Neutral Citation: 1995 ONICDRG 134

File No. A-008342

ONTARIO INSURANCE COMMISSION

BETWEEN:

MARICA SLIVECKA

Applicant

and

CANADIAN GENERAL INSURANCE COMPANY

Insurer

DECISION

The Applicant, Marica Slivecka, was injured in a motor vehicle accident on January 16, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Weekly income benefits were terminated by the Insurer on January 16, 1994. The parties were unable to resolve their dispute 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 after January 16, 1994 under section 12(5)(b) of the Schedule?

2. If the Applicant is entitled to weekly income benefits after January 16, 1994, is the Insurer entitled to reduce these benefits on account of Canada Pension Plan disability benefits received by the Applicant after that date, under section 12(4)(b) of the Schedule?

The Applicant also claims interest on overdue benefits and her expenses incurred in the proceeding.

Result:

1. The Applicant is entitled to weekly income benefits between January 16, 1994 and August 19, 1994, under section 12(5)(b) of the Schedule, with interest as set out in section 24.

2. I have no jurisdiction to determine the amount of benefits payable after January 16, 1994.

The Applicant is entitled to be reimbursed for her arbitration expenses incurred.

Hearing:

The hearing was held in Kitchener, Ontario, on November 21, 22, and 24, 1994, and January 20, 1995 before me, Nancy Makepeace, arbitrator.

Present at the hearing:

Applicant:

Marica Slivecka

Applicant's Representative:

John A. Weir Barrister and Solicitor

Insurer's Representative:

James E. Dunn Barrister and Solicitor

Babak Barin Barrister and Solicitor

Witnesses:

Dr. M.B. Weber, neurologist

Dr. P.W. Rowsell, psychiatrist

Mary-Jo Slivecka, the Applicant's daughter

Heather Poole, chronic pain and relaxation therapist, Ventures in Harmony Doug Hall, the Applicant's former supervisor at Electro Porcelain

Dr. A. Ameis, physiatrist

Michael Pauli, private investigator

Marica Slivecka, the Applicant

Proceedings were recorded by Wilma Dostle, of Marbrae Paralegal.

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

Both parties submitted a book of authorities relied on in this case.

Background:

The Applicant is in her late forties. She and her husband, Joseph Slivecka, have two children, a daughter aged ten and a son aged seven. Mr. and Mrs. Slivecka emigrated from Croatia in 1974. In Croatia, the Applicant completed eight years of elementary education and qualified as a hairdresser. She worked full-time in light industry, and part-time as a hairdresser. Upon arriving in Canada, she took a two-month English as a Second Language course, and then spent a short time working at Electrohome. She began working at Electro Porcelain Co. in 1975, and continued to work there until her accident.

The Applicant and her former supervisor, Mr. Doug Hall, gave consistent testimony about her job duties at Electro-Porcelain. For most of the seven or eight years before the accident, the Applicant assembled cord sets (extension cords). This involved twisting and soldering wires, while seated at a bench. The Applicant sometimes operated an injection molder, which was done while standing. The Applicant also performed other assembly operations, used a press machine, and did some packing (of cord sets, brackets, and screws). In cross-examination, the Applicant agreed with Mr. Dunn's characterization of the job as "light-duty assembly". I find that the job required the Applicant to use her hands and arms in repetitive detailed motions.

Early on the morning of January 16, 1991, the Applicant was driving to work when she struck an oncoming car head-on. She believes she lost consciousness for a while. When she came to, ambulance attendants were putting her on a stretcher board. She was taken to Kitchener-Waterloo Hospital, where she presented with chest pain, back pain and pain in her right eye. X-rays of her chest, cervical spine and lumbar spine were negative, except for some minimal degenerative disc disease from L1 to L3. The Applicant suffered a full thickness laceration of her right upper eyelid. It was repaired under local anaesthetic by Dr. D.G. Stephenson, a plastic surgeon. The Applicant was discharged home late that afternoon.

Although her eyelid and forehead healed satisfactorily, the Applicant continued to complain of tearing and double vision in her right eye. At the hearing, the Applicant testified that she had double vision "almost all the time" initially, and still has it. Dr. Stephenson and Dr. Charles Bateman, an ophthalmologist, followed up with the Applicant about her eye problems. As early as 1991, they report only "occasional" diplopia in their reports.² They could find no reason for this symptom. In his final report, Dr. Stephenson stated,

The patient has since stated that the diplopia resolved about July 1991. Possibly the diplopia was the result of restriction of ocular movement by the considerable induration and heaviness of the healing right upper eyelid.

When he saw the Applicant in April 1991, Dr. Bateman invited her to return in three months if she continued to have problems. She admitted in cross-examination that she did not follow up. I find that the Applicant's accident-related visual problems had largely resolved by the time benefits were terminated in January 1994.

The Applicant also suffered seat-belt-related bruising on her left shoulder, right hip and right breast. These injuries resolved within months of the accident. There was some ongoing concern about a possible malignancy developing in the area of the bruising on the right breast, but a biopsy in August 1993 was negative.³

The Applicant complains of frequent disabling migraine-type headaches, accompanied by nausea, photophobia, phonophobia, visual and auditory disturbances, vertigo, tinnitus and temporo-mandibular jaw pain. She also claims that she suffers from disabling neck, shoulder and upper back pain, especially on her right (dominant) side. Other complaints are driving phobia, sleep difficulties, anxiety and depression. The Applicant claims that she is unable to work at her pre-accident job or any other job because of these problems.

In April 1992, Electro Porcelain closed its Kitchener plant and moved to Mexico.

The company offered some job search assistance for employees, including job search courses and computer courses. However, the Applicant testified that except for taking a three-day keyboarding course, she did not participate in these programs because of her injuries. She received a severance package from the company.

The Applicant testified that about a year after the accident, she began studying to qualify as a hairdresser in Ontario. However, she was unable to remember what she had read, and she finished only the first chapter of the text book.

The Applicant states that her accident-related injuries have also affected her household, childcare, and other activities. She is distressed about the effect of her problems on her family life, and particularly on her children.

The Applicant reports that she has received no benefit from physiotherapy, pain management and relaxation therapy, or nerve blocks. She has, however, had some benefit from massage and TENS (Codetron) treatment. She has been prescribed analgesics and anti-depressants.

Entitlement to weekly income benefits:

For the first 156 weeks, an insured person is entitled to weekly income benefits if, as a result of the accident, she is substantially unable to perform the essential tasks of her pre-accident job.⁴ To receive weekly income benefits after 156 weeks, an insured person must prove that her accident-related injuries continuously prevent her from engaging in any job for which she is reasonably suited by education, training or experience.⁵ This is a more stringent test.

Evidence and findings:

The Applicant saw her family doctor, Dr. George B. Miller, the day after the accident. She continued to see him regularly about her accident-related symptoms, and she reported little or no improvement in her condition. In March 1991, Dr. Miller predicted that the Applicant would be disabled for at least three to six months.⁶ He gave the same prognosis in December 1991.⁷

In March 1992, the Insurer referred the Applicant to Medex Vocational Management Group. John Drudge, a rehabilitation consultant with Medex, reviewed the file and visited the Applicant in her home. He concluded that she needed a more aggressive physical conditioning and treatment program. He felt that "she is still some ways away from being work ready" and that her prognosis was guarded.⁸ Medex provided the Insurer with monthly case management status reports until late 1993, when its services were terminated.⁹

Medex referred the Applicant to Dr. J.B. Tallon, an orthopaedic surgeon, for an independent medical examination.¹⁰ Dr. Tallon found that the Applicant had a good range of motion in her cervical spine, although she complained of pain at the extremes of movement. She also complained of tenderness at the back of the neck and between her shoulder blades. Both upper extremities were fully mobile, except for the right shoulder, which lacked five degrees of full internal rotation; Dr. Tallon called this a "minimal insignificant loss of motion". He concluded that the Applicant probably sustained "bruising and stretching of the soft tissues of her neck and upper dorsal spine as well as in her right shoulder". He opined that the tissues were "now intact". Finally, he said, "at eighteen months, post-injury, it probably is time to think in terms of determining what type of work this woman is going to be capable of doing, in the next few years".

Medex also referred the Applicant to the Ontario March of Dimes for a Physical Capacity Assessment, which was performed on November 30 and December 1, 1992. The Applicant reported the following activity tolerances: sitting, 30 minutes; standing, 15 minutes; walking, 20 minutes; driving, as a passenger, 45 minutes, and as a driver, 5 minutes; carrying, 3.1 pounds (her purse); lifting, 3 pounds; and handling, fingering and feeling, 30 minutes. On testing, movement was restricted in the Applicant's neck, right arm, and trunk. Tests of manual dexterity, finger dexterity and upper extremity range of motion could not be completed or showed poor function. Testing with the Jamar Dynamometer indicated inconsistent participation. However, the Applicant attended "regularly, punctually and dependably" and was cooperative with staff. Marcia Pascoe, the occupational therapist who performed the assessment, recommended investigating the Applicant for possible post-traumatic stress disorder and providing occupational therapy, an exercise program, and possible psychotherapy. Ms. Pascoe concluded:

Return to paid work is an important consideration for Mrs. Slivecka. It is premature at this time. Minimal upper extremity work is possible now. Occasional part time work could only be tolerated now.¹¹

The Applicant was examined by Dr. Rory MacCon, a physiatrist, at the request of her lawyer, on February 26, 1993.¹² Dr. MacCon found 12 fibrositic tender points. He also found that the Applicant had full range of motion in the neck, back and shoulder, although she complained of pain at the extremes of movement and reported being unable to raise her right arm above shoulder height. Dr. MacCon diagnosed fibrositis and post-traumatic stress disorder. With regard to employability, he made the following comments:

... it is evident that this lady is at a competitive disadvantage in the workforce, as a result of her complaints and would questionably be able to pursue substantial gainful employment consistent with her educational level. Activities most likely, however, to exacerbate her complaints include highstress work situations or situations in which she is required to perform repetitive tasks or work in awkward positions.

Clinically, however, her presentation, however, in the end analysis, is based on her testimonial reports of discomfort rather than on identifiable neuromusculoskeletal pathology. As a result the extent to which these symptoms preclude her from gainful employment is open to conjecture and interpretation. There is, however, a significant variability between individual and individual as to their endurance tolerance with respect to pain management. From the reports of March of Dimes, however, it would appear that this lady, at best, would be able to tolerate only light occasional work.

On receipt of the Ontario March of Dimes report, Medex referred the Applicant to Russell McNeil, an occupational therapist at Restorative Solutions, for an eight-week functional restoration program involving counselling, pain management, and exercise. After seeing the Applicant for six sessions of occupational therapy, Mr. McNeil reported that while the Applicant was "outwardly very cooperative", she "is not ready for an active approach [to rehabilitation] ... as there appear to be more pressing emotional issues that should be addressed by psychology." He recommended that the Applicant continue seeing Dr. Charles Pierce for psychotherapy, as she had been since March 4, 1993, and that she begin occupational therapy once Dr. Pierce felt that she was able to establish short-term activity goals and vocational goals.¹³

Dr. Pierce terminated the Applicant's treatment in July 1993, because of her failure to respond to several pain management techniques taught by the practitioners in his clinic. He concluded that she was not yet ready to recognize that her pain could be controlled.¹⁴

On August 31, 1993, Dr. Miller reported that as the Applicant was now two years and six months post-accident, and her symptoms had not "changed at all in the past year", he expected her injuries to be chronic. He agreed with Ms. Pascoe and Dr. MacCon that the Applicant could do only light, occasional work. He reiterated these views in his final report.¹⁵ He also said that although he recommended referral to a rheumatologist, he did not feel further rehabilitation would be helpful. He opined that the Applicant is chronically disabled from any suitable job. On the basis of this report, the Insurer terminated the services of Medex.¹⁶

In December 1993, Dr. Miller referred the Applicant to Dr. Peter Rothbart, an anaesthesiologist at the Whiplash and Headache Clinic.¹⁷ Dr. Rothbart found that the Applicant had "extremely limited" range of motion in her neck, spasm in her paracervical and trapezius muscles, and tenderness over her cervical spinous processes and facet joints. He diagnosed:

1. Damage of the posterior neck structures from the motor vehicle accident. The damaged structures include muscles, occipital neurovascular bundles, and probably cervical facet joints.

2. Severe post-traumatic affective disorder with marked mood, memory and sleep disturbances.

3. Driving phobia.

In Dr. Rothbart's opinion, the Applicant remained incapacitated and unable to work because of her headaches, neck pain, and psychological problems.

The Applicant's weekly benefits were terminated effective January 16, 1994, apparently on the basis that three years has passed since the accident. However, I find that the medical reports available in January 1994 did not support the Insurer's decision to terminate benefits.

Dr. Peter W. Rowsell is a psychiatrist and consultant at the Whiplash and Headache Clinic. He initially saw the Applicant on February 17, 1994, on referral from Dr. Paul Anderson, of that clinic, and saw her again on April 18, May 16 and June 1, 1994.¹⁸ Dr. Rowsell opined that the Applicant suffers from "severe post-traumatic stress disorder". He noted her "catastrophic" behaviour, anger, frustration, and "very obvious demoralization". He also noted her "full-fledged car phobia". He reported that she had been on Lorazepam, Zoloft, Amitriptyline and Tylenol. He recommended that she receive psychiatric treatment from him, physical treatment for her pain, and chronic pain and stress management treatment at Ventures in Harmony, a clinic at which Dr. Rowsell is a consultant. He believed that she could be "helped ... within six months" with the right treatment. However, he testified that he did not believe the Applicant was ready to return to work.

The Applicant was assessed at the Ventures in Harmony clinic in Mississauga, on March 23, 1994.¹⁹ The assessor, Heather Poole, a chronic pain and relaxation therapist,²⁰ recommended treating the Applicant with therapeutic touch, imagery and lifestyle counselling, lifeskills training, stress management, and massage. Near the end of the program, Ms. Poole reported that the Applicant had attended for 17 massages and 17 chronic pain and relaxation sessions, as well as the seven appointments with Dr. Rowsell; she was not able to attend for movement therapy or lifeskills training because of travel time. Ms. Poole stated that the Applicant had made "significant progress", especially with her driving phobia, and she could now go for a "brief country drive ... without too much difficulty". At the hearing, Ms. Poole testified that despite the Applicant's progress, returning to work was still "not even a goal"; they were still working on returning to activities of daily living.²¹

At the hearing, the Insurer relied on surveillance conducted by Michael Pauli, a private investigator, on Saturday, August 6, 1994. A nine-minute videotape was filed.²² Mr. Pauli testified that he observed the Applicant and her family for about two hours as they went about their shopping, and videotaped the Applicant whenever she was in sight.

The videotape depicts the Applicant walking while carrying a purse over her left shoulder. Sometimes she uses her right hand to hold the hand of her son or daughter. At other times, her right arm swings freely. The Applicant also walks without restriction and moves her head freely. On several occasions, she is seen getting into her car, using her right hand to open the passenger-side door and put on her three-point seat-belt; she is also seen getting out of the car. She is observed picking up and examining objects at a farmer's market and at a garage sale. She uses her right arm to gesture and point at something. She opens the trunk and bends over to retrieve something from it. Although she relies mainly on her left arm to close the trunk, she assists with her right, and it appeared to me that she probably used her left hand to open the trunk so that she could reach inside with her right.

All of the Applicant's movements depicted in the videotape appear to be natural and unrestricted. There are no apparent signs of distress. Most significant, in my view, is the fact that the videotape depicts the Applicant at both the beginning and the end of the family's two-hour outing. While a two-hour shopping trip does not impose nearly the physical burden of a full-time job, I think a person who is substantially unable to do light assembly work will likely show some sign of discomfort or fatigue after two hours of shopping and driving.

In my view, the videotape also establishes that the Applicant is not disabled by driving phobia, at least when her husband drives and she rides as a passenger: I could see no sign of distress while the Applicant was in or near the car. Moreover, the Applicant admitted on cross-examination that her husband regularly drives her from Kitchener to Toronto or Mississauga for treatments. She also admitted that she drives herself for short distances: to the grocery store, or to pick up the children from school.

The Insurer also relies on the opinion of Dr. Arthur Ameis, a physiatrist, who saw the Applicant on August 17, 1994 at the Insurer's request.²³ When he examined the Applicant, Dr. Ameis found no spasm, atrophy, or restriction of motion or power in the neck or right shoulder and arm. He reported that while the Applicant held her right arm in a protected position and showed pain on movement while she knew she was being observed, she moved normally when distracted. Dr. Ameis found the Applicant to be depressed and tearful. He concluded that she had suffered only mild to moderate soft tissue injuries and should have been able to return to work within three months of the accident. He could find no orthopaedic or neurologic explanation for the Applicant's complaints of pain. He recommended psychiatric investigation, and suggested there are probably pre-morbid or co-morbid factors. Dr. Ameis was the first medical expert to find that the Applicant was work-ready.

On October 12, 1994, the Applicant was examined by Dr. M.B. Weber, a neurologist, with regard to her headaches.²⁴ Dr. Weber diagnosed post-traumatic headache syndrome (or post-concussion syndrome). According to Dr. Weber, this syndrome "is not merely a headache", but involves "biochemical and neurophysiologic changes in the brain compromising brain function".²⁵

Dr. Weber testified that post-traumatic headache syndrome is diagnosed on the basis of clinical history, without the need for objective investigation, although objective tests may be carried out for the purpose of litigation. He was not surprised that the Applicant's CT scan was negative, because, he explained, post-traumatic headaches are a functional disorder, whereas CT scans, like x-rays, only detect structural abnormalities. He arranged for the Applicant to have an electroencephalogram (EEG), a quantitative EEG (qEEG or CEEG, an EEG interpreted by computer), and a single photon emission computed tomography test (SPECT). According to Dr. Weber, the test results suggested "bilateral cerebral dysfunction with more significant dysfunction of the left cerebral hemisphere", and correspond with the Applicant's complaints of dysphasia, weakness in the right hand, visual disturbance in the right visual field, and memory dysfunction.²⁶ It was Dr. Weber's opinion that the Applicant is unable to return to her pre-accident job, but can expect a "slow and gradual improvement".

Dr. Ameis testified that he does not accept Dr. Weber's diagnosis of post-traumatic headache syndrome. He considers it merely a descriptive diagnosis which does not indicate whether the headaches are caused by stress, a tumour, a head injury, damage to the muscles of the neck, or migraine. This view is supported by two articles filed by the Insurer which discuss the controversies around clinical use of the tests on which Dr. Weber relies.²⁷ In cross-examination, Dr. Weber admitted that his test results are not conclusive as to the cause of the Applicant's symptoms. I am not satisfied that the accident significantly contributed to the Applicant's ongoing headaches.

I accept that the Applicant has ongoing accident-related problems after January 16, 1994. Her treating doctors, Dr. Miller, Dr. MacCon, Dr. Rothbart, Dr. Weber, and Dr. Rowsell, and her therapists, Ms. Pascoe and Ms. Poole, have accepted that she remains disabled as a result of her accident injuries. The Applicant's complaints have been largely consistent. I found her to be a credible witness. She has a good work history. She began working almost immediately after arriving in Canada, and worked full-time, while raising her children, for about 17 years until the accident. Since 1987, she has also had to cope with the consequences of her husband's serious illness: he is permanently disabled by kidney disease. According to Doug Hall, her former supervisor at Electro Porcelain, the Applicant was an "excellent employee" who did very well on the company's incentive pay system. Her pay stubs reflect her productivity.²⁸ The Applicant impressed me as a person who is committed to her family, proud of her work history, and frustrated and depressed because of her current situation.

However, the Applicant's accident was relatively minor. She sustained lacerations, contusions, and soft tissue injuries, and was not kept overnight in the hospital. Moreover, there were significant inconsistencies between her complaints to her treatment-providers and her activities when she was not aware of being observed. These inconsistencies were noted not only by Dr. Ameis, but also by Marcia Pascoe at the Ontario March of Dimes. The surveillance videotape and Dr. Ameis' report persuade me that by August 1994, the Applicant had a significantly higher level of function than she claims. I am not persuaded that her ongoing symptoms remain disabling after August 19, 1994 (the date of Dr. Ameis' report).

Moreover, an insured person is entitled to benefits only if her symptoms "result from" the accident. An insured person is not precluded from receiving benefits because she had unrelated problems before or after the accident. As has been said in many arbitration decisions, the accident need not be the only cause of an insured person's disability: it must be a "significant" or "material" contributing factor.

In this case, the Applicant has had significant problems unrelated to the motor vehicle accident. Dr. Miller's clinical notes clearly reflect her ongoing anxiety and depression concerning her husband's illness, beginning in 1987. The Applicant testified that because of her husband's permanent disability, she became the family's sole breadwinner, while retaining her household and childcare responsibilities, and she was not able to stay home after the birth of her son, as she had planned to do.

Mr. Hall testified that after the Electro Porcelain plant closed in 1992, some 85% of the employees were able to find new jobs. I was presented with no detailed evidence in support of this claim. I find it likely that the plant closure contributed significantly to the Applicant's anxiety and depression.

The Applicant testified that after the plant closed, she did not look for another job because she considered herself disabled. The Applicant's treatment-providers have suggested that "emotional issues" prevented the Applicant from adopting pain management and reactivation techniques. I find that the Applicant's perception of herself as disabled has contributed to her failure to recover from a relatively minor accident, some four years later.

Considering these unrelated stressors, I am not satisfied that the accident contributed significantly to any ongoing disability suffered by the Applicant after August 19, 1994.

The Benefit Rate:

The Insurer paid the Applicant's weekly income benefits at the rate of $332.80 per week. In cross-examination on the last day of evidence at the hearing, the Applicant testified that she had applied for and received Canada Pension Plan disability benefits after the Insurer terminated weekly income benefits effective January 16, 1994. I received no evidence from the Applicant's Health and Welfare Canada file. A single CPP cheque stub was filed, dated October 1994. Dr. Miller's clinical notes include the following entry for December 2, 1993: "Forms to Canada Health and Welfare completed today."²⁹

On behalf of the Insurer, Mr. Dunn submitted that the Applicant's pre-accident gross weekly income, for the purpose of benefit calculation, should be reduced by the amount of CPP benefits received, in accordance with subsection 12(4)(b) of the Schedule.³⁰ It appears now to be settled law that under subsection 12(4)(b) of the Insurance Act, CPP disability benefits are deductible from the amount that is 80 per cent of an insured person's gross weekly pre-accident income.³¹

On behalf of the Applicant, Mr. Weir submitted that the Insurer should not be allowed to raise the issue at this late date, considering that it had not been discussed in mediation or at pre-hearing. Mr. Weir also submitted that since the Applicant did not dispute the rate at which her benefits were paid, the issue was not properly before me in the absence of the Applicant's consent.

A number of arbitration decisions have considered the scope of the issues an insurer may raise in response to an applicant's claim for ongoing benefits at arbitration. This question arises because of the interaction of the provisions of the Insurance Act which define an arbitrator's jurisdiction, and particularly, because of the ambiguous use of the words "issue" and "matter" in these provisions. The Insurance Act says that either an insured person or an insurer may apply for mediation of "any matter in dispute" about statutory accident benefits.³² However, if mediation fails, only an insured person may apply for arbitration of "the matter". An insurer's only recourse is through the courts.³³ No one can bring "a matter" to arbitration or court unless mediation has first been sought and failed.³⁴ An arbitrator's jurisdiction is to determine "all issues in dispute and such other issues as the parties may agree.³⁵

In interpreting these provisions, arbitrators have recognized competing legislative goals. In support of a narrow interpretation of an arbitrator's jurisdiction, it is argued that section 281(1) reflects the Legislature's intention that insured persons have access to relatively speedy, inexpensive and informal means of dispute resolution as an alternative to the courts. On this view, insurers should not be permitted, in effect, to "counterclaim" in response to an application for arbitration, because allowing them to do so would make meaningless the Legislature's decision not to give insurers the right to apply for appointment of an arbitrator.³⁶

On the other hand, arbitrators recognize that an unduly narrow definition of their jurisdiction may lead to prolonged, expensive and multiple proceedings, and may allow some insured persons to abuse the arbitration process.³⁷

In the leading case³⁸, the Director of Arbitrations, Elisabeth Sachs, rejected the narrow view that "the matter" before an arbitrator is restricted to the issues or questions brought forward by the applicant. She also dismissed the view that "the matter" encompasses all the issues raised in mediation by either party. I agree with Arbitrator Manji³⁹ that the Director did not define "matter" as "benefit category":

Rather, she stated that it was up to the arbitrator called upon to determine "the matter", to define that matter, and, in each case, determine the scope of the arbitration. The Director suggested, however, that once "the matter" referred to by an applicant to arbitration is defined by the arbitrator, any questions or concerns that naturally or consequentially flow from "the matter" comprise the "issues in dispute".⁴⁰

In considering whether the issues raised by the insurer in that case⁴¹ "naturally or consequentially flowed" from the applicant's issues,⁴² Arbitrator Manji considered the nature of the inquiry and the type of evidence to be led by the parties. She concluded that the insurer could not raise its issues, which involve a different kind of inquiry and evidence.

The Applicant in the instant case relied on a decision of Arbitrator Seife,⁴³ which applied the reasoning in Peter Kotsiakos to a case very similar to this one.⁴⁴Arbitrator Seife drew the following conclusion:

The Insurer has cited a number of arbitration decisions in support of its position that the issue of the amount of weekly income benefits "reasonably and consequentially flows" from the "matter" of the Applicant's eligibility to benefits. (R. DeCicco and State Farm Mutual Automobile Insurance Company, December 18, 1991, OIC File No. A-000277, appeal decision May 1, 1992, OIC File No. P-000277, C. Ayertey and Toronto Transit Commission, April 5, 1994, OIC File No. A-004077 (preliminary issue) and P. Kotsiakos and State Farm Mutual Automobile Insurance Company, July 26, 1994, OIC File No. A-002354) I agree that these decisions, when read together, suggest that when an arbitrator is called upon to determine "the matter" referred to her/him, the arbitrator must define that matter, and in each case determine the scope of the arbitration. Once the matter referred to arbitration is defined by the arbitrator, any questions or concerns that naturally arise or consequentially flow from the "matter" comprise the issues in dispute.

In this case, the matter which the Applicant has referred to arbitration is his entitlement to weekly income benefits after July 9, 1993. I do not agree with the Insurer's argument that, in the circumstances of this case, the issue of the amount of weekly income benefits "reasonably and consequentially flows" from the matter the Applicant has referred to arbitration.

I agree with this approach, for the reasons set out in the decisions of Arbitrators Manji and Seife.⁴⁵ Accordingly, I make no order as to the Applicant's weekly income benefit rate.

The Insurer submitted that if I order ongoing weekly income benefits, without making an order as to the benefit rate, the Insurer is entitled to reduce the Applicant's ongoing benefits in recognition of the CPP benefits she received. The Applicant submitted that section 287 of the Insurance Act prevents the Insurer from doing so, without her consent, unless my order is overturned or varied by order of the Director or an arbitrator.

Section 287 of the Act is as follows:

An insurer shall not, after an order of the Director or of an arbitrator, reduce the benefits to an insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error, unless the insured person agrees or unless the Director or an arbitrator so orders in a variation or appeal proceeding under section 283 or 284. [emphasis added]

This provision protects an insured person's benefits "after an order...of an arbitrator". If I were to order the Insurer to pay the Applicant's benefits at a specified rate set out in my order, the effect of section 287 would be to prevent the Insurer from reducing the benefit rate unilaterally. The Insurer's options would be to seek the Applicant's consent to the proposed reduction in the benefit rate, appeal my order, or apply to vary my order.

In this case, however, I have accepted the Applicant's submission that her benefit rate is not properly in issue, and therefore my order will not specify the rate at which her benefits should be paid. It can be argued that if the Insurer reduces the benefit rate after my order is issued, it is doing indirectly what it cannot do directly (putting the benefit rate in dispute in "counterclaim" when the only issue raised by the Applicant is duration of benefits). Indeed, the Insurer now gets the advantage of reducing the benefit rate without having the issue adjudicated. I have some sympathy for this argument, which takes seriously the Legislature's decision to give insured persons, and not insurers, the right to commence an arbitration.

However, nothing in the Act or the Schedule requires an insurer to secure an arbitrator's order before reducing the rate of benefits, or terminating benefits.⁴⁶ I think this omission is determinative of the issue: in the absence of an order specifying the benefit rate, nothing prevents the insurer from setting the benefit rate as it finds appropriate.

I find that nothing in the Act or the Schedule prevents the Insurer from reducing the Applicant's benefits after January 16, 1994, on account of her CPP benefits.

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 Part 6 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In Ralph McCormick 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.

The Applicant was partially successful in her application, and I accept that she suffers ongoing symptoms as a result of the accident. I find it appropriate to order that she be reimbursed for her arbitration expenses incurred. If the parties cannot agree on the amount owing, they may bring the matter before me; I remain seized.

Order:

1. The Applicant is entitled to weekly income benefits between January 16 and August 19, 1994, under section 12(5)(b) of the Schedule, with interest as set out in section 24.

2. I have no jurisdiction to determine the amount of benefits payable after January 16, 1994.

The Applicant is entitled to be reimbursed for her arbitration expenses incurred.

September 27, 1995

Nancy Makepeace Arbitrator

Date

APPENDIX

Exhibits:

Exhibit 1 Joint book of medical records with 33 tabs

Exhibit 2 Dr. Weber's Curriculum Vitae

Exhibit 3 Dr. Weber, EEG report, October 26, 1994

Exhibit 4 Dr. Weber, SPECT report, November 14, 1994

Exhibit 5 Dr. Weber, qEEG report, November 14, 1994

Exhibit 6 Dr. Rowsell's Curriculum Vitae

Exhibit 7 Application for Accident Benefits, undated

Exhibit 8 Employer's Confirmation of Income, March 27, 1992

Exhibit 9 Diagram (Migraine Threshold) from Lance (Dr. Weber)

Exhibit 10 Letter from Dr. Rowsell to Dr. Weber, August 10, 1994

Exhibit 11 Article "Assessment: EEG brain mapping"

Exhibit 12 Article by C.M. Epstein "Computerized EEG in the courtroom"

Exhibit 13 Videotape, August 6, 1994

Exhibit 14 Heather Poole's Curriculum Vitae

Exhibit 15 Paystubs from Electro Porcelain

Exhibit 16 1991 income tax returns

Exhibit 17 Dr. Ameis' Curriculum Vitae

Exhibit 18 Photograph, July 26, 1994

Exhibit 19 CPP chequestub

Exhibit 20 Letter from MEDEX to Canadian General, September 22, 1993

Exhibit 21 Letter from Dr. Donald J. Cameron to Mr. B.P. Eby, November 5, 1993

Other documents before the Arbitrator:

Report of Mediator, dated March 8, 1994

Application for Appointment of an Arbitrator, undated, filed March 17, 1994

Response by Insurer, dated April 26, 1994

Pre-hearing letter, dated June 7, 1994

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. 2Reports dated March 4, 1991, September 10, 1991, and November 22, 1991, Exhibit 1, tabs 7 and 8.
3. 3Report of November 5, 1993, Dr. Donald J. Cameron, Exhibit 21.
4. 4Subsection 12(1) of the Schedule.
5. 5Section 12(5) of the Schedule.
6. 6Form 4, March 19, 1991, Exhibit 1, tab 2.
7. 7Form 4, December 5, 1991, Exhibit 1, tab 2.
8. 8Initial vocational evaluation report, Exhibit 1, tab 9, March 6, 1992.
9. 9Reports dated October 9 and November 6, 1992, and January 27, February 2, April 29, June 23, 1993, Exhibit 1, tabs 10-15, and September 22, 1993, Exhibit 20.
10. 10Report of July 16, 1992, Exhibit 1, tab 18.
11. 11Exhibit 1, tabs 19 and 20, report of December 1, 1992.
12. 12Exhibit 1, tab 22.
13. 13Exhibit 1, tab 17. The report is dated April 10, 1992, but seems to have been generated in April 1993.
14. 14Report of July 27, 1993, Exhibit 1, tab 31.
15. 15February 14, 1994, Exhibit 1, tab 6.
16. 16Exhibit 20, letter of September 22, 1993.
17. 17Consultation note to Dr. Miller, January 3, 1994, and medical-legal report, April 16, 1994, Exhibit 1, tabs 23 and 24.
18. 18Medical-legal reports, March 10, July 6 and November 11, 1994, Exhibit 1, tabs 25, 26, 27; consultation note to Dr. Anderson, February 17, 1994, Exhibit 10.
19. 19Initial Assessment Report, March 25, 1994, Exhibit 1, tab 28.
20. 20Her qualifications and training are described in Exhibit 14.
21. 21Consultation note, October 13, 1994, Exhibit 1, tab 29.
22. 22Exhibit 13.
23. 23Report, August 19, 1994, Exhibit 1, tab 32; C.V., Exhibit 17.
24. 24Medical-legal report of October 12, 1994, Exhibit 1, tab 33.
25. 25See also Exhibit 9.
26. 26EEG Report, October 26, 1994, Exhibit 3; qEEG Assessment Report, November 8, 1994; and qEEG Summary, November 14, 1994, Exhibit 5; SPECT Report, November 14, 1994, Exhibit 4.
27. 27Exhibits 11 and 12. But contra, see the decision in Datta and Rowan v. Vancouver Registry, July 22, 1993, (B.C.S.C.), decision #B902310/3 by J. Hutchinson.
28. 28Exhibit 15.
29. 29Exhibit 1, tab 3.
30. 30A further amount was described on the cheque stub as "disabled contributor's child benefit". The Insurer did not seek to make a deduction for this amount, referring to the decision of Arbitrator Mackintosh in Baraket Mouawad and Alpina Insurance Company, June 30, 1994, OIC File No. A-003226 (under appeal).
31. 31Michael MMorin and The Personal Insurance Company, February 26, 1993, OIC File No. P-000468, upheld on judicial review, also: Concetta Bruno and Liberty Mutual Insurance Company, May 6, 1993 (under appeal); Peter Jolin and Jevco Insurance Company, March 31, 1994, OIC File No. A-0002187 (supplementary decision); Baraket Mouawad (ibid), Francis Nand and State Farm Mutual Automobile Insurance Company, May 28, 1993, OIC File No. A-001893; and Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024.
32. 32Section 280(1) of the Insurance Act.
33. 33Section 281(1) of the Insurance Act. Insured persons also have the option of proceeding through the courts as an alternative to arbitration.
34. 34Subsection 281(2) of the Insurance Act.
35. 35Subsection 282(3) of the Insurance Act.
36. 36Elizabeth Aladejebi and State Farm Mutual Automobile Insurance Company, Sept. 27, 1995, OIC File No. A-005933
37. 37Comfort Ayertey and the Toronto Transit Commission (Markel Insurance Company), June 1, 1995, OIC File No. A-004981; Adozinda Oliveira and Zurich Insurance Company and The Personal Insurance Company, August 10, 1993, OIC File No. A-002691, appeal decision March 21, 1994; Shelley L.P. and Royal Insurance Company, February 9, 1994, OIC File No. A-002235, appeal decision June 23, 1995.
38. 38Rosa DeCicco and State Farm Mutual Automobile Insurance Company, December 18, 1991, OIC File No. A-000277, appeal decision February 21, 1992.
39. 39Peter Kotsiakos and State Farm Mutual Automobile Insurance Company, June 21, 1995, OIC File No. A-002354 (under appeal), contra Comfort Ayertey (supra note # 35).
40. 40Pages 9-10, Peter Kotsiakos (ibid).
41. 41Entitlement to weekly income benefit after the date of termination, and repayment of some of the weekly income benefits paid, on the ground that the applicant was no longer disabled during that period.
42. 42The amount of the weekly income benefit, and entitlement to transportation expenses.
43. 43Lorenzo Rescigno and State Farm Mutual Automobile Insurance Company, September 26, 1994, OIC File No. A-008268.
44. 44The applicant claimed ongoing weekly income benefits after the date of termination. The insurer contended that it was entitled to make a deduction from weekly income benefits for CPP benefits received after the accident.
45. 45See also: Elizabeth Aladejebi and State Farm Mutual Automobile Insurance Company, September 27, 1994, OIC File No. A-005933; Adozinda Oliveira (supra note # 35); Francine Alexander and Constitution Insurance Company, November 25, 1994, OIC File No. A-007573.
46. 46In contrast, the Schedule of benefits that applies to accidents on or after January 1, 1994 contains some restrictions on an insurer's right to terminate benefits.