Neutral Citation: 1993 ONICDRG 83

File No. A-001933

ONTARIO INSURANCE COMMISSION

BETWEEN:

YOUASH BREEMO

Applicant

and

THE DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Youash Breemo, was involved in a motor vehicle accident on July 19, 1990. At the time of the accident, he had a full-time job and a part-time job. He stopped working at his part-time job approximately one week after the accident, but continued to work at his full-time job until February 14, 1991.

On February 28, 1991, Mr. Breemo applied to The Dominion of Canada General Insurance Company ("the Dominion") for no-fault benefits. He was paid weekly income benefits under section 12 of the No-Fault Benefits Schedule (Ontario Regulation 672, enacted under the Insurance Act, R.S.O. 1990, c. I.8).

The Dominion terminated Mr. Breemo's weekly income benefits, effective July 25, 1991, on the basis that he was no longer substantially unable to perform the essential tasks of his employment as a result of the accident. Mr. Breemo applied for mediation, but the dispute was not resolved.

Mr. Breemo then applied for arbitration. The issues in this hearing are:

1. Is Mr. Breemo entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after July 25, 1991?

2. Should the Dominion be ordered to pay Mr. Breemo a special award under section 282(10) of the Insurance Act because it unreasonably withheld or delayed payments?

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

Result:

1. Mr. Breemo is not entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after July 25, 1991.

2. The Dominion did not unreasonably withhold or delay payments and, therefore, is not required to pay a special award under section 282(10) of the Insurance Act.

3. Mr. Breemo is entitled to his expenses related to this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

Hearing:

The hearing was held in London, Ontario, on July 14 and 15, 1993, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant:

Youash Breemo

Applicant's

Tracy Foster

Representative:

Barrister and Solicitor

Insurer's

Daniel McCann

Representative:

Barrister and Solicitor

Witnesses:

1. Youash Breemo, the applicant

2. Gary Robb, private investigator

3. Dr. Sol Goldenberg

Exhibits:

Thirty-one exhibits were filed and are listed in Appendix A. In addition to the exhibits, the following documents were also before the arbitrator:

• Report of Mediator, dated September 10, 1992

• Letter, dated July 12, 1993, from a follow-up pre-hearing arbitrator confirming the pre-hearing discussion

• Brief of legislation and authorities, prepared by Mr. Breemo's representative.

Reasons for Decision:

1. Eligibility for Weekly Income Benefits

a) The Issue

The principal issue in this arbitration is whether Mr. Breemo is eligible to receive weekly income benefits for any period after July 25, 1991. His eligibility is determined under the following provisions of 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 any 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).

(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1);

1. He or she must have been at the time of the accident,

i. employed or self-employed,

2. He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks of his or her occupation or employment.

Mr. Breemo claims that he is entitled to ongoing weekly income benefits because he has continued to be substantially unable to perform the essential tasks of his pre-accident employment. The parties agree that according to section 12(5)(b) of the No-Fault Benefits Schedule, the test for eligibility changes after 156 weeks and that this arbitration is only to deal with Mr. Breemo's eligibility for the 156 weeks following the accident.

The Dominion takes the position that the evidence does not establish that Mr. Breemo was substantially unable to perform the essential tasks of his employment for any period after July 25, 1991. Alternatively, it was submitted that Mr. Breemo failed to show that the accident on July 19, 1990 is the source of any of his ongoing limitations. It was suggested that his problems could have resulted from previous automobile accidents which occurred on April 4, 1987 and May 27, 1987.

During the pre-hearing discussion, held on April 13, 1993, the pre-hearing arbitrator ordered Mr. Breemo to obtain and provide the Dominion with medical reports and records relating to his two previous accidents. At the hearing, Mr. Breemo's lawyer objected to the introduction of this evidence (Exhibits 22, 23, 24, 25 and 26). She submitted that it was not relevant because the earlier accidents took place before Ontario moved to the no-fault system and, therefore, different issues were involved.

At the hearing, I decided that the evidence was relevant and should be admitted. In my view, the Dominion raised a legitimate issue about the relative impact of the three accidents on Mr. Breemo's condition. I was also convinced that the evidence was relevant to the issue of Mr. Breemo's credibility.

b) Findings

As a general observation, Mr. Breemo's testimony was extremely vague and his answers were often unresponsive. He was unable to provide a clear work history. The most troublesome aspect of his testimony, however, was his inability to explain his dealings with the various doctors in relation to the three accidents. In my view, the central problem with the evidence in this case is that Mr. Breemo saw a number of doctors, but did not provide them with complete or accurate information about his condition.

Mr. Breemo was born in 1943 and is currently fifty years old. He is married and has two children. My understanding is that he was born in Iraq and came to Canada in 1975. He testified that from 1975 to 1981, he was steadily employed as a printer. After spending some time outside of Canada, Mr. Breemo returned to school to study graphic arts. He testified that he worked at a number of jobs in the printing field, although he could not provide details.

In 1987, Mr. Breemo was living in Hamilton, Ontario. He was involved in an automobile accident on April 4, 1987. He could not remember if he was working at the time of the accident. He testified that, initially, he did not think that he was hurt, but later developed some pain in his neck and shoulders. He thought that the pain would go away, so he did not seek medical treatment.

On May 27, 1987, Mr. Breemo was involved in a second automobile accident. Again, he could not remember if he was working at the time. He testified that he developed pain in his middle and lower back.

It appears that Mr. Breemo did not consult a doctor about the first two accidents until he saw Dr. Jamani on August 11, 1987. Dr. Jamani's clinical notes indicate that Mr. Breemo told her about the May 1987 accident, but her report, dated September 5, 1988, states that he was involved in an accident in or about April 1987. It is not clear to me that Dr. Jamani's was aware that Mr. Breemo had been in two separate accidents. Her clinical notes and report reveal, however, that she treated him only for back problems. No mention is made of neck or shoulder pain.

Dr. Jamani diagnosed Mr. Breemo as having suffered a mild to moderate soft-tissue injury of the lumbar area, and referred him to a physiotherapy program. Mr. Breemo testified that he went for physiotherapy approximately fifteen times. Dr. Jamani's notes of December 10, 1987 indicate that Mr. Breemo had completed physiotherapy and that his range of motion was 75% -90% of normal. He was to continue with his home exercises and see her again in one month.

Instead of seeing Dr. Jamani in January 1988, Mr. Breemo saw Dr. Sulkowski. In her report, dated April 28, 1988, Dr. Sulkowski indicates that Mr. Breemo told her about the first accident, but not about the second. According to Dr. Sulkowski's clinical notes, Mr. Breemo told her that his former physician did not do anything to treat his injuries and did not provide reports. He complained about his neck and shoulder, but not about his back. X-rays were taken of his neck and Dr. Sulkowski diagnosed him as having suffered a moderate cervical hyperextension strain.

On February 8, 1988, Mr. Breemo saw Dr. Sulkowski again about his neck. Despite his apparent dissatisfaction with Dr. Jamani, he saw her again on the following day, February 9, 1988, about his back. Mr. Breemo continued to see both doctors. There is no indication that either doctor knew that Mr. Breemo had other complaints for which he was seeing another doctor.

At some point before April 28, 1988, Mr. Breemo retained a lawyer to represent him with respect to his first two accidents. These accidents took place prior to the effective date of Ontario's no-fault system and, therefore, were dealt with as tort claims. By September 1988, Mr. Breemo's lawyers had been provided with reports from both Dr. Jamani and Dr. Sulkowski and, therefore, were aware that he was receiving treatment from both doctors.

Although he was uncertain about the dates, Mr. Breemo testified that in the early part of 1989, he worked for a car dealership in Hamilton, Ontario. He agreed that Dr. Jamani's clinical notes of April 24, 1989 relate to this job:

Since the last visit - tried some work. Work involved moderate lifting. This caused backache. Eventually he couldn't stand the pain any more and ... quit work.

Approximately two years after his first two accidents, Mr. Breemo was still complaining of pain in his back that was sufficiently serious that he could not continue working. Dr. Jamani recommended that he avoid heavy work, use hot and cold packs, and continue with his exercises. Mr. Breemo did not return to work at the car dealership.

In or about September 1989, Mr. Breemo moved to London, Ontario. He testified that approximately three months after this move, he started a job as a camera operator. In February 1990, after approximately three months, he quit this job. Mr. Breemo testified that he left this job because of a disagreement with his employer. He stated that his employer was not satisfied with the quality of his work and wanted to bring in a woman to replace him.

It was suggested to Mr. Breemo in cross-examination that he quit due to back and neck pain. He was not seeing a doctor in London and, therefore, there are no medical records for late 1989 or early 1990. On April 6, 1990, however, Mr. Breemo travelled to Hamilton to see both Dr. Jamani and Dr. Sulkowski.

Dr. Jamani's clinical notes indicate that Mr. Breemo gave up his job because his back pain was exacerbated by work. She recommended that he lose weight, continue to exercise and find a family doctor in London to provide further care. Dr. Sulkowski's report, dated June 21, 1990, states that on April 6, 1990, Mr. Breemo complained of pain in both shoulders and his neck, as a result of his work which involved lifting heavy chemicals. Mr. Breemo conceded that the doctors' notes probably reflect what he told them, but maintained that the disagreement was the primary reason that he left his job as a camera operator.

The evidence about Mr. Breemo's pre-accident condition is troubling. It raises questions about the relative impact of the third accident on his condition. After his two accidents in 1987, he worked only sporadically. In April 1990, approximately three years after his first two accidents and just three months before his third accident, he was still complaining of pain in his neck, shoulder and back.

Moreover, the evidence suggests that Mr. Breemo was less than candid with his doctors. While it may be perfectly legitimate to see more than one doctor, I find it extremely difficult to understand how Mr. Breemo could have seen Dr. Jamani for such a long period of time without revealing neck and shoulder problems of the magnitude that he described to Dr. Sulkowski. Conversely, it is difficult to understand how Dr. Sulkowski could have remained unaware of the type of back problems that Mr. Breemo was describing to Dr. Jamani.

On May 24, 1990, approximately three months after he quit his job as a camera operator, Mr. Breemo started a full-time job at Form Rite, as a "bender assembler". The job involved placing steel tubes, the larger ones weighing 10 - 15 pounds, onto a machine, bending the tubes, and putting them into a box for shipping. I accept that the job was moderately demanding and involved standing, bending and lifting.

In June 1990, Mr. Breemo started a part-time job at Pond Mills Decorating Inc. His duties involved delivering paint tins by automobile. I accept Mr. Breemo's evidence that he had to load and unload paint tins that weighed up to 40 pounds.

Mr. Breemo's precise starting date at Pond Mills is unclear. On his Application for Accident Benefits, dated February 28, 1991, he indicated that he had been working at Pond Mills Decorating for six weeks at the time of his accident on July 19, 1990. This is roughly consistent with the Employer's Confirmation of Income, signed by Mr. H. Khoshaba on February 28, 1991, which states that Mr. Breemo started work at Pond Mills Decorating on June 10, 1990, although I note that was a Sunday. However, in his affidavit, dated June 17, 1993, Mr. Khoshaba states that Mr. Breemo worked "from approximately June 20, 1990".

On June 28, 1990, approximately five weeks after he started work at Form Rite, and one week after he started at Pond Mills Decorating, Mr. Breemo was laid-off indefinitely from Form Rite. However, he was hired back approximately two weeks later, on July 9, 1990.

Mr. Breemo testified that just prior to his accident on July 19, 1990, his neck and back were "good". He stated that he probably had some pain, but it was not too bad. In their sworn statements, both of Mr. Breemo's employers state that he did not complain of back or neck pain prior to his accident on July 19, 1990. I accept that prior to his accident, Mr. Breemo was performing the essential tasks of his employment at both Form Rite and Pond Mills.

Mr. Breemo testified that at the time of the accident, he did not want to go to the hospital. He stated that within a few hours, however, he started to feel pain, which got worse over the next few days. Despite this, he continued to work full-time at Form Rite and did not advise his employer about the accident.

Mr. Breemo testified that he stopped working at Pond Mills Decorating immediately after the accident because the work was too heavy and, together with his full-time job, he was working too many hours. His Application for Accident Benefits states that he "could not continue to work [at Pond Mills] because of pain after accident". The evidence from his employer, however, indicates that he continued to work at Pond Mills until July 25, 1990.

I do not place a great deal of weight on the fact that Mr. Breemo stopped working at Pond Mills. He has no history of working two jobs at the same time, and the timing suggests that he may have found a part-time job to deal with the upcoming lay-off and uncertain future at Form Rite.

Approximately one week after the accident, Mr. Breemo decided that he should see a doctor. He did not have a regular family doctor and, therefore, phoned for a referral. According to Dr. Hawash-Mostafa's report, dated November 22, 1990, she first saw Mr. Breemo on July 27, 1990, eight days after his accident.

Dr. Hawash-Mostafa found extreme tenderness and a decreased range of motion in Mr. Breemo's neck and right shoulder. X-rays were done, apparently on July 30, 1990, which showed some mild disc degeneration. Dr. Hawash-Mostafa prescribed "a strong analgesic and muscle relaxant", and referred Mr. Breemo for physiotherapy at St. George Street Physiotherapy.

Mr. Breemo testified that he told Dr. Hawash-Mostafa about his previous accidents. There is no indication in her reports, however, that she was aware of them. Given Mr. Breemo's failure to provide other doctors with a complete history, I am not prepared to accept his evidence that he advised Dr. Hawash-Mostafa that he had been in two previous accidents.

On September 12, 1990, two months after his third accident, Mr. Breemo was seen by Dr. Blackman, an orthopaedic surgeon. This examination was arranged by the lawyers who were acting for him with respect to the first two accidents. Although he had been in a third accident only two months earlier, I find that Mr. Breemo did not advise Dr. Blackman, or apparently, his lawyers, of that fact. This is difficult to understand, particularly given his evidence that the third accident was the most serious of the three.

It is possible that Mr. Breemo felt that he was seeing Dr. Blackman only about his first two accidents. However, the following inconsistencies in Dr. Blackman's report, dated September 15, 1990, lead me to the conclusion that Mr. Breemo deliberately misled him about his situation:

1. Mr. Breemo's family doctor is listed as Dr. Jamani. Dr. Sulkowski and Dr. Hawash-Mostafa are not mentioned.

2. Dr. Blackman states that he asked Mr. Breemo to "describe his symptoms as they have persisted on and bothered him over the past three months". In my view, it is extraordinary that Mr. Breemo responded to this question without mentioning the fact that he had been in an accident within the past three months in which he injured his back and neck.

3. The report indicates that Mr. Breemo told Dr. Blackman that he was unable to do heavy work, including work as a graphic artist or assembler. At the time of the examination, however, Mr. Breemo was still working at Form Rite, and continued to do so, without interruption, for approximately another four months.

4. The report also indicates that Mr. Breemo told Dr. Blackman that he did not have any current treatment, except for occasional pain medications. The evidence of Dr. Hawash-Mostafa, however, is that she referred Mr. Breemo for physiotherapy.

5. The report states that Mr. Breemo told Dr. Blackman that, compared to one year prior to the examination, his neck had improved 25% and his low back had improved 40 to 50%. This is difficult to reconcile with Mr. Breemo's evidence that the third accident was the most serious.

When he was asked about these inconsistencies, Mr. Breemo stated that his lawyer forced him to see Dr. Blackman, and that he "probably forgot" to tell Dr. Blackman about the third accident. I find this explanation wholly unconvincing.

Dr. Blackman, therefore, examined Mr. Breemo on the basis that his disabilities were the result of the first two accidents. He found that Mr. Breemo's subjective complaints were more serious than the objective findings, but noted:

It is not at all unusual to find more subjective complaints than objective abnormalities and by itself this does not constitute an assault upon the integrity of the individual.

It is particularly common in individuals who do not have a mastery of the English language to be rather demonstrative during the physical examination and it makes it difficult from the examiner's point of view to interpret many tests that have a subjective nature about them, such as muscle testing and pinprick sensation. This is noted to be the case here.

Mr. Breemo had follow-up visits with Dr. Hawash-Mostafa on September 7, 1990 and October 10, 1990. She found that his neck and right shoulder were worse, in spite of the medication and physiotherapy. Her report to Mr. Breemo's lawyers in this arbitration, dated November 22, 1990, indicates that she "advised him that he should stop work because his job requires physical and repetitive action in the shoulder, until the pain is resolved".

Mr. Breemo testified that he kept working at Form Rite because he was a new employee and was concerned that he would be fired if he took time off. There is no indication that Mr. Breemo missed any work due to problems with his neck, shoulder or back. He continued to work at Form Rite until January 3, 1991, when he missed time due to pneumonia. He returned to work on January 21, 1991.

On February 1, 1991, an announcement was made at Form Rite that there would be a lay-off. Mr. Breemo apparently was not at work that day and, therefore, missed the announcement. On February 14, 1991, Mr. Breemo notified his employer, for the first time, that he had been in a motor vehicle accident on July 19, 1990, and was unable to continue working due to his injuries.

Mr. Breemo testified that he was unaware of the lay-off until after he stopped working. I am unable to accept this evidence. Even if he was not at work on the day that the lay-off was announced, I find it implausible that he would not have heard about the lay-off from his co-workers when he returned to work. In all of the circumstances presented in this case, I am also unable to accept that it is merely a coincidence that Mr. Breemo was able to work at Form Rite until shortly before he was scheduled to be laid off.

The Record of Employment, dated February 27, 1991, indicates that Mr. Breemo left work on February 14, 1991 due to a disability. Effective March 7, 1991, there was a lay-off at Form Rite that included Mr. Breemo's position. Another Record of Employment was prepared on March 8, 1991, which indicates that Mr. Breemo was laid off, and that his return date was unknown. He has not returned to work. Except for a four-week recall in August 1991, Mr. Breemo's job has not been available to him.

In summary, I find that Mr. Breemo worked as follows:

May 24, 1990 - June 19, 1990

Form Rite

June 20, 1990 - June 28, 1990

Form Rite and Pond Mills

June 29, 1990 - July 8, 1990

Pond Mills

July 9, 1990 - accident

Form Rite and Pond Mills

July 20, 1990 - July 25, 1990

Form Rite and Pond Mills

July 25, 1990 - Jan. 3, 1991

Form Rite

Jan. 21, 1991 - Feb. 14, 1991

Form Rite

When he stopped working at Form Rite, Mr. Breemo immediately applied for sickness and accident benefits from Prudential Insurance, Form Rite's insurer. On February 15, 1991, Dr. Hawash-Mostafa prepared a handwritten note indicating that Mr. Breemo was unable to continue working due to pain in his back. Mr. Breemo received $200 a week from Prudential Insurance, starting February 14, 1991.

On February 28, 1991, Mr. Breemo applied to the Dominion for no-fault benefits. I note that his application states that he is not insured under any other sick leave plan or income continuation benefit plan, even though he had already applied to Prudential Insurance for sickness and accident benefits and might already have been receiving benefits.

Mr. Breemo's application for no-fault benefits was supported by a medical form completed by Dr. Hawash-Mostafa on February 28, 1991. The report states that Mr. Breemo suffered a multiple soft-tissue injury of the paracervical spine and lumbar regions, and indicates that he had been prescribed muscle relaxants and anti-inflammatory mediation. It also indicates that Mr. Breemo had been seen by Dr. Teasle, a rehabilitation specialist, on December 6, 1990, although no report from Dr. Teasle was presented.

The Dominion began to pay weekly income benefits to Mr. Breemo under section 12 of the No-Fault Benefits Schedule. Dr. Hawash-Mostafa completed another medical form, dated April 26, 1991, in which she indicated that it is "unpredictable" when he would be able to return to work.

The Dominion arranged for Mr. Breemo to be examined by Dr. Goldenberg on June 10, 1991, nearly one year after the accident and four months after he stopped working. I accept Dr. Goldenberg's evidence that he took a history from Mr. Breemo and then dictated that portion of his report in his presence.

Dr. Goldenberg's report states: "He denies any prior motor vehicle accident or problems with the areas noted above under Present Complaints." Mr. Breemo conceded that the report was "probably right". I find that Mr. Breemo specifically denied that he had been involved in any motor vehicle accidents prior to July 19, 1990.

Dr. Goldenberg reported that Mr. Breemo moved his neck "in a slow and guarded manner with accompanying wincing and sighing". He walked "with a very slow deliberate somewhat shuffling gait favouring the right lower extremity. He stated that he was unable to attempt toe or heel walking or squatting, he would not attempt flexion or extension of his spine and there was virtually no right and left lateral flexion." Dr. Goldenberg concluded:

The findings that he presents with today seem to me to be largely if not completely functional and I also believe that there is a significant likelihood of voluntary magnification. There is a possibility that he has fibromyalgia which equates with a chronic pain syndrome but I tend to favour the former two considerations and I will discuss this further with you on the telephone.

Dr. Goldenberg was sufficiently suspicious that he suggested to the Dominion that it arrange for surveillance of Mr. Breemo in order to determine his true functional ability.

Mr. Breemo's benefits from Form Rite's insurer, Prudential Insurance, continued until June 13, 1991, when he had received the maximum amount available under the plan. He continued, however, to receive weekly income benefits under the No-Fault Benefits Schedule from the Dominion.

On June 27, 1991, Mr. Breemo went to see a new family doctor, Dr. Munro. Mr. Breemo testified that he was not satisfied with the treatment that he was receiving from Dr. Hawash-Mostafa. He told Dr. Munro about the third accident, but not about the first two. Dr. Munro found tenderness in all vertebrae from Mr. Breemo's neck down through his lumbar spine, and that the range of movement in his neck was reduced by 50 per cent in all directions. Dr. Munro prescribed analgesics and recommended that Mr. Breemo continue with physiotherapy.

The Dominion retained Mr. Robb to do surveillance on Mr. Breemo. He observed Mr. Breemo on July 4 and 23, 1991 and made a videotape recording. Throughout the videotape, Mr. Breemo is seen moving rather slowly, but without any obvious restrictions. He bends at the waist, reaches above his head, squats to look under his car, moves his neck in all directions, and walks without a limp.

I accept the submission that the activities shown on the videotape do not approximate Mr. Breemo's pre-accident employment duties. In my view, however, the videotape is significant because it is inconsistent with the degree of restriction that Mr. Breemo reported to the various doctors. Dr. Goldenberg viewed the videotape prior to the arbitration hearing and testified that Mr. Breemo's movements on the videotape were much different than those presented in his office. Although I found Dr. Goldenberg's evidence quite partisan, I accept it in this respect.

Mr. Breemo's weekly income benefits were terminated, effective July 25, 1991. He did not immediately dispute this decision by applying for mediation.

Some months later, Dr. Munro referred Mr. Breemo to Dr. Finestone, a specialist in Physical Medicine and Rehabilitation (Physiatrist). Dr. Finestone examined Mr. Breemo for the first time on February 19, 1992, almost seven months after his weekly income benefits were terminated, and nineteen months after his third accident. I find that Mr. Breemo did not advise Dr. Finestone about his first two accidents. Dr. Finestone found the following restrictions:

... neck - he had decreased range of motion in all directions because of pain referred to posterior cervical muscles. Manual pressure would allow a few more degrees but still he was reluctant to move because of the pain. Palpation revealed tenderness mainly over the paracervical muscles bilaterally with less tenderness over the trapezius muscles. There was no significant tenderness over the pectoralis major, plarascapular or sternocleidomastoid muscles

... Back - there was really little motion in the back when asked to lean forward or extend backward because of the patient's noted pain in the low back region. Lateral flexion was the same. He was extremely tender upon palpation of the parathoracic, paralumbar and buttock right with pain mainly referred to the low back and some pain in the right anterior thigh but none down the leg.

Dr. Finestone concluded that Mr. Breemo's neck and back pain were musculoligamentous in origin. She also found that his situation was complicated by the fact that he had not worked for a prolonged period of time, was depressed, deconditioned and "basically being held prisoner by his pain." She stated that "[m]inimal movement of the neck and low back is presently occurring due to the pain and the fact that it appears that Mr. Breemo is equating this pain with harm to his body." She expressed concern that "if a multifactorial approach is not applied then I would suspect he is doomed to being in chronic pain for a long period of time."

As with the other medical reports, Dr. Finestone's conclusions are based largely on Mr. Breemo's subjective report of his own pain. I find that the restrictions that Mr. Breemo described to Dr. Finestone are inconsistent with the surveillance evidence. Although the examination was done approximately seven months after the surveillance, Mr. Breemo did not suggest to Dr. Finestone that his condition had deteriorated. Rather, he told her that the past two months of physiotherapy had resulted in only "minimal improvement", and that his neck had improved by approximately 50 per cent since the accident.

Dr. Finestone recommended that Mr. Breemo continue with physiotherapy and referred him to Dr. Shapiro to see if some management in pain coping skills, relaxation therapy and the like would be of benefit. Mr. Breemo saw Dr. Finestone again on May 1, 1992. He continued to see Dr. Munro approximately every two months and went for physiotherapy, but apparently did not see Dr. Shapiro.

In or about early May 1992, Mr. Breemo applied for mediation of the Dominion's decision to terminate his weekly income benefits, effective July 25, 1991. The Report of Mediator, dated September 10, 1992, indicates that the impact of Mr. Breemo's first two accidents was one of the issues that was discussed during the mediation. The dispute was not resolved through mediation and on November 24, 1992, Mr. Breemo applied for arbitration.

In December 1992, Mr. Breemo applied for Canada Pension Plan disability benefits. His application was supported by a medical report from Dr. Munro, dated December 17, 1992 (Exhibit 31). Dr. Munro states that Mr. Breemo was a previously healthy man who suffered a flexion-extension injury of the neck and back in a motor vehicle accident on July 19, 1990. The report also states:

Mr. Breemo had no health problems prior to M.V.A. Since then has been unable to work due to constant pain neck and back.

Mr. Breemo was granted Canada Pension Plan disability benefits, retroactive to January 1992. The parties agree that Mr. Breemo's entitlement will need to be adjusted to reflect these benefits.

Based on the evidence presented in this hearing, Dr. Munro's report to the Canada Pension Plan is clearly inaccurate. Mr. Breemo had health problems prior to the accident on July 19, 1990, and he was able to continue working for approximately seven months after the accident.

Shortly before the hearing, Dr. Munro and Dr. Finestone were advised about Mr. Breemo's two accidents in 1987. In his report dated July 9, 1993, Dr. Munro states his opinion that at the time of his last visit on March 30, 1993, Mr. Breemo's condition had reached a plateau and that he needs to pursue non-manual work. Dr. Finestone reviewed the clinical notes and records of Dr. Jamani and Dr. Sulkowski, and provided a follow-up report. She concluded:

One would assume that Mr. Breemo's involvement in the first two motor vehicle accidents could potentially have pre-disposed him to increased pain and disability subsequent to a third motor vehicle accident. A key factor is Mr. Breemo's functional status prior to the third motor vehicle accident. The assumption presently being made is this was a gentleman who was possibly working in a degree of pain but was able to cope with the demands of the tasks at hand. His condition became further exacerbated as a result of the third motor vehicle accident. The fact therefore appears to be that were Mr. Breemo not involved in a third motor vehicle accident that he would not be in his present disabled state. Once again, these comments are based on the notes that are available to me in my office chart concerning Mr. Breemo.

c) Conclusion

There are few, if any, objective medical findings to substantiate Mr. Breemo's disability. The doctors have had to rely heavily on his description of his background, medical history and the impact that the accident has had on his activities. The lack of objective findings does not preclude Mr. Breemo's entitlement to weekly income benefits, but it makes his credibility of central importance.

Unfortunately, Mr. Breemo has provided the various doctors with incomplete and inaccurate information. Perhaps the most striking example is that just two months after his third accident, he told Dr. Blackman that he was unable to return to work as a result of his first two accidents, without telling him about the third accident, or that he actually was working at the time.

In my opinion, the reports of Dr. Hawash-Mostafa, Dr. Finestone and Dr. Munro are all compromised to some extent by the fact that the doctors were not aware that Mr. Breemo had been in two previous accidents. The more serious problem, however, is that they depend on Mr. Breemo's description of his restrictions. Based on my reading of the medical reports and the videotape evidence, I find that Mr. Breemo consistently exaggerated his symptoms. He told the doctors that his neck and back were significantly restricted due to pain. In my view, the surveillance evidence contradicts this, and the contradiction was not explained by Mr. Breemo.

I conclude that I cannot rely on Mr. Breemo's testimony about his condition, or on the medical reports which depend on his description of his condition. In addition, I conclude that Mr. Breemo's position is further compromised by the fact that he was able to continue working on a full-time basis, without interruption, for approximately seven months after his third accident, but stopped working shortly before he would have been laid off indefinitely.

This is not to suggest that Mr. Breemo is not experiencing any problems. He has been out of the work force for thirty-two months and, undoubtedly, would find it difficult to return to work. A number of the doctors have indicated that he will experience some pain as he becomes more active. According to section 12 of the No-Fault Benefits Schedule, however, Mr. Breemo is not eligible for weekly income benefits unless the pain results from the accident and makes him substantially unable to perform the essential tasks of his pre-accident employment. Based on the evidence presented, I am unable to conclude, on a balance of probabilities, that he met this test for any period after July 25, 1991.

2. Special Award

In view of the conclusion that I have reached with respect to Mr. Breemo's entitlement to weekly income benefits, I also conclude that the Dominion has not unreasonably withheld or delayed payments. Therefore, an order for a special award is not warranted in this case.

3. Expenses

Mr. Breemo seeks reimbursement for the expenses that he 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.

Although Mr. Breemo was unsuccessful in his application, I conclude that I should exercise my discretion to award him his expenses. The issues raised in this arbitration were legitimate and there was no suggestion of improper conduct in the hearing process. If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order

1. Mr. Breemo is not entitled to weekly income benefits under section 12 of the No-Fault Benefits Schedule for any period after July 25, 1991.

2. The Dominion did not unreasonably withhold or delay payments and, therefore, is not required to pay a special award under section 282(10) of the Insurance Act.

3. Mr. Breemo is entitled to his expenses related to this arbitration, calculated according to Ontario Regulation 664, Dispute Resolution Expenses.

David R. Draper

Arbitrator

Date

APPENDIX A

Exhibit 1 - Photocopy of Mr. Breemo's Application for Accident Benefits, dated February 28, 1991.

Exhibit 2 - Photocopy of an Employer's Confirmation of Income form, dated February 28, 1991.

Exhibit 3 - Photocopy of a Medical or Psychological Report, completed by Dr. Hawash-Mostafa on February 28, 1991.

Exhibit 4 - Photocopy of Mr. Breemo's Application for Appointment of an Arbitrator, dated November 24, 1992.

Exhibit 5 - Photocopy of the Dominion's Response by Insurer, dated February 9, 1993.

Exhibit 6 - Photocopy of Mr. Breemo's Reply, dated February 18, 1993.

Exhibit 7 - Photocopy of a letter, dated April 19, 1993, confirming the pre-hearing discussion on April 13, 1993.

Exhibit 8 - Photocopy of a letter, dated July 7, 1993, from Mr. Breemo's representative to the pre-hearing arbitrator.

Exhibit 9 - Photocopy of letter, dated March 18, 1992, from Dr. Munro to Prudential Insurance.

Exhibit 10 - Photocopy of a report from Dr. Finestone, dated February 22, 1992.

Exhibit 11 - Photocopy of a report, dated May 25, 1993, from Dr. Finestone.

Exhibit 12 - Photocopy of a report, dated July 9, 1993, from Dr. Munro.

Exhibit 13 - Photocopies of four Record of Employment forms from Form Rite Ltd., dated June 29, 1990, January 9, 1991, February 27, 1991, and March 8, 1991.

Exhibit 14 - Damage schedule for Mr. Breemo's wage loss from Form Rite Ltd., prepared on behalf of Mr. Breemo.

Exhibit 15 - Damage schedule for Mr. Breemo's wage loss from Pond Mills Paints, prepared on behalf of Mr. Breemo.

Exhibit 16 - Schedule detailing Mr. Breemo's claim for a special award.

Exhibit 17 - Photocopy of an account from Mr. Breemo's representative.

Exhibit 18 - Photocopy of a report, dated June 10, 1991, from Dr. Goldenberg to Dominion.

Exhibit 19 - Written statement signed on June 17, 1993 by Mr. Khoshaba, the owner of Pond Mills Paints.

Exhibit 20 - Written statement signed on July 6, 1993 by Mr. Huber, from Form Rite Ltd.

Exhibit 21 - Photocopy of a letter, dated July 12, 1993, from the pre-hearing arbitrator confirming the pre-hearing discussion on July 8, 1993.

Exhibit 22 - Photocopies of the clinical notes and records (handwritten) of Dr. Jamani, from August 11, 1987 to April 6, 1990.

Exhibit 23 - Photocopy of an x-ray report, dated January 20, 1988.

• Photocopies of the clinical notes and records (typed) of Dr. Sulkowski, from January 7, 1988 to November 10, 1988.

Exhibit 24 - Photocopy of Dr. Jamani's report, dated September 5, 1988.

Exhibit 25 - Photocopies of the following reports from Dr. Sulkowski:

(a) April 28, 1988 (c) September 26, 1989

(b) June 15, 1989 (d) June 21, 1990

Exhibit 26 - Photocopy of Dr. Blackman's report, dated September 15, 1990.

Exhibit 27 - Photocopy of a handwritten note from Dr. Hawash-Mostafa, dated February 15, 1991.

Exhibit 28 - Photocopy of Dr. Hawash-Mostafa's report, dated November 22, 1990, with a covering note.

Exhibit 29 - Copy of a videotape taken by Mr. Robb.

Exhibit 30 - Photocopy of a letter, dated May 27, 1991, from the Dominion to Dr. Goldenberg, enclosing photocopies of the following medical documents:

(a) The Medical or Psychological Report completed by Dr. Hawash-Mostafa on February 28, 1991 (Exhibit 3).

(b) A medical form completed by Dr. Hawash-Mostafa on April 26, 1991.

Exhibit 31 - Photocopy of a medical report, prepared by Dr. Munro for the Canada Pension Plan on December 17, 1992.