Neutral Citation: 1994 ONICDRG 111

File No. A-004002

ONTARIO INSURANCE COMMISSION

BETWEEN:

ANAND BOODHAI

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Anand Boodhai, was injured in a motor vehicle accident on March 26, 1991. He applied for and received statutory accident benefits from the Allstate Insurance Company of Canada ("Allstate"), payable under Ontario Regulation 672[1].

Mr. Boodhai received weekly income benefits of $384.00 until August 10, 1992, when Allstate stopped paying on the grounds that he had been overpaid. Mr. Boodhai claims that he continues to be eligible for weekly income benefits at the rate of $384.00.

The parties were unable to resolve their dispute through mediation, and Mr. Boodhai applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Period of Entitlement -

(a) Is Mr. Boodhai entitled to weekly income benefits under section 12(1) of the Schedule for any of the period from August 11, 1992 to March 25, 1994?

(b) Is Mr. Boodhai entitled to weekly income benefits under section 12(5)(b) of the Schedule for any period after March 25, 1994?

2. Quantum - What is the proper amount of Mr. Boodhai's weekly income benefits?

3. Repayment - Was Mr. Boodhai overpaid and, if so, should he be required to repay all or part of the overpayment to Allstate?

4. Special Award - Should Allstate be required to pay a special award under section 282(10) because it unreasonably withheld or delayed the payment of benefits to Mr. Boodhai?

5. Mr. Boodhai also claims interest on any outstanding amounts owing, and his expenses related to the arbitration. Allstate claims interest on any overpayment that is found to be owing.

Result:

1. Mr. Boodhai is not entitled to any additional weekly income benefits.

2. Mr. Boodhai is not entitled to weekly income benefits in excess of the minimum amount of $185.60 per week.

3. Mr. Boodhai was overpaid by $14,086.40. The overpayment resulted from error or fraud and, therefore, must be repaid to Allstate.

4. Allstate is not required to pay a special award.

5. Mr. Boodhai is entitled to his expenses related to this arbitration.

Hearing:

The hearing was held in North York, Ontario, on August 17, 18 and 25, 1994, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant:

Anand Boodhai

Applicant's

Pradeep B. Pachai

Representative:

Barrister and Solicitor

Insurer's

Ian Kirby

Representative:

Barrister and Solicitor

Insurer's

Kevin McConkey

Officer:

Claims Manager

Witnesses:

1. Anand Boodhai, Applicant

2. Dr. Pamela Mark, the Applicant's family doctor

3. Dr. Fred Langer, orthopaedic surgeon

4. Mike Boodhai, the Applicant's cousin

5. Pamela Pigott, former senior adjuster at Allstate

6. Kevin McConkey, claims manager at Allstate

7. Rohini Boodhai, the Applicant's spouse

8. Frank Drundia, private investigator

9. Norman McCully, accountant

Exhibits:

The exhibits introduced in this hearing and the other documents before the arbitrator are listed in Appendix A to this decision.

Reasons for Decision:

Mr. Boodhai is 28 years old, married and has two children, ages five and three. He was born in Trinidad, where he completed the equivalent of grade 12. He worked as an assistant carpenter until he became a "grade A carpenter" in 1986. He was then employed as a carpenter until he left for Canada on December 4, 1987.

Mr. Boodhai came to Canada as a visitor. His wife arrived shortly thereafter, also as a visitor. A few months later, they both claimed refugee status. They acknowledged that they did not meet the definition of a convention refugee, but applied as a means of staying in Canada. I am not prepared to treat this as an indication of general dishonesty. I find, however, that Mr. Boodhai was aware that his status in Canada was precarious.

For approximately eight months after his arrival in Canada, Mr. Boodhai was unable to work legally. In August 1988, he was given a work permit and began working through Olsten Staffing Services, a placement agency. He did a variety of factory and office work. He then worked as a labourer for Paul Tuffin Construction and then for BOSTT Building Corporation Limited. I find that Mr. Boodhai preferred the labourer jobs because he was able to use some of his carpentry skills. On July 13, 1990, however, he was laid off from BOSTT and collected unemployment insurance benefits.

I accept Mr. Boodhai's evidence that in November 1990 he started working part-time as a courier for B & C Express. He claims that his hours increased to full-time, and that he continued working until the accident. Although some of the details are unclear, I accept that Mr. Boodhai had an ongoing employment relationship with B & C Express at the time of the accident.

The accident occurred on March 26, 1991. Mr. Boodhai was driving to his aunt's residence. His wife, son, sister-in-law, and niece were also in the car. Mr. and Mrs. Boodhai both testified that another driver ran a red light and hit their car on the left side between the driver's door and the rear door. The others in the car were not seriously injured. Mrs. Boodhai testified that she returned to work the day after the accident, and her sister missed some days of work, but not more than one week.

According to Mr. Boodhai, he was thrown to the right and then back to the left, hitting his left side and head on the driver's door window. Following the accident, he felt dizzy, but told the police officer and ambulance attendant that he did not need to go to the hospital. He was able to drive home. By the time he got home, however, his left arm was swollen and he had trouble taking off his jacket. He saw his family doctor, Dr. Pamela Mark, that same day, complaining of pain in his neck and left shoulder, with "pins and needles" in the left side of his neck, pain in his low back, and headaches.

Mr. Boodhai received weekly income benefits from Allstate for approximately 17 months - April 2, 1991 to August 10, 1992. Allstate stopped paying him weekly income benefits on the basis that he had been overpaid, not because he was no longer eligible. Allstate now claims, however, that by August 10, 1992, Mr. Boodhai was no longer entitled to weekly income benefits because his injuries did not prevent him from performing the essential tasks of his pre-accident employment.

Mr. Boodhai maintains that he continues to be entitled to weekly income benefits. His claim extends for more than 156 weeks. According to section 12(5)(b) of the Schedule, the eligibility test changes to a stricter test after 156 weeks. The parties agree that in order for Mr. Boodhai to be entitled to weekly income benefits from March 26, 1994 onwards, he must meet the stricter test in section 12(5)(b).

1(a) Weekly Income Benefits - August 11, 1992 to March 25, 1994

Mr. Boodhai's claim for weekly income benefits for the period from August 11, 1992 to March 25, 1994, is determined under section 12(1), which provides:

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...

Mr. Boodhai was out of the country for most of this period. He was deported to Trinidad on October 16, 1992, but was able to return to Canada approximately 16 months later, on February 5, 1994, as a landed immigrant. Allstate did not argue, properly in my view, that Mr. Boodhai's absence from Canada disentitles him from receiving weekly income benefits.

(a) Mr. Boodhai's essential tasks

Mr. Boodhai's entitlement to weekly income benefits under section 12(1) depends upon his ability to perform the essential tasks of his pre-accident employment. I found his description of his job duties somewhat confusing, but generally credible. Therefore, I have based my findings on his testimony.

B & C Express was in the business of delivering flyers to homes and other drop-off points. Mr. Boodhai's primary duty was driving a van. At approximately 8:00 a.m., he picked up keys and retrieved one of the company vans from the service station where they were parked overnight. He filled the van with gas, and made sure he had enough flyers in the van. He then drove to the office, where Mr. Sharma, the owner of B & C Express, gave him his delivery area for the day, a time sheet, and assigned his co-workers.

Mr. Boodhai drove the van, while his co-workers delivered the flyers. He did not deliver any of the flyers himself. At the end of the day, he dropped off his co-workers, generally by 5:00 or 5:30 p.m. Some evenings, Mr. Sharma instructed him to pick up the flyers for the following day. This involved going to Canada Post, usually with one other person, and loading bundles of flyers into the van. Mr. Boodhai was unsure about the weight of the bundles, but estimated that they varied from 20 to 50 pounds. He usually finished his work day between 5:00 and 6:00 p.m., or somewhat later if he had to load the van.

(b) Mr. Boodhai's medical condition

I find that as a result of the accident, Mr. Boodhai suffered soft tissue injuries to his neck and back, with no neurological or orthopaedic complications. There was some medical disagreement about the significance of a finding that he has a bulging disc in his lower back. Dr. Roland Wong and Dr. Mark seem to have placed some importance on this finding. In my view, however, the weight of the medical evidence suggests that even if the bulging disc was caused by the accident, it has little, if any, clinical significance.

Mr. Boodhai has had extensive medical care, including:

• Weekly visits with Dr. Pamela Mark, his family doctor, who monitored his progress, prescribed various medications, and made a number of referrals.

• Physiotherapy at East York Physiotherapy for approximately three months from April to June 1991 (referral by Dr. Mark).

• An examination by Dr. Fred Langer, an orthopaedic surgeon, on June 4, 1991 (referral by Allstate).

• Physiotherapy at an OHIP-funded physiotherapy centre for approximately 10 weeks from June to August 1991 (referral by Dr. Mark).

• Approximately five consultations with Dr. Louise Perlin, Rheumatology and Internal Medicine, from July 1991 to February 1992 (referral by Dr. Mark).

• A functional restoration and pain management program at the Health Recovery Clinic from late November 1991 to January 1992 (referral by Dr. Perlin).

• Treatment at the Kew Beach Rehabilitation Clinic by Dr. Roland C. Wong, from late January to October 1992 (referral source unclear).

• Case management by Direct Rehabilitation Services, from March 1992 to November 1992 (arranged by Allstate).

• An assessment and a rehabilitation program at the Accident Injury Management Clinic, from June to October 1992 (referral by Direct Rehabilitation Services).

• Consultation by Dr. Max Kleinman, Physical Medicine and Rehabilitation, on May 12, 1992 (referral by Dr. Wong).

• Consultation by Dr. I. Bernard Schacter, neurosurgeon, on June 18, 1992 (referral by Dr. Wong).

• In Trinidad, treatment by Dr. Seepersaud and then monthly visits with Dr. Adam, a neurosurgeon.

• Consultation by Dr. Edward Sheffman, a pain specialist, on April 15, 1994 (referral by Dr. Mark).

• Consultation by Dr. Robert Notkin, a psychiatrist, in July 1994.

Despite this care, Mr. Boodhai claims that he is almost as disabled now, almost three and a half years after the accident, as he was shortly after the accident. He reports some improvement in his neck, but still complains of:

• pain in his neck, radiating down his left arm and into his fingers;

• pain in his lower back, radiating down his left leg and into his toes; and,

• headaches.

In my view, the most striking aspect of this case is the degree of disability that Mr. Boodhai is claiming. He testified that he still uses a back brace almost every day and sometimes uses a neck brace at night, that he is only able to bend "a little", that he can only sit for 45 minutes to one hour on a good day, and not even 30 minutes on a bad day, and that his pain prevents him from exercising very much.

At the hearing, I was presented with widely divergent medical opinions. Dr. Mark, the family doctor, is convinced that Mr. Boodhai continues to experience severe pain, particularly in his neck and lower back, that prevents his immediate return to any type of employment. Dr. Langer, an orthopaedic surgeon retained by Allstate, believes that there is nothing to prevent Mr. Boodhai from returning to work. In his opinion, Mr. Boodhai could have returned to his job as a courier by mid-July 1991, if not sooner.

After hearing the testimony and reviewing all of the documents, I am persuaded that Mr. Boodhai's complaints are sincere, although somewhat exaggerated. He experiences pain and genuinely believes that he is disabled. For the following reasons, however, I am also convinced that he has consistently overestimated the severity of his injuries and has unduly restricted his activities.

On May 11, 1991, less than two months after the accident, Mr. Boodhai's activities were observed by Mr. Frank Drundia, a private investigator. I found Mr. Drundia's evidence credible and not unduly partisan. He testified that Mr. Boodhai worked on his van for almost two hours, vacuuming and dusting the seats and side panels. According to Mr. Drundia, Mr. Boodhai moved with no obvious signs of disability. He then drove a short distance to a car wash, drove his van through the car wash, and dried it using a cloth.

Mr. Drundia took 27 photographs during his surveillance, which show Mr. Boodhai bending at the waist, kneeling, and stepping either up into, or down out of the van (Exhibit 12). In my view, the photographs generally support Mr. Drundia's testimony that Mr. Boodhai moved without any obvious restrictions. One photograph, however, shows him bending in an awkward position that suggests that he was experiencing some level of pain (#24).

I accept that the surveillance may have caught Mr. Boodhai on a "good day". In my opinion, however, his activities are inconsistent with the severe restrictions that he has reported to Allstate and to his doctors, and suggest some degree of exaggeration. It is also difficult to accept that Mr. Boodhai could do these things, even on a good day, but remain as limited in his daily activities as he claims.

Approximately one month after the surveillance, Allstate arranged for Mr. Boodhai to be assessed by Dr. Langer. Dr. Langer was not advised about the surveillance. On June 4, 1991, he stated his opinion that Mr. Boodhai had suffered soft tissue injuries of his neck and back, but should be able to return to work within six weeks. Mr. Boodhai testified that he was pleased with Dr. Langer's opinion and at some point, attempted to return to work. After a few hours, however, he had to go home and call Dr. Mark for additional medication.

I have difficulty with this evidence. First, Dr. Mark's clinical notes make no reference to any attempt by Mr. Boodhai to return to work. Given the frequency of Mr. Boodhai's visits to Dr. Mark and the detail of her notes, I find this surprising. Instead, her clinical notes indicate that he complained of increasing pain in June and July 1991. On July 11, 1991, she noted: "wants to RTW but cannot even do simple tasks at home or fully care for 2 yr old son."

Second, Mr. Boodhai's refugee hearing concluded on July 16, 1991, exactly six weeks after the date of Dr. Langer's report. He was denied refugee status and a deportation order was issued. Although he was not deported immediately, his work permit and social insurance number were revoked. This meant that Mr. Boodhai could no longer work legally in Canada and faced the prospect of deportation.

In my opinion, Mr. Boodhai's immigration situation raises a legitimate question about his motivation to demonstrate recovery. If he was able to return to work, he would lose his weekly income benefits, but would be unable to work legally in Canada. In addition, Mr. Boodhai used his disability as a reason that he should not be deported.

Mr. Boodhai's rehabilitation was also complicated by a concern, particularly held by Dr. Wong, that his continuing symptoms might evidence some underlying pathology beyond soft tissue injuries. A variety of tests were done, but none showed any underlying pathology. This testing continued until September 2, 1992, when an MRI of Mr. Boodhai's cervical spine showed no abnormality.

Despite the ongoing testing, the doctors agreed that it was important for Mr. Boodhai to remain active and to exercise. I find that, unfortunately, he adopted a "disabled lifestyle" from a very early stage. He restricted his activities and resisted tasks that caused him pain, including therapy.

I was impressed with Dr. Mark as a conscientious and caring doctor who was very familiar with her patient. Due to the nature of Mr. Boodhai's injuries, she had to rely heavily on his description of his symptoms. In my view, Mr. Boodhai treated her acceptance of his complaints as proof of his own view of his limitations.

Mr. Boodhai's neurologist, Dr. Perlin, specifically recommended that he attend the functional restoration and pain management program at the Health Recovery Clinic. Based on her report, dated July 30, 1991, I find that she told Mr. Boodhai that he was likely to experience some increased pain initially, but that this was normal (Exhibit 2, Tab 27).

Mr. Boodhai started at the Health Recovery Clinic in November 1991, funded by Allstate. This first attempt at a more aggressive therapy program was unsuccessful. Mr. Boodhai missed most of the sessions. I accept that he had a transportation problem, but find that the primary difficulty was his concern that the program was hurting him. Dr. Miller, the senior clinical supervisor at the Health Recovery Clinic, was concerned about Mr. Boodhai's poor attendance, his lack of effort and his variable pain behaviour (Exhibit 4, Tab 11). On February 25, 1992, Dr. Perlin expressed concern about "a significant degree of pain magnification" and Mr. Boodhai's lack of understanding of his medical condition (Exhibit 2, Tab 27).

In late January 1992, Mr. Boodhai switched to a more passive therapy program with Dr. Wong, a physical medicine specialist. Dr. Wong treated him using heat and a T.E.N.S. machine, and by placing his neck in traction.

When he was assessed again in May 1992, the assessors at the Accident Injury Management Clinic found that Mr. Boodhai perceived himself to be severely disabled (Exhibit 2, Tab 13). He told them that "he is constantly in fear of aggravating his condition and is reluctant to lift or perform activities which require prolonged neck or low back flexion." The assessors expressed concern about his lack of understanding of his condition, leading him to draw his own conclusions about the nature of his disability.

Mr. Boodhai was then enrolled in a rehabilitation program at the Accident Injury Management Clinic, funded by Allstate. The program was to involve 12 weeks of clinical rehabilitation, plus six weeks of work hardening. It appears that Mr. Boodhai's initial cooperation with the Accident Injury Management Clinic was good, although his progress was slow (Exhibit 4, Tab 23). In July and August 1992, however, Mr. Boodhai began to miss sessions. Dr. Mark encouraged him to continue, but it appears that his deportation became a major concern. In September 1992, he stopped attending at the clinic altogether.

On October 16, 1992, Mr. Boodhai was deported to Trinidad, leaving his wife and children behind. Approximately four months later, however, Mrs. Boodhai was also deported to Trinidad, where the family was reunited.

Unfortunately, it appears that Mr. Boodhai left Canada still believing that he was severely disabled. In Trinidad, he continued to live a restricted, disabled lifestyle. His medical care reverted to largely passive treatment. He testified that the warm weather helped his condition somewhat, but he still felt that he could do very little.

Mr. Boodhai's doctors in Trinidad, Dr. Seepersaud and Dr. Adam, a neurosurgeon, provided notes expressing the opinion that due to neck and back pain, Mr. Boodhai could not return to work as a carpenter or a courier (Exhibit 4, Tabs 25-30). However, neither doctor provided much explanation for his opinion.

On February 5, 1994, Mr. Boodhai was able to return to Canada as a landed immigrant, along with his family. He resumed seeing Dr. Mark every week. Although almost 16 months had passed since she last saw him, Dr. Mark found that Mr. Boodhai's physical condition was about the same as when he left. This is contrary to Dr. Wong's expectation that his condition would improve (Exhibit 4, Tab 17).

In March 1994, Dr. Mark referred Mr. Boodhai to Dr. Sheffman, a pain specialist, to determine whether injections might help. According to Dr. Mark, Dr. Sheffman felt that Mr. Boodhai's problems were largely psychological and did not recommend injections or any other active treatment.

As a result of Dr. Sheffman's conclusions, Dr. Mark referred Mr. Boodhai to a psychiatrist, who saw Mr. Boodhai shortly before the arbitration hearing. As a result of this consultation, additional medication was prescribed.

In July 1994, Mr. Boodhai also returned to see Dr. Wong. Dr. Wong found that compared to October 1992, Mr. Boodhai's range of motion in his neck and back had improved somewhat (Exhibit 2, Tab 28). However, he was doubtful about Mr. Boodhai's ability to return to work as a courier: "From my understanding of the courier driver then, he may have difficulty doing the essential tasks of his occupation."

(c) Conclusions

The divergence of the medical opinions, and Mr. Boodhai's sincere distress about his situation, make this decision difficult. As has been stated in numerous arbitration decisions, however, the Schedule does not provide compensation for pain and suffering. In order to be eligible for weekly income benefits, Mr. Boodhai must establish that he is substantially unable to perform the essential tasks of his pre-accident employment at B & C Express.

In my opinion, a careful review of the medical evidence supports Dr. Langer's opinion that Mr. Boodhai does not have any serious functional limitations. Given the limited physical demands of his job at B & C Express, I find no basis upon which to conclude that he was unable to perform his essential tasks for any period after August 10, 1992.

This is not to suggest that it would be easy for Mr. Boodhai to return to work. He has been out of the workforce and largely inactive for over three years. He may require some further rehabilitation, but I conclude that he is not entitled to any additional weekly income benefits.

1(b) Weekly Income Benefits - After March 25, 1994

In order to be entitled to weekly income benefits after March 25, 1994, Mr. Boodhai must establish that his injuries continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience (section 12(5)(b)). It follows from my conclusions, set out above, that Mr. Boodhai is not entitled to weekly income benefits after March 25, 1994.

2. Quantum

According to section 12(7) of the Schedule, the amount of Mr. Boodhai's weekly income benefits is based on 80% of his gross weekly income in the four or 52 weeks preceding the accident, whichever is greater:

12.-(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.

(a) The four weeks preceding the accident

Mr. Boodhai claims that in the four weeks preceding the accident, he earned $480.00 per week from B & C Express and, therefore, is entitled to weekly income benefits of $384.00 per week ($480.00 x 80%). I would summarize Mr. Boodhai's position, as presented at the hearing, as follows:

Starting in November 1990, he worked part-time for B & C Express at $7.50 per hour. Mr. Sharma, the owner of B & C Express, told him a number of times that if he had his own van, he could earn $850 to $900 per week.

Mr. Boodhai worked until approximately one week before Christmas. On December 24, 1990, he had to go to Mr. Sharma's residence because his paycheque bounced. Thereafter, the general practice was that Mr. Boodhai signed his weekly paycheque and Mr. Sharma gave him cash.

According to Mrs. Boodhai, her husband gave her his pay which, in 1991, was approximately $350.00 to $400.00 per week, and was more often in cash than by cheque. She generally deposited his pay in their joint account and paid the bills from that account.

Mr. and Mrs. Boodhai discussed whether they should purchase a van, as suggested by Mr. Sharma. They wanted a commitment from B & C Express and, at their insistence, Mr. Sharma provided a letter confirming the arrangement. This letter is now lost. On the basis of this letter, however, they decided to go ahead and purchase a van.

In January 1991, Mr. Boodhai took three weeks off to sell his wife's car in order to finance the van, and to see to some tasks. During one of his weeks off, he did clerical work for William M. Mercer Ltd., earning $560.00.

Mr. Boodhai returned to work at B & C Express in late January or February 1991. Sometime in February 1991, his hourly wage was increased from $7.50 to $8.00. In the weeks preceding the accident, he was working long hours. He generally arrived for work at approximately 8:00 a.m. and worked until 5:00 or 5:30 p.m., although some nights he had to go to Canada Post to pick up flyers.

On Friday, March 22, 1991, Mr. Boodhai told Mr. Sharma that he would not be in on March 25, 1991, because he was arranging for the purchase of his van. They purchased a 1991 Chevrolet Astro van on March 25, 1991, but it was not to be picked up until a few days later. On March 26, 1991, however, the accident occurred.

Mr. Boodhai's lawyer, Mr. Pachai, acknowledged that the financial information is somewhat inconsistent, but submitted that Mr. Boodhai should not be penalized if his employer keeps poor records, or is unscrupulous. I have no difficulty with the proposition that an employee should not be penalized for the sins of his or her employer. For the following reasons, however, I conclude that there is no consistent, reliable evidence to support Mr. Boodhai's claim that he is entitled to weekly income benefits of $384.00 per week.

On March 27, 1991, the day after the accident, a representative from Allstate phoned Mr. Boodhai. The conversation was recorded with Mr. Boodhai's knowledge and consent. Mr. Boodhai did not contest the accuracy of the transcript, in which he states that he was working for B & C Express at a rate of $9.85 per hour. He told Allstate's representative that he had been off work during most of the four weeks preceding the accident, but had returned to work on Monday, March 25, 1991, the day before the accident. This is clearly inconsistent with the claim that he is advancing in this arbitration.

Mr. Boodhai submitted an Application for Accident Benefits, dated April 15, 1991, stating that at the time of the accident, he was working for B & C Express, earning $480.00 per week (Exhibit 3, Tab 10). The Allstate file indicates that its examiner contacted Mr. Sharma, the owner of B & C Express, who stated that Mr. Boodhai was paid $8.00 per hour for a 60 hour work week, essentially confirming the information in Mr. Boodhai's application. Allstate relied on this information and started paying weekly income benefits at the rate of $384.00 per week ($480.00 x 80%).

Ms. Pigott, who assumed responsibility for the Allstate file in July 1991, was concerned about the lack of financial information and, therefore, asked Mr. Boodhai to provide some additional documentation. He provided a written statement, dated July 15, 1991, which includes the following:

At the time of the accident I was working as a courier for B and C Express. I started to work for B & C Express in November of 1990. The minimum number of hours worked at this job were 60 hrs per week. . . I was earning $8.00/hr at B & C Express.

Mr. Boodhai advised Ms. Pigott that he had not filed a 1990 or 1991 income tax return, but provided two T4 forms, showing that in 1991, he had a gross income of $560.00 from William M. Mercer Ltd., and $900.00 from B & C Express. If Mr. Boodhai was earning $480.00 per week from B & C Express in 1991, his T4 slip certainly should have shown more than $900.00 income.

Mr. Bridgemohan, the supervisor at B & C Express, completed the Employer's Confirmation of Income form on August 28, 1991 (Exhibit 3, Tab 5). This form states that Mr. Boodhai started at B & C Express on November 25, 1990, and earned $480.00 per week for the 17 weeks preceding the accident, a total gross income of $8,160.00 (17 weeks x $480.00 per week = $8,160.00).

Ms. Pigott testified that she met with Mr. Bridgemohan at B & C Express on August 28, 1991. He showed her payroll records that were consistent with the Employer's Confirmation of Income. At the hearing, however, Mr. Boodhai acknowledged that the Employer's Confirmation of Income form is incorrect. He testified that in 1990, he worked part-time at B & C Express and, therefore, was not earning $480.00 per week.

Ms. Pigott was also advised by Mr. Bridgemohan that just before the accident, Mr. Boodhai had purchased a van, with the assistance of a loan from B & C Express, and was to have started working as a broker. Ms. Pigott testified that Mr. Sharma also had mentioned a loan to Mr. Boodhai. Mr. Boodhai, however, denied that he ever received a loan from B & C Express.

In spite of Ms. Pigott's concerns about the financial information, Mr. Boodhai was paid weekly income benefits at the rate of $384.00 per week.

B & C Express provided a further letter, dated April 28, 1992, stating (Exhibit 3, Tab 6):

This letter is to confirm that Anand Boodhai was informed that he will be working with B & C Express, for the amount of $800.00 dollors [sic] per week.

It is difficult to interpret this letter. It appears to be intended as confirmation of the arrangement if Mr. Boodhai purchased his own van. However, Mr. Boodhai did not claim that he had been guaranteed a set weekly amount. Rather, his evidence was that he would earn between $850.00 and $900.00 per week, depending upon the amount of work available. According to Mrs. Boodhai, Mr. Sharma gave them a letter, at their insistence, stating that Mr. Boodhai would earn $800.00 to $900.00 per week, if he owned his own van.

By the summer of 1992, Ms. Pigott had serious concerns about Mr. Boodhai's file. Despite Dr. Langer's opinion that he should be able to return to work in July 1991, Mr. Boodhai still maintained that he could not work. In addition, she felt that his pre-accident income still had not been adequately confirmed.

Ms. Pigott completed an Assessment of Claim by Insurer form, dated August 10, 1992, stating that Allstate would pay weekly income benefits of $185.60 for the period from April 2, 1991 to August 10, 1992, resulting in an overpayment of $14,880.00. Allstate's decision was clarified in a letter to Mr. Boodhai, dated September 11, 1992 (Exhibit 13):

For the period from April 2, 1991 to August 10, 1992 we paid you a total of $27,264.00 based on a rate of $384.00 per week. This equates to an overpayment of $198.40 per week for a 75 week period or $14,880.00.

Under the circumstances we cannot consider payment of any further weekly benefits until such time as this overpayment has been satisfied.

After Mr. Boodhai's weekly income benefits were stopped, Ms. Pigott was advised by Mr. or Mrs. Boodhai that the T4 slip showing $900.00 income from B & C Express in 1991 was actually meant for Mr. Boodhai's brother. On or about September 27, 1992, Ms. Pigott was given another T4 slip showing income of $1,920.00 from B & C Express in 1991.

Again, it is difficult to reconcile this document with the rest of the information. It is also difficult to ignore the fact that $480.00 per week (the amount that Mr. Boodhai claims he earned in the four weeks preceding the accident) times four weeks equals $1,920.00. It appears, therefore, that the T4 slip was created simply to support Mr. Boodhai's claim.

In November 1992, Allstate retained Mr. Norm McCully, a chartered accountant, to review Mr. Boodhai's entitlement. Mr. McCully and Ms. Pigott met with Mr. Sharma on November 23, 1992. Mr. Sharma advised them that just the previous day, someone tore out the specific page from the company's 1991 wage records relating to Mr. Boodhai. According to Mr. McCully's report, Mr. Sharma also stated that:

• In 1991, the arrangement was that Mr. Boodhai was paid $800 per week, but $320.00 per week was deducted for the use of the company van;

• He had no additional pay records for Mr. Boodhai;

• The day before the accident, Mr. Boodhai purchased a van and was to have become a self-employed subcontractor from that date.

The theft of Mr. Boodhai's employment record is certainly curious. In addition, Mr. Sharma's description suggests that in 1991, Mr. Boodhai was paid on a weekly, not hourly, basis. Mr. Boodhai's position is that prior to the accident, he was paid $7.50 and then $8.00 an hour.

By this time, Mr. Boodhai had been deported to Trinidad and, therefore, Mrs. Boodhai was looking after his claim. She provided Allstate with a pay stub, dated February 21, 1991, indicating that Mr. Boodhai had worked 59.5 hours at $7.50 per hour. Mrs. Boodhai included a handwritten note, stating:

I spoke to Anand a couple days ago. Anand said to me that at the time of the accident Bill Sharma paid him $8.00 an hour. His regular hours per week were 60 hrs plus.

Mr. McCully concluded that the only reasonable basis on which to calculate Mr. Boodhai's entitlement was to average the income shown on his two 1991 T4 slips ($560.00 from William M. Mercer and $1,920 from B & C Express) over the 12 weeks in 1991 preceding the accident. Using this approach, Mr. Boodhai's average gross weekly income is $206.67. Because this is less than the minimum of $232.00, Mr. McCully concluded that Mr. Boodhai's entitlement is limited to the minimum rate of $185.60 per week.

At the request of Mr. Boodhai's lawyer, Mr. Sharma provided another letter, dated February 15, 1993, stating (Exhibit 3, Tab 6):

Mr. Boodhai was employed at a weekly salary of $480.00 for the period of February 25, 1991 to March 26, 1991.

This letter seems to support his claim that he earned $480.00 per week in the four weeks preceding the accident. However, both Mr. and Mrs. Boodhai testified that he was paid an hourly wage and that his income varied depending upon the number of hours that he worked. On cross-examination, Mr. Boodhai stated that he earned approximately $480.00 per week, sometimes less, but never more.

Mrs. Boodhai testified that after her husband was deported, she contacted Mr. Sharma and asked for additional employment records. She stated that one of his employees dropped off records at her home, which she then provided to Allstate. Allstate claims, however, that these records were not received until shortly before the hearing.

The additional records include pay stubs from B & C Express, as follows (Exhibit 1, Tab 3):

Cheque date

Week Number

Hourly pay

Hours

Gross Income

Dec. 7, 1990

35

$7.50

8.5

$ 63.75

Dec. 14, 1990

36

$7.50

$352.50

Dec. 21, 1990

37

$7.50

24

$180.00

Feb. 21, 1991

8

$7.50

59.5

$446.25

There also is a pay stub, dated December 28, 1990, for 27.5 hours at $7.50 per hour, but this is made out to Mr. Boodhai's brother.

These additional records do little to clarify the situation. If Mr. Boodhai started at B & C Express on November 25, 1990, as set out in the Employer's Confirmation of Income, and he was paid one week in arrears, as Mr. Boodhai testified, and he stopped working approximately one week before Christmas, as he testified, it makes sense that his paycheques would be dated December 7, 14, 21, 1990. The total gross income shown on the pay slips, however, is $596.25, whereas his T4 slip states that he earned $1,248.75 from B & C Express in 1990 (Exhibit 1, Tab 2).

In addition, I note that all of the pay slips indicate that Mr. Boodhai was paid on an hourly basis, not on a weekly basis, as Mr. Sharma seemed to state in his letter, dated February 15, 1993 (excerpted above).

The records provided by Mrs. Boodhai also include a time sheet, dated March 14, 1991, week 10 (although it appears that it should be week 11). Mr. Boodhai explained that Mr. Sharma gave the time sheets to the drivers each morning, and that the drivers were responsible for keeping a record of the hours worked by the people in their van, including themselves. The time sheet, which was completed by Mr. Boodhai, shows him working a total of 60 hours:

• 8:00 a.m. to 6:00 p.m. on Sunday through Thursday

• 8:00 a.m. to 4:00 p.m. on Friday

• 9:00 a.m. to 11:00 a.m. on Saturday

I am prepared to give this time sheet some weight. I heard no evidence, however, that this was Mr. Boodhai's typical work pattern. In fact, he testified that he usually finished between 5:00 and 6:00 p.m., unless he had to pick up the flyers for the next day, in which case, he would work until after 6:00 p.m. On cross-examination, Mr. Boodhai agreed that he worked five or six days per week, not seven, for nine to ten hours per day. Mrs. Boodhai was under the mistaken impression that prior to the accident, her husband was often working to 9:00, 10:00 or 11:00 p.m.

Unfortunately, no one from B & C Express was called as a witness in this hearing. Mr. Boodhai testified that the company has gone out of business, and he was unable to locate anyone who worked there. His brother, who also worked for B & C Express, was unavailable because he is no longer in Canada.

Mrs. Boodhai testified that in 1990, she generally deposited her husband's pay into their joint account. Bank records might have been quite helpful in this case. Mrs. Boodhai testified, however, that they no longer had their bank records, and that a record search that she instituted approximately three weeks before the hearing has not been completed.

I find that I am left with no consistent, credible evidence to confirm what hours Mr. Boodhai actually worked for B & C Express during the four weeks preceding the accident, or his rate of pay. As has been stated in numerous arbitration decisions, the onus is on the applicant to establish his or her claim. I conclude that Mr. Boodhai has not established his entitlement to weekly income benefits, based on the four weeks preceding the accident, at a rate of more than the minimum of $185.60 per week.

(b) The 52 weeks preceding the accident

Although Mr. Boodhai's claim was based on the four weeks preceding the accident, his entitlement should also be considered based on his average gross weekly income in the 52 weeks preceding the accident.

According to his T4 slips, Mr. Boodhai may have earned income from four sources during the period from March 26, 1990 to March 25, 1991: BOSTT Building Corporation Limited ($9,232.08 in 1990), Olsten Personnel Inc. ($1,071.20 in 1990), William M. Mercer Ltd. ($560.00 in 1991), and B & C Express ($1,248.75 in 1990 and $1,920.00 in 1991). He also received unemployment insurance benefits in 1990 after being laid off from BOSTT ($4,726.00).

Mr. Pachai submitted, on behalf of Mr. Boodhai, that unemployment insurance benefits should be included as income. I considered this issue in Chuong Vo and Maplex General Insurance Company, October 4, 1993, OIC File No. A-002777:

In my opinion, Unemployment Insurance is not "income from his or her occupation". In addition, section 12(4)(b) makes a distinction between "income from his or her occupation or employment" and "payments for loss of income". Although Unemployment Insurance benefits are treated differently than other payments for loss of income, the section suggests that they are payments for loss of income, rather than income from employment.

I am not persuaded that I should depart from this interpretation. Therefore, I have not included Mr. Boodhai's unemployment insurance benefits as income that he earned in the 52 weeks preceding the accident.

In 1990, Mr. Boodhai worked at BOSTT from January 1, 1990 to July 13, 1990, a period of 28 weeks, and earned $9,232.08. His evidence was that he worked full-time throughout this period. Assuming that his weekly income was steady, he earned $329.72 per week. The period from March 26, 1990 to July 13, 1990 is 16 weeks. Therefore, his gross income from BOSTT during the 52 weeks preceding his accident was approximately $5,275.52 (16 weeks x $329.72/week = $5,275.52).

It appears from the records of Olsten, that Mr. Boodhai last worked through that agency in February 1990 (Exhibit 8). Giving him the benefit of the doubt, however, and including his income through Olsten as income within the 52 weeks preceding the accident, his gross income, as set out on the T4 slips, for the 52 weeks preceding the accident is $10,075.47 ($5,275.52 + $1,071.20 + $560.00 + $1,248.75 + $1,920.00). This is an average gross weekly income of $193.76. Because this is less than the minimum of $232.00 per week, Mr. Boodhai's entitlement to weekly income benefits, based on the 52 weeks preceding the accident, is limited to $185.60 per week.

3. Repayment

Mr. Boodhai was paid weekly income benefits at the rate of $384.00 per week from April 2, 1991 through August 10, 1992. This is a period of 71 weeks, not 75 weeks, as set out in Ms. Pigott's letter to Mr. Boodhai, dated September 11, 1992 (Exhibit 13). It appears that she included interest in her calculation of the benefits paid.

I have concluded that Mr. Boodhai was only entitled to receive $185.60 per week, resulting in an overpayment of $198.40 per week. Therefore, the total overpayment is $14,086.40.

The issue of repayment is addressed in section 27(1) of the 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.

The overpayment in this case occurred because Allstate relied on the statements of Mr. Boodhai and his employer that he earned $480.00 per week in the four weeks preceding the accident. Allstate made it clear from a very early stage that it had concerns about the financial information, but Mr. Boodhai failed to establish his claim. He provided information and documents that are, at best, inconsistent. In my opinion, therefore, the overpayment was paid "through error or fraud", within the meaning of section 27(1) of the Schedule and must be repaid.

4. Special Award

According to section 282(10) of the Insurance Act, an arbitrator shall order a special award if he or she "finds that an insurer has unreasonably withheld or delayed payments". Based on my findings, above, I find that no benefits were unreasonably withheld or delayed. Therefore, no special award is payable.

5. Expenses

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.

Arbitrators have consistently granted expenses unless the claim was fraudulent, manifestly frivolous or vexatious, or the applicant's conduct unduly prolonged the proceedings. Mr. Kirby, on behalf of Allstate, submitted that this is an appropriate case in which to deny expenses.

Despite my concerns about some of the evidence, I am not persuaded that this was a fraudulent claim. In addition, I found Mr. Pachai's involvement helpful. He presented Mr. Boodhai's claim skilfully and efficiently. Therefore, I conclude that Mr. Boodhai is entitled to his expenses related to the arbitration, calculated according to Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.

The parties are encouraged to reach an agreement as to the amount of the expenses. However, if an agreement cannot be reached, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. Mr. Boodhai is not entitled to any additional weekly income benefits.

2. Mr. Boodhai is not entitled to weekly income benefits in excess of the minimum amount of $185.60 per week.

3. Mr. Boodhai was overpaid by $14,086.40. The overpayment resulted from error or fraud and, therefore, must be repaid to Allstate.

4. Allstate is not required to pay a special award.

5. Mr. Boodhai is entitled to his expenses related to this arbitration.

November 21, 1994

David R. Draper Arbitrator

Date

APPENDIX A

Exhibit 1 - The Applicant's brief of non-medical documents, containing photocopies of six documents.

Exhibit 2 - The Applicant's brief of medical documents, containing photocopies of 28 documents.

Exhibit 3 - The Insurer's brief of non-medical documents, containing photocopies of 11 documents.

Exhibit 4 - The Insurer's brief of medical documents, containing photocopies of 30 documents.

Exhibit 5 - The curriculum vitae of Dr. Fred Langer.

Exhibit 6 - A statement of the professional qualifications of Norm McCully CA, AIIC.

Exhibit 7 - A statement of the professional qualifications of Dr. Pamela Mark.

Exhibit 8 - A photocopy of a letter, dated June 17, 1994, from the Applicant's lawyer to Olsten Staffing Services, together with photocopies of three pages of the Applicant's employment record with Olsten Staffing Services.

Exhibit 9 - A photocopy of a letter, dated August 15, 1994, from BOSTT, together with a facsimile transmission sheet, dated August 16, 1994.

Exhibit 10 - A photocopy of a computer printout of the accident benefits paid to the Applicant by Allstate.

Exhibit 11 - An Invoice, dated March 25, 1991, from Robertson Motors.

Exhibit 12 - 27 photographs of the Applicant.

Exhibit 13 - A photocopy of a letter, dated September 11, 1992, from Allstate Insurance to Mr. Boodhai, together with a computer printout of benefits paid by Allstate, one page of an Assessment of Claim by Insurer, an Application for Additional Benefits, and two T4 forms for 1991.

Exhibit 14 - A photocopy of an Assessment of Claim by Insurer, dated August 10, 1992.

Exhibit 15 - The business card of B & C Express.

In addition to the exhibits, the following documents were before the arbitrator from the Ontario Insurance Commission file:

• Report of Mediator, dated April 20, 1993.

• Application for Appointment of an Arbitrator, dated February 7, 1994.

• Response by Insurer, dated March 9, 1994.

• Letter, dated April 13, 1994, confirming the pre-hearing discussion held on that date.

1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.