Neutral Citation: 1993 ONICDRG 38

File No. A-001687

ONTARIO INSURANCE COMMISSION

BETWEEN:

SUKHWANT SINGH KAHLON

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Sukhwant Singh Kahlon, was injured in a motor vehicle accident on March 6, 1991. He applied for and received weekly income benefits of $600 a week from Royal Insurance Company of Canada under section 12 of the No-Fault Benefits Schedule (Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, c. I.8).

Royal Insurance terminated Mr. Kahlon's weekly income benefits, effective October 20, 1991, on the basis that he was no longer substantially unable to perform his essential tasks as a taxi driver. The dispute was not resolved through mediation and, therefore, Mr. Kahlon applied for arbitration.

Prior to the arbitration hearing, the parties agreed that Mr. Kahlon was not entitled to weekly income benefits of $600, but should have received only $352 a week. Because benefits had been paid at $600 for a period of thirty-two weeks, he was overpaid by $7,936.

The issues in this hearing are:

1. Is Mr. Kahlon entitled to weekly income benefits for any period after October 20, 1991?

2. Should Mr. Kahlon be required to repay the overpayment of $7,936 to Royal Insurance?

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

Result:

1. Mr. Kahlon is not entitled to weekly income benefits for any period after October 20, 1991.

2. Mr. Kahlon is required to repay the overpayment of $7,936 to Royal Insurance.

3. Mr. Kahlon is entitled to his expenses related to this arbitration, as set out in Ontario Regulation 664, Dispute Resolution Expenses.

Hearing:

The hearing was held in North York, Ontario, on March 8, March 11 and May 11, 1993, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant:

Sukhwant Singh Kahlon

Applicant's Representative:

Rebecca Nelson

Barrister and Solicitor

Insurer's Representative:

John Aikins

Barrister and Solicitor

Helen Silveira

Barrister and Solicitor (present on March 8, 1993)

Witnesses:

1. Sukhwant Singh Kahlon, the applicant

2. Peter Walker, claims adjuster

3. Dr. John G. Evans, orthopaedic surgeon

4. Karen Michelazzi, physiotherapist

Exhibits:

20 Exhibits were filed and are listed in Appendix A.

Reasons for Decision:

1. Background Facts

Mr. Kahlon was born on February 18, 1963. He came to Canada as a single person in February 1986 and lived with his brother in East York, Ontario. Mr. Kahlon obtained a licence to drive a taxi in 1986, but did not work as a taxi driver.

In 1990, Mr. Kahlon's family doctors were Dr. Bhopal and Dr. Shaikh, who practice together in downtown Toronto. Their clinical notes indicate that in June 1990, Mr. Kahlon was being seen for treatment and counselling for personal problems (Exhibit 11).

On July 31, 1990, Mr. Kahlon started working at Forest Hill Auto Body in Toronto as a painter's helper. He testified that he injured his back at work on September 10, 1990. The clinical notes of Dr. Bhopal indicate that Mr. Kahlon was not seen until September 12, 1990, when he complained of low back pain resulting from lifting. He was prescribed medication and limited to light duties for one week.

A form completed by Forest Hill Auto Body, dated September 20, 1990, states that Mr. Kahlon did not inform them of any injury until September 13, 1990, the day after he was advised that his employment was terminated (Exhibit 17). Mr. Kahlon went to see Dr. Bhopal again on September 14, 1990 and told him that working was still painful. Dr. Bhopal arranged for x-rays of Mr. Kahlon's back and recommended that he not work for one week, although it appears that he had no job to return to.

Mr. Kahlon saw Dr. Bhopal on September 21, 1990 and stated that he still was experiencing a lot of back pain. Dr. Bhopal indicated that he should not work until October 8, 1990. Sometime before November 9, 1991, Mr. Kahlon moved from his brother's apartment to Brampton, Ontario. He continued to see Dr. Bhopal and Dr. Shaikh, but their clinical notes indicate that he was also seeing Dr. Grewal, who practices in Bramalea, closer to Mr. Kahlon's new apartment. Dr. Grewal's clinical notes for this period were not provided.

Mr. Kahlon applied for workers' compensation benefits, claiming that he was injured at work on September 10, 1990 (Exhibit 17). On November 9, 1990, the Toronto North Integrated Service Unit denied his application, concluding that there was no proof of the accident.

Mr. Kahlon appealed this decision of the Toronto North Integrated Service Unit. On January 4, 1991, a Decision Review Specialist upheld the decision to deny Mr. Kahlon's application for workers' compensation benefits, concluding that the evidence did not support his claim that he was injured at work on September 10, 1990.

Mr. Kahlon moved back to live with his brother in East York. On February 19, 1991, he started to drive a taxi for Kingsboro Taxi. The arrangement was that he paid rent of $60 for a twelve-hour shift and was responsible for his own gas and oil. His daily shift was from 4:00 a.m. to 4:00 p.m. According to his "run sheets", Mr. Kahlon drove every day from February 19 to March 6, 1991, except February 24, 1991, a total of fifteen days of driving (Exhibit 8). He averaged approximately 19 trips and 140 kilometres a day.

Toward the end of his shift on March 6, 1991, Mr. Kahlon was involved in an accident. His taxi was hit from behind by another car. He was wearing a seat belt and did not hit his head. Mr. Kahlon drove the taxi back to the Kingsboro Taxi office. He either took a taxi or drove another car to York Finch General Hospital. At the hospital, he was examined, x-rayed, prescribed medication for pain, and referred to his family doctor for follow-up care.

Two days later, on March 8, 1991, Mr. Kahlon saw Dr. Grewal, who described his symptoms as follows (Exhibit 12):

Mr. Kahlon complained neck and shoulder pain on March 8/91. He was tender on neck sides and posteriorly and on both trapezius areas. ROM were painful and restricted at 3/4 of normal. He suffered moderate to severe cervical and shoulder sprain and was advised to take Robaxisal C 1/4 and rest and to apply heat locally as treatment...

The automobile that Mr. Kahlon was driving was insured by Royal Insurance. Mr. Kahlon applied to Royal Insurance for no-fault benefits under section 268(2) 1 .ii of the Insurance Act (Exhibit 18). He was paid weekly income benefits of $600 under section 12 of the No-Fault Benefits Schedule based on his reported weekly income at the time of the accident.

2. The Issues

Royal Insurance terminated Mr. Kahlon's weekly income benefits, effective October 20, 1991, on the basis that he was no longer substantially unable to work as a taxi driver. Mr. Kahlon maintains that at the time his benefits were cancelled, he was unable to return to work and continues to be eligible for weekly income benefits. The first issue is whether Mr. Kahlon is entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after October 20, 1991.

Prior to the arbitration hearing, the parties agreed that Mr. Kahlon had been overpaid. It was agreed that he was entitled to weekly income benefits of $352, rather than $600. Royal Insurance is seeking repayment of the amount by which Mr. Kahlon was overpaid. The second issue to be determined is whether Mr. Kahlon should be required to repay the overpayment to Royal Insurance under section 27(1) of the No-Fault Benefits Schedule.

3. Eligibility for Weekly Income Benefits

Eligibility for weekly income benefits is determined under section 12 of the No-Fault Benefits Schedule:

12 (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 income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

The parties agreed that the issue to be determined is whether, as a result of his accident on March 6, 1991, Mr. Kahlon continued to be substantially unable to perform the essential tasks of his occupation as a taxi driver for any period after October 20, 1991. The tasks of his occupation are the normal duties of a taxi driver.

Mr. Kahlon's position is that, as a result of the accident, he continues to suffer from neck and shoulder pain and headaches which prevent him from driving a cab. He testified that he attempted to return to work in March 1992 and January 1993, but was unable to continue for more than four days.

Mr. Kahlon described persistent and debilitating pain in his neck and shoulders. He also testified that approximately three months after the accident, he began to get severe headaches. His evidence was that these problems have prevented him from doing virtually anything since the accident. He testified that he spends most of his time just lying around the house.

I have concluded that the medical evidence does not support disabilities of the severity and duration described by Mr. Kahlon. Rather, I conclude, that he has limited his activities to an unreasonable extent and, consciously or unconsciously, has exaggerated his symptoms during medical examinations. Unfortunately, it appears that his lack of activity in the two years since the accident has made recovery more difficult.

Following his accident, Mr. Kahlon's primary doctor was Dr. Grewal. It was submitted on behalf of Royal Insurance that I should draw an adverse inference from the fact that Dr. Grewal was not called as a witness. In my opinion, it would be inappropriate to do so. The dispute resolution process under the Insurance Act is intended to be relatively informal and expeditious. It would be inconsistent with this goal to require oral evidence from all medical practitioners. The onus is on the applicant to prove his or her case, but it should be possible to rely on persuasive medical reports to meet that onus. One of the difficulties in this case is that Dr. Grewal's clinical notes are difficult to decipher and his reports are brief.

Dr. Grewal saw Mr. Kahlon two days after the accident. Mr. Kahlon complained of neck and shoulder pain and was only moving his neck "about 25% mobility". Dr. Grewal found neck spasms and prescribed medication. He also recommended physiotherapy.

Mr. Kahlon testified that he started physiotherapy at the end of March 1991. Unfortunately, no evidence was provided as to where the physiotherapy was done, what it involved, or its effect on Mr. Kahlon's condition. It is not clear from Dr. Grewal's clinical notes and reports whether he had any contact with the physiotherapy program.

Dr. Grewal continued to see Mr. Kahlon approximately every two weeks. It appears that during each visit, Dr. Grewal recorded Mr. Kahlon's complaints, examined his neck and shoulders, prescribed medication and continued to recommend exercises and physiotherapy. By May 10, 1991, Dr. Grewal was still finding neck spasms, but noted that Mr. Kahlon had full range of motion in his neck.

Mr. Kahlon acknowledged that he was encouraged to exercise. I find no evidence that he pursued any active exercise program. The only exercise that Mr. Kahlon was able to describe was that he attempted to stretch his neck for five minutes when he took a shower. It is difficult to regard this as exercise.

Royal Insurance arranged for Mr. Kahlon to be examined on May 22, 1991 by Dr. Zeldin, an orthopaedic surgeon. Dr. Zeldin did not find any muscle spasm and observed that Mr. Kahlon "guards extremes of rotation of his neck as this is uncomfortable for him." Dr. Zeldin concluded (Exhibit 2):

At the time of the collision patient sustained a mild to moderate myofascial strain to the muscles and ligaments of his neck. This produced some pain and stiffness for which patient was on an appropriate regimen of analgesics and physiotherapy.

This sequence of events is consequent upon and consistent with the nature of the patient's injury.

Patient still has some residual discomfort and I would recommend that he continue on his present regimen for a while longer, including physiotherapy, mild analgesics, and muscle relaxants. His physiotherapy should include an active exercise regimen.

Patient should gradually continue to improve on such a regimen and he should be encouraged to continue gradually increasing his activity as his pain regresses.

The prognosis her is for gradual improvement and one would not anticipate permanent or ongoing physical residual.

My feeling is that patient should be able to start getting back to the work situation based on a graduated part-time basis in about six weeks' time. He is going to require reassurance and encouragement in this regard. If he feels unable to do so at that time, we would require to reassess the situation.

It is not clear to me whether a copy of this report was provided to either Mr. Kahlon or Dr. Grewal. I find, however, that Dr. Grewal continued to recommend exercise, but that Mr. Kahlon did not pursue any active exercise program. He also did not return to any work within the six-week time frame suggested by Dr. Zeldin.

On June 21, 1991, Mr. Kahlon complained to Dr. Grewal for the first time of headaches. Dr. Grewal referred him to Dr. Best for investigation of the headaches. Dr. Best saw Mr. Kahlon on July 16, 1991 and concluded (Exhibit 10):

It would be my impression that his headaches are indicative of a benign post traumatic process. I doubt that he is going to require any neurological management per se. Hopefully involvement in a vigorous aerobic exercise programme will help to accelerate the remission of his symptoms. Foods that might have an impact upon this headache were outlined to him also.

Mr. Kahlon continued to visit Dr. Grewal regularly. Dr. Grewal noted little change in Mr. Kahlon's condition. I agree with counsel for Royal Insurance, however, that a great deal of Dr. Grewal's clinical notes simply chronicle Mr. Kahlon's complaints. It is clear that Mr. Kahlon was not involved in anything close to the type of "vigorous aerobic exercise programme" recommended by Dr. Best.

The claims adjuster, Mr. Walker, arranged for Mr. Kahlon to be seen by another orthopaedic surgeon, Dr. Evans, on October 22, 1991. Dr. Evans made the following observations:

He arose easily, walked down the hall, could stand on heels and toes. His cranial nerves are normal. His neck movements are done very carefully and about one quarter of the range.

This is simply not so when observed in the interview room when he would turn from side to side with a fluid of range of motion and no significant objections on his part.

Dr. Evans concluded:

This otherwise healthy man of 28 is now 7 months following a motor vehicle accident the mechanism of which is an acceleration extension one.

There is a paucity of clinical objective features to substantiate the degree of incapacity which he suggests at the present time. This is not to suggest that he does not have any symptoms, but he has not been particularly active since the incident and has rather sublimated his enthusiasm to accept his discomfort pattern.

In my opinion, there is no contraindication for him driving a cab even though he has some discomfort in his neck if he has to turn from side to side to see the mirror or the blind spot. This would be within his capabilities and may produce some symptoms...

A copy of this should go to his doctor to encourage him to return to his job driving a cab.

In my opinion, he is perfectly capable of doing this although he might have some symptoms that are not, in my opinion, in the disabling category.

Dr. Evans testified at the hearing. He is a doctor with a great deal of experience in examining patients who have been involved in automobile accidents. He is retained by both individuals and insurance companies. Dr. Evans did not find any neck spasms, but acknowledged that someone with neck spasms does not necessarily have them all of the time. I note, however, that Dr. Grewal's clinical notes for September and October 1991 do not appear to refer to neck spasms.

Dr. Evans stated that in his view, his findings were consistent with Dr. Zeldin's. Dr. Zeldin expected Mr. Kahlon to be able to return to work by the end of July 1991. In October 1991, Dr. Evans concluded that not only could Mr. Kahlon return to work as a taxi driver, but that it was important to his recovery that he do so.

Mr. Kahlon did not return to work or any other type of physical activity. On November 14, 1991, he went to India. I accept his evidence that he made the trip because his mother was ill. Mr. Kahlon testified that while he was in India, his mother arranged a marriage for him because she was worried about him. He was married in India on February 5, 1992.

Mr. Kahlon stated that he continued to have the same physical problems in India and, therefore, saw Dr. Kumar every two weeks. Dr. Kumar confirmed that he treated Mr. Kahlon for neck sprain and headaches from November 20, 1991 to March 10, 1992. He advised Mr. Kahlon "to take rest and prescribed pain pills and to take necessary massage" (Exhibit 4).

The difficulty with Dr. Kumar's report is that he does not indicate what kind of examinations he conducted, or what Mr. Kahlon told him about his condition. In my opinion, the fact that Mr. Kahlon was able to travel to India and be married is consistent with the opinions of Dr. Zeldin and Dr. Evans, but inconsistent with the degree of disability described by Mr. Kahlon.

Mr. Kahlon returned to Canada on March 12, 1992, but his wife was not able to accompany him. He saw Dr. Grewal eleven days later, on March 23, 1992. Dr. Grewal recommended that Mr. Kahlon return to work immediately. Again, I find this evidence inconsistent with Mr. Kahlon's testimony. He described little change in his condition during the time that he was in India and yet Dr. Grewal felt that he could return to work very shortly after his return to Canada.

Mr. Kahlon arranged through a friend to drive a taxi for Kingsboro on the 4:00 a.m. to 4:00 p.m. shift, starting on March 24, 1992. He worked for only three days. Mr. Kahlon testified that he had to lie down and rest between trips and could not continue for his whole shift due to pain. His trip sheets show the following (Exhibit 16):

Time out

Time in

Total kilometres

MARCH 25

5:00

5:20

7:00

7:15

11:20

11:25

1:00

1:20

65 kilometres

MARCH 26

4:15

4:30

6:00

6:10

8:30

8:50

9:00

9:10

11:30

11:40

45 kilometres

MARCH 27

5:00

5:05

8:00

8:15

12:05

12:35

77 kilometres

I am unable to accept that this was a sincere attempt to return to work. Mr. Kahlon acknowledged that he had been told by the doctors that he would experience some pain when he first returned to work. It is impossible to evaluate another person's pain, but his evidence gave little indication that he made any effort to work through his pain, as suggested by the various doctors.

I note that on the day before and on the day after his return to driving, Mr. Kahlon travelled at least half an hour to Bramalea to see Dr. Grewal. When he was asked about this, he testified that he had to stop along the way to rest and take pills. I found this evidence implausible and do not accept it. Mr. Kahlon was also asked why he chose to see Dr. Grewal instead of Dr. Bhopal or Dr. Shaikh, whose offices are much closer to his home. In my opinion, he did not provide a convincing explanation. It is difficult to reconcile Mr. Kahlon's evidence that he was unable to drive a taxi for short distances with his ability to travel to see Dr. Grewal.

In his report, dated April 13, 1992, Dr. Grewal states that he prescribed pain pills for Mr. Kahlon and advised him to rest and go to physiotherapy (Exhibit 5). He added a note stating that Mr. Kahlon was unable to work. In my view, this report simply reflects what Mr. Kahlon told Dr. Grewal. I note that in his report, dated February 26, 1993, Dr. Grewal states:

His headache and neck pain increased after starting work and was not able to continue and was advised further rest and physiotherapy. I encouraged him to return to work but he complained headache and wanted something be done to help him.

In my opinion, this comment is significant. It appears from all of the evidence that Mr. Kahlon was waiting for someone to cure him. Until that happened, he was unwilling to exercise or to make a reasonable attempt to return to work.

Mr. Kahlon was assessed at the Columbia Centre from June 1 to 5, 1992. This was a multi-disciplinary assessment involving twenty clinical contact hours with Mr. Kahlon. The report from the Columbia Centre (Exhibit 6) was supplemented by the oral evidence of the Ms. Michelazzi, the physiotherapist involved in the assessment. I found the report of the Columbia Centre and the testimony of Ms. Michelazzi to be clear and persuasive.

At the Columbia Centre, Mr. Kahlon demonstrated a limited range of motion in his neck when he was being examined. Outside of the formal examination, however, he was observed moving his neck to a much greater degree. This is consistent with the earlier observations of Dr. Evans. I find that, consciously or unconsciously, Mr. Kahlon has exaggerated his symptoms during medical examinations.

Mr. Kahlon's physical ability to perform the essential tasks of a taxi driver was specifically evaluated:

The results of the functional assessment indicate that Mr. Kahlon meets the basic requirements of his job as a taxi driver, with minor modifications. The modifications required consist of periodic breaks, of 3 to 5 minutes, from sitting and driving, to change his position, for example to stand or walk. These modifications are not incompatible with driving a taxi.

The report from the Columbia Centre concludes:

Mr. Kahlon has demonstrated an adequate level of function to return to his previous work as a taxi driver. However, his inability to manage his pain and his low level of fitness indicate that further improvement in his condition is possible. Our primary concerns relate to the amount of time which has elapsed since the accident, and Mr. Kahlon's lack of apparent progress in that time. As is typical of soft tissue injuries, the longer the problem remains unresolved post-injury, the more likely it is to become chronic. In the Interactional Assessment, his responses to questions about the marker symptoms of Chronic Pain Disability indicate that he is at severe risk of developing Chronic Pain Disability. In our opinion, it is imperative that he be strongly encouraged to progressively resume his normal activities, including his work...

In spite of the findings and recommendations of the Columbia Centre, Mr. Kahlon did not return to work. On July 28, 1992, Dr. Grewal reported to the insurance adjuster that in his opinion, Mr. Kahlon "should return to work at least on part-time basis if not full-time, as it is getting too long." Mr. Kahlon still did not attempt to return to work.

On or about September 1, 1992, Mr. Kahlon's wife was able to come to Canada and lived with him at his brother's apartment. Mr. Kahlon continued to see Dr. Grewal approximately twice a month, but the clinical notes do not indicate any major change in his condition.

Dr. Grewal referred Mr. Kahlon to Dr. Tyl at the Whiplash & Headache Clinic for a further assessment. In his report, dated November 10, 1992, Dr. Tyl states that his "impression" was that Mr. Kahlon was having post traumatic headaches with myofascial pain of the neck and trapezius (Exhibit 10). He recommended four occipital nerve blocks about one week apart, chiropractic treatment and an x-ray of the cervical spine. Dr. Tyl does not comment on the severity of Mr. Kahlon's symptoms and does not comment on his ability to work.

On January 1, 1993, Mr. Kahlon and his wife moved to their own apartment. On January 14, 1993, Mr. Kahlon rented a taxi from Boby's Taxi for $55 a shift. He drove for only four days. As with his previous return to driving, Mr. Kahlon testified that he had to rest between trips and could not complete his shift due to pain. His run sheets show the following:

Time out

Time in

Total kilometres

JANUARY 14

4:30

4:35

6:00

6:25

9:00

9:05

9:30

9:35

76 kilometres

Time out

Time in

Total kilometres

JANUARY 15

5:00

5:25

8:00

8:05

8:35

8:45

11:10

11:35

135 kilometres

JANUARY 16

6:10

6:20

8:00

8:30

11:05

11:10

1:30

1:55

Uncertain

JANUARY 17

5:10

5:12

8:00

8:20

10:45

11:00

124 kilometres

On February 26, 1993, Dr. Grewal reported, as follows:

Again he tried to return to work on Jan. 14, 15, 16 and 17, 1992 and his neck pain and headache increased and he was tender on neck sides and ROM were painful. He was given Idarac for pain.

In summary Mr. Kahlon suffered post traumatic headache with Myofascial sprain of neck and trapezius muscles and slowly he developed chronic pain syndrome.

This is a very difficult situation and it is hard to comment on his prognosis and return to work date.

Unfortunately, it appears that the prediction of the Columbia Centre may have come true and Mr. Kahlon may now fit the diagnosis of chronic pain syndrome. I am not convinced, however, that this diagnosis is determinative of Mr. Kahlon's eligibility for weekly income benefits.

First, I interpret Dr. Grewal's report to say only that he cannot predict when Mr. Kahlon will return to work, not that he is unable to return to work. Dr. Grewal previously encouraged Mr. Kahlon to return to work and appears to have run out of ideas for helping him.

Second, even if Mr. Kahlon is now unable to return to work, it is not clear to me that it is "as a result of an accident", as required by section 12 of the No-Fault Benefits Schedule. Various doctors have stated that Mr. Kahlon's condition would have benefited from exercise and a return to work. In my opinion, it is reasonable on the extreme facts of this case to regard Mr. Kahlon's failure to follow medical advice as the reason for his current disability.

I conclude, therefore, that Mr. Kahlon has not established that he was eligible for weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after October 20, 1991.

4. Overpayment

Mr. Kahlon received weekly income benefits of $600 for a total of thirty-two weeks. Prior to the arbitration hearing, the parties agreed that Mr. Kahlon's actual entitlement was $352 a week. I was not presented with sufficient evidence to determine whether or not this calculation is correct, but have accepted this figure based on the agreement of the parties. Assuming that Mr. Kahlon was only entitled to $352 a week, I find that he was overpaid $7,936 ($600 - $352 = $248 x 32 = $7,936).

Royal Insurance is seeking repayment of the overpayment under section 27(1) of the No-Fault Benefits Schedule:

27 (1) A person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud.

It was submitted on behalf of Mr. Kahlon that Royal Insurance is estopped from recovering the overpayment because Mr. Kahlon provided all of the information that was required by Royal Insurance. For the following reasons, I am unable to agree.

Royal Insurance retained Delong and Partners, independent adjusters, to adjust Mr. Kahlon's claim. Mr. Walker, a claims adjuster, met with Mr. Kahlon on March 26, 1991. Mr. Kahlon advised Mr. Walker that he had been working as a taxi driver for a couple of weeks. He stated that before working as a taxi driver, he received Unemployment Insurance for approximately fifteen weeks, and had worked for an auto body shop for approximately nine weeks. Mr. Walker incorrectly recorded the name of the auto body shop as "First Hill", instead of "Forest Hill Auto Body".

In order to determine Mr. Kahlon's entitlement, Mr. Walker asked him to provide a T4 form, his income tax return and his G.S.T. reporting form for the year prior to the accident. Mr. Kahlon advised him that he did not have any of these documents.

Mr. Kahlon's application for no-fault benefits, dated March 28, 1991, states his income as follows: "Drive Taxi to take on Rent and make about $800 - 900 hundred weekly" (Exhibit 18). He provided his "run sheets" from Kingsboro Taxi (Exhibit 8) and a signed release authorizing Royal Insurance to obtain his employment records.

According to section 12 of the No-Fault Benefits Schedule, the amount of an applicant's benefits is determined according to his or her income for the four or fifty-weeks preceding the accident, whichever is greater. Based on Mr. Kahlon's run sheets, Royal Insurance decided that Mr. Kahlon's average gross weekly income for the four weeks preceding the accident exceeded $750 and, therefore, he was entitled to weekly income benefits of $600 a week.

During the mediation, Royal Insurance took the position that Mr. Kahlon had not provided sufficient information to support his entitlement to $600 a week. Mr. Kahlon consented to this issue being included in the mediation, but it was not resolved.

It appears to me that Royal Insurance was attacking the credibility, or at least the sufficiency, of Mr. Kahlon's run sheets. Prior to the hearing, the parties agreed that he was only entitled to receive $352 a week. This figure appears to have been based on Mr. Kahlon's income from Forest Hill Auto Body, where he earned $10 an hour and worked a forty-four hour week (44 hr/wk x $10/hr = $440/wk x 80% = $352).

Mr. Kahlon's position is that Royal Insurance is estopped from recovering the overpayment because it failed to determine his income from Forest Hill Auto Body, and to base his weekly income benefits on that income. But should Royal Insurance have investigated Mr. Kahlon's income from Forest Hill?

It is reasonable for an applicant to rely on the insurance company to calculate his or her benefits properly, but insurers must often base their calculations on information provided by the applicant. Mr. Kahlon provided information to Royal Insurance only about his income as a taxi driver. By my calculations, the run sheets indicate that in the four weeks preceding the accident, he drove a taxi on fifteen days and earned an average of $140 a day.

Royal Insurance was faced with a decision whether to pay Mr. Kahlon weekly income benefits based on his run sheets. There was no indication that Mr. Kahlon had earned more from Forest Hill Auto Body. In fact, he earned less. It is unclear to me, therefore, why Royal Insurance should have pursued that information. I find no reason to criticize the decision to provide Mr. Kahlon benefits based on the information that he provided.

I conclude, therefore, that Royal Insurance is not estopped from recovering the overpayment and that Mr. Kahlon is obligated to repay the overpayment of $7,936 to Royal Insurance under section 27(1) of the No-Fault Benefits Schedule.

5. 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:

282 (11) 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 Ralph McCormick v. Economical Mutual Insurance Company (O.I.C. File No. A-000139, dated October 2, 1991), 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 Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero v. The Co-Operators General Insurance Company (O.I.C. Appeal No. P-000251, dated February 13, 1992).

Although Mr. Kahlon was not successful in this arbitration, I conclude that he is entitled to his expenses, according to the schedule.

Order:

1. Mr. Kahlon is not entitled to weekly income benefits for any period after October 20, 1991.

2. Mr. Kahlon is required to repay the overpayment of $7,936 to Royal Insurance.

3. Mr. Kahlon is entitled to his expenses related to this arbitration, as set out in Ontario Regulation 664, Dispute Resolution Expenses.

June 23, 1993

David R. Draper

Arbitrator

Date

APPENDIX A

Exhibit 1

Photocopy of a note from Dr. K.S. Grewal, dated March 18, 1991

Exhibit 2

Photocopy of the report of Dr. John Zeldin, Riverfront Medical Services, Ltd., dated May 22, 1991.

Exhibit 3

Photocopy of the report of Dr. John G. Evans, Canadian Trauma Consultants Limited, dated October 28, 1991.

Exhibit 4

Photocopy of the report of Dr. Rajesh Kumar, dated March 10, 1992.

Exhibit 5

Photocopy of the report of Dr. K.S. Grewal, dated April 13, 1992.

Exhibit 6

Photocopy of the report of the Columbia Centre for Integrated Health Services, dated June 24, 1992.

Exhibit 7

Photocopy of the report of Dr. K.S. Grewal, dated July 28, 1992.

Exhibit 8

Mr. Kahlon's run sheets for Kingsboro Taxi Limited, dated February 5, 1991, February 19-23, 1991, February 25-28, 1991, March 1-4, 1991 and March 6, 1991 (14 pages).

Exhibit 9

Photocopy of Mr. Kahlon's assessment from Revenue Canada Taxation for the 1990 tax year. A photocopy of Mr. Kahlon's income tax return for the 1991 tax year.

Exhibit 10

Photocopies of the clinical notes and records of Dr. Grewal. Photocopies of the following reports from Dr. Grewal's file:

• Report of Dr. Best to Dr. Grewal, dated July 16, 1991.

• Report of Dr. Tyl to Dr. Grewal, dated November 10, 1992.

• X-ray report from Bramalea Medical Centre, requested by Dr. Grewal, dated June 21, 1991.

• Electroencephalography report, requested by Dr. Grewal, dated July 18, 1991.

• Report of Dr. Tyl to Dr. Grewal, dated December 21, 1992.

• Report of Dr. Joshi to Dr. Grewal, dated March 2, 1993.

Exhibit 11

Photocopies of the clinical notes and records of Dr. M.U. Shaikh and Dr. V.K. Bhopal (5 pages).

Exhibit 12

Report of Dr. K.S. Grewal, dated February 26, 1993.

Exhibit 13

Letter, dated January 18, 1993, from Boby's Taxi Inc.

Exhibit 14

Letter, dated November 20, 1992, from Surinder Kahlon.

Exhibit 15

Mr. Kahlon's run sheets for January 14 - 17, 1993 (4 pages).

Exhibit 16

Mr. Kahlon's run sheets for March 24 - 26, 1992.

Exhibit 17

Photocopies of documents relating to Mr. Kahlon's workers' compensation claim (10 pages).

Exhibit 18

Mr. Kahlon's Application for Accident Benefits, dated March 28, 1991 (note: page 2 is improperly photocopied).

Exhibit 19

Photocopy of the curriculum vitae of Dr. John G. Evans.

Exhibit 20

Photocopy of the curriculum vitae of Karen Michelazzi.