Neutral Citation: 1995 ONICDRG 180

File No.: A-012509

ONTARIO INSURANCE COMMISSION

BETWEEN:

MAURICE KENNEDY

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Maurice Kennedy, was injured in a motor vehicle accident on January 21, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer on January 20, 1994. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits pursuant to section 12 of the Schedule after January 20, 1994?

2. Is the Applicant entitled to case management and psychological counselling services pursuant to section 6 of the Schedule?

3. Is the Applicant entitled to medical and rehabilitation expenses pursuant to section 6 of the Schedule for a diet program.

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

Result:

1. The Applicant is entitled to weekly income benefits pursuant to section 12(1) of the Schedule for one week starting January 21, 1994. The Applicant is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule for a six month period commencing February 14, 1995, together with interest on the outstanding benefits, as provided for in section 24(4) of the Schedule.

2. The Insurer will pay for case management or vocational counselling services in an amount not to exceed $1,500.

3. The Insurer will pay for the cost a six month diet program.

4. The Applicant is entitled to his expenses incurred with respect to the arbitration.

Hearing:

The hearing was held in St. Catharines, Ontario, on November 6, 7 and 8, 1995.

Present at the Hearing:

Applicant:

Maurice Kennedy

Applicant's Representative:

David W. Black Barrister and Solicitor

Insurer's Representative:

Martin Tiidus Barrister and Solicitor

Witnesses:

Betty-Ann Blackwell, Maurice Kennedy, Dr. Ponnampalam, Dr. Hall

The parties filed nine exhibits and four briefs containing over 100 documents. Those documents in the briefs which were admitted as exhibits were so marked at the hearing.

Evidence and Findings:

On January 21, 1991, Maurice Kennedy was injured in a motor vehicle accident on his way home from work. He was stopped in his 1983 Oldsmobile Cutlass in a line of traffic when he was struck from behind. The force of the impact drove his vehicle into the vehicle in front of him and broke the driver's seat from its moorings. Mr. Kennedy was shaken up and driven home. He does not remember how he got to the emergency department of the Welland County General Hospital. He was met at the hospital by his family doctor, Dr. Ponnampalam, and discharged from the hospital the same day with a diagnosis of slight concussion and contusion of multiple muscle groups.

At the time of the accident, Mr. Kennedy was 39 years old and worked for a company which had a contract with General Motors to supply food services for GM's plants in the St. Catharines area. He was head chef and managed a number of employees. Mr. Kennedy attempted to return to work the day after the accident and on two other occasions, but was unable to complete a day's work due to the pain from his injuries. He has not worked since the accident.

Initially, Mr. Kennedy had pain in his neck, shoulders, lower back and right leg. After two years, Mr. Kennedy reported to Dr. Gold, one of the orthopaedic surgeons who examined him for the Insurer, that his neck pain had largely resolved. Although he still had neck pain, the pain in his lower back and the pain radiating into his right leg were his major complaints. On February 14, 1995, he underwent back surgery. Mr. Kennedy testified that the surgery did not alleviate his pain.

Mr. Kennedy's automobile insurer paid accident benefits, including supplementary medical and rehabilitation and loss of income benefits, until January 20, 1994 and then terminated all benefits. Mr. Kennedy claims that his condition has not changed since the motor vehicle accident and that all benefits should continue.

Applicable law:

Section 6 of the Schedule sets out the insurer's obligations to pay supplementary medical and rehabilitation expenses during a period of ten years from the accident. With respect to the claims made by Mr. Kennedy the relevant sections are:

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,

(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists;

(c) rehabilitation, life-skills training and occupational counselling and training;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.

Section 12(5) of the Schedule sets out the insurer's obligations to pay loss of income benefits as follows:

The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.²

The tests for entitlement for section 6 rehabilitation benefits and for section 12(5)(b) loss of income benefits are different. An insured may not be entitled to loss of income benefits under section 12(5)(b) because the injury does not continuously prevent him from engaging in suitable employment, but he may be entitled to supplementary medical and rehabilitation benefits because the expense is reasonable and necessary because of the accident.

Employment history and education:

Mr. Kennedy was educated in Northern Ireland. After high school, he completed one year of pre-apprenticeship chef training. He then attended a college of catering at the City and Guilds of London Institute, a trade program operated in Great Britain. Graduates in the chef courses obtain certificates which are recognized in the food preparation business in Canada. Mr. Kennedy finished the chefs program in three years. He took courses in areas such as nutrition, hygiene, costing and organization. With the certificates he obtained, he is qualified to be a chef and to run a food operation. Had he taken a third certificate, he would have been qualified to manage a hotel.

Mr. Kennedy has worked steadily since his arrival in Canada in 1973. He has progressed to more responsible positions in restaurants, hotels and institutions. From October 1988 to the time of the accident, he worked for TRS Food Services. TRS had a contract to provide food services to GM in St. Catharines. Mr. Kennedy was Chef and Food Services Coordinator. He was responsible for purchasing, budget control and staff management. As he was the only man employed in food services, he also did most of the heavy work. His day started at 5:00 a.m. preparing 20 to 30 gallons of soup.

Pre-accident health:

Mr. Kennedy's pre-accident history shows a psychological dependency on health care providers. In October 1993 Dr. Margulies, a psychiatrist retained by the Insurer, found that Mr. Kennedy looked to others to care for him. He found that Mr. Kennedy was unaware of this characteristic and that he passively transferred control to significant others to whom he looked for direction. I accept this finding. In my view, it is consistent with the history of Mr. Kennedy's health, helps explain his current problems and offers insight as to the kind of rehabilitation treatment Mr. Kennedy is entitled to under section 6 of the Schedule.

The clinical notes and records of Mr. Kennedy's family doctor, Dr. Ponnampalam, begin September 17, 1990. In the four month period beginning September 17, 1990 and ending on the day of the motor vehicle accident, Dr. Ponnampalam saw Mr. Kennedy 11 times for the following: pseudo-angina pectoris, an emergency visit to hospital following a motor vehicle accident in October 1990, fluid retention, hypertension, obesity, hiatus hernia, peptic gastritis, lumbosacral strains, sleep disorder, anxiety and depression.

In the spring before the motor vehicle accident, Mr. Kennedy was hospitalized in intensive care for four or five days for investigation of heart problems. He was off work from May 26 to August 10, 1990. He underwent an angiogram, which was normal. Neurological testing was also normal. In August of 1990, Dr. Newman, a neurologist, reported:

At present I see no neurological basis for this man's left upper extremity discomforts. I am also cautious when I see this type of finger to nose coordination pattern since this is more commonly related to nervous, tension, stress load factors than to actual tendonitis and other neuromuscular problems.

Dr. Ponnampalam explained that pseudo-angina pectoris is false angina. Stress and anxiety cause the patient to have symptoms of angina, but there is no coronary heart disease. Dr. Ponnampalam also explained that the symptoms of lumbo-sacral strain arising out of the October 1990 motor vehicle accident had mostly resolved by the time of the January 21, 1991 motor vehicle accident.

Post-motor vehicle accident health and treatment:

Following the motor vehicle accident of January 1991, Mr. Kennedy could not return to work because of pain in his neck and shoulders and severe pain in his low back radiating into his right leg down to the foot. One month following the accident he started physiotherapy at the Welland County General Hospital two or three times a week. In July 1991 he was discharged. The physiotherapy gave him no relief. He then tried chiropractic treatment for a few months, again with no relief. He had minimal gains from attending at the Canadian Back Institute for six months.

Mr. Kennedy took courses at Niagara College to reintegrate himself into the community and to upgrade his education. In the fall of 1991 and 1992 he took videography and watercolour painting. From September 1992 to June 1993 he took English and math to upgrade his qualifications for entrance to college. He attended courses five days a week from 8:30 to 11:30 a.m. From December 1992 to March 1993 he took a psychology course one night a week and a course on teaching adults another night. He continued taking the teaching adults course one night a week throughout the spring and fall of 1993 and the winter of 1994. He also took a course one night a week in computer concepts in the fall of 1993. At Christmas 1992 Mr. Kennedy won the faculty award for outstanding achievement. He passed all his courses.

Mr. Kennedy said that initially he attended all his classes. He said that as time progressed, he missed a lot of time. His lack of attendance did not adversely affect his grades. In the last three courses he attended in the fall of 1993 and the winter of 1994, his grades were 63 per cent in computer concepts, 100 per cent in education instruction methods and 94 per cent in education measurement/evaluation.

In September 1991 the Insurer referred Mr. Kennedy to Rehabilitation Management Inc. In a report dated October 22, 1991 the caseworker recommends:

Mr. Kennedy is medically and vocationally considered ready for a modified return to work should such an opportunity exist and should the opportunity accommodate his physical difficulties.

Modified work was not available. Rehabilitation Management Inc. referred Mr. Kennedy to Niagara Rehab for a Vocational Evaluation Report. In March 1992, the therapist reported that Mr. Kennedy was not currently employable. She noted that Mr. Kennedy displayed inappropriate illness behaviour which indicated poor psychometrics (measurements of psychological variables such as intelligence, aptitude, behaviour and emotional reactions) and a need for a psychological evaluation. The therapist also said:

It is important to interpret these measures with caution as they do not indicate that pain does not exist. They merely point to inconsistencies between diagnosis and reported pain symptoms; and to the need for the role of pain to be more indepthly [sic] examined in the client's life.

Mr. Kennedy was also examined by several orthopaedic surgeons. On April 2, 1991, Dr. Rittenhouse reported to Dr. Ponnampalam that Mr. Kennedy was free to go back to work when he felt up to it. On August 17, 1991, Dr. Robert suggested to Dr. Ponnampalam that Mr. Kennedy return to work immediately. On December 23, 1991, Dr. Gold reported to the Insurer that if Mr. Kennedy's imaging studies were found to be normal, he should be able to return to work in two to four weeks.

Dr. Ponnampalam was ill for most of 1992. During this period Mr. Kennedy saw a number of general practitioners at walk-in clinics. Dr. Fox arranged for a bone scan and a CT scan. The CT scan of the lumbar vertebrae revealed a small central disc protrusion at L4-5. In September 1992, Dr. Ponnampalam referred Mr. Kennedy to Dr. Kwok, another orthopaedic surgeon. Dr. Kwok arranged for an MRI examination. A myelogram could not be performed because Mr. Kennedy is allergic to the iodine dye used in myelograms.

The MRI was performed on October 2, 1992 and showed mild central disc bulging at the L5 S1 and L4-5 levels.

After reviewing the films with a radiologist, Dr. Kwok concluded that the findings were minimal and that there were no signs of compression of the neural openings. Central disc bulging does not necessarily mean the disc will cause pain. A 1990 study prepared by members of the Departments of Orthopaedic Surgery and Radiology at George Washington Medical Center shows that a significant number of individuals who have never had low back pain will demonstrate a substantial disc abnormality on magnetic resonance images of their low back. However, in view of Mr. Kennedy's significant complaint of symptoms, Dr. Kwok arranged for a discogram. Since Mr. Kennedy was allergic to iodine, the procedure was carried out using saline solution.

At the hearing, Dr. Hall explained that a saline discogram is performed by inserting needles into the suspected discs. A saline solution is then injected into each disc. A normal disc will take one to one and a half centimetres of fluid before resisting. An abnormal disc will take more. An injection into an abnormal disc will also reproduce the pain the patient is complaining of.

Mr. Kennedy underwent the saline discogram in hospital on May 17, 1993. The discs at L3-4, L4-5 and L5-S1 were to be examined, but after the examination of the L4-5 disc, Mr. Kennedy said he was "cut in two" with pain and he refused to have the L5-S1 disc examined. Dr. Kwok was of the view that the pain expressed by Mr. Kennedy was quite similar to his usual back and leg pain, and that the L4-5 disc was the disc which was causing him problems. Dr. Kwok also reported that Mr. Kennedy was hospitalized for about three days and that this was quite unusual as most patients who undergo a discogram procedure are discharged on the same day. Dr. Hall testified that Mr. Kennedy's expression that he was "cut in two" was inappropriate according to his experience. He also testified that when he is examining discogram reports, he looks for an indication that the pain which is reproduced is "identical to", as distinguished from "similar to", the pain which the patient is suffering.

Dr. Kwok reported that a discectomy and exploration of the L5 nerve root on the right side was appropriate. However, because Mr. Kennedy was extremely nervous and anxious, he was concerned that there was a much higher possibility of not having an ideal clinical response to surgical intervention. Surgery was arranged for the fall of 1993 and then postponed to the winter of 1994 because of hospital cutbacks.

In October 1993 the Insurer arranged for Dr. Margulies, a psychiatrist, to examine Mr. Kennedy. Dr. Margulies found that Mr. Kennedy was a passive and needy individual who, after the accident, rapidly regressed into a state of increased dependency where he looked to others to care for him.

In January 1994 the Insurer arranged for Dr. Hall, an orthopaedic surgeon, to examine Mr. Kennedy. Dr. Hall reported to the Insurer that Mr. Kennedy could return to work as a chef. He wrote:

In my own view I think it is highly unlikely that this patient will in any sense be benefitted by surgery, and I think there is a very substantial chance that he will be made worse by surgery. He is expecting some type of, 'Miracle cure" and is simply not going to find it. I am taking the unusual step of writing to Dr. Kwok to be sure that he is at least aware of the existence of the report made by Dr. Margulies.

As a result of Dr. Hall's intervention, Dr. Kwok postponed the surgery and reassessed the situation. He performed surgery one year later on February 14, 1995.

It is not clear what took place in the operation. Mr. Kennedy testified that the nerve sack and disc had adhered to the bone and that it was removed. At the hearing Dr. Ponnampalam and Dr. Hall examined Dr. Kwok's post-operative record. Dr. Ponnampalam assumed that the disc was removed but could not find any note of that in the post-operative record. Dr. Hall said that in 95 per cent of these operations, the disc or part of the disc is removed. However, the disc was not mentioned in the record and there was no evidence of anything compressing the nerve root. He noted that bone was removed from a window through which the nerve root passes.

Three months after the surgery, Dr. Kwok reported that Mr. Kennedy indicated that he did not have any significant improvement, but that upon questioning him in detail, he did admit that his right leg pain had subsided. He reported that . . . because of the patient's dependent personality, sometimes it was extremely difficult to delineate the patient's symptoms as psychological ones or as somatic ones."

Mr. Kennedy testified that his pain was about the same, although it might have moved over more to the middle of the back. He also said that his leg is weaker now and that it has buckled under him since the surgery.

Entitlement to weekly income benefits pursuant to section 12(5)(b):

Mr. Kennedy said that he was interested in teaching cooking and that he would take such a position if one was available. He said that his only limitation was demonstrating when lifting or bending was required. He said that he needed to frequently change positions from sitting and standing to relieve his pain. Teaching would allow for this. The vocational testing indicated that Mr. Kennedy has strong social skills and that he is suited for teaching. My impression from observing Mr. Kennedy as a witness supports this conclusion.

The Rehabilitation Management Inc. caseworker, Ms. Blackwell, testified that teaching was appropriate to Mr. Kennedy's physical abilities. She testified that she contacted potential employers and, with the exception of public school boards, was told that Mr. Kennedy's certificates from the City and Guilds of London Institute and Mr. Kennedy's work experience would qualify him to teach at community colleges and trade schools. Ms. Blackwell testified that teaching would probably pay more than Mr. Kennedy's salary of $26,000 per year as a chef . She said the only problem with teaching was availability of positions. Ms. Blackwell testified that although teaching positions exist in the Niagara area, there were no openings and none were anticipated.

Dr. Ponnampalam testified that Mr. Kennedy was capable of performing light sedentary work in January 1993.

After the February 1995 operation, Dr. Kwok reported that Mr. Kennedy was capable of sedentary work as long as he was given the opportunity of resting when necessary.

I find that teaching cooking and how to manage a food preparation operation at the community college level is a reasonably suitable occupation for Mr. Kennedy within the meaning of section 12(5)(b) of the Schedule. The only question is whether the lack of openings in teaching is a factor to consider in determining whether Mr. Kennedy has established that his injuries prevent him from engaging in employment for which he is reasonably suited.

In Debra MacPherson and Pilot Insurance Company, June 30, 1995, OIC File No. A-006195 (under appeal), Arbitrator Makepeace said:

Court decisions under the predecessor provisions have stated that the Insurer need not show that a suitable job is actually available. Since section 12(5)(b) makes no reference to job availability, I am inclined to think the same principle applies. Nonetheless, the "employment or occupation for which the insured person is reasonably suited" must be an actual job, and not one that is merely notional.

In Francis Mills and Canadian General Insurance Company, July 6, 1995, OIC File No. A-005599 (under appeal), Senior Arbitrator Naylor said that "[t]he statutory requirement focuses primarily on an applicant's functual limitations, and not on the broader availability of work in the job market."

In Shirley Reid and Continental Insurance Company, July 27, 1995, OIC File No. A-006022, Arbitrator Sampliner found that the job market may be relevant to a section 12(5)(b) determination in the limited context where additional education or training may be required where, during the period of disability, new professional qualifications are required.

In this case I find that teaching cooking is a suitable occupation for Mr. Kennedy for which he is qualified without further training or experience. The lack of openings in the profession at this time is not a relevant consideration to my determination that he has failed to establish that his injuries continuously prevent him from engaging in any occupation for which he is reasonably suited by education, training or experience. Accordingly, he is not entitled to benefits pursuant to section 12(5)(b) for the period immediately after January 20, 1994.

However, Mr. Kennedy did undergo back surgery on February 14, 1995, and he was incapable of suitable work for the recovery period after the operation. I am satisfied that Mr. Kennedy experienced lower back pain as a result of the motor vehicle accident of January 21, 1991, that he did not consciously magnify his pain and that he thought the surgery would help him. Considering that his decision to undergo surgery was supported by Dr. Ponnampalam and Dr. Kwok, surgery was a reasonable option for Mr. Kennedy. I find that the surgery was attributable to the accident.

Dr. Hall opined that Mr. Kennedy should have recovered from the surgery in six weeks. Dr. Kwok performed the surgery and thought Mr. Kennedy would need six months. Dr. Hall was unable to determine the extent of the operation from reading Dr. Kwok's post-operative notes. I prefer Dr. Kwok's opinion as to how long it should have taken Mr. Kennedy to recover.

Mr. Kennedy is therefore entitled to weekly income benefits for 26 weeks from February 14, 1995.

Supplementary Medical and Rehabilitation Benefits:

Before the accident, Mr. Kennedy had stress-related problems. He was hospitalized and investigated for heart disease and both Dr. Newman and Dr. Ponnampalam commented that his false angina pectoris was a result of stress and not heart disease. After the accident, the care providers and doctors commented on the psychological aspects of Mr. Kennedy's problems. Ms. Blackwell wrote that Mr. Kennedy had an emotional block about investigating job market conditions, training requirements and physical demands of teaching. Before the February 1995 surgery, Dr. Kwok was concerned about Mr. Kennedy's psychological response to surgery because of what he found to be an extremely unusual response to the discogram. Dr. Margulies diagnosed a passive dependent personality.

In my view, in order to determine entitlement to supplementary medical and rehabilitation benefits, it is necessary to distinguish those conditions which pre-dated the accident from those conditions which were caused by or aggravated by the accident. Although there was a psychological component to Mr. Kennedy's health problems which pre-dated the accident, I find that immediately before the accident, Mr. Kennedy was free of back and leg pain and he was employed.

I find that the accident was the cause of his back and leg pain and was the cause of his inability to return to work. He is entitled to benefits under section 6 of the Schedule during the ten year period following the accident as long as the expense is a reasonable expense resulting from the accident and as long as it is required because of the accident.³ In my view, one measure of whether the expense is reasonable is whether there is a reasonable possibility that the treatment plan submitted will alleviate a condition caused by the accident. In this case the conditions caused by the accident are back and leg pain and loss of employment.

Case Management, Psychological Services:

Rehabilitation Management Inc. provided case management services from September 5, 1991 to January 13, 1994. Ms. Blackwell submitted a rehabilitation plan. I deal with her recommendations in order.

1. Continued physiotherapy with Kay Yardley. Mr. Kennedy underwent physiotherapy treatments from April 1992 to October 1995. Mr. Kennedy's evidence was consistent that his condition has not improved since the accident. I heard no evidence that he benefitted from physiotherapy. I am not satisfied that continued physiotherapy is reasonable.

2. Purchase of YMCA membership. Mr. Kennedy had a membership at one time. I heard no evidence that he benefitted from such a membership. I am not satisfied that the purchase of a membership is reasonable.

3. Appetite suppressant. I heard no evidence that Ms. Blackwell was qualified to recommend a drug prescription. I heard no evidence from Dr. Ponnampalam or Mr. Kennedy as to the reasonableness of such a prescription.

4. Diet Centre Weight Loss Program. Mr. Kennedy attended Diet Control Centre from September 1993 to January 1994 on Mondays, Wednesdays and Fridays for five to ten minutes each visit. He started at 235 lbs. and lost 45 pounds by Christmas. The Insurer argues that the expense of $30 per week is unreasonable because Mr. Kennedy put all the weight back on shortly after leaving the program. In my view the expense is reasonable. Mr. Kennedy underwent a number of treatments for his back pain, including surgery, and he testified that the loss of weight was the only thing that eased his back pain. All the doctors recommended weight loss. Now that surgery is out of the way and there appears to be no other treatment to ease the back pain, I believe Mr. Kennedy will have more motivation to keep his weight down.

5. Psychological assessment with a psychologist knowledgeable in pain management. Mr. Kennedy was counselled by Brian Cooper and Eugene Serwatiak concerning anxiety and depression. I heard no evidence as to whether he was counselled as to pain management. I heard no evidence as to the likelihood of success of pain management counselling. Mr. Kennedy has not shown that the services of a psychologist knowledgeable in pain management are reasonable.

Having regard to the psychological component to Mr. Kennedy's ongoing pain, psychological counselling may be reasonable. In my view, the onus is on the applicant to show that the counselling is reasonable and that it is directed at alleviating the conditions caused by the accident, that is, back pain and loss of employment. This may entail a psychologist submitting to the insurer a treatment plan setting out particulars including time, cost and likelihood of success.

1. Referral for Job Development and Placement to Northern Lights Vocational Services. This 16 week program costs $12,130 and includes four weeks of trial work and a further six weeks of trial work at three days per week. Northern Lights provides insurance to protect trial employers against WCB claims and additional premiums. I heard no evidence as to the likelihood of Mr. Kennedy finding suitable employment at the end of this referral. I am not satisfied that the expense is reasonable.

2. Vocational Rehabilitation Case Management. Rehabilitation Management Inc. provided case management from September 5, 1991 to January 13, 1994. In her report to the Insurer dated July 2, 1992, Ms. Blackwell reported on her efforts in identifying appropriate occupations for Mr. Kennedy where he can use and build on the skills he already possesses. These occupations include:

• Consultant with hospitality consulting firms. I heard evidence that this is a growing field.

• Food service supervisor. Niagara College offers a Food Service Supervisor two year program. Graduates typically find employment in nursing homes and hospitals. Mr. Kennedy expressed an interest in working with the elderly. He also expressed an interest in working in hospitals.

• Purchasing agent. I heard evidence that Mr. Kennedy might find employment as a purchasing agent in a hotel. He might have to complete a purchasing course at Ryerson or George Brown College.

More than four years have passed since the accident. I heard little evidence of efforts by Mr. Kennedy to find employment. In my view, case management services at this point are reasonable as long as they are directed at Mr. Kennedy finding employment. Ms. Blackwell has the Niagara Rehab Vocational Evaluation Report of March 1992 and the results of her own investigations to assist her in pursuing training and employment for Mr. Kennedy. If after a reasonable time Mr. Kennedy is unable to find suitable employment, he should consider submitting an education or training plan to the Insurer which sets out the likelihood of finding employment after completion of the education or training. If Ms. Blackwell is not qualified to perform this service, a vocational counsellor should be retained. For the assistance of a vocational counsellor or a case manager in this matter I use the figures suggested by Ms. Blackwell for case management of a maximum of 15 hours at a maximum of $100 per hour.

Special Award:

The Applicant claims a special award pursuant to section 282(10) of the Insurance Act. This section allows an arbitrator to make a special award where the insurer has unreasonably withheld or delayed payments.

The Applicant argues that his problems with the Insurer stem from improper interference on the part of Dr. Hall in his treatment. Dr. Hall's examination lead to the termination of Mr. Kennedy's benefits and Dr. Hall's letter to Dr. Kwok lead to the postponement of Mr. Kennedy's back surgery for one year.

I do not agree that Dr. Hall's writing to Dr. Kwok was improper. At the time Dr. Hall examined Mr. Kennedy, the Insurer was still paying benefits. The purpose of the examination was to adjust and assess Mr. Kennedy's claim. I see nothing improper in doctors sharing information when the information is gathered for the purpose of adjusting the claim. Dr. Kwok, in his letter of May 25, 1995 to counsel for the Applicant, expressed his appreciation for Dr. Hall sharing his information. My view may have been different if I thought the dominant purpose of Dr. Hall's examination was to gather information to defend Mr. Kennedy's claim.

Further, I do not find that the Insurer has unreasonably withheld or delayed payments. In my view, Mr. Kennedy's entitlement to further benefits was a question of judgment and the position taken by the Insurer was not unreasonable.

Order:

1. Mr. Kennedy is entitled to weekly income benefits pursuant to section 12(1) of the Schedule for the week of January 21, 1994 together with interest on the outstanding benefits, as provided in section 24(4) of the Schedule.

2. Mr. Kennedy is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule for the 26 week period commencing February 14, 1995, together with interest on the outstanding benefits, as provided in section 24(4) of the Schedule.

3. The Insurer will pay for case management directed at employment or for a vocational counsellor. This expense shall not exceed $1,500.

4. The Insurer will pay for the cost of a diet program for six months. This expense shall not exceed $780.

5. Mr. Kennedy is entitled to his expenses incurred with respect to this arbitration.

December 8, 1995

William J. Renahan Arbitrator

Date

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. 2The hearing proceeded on the assumption that Mr. Kennedy was entitled to benefits under section 12(1) for the "156 week" period mentioned in section 12(5)(b). I received brief submissions as to whether "156 weeks" in section 12(5)(b)means "156 weeks from the date of the accident" or "156 weeks of benefits". I prefer the reasons expressed in Pina Coles and Dominion of Canada General Insurance Company, February 13, 1995, OIC A-007416 (under appeal). Accordingly, Mr. Kennedy is entitled to weekly income benefits pursuant to section 12(1) of the Schedule for the week of January 21, 1994.
3. 3Richard Mark Plows and Jevco Insurance Company, January 16, 1992, OIC File Nos. A-000175 and A-000588, Senior Arbitrator Rotter, appeal decision dated May 22, 1992, OIC File Nos. P-000175 and P-000588.