Neutral Citation: 1995 ONICDRG 158

File No.: A-005989

ONTARIO INSURANCE COMMISSION

BETWEEN:

DENNIS TRENDLE

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Dennis Trendle, was injured in a motor vehicle accident on May 31, 1992. He received statutory accident benefits from the Insurer, Economical Mutual Insurance Company ("Economical"), payable under Ontario Regulation 672.¹ Economical paid weekly income benefits under section 12(1) of the Schedule, at the minimum level of $185.60 for the period June 7, 1992 to February 26, 1994. Weekly income benefits were terminated on the basis that Mr. Trendle no longer suffered a substantial inability to perform the essential tasks of his employment.

Mr. Trendle maintains that his injuries still prevent him from returning to his work as a plumber. He also claims that weekly income benefits should have been paid to him in the maximum amount of $600.00 throughout his disability. The parties were unable to resolve their disputes through mediation and Mr. Trendle applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. What amount of weekly income benefit is payable to Mr. Trendle?

2. Is Mr. Trendle entitled to weekly income benefits under section 12(1) of the Schedule after February 26, 1994?

3. Is Economical entitled to deduct post-accident income from employment under section 15 of the Schedule? If so, how much?

4. Is Economical entitled to a repayment of weekly income benefits from Mr. Trendle under section 27(1) of the Schedule? If so, how much?

5. Is Mr. Trendle entitled to transportation expenses in connection with rehabilitation under section 6 of the Schedule?

6. Is Mr. Trendle entitled to the replacement cost of sun glasses and clothing allegedly damaged in the accident under section 8 of the Schedule?

7. Is Mr. Trendle entitled to a special award under section 282(10) of the Insurance Act on the basis that Economical has unreasonably withheld or delayed payments to him?

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

Result:

1. Mr. Trendle is entitled to weekly income benefits calculated at the rate of $454.40 for the period June 7, 1992 to February 26, 1994 inclusive (i.e. $40,896), less $16,704 of weekly income benefits previously paid by Economical. The balance of weekly income benefits is therefore $24,192.

2. Economical is entitled to deduct $5,520.59 post-accident income from employment under section 15 of the Schedule from the $24,192 amount of weekly income benefits for a balance of $18,671.41 weekly income benefits owing.

3. Economical is not entitled to repayment of weekly income benefits from Mr. Trendle under section 27(1) of the Schedule.

4. Mr. Trendle is entitled to payment of reasonable travel expenses in connection with his rehabilitation under section 6 of the Schedule, as more particularly set out herein;

5. Mr. Trendle is not entitled to the replacement cost of sunglasses, nor is he entitled to repayment of the cost of clothing under section 8 of the Schedule.

6. Mr. Trendle is not entitled to a special award.

7. Mr. Trendle is entitled to payment of interest on overdue amounts in accordance with the provisions of section 24(4) of the Schedule.

8. Mr. Trendle is not entitled to payment of his expenses of this arbitration.

Hearing:

The hearing was held in Kitchener, Ontario, on June 22, October 24 and 25, and November 2, 1994, before me, Janice Mackintosh, arbitrator.

Present at the Hearing:

Applicant:

Dennis Trendle

Applicant's Representative:

Michael F. O'Connor

Barrister and Solicitor

For June 22, 1994 only

Insurer's Representative:

Randall B. Carter

Barrister and Solicitor

Insurer's Officer:

Mark Stewardson

Senior Head Office Claims Analyst

Proceedings were recorded on October 24, 25, and November 2, 1994 only, by Karen Scott of Marbrae Paralegal Services Inc.

Witnesses:

The 12 witnesses are listed in Appendix A to the decision.

Exhibits:

Fifty-five exhibits and other documents before the arbitrator are listed in Appendix B to the decision.

Evidence and Findings:

On Sunday, May 31, 1992, Mr. Dennis Leo Trendle was driving past a row of 15 Mennonite horses and buggies to his right, when a horse and buggy in the middle of the row suddenly turned left, in front of his vehicle. Mr. Trendle braked, however his car struck the horse broadside. The horse crushed the roof of his car and broke through the windshield.² Mr. Trendle received abrasions to his head, and injured his neck and back, while twisting down into the right-hand passenger seat to avoid being struck by the horse.³ At the time of the accident, Mr. Trendle was 31 years old. He was married and had two young daughters.

Pre-accident employment:

For several years prior to the accident, Mr. Trendle earned his living primarily as a plumber. He apprenticed for four years and received his journeyman's licence in 1986. He received his master's licence in plumbing and also obtained a contractor's licence in 1991. Mr. Trendle was laid off from his employment with J.D. Nichols Plumbing and Contracting in 1990, when that company went bankrupt. He took some time off work and returned to plumbing on a self-employed basis in 1991. He testified however, that his plumbing business didn't really get going until he returned from a trip to California in the spring of 1992.

Mr. Trendle received plumbing jobs through word-of-mouth referrals. He worked mostly on a cash basis. He gave verbal quotations before the job, operated on a hand shake, rarely issued receipts upon payment, kept no business records, and filed no GST returns. He was paid per job, not on an hourly basis, and therefore he did the work as fast as he could. He estimated that he completed about 20 larger plumbing jobs a year and numerous smaller side jobs". For the larger jobs he generally supplied labour only. For smaller side jobs" he often supplied both labour and materials He often did the complete plumbing installation for new houses.

Mr. Trendle provided several descriptions of his work as a plumber.⁴ I accept that the occupation of plumber could include the following tasks:

Install and maintain pipes and fittings for the flow of water, gases and other fluids in all types of domestic and industrial structures; install and repair septic systems, plumbing fixtures such as toilets and sinks, combustible fuel systems, above and below-ground potable water systems, above-ground sanitation, storm and waste systems, pumps and water treatment systems, fire protection systems and hot water heating systems.(Exhibit 20)

On the basis of the testimony of Mr. Trendle's three witnesses, I find that in the months prior to the motor vehicle accident, Mr. Trendle worked exclusively in domestic rather than industrial structures. I find that the physical requirements of his job included digging trenches to lay basement drains, heavy lifting, carrying, pushing and pulling, including moving sinks, toilets, shower stalls and tubs; stooping, kneeling, crouching, crawling and bending, sometimes in awkward positions to hook up drains, taps and pipes under sinks and toilets; as well as reaching, handling, and fingering.(Exhibit 24) Mr. Trendle testified that sinks weighed about five to six pounds, toilets came in five pieces with the heaviest piece (the bowl) weighing 20 pounds. Mr. Trendle stated that the heaviest pieces to carry were whirlpool tubs and shower stalls, but provided no estimate of their weight. I accept that the job of plumbing includes heavy physical work.

Calculation of Income:

Section 12 of the Schedule provides that the amount of weekly income benefit is based on 80% of an applicant's average gross weekly income for the four or 52 weeks immediately preceding the accident, up to a maximum of $600 (subject to the purchase of Optional Benefits). Section 12(3) provides that in the case of a self-employed individual such as Mr. Trendle, business expenses which cease as a result of the accident must be deducted from the income from self-employment, before calculating gross weekly income. It is an established principle before the Commission that an applicant bears the burden of proving the amount of income and expenses from self-employment for either the four or 52 week period preceding the accident.

Mr. Trendle applied for weekly income benefits in the maximum amount of $600.00. He submitted the standard application for benefits and employer's confirmation of income form in which he stated that his gross weekly income in the last four weeks preceding the accident was $1,102.77 each week and his gross income for the 52 weeks preceding the accident was $30,000.⁵ Economical sought independent verification of the average gross weekly income claimed.

Due to his business practices, Mr. Trendle was unable to produce written quotations, contracts, cancelled cheques, receipts, GST returns or any documentation that had been prepared contemporaneously with the work he performed. Mr. Trendle attempted to reconstruct a record of his work in the 52 weeks preceding the May 31, 1992 accident (i.e. June 1, 1991 to May 31, 1992) without the benefit of calendar entries, notes, documents, or even discussions with his customers. Mr. Trendle created a series of 11 invoices dated in March, April, and May of 1992. He informed Economical that the invoices represented all of the income earned by him in the 52 weeks preceding the accident. These invoices totalled $29,825.00 over a three month period, broken down into $3,700 in March, $21,350 in April, and $4,775 in May 1992.⁶ There is no reference to expenses incurred in connection with these invoices. The invoices record the names and addresses of customers and give a brief description of the work performed. Mr. Trendle represented to Economical that these invoices were authentic business records which had been prepared and delivered to his customers contemporaneously with the performance of the work described in them.

Economical forwarded Mr. Trendle's information and invoices to Mr. Daniel Edwards, a Chartered Accountant with the Business Investigations Group of Coopers and Lybrand (Coopers). Economical sought Coopers' opinion concerning the amount of weekly income benefit payable to Mr. Trendle in connection with the invoices submitted. In a report dated June 25, 1993, Mr. Edwards expressed serious concerns over the integrity of the eleven invoices supplied by Mr. Trendle.⁷ He concluded that the invoices were not authentic business records as alleged by Mr. Trendle and that Economical should not rely on them. Economical accepted Mr. Edward's opinion and continued to pay weekly income benefits to Mr. Trendle at the minimum level of $185.60 pending receipt of further and better proof of business income and expenses.

Mr. Trendle subsequently admitted to Mr. Edwards that he created the invoices well after the motor vehicle accident. At the hearing, Mr. Trendle also admitted that, with one or two exceptions, the invoices had not been presented to the customers and that the dates on the invoices do not necessarily correlate to the date when the work was performed or payment received. However, he continued to maintain that the invoices reflected work that was done prior to the accident.

A representative of Coopers, as well as a private investigator retained by Economical, contacted the customers named in the two largest invoices, both dated April 15, 1992.⁸ The information gathered by the private investigator and Coopers was somewhat inconsistent,⁹ but both customers confirmed that Mr. Trendle had provided plumbing services to them. The information gathered suggests that the bulk of the plumbing work represented by these two invoices was performed in segments over much of 1991 and, in any event, well before the April 1992 date of the invoices. The customers stated that they had not been provided with a copy of the invoices and they were unable to confirm the accuracy of the specific amounts set out in the invoices. One of the customers indicated that Mr. Trendle provided all materials for the job. Mr. Trendle did not call either of these customers to clarify the inconsistencies or to testify on his behalf.

During the course of the hearing Mr. Trendle testified there was not much work around in March or April 1992 but that he got really busy in May. Yet, he submitted invoices dated March and April 1992, which totalled $25,050. Later in the hearing, Mr. Trendle abandoned the portion of his claim related to the invoices for March and April 1992 and limited his claim to business income earned in the four weeks preceding the May 31, 1992 accident. I find the 11 invoices are unreliable evidence upon which to establish the time period over which work was performed, the amount of revenue earned, or the expenses incurred, for either the four or 52 weeks immediately preceding the accident

In an effort to establish his business income, Mr. Trendle also provided Economical with a copy of monthly statements for an account with the Toronto Dominion Bank for the period January 2, 1992 to December 31, 1992.¹⁰ Mr. Trendle originally represented to an independent adjuster acting for Economical that this was his business account and that all deposits to the account represented payments for plumbing work performed in 1992.¹¹ The account shows total deposits of $27,999.38 over the period January to June 31, 1992, with the largest single deposit of $15,000 occurring on June 3, 1992, after the accident. Economical forwarded this information and documentation to its accountant for review.

Economical's accountant, Mr. Edwards, testified that during the months of January and February 1992, there were two bank deposits totalling $2,940; however there were no invoices related to this period. Mr. Trendle submitted plumbing invoices which totalled $26,125 during the months of April and May 1992, however there were only three bank deposits totalling $1,807 for that same period. Mr. Edwards observed that despite this period of purportedly high earnings, Mr. Trendle's account went into an overdraft in May 1992, when his mortgage, and several regular loan payments went through the account.

At a meeting held between Mr. Edwards and Mr. Trendle on June 17, 1993, Mr. Trendle was unable to identify which invoices comprised the $15,000 deposit of June 3, 1992.¹² During his testimony, Mr. Trendle speculated that a portion of the $15,000 deposit may have related to the sale of a second hand Mercedes Benz car he had purchased in California. Mr. Trendle also admitted that the bank account was jointly held with his wife and may have included some of her transactions. Mr. Trendle made no attempt to correlate the bank deposits¹³ to either the 11 invoices¹⁴ or to specific plumbing jobs. I conclude that the bank statements do not assist in determining Mr. Trendle's income and expenses from self-employment for either the four or 52 week period preceding the accident.

Mr. Trendle did not provide a copy of his income tax return for 1991. However he submitted a working copy of his 1992 income tax return, without attachments.¹⁵ Mr. Trendle testified that the tax return was prepared well after the May 31, 1992 accident, based on his approximations. He stated that he did not generally report all his income on his tax returns and maintained that the entire business income of $25,372.38 reflected on his 1992 return was earned from plumbing activities starting in March or April 1992 through to May 31, 1992. Mr. Trendle could not precisely remember what month in the spring he had returned from California.

I do not accept Mr. Trendle's draft 1992 income tax return as persuasive evidence of his business income and expenses over the relevant period. The tax return suffers from the same defects as the invoices: it was self-generated, prepared long after the work was done, and is essentially based on Mr. Trendle's approximations. Furthermore, in his dealings with the Insurer, Mr. Trendle has proven himself to be less than forthright about his business income and expenses. In testimony, Economical's accountant observed that Mr. Trendle's information consisted of half-truths and that it was extremely difficult to sort out which half was true. I agree with this assessment of Mr. Trendle's credibility and the difficulties presented by his evidence. In view of Mr. Trendle's proven unreliability, I am not prepared to accept his uncorroborated testimony concerning his business income and expenses.

At the hearing, the parties agreed that Mr. Trendle may rely upon the value of work he actually performed in the four weeks preceding the accident, to establish his claim for weekly income benefits, even though payment for some of the work was not received until after the date of the accident.

Mr. Trendle called three witnesses to testify concerning plumbing work performed by him in the four weeks preceding the May 31, 1992 accident. Mr. Kevin Nosalik described Mr. Trendle as a friend and the only plumber I know". Mr. Nosalik previously signed a sworn declaration dated September 17, 1993, which refers to plumbing work in the amount of $1,200 described in invoice # 19558, dated May 12, 1992.¹⁶ Paragraph two of the sworn declaration states During the early months of 1992, I hired Dennis Trendle to perform plumbing services at my home". In his testimony, Mr. Nosalik stated that he was certain that Mr. Trendle supplied and installed a water softener, moved a water heater, installed a dishwasher, kitchen sink, and garborator, during a weekend in late May 1992, with one return visit within that same week. Mr. Nosalik paid Mr.Trendle cash when the work was finished and did not see or sign invoice #19558 until many months after Mr. Trendle's accident. Mr. Nosalik recalled visiting Mr. Trendle approximately a week after the plumbing was finished, because he had heard that his friend had been involved in an accident.

Mr. Trendle testified that a new water softener was worth approximately $1,200, but because he built it himself with some new parts and some scavenged parts he had on hand, it cost him much less. Mr. Trendle apportioned approximately $500 of the total bill of $1,200 to the water softener. Mr. Trendle did not indicate what portion of the $500 should be attributed to parts for the water softener, therefore I have attributed the whole $500 as an expense for the materials.

The Insurer urged me to place little weight upon the evidence of Mr. Nosalik because he was a friend of Mr. Trendle and because his earlier solemn declaration referred to plumbing work in the "early months of 1992", whereas his later testimony placed the work in late May 1992. Mr. Nosalik struck me as forthright and truthful during his testimony. I am satisfied that his specific recollections concerning the time period Mr. Trendle worked in his home are more accurate than the somewhat general and imprecise wording of the sworn declaration. I find that the $1,200 amount paid by Mr. Nosalik can be attributed to the four weeks preceding the accident.

Mr. Terry Ranck, a general inspector for the City of Cambridge who conducts plumbing and building inspections for that city, testified that he hired Mr. Trendle in May 1992, to install all the underground and above ground plumbing, sanitary drains, showers, baths, and fixtures throughout his newly constructed home. The building permit for the bungalow was issued April 27, 1992. The above ground and below ground rough-in plumbing was completed by May 26, 1992 when it was tested and passed inspection.¹⁷ Mr. Ranck commented that Mr. Trendle completed the work in a much shorter time than expected. Mr. Ranck stated that he received no invoice from Mr. Trendle and paid $850 in cash after the May inspection. However, the finishing work on the job was not completed until July 15, 1992, when Mr. Trendle returned to set in the toilets, and hook up the faucets and water heater prior to the final inspection.¹⁸ Mr. Ranck estimated that approximately 20% of the total job was completed after the May 31, 1992 accident. Mr. Trendle disputed this estimate and stated that he did very little work to complete the job after May 31, 1992. I prefer the disinterested testimony of Mr. Ranck to that of Mr. Trendle. I find that $680 (i.e. 80% of the $850 labour cost), can be attributed to the four weeks immediately preceding the accident. I find that $170 (i.e. 20% of $850) can be attributed to the work performed just prior to the July 15, 1992 inspection.

Mr. Bart Wilfong signed two sworn declarations on behalf of Dennis Trendle and testified at the hearing.¹⁹ Mr. Wilfong owns several businesses in the Kitchener area, including a construction company called Wilfong Homes, and had worked with Mr. Trendle in the past. Mr. Wilfong hired Mr. Trendle to do all the plumbing work for two new houses: Lot 24 Wilfong Drive, built for Mr. Wilfong's own use, and Lot 136 Cairncroft Place, built for a resale by Wilfong Homes. Mr. Wilfong paid $1,500 cash, for labour on Wilfong Drive²⁰ and Wilfong Homes paid $1,000 by cheque dated August 19, 1992, for labour on Cairncroft Place.²¹ All plumbing materials were ordered by Mr. Trendle but were billed to Mr. Wilfong or Wilfong Homes.²²

Long after the accident, Mr. Wilfong was approached by Mr. Trendle's counsel to sign two declarations with respect to plumbing work performed by Mr. Trendle. These declarations contain the general wording "During the early months of 1992, I hired Dennis Trendle to perform plumbing services at my home".²³ However, Mr. Wilfong explained that prior to testifying at this hearing, he spoke to his mother, F.E. Wilfong, who does the bookkeeping for his construction company, and they reviewed some of his business records in an effort to reconstruct the specific time period when Mr. Trendle did the work. Mr. Wilfong's best recollection on the first day of hearing was that Mr. Trendle completed approximately 85% of the work on the two homes in May 1992, with 15% of the less strenuous finishing work completed in June 1992, after the accident. Unfortunately Mr. Wilfong did not bring the business records he had consulted to the first day of hearing. However he volunteered to provide both counsel with copies of all his available records relating to the two houses, prior to the resumption of the hearing. Mr Wilfong provided extensive records, including invoices relating to the purchase of plumbing materials used in the houses, invoices for excavation of the foundations, construction of the framing, and plumbing inspection reports.²⁴ Upon his re-attendance, Mr. Wilfong reviewed his records in detail. In Mr. Wilfong's opinion, the records established a later time framework for the completion of the work on Cairncroft Place than he had originally recalled.

The building permit for Wilfong Drive was issued on April 15, 1992, the underground water test was performed on April 30, 1992, the above ground water test was performed on June 19, 1992 and the final plumbing test was performed on October 6, 1992, some time after Mr. Wilfong had moved into his house.²⁵ On the basis of this information, Mr. Wilfong estimated that approximately 5% of the plumbing work was done before April 30, 1992, approximately 80% of the work was done between May 1 and June 19, 1992, and approximately 15% of the work, i.e. setting toilets and sinks, was completed after June 19, 1992. Some of the plumbing supplies for 24 Wilfong Drive were not ordered until June 4, 1992. Mr. Wilfong observed that Mr. Trendle had a tendency to use plumbing supplies stored in his home first and order replacements later. I accept that this may have been done on Wilfong Place, the first of the two projects. Mr. Wilfong's general impression was that the work was done quickly and generally ahead of schedule. I find that approximately $1,200 (i.e.80% of the $1,500 labour cost on Wilfong Drive) can be attributed to the four weeks preceding the accident. I conclude that $225 (i.e.15% of the $1,500 labour cost) can be attributed to work performed in June 1992.

The documentation for Cairncroft Place suggests that the bulk of the plumbing work was performed after May 31, 1992. The foundation was excavated on May 19, 1992,²⁶ the foundation walls were poured on May 22, 1992,²⁷ and backfilled on June 4 and 5, 1992.²⁸ Mr. Wilfong testified that the wood framing could have started any time after May 22, but more likely began after the foundation was backfilled on June 4, 1992. The underground plumbing inspection was done July 9, 1992, the above ground inspection was done July 17, 1992 and the final inspection was done September 23, 1992.²⁹ Most of the plumbing supplies for Cairncroft Place were ordered in June or July 1992, including 70 feet of sewer pipe for underground installation from the street to the house, 66 feet of soft copper tubing for the underground water line from the street to the house, as well as several hundred feet of plastic pipe.³⁰ I find it improbable that Mr. Trendle had sufficient plumbing supplies stored in his home to complete the plumbing requirements on two new houses. I accept that Mr. Trendle may have used his own supplies for Wilfong Drive, the earlier of the two projects, but I find it less likely that he did so on Cairncroft Place. I find that he ordered new parts in June and July to continue the work on Cairncroft Place.

Mr. Trendle submitted that both the above ground and underground plumbing work were completed on Cairncroft Place soon after the foundation was poured on May 22, 1992, before the foundation was backfilled on June 4, 1992 and well before the underground plumbing inspection of July 9, 1992. However, Mr. David Michael Hobson, acting chief plumbing inspector for the City of Kitchener, and Mr. James McNeelands, former chief plumbing inspector for the City of Waterloo, who conducted the inspections of Cairncroft Place, testified that it would be highly unusual for the underground plumbing to be installed before the foundation had been backfilled. They also stated that in most cases, the plumbing inspections occur as soon as the plumbing work is completed and that both the underground and above ground plumbing would be inspected together, if both were completed.

Mr. Trendle offered no plausible explanation why the above ground inspection on Cairncroft Place was delayed until July 17, 1992, if the work was completed before the backfilling on June 4 and the below ground inspection of July 9, 1992. I find it highly unlikely that both the above ground and below ground plumbing were completed before the June 4 backfilling and the July 9, 1992 inspection, as Mr. Trendle contends. No independent evidence suggests that any portion of the plumbing work on Cairncroft Place was completed before the accident on May 31, 1992. I find that the full amount of $1,000 labour costs in connection with Cairncroft Place is attributable to work performed in the months of June and July 1992, following the accident.

Mr. Trendle also filed a sworn declaration from Kubassek Mechanical Ltd. dated September 15, 1993 which stated "During the early months of 1992, we hired Dennis Trendle to perform plumbing services". The declaration refers to a cheque in the amount of $3,872.38 dated March 4, 1992.³¹ Mr. Trendle provided no further evidence to establish when in 1992 the work was performed. I therefore do not include this amount in the calculation of Mr. Trendle's average gross weekly income for the four weeks preceding the accident.

I find that Mr. Trendle's income from self-employment in the four weeks preceding the May 31, 1992 accident includes:

$ 1,200.00 from Mr. Nosalik (ie 100% of $1,200)

$ 680.00 from Mr. Ranck (ie 80% of $850)

$1,200.00 from Mr. Wilfong for Wilfong Drive (ie 80% of $1,500)

Total $3,080.00 income from self-employment.

Expenses of Self-Employment

Section 12(7)3 of the Schedule requires a self-employed worker to deduct business expenses which cease as a result of the accident from income from self-employment, before calculating gross weekly income under section 12(7)1.

Mr. Trendle provided little information concerning his business expenses other than his 1992 income tax return without attachments.³² The income tax return shows a gross business income of $25,372.30 and a net business income of $20,772.38 suggesting business expenses of $4,599.62 or approximately 20% of gross business income. Mr. Trendle was unable to produce particulars of the specific expenses claimed in his 1992 income tax return, however he recalled that he included expenses related to his truck, but excluded expenses for his telephone and house. It is likely that only a portion of Mr. Trendle's expenses would cease as a result of the accident, for example long-term expenses for his truck would likely continue despite the accident, whereas expenses for plumbing materials would gradually reduce as he wound down his plumbing activities. I previously attributed $500 to Mr. Trendle's expenses for materials related to Mr. Nosalik's water softener. I further attribute 10% of Mr. Trendle's gross income from self-employment (earned in the four weeks preceding the accident) to his ceasing expenses (ie 10% of $3,080 = $308). Therefore Mr. Trendle must deduct the following amounts for ceasing expenses under section 12(7)3:

$308.00

500.00 (materials for the Nosalik job)

Total:

$808.00

$3,080.00 (income from self-employment)

Less

808.00 (ceasing expenses)

$2,272.00

$2,272 +4 weeks = $568 average gross weekly income x 80% = $454.40.

I conclude that the amount of Mr. Trendle's weekly income benefit is $454.40.

Applicant's ability to perform the essential tasks of his occupation:

Economical paid Mr. Trendle weekly income benefits for 90 weeks from June 7, 1992 to February 26, 1994 on the understanding that Mr. Trendle suffered a substantial inability to perform his essential tasks as a plumber as a result of injuries he suffered in the May 31, 1992 accident. Mr. Trendle seeks weekly income benefits beyond February 26, 1994 on the basis that he is still unable to return to plumbing on a full-time basis, due to his pain.

At the beginning of the hearing, Economical did not challenge Mr. Trendle's disability claim prior to February 26, 1994. However both Mr. Ranck and Mr. Wilfong testified that Mr. Trendle continued to provide plumbing services for them in the months immediately following the accident.³³ Economical now takes the position that Mr. Trendle was never disabled from performing his work as a plumber and seeks repayment of $16,704 of weekly income benefits paid to him.

Mr. Trendle stated he experienced increasing back pain and stiffness after the accident and sought help from his regular chiropractor on June 12, 1992. He met with his insurance broker on June 15, 1992, and stated that he was back at work but had missed two weeks of work following the accident. Mr. Trendle testified that he felt compelled to finish the plumbing projects he had committed himself to before the accident. He explained that he was only able to work for short periods, with extensive rest periods in between. His pain forced him to work much more slowly than was his habit. He accepted no further work and struggled to complete his remaining j obs. His back pain and stiffness increased and he eventually stopped working altogether. Mr. Trendle continued to receive frequent chiropractic treatments and went to his family doctor.³⁴ He attended the Gage Street Physiotherapy Department for four weeks in August 1992.³⁵

The Insurer received an application for accident benefits prepared by Mr. Trendle's lawyer in November 1992, which stated that Mr. Trendle was "unable to work due to pain experienced while doing the necessary tasks for work". The application described Mr. Trendle's injuries as "lacerations and muscle spasm in back, neck and hip".³⁶ In December 1992, Mr. Trendle provided a Form 4 medical report prepared as of June 1992, by Dr. Philip Ettin, a family physician. The report described his injuries as "complaints of muscle spasm, full thoracic and lumbar movement. Muscle spasm right cervical, shoulder and hip".³⁷

In a report dated January 12, 1993, Mr. Trendle's family physician, Dr. Daniel Zur, stated:

On my most recent examination of this patient he was found to have right-sided paravertebral lumbar muscle spasm. He also had some neurological symptoms radiating down the right leg with a mild amount of sensory loss.

Dr. Zur noted a resolution of Mr. Trendle's neck strain but reported that his back symptoms were exacerbated by sitting for prolonged periods or exposure to cold. The back symptoms were reported to improve with rest. Dr. Zur concluded that as of January 12, 1993, Mr. Trendle was unable to do his "full regular occupation" as it involved much lifting, twisting and bending.³⁸

At Economical's request, Mr. Trendle attended a functional capacity evaluation at the Canadian Back Institute ("C.B.I") on March 4 and 5, 1993, conducted by a physiotherapist and kinesiologist. In a report from the C.B.I, dated March 5, 1993, Mr. Trendle's primary complaints are noted to be right-sided buttock pain, dysesthesia (tingling) of the right leg and foot, referred pain down the right leg, and occasional posterior headaches, increasing in frequency. Mr. Trendle reported that in general he felt quite strong and could perform the normal activities of daily living with minimal difficulty. He estimated that his right-sided buttock pain and leg dysesthesia had improved approximately 25% since the motor vehicle accident, however he reported a severe aggravation of his symptoms when he engaged in prolonged physical activity, or sustained positioning. He reported that he had difficulty doing any sports, he was unable to sit more than 30 minutes, and was unable to do sustained activity of more than an hour. The results of the Functional Capacity Evaluation confirmed these limitations. The test results indicated a consistent, maximal effort throughout the testing, consistency between Mr. Trendle's performance on objective testing and his subjective complaints, and no symptom magnification. The C.B.I, concluded that Mr. Trendle was unable to meet the demands of his work as a plumber and recommended an active rehabilitation program.³⁹

Dr. James Israel, orthopaedic surgeon, was asked to assess Mr. Trendle on behalf of Economical on March 12, 1993. Dr. Israel reached a similar conclusion to that of the physiotherapist and kinesiologist from C.B.I. He diagnosed soft tissue injuries to Mr. Trendle's neck and low back with some sciatic root irritation. Dr. Israel concluded that Mr. Trendle was unable to return to his job as a plumber at that time but predicted gradual improvement with rehabilitation, and ultimately a return to his former employment.⁴⁰

The medical evidence is consistent that Mr. Trendle sufferred soft tissue injuries to his neck and low back evidenced by spasm, with some numbness and referred pain to his right leg as a result of the accident on May 31, 1992. I accept Mr. Trendle's explanation that he continued to work as best he could, on an intermittent basis in the months of June and July 1992, to finish the projects he had committed himself to before the accident. There is no evidence that he took on any further plumbing work and Mr. Wilfong recalled Mr. Trendle finishing off the work as best he could and complaining of a sore back after the accident.

I have previously expressed my reservations concerning Mr. Trendle's reliability in reporting his income and expenses. These reservations, however, do not extend to Mr. Trendle's reporting of his injury and symptoms. The medical evidence suggests that Mr. Trendle provided consistent, maximal effort throughout testing. There was consistency between Mr. Trendle's subjective complaints, his medical examinations, and his performance during objective tests. The evidence shows objective signs of muscle spasm. Mr. Trendle did not magnify his symptoms but gave a frank and unaffected report of them. I am satisfied that Mr. Trendle was substantially disabled from performing his essential tasks as a plumber as a consequence of the May 31, 1992 accident. I make this finding despite the fact that he continued to work intermittently through June and July 1992. I accept Mr. Trendle's evidence that he struggled to finish the projects to which he had previously committed himself, at a substantially reduced rate of function. Economical may deduct 80% of any income earned by Mr. Trendle in June and July 1992, under the provisions of section 15 of the Schedule.

On May 31, 1993, Mr. Trendle was discharged from a six week C.B.I, rehabilitation program with the observation that he could now perform moderate physical work. The progress report dated May 31, 1993 noted that "Dennis has learned that if he paces lighter activity he is functional", but heavier tasks required medication for pain control.⁴¹

Mr. Trendle was referred by his family doctor to a second orthopaedic surgeon, Dr. Anthony Chris. Following his assessment on May 31, 1993, Dr. Chris concluded that Mr. Trendle had a lumbosacral strain injury with some inflammation and possible occasional sciatic nerve irritation.⁴² Dr. Chris saw Mr. Trendle for a second time on November 3, 1993 and a final time on January 12, 1994. Mr. Trendle's main complaint on January 12, 1994 was back pain with occasional right leg radiation to the posterior buttock region. Dr Chris found a fit, healthy looking man with a full range of motion of the hips and back, no nerve root tension or neurological findings to indicate disc pathology, but some paravertebral muscle spasms. He concluded that Mr. Trendle's condition had plateaued with lower lumbar discomfort and partial disability related to a reduced sitting tolerance due to pain.⁴³

Mr. Trendle obtained two reports from his regular chiropractor, George S. Hickson. Chiropractor Hickson's observations of constant neck and back pain are at variance with the gradual resolution of neck pain and improvements noted by other medical practitioners.⁴⁴ His prognosis for Mr. Trendle's recovery was "poor to fair", in contrast to the suggestion by the C.B.I, five months earlier, that Mr. Trendle was ready to return to moderately heavy physical work.

Chiropractor Hickson repeats his conclusions in a further report provided a year later.⁴⁵ He reports that "He [Mr. Trendle] is unable to sustain any activity levels without aggrivating [sic] his condition and that most daily activities create pain [emphasis added]. These observations are in contrast to Mr. Trendle's statements to the C.B.I, almost two and one half years earlier that he felt quite strong and could perform the normal activities of daily living with minimal difficulty. Chiropractor Hickson is alone in concluding that Mr. Trendle suffers constant neck pain, peripheral neuritis in the upper arm, and Chronic Pain Syndrome. Chiropractor Hickson also predicted the likely onset of early degenerative or arthritic changes to the injured areas. Mr. Trendle stated that chiropractor Hickson is the only medical practitioner he continues to see and that his chiropractor's suggestion of early degenerative or arthritic changes to his back has been very disturbing to him. It appears that Mr. Trendle became convinced that working through pain would result in further damage to his back and would precipitate disability in the future.

In his testimony, Mr. Trendle frankly conceded that his current problem is not an inability to perform any of the essential tasks of a plumber. He confirmed that he is physically capable of doing all aspects of plumbing for limited time periods, then pain sets in. He also believes that he has the character and determination to work through his pain. He admitted that he has now returned to the workforce, however he states that he is performing activities which are less physically demanding and much lower paying than the skilled work of a master plumber. He states he is eager to return to the more remunerative work of a master plumber but is worried that if he does so on a full-time basis, he will damage his back and become permanently disabled in the future.

The Insurer obtained video surveillance of Mr. Trendle which commenced in late November 1992.⁴⁶ Mr. Trendle was observed over several days driving a van to various locations and he conceded that he was picking up and delivering items for a personal project as well as doing odd jobs and deliveries. In particular, Mr. Trendle was frequently observed driving between two companies: Roylco Ltd ("Roylco") and Conestoga Material Handling ("Conestoga"). Contrary to the restrictions noted by Dr. Chris and chiropractor Hickson in the fall of 1993 and January 1994, Mr. Trendle's tolerance for sitting, activity, and pain were sufficiently improved in the fall of 1992 to allow him to routinely drive a van and make deliveries. Further video surveillance was conducted in June 1993.⁴⁷ Mr. Trendle was observed playing a series of softball games in a slow pitch league. Each game, including pre- and post-game activities, extended over approximately two hours. During that period, Mr. Trendle was observed repeatedly rising from a crouched position, swinging at the ball, running bases, lobbing pitches, jumping and reaching to catch the ball. All his movements appeared smooth and without hesitation. On several occasions, he jumped over a waist-high, chain link fence in preference to using the entrance gate, to gain access to the baseball field.

On the basis of the surveillance evidence and Mr. Trendle's own testimony, I am satisfied that by June 1993 at the latest, Mr. Trendle enjoyed a full range of motion and was physically capable of doing all aspects of plumbing, although pain set in after a short period of work. I accept the assessment of the C.B.I. in its report dated May 31, 1993⁴⁸ which concluded that Mr. Trendle was capable of medium heavy physical work on a consistent functioning basis. I prefer the C.B.I, report over the subsequent reports of Dr. Chris and chiropractor Hickson which are at variance with the activities of Mr. Trendle as recorded on video in November 1992 and June 1993. I find that Mr. Trendle's condition continued to improve. In March 1993 he reported to C.B.I, that any sport caused him difficulty, however by June 1993 he was well enough to fully participate in a regular softball league.

It is an established principle before the Commission that weekly income benefits under the Schedule are not intended to compensate an individual for pain and suffering.⁴⁹ Such benefits are only available where an applicant establishes that his pain is such that it substantially disables him from performing his essential tasks. I accept Mr. Trendle's self-assessment that he has the temperament and determination to work through his pain.

Following its surveillance, Economical sent Mr. Trendle to Dr. Ernest White for an orthopaedic assessment on November 26, 1993. Dr. White concluded that Mr. Trendle gave a sincere and convincing history of ongoing complaints referable to his lower back with intermittent vague numbness to his right leg without symptoms of sciatica per se. However, Dr. White's clinical findings on examination were essentially completely normal. Dr. White had the clinical impression of a relatively modest disability and concluded that Mr. Trendle was physically fit to carry on the essential duties of modified work as a plumber doing maintenance type plumbing work rather than heavier construction plumbing.⁵⁰ In a follow-up report dated December 13, 1993, Dr. White referred to a functional capacity assessment dated December 6, 1993 and pointed out that during his examination, he found no objective findings to substantiate any significant degree of disability. He concluded that despite ongoing symptoms of pain, it was quite safe for Mr. Trendle to return to his regular work as a plumber on an unmodified full-time basis.⁵¹ During his testimony Dr. White reassured Mr. Trendle that his pain did not mean further injury was occurring and reiterated his view that there were no contra indications to Mr. Trendle's immediate return to full-time work as a plumber.

Economical sent Mr. Trendle to Ergos Work Recovery Inc.("Ergos") for a functional capacity assessment conducted on Friday, November 26, 1993. In a report dated December 6, 1993, the kinesiologist concluded that Mr. Trendle's functional performance was adequate to permit him to safely return to his heavy level job as a plumber on a full-time basis, immediately.⁵² During testing, Mr. Trendle demonstrated a full range of motion in all extremities including his thoracic lumbar spine, good body mechanics during all tasks, the ability to work through discomfort, and a decrease in symptoms after a brief rest.

The kinesiologist observed that Mr. Trendle tended to work straight through each activity very quickly and then needed one to two minutes rest after each activity. This is consistent with Mr. Trendle's description of his approach to work before his accident. He testified that he routinely worked straight through to complete a plumbing j ob as quickly as possible. Several of Mr. Trendle's witnesses testified that he completed plumbing jobs much faster than anticipated and generally well ahead of schedule. The kinesiologist suggested that if Mr. Trendle altered his pace while working, he could work for longer periods without a rest.

A self-employed person has somewhat more flexibility than an employee in deciding which j obs to accept and how they will be accomplished. Employees must generally perform the tasks assigned, in the manner indicated and within a specific time framework. Mr. Trendle testified that prior to the accident, he worked alone and very quickly. He estimated that he completed about 20 larger plumbing jobs a year and numerous smaller "side jobs". His larger jobs generally lasted a day or two, sometimes longer i.e. (approximately 40 to 60 working days a year). He worked from job to job and did not necessarily work every day or complete days. Mr. Trendle testified that he regularly took significant time off work in the spring and fall of each year. I find that Mr. Trendle has the flexibility to pace his work, spread his jobs over a longer period, and rest between jobs, while still maintaining his level of earnings.

I adopt the view expressed by Arbitrator Makepeace in her decision Eric Simpson and Royal Insurance Company of Canada⁵³ that it is appropriate to recognize individual flexibility by considering whether an insured person's pre-accident essential tasks could be accomplished with reasonable and practical modifications. I conclude that Mr. Trendle was in a position to resume the essential tasks of his occupation as a plumber by mid-December 1993, provided he adopted the reasonable and practical modifications pertaining to pacing of work, suggested by the kinesiologist in the report from Ergos dated December 6, 1993.⁵⁴

Economical regularly assessed Mr. Trendle's medical condition through experts hired by them. Economical undoubtedly had the reports of Ergos⁵⁵ and Dr. White⁵⁶ in its possession by December 1993, but continued to pay weekly income benefits to Mr. Trendle until February 26, 1994.⁵⁷ Economical seeks a repayment of benefits under section 27(1) of the Schedule. Section 27(1) provides for a repayment to the insurer of benefits paid through error or fraud. Economical established that Mr. Trendle did not inform medical examiners that he had returned to the workforce on a modified basis. However, much of the medical opinion provided to the Insurer supported Mr. Trendle's return to medium heavy work by March 1993 and full-time unmodified work by December 1993. There is no evidence to suggest that Mr. Trendle had returned to the more strenuous work of a plumber on a full-time basis. I find that Mr. Trendle's failure to report his return to modified work to the Insurer's medical examiners does not significantly undermine their conclusions. I find that Economical's decision to pay benefits beyond December 1993 was not based upon error or fraud concerning Mr. Trendle's medical condition. I make no order for repayment of weekly income benefits by Mr. Trendle to Economical under section 27(1) of the Schedule.

I conclude that Mr. Trendle is entitled to weekly income benefits for the period June 7, 1992 to February 26, 1994, calculated at the rate of $454.40 per week for a total of 90 weeks i.e. the sum of $40,896. Economical has already paid the sum of $16,704 in weekly income benefits at the lower rate of $185.60. Economical is required to pay the sum of $24,192 in additional weekly income benefits, subject to any deductions allowed under section 15, dealt with below.

Deduction of post-accident income from employment under section 15

It became evident during the hearing that Mr. Trendle had earned income from employment following the May 31, 1992 accident. Economical seeks a deduction of such income from weekly income benefits payable to Mr. Trendle under section 15 of the Schedule.

Section 15 states:

The insurer may deduct from any benefit payable under this part [ Part IV Weekly Benefits] 80 per cent of any income received or available from any occupation or employment subsequent to the accident.

Mr. Trendle consented to the inclusion of this issue by Economical because he wanted a determination of the quantum of his benefits as well as an order directing Economical to pay any amount owing to him.⁵⁸

I previously found that Mr. Trendle earned the following amounts after the accident:

June 1992:

$ 225 (i.e. 15% of $1,500) from Mr. Wilfong for Wilfong Drive

July 1992:

$ 170 (i.e. 20% of $850) from Mr. Ranck

July 1992:

$1,000 (i.e. 100%) from Mr. Wilfong for Cairncroft Place

Total

$1,395 for 1992

One day prior to the commencement of the hearing on June 22, 1994, Mr. Trendle conceded that he had began to work at Roylco in 1993, doing work that is less physically demanding than plumbing for $8.00 an hour. He submitted a T-4 slip from Roylco for 1993 showing total employment income of $2,999.⁵⁹ He also confirmed receiving cash payments from Conestoga in 1993 totalling $200.⁶⁰ Mr. Trendle produced a pay stub from Roylco for the pay period ending 10/05/94 showing taxable earnings to that date of $11,925.53⁶¹ with a gross weekly income including overtime of $307.00. I calculate that Mr. Trendle's average gross weekly income from Roylco is $305.78 (i.e. $11,925.53 gross income divided by 39 weeks from January to October 5, 1994 = $305.78).

Economical maintains that Mr. Trendle did not admit to working after the accident until confronted with the Insurer's surveillance evidence. Economical's video surveillance showed Mr. Trendle attending at the premises of Roylco or Conestoga over a period of several days in early November 1992, and again in January, March, July, and November 1993. Economical's counsel invited me to infer from the video surveillance that Mr. Trendle was employed by these companies as early as 1992 and earned more than he reported in 1993. Despite subsequent days of hearing scheduled in October and November 1994, Economical called no representative from Roylco or Conestoga to testify and no other documents were obtained. I decline to conjecture about Mr. Trendle's employment status with these companies on the basis of the video surveillance alone. On the basis of the documentation filed, I conclude that in 1993, Mr. Trendle earned gross income of $3,199 from Conestoga and Roylco. From January 3, 1994 to February 26, 1994, he earned gross income of $2,446.24 from Roylco (i.e. $305.78 x eight weeks = $2,446.24). Under the provisions of section 15, Economical is entitled to deduct 80% of the following amounts:

1992:

$1,255.50 ($1,395 less 10% for expenses of self-employment)

1993:

$3,199

1994:

$2,446.24 (eight weeks to Feb.26, 1994)

Total:

$6,900.74 x 80% = $5,520.59

Economical is entitled to deduct $5,520.59 from the additional $24,192 of weekly income benefits, for a balance of $18,671.41. Mr. Trendle is entitled to interest on this amount pursuant to the provisions of section 24(4) of the Schedule.

Rehabilitation Expenses:

Mr. Trendle claims reimbursement for mileage expenses incurred travelling 60 kilometres round trip to Conestoga Dam to swim. He maintains that swimming was necessary for his treatment and/or rehabilitation, and that the mileage expenses he incurred in pursuing this activity ought to be paid by the Insurer. Economical disputed the authenticity of this claim and made no payment in respect of it.

Section 6(1)(d) of the Schedule requires the insurer to pay all reasonable expenses for transportation for the injured person to and from treatment. Claims that fall under this section are governed by the mandatory provisions of section 6(7) of the Schedule which requires the insurer to pay the disputed expense pending a resolution of the dispute by mediation or adjudication.

Section 6(1)(c) provides for all reasonable expenses for rehabilitation. Claims that fall under this section are not governed by the "pay-pending-resolution-of-dispute" provisions of section 6(7).

Whereas swimming is not in and of itself "treatment" or "rehabilitation", I accept that swimming can be a component of some treatment or rehabilitation programs. Under section 6(4) of the Schedule an insurer may require an insured person to submit a statement signed by the insured's qualified medical practitioner stating that an expense is necessary for an insured person's treatment or rehabilitation prior to paying the expense. Section 6(5) permits a chiropractor to provide such a statement with respect to chiropractic services. Mr. Trendle submitted a letter dated January 31, 1994, from his chiropractor stating that regular swimming was of benefit to his rehabilitative program.⁶²

Chiropractor Hickson does not specifically refer to swimming under the "treatment" portion of his two reports, however he does recommend that Mr. Trendle exercise and keep active.⁶³ I am not satisfied that swimming is a necessary component of Mr. Trendle's chiropractic treatment under section 6(1)(d), however it may well be considered an integral part of Chiropractor Hickson's general recommendations for Mr. Trendle's rehabilitation under section 6(1)(c).

Mr. Trendle also provided a note from his family physician, Dr. Lee, dated March 25, 1994, which confirmed that Mr. Trendle would likely benefit from swimming for symptomatic relief of chronic back pain.⁶⁴

I accept that swimming was a necessary and central part of Mr. Trendle's overall conditioning and rehabilitation. He mentioned swimming numerous times to several different medical examiners throughout the course of his injury. His swimming is generally noted with approval in the context of his efforts to manage his pain and improve function.⁶⁵ I conclude that his reasonable transportation expenses in connection with swimming are an expense for rehabilitation contemplated under section 6(1)(c). This section is not governed by the mandatory "pay-pending-resolution-of-dispute" provisions of section 6(7).

By letter dated January 7, 1994, Mr. Trendle's counsel informed Economical's agent that Mr. Trendle swam at Conestoga Dam six times a week from June 15, 1992 to September 1, 1992 for a total of 60 round trips of 60 kilometres each. In 1993 he reportedly swam almost every day from May 24, to September 5, 1993 for a total of 80 round trips of 60 kilometres.⁶⁶

In a progress report of Rehabilitation Services of Canada dated September 2, 1993, it was recorded that Mr. Trendle had been swimming three times a week at Conestoga Dam.⁶⁷

In a handwritten statement provided at the hearing,⁶⁸ Mr. Trendle claimed mileage expenses for 45 swimming trips a year at 60 kilometres each and 10 trips each winter at 34 kilometres. All these estimates differ. Once again Mr. Trendle appears to be an unreliable historian.

I find it improbable that Mr. Trendle swam outside virtually every day throughout the summer regardless of the weather. Furthermore Mr. Trendle informed Rehabilitation Services of Canada that he and his family often swam together for recreation.⁶⁹ I find, on a balance of probabilities, that Mr. Trendle swam a maximum of three times a week, during the summers of 1992, 1993 and 1994; twice in connection with his rehabilitation and likely once with his family for recreation.

There was no evidence provided by either party concerning the amount paid per mile and I make no finding on that point. Mr. Trendle is entitled to reimbursement for his mileage to Conestoga Dam twice a week from June 1st to August 31, during the summers of 1992, 1993 and 1994.

Economical agreed to pay any outstanding mileage expenses connected to 48 visits for chiropractic treatments as outlined in Exhibit 55, up to October 20, 1994, and any outstanding mileage claims for physiotherapy up to October 20, 1994, provided that the Applicant submits objective confirmation of the dates and location of such treatments.

I note that Dr. Israel stated in his report of March 12, 1993 that long-term reliance on passive modality treatment may result in dependency and prolongation of Mr. Trendle's symptoms.⁷⁰

Mr. Trendle provided no evidence with respect to the benefit, if any, of long-term rehabilitation or chiropractor therapy. In the absence of such evidence, I decline to award benefits for the continuation of long-term chiropractic treatments.

Special Award:

Mr. Trendle seeks a special award under section 282(10) of the Insurance Act on the basis that Economical unreasonably withheld or delayed payment of transportation expenses related to his rehabilitation. Mr. Trendle provided Economical with all the information it had requested in connection with his claim for swimming expenses by January 31, 1994. He maintains that the Insurer should have paid benefits as of that date. It is not surprising that Economical approached this claim with suspicion, in light of Mr. Trendle's earlier dishonesty with them. Furthermore, I find that the initial claim was significantly overstated. I conclude that there is no basis for granting a special award in this case.

Replacement of clothing under section 8 of the Schedule:

Mr. Trendle seeks payment of $860 in U.S. funds for the cost of replacing items of clothing worn by him at the time of the accident as well as a pair of non-prescription sunglasses which were broken.⁷¹ Section 8 does not provide for the replacement of non-prescription eyewear.

Mr. Trendle claims that his clothing was ruined by blood from cuts to his temple and the base of his skull. He informed Dr. White that he was taken by ambulance to the Kitchener-Waterloo Hospital Emergency Department where he received 28 stitches to his forehead and 28 stitches to the back of his head to close the wounds.⁷² Mr. Trendle did not produce a copy of the ambulance report or emergency department records to verify these claims. Mr. Trendle provided no support for the $860 figure claimed, other than his own approximation of the value of the items. I do not accept Mr. Trendle's completely unsubstantiated claim.

Expenses:

Mr. Trendle seeks an award of the expenses he has incurred in this arbitration. An award of 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 McCormick and Economical Mutual Insurance Company,⁷³ Senior Arbitrator Naylor stated that the discretion to award expenses should be exercised in light of the objective of facilitating applicants' access to relatively inexpensive, speedy and informal adjudication of disputes. Senior Arbitrator Naylor concluded that expenses should be awarded unless it is determined that the application was manifestly frivolous or vexatious or 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 Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.

However, in several decisions of the Commission, expenses have been denied to an applicant in cases where it is found that the applicant lacked credibility or provided false or misleading evidence.⁷⁴ I find that it was impossible for Economical to determine the correct amount of weekly income benefit payable to Mr. Trendle on the basis of the documents and information provided by him. Mr. Trendle further complicated matters by submitting false invoices and incomplete or misleading information to Economical, its agents, and at arbitration. It took several days of hearing and the careful testimony and documentation of many witnesses to sort through the maze of half truths provided by Mr. Trendle. In my view, the hearing was precipitated and unnecessarily prolonged by Mr. Trendle's careless and haphazard approach to the truth. I therefore decline to exercise my discretion to award Mr. Trendle the expenses of this arbitration.

Order:

1. Mr. Trendle is entitled to weekly income benefits calculated at the rate of $454.40 for the period June 7, 1992 to February 26, 1994 inclusive (i.e. $40,896), less $16,704 of weekly income benefits previously paid by Economical. The balance of weekly income benefits is therefore $24,192.

2. Economical is entitled to deduct $5,520.59 post-accident income from employment under section 15 of the Schedule from the $24,192 amount of weekly income benefits for a balance of $18,671.41 weekly income benefits owing.

3. Economical is not entitled to repayment of weekly income benefits from Mr. Trendle under section 27(1) of the Schedule.

4. Mr. Trendle is entitled to payment of reasonable travel expenses in connection with his rehabilitation under section 6 of the Schedule, as more particularly set out herein;

5. Mr. Trendle is not entitled to the replacement cost of sunglasses, nor is he entitled to repayment of the cost of clothing under section 8 of the Schedule.

6. Mr. Trendle is not entitled to a special award.

7. Mr. Trendle is entitled to payment of interest on overdue amounts in accordance with the provisions of section 24(4) of the Schedule.

8. Mr. Trendle is not entitled to payment of his expenses of this arbitration.

November 2, 1995

Janice Mackintosh

Arbitrator

Date

APPENDIX A

Witnesses - June 22, 1994:

Dennis Trendle

Bart Wilfong

Kevin Nosalik

Terry Ranck

Daniel Edwards

October 24, 1994:

Bart Wilfong, recalled by Insurer

David Michael Hobson

October 25, 1994

Dr. Ernest White

James Arkins McNeelands

Mark Stanley Stewardson (Insurer's representative)

David Roy Kent

Joseph David Angus

APPENDIX B

Exhibits:

1. Invoice 19555 for $1,000, dated May 29, 1992

2. Invoice 19556 for $1,500, dated May 11, 1992

3. Invoice 19558 for $1,200, dated May 12, 1992

4. Invoice 19510 for $225, dated May 16, 1992

5. Invoice 19564 for $850, dated May 22, 1992

6. Bundle of invoices for period between March 12 and April 15, 1992, totalling $25,090

7. Statement made by Mr. Trendle to adjuster

8. Bank records of Mr. and Mrs. Trendle for period January to December 1992

9. Draft 1992 income tax return without attachments

10. Cheque from Wilfong Homes, dated August 19, 1992, for $1,000 with yellow copy of invoice 19555 attached

11. Two Solemn Declarations of Bart Wilfong, each dated September 13, 1993

12. Solemn Declaration of Mr. Kevin Nosalik, dated September 17, 1993

13. Inspector's Job Report for Mr. Ranck's home

14. Daniel Edwards' Curriculum Vitae

15. Solemn Declaration of Kubassek Mechanical Ltd., dated September 15, 1993

16. Coopers & Lybrand report, dated June 25, 1993

17. Summary of Evidence prepared by counsel for the Insurer

18. Four letters: Two from Mr. Edwards' file and two from counsel for the Applicant's file

19. Bundle of documentation related to 24 Wilfong Drive and 136 Cairncroft Place

20. The Apprenticeship Book - page 6 re: occupation of plumber

21. Ministry of Skills Development - Plumber Apprenticeship Training Standards

22. Ontario Regulation 1073 - Regulations Pertaining to Plumber

23. Letter dated February 23, 1994, from Mr. J.A. Van Trigt, Industrial Training Consultant

24. Excerpt from National Occupational Classification publication for 1992 - re: Plumbers

25. Dr. Chris' Statement to Sun Alliance, dated December 16, 1993

26. Report dated October 18, 1993, from George Hickson, chiropractor

27. Report dated October 17, 1994, from George Hickson, chiropractor

28. Report dated October 17, 1994, from Dr. Chris, orthopaedic surgeon

29. Canadian Back Institute ("C.B.I.") report of assessment, dated March 4 and 5, 1993

30. C.B.I. report of Dr. James Israel, orthopaedic surgeon, dated March 12, 1993

31. C.B.I. weekly progress report of Rob Stuart, physiotherapist, dated May 31, 1993

32. Article from Washington Post entitled "Self care rated best back-pain remedy in study" - undated

33. Picture of automobile

34. Medical report of Dr. Daniel Zur, family physician, dated January 12, 1993

35. Letter dated July 20, 1992, from Interspect (adjuster)

36. Letter dated August 25, 1993, from counsel for the Applicant, setting out claims for transportation costs

37. Handwritten statement of claims re transportation and clothing expenses prepared by Mr. Trendle for this hearing

38. Letter dated May 31, 1994, from Mr. Robson to Mr. O'Connor re medical reports

39. Curriculum Vitae of Dr. E.J. White, orthopaedic surgeon

40. Report, dated November 26, 1993, from Dr. E.J. White

41. Report, dated December 13, 1993, from Dr. E.J. White

42. Ergos Work Recovery Inc. Evaluation Summary Report, dated December 6, 1993

43. Plumbing Inspection record for Cairncroft Place

44. Ontario Automobile Insurance claims form package, items (a) - (e)

45. Letter dated October 1, 1992, from InterSpect to Mr. O'Connor, counsel for Applicant

46. Assessment of Claim form issued by Economical to Mr. Trendle, dated March 11, 1994

47. Note from chiropractor Hickson re: Mr. Trendles swimming, dated January 31, 1994 and handwritten notes on back re: times for swimming

48. Letter dated January 7, 1994, from counsel for Applicant, Mr. O'Connor, to Economical adjuster, Mr. McHugh, setting out mileage claim

49. Letter dated January 18, 1994, to Mr. O'Connor from Mr. McHugh re swimming

50. Note from Dr. Lee, dated March 25, 1994 re: swimming

51. Ten reports prepared by Churchhill and Associates regarding surveillance of Mr. Trendle conducted at request of Insurer (items (a)- (j))

52. a) Letter dated June 21, 1994, from Mr. O'Connor to Mr. McHugh

b) Summary of loss of income claim prepared by Mr. Trendle's counsel

c) 1993 T-4 slip from Roylco

53. Series of six reports from Rehabilitation Services of Canada

54. Pay stub from Roylco for October 5, 1994

55. List of appointment dates on which Applicant saw George Hickson, chiropractor

Other documents before the arbitrator:

Report of Mediator, October 20, 1993

Report of Mediator, May 12, 1994

Application for Appointment of an Arbitrator, January 7, 1994

Application for Appointment of an Arbitrator, May 24, 1995

Response by Insurer, March 1, 1994

Letter dated March 28, 1994, confirming pre-hearing discussions

Letter dated June 6, 1994, confirming 2nd pre-hearing discussions

Letter dated August 23, 1994, confirming 3rd pre-hearing discussions

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 33
3. 3Exhibit 29
4. 4Exhibits 20-24
5. 5Exhibit 44
6. 6Exhibits 1-6
7. 7Exhibit 16
8. 8Exhibit 1, invoice # 19560 for $9,000 and invoice # 19585 for $6,250.
9. 9Exhibits 16 and 17
10. 10Exhibit 8
11. 11Exhibit 16
12. 12Exhibit 16, paragraph 20, page 5
13. 13Exhibit 8
14. 14Exhibits 1-6
15. 15Exhibit 9
16. 16Exhibits 3 and 12
17. 17Exhibit 13
18. 18Exhibit 13, final inspection July 15, 1992
19. 19Exhibit 11
20. 20Exhibit 2
21. 21Exhibits 1 and 10
22. 22Exhibit 19
23. 23Exhibit 11
24. 24Exhibit 19
25. 25Exhibit 19, page 22
26. 26Exhibit 19, page 20
27. 27Exhibit 19, page 19
28. 28Exhibit 19, page 18
29. 29Exhibit 43
30. 30Exhibit 19, pages 1-15
31. 31Exhibit 15
32. 32Exhibit 9
33. 33Exhibit 7
34. 34Exhibits 55 and 44(b)
35. 35Exhibit 30
36. 36Exhibit 44(a)
37. 37Exhibit 44(b)
38. 38Exhibit 34
39. 39Exhibit 29
40. 40Exhibit 30
41. 41Exhibit 31
42. 42Exhibit 28
43. 43Exhibit 28
44. 44Exhibit 26, report dated October 18, 1993
45. 45Exhibit 27, report dated October 17, 1994
46. 46Exhibit 51, surveillance reports (a) to (c)
47. 47Exhibit 51, surveillance reports (e) to (j)
48. 48Exhibit 31
49. 49Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260, appeal decision dated September 29, 1992; S.S. Gaba and Allstate Insurance Company of Canada, August 21, 1992, OIC File No. A-000624; Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024 (see footnote 24 of Dragica Mladenovic and Dominion of Canada General Insurance Company, September 11, 1995, OIC File No. A-008849. 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)
50. 50Exhibit 40
51. 51Exhibit 41
52. 52Exhibit 42
53. 53Page 13 of the decision dated April 6, 1994, OIC File No. A-003863, under appeal
54. 54Exhibit 42
55. 55Exhibit 42
56. 56Exhibit 41
57. 57Exhibit 46, Assessment of Claim form dated March 11, 1994, informing Mr. Trendle of Economical's decision to terminate weekly income benefits as of February 26, 1994
58. 58Walter Francis and Halifax Insurance Company, October 28, 1994, OIC File No. A-003987
59. 59Exhibit 52(c)
60. 60Exhibit 52(b)
61. 61Exhibit 54
62. 62Exhibit 47
63. 63Exhibits 26 and 27
64. 64Exhibit 50
65. 65Exhibits 29, 40, 47, 50 and 53
66. 66Exhibit 48
67. 67Exhibit 53, Progress Report 2, dated September 2, 1993, at page 3
68. 68Exhibit 37
69. 69Exhibit 53, Initial Evaluation Report dated July 22, 1993, page 6
70. 70Exhibit 30
71. 71Exhibit 37
72. 72Exhibit 40
73. 73October 2, 1991, OIC File No. A-000139
74. 74Mark W. Cooper and Jevco Insurance Company, April 13, 1994, OIC File No. A-005905 (under appeal); Antonio Ferrari and Royal Insurance Company, September 8, 1994, OIC File No. A-007313 (under appeal); Rustom Tagiran and Simcoe & Erie General Insurance Company, August 15, 1994, OIC File No. A-004660 (under appeal); and Melinda Upper and Canadian General Insurance Company, June 3, 1994, OIC File No. A-002855.