges of impaired driving because a sufficient element of doubt existed at that time. Constable Smith testified that, while he could not say with certainty that the Applicant had been drinking before the accident, the physical signs indicated that the Applicant had been drinking. I heard no evidence or submissions that the symptoms of a panic attack could have been mistaken for the physical signs observed by Constable Smith.

Ms. N. also testified about the aftermath of the incident. She stated that she was unwell and was lying down when the Applicant entered the bedroom. She testified that the Applicant came into the bedroom soaking wet and "fell on the bed". She said he had obviously been drinking. He was very upset and told her he had been involved in an accident and had then parked the car. She stated that she became very angry and left the apartment.

The weight of the evidence persuades that the Applicant was likely intoxicated at the time of the accident, and either left the scene to avoid the consequences of his actions, or had some form of a blackout or memory loss which prevented him from realizing that he was involved in an accident, due to his intoxicated state.

e) The period after the August Accident:

The Applicant continued to drink heavily in the weeks following the accident. The Applicant admitted in his Reply dated July 27, 1992 that he "hit the bottle" until September 17, 1990. Ms. N. confirmed that the Applicant continued to drink excessively in that period.

The Applicant saw his family practitioner, Dr. Evans, on August 20, 1990. Dr. Evans' clinical notes, marked Exhibit 2, indicate that the Applicant was suffering from a severe panic reaction and had been in a motor vehicle accident on August 18.

Subsequently, the Applicant saw his psychiatrist, Dr. Hamilton, on September 4, 1990. Dr. Hamilton found he was in acute distress. He prescribed clonazepam and stopped the lithium. His notes state:

Pt. feels desolate - says that he may be charged with leaving the scene of an accident. Says he was involved in an accident near his apartment and "felt awful" and went home...The police came to his apt. and are possibly going to charge him...he is worried.

On cross-examination, the Applicant admitted that he was concerned and upset at the charges, but denied being concerned at a possibility of losing his license, and the impact that would have on his ability to work as a real estate agent.

Ms. N. testified that in August it started to dawn on the Applicant that he was an alcoholic. She stated that "the accident really upset him...his world started crumbling".

Ms. N.'s evidence suggests that the accident brought home to the Applicant the realization that he needed treatment. He was also convinced that he should withdraw from the benzodiazepines on which he was dependent. The accident seems to have been a catalyst in convincing the Applicant of his need for treatment. Between September and December 1990, the Applicant attended three addiction treatment centres for alcohol and benzodiazepine dependency--the Beech Hill Hospital, The Royal Ottawa Hospital and Bowling Green Treatment Centre.

The Applicant went to Beech Hill Hospital in the United States shortly after the accident on September 18, 1990. The Beech Hill Hospital records are marked Exhibit 4. They show that the Applicant entered the facility in an effort to change his life. He was frustrated with repeated efforts to stay sober, he reported having blackouts, he had family difficulties and wanted to come off benzodiazepines.

An unsuccessful attempt was made to detoxify the Applicant from his medication, but the Applicant suffered rebound anxiety from withdrawal. On September 25, 1990, he discharged himself early from the program against medical advice.

The final diagnosis recorded on discharge was:

alcohol dependence

Clonazepam dependence

withdrawal

hash dependence

nicotine dependence

On his return from Beech Hill, the Applicant was admitted to the addiction treatment program at the Royal Ottawa Hospital. He was seen on October 2, 1990 for an initial assessment by Dr. Alan Wilson, and entered the clonazepam reduction program on October 9. After the Applicant was withdrawn from his medication, he was referred to Meadow Creek 28 Day Addiction Treatment Program on October 19, 1990. He did not complete this program and discharged himself after ten days. The diagnosis on discharge was alcohol abuse, with benzodiazepine dependence a secondary diagnosis.

In December 1990, the Applicant went to a third addiction facility, Bowling Green treatment facility in the United States. The Applicant testified that he remained off medication between January and September 1991, and abstained from alcohol until August 1992, when he was re-admitted for an emergency assessment at Royal Ottawa Hospital. The Applicant testified that he resumed drinking as a result of financial pressures and difficulties with the Insurer.

f) Medical evidence and findings:

There is no question that the Applicant suffers from a severe pathological anxiety condition. All the doctors agree on this. However, they disagree on the diagnosis and the cause of the condition. There is some dispute as to the contribution made by the first accident in the development of the Applicant's condition. It is not necessary for me to determine that issue in this arbitration. The sole question before me is whether the August 1990 accident triggered a recurrence of an incapacitating anxiety state or otherwise exacerbated a pre-existing anxiety disorder, thus causing him to be disabled from working.

There is a conflict in the medical evidence before me on this question. Dr. Hamilton and Dr. Bakish attribute the Applicant's symptoms to the August accident. Dr. Selwyn Smith (the Insurer's expert) believes that the Applicant's problems were not related to the August accident, but were caused by the Applicant's substance abuse and dependence, compounded by personal stress.

Dr. Hamilton diagnosed the Applicant's condition as chronic anxiety disorder, with episodic periods of acute anxiety or panic and phobia of driving. He attributed the continuation of the Applicant's condition to the August accident. In his first report, dated September 14, 1990, marked Exhibit 8, he stated that:

(The Applicant's) state is the recurrence of a previous panic disorder, precipitated by the present accident. The accident was the initiator of the present..but his panic state was existent before this accident.

Dr. Hamilton considered the Applicant's use of alcohol to be a secondary diagnosis.

Dr. Hamilton has had the opportunity of seeing the Applicant regularly over a period of several years. However, it is clear that Dr. Hamilton was not fully apprised of the Applicant's chronic history of alcohol abuse and dependence. Nor was he aware of the extent of the Applicant's drinking in the period before or after the accident.

Dr. Hamilton recorded a secondary impression of alcoholism, at the Applicant's first visit in January 1988. He also recorded that the Applicant had not previously been treated for alcoholism. He testified that he was unaware that the Applicant had been diagnosed as an alcoholic in the 1970s, and had received treatment for his condition at the Royal Ottawa Hospital.

Dr. Hamilton also did not know that the Applicant had received treatment from Dr. Evans for severe anxiety in the year before the first accident.

The Applicant did not give Dr. Hamilton other significant information. He did not tell Dr. Hamilton that he had made arrangements to go to Beech Hill Hospital, although they discussed this possibility before the accident in July 1990. Dr. Hamilton learned that the Applicant went to the Royal Ottawa Hospital in October 1990, only afterwards when the Applicant was upset that his benefits had been interrupted. In fact, Dr. Hamilton did not see the Applicant between the first visit after the accident on September 4, 1990 and his next visit on November 1, 1990.

I find it incongruous that the Applicant visited his psychiatrist for a recurrence of his acute anxiety condition after the August accident, but within weeks attended a detoxification centre to withdraw from his anti-panic medication, without telling the same doctor.

I cannot place reliance on Dr. Hamilton's view of what caused the Applicant's panic attacks after the August accident. Although he was the Applicant's treating psychiatrist, he lacked significant and relevant information in forming his opinion. He also did not have an opportunity to review relevant medical records. He did not see either the Beech Hill Hospital records or the Royal Ottawa Hospital records before testifying at this hearing. In my view, Dr. Hamilton's opinion as to causality is flawed in the absence of such information.

Dr. Hamilton's diagnosis appears to be supported by Dr. Bakish, a psychiatrist at Royal Ottawa Hospital, who examined the Applicant on September 3, 1991. Dr. Bakish's report, dated September 3, 1991, is marked Exhibit 3. Dr. Bakish found that, while the Applicant was genetically predisposed to an anxiety condition, his panic disorder was probably brought about by the automobile accident. He found that:

This man has panic disorder with mild secondary agoraphobia which is probably secondary to his major stressors which are the car accident.

Dr. Bakish saw the Applicant over a year after the accident. It is not clear what information he had about the Applicant's condition at the time of the accident. He did not refer to the Applicant's history of alcohol dependence, commenting only that the Applicant currently did not abuse alcohol. Although Dr. Bakish was a member of the psychiatric unit at Royal Ottawa Hospital, it cannot be inferred that he had access to the hospital records in formulating his opinion on causation. One would have expected him to have referred to the Applicant's well-documented alcohol problems in his history had he known of them.

Furthermore, the Applicant's pharmacological management appears to have been the primary impetus for the referral to Dr. Bakish, rather than issues of causation.

Dr. Bakish was not called to testify at the hearing. In the absence of his testimony, I cannot place much weight on the opinion on causation contained in Dr. Bakish's report.

In contrast, the medical evidence that does not support a relationship between the accident and the Applicant's ongoing symptoms has been formulated with the benefit of much more complete information. This view holds that the Applicant's anxiety after the August accident was the effect of substance abuse and dependence, compounded by other factors.

The Beech Hill Hospital records marked Exhibit 4 diagnose multiple substance dependence. The Applicant attended this facility within a month of the accident. Little reference is made to the accident--it is mentioned only in the context of the pending legal charges. The Beech Hill Hospital records provide little support for the Applicant's contention that his anxiety related to the accident.

The records of the Royal Ottawa Hospital (Exhibit 3) provide even less support for the Applicant's position. On the Applicant's admission on October 9, 1990, Dr. Wilson, the admitting physician, recorded that the Applicant had a "questionable history of anxiety disorder". He recommended that the Applicant be re-evaluated to rule out the disorder, but only after his addiction problem had been addressed. On discharge, his diagnosis was alcohol abuse, with secondary benzodiazepine dependence. Dr. Wilson indicated that the Applicant would return to his psychiatrist for care "although there is no evidence of active anxiety disorder in this patient". This finding is made within two months of the accident.

The Applicant was examined twice by Dr. Selwyn Smith, at the request of the Insurer. His reports, dated November 21, 1991 and October 21, 1992, are marked Exhibit 8 and Exhibit 7, respectively. Dr. Smith testified at the hearing. His resume was marked Exhibit 28.

In his first report dated November 21, 1991, Dr. Smith concluded that the Applicant's alcoholism was secondary to his underlying anxiety state and depression. At that time, he felt that the claim was valid and that the Applicant was not exaggerating his symptoms.

Dr. Smith re-examined the Applicant a year later in October 1992, and revised his opinion.

In 1992, Dr. Smith attributed the Applicant's anxiety state after the August accident to alcohol dependence. On pages 3 and 4 of his report, he stated:

the motor vehicle accident of August 18, 1990, did not produce his symptomatology of anxiety and panic disorder, nor am I convinced that his first accident of January 14, 1988 caused his symptoms of anxiety and panic disorder. The symptoms that he described as arising from the accidents are out of proportion to the type of injury that he sustained. Alcohol appears to have played a significant role in both accidents.

...(the Applicant's) prolonged drinking has produced anxiety and depression and that his full range of symptomatology including depression, panic disorder, insomnia, low mood, irritability and anxiety attacks with the biological symptomatology that he has complained of, are directly related to his alcohol intake.

He testified that, in addition to alcohol dependence, the Applicant's withdrawal from benzodiazepines and hash contributed to the level of his anxiety, as did the Applicant's consumption of nicotine and caffeine. He concluded that these organic causes of anxiety were compounded by other stressors in the Applicant's life, including interpersonal problems, financial problems, and the pending charges from the accident.

Dr. Smith testified that alcohol withdrawal is a significant cause of anxiety. This itself leads to further consumption, to relieve the biological and psychosocial effects of withdrawal. He stated a vicious circle of alcohol use - withdrawal, anxiety, alcohol use - is created. This cycle can only be interrupted by removing the person from the environment, and providing institutional care and management.

Dr. Smith also doubted whether the circumstances of the accident could cause an anxiety disorder or trigger a recurrence of a panic disorder in this particular case. He testified that a traumatic event such as an automobile accident can trigger an acute anxiety state. However, in the absence of physical injury, this would not usually occur unless the individual had anticipated an injury or insult to the body immediately before the impact or, alteratively, had suffered a traumatic experience outside the usual realm. In these circumstances, the anxiety was an uncontrolled biological response to anticipated trauma.

Dr. Smith testified that the requisite element of anticipatory anxiety was entirely missing in this case. The Applicant had apparently suffered a blackout or loss of memory before the accident, and had no recollection of either seeing the vehicle or anticipating the impact. Therefore, he did not think that the August 1990 accident could have triggered a recurrence of a previous anxiety state.

Dr. Smith thought that Dr. Hamilton's records indicated that the Applicant experienced "situational" apprehension or worry in specific stressful circumstances, such as the termination of benefits or pending charges. However, he felt that such anxiety was not a biological response, reflective of a psychiatric panic disorder.

At the hearing, Dr. Hamilton agreed with Dr. Smith that, if the Applicant did not experience some measure of anticipatory fear in respect to the incident, the motor vehicle accident would not likely trigger an anxiety disorder.

Dr. Smith testified that he changed his opinion about the Applicant's condition after reviewing further medical records of the period before and after the accident, in particular, the records from Beech Hill Hospital and the Royal Ottawa Hospital.

He stated that his original opinion primarily dealt with the appropriateness of the Applicant's medical regime, and his level of functioning, and not with the issues of causation. The instructing letter from Ms. Burnside, the Applicant's rehabilitation case-worker, marked Exhibit 8, confirms that Dr. Smith was not asked whether the accident caused the Applicant's condition.

I accept that Dr. Smith legitimately and reasonably revised his opinion in light of significant additional information made available to him. He also specifically addressed the issue of causation for the first time. Dr. Hamilton testified that Dr. Smith's conclusion on causation was valid in terms of symptomatology, although he differed from it. However, in formulating his opinion, Dr. Hamilton did not have the benefit of the records that were made available to Dr. Smith.

The onus is on the Applicant to establish that his disability results from an injury caused by the August accident. In my view, the evidence does not establish, on the balance of probabilities, that the August accident triggered a recurrence of the Applicant's anxiety state. Although the Applicant participated successfully in a number of real estate deals during the three months he was with C. Inc., the weight of the evidence indicates that the Applicant's condition was not improving but was deteriorating before the accident. I find that he was suffering from alcohol abuse and dependence in the period before the accident. He was intoxicated at the time of the accident, and he continued to abuse alcohol after the accident until he received treatment.

The medical evidence is that alcohol binging and withdrawal is a significant organic cause of anxiety. The Applicant's concerns over his medication and the effects of withdrawal from it added to his anxiety.

This is not a case where an applicant's drinking increased after an accident as a consequence of its effect on him or her. Nor is it a case in which an underlying condition of a psychologically vulnerable applicant is exacerbated by an accident. The evidence suggests that the Applicant's condition - and his concerns - were not significantly different in the period after the accident than before it.

In addition, I am persuaded that the circumstances of the accident did not trigger a recurrence of the Applicant's anxiety state. It was a minor accident. The Applicant suffered no physical injuries of any kind. The Applicant testified that he recalled almost nothing of the incident, other than an impact and sitting in a police car. There is no evidence that the Applicant apprehended or anticipated any contact or injury at the time of the collision.

Furthermore, there was no evidence that the Applicant suffered a panic attack in the course of the incident. The Applicant reported no physical symptoms of a panic attack.

I conclude that the Applicant was very upset and frightened of the charges that he faced. This accounts for his visits to Dr. Evans and Dr. Hamilton after the accident. The accident brought home to him the realization that he had serious alcohol problems and needed treatment for substance dependence and abuse. I find that his anxiety following the accident was principally a function of these problems, superimposed on an underlying anxiety condition.

The evidence falls short of establishing that the Applicant's fear of pending charges triggered a pathological panic disorder. Dr. Smith's evidence indicates that such fear would produce situational anxiety, but likely not trigger a panic disorder. The Applicant's concern about the charges was merely one of a myriad of factors that contributed to the Applicant's anxiety level at the time. It was the cumulative effect of these factors that caused the Applicant's ongoing incapacity. The occurrence of the August accident coincided with the culmination of these contributory factors, but it was not a material cause of the Applicant's subsequent incapacity.

I am sympathetic to the Applicant's situation. I do not question that he suffers from a condition of severe anxiety, a fact readily evident at this hearing. I accept that he has struggled with a considerable degree of adversity, and has tried hard to overcome his problems. However, my jurisdiction is limited to determining his entitlement to no-fault benefits based on whether the August accident caused his ongoing incapacitating psychological condition. On the balance of the evidence before me, I find that he has not established that the August accident triggered a recurrence of his panic disorder or aggravated an underlying anxiety state.

Given this finding, it is unnecessary for me to determine whether the Applicant continues to suffer substantial inability to perform his essential tasks as a result of the accident.

2. The amount of benefits:

The second issue is the amount of the Applicant's benefits. Because this case raises a significant legal issue about how income from real estate commissions is to be calculated, I have proceeded to deal with this matter, notwithstanding the above ruling.

Subsection 12(4) of the Schedule provides that the amount of benefits is the lesser of $600 and 80 per cent of the insured person's pre-accident gross weekly employment income.

Under section 19, an insured can opt for an increased maximum benefit. In the course of the hearing, counsel for the Applicant raised the possibility that the Applicant was entitled to an increased benefit under this section. However, the matter was not pursued before me, and I make no findings in respect to this issue.

The calculation of an applicant's pre-accident income is governed by subsection 12(7)(1), which states:

(7) The following rules apply to the calculation of gross weekly income:

1. A person's gross weekly income shall be deemed to be the greatest of,

i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,

ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,

iii. $232.

Section 12(7)(3) requires that ceasing business expenses be deducted in calculating weekly income from self employment.

Benefits are based on the figure that is most favourable to the applicant.

Richard Nectall, a unit manager with the Insurer, testified about the calculation of the Applicant's benefits. He has been employed with the Insurer for more than ten years, in increasingly more senior positions, and supervised the adjuster who handled the Applicant's file.

The Insurer calculated the Applicant's benefits based on a handwritten note indicating earnings of $2,722.50 from P. Residential Real Estate Company, marked Exhibit 23, and a letter from K.M., the proprietor of C. Inc., dated August 24, 1990, marked Exhibit 14, showing that the Applicant had earned $22,565.25 since working at C. Inc.

Based on this information, the Insurer paid the Applicant $632.19 each week, calculated on total income averaged over 32 weeks rather than the full fifty-two weeks, as the Insurer accepted that the 1989 income was earned only in the last two months of the year.

The Applicant received this amount until mid-February 1992. Mr. Nectall testified that the Insurer then received, anonymously, a copy of a T4 slip relating to the Applicant's income for 1990. The T4 slip is marked at Exhibit 21, and indicated that the Applicant had earned $10,820 while working at C. Inc., rather than $22,565.25 stated in Exhibit 14. The T4 slip was issued by D. & A. MacLeod, trustees in bankruptcy, after the apparent insolvency of C. Inc. in September 1990. The Insurer verified the T4 slip through this source. It subsequently learned that the T4 slip had been sent by Ms. N.

When it received the information, the Insurer initially suspended the Applicant's benefits, then reinstated benefits based on the income in the T4 slip. It did not contact the Applicant before doing so. The Applicant testified that he learned there was a problem when he subsequently called Mr. Nectall to find out where his benefit cheque was.

The contents of the communications between Mr. Nectall and the Applicant were disputed. The Applicant alleged that he had never been given an opportunity to challenge the validity of the income in the T4 slip. I accept Mr. Nectall's version of the discussion, which is that he told the Applicant that the Insurer would review the situation if the Applicant could bring forward additional information to show that the T4 slip was incorrect. The Applicant did not do so.

As a general principle, insureds should be given the opportunity to explain any discrepancy about their income, before an adjustment is made to benefits. However, in this case, I am satisfied that the Applicant was provided with an opportunity to explain the discrepancy shortly afterwards. In the circumstances, I do not find that the Insurer acted either arbitrarily or unreasonably in adjusting benefits on the basis of the T4 slip.

Mr. Nectall conceded that some cheques going to the Applicant had been late, due to computer problems and staff turnover.

At mediation, the Applicant claimed a higher amount based on his earnings averaged over the four weeks before the accident. He stated that the Insurer had never told him that he had the option of averaging his income over four rather than fifty-two weeks. Mr. Nectall stated that the Insurer's adjusters are instructed to advise claimants of their rights; however, the information provided by the Applicant did not identify the earnings period.

Insurers are required to advise claimants of their options under the legislation. Failure to do so may well expose an insurer to liability to pay a special award under section 282(10) of the Insurance Act. However, I accept that the Applicant's claim was handled shortly after the no-fault system was implemented, and some confusion in respect to an insurer's obligations may have existed. Furthermore, the Applicant's documentation did not indicate any breakdown of earnings. In the circumstances, I do not find that the Insurer unreasonably withheld or delayed payments.

The T4 slip marked Exhibit 27 shows that the Applicant earned a total of $7,290 while he was at P. Residential Real Estate Company. It is accepted that this sum was earned only in the last two weeks of the year, and that consequently the Applicant's income for the fifty-two weeks before the accident should be averaged over a shorter thirty-two week period.

The Applicant made four sales with C. Inc.: only one of these, the Gloucester property, was listed in the joint names of the Applicant and Ms. N. as agents. The other three were listed only in Ms. N.'s name. I accept the evidence of Ms. N. and the Applicant that they worked in partnership on a 50/50 basis. The broker took a 40 per cent share off the top. I further find that they arranged to have the transactions placed in Ms. N.'s name and the total income from the commissions paid to her because Ms. N. had previously paid most of their living expenses. I accept that 50 per cent of the commissions should be regarded as income earned by the Applicant through the partnership, although he did not actually receive the money.

Details of the sales are as follows:

1. The sale of the Carleton property. The agreement of purchase and sale (Exhibit 10) was executed on June 14 and the deal closed on June 29, 1990. The trade record sheet for Ms. N. marked Exhibit 24 indicates a total commission of $900, after deducting the broker's share, leaving the Applicant's share at $450.

2. The sale of the Gloucester properties. Exhibits 12 and 13 are agreements of purchase and sale of two properties in Gloucester, for the respective price of $1,215,000 and $600,000. According to the evidence, the agreements were executed on July 3, and the transaction closed on July 27. The Applicant stated that he received $18,150 as commission. In his testimony, the Applicant admitted that 40 per cent of the commission went to the broker, and that his net return from the sale was $10,890.

3. The sale of the Ottawa property. Exhibit 15 and 24 relate to the sale of this property, which was apparently completed on August 31, 1990. The Applicant claimed the total commission of $2,937.50 as his share. Ms. N.'s trade record sheet marked Exhibit 25 showed a total commission of $2,643.75. I find that the Applicant was entitled to half of this sum, or $1,321.87.

4. The lease of the Cambridge property concluded on August 13, 1990. The Applicant claimed a commission of $357.00. The trade record sheet shows the total commission to be $214.20, of which the Applicant is entitled to $107.10.

I find that the Applicant's total income in commission sales at C. Inc. was $12,768.97. His total income for the fifty-two weeks before the accident was $20,058.97, averaged over a thirty-two week period to be $626.84.

The Applicant claims that his benefits should be based on his commissions earned in the four weeks before the accident. He submits that income from a real estate commission should be calculated as of the date of the closing. Therefore, his average income for the period would include the Gloucester commission of $10,890. Counsel for the Insurer submitted that commission is payable as of the date of the agreement of purchase and sale; therefore, the commission would fall outside the four-week period.

Both counsel cited the decision of the Supreme Court of Canada in H.W. Liebig & Co. Limited v. Leading Investments Limited (1986) 1986 CanLII 45 (SCC), 1 S.C.R. 70, in support of their positions. In addition, counsel for the Insurer cited sections of the federal Income Tax Act. Both counsel sought to introduce evidence in the nature of expert testimony from a lawyer versed in real estate law as to when a real estate commission is earned. I declined to admit such testimony, having regard to the decision of the Court of Appeal in R. v. Century 21 Ramos Realty Inc. (1987) 1987 CanLII 171 (ON CA), 19 O.A.C. 25, on the basis that the subject matter of the proposed testimony was in respect to a question of domestic law properly reserved to the arbitrator.

Exhibit 22 is an employee record of earnings for the Applicant, for the Gloucester deal. The Applicant explained that he had an advance of $2,000 and owed approximately $2,700 to the broker for prior advances, which was also deducted, leaving him with a net figure of $6,137.87 from the $10,890 commission he received. However, he submits that he was not entitled to the commission until closing.

As a general principle, payments cannot be said to have been earned until they become receivable. To determine when the Applicant is entitled to the commission, it is necessary to look at the relevant documentation, including the agreement of purchase and sale and the listing agreement. Exhibit 11 is a commission agreement between the Applicant and the vendors. It acknowledges that the property was placed on the Multiple Listing Service with the Real Estate Board of Ottawa Carleton at 4 per cent commission on the selling price to be paid at closing, with a reduced rate of 2 per cent payable at closing, if the ultimate purchaser purchased through C. Inc.

The commission agreement varied the standard form MLS agreement for the Real Estate Board of Ottawa Carleton, marked Exhibit 17.

The Applicant agreed that the transactions were "cash deals", subject to a 15 day period for requisitions. The Applicant testified that negotiations on the Gloucester property were difficult and continued up until closing.

Under the common law, the purchaser of a property generally receives equitable title to it, on execution of the agreement of purchase and sale. However, the vendor is not entitled to the balance of the purchase price until closing, and ownership is only transferred at that point. Under the terms of the commission agreement marked Exhibit 11, as in most cases, the real estate commission was not payable until the closing date.

Under the terms of the agreement, the agent may be entitled to commission at that time, whether or not the transaction in fact closed on that date. However, a commission is not generally payable simply on the agent's procuring a valid offer to purchase. The decision of the Supreme Court of Canada in Liebig indicates that the contract between a vendor and agent should be interpreted in light of the reasonable expectations of the parties--that commission is payable in the event of a completed sale, or where the transaction fails due to the vendor's fault. I see nothing in the wording of the listing agreement at Exhibit 11 that takes the contract between the Applicant and the vendors outside these generally accepted principles.

I find that the Applicant's real estate commissions were earned on the date of closing, because he had no entitlement to payment on the basis of merely procuring the valid offer to purchase, at Exhibits 12 and 13. Counsel for the Insurer suggests that this may lead to arbitrary results. However, the present system has incorporated some measure of arbitrariness in the calculation of benefits in the interests of administrative workability. No special rule governs the calculation of income from commission sales under section 12(7)(1).

I find that the Applicant is entitled to include commissions earned from the Gloucester property and the Cambridge lease, both of which were completed within the four weeks before the accident. The Applicant's total average gross weekly income for four weeks before the accident comes to $2,749.27.

There was little evidence about the Applicant's ceasing expenses. The figures confirmed in Ms. N.'s trade record sheet already accounted for the 40 per cent broker's fee. In the absence of other evidence, I accept the expenses set out in the Application for Appointment of an Arbitrator, dated June 9, 1992. I find the Applicant's ceasing expenses to be approximately $75 per week.

Accordingly, I find that the Applicant's average gross weekly income for the four weeks before the accident was $2,674.27.

3. Special Award:

I find that the Insurer has not unreasonably withheld or reduced payments, and accordingly is not liable to pay a special award under section 282(10) of the Insurance Act.

4. Repayment:

The Insurer notified the Applicant, in a letter dated October 28, 1992, that it intended to seek repayment of all benefits since the date of the accident. The letter indicated that the Insurer sought repayment at that time, having obtained some of the key medical records in this case, and having received the second report of Dr. Selwyn Smith.

I heard no evidence or submissions with respect to the discrete issue of repayment. Repayment is sought of almost three years' benefits. It is fair to assume that the Applicant relied on his no-fault benefits as his primary source of income during this period, while he was not working. I am troubled by the absence of submissions from either party in the circumstances.

Accordingly, I make no order with respect to repayment. I remain seized of this matter and will entertain further submissions from the parties at their request.

Expenses:

The Applicant also seeks an award for the expenses he has incurred in respect of the arbitration proceeding. An award for expenses may be made under section 282(11).

In the arbitration decision of McCormick v. Economical Mutual Insurance Company (O.I.C. File No. A-000139, dated October 2, 1991), I canvassed some criteria guiding the exercise of an arbitrator's discretion to award an applicant his or her expenses. In that decision, it was stated:

..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.

I received no submissions that suggested that these criteria are inappropriate, or otherwise inapplicable in this case. Accordingly, I find that the Applicant is entitled to an award for his expenses, as prescribed in Ontario Regulation 664, R.R.O. 1990, and Schedule 1 of the Dispute Resolution Practice Code.

Order:

1. The Applicant's inability to work was not a result of psychological injury caused by the automobile accident on August 18, 1990.

2. The correct amount of the Applicant's gross weekly income is $2,674.27. Income from a real estate commission should be calculated as of the date of closing.

3. The Insurer is not liable to pay a special award to the Applicant on the basis that it unreasonably reduced the Applicant's benefits as of February 1992.

4. I make no order regarding the Applicant's liability to repay benefits.

May 21, 1993

Susan Naylor Senior Arbitrator

Date

APPENDIX A

Exhibit 1

Medical report from Dr. George Evans, (Form 4), dated 28 August, 1990

Exhibit 2

Clinical notes and records of Dr. George Evans, from September 4, 1980 to October 4, 1990

Exhibit 3

Hospital records of The Royal Ottawa Hospital

Exhibit 4

Hospital records of Beech Hill Hospital, New Hampshire

Exhibit 5

Clinical notes and records of Dr. M.J. Hamilton, from February 22, 1988

Exhibit 6

A report of Dr. Edward Day, dated June 10, 1988

Exhibit 7

Reports from Dr. Selwyn Smith, dated October 21, 1992

Exhibit 8

Miscellaneous medical and vocational care reports

Exhibit 9

Two additional Voc-Care Reports, dated January 31 and April 16, 1992

Exhibit 10

Agreement of Purchase and Sale with respect to the Carleton property, dated June 14, 1990

Exhibit 11

Commission Agreement in respect to the Gloucester properties, dated 12 May, 1990

Exhibit 12

Agreement of Purchase and Sale in respect to the Gloucester property, dated July 3, 1990

Exhibit 13

Agreement of Purchase and Sale in respect to the Gloucester property, dated July 3, 1990

Exhibit 14

Letters from K.M., Broker/Owner, C. Inc., dated August 24, 1990

Exhibit 15

Computer listing from C. Inc., in respect to the Ottawa property

Exhibit 16

Computer listing in respect to the Cambridge property

Exhibit 17

Real Estate Board of Ottawa Carleton, exclusive authority to sell on multiple listing service

Exhibit 18

Summary Administration report in bankruptcy, dated July 27, 1987

Exhibit 19

Handwritten letter from Ms. N. to "Chris", dated November 28, 1990

Exhibit 20

Description for the Gloucester property

Exhibit 21

Revenue Canada T-4 Slip for 1990

Exhibit 22

Employee Earnings Record for 1990

Exhibit 23

A handwritten Record of Earnings at P. Residential Real Estate Company.

Exhibit 24

Trade record sheet in respect of the Ottawa property

Exhibit 25

Record of earnings in respect to Ms. N.

Exhibit 26

Report from Dr. M.J. Hamilton, dated April 13, 1988

Exhibit 27

Revenue Canada T-4 slip for 1989

Exhibit 28

Curriculum vitae of Dr. Selwyn Michael Smith

Exhibit 29

Letter from C. McKinley Insurance Agent, Canada Employment and Immigration Centre to Ms. N., dated February 27, 1991

Exhibit 30

Original copy of Agreement of Purchase and Sale in respect to the Gloucester property, dated August 28, 1990.

Exhibit 31

Original copy of Agreement of Purchase and Sale in respect to the Gloucester property, unsigned

Exhibit 32

Letter from Terry Szeisried, Claims Adjustor, to the Applicant, dated October 30, 1990

Documents also before the arbitrator:

Report of Mediator, dated April 27, 1992

Application for Appointment of an Arbitrator, dated June 9, 1992, with 7 page attachment

Response of Insurer, dated July 7, 1992, with 6 page attachment

Reply by Insured Person, dated July 27, 1992, with 8 page attachment