Neutral Citation: 1995 ONICDRG 126

File No.: A-008849

ONTARIO INSURANCE COMMISSION

BETWEEN:

DRAGICA MLADENOVIC

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Dragica Mladenovic, was injured in two motor vehicle accidents in rapid succession. Her first accident occurred on October 9, 1992. The Applicant applied for and received total temporary disability benefits through the Workers' Compensation Board ("WCB") until benefits were terminated on August 9, 1993.

The Applicant was involved in a second motor vehicle accident on November 4, 1992, 26 days after her first accident. Following the termination of her WCB benefits, the Applicant applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion") payable under Ontario Regulation 672¹.

Dominion denied benefits on the basis that the Applicant no longer suffered a substantial inability to perform the essential tasks of her pre-accident employment after August 9, 1993. In the alternative, Dominion alleged that the Applicant's disability, if any, resulted from her first motor vehicle accident. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits under section 12(1) of the Schedule after August 9, 1993?

2. What is the amount of the Applicant's weekly income benefit under section 12(1) of the Schedule?

3. Is the Applicant entitled to payment of chiropractic and other supplementary medical and rehabilitation expenses under section 6(1) of the Schedule?

4. Is the Applicant entitled to payment of a special award on the basis that Dominion unreasonably withheld or delayed payment of benefits?

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

Result:

1. The Applicant is entitled to weekly income benefits under section 12(1) of the Schedule from August 10, 1993 until completion of a medically supervised work re-activation program with appropriate rehabilitative support.

2. The amount of weekly income benefit payable to the Applicant is $234.45.

3. The Applicant is not entitled to payment of chiropractic expenses claimed, however, she is entitled to payment of expenses associated with a medically supervised work re-activation program under section 6(1) of the Schedule.

4. The Applicant is not entitled to a special award on the basis that Dominion unreasonably withheld or delayed payment of benefits.

5. The Applicant is entitled to payment of interest on amounts owing, and her expenses incurred in the hearing.

Hearing:

The hearing was held in North York, Ontario, on September 15 and October 20, 1994, before me, Janice Mackintosh, Arbitrator.

Present at the Hearing:

Applicant: Dragica Mladenovic

Applicant's Representative: Mark H. Arnold Barrister and Solicitor

Insurer's Representative: William A. McClelland Barrister and Solicitor

Witnesses: Mrs. Mladenovic Zorica Nikolich Dr. Prevrag Vujnovic William John Horvath Mary Radojcic John Naraine Roy Mladenovic Mavis Haws

Proceedings were translated into the Serbian language by Zorica Vukmanovic of the Association of North American Translators.

Exhibits: Exhibits and other documents before the arbitrator are listed in an Appendix to this decision.

Evidence and Findings:

Prior to her first automobile accident on October 9, 1992, the Applicant had been employed by Art Candle Ltd. ("Art Candle") for approximately 22 years. Art Candle is a small candle manufacturer, owned and operated by the Applicant's husband, Mr. Roy Mladenovic, from whom she is now separated. The Applicant assisted her husband in all aspects of the candle-making process, including operating machines and providing general labour as required. She worked at Art Candle before, and during her marriage to Mr. Mladenovic. She continued to work there after they separated approximately four years ago. The Applicant claims that she has been unable to return to work since the date of her first accident on October 9, 1992.

Essential Tasks of the Applicant's Employment:

In order to qualify for payment of weekly income benefits under section 12(1) of the Schedule, the Applicant must establish that she continues to be substantially disabled from performing the essential tasks of her employment with Art Candle from August 10, 1993, onwards.

There is little dispute concerning the essential tasks of the Applicant's pre-accident employment with Art Candle. The parties agree that the job description prepared by a case worker from WCB, in consultation with the Applicant and her employer, Roy Mladenovic, accurately describes the eight different work operations the Applicant might be required to perform during a typical work day.² The work done at work stations 1, 2, 3, 5, and 8 requires the Applicant to stand for long periods of time, interspersed with some walking. The Applicant has the option of sitting at stations 4, 6 and 7. The work at all of the stations requires reaching, usually at waist height but at stations 1 and 8 some overhead reaching is required and at stations 4 and 8 some reaching below waist level is required. At station 1, lifting of up to 32 pounds is required, and at stations 4 and 8, some lifting of up to 10 pounds is required. The Applicant can work at her own pace, within reason, and can change stations and switch with another employee. The Applicant was paid $15.00 an hour and worked from 8:30 a.m. to 4:30 p.m., five days a week, when the factory had sufficient work. Mr. Mladenovic testified that he tried to give his estranged wife as many hours as he could to bring her up to full-time, however this was not always possible. For example, the Applicant testified that in 1991, she was laid off for several months, due to lack of business, and received unemployment insurance benefits.³

Mr. Mladenovic testified that when the economy was good, Art Candle employed several people on a full-time basis. However when the economy declined, Art Candle began to reduce the number of its employees. At the time of the hearing Mr. Mladenovic was the only full-time person, along with two part-time employees who worked as many hours as he was able to give them. Mr. Mladenovic indicated to the case worker from WCB that he was willing to negotiate a modified work arrangement to accommodate the Applicant's return to work. However, he testified that he was concerned that the Applicant might re-injure herself and make another WCB claim which would impact on Art Candle. Mr. Mladenovic appeared to be prepared to co-operate with a modified work arrangement, provided that the Applicant's medical restrictions were defined and the appropriate work tasks and work re-entry schedule were clearly established.⁴

First Accident - October 9, 1992:

On October 9, 1992, the Applicant's car was rear ended while waiting at a stop sign. The Applicant had left work early to make a bank deposit on behalf of Art Candle, on her way home. The uncontroverted evidence of the Applicant and her husband was that her husband notified Dominion of the October 9, 1992 accident, but was informed by their representative that any injury claim ought to be directed to WCB.

Mr. Mladenovic reported his wife's accident to WCB on November 2, 1992.⁵ The claim was accepted by WCB and the Applicant received compensation for lost earnings and health care expenses for the period October 12, 1992 to August 9, 1993.⁶

The Applicant saw her family physician, Dr. Prevrag Vujnovic, on October 13, 1992. His clinical notes record that the Applicant complained of:

headache starting in the eyes going to temples and ending at back of head; head pressure; ringing in ears; nausea, but no vomiting since episode in emergency ward immediately following accident; neck pain; difficulty swallowing; right shoulder and arm pain; right hand numb with tingling in fingers; right shoulder blade pain extending down to right lumbar back, right hip and right leg; spasm in lumbar and right hip muscles; numbness in right big toe.⁷

Dr. Vujnovic prepared eight progress reports to the WCB concerning the Applicant's injuries from the October 9, 1992 accident.⁸ Dr. Vujnovic consistently described injuries to the Applicant's neck, back, shoulders, left hip and leg. He noted pain in her arms, pain radiating to her left leg, muscle spasm, and limitation of movement. Over the months, Dr. Vujnovic observed a slow but gradual improvement in the Applicant's condition. In the first six progress reports, he stated that she was totally disabled from returning to work. In the last two progress reports, he listed several restrictions to be observed upon the Applicant's return to work. In his final progress report dated July 8, 1993, Dr. Vujnovic recommended the following restrictions while working: no lifting, no bending, frequent change of position and rest when necessary. Question 7 of each WCB progress report asks, "Any significant factors delaying recovery?" Although Dr. Vujnovic was aware of and was treating the Applicant in connection with the second accident, he did not refer to the second motor vehicle accident of November 4, 1992.

WCB referred the Applicant to a Regional Evaluation Centre for a multi-disciplinary health care assessment on May 21, 1993. Dr. John Cameron, an orthopaedic surgeon, and Sandra Lincoln-Puopore, a physiotherapist, prepared a joint report dated May 21, 1993.⁹ They concluded the Applicant suffered a soft tissue injury to her cervical and lumbar spine, with no evidence of associated neurological involvement, in spite of her feelings of pins and needles in her upper and lower extremities. They recommended an active exercise program of four to six weeks and a return to work in the candle-making factory, on a part time basis, progressing to full-time activity as tolerated.

The Applicant's family doctor also referred her to an orthopaedic specialist, Dr. Morris Charendoff. Dr. Charendoff prepared three progress reports which were forwarded to the WCB.¹⁰ Dr. Charendoff's first two reports were prepared prior to the termination of the Applicant's WCB benefits in August 1993, and refer exclusively to the first motor vehicle accident. The Applicant confirmed in testimony that neither she nor her family doctor informed Dr. Charendoff of her second motor vehicle accident until his final report dated November 2, 1993. In June 1993, Dr. Charendoff concluded that her post-traumatic soft tissue injuries were slowly resolving and encouraged the Applicant to continue with rehabilitative measures. Dr. Charendoff offered no opinion concerning the Applicant's ability to return to her former employment.

By letter dated July 27, 1993, the Applicant was informed by WCB that her continuing wage loss benefits would end, effective August 9, 1993, following completion of her pre-approved physiotherapy program. The letter states in part:

In accordance with the information submitted by an Orthopaedic Specialist it has been determined that you have reached your maximum medical recovery with no compensable permanent impairment. In other words it is expected that there will be no further significant improvement in your condition. Although you may still be experiencing some pain it is expected that this will fully resolve.... No further benefits may be granted as you are now fit to perform the essential employment duties of your pre-accident job.¹¹

The Applicant did not object to the decision of the WCB. Instead, she approached Dominion for payment of statutory accident benefits under the Schedule in connection with her second motor vehicle accident of November 4, 1992.

Second Accident: November 4, 1992

The Applicant had just dropped her daughter off at school when her car was struck on the left front wheel as she was exiting the school yard. The Applicant's uncontroverted evidence was that the impact of this accident was more forceful than her first accident and there was greater physical damage to the car. The Applicant testified that she was badly shaken and dazed by the impact. She was taken to hospital by ambulance where she was treated and released some hours later.

She saw her family physician the next day. He noted in his clinical records that all her old complaints from the first accident were exacerbated by the second, resulting in further limitation to the mobility of her hips and lower back.¹²

Mr. Mladenovic stated that he immediately notified Dominion his wife had been injured in a second motor vehicle accident. The unchallenged testimony of the Applicant and her husband was that a representative of Dominion told them the Applicant could not receive income benefits from both WCB and Dominion at the same time. It was the Applicant's understanding that she was to contact Dominion only after her claim with WCB had ended. In February 1993, Mr. Mladenovic forwarded an ambulance invoice from the second accident (November 1992) to Dominion for payment. Dominion promptly paid it.¹³ No letter appears to have been sent by Dominion to the Applicant explaining its position or her entitlements with respect to the second accident. The Mladenovics appear to have assumed that Dominion had accepted coverage in connection with the second accident, subject to the completion of her WCB claim relating to the first accident.

When the Applicant received the July 27, 1993 letter from WCB terminating her wage loss benefits, she applied to Dominion for weekly income benefits under the Schedule in connection with her second accident. She sent an Application for Accident Benefits dated August 1993¹⁴, an Employer's Confirmation of Income form completed by her husband, a Form 4 Medical Report completed by her family doctor in September 1993, and a copy of the WCB letter. She also provided Dominion with the standard form waiver and authorization for the release of medical documentation relating to her second accident (November 4, 1992).

Mr. John Naraine, an adjuster for Dominion, and Ms. Mavis Haws, the Accident Benefits Manager for Dominion, testified that the documentation supplied by the Applicant contained several apparent contradictions, which caused the Insurer to question her claim. The Form 4 medical report from her family doctor stated:

She is not recovered but WCB decided that present disability is caused by second accident and stopped payment. They think that without second accident she will be recovered by now.¹⁵

In contrast, the letter from WCB stated: "No further benefits may be granted as you are now fit to perform the essential employment duties of your pre-accident job."¹⁶

The Employer's Confirmation of Income form stated that the Applicant had been unable to work since November 4, 1992 (the second accident), whereas the letter from WCB indicated that the Applicant had been compensated for total disability since October 12, 1992 (the first accident).

The Insurer questioned the basis of the Applicant's claim of continuing disability, as well the extent to which the first accident may have caused or contributed to her present complaints. Dominion attempted, without success, to obtain a copy of the orthopaedic specialist's report referred to in the WCB letter. The Applicant testified that she was surprised and offended by what appeared to her to be a shift in Dominion's position concerning her second accident. The Applicant began to block the efforts of Dominion to obtain her medical records from WCB and elsewhere.¹⁷ This action heightened Dominion's concerns about the Applicant's claim.

Dominion refused to pay weekly income benefits, and continued its attempts to obtain further medical documentation concerning the Applicant.¹⁸ The Applicant interpreted Dominion's refusal to pay weekly income benefits to be a blanket denial of all her claims arising from the second accident, and she did not pursue therapy or submit any claims in respect of therapy to Dominion until quite recently. I was provided with no document from Dominion to the Applicant in which Dominion explained its position in respect of her claims from the second accident. Perhaps if this had been done at an early stage of the claim, the series of escalating misunderstandings between the parties might have been avoided.

Causal Connection:

The Applicant submits that the injuries from the first accident primarily affected her head, neck, and shoulders, while the injuries from her second accident primarily affected her lower back. She suggested that she was beginning to recover from the effects of her first accident when the second, more severe, accident occurred, 26 days later. She maintains that her current disability relates primarily to the pain in her lower back, which she attributes to the second accident.

The Insurer adopts the WCB's position that by August 9, 1993, the Applicant was fit to perform the essential employment duties of her pre-accident job. In the alternative, Dominion maintains that the Applicant was disabled as a result of the first accident when the second accident occurred. Dominion alleges that any current complaints relate to that first accident rather than the second.

In his eight progress reports to WCB, Dr. Vujnovic appears to have attributed all the Applicant's symptoms and complaints to her first motor vehicle accident of October 9, 1992. However in his report to Dominion dated September 10, 1993, Dr. Vujnovic stated "She is not recovered but WCB decided that disability is caused by second accident and stopped payment. They think that without second accident she will be recovered by now." There is no indication in the records provided to me that WCB was aware of the Applicant's second accident. Both the Applicant and Dr. Vujnovic testified that they did not inform WCB of the Applicant's second accident. I do not accept the statement made by Dr. Vujnovic in his report to Dominion dated September 10, 1993.

Dr. Vujnovic prepared a further report dated March 22, 1994, on behalf of the Applicant in respect of her second accident.¹⁹ Dr. Vujnovic offered the following opinion:

In the first accident on October 9, 1992, Mrs. Dragica Mladanovic was mostly injured in the cervical and shoulder area. In the second accident, she aggravated the already existing injuries and did more damage to her lumbar area....

At the present time, Mrs. Mladanovic is still totally disabled as a result of the consequences of the second accident which occurred on November 4, 1992. The accident was not covered by the Worker's Compensation Board and it is clear that the treatment and care of her injuries should be taken over by the Dominion of Canada General Insurance Company. She is presently complaining mainly of pain in the low back area which was mostly injured in the second accident.

In his eight reports to WCB, Dr. Vujnovic did not distinguish the Applicant's injuries to her cervical spine and shoulder areas from the injuries to her low back. He appears to have attributed all these problems to the first accident. However, in his reports to Dominion, Dr. Vujnovic attributes injuries to the Applicant's cervical and shoulder areas primarily to the first accident while attributing injuries to her low back primarily to her second accident. In his testimony, Dr. Vujnovic offered no explanation regarding this apparent difference in his opinion concerning the cause of the Applicant's complaints, other than to state that the second accident was not WCB's concern.

I find Dr. Vujnovic's opinion concerning the causation of the Applicant's current complaints, as expressed in his various medical reports²⁰ to be contradictory and unreliable. I suspect that Dr. Vujnovic's focus was upon treating the Applicant's injuries rather than determining their specific cause. In cross examination, Dr. Vujnovic admitted that because the two accidents occurred close together and affected essentially the same areas of the Applicant's body, it was very difficult to separate the effects of the two accidents. I find that when Dr. Vujnovic prepared his reports on behalf of the Applicant he interpreted the facts in a manner that was most likely to result in the payment of benefits to her. I conclude that Dr. Vujnovic was acting more in the capacity of an advocate than an expert who was basing his opinion solely on medical findings. I therefore place little reliance upon Dr. Vujnovic's reports.

At the hearing, Dr. Vujnovic reviewed his clinical notes and records in detail. He and his wife, Dr. L.J. Gulan-Vujnovic, with whom he shares a family medicine practice, created and maintained the notes to assist in the treatment of their patient²¹. These notes were made contemporaneously with the Applicant's visits to them. As such, I find them to be a more reliable source of information concerning the Applicant's medical condition than the medical reports subsequently prepared by Dr. Vujnovic in support of the Applicant's claims for benefits.

Dr. Vujnovic examined the Applicant on October 27, 1992, seven days prior to the second accident of November 4, 1992. At that time Dr. Vujnovic noted the following complaints:

constant headache; pain in eyes; tingling in both arms; low back pain; not able to bend from waist; not able to sit or stand for more than 15 to 20 minutes; pain from back goes down right leg; cervical, trapezius, intra scapular, right shoulder, lumbar and right hip muscles in spasm; neck movement absent; right shoulder movement less than 25% normal range of movement; lumbar and right hip more than 25% normal range of movement.

Despite these complaints Dr. Vujnovic considered the Applicant's condition sufficiently improved to start her on a course of physiotherapy.

On November 5, 1992, the day after the Applicant's second accident, the following complaints were recorded:

more headache; eyes sensitive to light; blow to head and nose; bruise to left hip; cervical, trapezius, interscapular, shoulder, lumbar and right hip muscles in spasm; neck movement absent; right shoulder movement less than 25% of normal; lumbar and right hip movement 25% of normal to absent.

The Applicant was advised to delay physiotherapy due to the deterioration of her condition.

Dr. Vujnovic testified that the Applicant's lower back and hip area, as reflected by his clinical findings, were significantly worsened by the second accident.

The Applicant also called two witnesses to testify concerning her medical condition before and after the second accident. Ms. Zorica Nikolich has been a close friend of the Applicant for about 20 years. Ms. Nikolich testified that following the first accident the Applicant could still do many of her daily tasks for herself. However, following the second accident up to the present, the Applicant needs assistance with her housework, cooking, cleaning, washing, and ironing. Ms. Nikolich testified that she provides such assistance to the Applicant three or four times a week.

Ms. Mary Radojcic is a third cousin of the Applicant and has also been a close friend for nearly 20 years. Ms. Radojcic testified that she mainly provided assistance to the Applicant after the second accident. She stated the Applicant seemed to be in more of a state of shock and spent more time in bed following the second accident than she had after the first. Ms. Radojcic observed that although the Applicant is no longer bed ridden, she is still not very mobile, has difficulty standing or sitting for too long and no longer engages in the social activities that they used to share. I recognize that these witnesses are close friends of the Applicant, however I was impressed by their straightforward response to questioning. I accept their evidence concerning the relative impact of the first and second accidents upon the Applicant.

It is an established principle before the Commission that an accident need not be the sole or exclusive cause of the resulting injury. However, an applicant must prove that the accident made a significant or material contribution to the disability claimed.²² I accept the opinion expressed by Dr. Charendoff, an orthopaedic specialist consulted by Dr. Vujnovic, that the Applicant's current problems are likely a combination of both the first and second accidents.²³ I accept the evidence of the Applicant and her two witnesses that the second accident was more debilitating than the first. I am satisfied that the second accident significantly affected the Applicant's condition.

Applicant's Ability to Perform the Essential Tasks of Her Employment

Having accepted that the Applicant suffered multiple soft tissue injuries in the first accident which were significantly exacerbated by the second accident, the issue now before me is whether those injuries have resolved to a point where the Applicant is capable of returning to her pre-accident employment with Art Candle. The Applicant testified that she made one or two attempts to work at Art Candle since August 1993, but became discouraged because of her pain. It has been accepted in many cases before the Commission that weekly income benefits under the Schedule are not intended to compensate for pain and suffering. Such benefits are only available where an applicant establishes a substantial inability to perform the essential tasks of employment.²⁴

Dr. John Cameron and Sandra Lincoln-Poupore provided an opinion to the WCB, that by August 1993, the Applicant would be ready to return to work on a part-time basis, progressing to full-time activity as tolerated. Dr. Vujnovic and Dr. Charendoff both observed a gradual improvement in the Applicant's condition. By July 1993, Dr. Vujnovic recommended that the Applicant increase her activity and suggested a return to work under modified conditions. Dr. Cameron encouraged further rehabilitative activity. None of the medical evidence states that the Applicant was able to return to the variable duties of her pre-accident employment on a full-time basis. I find that she is substantially unable to return to the full-time duties of her pre-accident employment.

On the other hand there is no indication in the medical reports, that a return to activity and modified work would harm the Applicant in any way. The general medical opinion appears to be that a gradual re-entry into the workforce in a medically supervised and controlled manner is exactly what the Applicant requires to attain maximum recovery. Furthermore the Applicant is in the fortunate position of having a sympathetic employer who is willing to participate in a medically supervised modified work program.

Regrettably, the Applicant was not offered this rehabilitative support through her family doctor, the WCB, or Dominion. The Applicant testified that since the termination of her relationship with WCB in August 1993, she has become increasingly frustrated, angry, depressed, and has begun to feel worse. Her testimony was corroborated by her two friends and Dr. Vujnovic's clinical notes and records. The totality of the medical evidence and testimony satisfies me that the Applicant has sufficiently recovered to undertake the gradual re-entry into her former job at Art Candle, on a modified basis, with appropriate medical supervision and rehabilitative support.

I conclude that the Applicant is entitled to weekly income benefits from Dominion from August 10, 1993 until she completes a medically supervised work re-activation program paid for by Dominion.

Under the provisions of section 15 of the Schedule, Dominion is entitled to deduct from the weekly income benefit payable to the Applicant, the net amount she receives from Art Candle upon her return to work. I am convinced that with proper encouragement and rehabilitative support, the Applicant will resume her former place in the workforce.

Quantum of Weekly Income Benefit Payable:

There was no dispute that the Applicant's claim for weekly benefits arose under section 12 of the Schedule.

Section 12(7) of the Schedule provides:

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,

(iii) $232.

The Applicant seeks weekly income benefits in the maximum amount of $600.00 calculated on the basis of her gross weekly income earned in the four weeks immediately preceding her first accident.²⁵ The Applicant argues that Dominion should have accepted responsibility for her first accident rather than diverting her claim to WCB. Had Dominion accepted coverage after her first accident, weekly income benefits would have been calculated on the basis of the four weeks of income earned before October 9, 1992. This four weeks occurred in Art Candle's busy period leading up to the holiday season. The Applicant testified that she worked full-time hours as well as some overtime.

Dominion opposed the Applicant on the basis that it was too late for her to dispute Dominion's denial of coverage in respect of her first accident, after having accepted WCB benefits for approximately 11 months without complaint. I conclude that the issue of Dominion's liability in respect of the first accident was not previously disputed by the Applicant, was never mediated, and is not properly before me for determination in this proceeding.

For the purposes of determining the quantum of weekly income benefits payable in respect of the second accident, I accept that the Applicant received almost no income from employment in the four weeks immediately preceding the second accident due to her disability arising from the first accident. Both counsel agreed that the Applicant's WCB total temporary disability benefits are not income from employment to be included in the calculation of gross weekly income under section 12(7).

The Applicant argued that the reference to "the four weeks preceding the accident" under section 12(7) is not limited to the four weeks immediately preceding the accident but could refer to the four week period which concluded October 9, 1992, ie. 26 days prior to the accident in issue. I do not agree. For the reasons more fully set out in the Mouawad,²⁶ and Gibson²⁷ decisions, I am not convinced that the wording of section 12(7) refers to any four or fifty-two week period preceding the accident upon which to calculate gross weekly income, regardless of its proximity to the accident. In my view a plain reading of the section demands the interpretation that the four or fifty-two week period must immediately precede the date of the accident in issue.

Counsel for the Applicant advised that in the event I did not accept his submissions pertaining to the four week period ending October 9, 1992, the parties were in agreement that the Applicant's gross weekly income for the 52 weeks preceding the accident was $15,239.00 divided by 52 = $293.06 x 80%, resulting in a weekly income benefit of $234.45.²⁸ On the facts of this case, I am satisfied that this figure most accurately reflects the amount of employment income lost by the Applicant and fairly compensates for this loss.

Supplementary Medical And Rehabilitation Benefits:

The Applicant submitted several invoices for chiropractic treatments during the period August 1993 to October 14, 1994 which totalled $498.00.²⁹ Dr. Vujnovic testified that he did not prescribe chiropractic treatments for the Applicant's injuries and was not aware that she was receiving such treatment. The Applicant testified that she obtained chiropractic treatment on her own initiative and had been receiving regular chiropractic adjustments and treatment for migraine headaches and other problems for several years prior to her motor vehicle accidents.³⁰I received insufficient evidence to determine whether the chiropractic treatments were simply a continuation of the treatment the Applicant received prior to the motor vehicle accidents, or whether these treatments were necessary for her rehabilitation in connection with her soft tissue injuries. In the absence of such evidence, I do not order payment of these expenses.

On the basis of the medical opinions of Dr. Cameron, Dr. Charendoff and Dr. Vujnovic, I find that the Insurer is required to pay the reasonable expenses of a comprehensive work re-activation program for the Applicant.

Special Award:

The Applicant seeks a special award under section 282(10) of the Insurance Act. That section provides:

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The Applicant submits that in September 1993, she provided Dominion with a Form 4 medical report from her family doctor which documented a continuing disability.³¹ Dominion also obtained the medical report of Dr. Charendoff, an orthopaedic specialist, dated November 2, 1993, which noted symptoms and findings consistent with multiple soft tissue injuries.³² The Applicant argues that the Insurer unreasonably ignored this material in favour of a reference to the opinion of an orthopaedic specialist who purportedly concluded that the Applicant was fit to return to work as of August 9, 1993. This opinion was mentioned in the letter from WCB which the Applicant provided to Dominion along with her Application for Accident Benefits.³³ The Applicant suggests that Dominion unreasonably denied payment of weekly income benefits on the basis on an unread opinion from an unnamed doctor.

Representatives of Dominion testified that the Form 4 medical opinion received from Dr. Vujnovic raised more questions and concerns than it answered. It directly contradicted the letter from the WCB and has subsequently been shown to be false. Both Dr. Vujnovic's and Dr. Charendoff's reports referred to the Applicant's disability from the first motor vehicle accident but provided insufficient detail to address Dominion's concern regarding causation. When representatives of Dominion attempted to obtain more medical information they were met with resistance and what appeared to be a lack of co-operation from the Applicant and her physician.

Dominion obtained video surveillance of the Applicant which showed her entering the premises of Art Candle early in the morning and leaving the premises in mid-afternoon over a period of several days.³⁴ This surveillance intensified Dominion's suspicions that the Applicant was fit to work and had in fact returned to work. Having heard the testimony of the Applicant and her witnesses and the explanation of events provided by her, I am satisfied that the Applicant had not returned to work at Art Candle. However, I conclude that Dominion was not unreasonable in suspecting that the Applicant had returned to work, when the surveillance was coupled with the Applicant's seeming reluctance to provide further medical information.

As I stated earlier, the series of escalating misunderstandings between the parties might have been avoided had Dominion provided the Applicant with a clearer understanding of their concerns regarding coverage and causation of her second accident at an early stage. However, I conclude that the Applicant and her family doctor also contributed to the breakdown of communications between the Applicant and Dominion. Under these circumstances I am not prepared to make a special award against Dominion.

Expenses:

The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

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, Dispute Resolution Expenses.

In Ralph McCormi'ck and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vtto Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.

In view of the partially favourable outcome of the Applicant's claim, I am prepared to award payment of her expenses of the arbitration.

Order:

1. The Applicant is entitled to weekly income benefits under section 12(1) of the Schedule from August 10, 1993 until completion of a medically supervised work re-activation program with appropriate rehabilitative support.

2. The amount of weekly income benefits payable to the Applicant is $234.45.

3. The Applicant is not entitled to payment of chiropractic expenses claimed, however, she is entitled to payment of expenses associated with a medically supervised work re-activation program under section 6(1) of the Schedule.

4. The Applicant is not entitled to a special award on the basis that Dominion unreasonably withheld or delayed payment of benefits.

5. The Applicant is entitled to payment of interest on amounts owing, and her expenses incurred in the hearing.

September 11, 1995

Janice Mackintosh Arbitrator

Date

Appendix

1. Six cheques from Art Candle for last six weeks worked.

2. 1991 income tax return.

3. 1992 income tax return.

4. 1993 income tax return.

5. Dr. John Cameron and Sandra Lincoln-Poupore report dated May 21, 1993.

6. Summary of chiropractic treatment dates.

7. Complete Application for Accident Benefits including Form 4 Medical Report and Employer's Confirmation of Income.

8. Medical report of Dr. Charendoff dated March 18, 1993.

9. Medical report of Dr. Charendoff dated June 10, 1993.

10. Medical report of Dr. Charendoff dated November 2, 1993.

11. Medical report of Dr. Vujnovic dated March 22, 1994.

12. Clinical notes and records of Dr. Vujnovic and his wife.

13. Clinical notes and records of Cove Chiropractic Clinic.

14. Eight progress reports from Dr. Vujnovic to WCB.

15. WCB Employer's Report of Accidental Injury.

16. Weston Physiotherapy Centre clinical notes.

17. WCB Worker's Report of Injury dated November 18, 1992.

18. Job Description prepared by WCB.

19. Letter from WCB to Applicant dated July 27, 1993.

20. Reports of the Professional Physiotherapy Centre for August, September, October, 1994.

21. Account for services rendered by Cove Chiropractic dated October 17, 1994.

22. Letter from Din's Accounting & Consulting Services Inc. dated October 17, 1994.

23. WCB pay stub.

24. Memo to file dated August 10, 1994, from the WCB file (under subpoena).

25. (a) Subject Background Information prepared by private investigating firm. (b) Video tape #360.

26. Blank Standard Form, Accident Benefits Claim Forms Package.

27. (a) Handwritten note signed by Roy Mladenovic. (b) Ambulance receipt.

28. Letter to Dr. Vujnovic from Insurer dated October 21, 1993.

29. Response from Dr. Vujnovic to Insurer dated October 22, 1993.

30. Letter to Dr. Charendoff from Insurer dated November 12, 1993.

Other Documents Before the Arbitrator

1. Report of Mediator dated April 13, 1994.

2. Application for Appointment of an Arbitrator dated May 20, 1994, with accompanying hand-written statement from Applicant dated May 3, 1994.

3. Response by Insurer dated May 26, 1994.

4. Pre-hearing letter dated June 16, 1994.

5. Cases referred to by counsel:

Baraket (Ben) Mouawad and Alpina Insurance Company, June 30, 1994, OIC File No. A-003226; and

Antonio Ferrari and Royal Insurance Company, September 8, 1994, OIC File No. A-007313.

Footnotes

1. 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.
2. 2Exhibit 183
3. 3Exhibit 2, income tax return
4. 4Exhibit 18
5. 5Exhibit 15
6. 6Exhibit 19
7. 7Exhibit 12
8. 8Exhibit 14
9. 9Exhibit 5
10. 10Exhibits 8, 9, and 10
11. 11Exhibit 19
12. 12Clinical notes and records entry for November 5, 1992, Exhibit 12
13. 13Exhibits 27a and 27b 14
14. 14Exhibit 7
15. 15Exhibit 7
16. 16Exhibit 19
17. 17Exhibit 24
18. 18Exhibits 28, 29, and 30
19. 19Exhibit 11
20. 20Exhibits. 7, 11, and 14
21. 21Exhibit 12
22. 22Barbara Edwards and State Farm Insurance Company, July 12, 1993, OIC File No. A-001707 (under appeal); Gail MacNeill and Royal Insurance Company, January 10, 1994, OIC File No. A-000057; Shelly P. and Royal Insurance Company, June 22, 1995, OIC File No. A-8498 (under appeal), P.S. and TTC, May 4, 1994, OIC File No. A-001116 (under appeal)
23. 23Exhibit 10, report dated November 2, 1993
24. 24Dana B. Levenson and The General Accident Assurance Company, February 18, 1992, OIC File No. A-000260; S.S. Gaba and Allstate Insurance Company, August 21, 1992, OIC File No. A-000624; Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024; Norman Downs and Allstate Insurance Company, July 18, 1991, OIC File No. A-000064; Douglas R.G. Williams and Jevco Insurance Company, May 6, 1992, OIC File No. A-000112; Edgar Cowie and The Non-Marine Underwriters, March 9, 1993, OIC File No. 1159 (under Appeal); Carlo Caringi and The Wawanesa Mutual Insurance Company, February 18, 1993, OIC File No. A-000860; Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894; Steve Smintich and Gore Mutual Insurance Company, April 8, 1992, OIC File No. A-000931; Barbara Edwards and State Farm Insurance, July 12, 1993, OIC File No. A-001707 (under appeal); and Janet Youkhaneh and Prudential Assurance Company, February 21, 1994, OIC File No. A-002021
25. 25Exhibit 1
26. 26Baraket (Ben) Mouawad and Alpina Insurance Company, June 30, 1994, OIC File No. A-003226
27. 27Douglas P. Gibson and York Fire & Casualty Insurance Company, January 4, 1995, OIC File No. A-006150
28. 28Exhibit 22
29. 29Exhibit 6 and 20
30. 30Exhibit 13
31. 31Exhibit 7
32. 32Exhibit 10
33. 33Exhibit 19, July 27, 1993 letter
34. 34Exhibit 25a and b