Neutral Citation: 1995 ONICDRG 173

File No.: A-002869

ONTARIO INSURANCE COMMISSION

BETWEEN:

R. S.

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, R.S., was injured in a motor vehicle accident on March 16, 1991. He applied for and received statutory accident benefits from the Insurer, Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 672.¹ Weekly income benefits were paid by Royal from March 23, 1991 to September 20, 1992. Royal denied the Applicant's claim for weekly income benefits after September 20, 1992. It also denied certain supplementary medical and rehabilitation benefits. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits from September 21, 1992 onwards, under section 12(1) of the Schedule?

2. Is the Applicant entitled to be paid for the services of Evergreen Rehabilitation Services Inc., and for transportation services, under section 6 of the Schedule?

3. Is the Applicant entitled to a special award under section 282(10) of the Act?

The Applicant also claims interest on any amounts owing and his expenses incurred in respect of the arbitration.

Result:

1. The Applicant is not entitled to weekly income benefits from September 21, 1992 onwards.

2. The Applicant is entitled to transportation expenses to and from the offices of Dr. Kofman, the offices of Dr. Teichman, the offices of Dr. Haight, St. Michael's Hospital and Columbia Health Centre.

3. The Applicant is entitled to a special award.

4. The Applicant is entitled to his expenses reasonably incurred in respect of the arbitration.

Hearing:

The hearing was held in North York, Ontario, on April 6, 7, October 11, 12, 13 and December 22, 1994, before me, Shemin Manji, Arbitrator.

Present at the Hearing:

Applicant:

R.S.

Applicant's

Michael Canning

Representative:

Barrister and Solicitor

Insurer's

Wayne Edwards

Representative:

Barrister and Solicitor

Witnesses:

The Applicant

Mr. Ronald Lucas

Mr. John Carson Bock

Dr. Harold Becker

Mr. Phil Scheiding

Mr. William Brigger

Ms. Louise Sidorkewicz

Dr. Arthur Jones

Ms. Denice Tanner

The proceedings were recorded by Ms. Jean Caldicott and Mr. Bradley Vanalstyne of Legal Transcript Services Ltd.

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

Reasons for Decision:

1. Background Facts and Issues:

At the time of the accident on Saturday, March 16, 1991, the Applicant was 43 years old. As he was crossing a street, the Applicant was struck by an oncoming car on the left side of his body, near his left knee. He was tossed onto the hood of the car and then fell to the ground.² The Applicant testified that when he was tossed onto the hood of the car, his left eye area struck the hoodline, the windshield, and the roofline of the car.

The Applicant was taken by ambulance to Hamilton General Hospital. He was found to have an abrasion on his left wrist, swelling around the left clavicle (collarbone) and swelling at the back of his head. X-rays revealed that he had an undisplaced left clavicular fracture and a minimally displaced fracture of the left distal ulna (the left wrist). The Applicant's fractured left wrist was treated with a cast and his fractured left clavicle treated with a clavicle brace. He was given some medication and released with instructions to return in two days for follow-up.³

The Applicant attended at the Fracture Clinic on March 18, 1991. He complained of pain on the left side of his head and difficulty hearing from his left ear. X-rays of his skull and facial bones were taken. The x-ray results tendered as evidence at the hearing indicate that no fractures were seen in the skull and facial bones on March 18, 1991.⁴ However, in his consultation report of the same date, Dr. M. Ginty, the doctor who examined the Applicant on that day, indicated that x-rays of the skull, showed "...a fracture extending from the petrous bone posteriorly and superiorly into the left occiput."⁵ Further, on examination, Dr. Ginty found blood behind the Applicant's left eardrum and a mild Battle sign (seen in a fracture of the base of the skull) on the left side. He also found some swelling and a small haemorrhagic spot (ecchymosis) about his left eye area (orbit). He noted some minor swelling and tenderness at the back of the head (occiput) on the left side. Dr. Ginty made arrangements for the Applicant to be seen by Dr. J.D. Wells, a neurosurgeon at the Minor Head Injury Clinic, on March 22, 1991.

The Applicant saw Dr. Wells, for treatment of his head injury, on March 22, 1991 and May 24, 1991. He saw Dr. J.T.S. Sadler, orthopaedic surgeon, for treatment of his left clavicular and left distal ulna fractures, on April 8, May 6 and June 17, 1991.⁶ The Applicant also saw his family physician, Dr. Dennis Kavalsky, regularly, for treatment, between March and October 1991.⁷

The Applicant was not employed at the time of the accident. He initially received weekly benefits from Royal, in the amount of $185.00, under section 13 of the Schedule⁸, Weekly benefits were terminated on September 28, 1991, after Royal received a letter from Dr. Kavalsky indicating that the Applicant was able to perform the essential tasks in which he would normally engage before the accident.⁹

After Royal terminated weekly benefits, it was provided with a letter from the Applicant indicating that at the time of the accident, he had an offer of employment from Hamilton Motor Products to commence work as a car salesman on March 19, 1991. Weekly benefits were reinstated. This time weekly income benefits were paid under section 12 of the Schedule, while Royal gathered information, with the assistance of Innovative Rehabilitation Inc., to determine whether the Applicant could perform the essential tasks of a car salesman.¹⁰ The Applicant received weekly income benefits, in the amount of $240.00 until February 13, 1992.¹¹ Weekly income benefits were terminated after Royal received opinions from Dr. Kavalsky, Dr. Wells and Dr. Dinshaw Punthakee, an orthopaedic surgeon whom the Applicant saw on October 16, 1991, that the Applicant was likely able to work as a car salesman.¹²

Weekly income benefits were reinstated, once again, after Royal learned that the Applicant had switched to a new family physician, Dr. Irina Bystrin. The Applicant saw Dr. Bystrin for the first time on February 19, 1992. On that day, she was of the opinion that the Applicant was not able to return to any kind of work. She advised that the Applicant required a consultation with a neurologist.¹³

Dr. Bystrin referred the Applicant to neurologist Dr. Oscar Kofman. The Applicant saw Dr. Kofman on March 3, 1992 and April 6, 1992. After receiving Dr. Kofman's reports of these visits,¹⁴ and his opinion that the Applicant could work as a car salesman,¹⁵ Royal again terminated weekly income benefits on September 20, 1992.¹⁶

After his weekly income benefits were terminated, the Applicant was referred by his solicitors, for assessment, to Dr. Harold Becker, a family physician and the Director of the Toronto Accident Clinic (now known as Toronto Medical Associates). Dr. Becker's practice is essentially a medical/legal practice.¹⁷ The Applicant first saw Dr. Becker on April 7, 1993. In his assessment, Dr. Becker made a number of referrals. One of the referrals he made was to Evergreen Rehabilitation Services Inc. ("Evergreen") for assistance with case management and vocational rehabilitation.¹⁸

The Applicant was seen by Mr. Robert Lychenko, a social worker with Evergreen, on April 29, 1993, to identify the services that he needed and to assess his rehabilitation potential. Mr. Lychenko felt that it was essential that the Applicant be evaluated by a neuropsychologist.¹⁹He referred the Applicant to Mr. J. Carson Bock, psychologist. However, further activity by Mr. Lychenko and Evergreen on the Applicant's behalf was suspended. Royal advised that it would not pay for these services because it did not consider them necessary. Royal advised Evergreen that the Applicant had been cleared to return to work as a car salesman.²⁰

The Applicant disputes the termination of weekly income benefits on September 20, 1992. He claims that, in addition to the injuries he sustained to his collar bone and wrist, he suffered a severe head injury in the accident. The Applicant submits that this head injury has caused a number of difficulties which have prevented him from performing the essential tasks of a car salesman.

The Applicant also disputes the refusal by Royal to pay for the services of Evergreen. He seeks an order that the services of Evergreen be reinstated and that he be entitled to rehabilitation services as prescribed by his physicians.

The Applicant also claims reimbursement for transportation expenses he has incurred to and from the offices of the various health care providers. He seeks a special award on the ground that Royal unreasonably withheld or denied medical and rehabilitation benefits.

Royal maintains that after September 20, 1992, the Applicant was not entitled to further weekly income or rehabilitation benefits because he was able to perform the essential tasks of his employment. Royal also submits that his ongoing disability after September 20, 1992, if any, is not a result of the accident.

(2) Entitlement to weekly income benefits after September 20, 1992:

Section 12(1) of the Schedule provides for a weekly income benefit to be paid to an insured person who as a result of an accident "suffers substantial inability to perform the essential tasks of his or her occupation or employment". The Applicant bears the onus of proving his claim that, after September 20, 1992, as a result of the motor vehicle accident of March 16, 1991, he continues to suffer a substantial inability to perform the essential tasks of his employment as a car salesman with Hamilton Motor Products.

In my view, the evidence supports the Applicant's claim that he continues to suffer a substantial inability to perform the essential tasks of his employment, but for reasons not related to the accident.

(a) The essential tasks of the Applicant's employment:

A "Job Analysis" of the work of a car salesman was prepared by Ms. Louise Sidorkewicz of Innovative Rehabilitation Inc.²¹ The essential tasks of the job as set out in the Job Analysis include the following:

• greeting of customers

• presentation and demonstration of automobiles

• negotiating car sales

• selling and follow-up with customers

The physical requirements of the job as set out in the Job Analysis include a great deal of standing, minimal lifting (less than 10 lbs - while showing a customer a car, the salesman may have to lift the hood of the car or trunk) and minimal walking, sitting, bending, twisting and reaching (in and out of cars).

The Job Analysis also states that the job requires good verbal and communication skills. A salesman must have a cheerful disposition and empathy towards the customer. He must be subtle and tactful in approach. He must have determination and perseverance in selling a car. He also must be able to cope with the stress of working on commission after a 90 day initiation period.

The Applicant agreed that the Job Analysis was a fair assessment of the job. However, he submitted that the Job Analysis was incomplete. He testified that it did not take account of the product knowledge that he would have to acquire and apply to be an effective car salesman.

Royal did not dispute that the job required the ability to learn and apply product information. Accordingly, I accept that this is also one of the essential tasks of a car salesman.

(b) The Applicant's ability to perform his essential tasks:

There appears to be no dispute that the injuries that the Applicant sustained to his left clavicle and his left distal ulna had resolved to a significant extent by September 20, 1992 and do not preclude him from performing the essential tasks of a car salesman. The issue is whether the Applicant suffered a substantial inability to perform the essential tasks of a car salesman after September 20, 1992, as a result of the head injury.

As noted earlier, the Applicant claims that he has suffered a severe head injury and this injury has caused a number of difficulties which have prevented him from performing the essential tasks of a car salesman. The Applicant testified that he has been suffering from constant ringing in his left ear. This is annoying and he feels it affects his behaviour and it could possibly interfere with his ability to function as a car salesman.

The Applicant testified that he also has difficulty maintaining his balance. He has fallen on many occasions and injured himself, and has had to seek medical attention nine times since the accident because of this problem. The Applicant testified that he has not required medical attention since September 1993 because he now moves very slowly and deliberately. The Applicant stated that he would have difficulty selling cars because of the way he moves. He moves like a very old man. He stated that when he walks, he also "weaves" from side to side. He has a sort of "stutter step". He walks this way because he has difficulty maintaining his balance. The Applicant stated that he might look like he is drunk because of the weaving and "stutter step". This too would put off customers.

The preponderance of the evidence indicates that the Applicant suffered a mild head injury in the accident on March 16, 1991 and that after September 20, 1992, he has continued to suffer from certain residual problems as a result of it. The Applicant has continued to suffer from anosmia (loss of sense of smell) with some impairment of taste, and tinnitus (ringing) in the left ear.²²These are significant impairments, however the evidence indicates that these impairments in themselves would not have prevented the Applicant from performing the essential tasks of a car salesman after September 20, 1992.

The preponderance of the evidence also indicates that the Applicant has continued to suffer from episodes of vertigo (an illusory sense that either the environment or one's own body is revolving) after September 20, 1992.

The reports of the Applicant's treating physicians, Dr. Kavalsky and Dr. Wells, indicate that they believed that the Applicant was suffering from episodes of positional vertigo in 1991 and 1992, and that this vertigo was, in their view, directly related to the accident.²³ However, both doctors were of the opinion that by September 20, 1992, when weekly income benefits were terminated, the vertigo did not preclude the Applicant from performing the essential tasks of a car salesman.

Dr. Kavalsky was of the opinion that the Applicant could have started working as a car salesman as of September 5, 1991.²⁴ Dr. Wells was of the opinion that from a "neuro viewpoint", the Applicant would likely be able to work selling cars as of January 22, 1992. Dr. Wells referred to the vestibular and audiometric studies conducted by Dr. J. Robert Cranston, otolaryngologist, which were normal.²⁵ Dr. Cranston found that the Applicant demonstrated normal peripheral and central function of the 8th nerve (the nerve responsible for balance).²⁶

The Applicant saw another otolaryngologist, at the request of his solicitors. In his report dated July 30, 1993, Dr. Jim Haight concluded that the Applicant's dizziness was compatible with benign positional vertigo and stated that this condition can be quite disabling.²⁷ I did not find this opinion very helpful because Dr. Haight did not address the question of whether and the extent to which this condition was in fact disabling for the Applicant.

At the hearing, Dr. Becker did not quite agree with the opinions of Dr. Wells and Dr. Kavalsky. Dr. Becker testified that the Applicant would probably be able to work as a car salesman, but would run the risk of falling if he had an episode of vertigo. Further, the Applicant would appear drunk if he were to lift up the hood of a car or look under the seat or get in and out of the back of a car.

I am not convinced that the vertigo or dizziness experienced by the Applicant would have significantly interfered with his ability to perform his essential tasks as a car salesman after September 20, 1992. The vertigo is episodic and some evidence suggests that dizziness or vertigo is not the only cause of his balance problems. Dr. Leslie M.C. Goldenberg, internist, who examined the Applicant at the request of Dr. Becker on July 9, 1993, stated in her report that "(t)here may be a degree of accident proneness related to poor concentration on a chronic basis".²⁸

The Applicant testified that since the accident, his sleeping pattern has changed. He requires a great deal more sleep than before. He tires easily. He constantly has a "low grade headache" which comes on when he starts to get tired. His ability to concentrate and his attention span has been reduced significantly. He is easily distracted. He has difficulty reading and absorbing technical or educational material. He has poor short-term memory. He is forgetful and often forgets obvious things. He is very irritable. He is frustrated. The Applicant testified that these problems, which also result from the accident, prevent him from functioning as a car salesman.

The evidence supports the Applicant's testimony that after September 20, 1992, he has been suffering from a sleep disorder. The results of an overnight study done at the Sleep Disorders Centre of Metropolitan Toronto on July 24, 1993, at the request of Dr. Goldenberg, documented a substantial sleep disturbance.²⁹

The evidence also supports the Applicant's testimony that after September 20, 1992, he continues to suffer from an inability to concentrate and poor short-term memory. The evidence indicates that these difficulties significantly disable him.

After conducting a battery of neuropsychological or cognitive tests on June 3, 1993, Mr. Bock, psychologist, found that the Applicant showed cognitive deficits.³⁰ For example, he found that the intellectual assessment revealed a considerable discrepancy between the Applicant's verbal I.Q. and his performance I.Q. He noted a difference between the Applicant's remote memory and short-term memory. His academic achievements remained intact. However, he was only able to remember seven digits forward and five reversed and his recall of stories read to him was satisfactory but decayed remarkably over time. He had difficulty recalling a string of digits. Mr. Bock stated that it appeared to him that many of the Applicant's memory difficulties resulted from his inability to attend and concentrate. Mr. Bock was of the opinion that as a result of these deficits, the Applicant was unable to function effectively as a car salesman.

While the evidence indicates that, after September 20, 1992, the Applicant's difficulties with cognitive functioning and sleep have prevented him from performing the essential tasks of a car salesman, I am not persuaded, on a balance of probabilities, that these difficulties are a result of the accident. I find that these difficulties, as well as his difficulties with emotional functioning, have their root not in the accident but in his pre-accident history.

The Applicant's pre-accident history indicates that he is accident-prone and has long suffered a severe personality disorder.

This history was described in his oral evidence and the documentary evidence before me. The Applicant has sustained numerous injuries as a result of slips and falls since the age of 16. Most of these were self-treated. He has broken his nose 10 times while playing hockey and football.³¹He broke a wrist in 1970.³² He fractured his right forearm.³³ He sustained a chip fracture of the right wrist in a work-related injury in 1980.³⁴ He twisted a muscle in his back at work in Alberta in 1982.³⁵

The Applicant testified that in 1987 a blood test showed that he was suffering from lead poisoning, caused by using dishes containing lead. He said that his symptoms were flu-like: he had nausea and he was feverish, stuffy, very tired and not sleeping well. The problem began in 1986. It was initially diagnosed as flu. The flu-like symptoms continued for a long time and he missed a lot of work. However, he claims once the condition was detected in 1987, he was given medication which flushed the lead out of his system and he got better.

The Applicant injured his right hip and right shoulder in the summer of 1988.³⁶ He continued to complain of right hip and shoulder pain throughout 1989 and 1990.³⁷ He underwent physiotherapy treatment for his right hip pain complaints from October 1990 to February 1991.³⁸

The Applicant testified that on May 1, 1989, he "disappeared". He had been living in Hamilton at the time. He returned to Alberta (he had previously lived in Alberta for approximately three years, from early 1981 to early 1984). He then went to Vancouver where he assumed a new name. The Applicant testified that he does not know where the new name came from. He testified that while he was going under the new name, he was not aware of his real identity. The Applicant returned to Lethbridge, Alberta, at the end of May, still using the new name. When he arrived in Lethbridge, he still had some cash with him (from his work in Hamilton). He did not work. His plan was to settle in Lethbridge and live on the money he had. When the money ran out, he would commit suicide.

In October 1989, the Applicant tried to commit suicide by taking an overdose of sleeping pills, but failed. At the end of January 1990, the Applicant "re-discovered" his previous identity. In August 1990, he returned to Hamilton.³⁹

The Applicant testified that he suspects that he was suffering from lead poisoning again in 1989 when he "disappeared". The Applicant told Dr. Adrian N. Hanick, a psychiatrist to whom he was referred by his solicitors, on February 16, 1994, that at the time of his "disappearance", he had, again, been chronically exposed to lead. He had been collecting car batteries, in large quantities, as a means of raising some money. He told Dr. Hanick that given this constant exposure to lead, he suspects he again became ill and that in turn lead to "loss of identity".⁴⁰

It should be noted that the Applicant's claims that he suffered from lead poisoning in 1987 and 1989 have not been confirmed by any medical records. The Applicant could not recall the name of the doctor who treated him for this alleged problem in 1986 and 1987. The Applicant's blood was tested for lead levels and found to be normal, in August 1990, after he "re-discovered" his real identity.⁴¹

The medical evidence, including that of Dr. Becker and Mr. Bock, suggests that even if the Applicant was suffering from lead poisoning in 1989, it was unlikely that his "disappearance" could be attributed to this.⁴² The medical evidence suggests that his "disappearance" was the result of an "emotionally based problem."⁴³ Dr. Hanick was of the opinion that, in May 1989, the Applicant "...suffered a dissociative disorder, principally in the form of a psychogenic fugue; within such a state, there is a sudden and often unexpected travel from home, with the afflicted individual being unable to recall his or her past and, typically, there is the taking on of a new identity."⁴⁴

The Applicant testified that following his suicide attempt on October 5, 1989, he woke up hallucinating. When he was leaving the abandoned house in south Lethbridge where he had barricaded himself, he fell down the stairs, injured his left arm pretty badly, and smashed his nose again.

The Applicant sought help two weeks after his suicide attempt. He saw a social worker at the Lethbridge Regional Hospital on October 16, 1989. The social worker advised the Applicant that he needed to see a doctor and the doctor would refer him to the Day Treatment Psychological Program at the Lethbridge Regional Hospital. The social worker also arranged for the Applicant to obtain social assistance.⁴⁵

The clinical notes and records of Drs. H.V. Stewart and J.R. Haberman, the Applicant's treating physicians in Lethbridge, the clinical notes and records of Ms. Joan Lasby R.N., his counsellor at the Day Treatment Psychological Program, and the clinical notes and records of Mr. John Wyngaard, the clinical psychologist at the Lethbridge Regional Hospital who treated the Applicant from mid-February 1990 to mid-July 1990, are very informative. They provide some insight into the Applicant's personality, cognitive functioning and social and emotional behaviour from October 16, 1989 to July 12, 1990.

These records indicate that during this period the Applicant was complaining that he was not sleeping very well.⁴⁶ In his sessions with Mr. Wyngaard, the Applicant identified his most important goal for therapy as being able to sleep, so that he could wake up in the morning rather than at noon or afternoon. He also complained that he was forgetful: his short-term memory had deteriorated,⁴⁷ he had difficulty concentrating ("his concentration (was)'shot to hell'") or focusing,⁴⁸ he was feeling very depressed,⁴⁹ he was "tuned out" frequently,⁵⁰ he was easily annoyed and irritated⁵¹ and he was frustrated.⁵²

Dr. Stewart, a general practitioner whom the Applicant saw regularly from October 16, 1989 to March 23, 1990, was of the opinion that the Applicant was suffering from depression when he saw him on October 16, 1989, November 2, 1989 and December 22, 1989. He prescribed anti-depressants.⁵³

The Applicant started seeing Mr. Wyngaard in February 1990, after he rediscovered his real identity. On February 15, 1990, the Applicant took the Minnesota Multiphasic Personality Inventory (MMPI) test. The results of the test were summarized by Mr. Wyngaard as follows:

(The Applicant's) profile reveals a person with serious psychopathology but who underestimates the seriousness of his problems. It is the profile of a loner who is depressed, basically dependent and ineffective. He is generally anxious, tense, irritable and resistant to change and psychological interpretations of his problem. There are problems with thinking, concentrating and remembering. Common diagnoses for people with this profile are manic-depressive psychosis, involutional melancholia, and schizophrenia, schizo-affective type.⁵⁴

At the hearing, Mr. Bock testified that, in his opinion, none of the Applicant's complaints after the accident had their root in the Applicant's pre-accident history. However, he acknowledged, on cross-examination, that the way the Applicant answered questions on the MMPI would lead to the conclusion that he was depressed. Mr. Bock stated that following an episode like the "fugue" state, the Applicant might well be depressed and have difficulties with concentration and experience confused thinking and forgetfulness. Mr. Bock testified, however, that people recover from their depressions. It is not unknown for a person who showed symptoms of the kind indicated in the Applicant's MMPI to be completely cured of these problems in less than one year. Medication, psychotherapy or solving the problem will turn the person around. Mr. Bock testified that in the Applicant's case, getting "free of the fugue state" may have also had this effect.

However, the medical and psychiatric records from Lethbridge indicate that the problems that the Applicant was experiencing persisted, and were not resolved before he returned to Hamilton at the beginning of August 1990.

The clinical notes of Ms. Lasby at the Day Treatment Psychological Program indicate that although the Applicant was referred to this program for treatment, his attendance especially at Peer Therapy, was extremely sporadic. The Applicant's reasons for his sporadic attendance were his inability to get up in the mornings and his discomfort with groups.⁵⁵

Mr. Wyngaard's clinical notes indicate that as of April 4, 1990, the Applicant required therapy for at least a year or probably more to resolve his psychological difficulties. On June 2, 1990, Mr. Wyngaard identified characteristics that would make working difficult for the Applicant: anger, blaming behaviour, failure to identify areas that he needed to work on, isolating himself and, not following through. Mr. Wyngaard states in his notes that on June 2, 1990, the Applicant "attacked" him on all the points that he made. When the Applicant saw Mr. Wyngaard on June 8, 1990, he denied his failure to meet goals that he and Mr. Wyngaard set for counselling. The Applicant and Mr. Wyngaard met for the last time on July 12, 1990. At that time, the goals that they had set for counselling had not been followed through. The Applicant did not wish to change anything.⁵⁶

Some time towards the end of March 1990, the Applicant changed family doctors. He claimed he was angry with Dr. Stewart for not showing interest, being arrogant and not being supportive.⁵⁷ He started seeing Dr. Haberman who continued to be his family doctor until he left for Hamilton in early August 1990. When the Applicant arrived in Hamilton, Dr. Kavalsky became his family physician. By way of a release dated August 23, 1990, Dr. Kavalsky requested copies of Dr. Haberman's records.⁵⁸ On August 31, 1990, Dr. Haberman wrote to Dr. Kavalsky. In that letter, he summarized the Applicant's medical history in Lethbridge. He advised Dr. Kavalsky that the Applicant had been on some medications, including antidepressants and lithium. He advised that the Applicant refused to continue taking these or any other medications. Dr. Haberman indicated that throughout the time he saw the Applicant, the Applicant totally denied his psychological problems and insisted that he had things well in hand. Dr. Haberman hoped that Dr. Kavalsky could convince the Applicant that he needed psychiatric care and probably medication.⁵⁹

The Applicant denied that he had had problems with his short-term memory in Lethbridge. He testified that while he was in Lethbridge, he had problems with long-term memory. For a while he did not know who he was and for a while he also had no memory of the period from the end of 1987 to May 1, 1989. However, he had recovered his memory by the time he returned to Hamilton.

The Applicant also disagreed with the health professionals in Lethbridge who said he was depressed. He testified that he was confused and frustrated in Alberta because his problems were not addressed, but he was not depressed. Further, the Applicant testified that his frustration had ended before he returned to Hamilton. He had enrolled in a course at Lethbridge Community College, which gave him a sense of direction. Then he was fine.

The Applicant testified that after arriving in Hamilton, he did not look for work until mid-February 1991, because he was attending physiotherapy, three times a week, for his complaints of right hip pain. He was also visiting family members, to explain his situation, and trying to recover the property he had left behind when he "disappeared".

I do not accept the Applicant's testimony that he did not have problems with his short-term memory in Lethbridge. His complaints of the loss of short-term memory are documented not only by Ms. Lasby of the Day Treatment Psychological Program, but also by Dr. Stewart and Mr. Wyngaard.⁶⁰ I also do not accept his testimony that he was not depressed. It is inconsistent with the evidence of Ms. Lasby, Dr. Stewart and Mr. Wyngaard.⁶¹ I also do not accept that he was "fine" before he returned to Hamilton. Mr. Wyngaard's clinical notes of July 12, 1990 indicate that after two days the Applicant dropped out of the college course. This was the course the Applicant testified that gave him a sense of direction and made his life "fine".

The Applicant testified that after he returned to Hamilton, the difficulties with sleeping and concentration which he had experienced in Lethbridge disappeared. I am not persuaded that the Applicant's difficulties had disappeared after he returned to Hamilton. Dr. Kavalsky's clinical notes and records indicate that the Applicant's psychological problems persisted after he returned to Hamilton. On November 8, 1990, the Applicant attended at Dr. Kavalsky's office to discuss his psychiatric situation. Dr. Kavalsky advised the Applicant to get a psychiatric assessment because he appeared to have difficulty dealing with day-to-day living. The Applicant refused to see a psychiatrist: he was very aggressive and adamantly denied that he had a problem.⁶²

I do not see much difference between the Applicant's pre-accident level of functioning and his level of functioning after September 20, 1992, when weekly income benefits were terminated. His personality, cognitive functioning and emotional behaviour appear to be very much the same. His memory difficulties, sleep disorder, poor concentration and irritability after the accident, which he says prevent him from performing the essential tasks of a car salesman, appear remarkably similar to the difficulties that he experienced before the accident.

The Applicant testified that the sleep difficulties which he experienced in Lethbridge were different from the sleep difficulties he has been experiencing since the accident. He testified that in Lethbridge he was sleeping poorly at night. He was having difficulty getting to sleep because of the problems on his mind following his suicide attempt. The Applicant testified that he would eventually fall asleep at 4:00, 5:00 or 6:00 a.m. and sleep his regular amount of six to eight hours.

He testified that his sleeping pattern changed after the accident. Since the accident, he no longer has any difficulty falling asleep. The problem is getting up. The Applicant testified that since the accident, he generally goes to sleep between 11:30 p.m. and midnight and wakes up 12 to 16 hours later. If he wakes up earlier, he is "wiped out".

I do not accept the Applicant's testimony that the sleep difficulties which he experienced in Lethbridge were different from the sleep difficulties he has been experiencing since the accident. When the Applicant saw Dr. Punthakee, on October 16, 1991, for his left shoulder complaints, he indicated that his sleep difficulties after the accident were similar to the sleep difficulties before. Specifically, he informed Dr. Punthakee that he had a sleep disturbance but "...this he feels is mostly due to the other problems he has on his mind...".⁶³ Further, the results of an overnight study done at the Sleep Disorders Centre of Metropolitan Toronto on July 24, 1993 also indicate that the Applicant's sleep pattern had not changed after the accident.⁶⁴ The results of the study showed that "(t)here was quite dramatic insomnia".⁶⁵ [emphasis added]

In addition to his own evidence, the Applicant relied on the evidence of his aunt and his long time friends, Mr. Ronald Lucas, Mr. Phil Scheiding and Mr. William Brigger, in support of his contention that there were observable changes in his personality or his cognitive and emotional functioning before and after the accident.

The evidence of the Applicant's aunt was adduced by way of an affidavit.⁶⁶ The Applicant has been living with his aunt since December 12, 1991 (after the accident). I did not find her evidence helpful. In her affidavit, she sets out her observations of the Applicant after the accident but says little about his personality before the accident. She says only that he was not irritable or easily upset when he used to visit her before the accident. She does not say when and how often he visited her before the accident.

Mr. Lucas, Mr. Scheiding and Mr. Brigger testified at the hearing. Mr. Lucas is the friend with whom the Applicant stayed when he returned to Hamilton, in August 1990. The Applicant stayed in a back room of a store Mr. Lucas had rented, next to his current store. The Applicant stayed there until early 1991.⁶⁷ Mr. Lucas testified that during this time he would see the Applicant daily. He testified that he did not recall the Applicant having any problems with lack of concentration, sleep, fatigue, irritability or loss of memory before the accident.

I did not find Mr. Lucas' failure to recall these difficulties of the Applicant significant because it appeared, from his testimony, that Mr. Lucas did not pay much attention to the Applicant either before or after the accident. For example, the Applicant testified that after he returned to Hamilton, he had a lot of difficulty with his right hip and he attended for physiotherapy to resolve this problem from October 1990 to February 1991. Mr. Lucas could not recall the Applicant having any hip pain.

The Applicant attended at McMaster University, full-time, from the fall of 1967 to the summer of 1973. Mr. Scheiding and Mr. Brigger attended university with the Applicant and worked closely with him from 1975 to 1980 (during the summers).

I did not find the observations of Mr. Scheiding and Mr. Brigger regarding the Applicant's personality and cognitive and emotional functioning during the period 1975 to 1980 to be helpful. Much has happened to the Applicant since 1981, particularly after May 1, 1989, about which they knew very little. While they testified that they observed changes in the Applicant's personality and cognitive and emotional functioning after the accident, their observations are of limited value for two reasons. First, since May 1, 1989, they have seen the Applicant only on a few occasions (in a social context). They were comparing his personality from the 1970's to his personality after the accident. Secondly, they are not able to differentiate the symptoms of head injury from other health problems such as depression, which may or may not be related to the accident.

The Applicant also relied on the evidence of Dr. Becker and Mr. Bock in support of his contention that changes in his personality or his cognitive and emotional functioning resulted from the accident. Dr. Becker, like Mr. Bock, was of the opinion that none of the Applicant's complaints after the accident, including that of poor concentration, poor short-term memory, and irritability, have their root in the Applicant's pre-accident history, but are related to the accident..

I am unable to give much weight to Dr. Becker and Mr. Bock's opinions on this issue because their opinions are based on information provided to them by the Applicant and, prior to the hearing, neither of them had reviewed and considered the Applicant's pre-accident vocational, medical and psychiatric records. The evidence indicates that the Applicant has not been honest or accurate in reporting his psychiatric history. It is difficult to understand how Dr. Becker or Mr. Bock could give an unequivocal opinion on whether and how the Applicant's personality, cognitive functioning and emotional behaviour has been altered as a result of the accident without having reviewed the Applicant's medical and psychiatric records. I was not impressed with their statements on cross-examination, when informed of some of the information contained in these records, that it did not affect their opinions.

Dr. Becker and Mr. Bock's opinions are at variance with the opinion of Dr. Hanick.

It was Dr. Hanick's opinion, after assessing the Applicant on February 16, 1994 and reviewing his pre- and post-accident medical and psychiatric records, that the Applicant has long suffered a severe personality disorder. It was her opinion that the personality disorder had a substantial impact upon the Applicant and, in turn, compelled him to frequently leave jobs, move about and constantly restart his life. Dr. Hanick was under the impression that prior to the accident, despite this level of clear personality difficulty, the Applicant had been able to work and maintain himself. She also felt that in the interval just prior to the accident, there had been, on the Applicant's part, "...some more consistent effort towards various maintained goals." She concluded therefore that the accident worsened the Applicant's underlying difficulties and problems.⁶⁸

The Applicant relied on Dr. Hanick's opinion in support of his submission that even if he had an underlying personality disorder at the time of the accident, the accident exacerbated the problem and he was entitled to weekly income benefits.

However, Dr. Hanick does not explain what she means when she states that just prior to the accident there had been "...some more consistent effort towards various maintained goals." The evidence before me does not support this impression and Dr. Hanick does not identify the goals she is referring to or the basis of her impression.

Further, Dr. Hanick's impression that, prior to the accident, the Applicant had been able to work and maintain himself notwithstanding his personality difficulty is incorrect. The Applicant's pre-accident work history indicates that since 1981, he has held numerous jobs and has had difficulty holding down a job for any length of time. Further, the Applicant had only worked for one day (March 14, 1990) between May 1, 1989 and the date of the accident (March 16, 1991).⁶⁹I find that at the time of the accident, the Applicant was having difficulty dealing with day-to-day living and would have been unable to perform the essential tasks of a car salesman.

It may be that the accident affected the Applicant's underlying psychological disorder to some extent. However, based on the evidence, I am not satisfied that the Applicant's personality, cognitive functioning and emotional behaviour have been altered significantly as a result of the accident.

In conclusion, I find that, as of September 21, 1992, the Applicant has not suffered a substantial inability to perform the essential tasks of a car salesman as a result of the injuries he sustained in the accident. He is, therefore, not entitled to weekly income benefits after September 20, 1992.

(3) Entitlement to supplementary medical and rehabilitation benefits:

(a) Is the Applicant entitled to be paid for the services of Evergreen Rehabilitation Services Inc.?

The Applicant disputes the refusal by Royal to pay for the services of Evergreen. He seeks an order that the services of Evergreen be reinstated under section 6(1)(c) and (f) of the Schedule. As noted earlier, the Applicant was referred to Evergreen by Dr. Becker.

The requirements for entitlement under section 6(1) of the Schedule were discussed by Senior Arbitrator Frederika Rotter in the decision Richard Mark Plows and Jevco Insurance Company, January 16, 1992, OIC File Nos. A-000175 and A-000588, as follows:

... the criteria which must be met before ...the Insurer is liable to pay for an item...are the following:

(1) it must be a reasonable expense resulting from the accident

(2) it must be required because of the accident

(3) [the applicant's qualified] medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the Insurer so requires.

I agree with these comments.

I propose to consider whether these criteria apply to the Applicant's claim for payment for the services of Evergreen in reverse order.

It is not clear in this case whether Royal requested a statement from the Applicant's medical practitioners regarding the services of Evergreen. In any event, in his report of March 10, 1994, Dr. Becker indicated that case management services of Evergreen were necessary for the Applicant's treatment and rehabilitation.⁷⁰

I must determine whether case management services of Evergreen are required because of the accident.

A case manager may be appropriate, to coordinate an applicant's care, where lengthy treatment or rehabilitation is anticipated or where a number of different health professionals are involved. In this case, I am not satisfied that case management services of Evergreen are required because of the accident. I received no evidence whether further specific assessment, treatment and rehabilitation is anticipated in regard to the injuries that the Applicant sustained in the accident.

Dr. Becker testified that he felt that Evergreen's involvement would have obviated a great deal of difficulty that the Applicant had been experiencing with respect to clinical follow-up and missed appointments. He also indicated that he(Dr. Becker) would have benefited from the services of Evergreen because a number of medical reports were not available to him as the Applicant's case was progressing, and this held back further assessments and treatment of his problems.

Dr. Becker made a number of referrals. Because the Applicant has undergone very extensive medical investigations to determine the cause and extent of his problems, it is difficult to imagine what further assessments are necessary in regard to the injuries he sustained in the accident.

Further, no further rehabilitation is anticipated in regard to the injuries he sustained in the accident. I find that the ongoing treatment and rehabilitation that has been recommended by various health care professionals is a result of the Applicant's pre-existing condition, and not the accident. For example, psychological or psychiatric treatment has been requested as a result of his underlying personality disorder, to enable him to work.⁷¹

Since I have found that case management services of Evergreen are not required because of the accident, I do not need to determine whether they are a reasonable expense.

(b) Is the Applicant entitled to be paid for transportation services, under section 6 of the Schedule?

The Applicant claims reimbursement for expenses he has incurred for transportation as a result of the accident, under section 6(1)(d) of the Schedule. A copy of a list prepared by the Applicant of transportation expenses, for the period December 9, 1991 to July 9, 1993, in the amount of $259.70, was tendered as evidence ("Exhibit 1"). At the hearing, the Applicant indicated that he had updated the list. However, I have not seen the updated list. Accordingly, I will only deal with the Applicant's claim for transportation expenses as listed in Exhibit 1.

Section 6(1)(d) of the Schedule sets out the criteria which must be met to establish an applicant's entitlement to transportation expenses. The section states:

6.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(d) transportation for the person to and from treatment, counselling and training sessions,... [emphasis added]

Where a dispute arises regarding expenses under section 6(1)(d), the onus of proof lies with the insured person or applicant. He or she must prove, on a balance of probabilities, that the expense falls under section 6(1)(d), the expense is required because of the accident, and it is a reasonable expense resulting from the accident.

In this case, evidence was not tendered by the Applicant on this issue. I am left to determine the validity of his claim for transportation expenses from the evidence tendered at the hearing in respect of the disability issue.

Based on the evidence tendered at the hearing in respect of the disability issue, I find that the Applicant is entitled, under section 6(1)(d) of the Schedule, to be reimbursed for transportation expenses that he has incurred to and from the following health care facilities: the offices of Dr. Kofman, the offices of Dr. Haight, the offices of Dr. Teichman, St. Michael's Hospital and Columbia Health Centre. I find that these expenses were required because of the accident, and that they are reasonable expenses resulting from the accident.

The Applicant claimed transportation expenses to and from Toronto General Hospital, the offices of Dr. Berris, the offices of Dr. Yarashevsky, the offices of Dr. Cohen, Dufferin St. Clair Medical Centre, the offices of Dr. Rother and "therapy". It is not clear from the evidence why the Applicant attended at these health care facilities and what, if any, treatment he received there. Therefore, I find that the Applicant is not entitled to be reimbursed for transportation expenses incurred to and from these facilities.

The Applicant also claimed transportation expenses to and from Picton Hospital where it appears that he attended for treatment for injuries that he has sustained subsequent to the accident of March 16, 1991.⁷² There is little evidence about these subsequent injuries, i.e., how they occurred and their relationship to the accident of March 16, 1991. Therefore, I find that the Applicant is not entitled to be reimbursed for transportation expenses incurred by him to and from Picton Hospital.

The Applicant claimed transportation expenses relating to the treatment of his right elbow. It is not clear from the medical records tendered at the hearing if the problems with his right elbow arose as a result of the accident or predated it. The clinical notes and records of Dr. Kavalsky indicate that the Applicant was experiencing pain over his right elbow and forearm before the accident.⁷³ Therefore, I find that the Applicant is not entitled to be reimbursed for transportation expenses incurred by him to and from Mt. Sinai and the offices of Dr. Gordon and Dr. McKee.

Finally, the Applicant also claimed transportation expenses to and from the offices of Dr. Becker (April 7, 1993), Evergreen (April 29, 1993), the offices of Mr. Bock (June 3, 1993) and the offices of Dr. Goldenberg (June 4 and July 9, 1993). The Applicant was assessed but not treated by these health care professionals. The referrals to these health care professionals were made not by the Applicant's treating physicians but by Dr. Becker. The Applicant was referred to Dr. Becker by his solicitors for a medical/legal assessment. These transportation expenses may more appropriately be claimed as out-of-pocket expenses incurred in furtherance of the arbitration under Ontario Regulation 664, rather than under section 6(1)(d) of the Schedule. Accordingly, I find that he is not entitled to be reimbursed for transportation expenses he has incurred to and from these health care facilities, under section 6(1)(d) of the Schedule.

(4) Entitlement to a special award:

The Applicant seeks a special award under section 282(10) of the Act on the basis that Royal unreasonably withheld or delayed payment for the services of Evergreen for case management and for rehabilitation proposed by various health professionals. The Applicant submits that it was unreasonable for Royal to deny payment for rehabilitation when circumstances warranted it.

In this case, Royal's decision to deny payment for the services of Evergreen and vocational rehabilitation was made on June 14, 1993.⁷⁴ Prior to that date, the Applicant had already undergone extensive medical investigations to determine the extent of his problems resulting from the accident. Royal's decision was made after it reviewed the opinions of Dr. Wells, Dr. Kavalsky, Dr. Punthakee, and Dr. Kofman, which suggested that the Applicant was capable of performing the essential tasks of a car salesman without restrictions.⁷⁵ Given this fact and given the Applicant's medical and psychiatric history, which raises a legitimate issue about the relationship between his continuing disability and the accident, I do not find that Royal unreasonably withheld or denied payment for the services of Evergreen and vocational rehabilitation.

The Applicant also seeks a special award under section 282(10) of the Act on the basis that Royal unreasonably withheld or delayed payment of transportation expenses under section 6(1)(d) of the Schedule.

Section 6(7) of the Schedule states that "in the case of a dispute concerning an expense described in clause (1)..(d), the insurer will pay the expense pending resolution of the dispute". Further, section 268(8) of the Act provides:

Where the Statutory Accident Benefits Schedule provides that the insurer will pay a particular statutory accident benefit pending resolution of any dispute between the insurer and an insured, the insurer shall pay the benefit until the dispute is resolved. [emphasis added]

Thus, expenses which fall under section 6(1)(d) are to be paid by the insurer even if it is contesting the applicant's entitlement to those expenses until the dispute is resolved.

The Applicant submitted (and this was not denied by Royal) that Royal has not paid any of the transportation expenses listed by him in Exhibit 1. The expenses were submitted to Royal on July 12, 1993.⁷⁶

Royal gave no reasons for not paying the transportation expenses listed in Exhibit 1, pending resolution of the dispute. No questions were raised by Royal about the validity of the transportation expenses claimed. No claim was made by Royal that the Applicant had failed to provide it with a statement from his medical practitioner, under section 6(4) of the Schedule, or that he had failed to provide Royal with reasonable documentation to support his claim. It was not alleged that the Applicant's claim for transportation expenses raised a serious question of fraud, nor that the claim was unreasonable. In these circumstances, I find that Royal contravened section 268(8) of the Act and section 6(7) of the Schedule and unreasonably withheld payment of transportation expenses. The Applicant is therefore entitled to a special award.

I make this finding even though I have found that the Applicant is not entitled to all of the expenses for transportation listed in Exhibit 1. As has been stated in previous arbitration decisions,⁷⁷ the purpose of section 6(7) is to ensure that a person who is injured in an automobile accident will secure treatment, in a timely fashion, even if there is a dispute in respect of this treatment. Section 268(8) of the Act and section 6(7) of the Schedule clearly contemplate that some applicants will receive certain benefits to which they are ultimately determined to have no entitlement.

Having found that transportation expenses were unreasonably withheld by Royal, I must determine the quantum of the special award. Section 282(10) of the Act allows for a lump sum award of up to 50% of the amount to which the applicant is entitled, together with interest on all amounts then owing to the applicant. In this case, I have found that the Applicant is only entitled to be paid transportation expenses in the amount of $85.80.

Royal is ordered to pay the Applicant a special award of $100.00, inclusive of interest.

(5) Expenses:

The Applicant is entitled to be reimbursed for his expenses reasonably incurred in respect of the arbitration. If the parties are unable to agree on the amount owing, either of them may apply for an assessment of expenses.

Order:

1. The Applicant is not entitled to weekly income benefits from September 21, 1992 onwards.

2. The Applicant is entitled to transportation expenses to and from the offices of Dr. Kofman, the offices of Dr. Teichman, the offices of Dr. Haight, St. Michael's Hospital and Columbia Health Centre.

3. The Applicant is entitled to a special award.

4. The Applicant is entitled to his expenses reasonably incurred in respect of the arbitration.

November 30, 1995

Shemin Manji Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

List of expenses for transportation compiled by the Applicant for the period December 9, 1991 to July 9, 1993

Exhibit 2

Affidavit of Ms. R.P., sworn April 5, 1994

Exhibit 3

Medical Briefs filed on behalf of the Applicant and Royal (2 Volumes)

Exhibit 4

List of expenses incurred for medical disbursements by the Applicant in respect of the arbitration

Exhibit 5

a) Letter dated June 21, 1993 from Royal to the Applicant b) Assessment of Claim by Insurer dated June 14, 1993

Exhibit 6

Records of Mount Sinai Hospital

Exhibit 7

a) Curriculum Vitae of Dr. Henry Berry b) Report of Dr. Berry dated June 6, 1994

Exhibit 8

Report of Sleep Disorders Centre of Metropolitan Toronto dated August 16, 1993

Exhibit 9

a) Letter dated October 10, 1991 from Royal Insurance to the Applicant b) Assessment of Claim by Insurer dated October 11, 1991

Other documents before the Arbitrator, but not marked as exhibits:

Report of Mediator dated April 3, 1992

Report of Mediator dated November 23, 1992

Application for Appointment of an Arbitrator dated March 24, 1993

Response by Insurer dated May 21, 1993

Reply by Insured Person dated June 15, 1993

Letter dated September 7, 1993 from Arbitrator Fred Sampliner, confirming pre-hearing discussions held on August 26, 1993

Order to the Ministry of Health from Arbitrator Sampliner dated September 7, 1993

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. 2Testimony of the Applicant and Exhibit 3, Tab 1
3. 3Exhibit 3, Tab 1
4. 4Ibid.
5. 5Ibid.
6. 6Ibid.
7. 7Exhibit 3, Tab 10
8. 8Testimony of Ms. Denice Tanner, claims representative, Royal
9. 9Exhibit 9
10. 10Testimony of Denice Tanner and Exhibit 3, Tab 18K
11. 11Report of Mediator dated April 3, 1992
12. 12Testimony of Denice Tanner and Exhibit 3, Tabs 18K, 18M, 18P and 19
13. 13Exhibit 3, Tab 4
14. 14Exhibit 3, Tab 11
15. 15Exhibit 3, Tabs 18V and 18W
16. 16Testimony of Denice Tanner
17. 17Testimony of Dr. Becker
18. 18Exhibit 3, Tab 9
19. 19Exhibit 3, Tab 6 and Exhibit 5
20. 20Ibid.
21. 21Exhibit 3, Tab 18I
22. 22Exhibit 3, Tabs 1 and 5
23. 23Exhibit 3, Tabs 1 and 10
24. 24Exhibit 3, Tab 18M
25. 25Exhibit 3, Tab 18P
26. 26Exhibit 3, Tab 8
27. 27Exhibit 3, Tab 5
28. 28Exhibit 3, Tab 20
29. 29Exhibit 3, Tab 20 and Exhibit 8
30. 30Exhibit 3, Tab 7
31. 31Testimony of the Applicant
32. 32Exhibit 3, Tab 16
33. 33Exhibit 3, Tab 1
34. 34Testimony of the Applicant and Exhibit 3, Tab 9
35. 35Exhibit 3, Tab 18C
36. 36Exhibit 3, Tab 16
37. 37Exhibit 3, Tabs 10 and 13
38. 38Exhibit 3, Tabs 16 and 18B
39. 39Testimony of the Applicant
40. 40Exhibit 3, Tab 16
41. 41Exhibit 3, Tab 15
42. 42Testimony of Mr. Bock and Dr. Becker, Exhibit 3 Tab 7
43. 43Exhibit 3, Tab 16
44. 44Ibid
45. 45Testimony of the Applicant and Exhibit 3, Tab 13
46. 46Exhibit 3, Tabs 13, 14 and 15
47. 47Ibid.
48. 48Exhibit 3, Tabs 14 and 15
49. 49Exhibit 3, Tab 15
50. 50Exhibit 3, Tab 14
51. 51Ibid.
52. 52Ibid.
53. 53Exhibit 3, Tab 13
54. 54Exhibit 3, Tab 14
55. 55The Applicant's testimony and Exhibit 3, Tabs 14 and 15
56. 56Exhibit 3, Tab 14
57. 57Ibid.
58. 58Exhibit 3, Tab 15
59. 59Ibid.
60. 60Exhibit 3, Tabs 13, 14 and 15
61. 61Exhibit 3, Tabs 13 and 15
62. 62Exhibit 3, Tab 10
63. 63Exhibit 3, Tab 19 (Volume 2)
64. 64Exhibit 8
65. 65Exhibit 3, Tab 20
66. 66Exhibit 2
67. 67It is not clear from the evidence when the Applicant left. The Applicant testified that he left in November 1991. Mr. Lucas testified March or April. However, it is apparent from Mr. Lucas' testimony that the Applicant was not living with him at the time of the accident.
68. 68Exhibit 3, Tab 16
69. 69Testimony of the Applicant
70. 70Exhibit 3, Tab 9
71. 71Exhibit 3, Tab 16
72. 72Exhibit 3, Tab 2
73. 73Exhibit 3, Tab 10
74. 74Exhibit 3, Tab 6 and Exhibit 5
75. 75Testimony of Ms. Denice Tanner
76. 76Exhibit 1
77. 77Patrick White and Pilot Insurance Company, June 6, 1995, OIC File No. A-008462, at page 18 and George David Quarrington and Jevco Insurance Company, June 17, 1995, OIC File No. A-010804, at page 24