Neutral Citation: 1995 ONICDRG 155

File No.: A-010957

ONTARIO INSURANCE COMMISSION

BETWEEN:

AMRIK SINGH

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Amrik Singh, was injured in a motor vehicle accident on November 29, 1992. Prior to the accident Mr. Singh was employed as a plumber and building renovator. Royal Insurance Company of Canada ("Royal") paid Mr. Singh weekly income benefits of $600.00 per week, pursuant to section 12 of Ontario Regulation 672¹, from December 5, 1992, until March 29, 1994, but then reduced the weekly payments to $185.60. Benefits were terminated completely on November 14, 1994. 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. What is the correct amount of weekly income benefits to which Mr. Singh is entitled under section 12(4) of the Schedule?

2. Is Mr. Singh entitled to weekly income benefits under section 12(1) of the Schedule, for any period of time after November 14, 1994?

3. Has there been an overpayment of weekly income benefits to Mr. Singh? If so, is Royal entitled to a repayment?

Mr. Singh also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. The correct amount of Mr. Singh's weekly income benefit is $600 for the period of December 5, 1992 to December 31, 1993, and $401.65 for the period of January 1, 1994 to November 14, 1994.

2. Mr. Singh is not entitled to weekly income benefits beyond November 14, 1994.

3. There was no overpayment by Royal; Royal owes Mr. Singh the amount of $4,628.67, plus interest in accordance with section 24 of the Schedule.

4. Mr. Singh is entitled to one third of his expenses.

Hearing:

The hearing was held in North York, Ontario, on August 14 and 16, 1995, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant:

Amrik Singh

Applicant's Representative:

Zeya Haque Barrister and Solicitor

S. Binepal Articling Student

Insurer's Representative:

Wayne Edwards Barrister and Solicitor

Court Reporter:

Bob Richardson

Interpreter:

Ken Mann (Punjabi)

Witnesses:

1. Amrik Singh, Applicant

2. Dr. Mukesh Saini, family physician

Exhibits:

The Exhibits are set out in Schedule "A" to this decision.

Background:

Mr. Singh is 41 years old and resides with his wife and their three children. Mr. Singh's father and mother-in-law also live with them. This claim arises out of an accident which occurred on November 29, 1992. At the time of the accident, Mr. Singh was employed with Sampuran Enterprises Ltd. ("Sampuran"), doing renovation and plumbing work.

Following the accident, Royal paid weekly income benefits of $600 pursuant to section 12 of the Schedule from December 5, 1992 until March 29, 1994. Thereafter Royal paid $185.60 per week until November 14, 1994, when benefits were terminated. In April of 1994, Canada Pension awarded Mr. Singh a disability benefit in the sum of $852.91 per month payable as a result of this accident. The benefits were retroactive to January of 1994.

The parties disagree as to whether Mr. Singh is entitled to benefits beyond November 14, 1994. They further disagree as to the calculation of gross weekly income. I will deal with each issue in turn.

A. Entitlement to Weekly Income Benefits:

The Law

Mr. Singh claims weekly income benefits pursuant to section 12 of the Schedule, which provides:

12.-(1)The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment. [emphasis added]

Therefore, in order for Mr. Singh to succeed in his claim for continuing weekly income benefits, he must establish:

1. that he sustained a physical, psychological or mental injury, and,

2. that as a result of that injury he suffers a substantial inability to perform the essential tasks of his employment as a plumber.

Essential Tasks

Prior to the accident, Mr. Singh was employed by Sampuran, as a plumber. Sampuran was in the business of development and construction of plazas and other commercial buildings. Mr. Singh's duties included plumbing, dry-walling, pipe fitting, installation of bathroom fixtures, fixing drains and general maintenance.

Mr. Singh testified that he was required to dig below ground in order to lay pipelines and drainage systems; he had to lift, carry and install water pumps and heaters and various plumbing fixtures, including sinks and toilets. At times he would have to lift loads of up to 60-70 lbs. On the odd occasion he was required to climb ladders in order to assist with carpentry tasks. Several jobs involved small pipe fitting, which Mr. Singh described as the cutting and soldering of pipes, and which he viewed as light work. Mr. Singh generally worked on his own and at his own speed; for unusually heavy tasks, e.g. lifting over 50 lbs., he was assisted by another worker. I accept Mr. Singh's testimony about his essential tasks of his pre-accident employment.

The Accident

On November 29, 1992, at approximately 1:00 a.m., Mr. Singh was driving his Pontiac Sunbird en route to Brampton. He was wearing a seatbelt and was accompanied by his wife, his mother, and his two children. While stopped at a red light he was struck from behind by another vehicle. His mother sustained an injury to her right shoulder which has led to an ongoing disability. His wife sustained an injury to her right knee and right shoulder, from which she made a good recovery. The children were uninjured.

Mr. Singh testified that upon impact his head hit the steering wheel, while his right leg, which had been on the brake, was pushed forward. He was then thrown backwards against the seat. He did not lose consciousness and within a few minutes came out of his car. While waiting for the police, he experienced "mild" pain in his neck, back and right leg. He reported only a minor injury to the police and declined their offer of an ambulance. His wife drove their vehicle home.

Injuries and Treatment

Mr. Singh first sought medical assistance on the morning of November 30, when he went to see Dr. Mukesh Saini, a general practitioner. He complained of headaches, neck and low back pain, and right leg pain. Dr. Saini prescribed painkillers and sent Mr. Singh home for rest and recovery.

Over the next month, Mr. Singh experienced worsening pain and visited Dr. Saini on several occasions. X-rays of the lumbar spine produced normal results. Dr. Saini referred Mr. Singh to Dr. Temple, a neurologist, who conducted an extensive examination, including CT scan, myelogram, and nerve conduction studies, and concluded that there was no organic cause for his headaches; and to Dr. Vanderlinden, a neurosurgeon, who performed EMG studies with normal results. Dr. Vanderlinden also performed a number of facet joint injections, which did not relieve Mr. Singh's pain.

Dr. Saini also referred Mr. Singh to Dr. Manohar, a psychiatrist, in January 1993. Mr. Singh sees Dr. Manohar on a monthly basis, and takes anti-depressants. Mr. Singh converses with Drs. Saini and Manohar in Punjabi, which is his native tongue.

Finally, in March 1993, Dr. Saini referred Mr. Singh to the Canadian Back Institute ("CBI"). By that time Mr. Singh reported almost complete improvement in his neck, but continued to complain of headaches, low back and right leg pain. Mr. Singh showed several signs of symptom magnification; however, CBI was optimistic that with an active therapy program he could resume gainful employment:

Mr. Singh tested positive for four out of five tests for symptom magnification. The positive tests included acetabular rotation, axial loading, straight-leg raising sitting versus lying, and straight-leg raising double versus single.

The prognosis for return to work is good as Mr. Singh states that he currently does have a job. Should he be capable of increasing his functional ability and tolerate the pain that he is experiencing through pain control, he should be capable of returning to work within a six-week timeframe.

It is recommended that Mr. Singh pursue an active therapy program at the Canadian Back Institute. The most appropriate program would be the Comprehensive Rehabilitation Program. This program involves daily attendance and active intervention with a physiotherapist and an exercise therapist... [emphasis added]

The Insurer and Mr. Singh accepted this recommendation and Mr. Singh embarked on a therapy program which included progressive strengthening exercises, education, and work simulation. Unfortunately, Mr. Singh refused to consider a return to work date, arguing that his condition was in fact deteriorating and it would be unsafe for him to work. After two weeks, the treating therapists recommended that the program be discontinued due to poor motivation on the part of Mr. Singh:

OBJECTIVE RESULTS:

Mr. Singh has demonstrated the ability to sit for a period of 45 minutes during an education class and alternately stand and walk for a period of two to three hours during his program here. He has demonstrated the ability to push a loaded cart with 45 lbs., stand for a period of 10 minutes continuously, performing a repetitive task, and lift 30 lbs. from the floor to waist, on a repetitive basis.

BEHAVIOURAL OBSERVATIONS:

Mr. Singh has been on time for his scheduled appointments and has attended on a daily basis. He has been continually resistant with regard to discussion with respect to a return to work. He feels he is unhealthy and that it is unsafe to return to work. Non-organic tests remain positive, which indicates continuing symptom magnification. Repeated isometric strength measures reveal subniaxinial effort.

RECOMMENDATIONS:

Due to the apparent barriers to return to work, it is recommended that we discontinue the present program and undertake a Functional Capacities Evaluation here at the Canadian Back Institute...[emphasis added]

The Insurer authorized the CBI to proceed with the Functional Capacities Evaluation, a test which is designed to compare a person's functional abilities with the physical demands of their regular employment. The Evaluation took place on April 15 and 16, 1993, and concluded as follows:

Mr. Singh subjectively reported that the most difficult parts of his job were: standing, bending, lifting, and carrying.

Mr. Singh demonstrated the ability to bend 68 degrees in the range of motion test which is restricted. However, on casual observation during the work simulation test and positional tolerance Mr Singh was viewed to have full range of motion. Thus, Mr. Singh appears to the [sic] bending ability to return to work. With regards to his lifting Mr. Singh shows the ability to lift 25 pounds maximally, and 15 pounds repetitively. This meets the requirements of the average weights that Mr. Singh has to lift. With the heavier things that Mr. Singh must lift there are several considerations. We must consider that Mr. Singh is magnifying his symptoms and that he is limiting the amount he can lift. For example Mr. Singh on the isometric strength testing for his back where it is difficult for the patient to assess the amount of effort he is exerting from trial to trial Mr. Singh [sic] had one score on his back strength as high as 284 pounds, and had another trial as low as 49 pounds. This demonstrates that Mr. Singh is not giving his maximal effort on each trial. With regards to his standing tolerance Mr. Singh states that he can stand for only 20 minutes. However, he was viewed to stand for 180 minutes while performing the Functional Capacity Evaluation.

A discrepancy exists between the FCE results and the critical job demands. However, the objective evidence of a behavioural component questions the validity of the test scores as representative of Mr. Singh's true physical abilities.

Therefore, based on the documented functional measures, evidence of a behavioural problem and a non-threatening physiotherapy assessment, Mr. Singh appears capable of performing the duties associated with their [sic] pre-accident job.

It is recommended that Mr. Singh should return to work full time full duties [sic] with no medical restrictions. Mr. Singh is indeed physically capable of returning to work. However, as long as Mr. Singh believes that he cannot work he will not do so. Any further treatment for this patient will serve purpose [sic] other than to reinforce this patient's belief in their inability to recover...[emphasis added]

Despite this recommendation, Mr. Singh refused to attempt even a part-time return to work. Over the following year he continued to complain to his family doctor and psychiatrist that he was suffering disabling headaches and severe low back pain. In November of 1993, the Insurer referred Mr. Singh to Dr. Koonar, an orthopod, who opined that Mr. Singh sustained a "mild" strain to his lumbar spine, with no ongoing evidence of swelling, muscle spasm or nerve route involvement:

The symptoms he is relating at this time, I do not feel are due to any significant physical disability. I feel the symptoms are strictly psychogenic in origin and Mr. Singh has predetermined the course of events in relation to his injury. He states he is unable to return to work and does not feel he will be able to in the future. He thinks he is significantly disabled and will never be able to return to any gainful employment. [emphasis added]

Dr. Koonar recommended a multi-disciplinary approach, including an independent psychiatric evaluation, continuation of his psychiatric treatment, and a repeat functional capacity evaluation. As a result, Mr. Singh was seen by Dr. Walsh, a psychiatrist, on April 12, 1994, who concluded as follows:

From my assessment it does not seem to me that he is suffering from a significant depressive illness or from any illness of psychotic nature. It seems to me that his symptoms are at least exaggerated and the manner in which he held his head on an ongoing basis is not something that I observed in patients with severe headaches previously. The differential diagnosis would be one of somatization, conversion disorder and malingering. On the side supporting a diagnosis of malingering are the facts his symptoms are vague, ill-defined and over dramatized and that there is a definite element of secondary gain regarding income and perhaps regarding a comfortable and sick role at home. In addition there is the absence, I gather, of a positive diagnosis by a variety of consultants and the fact that I did not find evidence of a significant depressive illness or of a post-traumatic stress disorder. [emphasis added]

Throughout this period Mr. Singh continued to see his own psychiatrist, Dr. Manohar, on a monthly basis. Dr. Manohar did not testify at the hearing and the only report from him is a brief letter dated March 30, 1994², in which he concluded:

He certainly appeared quite depressed as I think he is still coming to grips with possible irreparable loss to his livelihood. I think the poor prognosis with regard to the functional ability is slowly beginning to sink in and that in fact aggravates his depression. I will continue to provide supportive therapy at monthly intervals.

Dr. Manohar did not set out any basis for his conclusion that there was a "poor prognosis with regard to [Mr. Singh's] functional ability." In my view, not only is there no foundation for his conclusion, but in fact the evidence suggests the opposite: Drs. Saini, Temple, Vanderlinden, Koonar, and Walsh, along with the CBI, all concluded that a) there was no organic basis for Mr. Singh’s ongoing complaints, and b) there was nothing to prevent him from resuming his job duties. Seen in that light, the "depression" noted by Dr. Manohar, to the extent that it is genuine, is not reasonably explained by any disability arising from this accident. At best, Dr. Manohar formed his views on the basis of Mr. Singh's subjective complaints, unsupported by any medical or objective findings. I therefore give little weight to Dr. Manohar's opinion.

In May of 1994, the Insurer retained CBI to conduct a further Functional Capacity Evaluation. The specialists who assessed Mr. Singh concluded that there were no organic findings to support ongoing disability, and recommended that he return to work. However, as it was no longer clear that Mr. Singh's pre-accident employment was still available, CBI recommended that he be provided with a work trial, which would start with 1/2 days for two weeks and progress to full days the following two weeks; once Mr. Singh successfully completed one month of a work trial, he would be physically capable of returning to full-time work. In order to ease Mr. Singh's return to work, CBI recommended that he begin working in the residential industry and gradually progress to commercial plumbing, which is generally heavier.

Once again, however, Mr. Singh refused to attempt any return to work:

The above recommendations were discussed with Mr. Singh and he is not in agreement with them. He states "when my health is okay than [sic] I will go back to work." It is therefore, unlikely that Mr. Singh will return to work in the near future. Further treatment either active or passive in nature would not be of benefit to this gentleman as it would only reinforce his role as a patient. Mr. Singh needs to take responsibility for his own rehabilitation at this time and the need to return to work has been stressed to him. [emphasis added]

In an effort to encourage Mr. Singh to return to employment, the Insurer retained David Cohen, a vocational rehabilitation specialist. Mr. Cohen met with Mr. Singh on July 5, 1994, and attempted to explore with him work hardening programs available at Goodwill, March of Dimes and Jewish Vocational Services or, alternatively, a work trial with a plumber who operates a small business. Mr. Singh refused to consider any of those options. The thrust of the meeting is set out in Mr. Cohen's confirming letter to Mr. Singh of July 7, 1994:

...you clearly indicated to me that you were not ready to begin any vocational rehabilitation at this point in time. You indicated that you were still experiencing pains in your right leg and lower back, and that you had headaches from time to time. You felt that these problems prevented you from returning to your previous employment now and that unless your health returned to "perfect", you would not consider work.

I indicated to you that there were related employment options you could explore given your years of work in the general plumbing area. I also said that there are training programs which could assist you to return to work. You mentioned that you would not consider these options until your health returned to "perfect". I further mentioned to you that there are times when you need to consider other work options which would take into consideration your health requirements. You felt that this was not possible for you... [emphasis added]

As Mr. Singh refused to follow through with any of their recommendations, Royal terminated benefits in November of 1994. Mr. Singh then applied for Canada Pension Plan disability benefits as a result of his car accident. He was awarded CPP benefits in April of 1994 in the sum of $852.91 per month, retroactive to January of 1994.

Current Status

Mr. Singh testified regarding his current state of health. He stated that his neck pain from the accident had largely resolved, but that he continued to struggle with headaches and back pain. He takes several painkillers each day. He has also experienced sexual difficulties since the accident; it feels to him like his sex organs are being "squeezed." No medical evidence was adduced with respect to this complaint.

Mr. Singh testified that since this accident he rarely leaves the house; he primarily rests inside, or sits in his backyard or in a nearby school ground. He may, at most, prepare a little food for himself. On occasion, he will attempt a small outdoor task like collecting leaves. His wife and mother-in-law carry out all of the inside work; his son and father do all the outdoor tasks.

I was not impressed by Mr. Singh's testimony. He admitted that several caregivers, including Dr. Saini, had recommended a trial return to work, but he was of the view that he should not attempt any work unless and until he feels "perfectly all right" and has a "guarantee" that he can work pain free.

He also denied that he had performed any gainful employment since this accident, despite evidence that he commenced a business in August of 1993, only nine months after the accident. The business was called "A.S. Building & Renovation"; the initials "A.S." are those of Mr. Singh's. This company produced belts for safety helmets. Mr. Singh explained that he set up the business solely as a means of providing income for his brother, Jasbir Singh, who had recently arrived in Canada from India and was seeking refugee status. Mr. Singh testified that his brother performed all the work necessary for the business, and insisted that he did no physical work whatsoever for the company. The company name, business address and cheques were all in Mr. Singh’s name as his brother was not legally entitled to work.

Mr. Singh testified that the company was in existence for only three months; in that time it earned approximately $1,000.00, all of which Mr. Singh turned over to his brother. He paid his brother in cash, again so there would be no evidence that his brother was working while awaiting refugee status. His brother's case was eventually rejected, and he left Canada in the spring of 1995; as the business was there only to provide income for his brother, Mr. Singh closed it down following his departure.

In my view, Mr. Singh's explanation for this business is highly suspect. The fact that it was registered both in his name and as a company carrying out "building & renovation," which was Mr. Singh's occupation at the time of this accident, suggests to me that it was in fact set up by Mr. Singh to carry on building renovation work. Moreover, I note that in the registration form filed with the Ministry of Consumer and Commercial Relations, which inquired as to the "activity carried on" by the business, Mr. Singh replied that it was "building renovations."³

I was also puzzled by the fact that Mr. Singh closed down the business when his brother left Canada. He initially described the work his brother was performing as "light"; he was, apparently, simply wrapping plastic on straps of safety helmets and "fixing pins to pads." The work was carried on in Mr. Singh's home and presumably was done at whatever pace the worker was comfortable with. That being the case, why would Mr. Singh not have continued to run the business himself when his brother left? When asked this question on cross-examination, Mr. Singh insisted that the job was too physically demanding for him.

Furthermore, I note that while Mr. Singh's brother remained in the country until the spring of 1995, Mr. Singh closed the business down long before that. This contradicts Mr. Singh's testimony in chief that he closed the business only because his brother departed the country. When confronted with this inconsistency in cross-examination, Mr. Singh then stated that his brother simply lost interest in the business and that is why he closed it.

I do not accept Mr. Singh's explanation for this business enterprise. The only reasonable inference from all the evidence is that Mr. Singh started this business for his own purposes and performed the work himself. The likely explanation for his closing the business was that it was simply not as successful as he had hoped.

Dr. Saini's evidence

Dr. Saini is Mr. Singh's family physician, and was the only witness to testify other than Mr. Singh. He commenced his practice in family medicine in 1991, and first saw Mr. Singh on the day following the accident. As indicated above, Dr. Saini referred Mr. Singh for neurological, psychiatric, and rehabilitative assessments, none of which produced evidence of organic damage. Dr. Saini testified that as a result, he eventually came to the conclusion that Mr. Singh was suffering from chronic pain syndrome. He arrived at this diagnosis simply because Mr. Singh continued to complain of pain and depression in the absence of objective findings. Dr. Saini explained that when he cannot readily identify the cause of ongoing complaint, he "label[s] it as chronic depression, or chronic pain syndrome." He acknowledged, however, that he had no training or expertise in chronic pain and that in fact Mr. Singh was the "first chronic pain patient" he had ever had.

Dr. Saini was questioned regarding his report of August 19, 1993 to the Insurer, in which he stated:

Subjectively, Mr. Singh continues to suffer low mechanical back pain and headaches. Objectively, I can not [sic] find anything wrong with him. I feel that he will continue to complain of the above symptoms. The question arises, in view of his symptoms of dizziness and headaches, If [sic] he is capable of doing his high risk construction job? I think that it will be safer and well advised if he does not work in his high risk areas of his job. Hence, he is partially disabled. [emphasis added]

Dr. Saini testified that when he made these statements he was aware of Mr. Singh's job demands, including the "high risk" tasks, such as climbing ladders, and the heavier tasks, such as lifting and moving plumbing fixtures, and digging underground in order to lay pipelines. However, he did not know what percentage of Mr. Singh's time at work was occupied with either such tasks. Moreover, he agreed in cross-examination that there was nothing objectively to prevent Mr. Singh from performing such tasks. In fact, he agreed that a return to work might have actually reduced Mr. Singh's headaches and depression. For these reasons, he agreed with the CBI recommendation (in November of 1993) that Mr. Singh return to work. Dr. Saini maintained this position through subsequent evaluations, as evidenced by his June 1, 1994 meeting with Angela Badgley, a Registered Nurse with Howard Seiden and Associates, who were retained by the Insurer. The gist of Dr. Saini's discussion with Ms. Badgley is confirmed in her letter to him of June 1, 1994:

A Functional Abilities Evaluation was completed at the Canadian Back Institute on May 17 and 18, 1994. We reviewed some of the recommendations in this report to establish a direction for Mr. Singh's rehabilitation.

You stated that you do not feel that there are any physical barriers to Mr. Singh's return to work. Mr. Singh has noted that he does experience light-headedness and drowsiness related to his medication. You agreed with the recommendation of a work trial for one month, preferably in a residential plumbing setting. You cautioned that Mr. Singh should not be involved in any work requiring climbing because of his light-headedness. [emphasis added]

Analysis

Mr. Singh received weekly income benefits from the Insurer until November 14, 1994. In order for him to qualify for benefits beyond that date, he must establish that

1. he sustained a physical, psychological or mental injury, and,

2. as a result of that injury he suffers a substantial inability to perform the essential tasks of his employment beyond November 14, 1994.

The relevant employment is the plumbing/construction job that Mr. Singh held at the time of the accident. Mr. Singh's position is twofold: firstly, he is in too much physical pain to attempt a return to that work; secondly, his depression, which arose from this car accident, in itself disables him from working. The difficulty is that neither of these positions is supported by the evidence. Specifically:

1. Despite extensive assessment, there is no objective evidence of ongoing physical injury.

2. There is no reliable diagnosis of depression or chronic pain arising from this accident by anyone qualified to evaluate mental disorder.

3. Both Mr. Singh's caregivers and the doctors retained by the Insurer concluded that Mr. Singh was capable of performing his pre-accident job duties well before November 14, 1994, the date that Royal terminated weekly income benefits.

4. There is evidence that Mr. Singh was magnifying his symptoms (CBI), malingering (Dr.Walsh) and refusing to cooperate in his own rehabilitation (David Cohen).

Mr. Singh's evidence comes down to this: although his doctors find no organic basis for ongoing disability, and have unanimously recommended that he attempt a return to work, he refuses to do so without a "guarantee" that he is in "perfect" condition. This theme runs throughout the medical reports and was confirmed at the hearing in the evidence of both Mr. Singh and his family physician, Dr. Saini.

I agree that Mr. Singh is entitled to some medical reassurance that he can perform his pre-accident job without risking further injury. He should, moreover, have an opinion from a qualified caregiver that he is reasonably fit to perform his pre-accident work.⁴ In this case, however, several qualified caregivers assured Mr. Singh that not only was it safe for him to return to work, but that it was also within his capacity to perform his pre-accident job tasks. Dr. Saini went so far as to say that a return to work might have alleviated some of Mr. Singh's symptoms. Accordingly, I conclude that Mr. Singh's failure to resume employment arises out of an unreasonable and wilful refusal to work, rather than genuine disability.

I accept that Mr. Singh did, as a result of this accident, sustain a mild injury to his neck and back which disabled him from his employment for a limited period of time. I do not, however, find that Mr. Singh was disabled from the essential tasks of his employment beyond November 14, 1994, when benefits were terminated. Applicant's counsel argued that while Mr. Singh's physical injuries may have resolved at a relatively early stage, he sustained a legitimate psychological injury as a result of the accident which persisted beyond November 14, 1994. The evidence, however, does not support this: firstly, neither of the psychiatrists who evaluated Mr. Singh diagnosed any mental disorder arising from this accident; secondly, I did not find Mr. Singh's testimony regarding his alleged depression credible. The opening of a renovation business nine months after the accident, along with the findings of submaximal effort and symptom magnification at the Canadian Back Institute, suggest that his failure to cooperate arose from factors other than an inability to work.

Applicant's counsel submitted that the award from Canada Pension Plan to Mr. Singh, while not binding on me, is evidence of ongoing depression and disability. I disagree; that award was made on the basis of written representations only, and it is not clear what criteria Canada Pension applied or how rigorously they scrutinized the medical reports in this case. It may well be that Mr. Singh requires psychological counselling, but it should be directed toward self-reliance and pro-active behaviour on his part, rather than promoting the notion that he has significant ongoing problems from this accident.

B. Amount of Benefit

Under section 12 of the Schedule, a person's weekly income benefit is 80% of 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 (to a maximum of $600)

ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident (to a maximum of $600)

iii. $232

Mr. Singh's first period of employment with Sampuran was for the period of November 29 to December 31, 1991. He received Unemployment Insurance benefits during the period of January to September 1992. On October 1, 1992, he returned to employment with Sampuran, where he remained until November 19, 1992, when this accident occurred. Consequently, his average earnings in the four weeks prior to the accident are larger than the average of the 52 week period prior, and form the basis of the calculations under section 12.

Sampuran paid Mr. Singh on the basis of an annual salary of $40,000. In the four weeks prior to the accident he earned a gross amount of $3,076.92. On that basis, the Insurer paid Mr. Singh weekly income benefits of $600, being the maximum amount permitted under the Schedule, from December 5, 1992, until March 29, 1994 (totalling $41,040). The Insurer then reduced the weekly payments to $185.60 (80% of $232), until it terminated benefits completely on November 14, 1994 (totalling $6,106.24). Therefore, the total amount of weekly income benefits paid to Mr. Singh is $47,146.24 ($41,040 + $6,106.24).

Two outstanding issues affect the calculation of benefits:

1. Both parties submit that the Insurer was entitled to deduct "ceasing expenses" under section 12(7) 3. of the Schedule, but disagree on the calculation of those expenses. Section 12(7) 3. provides:

2. Business expenses which cease as a result of the accident shall be deducted from a person's income from self-employment before calculating his or her gross weekly income. [emphasis added]

The wording of this section makes it clear that "ceasing expenses" are deducted only where an Applicant is self-employed. As Mr. Singh was employed (by Sampuran) and not self-employed at the time of the accident, the Insurer is not entitled to deduct business expenses which cease.

2. Pursuant to section 12(4)(b)(i) of the Schedule, the Insurer is entitled to reduce the weekly income benefit by "any payments for loss of income... received by...the insured person...under any income continuation benefit plan..." The parties agree that the Insurer is entitled to deduct the Canada Pension Plan benefits which Mr. Singh received in the sum of $852.91 per month (or $198.35 per week), retroactive to January 1, 1994. Consequently, from January 1, 1994 onwards, the correct amount of Mr. Singh's weekly income benefit is $401.65 ($600-$198.35).

To date the Insurer has paid Mr. Singh the sum of $47,146.24 in weekly income benefits. I have found that the correct amount of weekly income benefits is $600 for the period of December 5, 1992 until December 31, 1993 (totalling $33,540) and $401.65 from January 1, 1994 to the termination date of November 14, 1994 (totalling $18,234.91). I have also found that Mr. Singh is not entitled to benefits after November 14, 1994. Therefore, the total amount that Mr. Singh should have been paid is $51,774.91 ($33,540 + $18,234.91). The amount of the underpayment is therefore $4,628.67 ($51,774.91 - $47,146.24). Accordingly, I order Royal to pay Mr. Singh the amount of $4,628.67, plus interest in accordance with section 24 of the Schedule.

Costs

Mr. Singh claims his expenses incurred in the hearing. An arbitrator has discretion under section 282(11) of the Insurance Act to award expenses:

(11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

Previous arbitration cases have provided guidelines for the exercise of this discretion. In McCormick⁵, former Senior Arbitrator Naylor stated that it is appropriate to award an applicant his expenses unless it is found that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."

In this case Mr. Singh's claim was only partially successful. Although the Insurer miscalculated the amount of weekly income benefits and therefore owes money to Mr. Singh, I have also found that he was not disabled beyond the date when benefits were terminated. Moreover, this latter issue occupied the vast majority of the time taken at the hearing, and Mr. Singh's claims were highly exaggerated and with virtually no merit. Consequently, I award Mr. Singh only one third of his expenses.

Order:

1. The correct amount of Mr. Singh's weekly income benefit is $600 for the period of December 5, 1992 to December 31, 1993, and $401.65 for the period of January 1, 1994 to November 14, 1994.

2. Mr. Singh is not entitled to weekly income benefits beyond November 14, 1994.

3. There was no overpayment by Royal; Royal owes Mr. Singh the amount of $4,628.67, plus interest in accordance with section 24 of the Schedule.

4. Mr. Singh is entitled to one third of his expenses.

October 30, 1995

Deena Baltman Arbitrator

Date

Schedule A

Exhibit 1.

Government of Canada Notice of Entitlement

Exhibit 2.

1992 Income Tax Return

Exhibit 3.

1993 Income Tax Return

Exhibit 4.

Tab 4 of Medical Brief

Exhibit 5.

Dr. Saini's report of July 28, 1994

Exhibit 6.

Dr. Manohar's report of March 30, 1994

Exhibit 7.

Tab 9 of Document Brief

Exhibit 8.

Tab 1A of Medical Brief

Exhibit 9.

Tab 3 of Medical Brief

Exhibit 10.

Tab 5 of Medical Brief

Exhibit 11.

Videotape

Exhibit 12.

Tab 5 of Document Brief

Exhibit 13.

Tab 8 of Document Brief

Exhibit 14.

Tab 6 of Medical Brief

Exhibit 15.

Tab 8 of Medical Brief

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 6
3. 3Exhibit 13
4. 4Jodi E. Wiseman and Coachman Insurance Company, July 25, 1994, OIC File No. A-005706
5. 5Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139