Neutral Citation: 1994 ONICDRG 124

File No. A-007913

BETWEEN:

SONIA P. MURRAY

Applicant

and

TORONTO TRANSIT COMMISSION (MARKEL INSURANCE COMPANY OF CANADA)

Insurer

DECISION

The Applicant, Sonia P. Murray, was injured in a motor vehicle accident on January 14, 1993. She applied for and received statutory accident benefits from the Toronto Transit Commission (the "T.T.C."), payable under Ontario Regulation 672¹.

The T.T.C. paid Ms. Murray weekly income benefits until September 30, 1993. Ms. Murray commenced employment on September 16, 1993. Ms. Murray left the job on November 15, 1993, and claims weekly income benefits after that date. The parties were unable to resolve their disputes through mediation and Ms. Murray applied for arbitration under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this hearing are:

Is Ms. Murray entitled to weekly income benefits under section 12 of the Schedule, after November 15, 1993?
Has Ms. Murray been overpaid by the T.T.C. and, if so, should she be required to repay any, or all of the overpayment?
Is the T.T.C. entitled to an award against Ms. Murray under section 282(11.2) of the Insurance Act?

Ms. Murray also claims interest on any outstanding amounts owing, and her expenses incurred in the hearing.

Ms. Murray is not entitled to weekly income benefits for any period after November 15, 1993.

Ms. Murray was overpaid "through error or fraud" and, therefore, she must repay the weekly income benefits she received, for the period September 16, 1993 to September 30, 1993, according to section 27 of the Schedule.
The T.T.C. is not entitled to an award against Ms. Murray under section 282(11.2) of the Insurance Act.
Ms. Murray is entitled to her expenses related to this arbitration.

The hearing was held in North York, Ontario, on May 25 and May 26, 1994, before me, Shemin Manji, arbitrator.

Present at the Hearing:

Applicant:

Sonia P. Murray

Applicant's

Lawrence N. Shapiro

Representative:

Barrister and Solicitor

Insurer's

Brian Leck

Representative:

Barrister and Solicitor

Witnesses:

Ms. Sonia Murray, the Applicant

Ms. Karen Kettunen, Holman Insurance Brokers Ltd.

Dr. Mary Devassy

Dr. Bobby Cheung

Ms. Gillian Woods, Holman Insurance Brokers Ltd.

Mr. Mark A. Holman, Holman Insurance Brokers Ltd.

Mr. Steve Brady, private investigator, Mantis Investigation Agency

Mr. Robert Mitchell, Claims Adjuster, Toronto Transit Commission

Exhibits entered into evidence and other documents on the record are listed in an appendix to this decision.

Reasons for Decision:

A. Background Facts and Issues:

The Applicant, Sonia P. Murray, is 41 years old. On January 14, 1993, Ms. Murray was a passenger on a T.T.C. bus when it was suddenly cut off by a car. The driver of the bus slammed on the brakes, to avoid hitting the car. Ms. Murray was standing in the bus holding on to one of the rails. She was thrown forward by the impact, and fell to the ground, landing on her back. She sustained injuries to her left ankle, neck, left shoulder and lower back.

Ms. Murray was not employed at the time of the accident. However, she had worked in excess of 180 days in the 12 months before the accident, at a number of jobs. She did not work after the accident until September 16, 1993, when she started working as an underwriter/customer service representative with Holman Insurance Brokers Ltd. ("Holman"). Ms. Murray worked with Holman until November 15, 1993, when she left her job.

Ms. Murray received weekly income benefits, under section 12 of the Schedule, from January 21, 1993 to September 30, 1993. She claims weekly income benefits after November 15, 1993. She claims that, as a result of the accident on January 14, 1993, she continues to suffer substantial inability to perform the essential tasks of her employment. The T.T.C. disagrees and contends that Ms. Murray is not entitled to weekly income benefits after November 15, 1993. Further, the T.T.C. seeks repayment of weekly income benefits paid to Ms. Murray for the period September 16, 1993 to September 30, 1993.

B. Entitlement to Weekly Income Benefits:

Entitlement to weekly income benefits is provided under subsection 12(1) of the Schedule. Subsection 12(1) states:

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 meets the qualifications set out in subsection (2) or (3).

Subsection 12(3) of the Schedule provides as follows:

(3) A person who was unemployed and who was not self-employed at the time of the accident is qualified to receive a weekly benefit under subsection (1) if he or she was employed or self-employed for any 180 days in the twelve-month period before the accident, and if he or she as a result of and within two years of the accident has suffered a substantial inability to perform the essential tasks of the occupation or employment in which he or she spent the most time during the twelve-month period before the accident. (emphasis added)

While Ms. Murray was not employed at the time of the accident, there is no dispute that she was employed for 180 days in the 12 month period before the accident.

In order to determine whether Ms. Murray is entitled to weekly income benefits after November 15, 1993, I must determine whether, after that date, she was substantially unable to perform the essential tasks of the employment in which she spent the most time during the 12 month period before the accident.

(a) Essential Tasks:

Ms. Murray was employed with various businesses in the 12 month period before the accident (Exhibit 9):

The Dominion of Canada General Insurance Company for the period January 14 to February 14, 1992;
Contemporary Personnel Inc. for the period March 17 to March 20, 1992, May 7 to May 15, 1992 and January 8 to January 11, 1993;
Darol Office Services for the period March 23 to April 3, 1992, April 6 to April 17, 1992, April 20 to May 1, 1992 and May 4 to May 15, 1992;
a numbered Ontario company for the period May 18 to June 20, 1992; and
M.I.C. of Canada Ltd. for the period June 29 to November 23, 1992.

I find that during the 12 month period before the accident, Ms. Murray spent the most time in her employment with M.I.C. of Canada Ltd. ("M.I.C."). Unfortunately, I received and heard little evidence about the essential tasks of Ms. Murray's employment with M.I.C.

The Record of Employment completed by M.I.C., dated November 25, 1992, merely states that Ms. Murray was an underwriting clerk. Ms. Murray testified that she worked as an underwriter with M.I.C. and provided back up services as a customer service representative. I received no evidence on whether the duties and physical requirements of the job of underwriter are similar to the duties and physical requirements of the job of an underwriting clerk. Assuming that this discrepancy is not significant, Ms. Murray's evidence was not very helpful in determining the essential tasks of her employment with M.I.C. She testified generally about the essential tasks of an underwriter, but did not focus specifically on the tasks and physical requirements of her job with M.I.C.

Throughout the hearing, both parties focused on Ms. Murray's employment after the accident with Holman. I am prepared to assume that this was, in part, because the essential tasks of her employment with Holman were similar to the essential tasks of her employment with M.I.C.

Ms. Murray testified that she worked as an underwriter with Holman and that her job involved processing renewal applications and working out quotations on the computer.

Ms. Kettunen, the supervisor of the customer service department at Holman, testified that Ms. Murray's underwriting job involved clerical functions, i.e. rating and learning to underwrite auto and property risks. Ms. Kettunen testified that she started supervising and training Ms. Murray (half-days) in the duties of a customer service representative sometime in October. Ms. Murray's duties as a customer service representative, in October and November 1993, involved reviewing new business policies coming from the broker, determining the proper commission, inserting the proper codes and opening computer and physical files.

I conclude that Ms. Murray's essential tasks at M.I.C. consisted of sedentary clerical work.

I heard a fair amount of evidence from Ms. Murray in respect of working conditions at Holman. She testified that the work load was very heavy and the job was physically demanding. She started working with the company at a busy time. There was a backlog of renewals from July 1993. Ms. Murray testified she was required to sit uncomfortably (because she could not find a chair at work that would hold her obus forme) in front of a computer for seven and a half hours and work on 60 files per day. She testified that she did not get up from her desk very often because she was working to deadlines and employees were not encouraged to get up from their desks during working hours. Ms. Murray testified that she was told by management to utilize the washroom facilities only during breaks and lunch. She could not even get up to take pain pills.

Ms. Murray testified that the job also involved bending, lifting (from the floor) and carrying heavy loads of files, twice each day, to and from the supervisor's desk.

Ms. Murray's evidence in respect of the working conditions at Holman was contradicted by three witnesses. Ms. Kettunen, Ms. Woods, the person who hired Ms. Murray at Holman, and Mr. Mark Holman, Assistant Vice-President of Holman, testified that employees are given two 10 minute breaks a day, and an hour for lunch. An employee could go to the bathroom at any time. They also testified that Ms. Murray was not required to carry heavy loads of files. They testified that they were not aware that Ms. Murray was experiencing physical problems. She did not appear to have difficulties and spoke of none prior to November 15, 1993. They testified that if Ms. Murray had brought her problems to their attention, she would have been allowed to get up and stretch and take breaks at any time. Ms. Kettunen testified that Ms. Murray would have been provided with a special chair that would have provided her with back support.

Ms. Murray's testimony about the working conditions at Holman do not persuade me that her essential tasks at M.I.C. were other than sedentary and clerical in nature.

I heard no evidence in respect of the working conditions at M.I.C. Even if I was prepared to assume that the working conditions at M.I.C. were similar to the working conditions at Holman, I prefer the testimony of Ms. Kettunen, Ms. Woods and Mr. Holman to that of Ms. Murray's. In general, I found Ms. Murray to be an unreliable witness. On a number of occasions she claimed an inability to recall details on important matters. Her counsel attributed this to her frustration over her medical condition and her inability to work. I am not satisfied with this explanation.

(b) Ms. Murray's Ability to Perform her Essential Tasks:

Ms. Murray relied on her own evidence and the evidence of her family doctor, Dr. Devassy, to prove that she had a substantial inability to perform the essential tasks of her employment after November 15, 1993. I will review Ms. Murray's evidence first.

(i) Ms. Murray's Evidence:

Ms. Murray testified that she was in constant pain while working with Holman. Her nape, shoulder, arms, back and buttocks hurt from sitting.

Ms. Murray submitted her letter of resignation on November 11, 1993, and claims that her resignation was due, in part, to her physical problems resulting from the injuries sustained in the accident of January 14, 1993. However, Ms. Murray's resignation letter of November 11, 1993, makes no reference to the physical problems she claims she was having. It appears from her letter of resignation that Ms. Murray resigned her position from Holman because of alleged unfair treatment, and not because of any disability on her part. In her letter of resignation (Exhibit 4), Ms. Murray stated:

Please be advised that as of Nov/26,93 I will be resigning my position as underwriter/Customer Service Rep because of the unfair treatment I have been experiencing. I tried my best to put up with the mental abuse but it has become unbearable.

Following her letter of resignation to Holman, Ms. Murray wrote a letter to the T.T.C. to explain what she meant by "the unfair treatment" and "the mental abuse" in her letter of resignation to her employer. In her undated letter, received by the T.T.C. on November 15, 1993 (Exhibit 8), she stated:

...as I mentioned before I did not expect to go back on benefit but to find a more suitable position and not so stressful. Because of the condition of my neck and back problems I asked for a decent chair to sit on because I took my obus form[e] to work but it would not fit properly on the chair, they could not get me a special chair. I was also lifting a lot of heavy files off the Floor which threw my back out one afternoon and I ended up at Scarboro grace (sic) with severe back pain (you are welcome to look into this.) I had migraine headaches I was not even allowed to go to the bathroom regularly to take pain killers. I was only at the job a short period of time and they were getting tired of me complaining so much, so they would not pay any attention to me. This was [the] reason behind the unfair treatment I was experiencing and mentally I was on the verge of a break down, and I did not want to jeopardise my health any further.

At the hearing, Ms. Murray testified that she resigned her position with Holman because, after talking to a few people, including Ms. Woods, it did not appear that her job responsibilities were going to change. She was not doing the job that she was originally hired to do, i.e. that of customer service representative. She testified that although she was supposed to be trained for the position she was not being trained. At the same time her physical problems were worsening. She was taking muscle relaxants and seeing a physiotherapist.

Ms. Murray testified that when she resigned her position with Holman, she did not intend to go back on benefits. She intended to start another job on November 26, 1993, which was to be the official date of the resignation. But on November 12, 1993, she had one of her regular appointments with Dr. Devassy. Ms. Murray testified that during the visit, Dr. Devassy independently came to the conclusion that Ms. Murray's work was aggravating her back, because she was sitting for eight hours. Dr. Devassy advised Ms. Murray to stay off work indefinitely. Ms. Murray testified that during that visit she did not complain of pain or discuss her work and the effect it was having on her health. Dr. Devassy told her that she was totally disabled and it was purely on Dr. Devassy's instructions that she left her job on November 12, 1993.

Ms. Murray testified that she has not worked or tried to work since November 16, 1993. She testified that she is not capable of working now. She could not do the job that she was doing in November 1993, as sitting for long periods of time is a problem for her. Ms. Murray testified that she has been seeing Dr. Devassy regularly since before November 15, 1993, as well as doctors and a physiotherapist at the Toronto Rehabilitation Centre.

The statements made by Ms. Murray in her letter to the T.T.C. and her testimony at the hearing were contradicted by the evidence of three witnesses. Ms. Woods, Ms. Kettenun and Mr. Holman testified that they were not aware that Ms. Murray was suffering from any disability until after November 15, 1993, when she gave Ms. Woods a note from Dr. Devassy. They testified that Ms. Murray did not appear to have any pain or physical difficulties and spoke of none. She did not complain about the furniture and they do not recall seeing her bring in an obus forme.

Holman's file pertaining to Ms. Murray does not indicate that while she worked there, she was off work as a result of the accident of January 14, 1993. The records of the company show that she was absent from work twice, due to the flu.

Ms. Murray testified that she complained about her continuing back disability to another supervisor, Ms. Susan Lemesurier. However, Ms. Lemesurier was not called as a witness to testify on Ms. Murray's behalf.

Ms. Kettunen testified that she thought that Ms. Murray resigned because she was not happy with her training as a customer service representative. Specifically, Ms. Murray was not happy with Ms. Kettunen's review of her work. She felt that Ms. Kettunen was too demanding, picky and unfair. Ms. Murray wanted to be on the phones. Ms. Kettunen was of the opinion that Ms. Murray was not ready to work on the phones.

Given the conflict in Ms. Murray's own evidence and my assessment of her testimony at the hearing, I prefer Ms. Kettunen's version of why Ms. Murray resigned her position with Holman. The actions that Ms. Murray took in the days following her letter of resignation support my view that Ms. Murray did not resign her position with Holman because she was unable to perform her essential tasks. Mr. Holman and Mr. Woods testified that Ms. Murray attempted to retract her resignation on November 15, 1993, after she obtained a letter from Dr. Devassy stating that she should stay off work.

Ms. Woods testified that, on November 15, 1993, Ms. Murray asked Ms. Woods for her resignation letter back and asked her to insert in its place, in her personnel file, the note from Dr. Devassy. After speaking to Mr. Holman, Ms. Wood testified that she informed Ms. Murray that the resignation letter could not be withdrawn.

Ms. Murray denied that she attempted to retract her resignation. She testified that further to her visit with Dr. Devassy of November 12, 1993, she went to work on November 15, 1993, merely to deliver Dr. Devassy's letter and to inform her employer that she would be leaving work immediately.

Again, for the reasons given earlier, I prefer the evidence of Ms. Woods and Mr. Holman over Ms. Murray's evidence.

(ii) The Medical Evidence:

Ms. Murray was thoroughly investigated, following the accident, to determine the source(s) of her neck, left shoulder and lower back pain.

Some physical findings of an organic problem were made, although, it is not clear whether they resulted from the accident. On the day of the accident, January 14, 1993, Ms. Murray was examined at the Centenary Health Centre by Dr. McGrath, an orthopaedic specialist (Exhibit 1, Tab 11). During his examination of Ms. Murray, he observed swelling on her left shoulder. He noted that this was somewhat tender and that Ms. Murray was adamant that it had not been there previously. Dr. McGrath opined that the swelling was consistent with a lipoma (a benign tumor usually composed of mature fat cells) or possibly hematoma (a bruise).

Dr. Bernard Woolford, an orthopaedic specialist, who treated Ms. Murray and saw her regularly from March 1, 1993 to July 19, 1993, did not, in his consultation notes, document any swelling on Ms. Murray's left shoulder. However, he observed that x-rays of her cervical spine, taken February 22, 1993, and her lumbar spine, taken March 8, 1993, showed some degenerative changes but no evidence of recent bony injury. Dr. Woolford also observed that x-rays of Ms. Murray's lumbar spine revealed minimal scoliosis concave to the right suggesting muscle spasm.

All of the doctors who examined or treated Ms. Murray following the accident were of the opinion that she sustained soft tissue injuries in the accident of January 14, 1993.

Dr. Woolford was of the opinion that by August 1, 1993, Ms. Murray was ready to go back to work.

He noted, however, that Ms. Murray would not be entirely free of symptoms at that time.

Ms. Murray's family physician, Dr. Devassy, who has been seeing Ms. Murray regularly since March 12, 1993, disagreed with Dr. Woolford's opinion that Ms. Murray was ready to return to work by August 1, 1993. In her report to the T.T.C. of August 10, 1993 (Exhibit 1, Tab 6), she indicated that Ms. Murray suffered "from acute soft tissue injury of her cervical spine and left shoulder with exacerbation of her symptoms through out July 1993" and that she was "totally disabled for any type of employment".

At the hearing, Dr. Devassy testified that by September 10, 1993, Ms. Murray had improved sufficiently to be capable of doing a light clerical job. She agreed with Ms. Murray, when she saw her on September 10, 1993, that she should try the job that she had been offered with Holman.

After Ms. Murray commenced working with Holman she was seen by Dr. Michael B. Bushuk, an orthopaedic surgeon, at the request of the T.T.C. In his report of September 20, 1993 (Exhibit 1, Tab 10), Dr. Bushuk noted that Ms. Murray had commenced a job on September 16, 1993, and was working full time. He noted that she was working for an insurance company in customer relations. After reviewing Ms. Murray's medical history, his findings on examination and his diagnosis, Dr. Bushuk indicated that there was absolutely no reason why Ms. Murray could not continue to work on a full-time basis. He felt that her residual symptoms would improve with time, but could not predict how long it would take. He stated that her overall disability was minimal and her prognosis was excellent.

Dr. Bushuk opined that the degenerative changes Dr. Woolford observed on Ms. Murray's cervical and lumbar x-rays pre-dated the accident of January 14, 1993.

At the hearing, Dr. Devassy testified that she agreed with Dr. Bushuk's opinion of September 20, 1993, in respect of Ms. Murray's ability to work. However, she also testified that when she assessed Ms. Murray on September 21, 1993, after one week at work, Ms. Murray complained of increased pain and by September 30, 1993, Ms. Murray complained of persisting pain in the neck, both shoulders and lower back. Dr. Devassy testified that the pain continued to get worse and, therefore, she made arrangements to have Ms. Murray seen by a rheumatologist, Dr. Joanne McDonald. Dr. McDonald was not able to see Ms. Murray until January 1994.

Dr. Devassy testified that Ms. Murray's job with Holman involved the use of a computer terminal on a daily basis. This aggravated her problems because Ms. Murray had difficulty sitting at her desk for eight hour periods. Ms. Murray continued to attend physiotherapy while working.

Dr. Devassy testified that Ms. Murray came to her office on November 11, 1993, without a scheduled appointment, complaining of severe pain. She could not sit. Dr. Devassy felt that Ms. Murray should not go back to work. However, since Ms. Murray wanted to go into work the next day, Dr. Devassy asked her to keep her previously scheduled appointment on November 12, 1993, if she was not feeling better.

Dr. Devassy testified that when she saw Ms. Murray on November 12, 1993, there was no change in her condition. Dr. Devassy was of the opinion that Ms. Murray was totally disabled. She advised Ms. Murray to stay off work for an indefinite period until she improved significantly.

Ms. Murray was seen by Dr. Joanne McDonald, rheumatologist, at Dr. Devassy's request in early January 1994. In her report of January 7, 1994, Dr. McDonald stated that it was her opinion that Ms. Murray had fibromyalgia due to a cervical and lumbar strain injury (Exhibit 1, Tab 12). Dr. McDonald also noted that Ms. Murray had hyperthyroidism, and opined that this might actually be aggravating her muscular pains.

Dr. McDonald noted in her report that there appeared to be some emotional overlay to some of her symptoms and findings on clinical examination. Dr. McDonald found it difficult to assess Ms. Murray's joint range of movement because Ms. Murray actively resisted movement at most joints.

Notwithstanding her diagnosis of fibromyalgia, Dr. McDonald stated, in her report of January 7, 1994 to Dr. Devassy, that she thought that Ms. Murray could return to work. Dr. McDonald did not comment on Ms. Murray's ability to return to work prior to January 7, 1994.

Dr. Devassy, testified that Ms. Murray's condition has improved since November 1993. She considered that as of the date of the hearing, Ms. Murray had returned to the level of recovery that she had reached in September 1993, when she started working with Holman. However, she testified that she did not feel that Ms. Murray was capable of performing the essential tasks of her employment with Holman, or any other job.

Dr. Devassy testified that Ms. Murray was involved in a program at the Toronto Rehabilitation Centre. Through the program, she will learn what activities she can and cannot tolerate.

Dr. McDonald's opinion that she was able to return to her work conflicts with Dr. Devassy's opinion that Ms. Murray is incapable of performing her essential tasks at Holman, after November 15, 1993.

While Dr. McDonald only saw Ms. Murray once and may not have had an accurate understanding of Ms. Murray's essential tasks, I prefer her opinion over the opinion of Dr. Devassy.

Dr. Devassy impressed me as a doctor who cared about her patient, accepted whatever Ms. Murray told her as true, and wished to assist Ms. Murray in any way she could. However, she was not able to provide any significant objective evidence of disability to the extent claimed by Ms. Murray. Her clinical notes and records, which I have reviewed, document that Dr. Devassy sometimes observed swelling over Ms. Murray's left shoulder. However, Dr. Devassy acknowledged, in cross-examination, that this observation did not mean that Ms. Murray was necessarily disabled.

Dr. Devassy's clinical notes and records indicate that her opinion and findings were largely dependent upon Ms. Murray's own reports of her history, symptoms and employment tasks. The evidence indicates that Ms. Murray was not honest and accurate in reporting her history, symptoms and employment tasks to Dr. Devassy.

First of all, Dr. Devassy did not have an accurate understanding of Ms. Murray's job with Holman. Dr. Devassy appeared to believe that Ms. Murray's job required her to sit in front of a computer for long stretches of time (eight hours) without any breaks. I have found this not to be the case.

Secondly, Ms. Murray failed to advise Dr. Devassy when she saw her on November 11, 1993 and November 12, 1993, that she had already resigned her job with Holman effective November 26, 1993. Dr. Devassy testified that she was under the impression that Ms. Murray would be continuing to work at Holman on November 12, 1993, when she provided her with the note stating that she should stay off work.

Last but not least, Ms. Murray did not advise the doctors who treated or assessed her, including Dr. Devassy, that she had cervical spine problems prior to the accident. Ms. Murray specifically informed Dr. Bushuk that she had never had any cervical or lumbar spine problems prior to the bus accident.

The evidence of Dr. Cheung, a general practitioner who Ms. Murray saw in 1986, 1987, 1988, 1989, 1990, 1991 and 1992 indicates otherwise. Dr. Cheung testified, based on his clinical notes and records, that Ms. Murray attended at his office on June 9, 1986, and informed him that she had been involved in a motor vehicle accident on June 5, 1986. She informed him that she had attended at a hospital on the day of the accident and on June 8, 1986, after she fell and was unable to move. She was given Tylenol #3, Norflex and diazepam. Dr. Cheung testified that during her visit, Ms. Murray complained of a headache, neck and shoulder pain. On examination, Dr. Cheung noted that Ms. Murray was anxious and nervous. Dr. Cheung assessed Ms. Murray as having neck strain, anxiety and concussion.

Dr. Cheung testified that Ms. Murray attended at his office on June 12, June 23, August 17, October 16, and December 5, 1986, April 27, 1987, February 29, 1988 and in April 1988, complaining of shoulder and neck pain. Ms. Murray also attended for physiotherapy treatments for her neck pain, five times a week, in June, August and October 1986 and April 1987.

Ms. Murray testified that she did not recall having any problems with her neck before the accident of January 14, 1993. She challenged Dr. Cheung's evidence on the ground that her cousin also attended at Dr. Cheung's office and her records may have been mixed with those of her cousin or someone else.

While Dr. Cheung acknowledged that there was some confusion in respect of the OHIP number assigned by his office to Ms. Murray's file, he testified that he would not have mixed up Ms. Murray's file with anyone else's, after October 1986, when she was diagnosed as having Graves disease (hyperthyroidism).

I accept Dr. Cheung's evidence and based on a review of his notes of Ms. Murray's visits subsequent to October 1986, I am satisfied that Ms. Murray was involved in a motor vehicle accident on June 5, 1986, in which she sustained an injury to her neck and shoulders.

Ms. Murray may have been asymptomatic prior to her accident of January 14, 1993. However, in my view, this is not conclusive of the matter. The question is a broader one of Ms. Murray's credibility. It is a question that is directly relevant to the degree of disability she suffered after November 15, 1993.

(iii) Conclusion:

I find that after November 15, 1993, Ms. Murray did not, as a result of the accident of January 14, 1993, suffer substantial inability to perform the essential tasks of her employment with M.I.C. I make this finding based on the conflicts in Ms. Murray's own evidence, the absence of objective medical evidence of disability to the extent claimed by Ms. Murray after November 15, 1993, the evidence of three witnesses from Holman, Dr. McDonald's opinion that Ms. Murray could return to work and my own assessment of her testimony at the hearing.

C. Overpayment:

Ms. Murray received weekly income benefits during the period September 16, 1993 to September 30, 1993, when she was working with Holman. Ms. Murray does not claim that during this period she was substantially disabled from performing the essential tasks of her pre-accident employment. Ms. Murray received these benefits at a meeting she had with Mr. Mitchell, the claims adjuster, on September 15, 1993. At the meeting she failed to advise Mr. Mitchell that she was commencing employment the next day.

Repayment of benefits is addressed in section 27 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.

(4) The insurer may charge interest from the day the amount owing to the insurer under this section is determined at the bank rate on that day.

Section 27(1) requires that benefits must be repaid when they have been paid to the person "through error or fraud". In Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260 (appeal decision September 29, 1992, OIC File No. P-000260), Senior Arbitrator Naylor stated that, in her view, the stipulation in section 27(1) that benefits be paid "through error" in order to be recoverable must require that responsibility for the payment be attributable in some material way to the actions of the applicant. I agree with Senior Arbitrator Naylor's interpretation of section 27(1) of the Schedule.

In this case, I find that Ms. Murray was responsible in a material way for the error of the T.T.C. since she failed to disclose her imminent return to work. I therefore find that she is required to repay those benefits that were paid to her for the period from September 16, 1993 to September 30, 1993, with interest at the bank rate, pursuant to subsection 27(4) of the Schedule.

D. Is the Insurer entitled to an award against the Insured person under section 282(11.2) of the Insurance Act?

The relevant portion of section 282 of the Insurance Act, as amended by section 33 of the Insurance Statute Law Amendment Act, 1993, states:

Assessment against insured person:

282(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious, or an abuse of process, the arbitrator may award an amount to be paid by the Insured person that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

The amount assessed against an insurer in respect of an arbitration is $1,000 as established by section 14 of the Act and Ontario Regulation 220/91.

The evidence indicates that Ms. Murray was not always "above board" in her dealings with the T.T.C. The evidence also indicates that Ms. Murray provided various doctors who assessed and/or treated her, after the accident, with incomplete or inaccurate information. However, I am not satisfied, based on all the evidence, that Ms. Murray's application for arbitration was frivolous, vexatious or an abuse of process.

E. Expenses of the Arbitration:

Ms. Murray seeks an award of the expenses she has incurred in this arbitration. Section 282(11) of the Insurance Act confers a discretion on me to award an applicant his or her expenses.

In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Senior Arbitrator Susan Naylor discussed appropriate criteria guiding the exercise of an arbitrator's discretion to award an applicant his or her expenses. In that decision, she stated, at pages 23 and 24:

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 these criteria in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.

Having regard to the criteria set out in McCormick, I find that Ms. Murray is entitled to an award for expenses, as prescribed in Ontario Regulation 664, and Schedule 1 of the Dispute Resolution Practice Code. I remain seized of this matter in the event of a dispute in regards to the amount of expenses claimed.

Order:

Ms. Murray is not entitled to weekly income benefits for any period after November 15, 1993.
Ms. Murray was overpaid "through error or fraud" and, therefore, she must repay the weekly income benefits she received, for the period September 16, 1993 to September 30, 1993, according to section 27 of the Schedule.
The T.T.C. is not entitled to an award against Ms. Murray under section 282(11.2) of the Insurance Act.
Ms. Murray is entitled to her expenses related to this arbitration.

December 29, 1994

Shemin Manji

Arbitrator

Date

APPENDIX A - THE RECORD

Exhibits:

Exhibit 1

Brief of Medical Reports on behalf of the Toronto Transit Commission

Tab 1

Ontario Automobile Insurance Medical or Psychological Report of Dr. L.O. Mesensky, dated January 25, 1993

Tab 2

Curriculum Vitae and Report of Dr. Bernard J. Woolford, dated May 14, 1993

Tab 3

Report of Dr. Bernard J. Woolford dated June 21, 1993

Tab 4

Invoice from West Hill Physiotherapy Centre dated August 11, 1993

Tab 5

Active Physiotherapy Rehabilitation Group "Reporting Form"

Tab 6

Report of Dr. Mary Devassy dated August 10, 1993

Tab 7

Report of Dr. Mary Devassy dated October 4, 1993

Tab 8

Report of Dr. Mary Devassy dated November 16, 1993

Tab 9

Report of Dr. Mary Devassy dated February 18, 1994

Tab 10

Report of Dr. Michael B. Bushuk dated September 20, 1993

Tab 11

Centenary Health Centre medical reports

Tab 12

Report of Dr. Joanne McDonald dated January 7, 1994

Exhibit 2

Letter dated September 17, 1993 to Ms. Sonia Murray from Frank T. Holman, Holman Insurance Brokers Ltd.

Exhibit 3

Ontario Health Insurance Plan summary dated March 23, 1994

Exhibit 4

Resignation letter dated November 11, 1993 to Ms. Gillian Woods, Holman Insurance Brokers Ltd. from Ms. Sonia Murray

Exhibit 5

Brief of Clinical Notes & Records on behalf of the Toronto Transit Commission

Tab 1

Clinical notes of Dr. Mesensky and Dr. Devassy

Tab 2

Clinical notes of Dr. Bobby Cheung

Exhibit 6

Motor Vehicle Accident Report, Metropolitan Toronto Police, dated January 14, 1993

Exhibit 7

Letter dated November 25, 1993, to the Toronto Transit Commission from Ms. Sonia Murray

Exhibit 8

Letter (undated) to the Toronto Transit Commission from Ms. Sonia Murray (received by the Toronto Transit Commission on December 15, 1993)

Exhibit 9

Letters/Records of Employment from former employers

Darol Office Services dated January 29, 1993

Dominion of Canada General Insurance Company, dated January 20, 1993

Contemporary Personnel Inc. dated January 20, 1993

M.I.C. of Canada Ltd. dated November 25, 1992

A numbered Ontario company dated June 26, 1992

Exhibit 10

Notes of Dr. Cheung of visit of Ms. Sonia Powell on June 9, 1986 on blue sheet entitled "Annual History & Physical"

Exhibit 11

Clinical notes and records of Dr. Cheung (Ref. (W) Bovell)

Exhibit 12

Letter dated November 15, 1993, to Sonia Murray from Frank T. Holman, Holman Insurance Brokers Ltd.

Exhibit 13

Ontario Automobile Insurance Employer's Confirmation of Income dated November 17, 1993, by Holman Insurance Brokers Ltd.

Exhibit 14

Letter dated April 11, 1994, to the Toronto Transit Commission from Mark A. Holman, Holman Insurance Brokers Ltd.

Exhibit 15

Surveillance videotape, July 23, 1993, August 17, 1993 and January 26, 1994

Footnotes

Prior 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.

Sonia P. Murray v. Toronto Transit Commission, 1994 ONICDRG 124

Case Summary