Neutral Citation: 1995 ONICDRG 188

File No.: A-010327

ONTARIO INSURANCE COMMISSION

BETWEEN:

BAHMAN MEHRANI

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Bahman Mehrani, was injured in a motor vehicle accident on November 20, 1990. He applied for and received statutory accident benefits from the Insurer, Wellington Insurance Company, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by the Insurer on November 20, 1993. 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 Mr. Mehrani entitled to weekly income benefits after November 20, 1993, pursuant to section 12(5) of the Schedule?

2. If Mr. Mehrani is entitled to such benefits, for how long should they have been paid or are they ongoing?

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

Result:

1. Mr. Mehrani is entitled to weekly income benefits until January 29, 1994.

2. Mr. Mehrani is entitled to his costs of the arbitration.

Hearing:

The hearing was held in Toronto, Ontario, on October 23, 24 and 25, 1994, before me, M. Guy Jones, Arbitrator.

Present at the Hearing:

Applicant:

Bahman Mehrani

Applicant's

Brian A. Horowitz

Representative:

Barrister and Solicitor

Dan Dishi, student-at-law

Insurer's

Todd McCarthy

Representative:

Barrister and Solicitor

Insurer's

Feroza Bobert

Officer:

Interpreter:

Janneh Kermanshahi, Omni-Com Interpreters

Proceedings were recorded by Juanita Eggens of Lafontaine Reporting Services.

Witnesses:

Bahman Mehrani, Dr. Javad Sattarian, and Robert D. Katz

Exhibits:

Ten exhibits were filed.

The Facts:

On November 20, 1990, 57 year old Bahman Mehrani was involved in a motor vehicle accident. His vehicle was struck on the left side by another vehicle. Mr. Mehrani's automobile went off the road, rolled over, and ended up in a ditch.

Mr. Mehrani suffered numerous serious injuries as a result of the accident, including broken ribs, three fractures to his pelvis, multiple fractures to his left fibula, and a pulmonary contusion. In addition, he suffered numerous soft tissue injuries, primarily to his neck, shoulders and low back.

Mr. Mehrani was initially taken to the Palmerston District Hospital and then transferred to the Sunnybrook Hospital. He remained at Sunnybrook for approximately 45 days, a considerable part of which time was spent in the intensive care unit.

He was discharged from the hospital on January 5, 1991. However he returned to the hospital on February 24, 1991, because of an accumulation of fluid around his heart and left lung. The fluid was drained and he was discharged from hospital on February 28, 1991.

Since that time, Mr. Mehrani has made a fairly good recovery from the fractures suffered in the accident. With some relatively minor problems, the broken bones have healed in a timely fashion. There was some complication regarding the pulmonary contusion and the fluid around the lung, however these were resolved short of the 156-week post-accident period at which time the weekly income benefits were cut off by the Insurer.

What did not resolve, according to Mr. Mehrani, were some of the soft tissue injuries he suffered in the accident. More specifically, Mr. Mehrani testified that he has continued to suffer severe pain in the areas of his neck, shoulders, low back and legs. In addition, he has suffered headaches, has been unable to sleep properly since the accident and has become depressed. Furthermore, he has become fearful of driving. As a result of these ongoing problems Mr. Mehrani claims he has been unable to return to work and accordingly he is claiming ongoing weekly income benefits pursuant to section 12(5) of the Schedule.

The question to be addressed, therefore, is: has Mr. Mehrani established that the injuries he suffered in this motor vehicle accident continuously prevented him from engaging in any occupation or employment for which he is reasonably suited by eduction, training or experience.

Previous employment

Mr. Mehrani was born in 1933 in Iran. He attended high school there and then had two years of military service, during which time he supervised repairs of heavy and light machinery. Following his military service he was briefly involved in an export/import business. He subsequently went to Germany where he learned German. He attended university in Germany and obtained a degree in mechanical engineering. He then commenced employment in Germany and with the Ford Motor Company in Germany, where he became a supervisor. His duties included diagnosing problems with various machinery.

Following this Mr. Mehrani apparently became involved in business importing carpets from Iran into Germany. He continued with this occupation for three years or so.

He then returned to Iran. He worked for approximately 17 years for the Iran National Car Company, which I understand was associated with Chrysler Corporation. During the last seven years or so of this employment, he was the director in charge of ordering all parts for the corporation.

In 1979 Mr. Mehrani lost his job with the Iran National Car Company because of the revolution occurring in Iran at that time. He then started work in the land development business. He and some partners bought land, built buildings on the land and then sold them. He did this for a number of years.

Mr. Mehrani then left Iran and after staying six months or so in Turkey, he emigrated to Canada, arriving in late 1987.

When he arrived in Canada, Mr. Mehrani was fluent in Farsi and German. However, he had almost no experience with the English language. He therefore took a three-month course in English while waiting for a work permit, which he apparently obtained in September 1988.

Mr. Mehrani obtained his first employment in Canada in April 1989 when he was hired as a courier with UPX Company. This job involved driving a car, delivering letters and parcels. He did this for a few months before moving to the Rabbit Courier Company near the end of 1989.

The actual duties that Mr. Mehrani performed at Rabbit Courier are somewhat unclear. What does appear clear is that from the end of 1989 through May 1990 he acted as a courier, working five days a week. In May 1990 it appears that his duties changed. The evidence is conflicting as to what those duties were up to the date of the accident, November 20, 1990. It is clear that during this period his duties became somewhat more administrative in nature. He did dispatching of other couriers as well as dealing with public relations with the company's overseas clients. It is worthy of note that Rabbit Courier employed almost entirely Iranian personnel and therefore Mr. Mehrani was able to function in the Farsi language as well as in German with the overseas customers.

In terms of his actual duties at Rabbit Courier, Mr. Mehrani, in his application for accident benefits, indicated in the job description section of the application that he was:

In charge of public relations with our customers and other employer's accounting.²

I also note that the Ontario Automobile Insurance Employer's Confirmation of Income form filled out by the employer describes Mr. Mehrani's job as:

In charge of public relations with our customers and other employer's accounting.³

In addition, at the hearing, a letter was submitted from the President of Rabbit Courier stating that:

Mr. B. Mehrani was a self employed broker working with our firm for period of May 14/1990 to Nov 20/1990, incharge [sic] of public relation with our overseas customers.

His job would require lifting and handling heavy boxes on occasional basis.⁴

At the hearing, Mr. Mehrani indicated that his duties included dispatching and acting as a sales representative with regard to overseas clients, as well as sorting documents and lifting boxes. The sorting and lifting were done at the central office.

I find that by the time of the accident, Mr. Mehrani's duties were primarily administrative in nature. He was responsible for dispatching other drivers and acting as a sales representative for overseas clients. He performed, in addition, some very limited sorting of documents and carrying of boxes.

The injuries

There is little doubt that Mr. Mehrani suffered substantial injuries as a result of the accident. The question before me is whether or not those injuries have continuously prevented him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience. As has been noted in numerous previous arbitration decisions, the test for benefits under section 12(5) of the Schedule is significantly stricter than the test for benefits during the first 156 weeks of disability.⁵ In light of this it is necessary to review the extent of Mr. Mehrani's injuries.

Mr. Mehrani testified that he has been totally incapacitated from performing any occupation or employment for which he believes he is reasonably suited by eduction, training or experience. He indicated that while low back pain is his major complaint, he continues to have significant pain in his neck and shoulders. In addition he suffers from debilitating headaches. He has also been unable to sleep well since the accident and indicated at the hearing that this contributed significantly to his fatigue and therefore his inability to work.

All of the doctors who have seen Mr. Mehrani are in agreement that his initial period off work was reasonable. There is, however, considerable disagreement amongst the doctors as to whether he could have worked by November 1993. I will not review in detail all of the doctors' reports that were filed at the hearing. However, a number of the reports and the doctors' testimony should be commented upon.

Dr. Javad Sattarian, an orthopaedic surgeon at Scarborough Grace Hospital testified on behalf of Mr. Mehrani. In addition, two reports written by him were filed during the hearing. Dr. Sattarian made special note of the three fractures to the pelvis suffered by Mr. Mehrani, as he was of the view that this was the reason for the ongoing complaints of severe back pain. In his report of February 1, 1994, Dr. Sattarian stated:

This gentleman had a severe injury to his pelvis and although the bone of the pelvis has healed but the injury to the sacroiliac joint, which very frequently occurs with severe fractures of the pelvis, has not healed. I believe that this contributes to his low back pain and the pain in his pelvis. Anyone who has some degree of experience in treatment of pelvis fractures would know that injuries to the sacroiliac joint are very common in patients who sustain a fractured pelvis and although they may not have fracture of the sacroiliac joint itself, but spraining and straining of this joint causes permanent injury to the sacroiliac joint leading to persistent symptoms. I believe that this is the case in Mr. Mehrani.⁶

At the hearing, Dr. Sattarian emphasized that the CAT scan performed on Mr. Mehrani revealed an impacted fracture of the left sacral ala. Dr. Sattarian felt that this was particularly important because it is adjacent to the sacroiliac joint.

Dr. Sattarian was also of the view that Mr. Mehrani had developed a severe degree of fibromylgia. In addition, Dr. Sattarian believed the Mr. Mehrani was suffering from sleep deprivation and depression. It was Dr. Sattarian's opinion that given his injuries, Mr. Mehrani was still incapable of performing the job of courier because of his numerous continuing complains. He also expressed the view that Mr. Mehrani would be incapable of performing physically demanding work, or sedentary work which required prolonged sitting.

On cross examination, however, Dr. Sattarian conceded that if a non-physically demanding job which did not require prolonged sitting were available, Mr. Mehrani could do it, albeit with pain. Counsel for the Insurer spent considerable time cross-examining Dr. Sattarian with regard to Mr. Mehrani's ability to do a courier-type job. Dr. Sattarian was of the view that while Mr. Mehrani might be able to do it, it would cause him considerable pain.

A report of Dr. R.K. Chow, an expert in physical and rehabilitation medicine, was filed during the course of the hearing. Dr. Chow, in his report of January 21, 1993, concluded:

Certainly he will be at a disadvantage in the job market because of his residual pain and functional limitations. He will definitely have difficulty performing jobs that require prolonged sitting, bending, lifting or strenuous work.

Postural related activities will continue to create sufficient strain and stress over the injured tissues of the neck and back - thereby exacerbating his pain.

The patient's job as a sales representative for a courier service involves sitting, driving, bending and lifting which would not be ideal for him.

While Dr. Chow's report is interesting, I note that his last examination of Mr. Mehrani was January 21, 1993, or approximately nine months prior to the three-year anniversary date of the accident. I also note that while Dr. Chow says Mr. Mehrani will have difficulty performing jobs that require prolonged sitting, bending, lifting or strenuous work, he does not say that he could not do them.

Two reports written by Dr. A. Hadian, Mr. Mehrani's family physician, were also filed during the hearing. In his report of June 29, 1994, Dr. Hadian concluded that:

Mr. Mehrani sustained several body injuries as well as psychological damages caused by the M.V.A. of November 20, 1990. Although he has recovered a lot, I believe that prognosis is not good and his neck pain, low back pain of chronic fibromyalgia can be a problem for a long time as well as his depression.⁷

Counsel for the Applicant also filed a report written by Dr. Jaan Reitav, a psychologist, who noted in his report of April 23, 1992:

I have seen Mr. Mehrani for five clinical sessions during 1992, focusing on his sleep/wake disturbances and reviewing his overall adjustment to chronic pain and physical limitations. There have been some improvements, but these are very gradual and Mr. Mehrani is not ready to return to work at this time.

Regarding treatment for his anxiety and depression, Mr. Mehrani saw Dr. Asayesh for a trial of antidepressant medications, which were not of any assistance. At the present time Mr. Mehrani is exhibiting all the characteristics of a patient with a chronic disability syndrome. ...In view of this, I can only say that his prognosis at this time is uncertain.

I note, however, that this report is dated April 23, 1992, or approximately one and one half years before the three-year anniversary date of the accident.

Mr. Mehrani's solicitor also filed a report of a psychiatrist, Dr. M. Zare-Parsi, dated November 22, 1994. Dr. Zare-Parsi was of the opinion that at the time of his first assessment in May 1992, Mr. Mehrani was suffering from major depression and a post-traumatic stress disorder. Dr. Zare-Parsi continued to treat Mr. Mehrani and prescribed Prozac and later Zoloff. By the fall of 1994, Dr. Zare-Parsi gave the following prognosis:

For the past two-and-a-half years that I have seen this gentleman there has been very limited progress and I feel that his depressed mood and low self-esteem have to do with his present limitations. As long as they exist in his life, there will be little progress in terms of his depression. I have no way of predicting what his degree of improvement will be in the future but acknowledge the fact that the progress will be slow.

Dr. Hugh Cameron, an orthopaedic surgeon, examined Mr. Mehrani on February 25, 1992, at the request of the Insurer. While acknowledging the significant injuries that Mr. Mehrani had suffered, Dr. Cameron stated:

From the orthopaedic view, I think that this man has recovered sufficiently for him to return to work. I don't know what the chest situation is and perhaps it might be as well to have him reviewed by a skilled general internist. Further information such as the records from Sunnybrook Hospital and from the investigation done in Toronto General Hospital would have to be acquired.

From an orthopaedic point of view this man sustained no injury which would leave him with any long term disability.⁸

Dr. Cameron also noted in his report that:

With respect to his neck and back, he complains of symptoms in both sites. He says he is slowly improving. He is obviously very very significantly exaggerating his symptoms.

Dr. Cameron gave a number of examples of what he perceived to be Mr. Mehrani's exaggeration. He stated:

Examination of his neck revealed a very very limited range of movement. It was difficult to get him to stand up straight. He wanted to stand with his hips and knees bent over. In fact, when he was dressing and undressing he stood up perfectly normal.

What struck me most about this man was that he felt he needed help dressing and undressing. He couldn't put on his shoes and socks himself in spite of the fact that he can bend over perfectly well in a sitting position. He even needed help fastening the cuffs of his shirt and putting on his jacket. His wife did this for him.⁹

I am mindful that Dr. Cameron's examination was in February 1992, however no one has suggested that from an orthopaedic point of view that Mr. Mehrani has actually deteriorated since that date.

Mr. Mehrani was also seen on behalf of the Insurer by Dr. R. Wood, a psychologist, in June and July of 1992, who also noted Mr. Mehrani's tendency to embellish his injuries.¹⁰

Finally, on September 29, 1993 at the request of the Insurer, Mr. Mehrani was seen by Dr. George Rado, a specialist in physical and rehabilitation medicine. I note that this was approximately two months before the three-year anniversary date of the accident. on September 29, 1993 Dr. Rado concluded:

Overall, the current examination failed to demonstrate physical findings of significant objective anatomical abnormality sufficient to explain or to support this gentleman's prolonged and apparently significant level of functional disability. Although he did have significant injuries these would have healed a very long time ago. The current findings are compatible with cervical and lumbar myofascial strain superimposed on age related degenerative change, and which had not been consistently and aggressively stretched back to normal.

There were inconsistencies on examination which does not allow me to accept with total confidence the ranges of motion noted, or allow me to rule out symptom amplification and/or a component of voluntary modulation of performance. I would have to agree with Dr. Cameron's view that there is a degree of symptom embellishment.

This gentleman has all the classic tenderpoints of fibromyalgia. This along with his stated depression and sleep disturbance would suggest that there may be a fibromyalgia component.

His described a sedentary lifestyle which consists of sitting and standing around the house most of the day, and going for some short walks and attending medical appointments, contrasts with his well preserved muscle bulk. He appears to be in better physical shape than I would have anticipated based on his description of function.

There were no physical findings on current examination which would preclude him from engaging in sedentary work activity. This could be envisaged starting on a very part-time basis, 1-2 hours 3 times a week and progressively increased from there. There is no reason to assume that he would cause himself any harm, although he may experience a transient increase in symptoms. Any such symptom increase would be expected to be brief, non-disabling and easily managed with medication, therapy and exercise.¹¹

Findings and Analysis:

As has been stated above, the test for benefits under section 12(5) of the Schedule is significantly stricter than the test for benefits during the first 156 weeks of disability. Mr. Mehrani must establish, on a balance of probabilities, that he suffered from injuries in the accident that have continuously prevented him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

Arbitrator Draper in Spicer¹² identified a number of principals or guidelines that he believed applied to the interpretation of section 12(5)(b):

• The focus of the inquiry must be on the applicant's injuries, not the availability of jobs.

• The injuries must prevent the applicant from performing the duties of the alternate work, not simply make the job more difficult, or make the applicant somewhat less productive. However, the test is not limited to whether the applicant is physically capable of performing each component task of the job without risking further injury. The question is whether the applicant is substantially able to do the alternate job, considered as a whole, including reasonable hours and productivity.

• The range of alternative employment that may be considered depends on the applicant's background. It may include jobs that are different from the work that he or she was doing at the time of the accident, but only if they are reasonably suitable or appropriate for the applicant. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative.

I am in general agreement with the principles set out by Arbitrator Draper, however, I would add that the availability of jobs cannot be totally overlooked. In this regard, I am in agreement with the comments of Arbitrator Sampliner in the case of Reid¹³, when he stated:

I agreed that section 12(5) eligibility is initially determined through our consideration of the insured's disability. However, in my opinion, the disability cannot be seen in a vacuum, but should be viewed in a context of the insured's competitiveness in the existing marketplace. . . I find that the job market is relevant to a section 12 determination.¹⁴

In soft tissue injury cases, the complaints are often largely subjective. In this case there is no doubt the Mr. Mehrani has suffered significant injuries and is experiencing some pain. But numerous arbitration decisions have indicated that the mere presence of pain is not enough to satisfy the test as set out in section 12 of the Schedule. The question then becomes whether the pain is of such a magnitude that Mr. Mehrani is unable to do any suitable work within the meaning of section 12(5).

To a very large degree we are dependent upon the credibility of an applicant assessing the pain that he is suffering and the resulting disability. In Mr. Mehrani's case I do have some serious reservations regarding his credibility.

During the hearing Mr. Mehrani presented himself as a very disabled individual. He apparently presented himself in a similar fashion to a number of the doctors who saw him. Dr. Sattarian was sufficiently impressed with the degree of his disability that he advised Mr. Mehrani that he should not be driving. Nonetheless, surveillance undertaken by the Insurer clearly shows that Mr. Mehrani was driving without any apparent difficulty when observed in November 1992, June 1993, May 1994, December 1994, January 1995, and September 1995.¹⁵ It is also worthy of note that in September 1995, Mr. Mehrani drove from St. Catharines to Toronto, again without any apparent difficulty. Dr. Sattarian, when confronted with this information on cross-examination, expressed surprise that Mr. Mehrani was performing this function.

The mere fact that Mr. Mehrani drove and was observed walking without any apparent difficulty does not necessary mean that he could drive as a courier. However, it certainly indicates to me that Mr. Mehrani was not as disabled as he suggested at the hearing, and to numerous doctors who saw him.

Another indication of Mr. Mehrani's willingness to be less than forthright and cooperative is found in the records of the Columbia Health Care Pain Management Clinic which Mr. Mehrani attended in April 1993. The occupational therapist, Lucy Stewart, and physiotherapist, Olga Steckley, indicated in their report that:

Maximum voluntary effort testing revealed significant inconsistencies in degree of effort put forth, and subsequently the reliability of the data is questionable. Test results appeared influenced by factors such as his lack of co-operation, his unwillingness to execute certain tests and the constant presence of his wife during testing who occasionally terminated testing, by providing a chair, etc.¹⁶

Based on all the medical reports, some which I have reviewed above, as well as my analysis of Mr. Mehrani's credibility, I conclude that to November 23, 1993, Mr. Mehrani was not able to do physically demanding work, nor work that required prolonged sitting. He would, however, have been capable of sedentary work that would allow him to sit and stand as required.

The question then becomes whether there is any such job for which Mr. Mehrani is reasonably suited by education, training or experience.

As noted above, Mr. Mehrani is fluent in Farsi in German, but does not have very developed English skills. He took one English as a second language course before the accident, lasting approximately three or four months and one similar ESL course after the accident. On all the evidence I find that while Mr. Mehrani does have some English skills, they are indeed very limited. This must be taken into account when determining whether a potential job would be suitable.

The Applicant's solicitor had Mr. Mehrani assessed by Mr. Robert Katz, an expert in vocational rehabilitation, in order to determine what jobs might be suitable for him. Mr. Katz prepared a detailed report which was filed at the hearing. In addition, Mr. Katz testified at the hearing. In light of the importance of Mr. Katz's report I shall review it at some length and discuss some of the possible jobs put forward by Mr. Katz.

Mr. Katz was of the view that Mr. Mehrani could no longer perform the job of professional engineer. Mr. Katz pointed out that Mr. Mehrani is not licensed to work as an engineer in Ontario and his English is not nearly adequate to allow him to return to work in such a capacity.

While I am of the view that Mr. Mehrani would be physically capable of working as a mechanical engineer, and that he might be able to obtain a licence to work in Canada as an engineer, I do not believe that his English skills are sufficient in order for him to obtain such a job.

Mr. Katz also reviewed the possibilities of an engineering support position for Mr. Mehrani. I am of the view that Mr. Mehrani's physical abilities are probably such that he would be able to perform an engineering support job if allowed to stand and sit at will. Nonetheless, once again his English skills are sufficiently limited that I accept Mr. Katz's opinion that he would be unable to perform such employment.

Mr. Katz also reviewed the possibility that Mr. Mehrani might obtain employment as a builder or developer since he had done this in the past in Iran. I accept Mr. Katz's opinion that Mr. Mehrani is not qualified to work as a builder or developer in Ontario. Building codes and building practices are quite different in Iran than in Ontario. In addition, Mr. Mehrani's lack of English would make it extremely difficult if not impossible for him to be understood when speaking with immigrant tradesmen who, like him, were struggling with English.

A considerable period of time was spent at the hearing considering whether Mr. Mehrani could perform the job of courier. Mr. Katz described the job of a true courier as a fairly strenuous one. It requires considerable agility in driving and much lifting. Speed is important not only in driving but in actually physically delivering the document or box in question. As indicated above, Dr. Sattarian was of the view that Mr. Mehrani could do a non-physically demanding job or could do a sedentary job that did not have full-time sitting. On cross-examination Dr. Sattarian conceded that Mr. Mehrani could do such work, albeit in pain. He further conceded that the pain could be controlled with medication to a degree. On balance, I find that Mr. Mehrani could perform the job of courier, albeit with considerable pain. I am also of the view that Mr. Mehrani could perform the administrative type or job that he performed at Rabbit Courier, which largely involved acting as a dispatcher and sales representative, with some occasional lifting. While his English skills are limited, he has already shown that he was able to find such a job using the Farsi language and it is to be remembered that he is also fluent in German.

Mr. Katz also reviewed the possibility of Mr. Mehrani obtaining a job as a sales representative, a sales person or a sales clerk. Mr. Mehrani had acted as something as a sales representative with the Rabbit Courier Company using his Farsi language skills. I accept Mr. Katz's opinion that Mr. Mehrani's English skills are not adequate for employment in sales beyond that described above.

Mr. Katz also reviewed the possibility that Mr. Mehrani work as a production worker. I am in agreement with Mr. Katz's assessment that Mr. Mehrani would be incapable of remaining in a fixed position sufficiently long in order to perform this job.

Another possibility proposed by Mr. Katz was that Mr. Mehrani would be capable of working as a security console monitor or tollbooth attendant. I find that both these jobs would be within Mr. Mehrani's physical capabilities. In addition, his language skills are sufficient to perform these jobs. The question then remains whether Mr. Mehrani is reasonably suited by education, training or experience to perform these jobs. The evidence of Mr. Katz was little or no training is required to perform the job functions.

Senior Arbitrator Naylor in Rodway¹⁷, made the following comments:

The decisions make it clear that each case turns on its own facts and the applicant's particular background. The factors include: the nature of the work compared with what the applicant did before; the hours of work and levels of remuneration; the applicant's employment experience and length of time spent in different jobs; his or her age; and his or her qualifications and technical training and know-how.

Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not totally unrelated to his or her previous experience. (See Campbell v. Canada Life Assurance (1990) 1990 CanLII 11298 (MB CA), 45 C.C.L.I. 73 (Man. C.A.); Dale v. Commercial Union Assurance Company of Canada, [1980] I.L.R. 1-1271 (Co. Ct.) Conversely, work is not necessarily suitable because an applicant has done a stint of it in the past. In each case, the question is: what can an applicant reasonably and realistically be expected to do, given his or her background and particular circumstances?

In Mr. Mehrani's case, while he was a professional engineer practising that trade in Germany and Iran, when he came to Canada he accepted the job of courier and had performed that function for some time. Accordingly I find that Mr. Mehrani could be expected to take jobs with a similar status level as that of a courier. This includes, in my view, acting as a tollbooth operator, a parking lot attendant and a security console monitor.

Counsel for Mr. Mehrani submitted that his client was grossing approximately $550 per week prior to the accident and the evidence of Mr. Katz was that tollbooth collector jobs would pay only approximately $300-$320 per week. Counsel submitted that this was too large a reduction in earnings for Mr. Mehrani to reasonably accept. In essence, as I understand Mr. Mehrani's counsel, the legislation does not contemplate an individual having to take such a low paying job compared to the remuneration he was receiving before the accident. While I agree that rate of remuneration is one consideration to be taken into account, I find it is not the only consideration. In light of my findings with regard to Mr. Mehrani's ability to perform courier-type jobs, it is unnecessary for me to decide if the differences in remuneration would be too great in this case.

Date on which Mr. Mehrani was capable of engaging in any occupation or employment for which he is reasonably suited by education, training or experience

Dr. Rado saw Mr. Mehrani on September 29, 1993, or approximately two months prior to the three-year anniversary date of the accident. At that time Dr. Rado, who is a specialist in physical medicine and rehabilitation was of the view that Mr. Mehrani could start work on a part-time basis, one to two hours, three times a week and progressively increase from there.¹⁸ This "work hardening" approach to getting back into the workforce is one that was also endorsed by Mr. Katz. Unfortunately, Dr. Rado did not specify what time frame this "work hardening" process would take. Based on a review of all the medical documentation provided, including the opinion of Dr. Cameron, I am of the opinion that the "work hardening" process would take approximately four months. Accordingly, weekly income benefits should be paid to Mr. Mehrani until January 29, 1994, being four months after the review of Mr. Mehrani by Dr. Rado.

Expenses:

While the Applicant has been only partially successful in his claim, I am of the view that his application was not devoid of merit. Accordingly I exercise my discretion to award him his expenses of the arbitration.

Order:

1. Mr. Mehrani is entitled to weekly income benefits up to January 29, 1994.

2. Mr. Mehrani is entitled to interest on the amounts owing.

3. Mr. Mehrani is entitled to his expenses incurred in respect to the arbitration.

December 15, 1995

Guy Jones 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. 2Exhibit 2, tab 1
3. 3Exhibit 2, tab 1
4. 4Exhibit 2, tab 18
5. 5Rene G. Lafleur and Zurich Insurance Company, May 11, 1995, OIC File No. A-004141
6. 6Exhibit 1, tab 9(a), page 5
7. 7Exhibit 1, tab 11(b), page 3
8. 8Exhibit 2, tab 15, page 6
9. 9Exhibit 2, tab 15, page 4
10. 10Exhibit 2, tab 16, page 12
11. 11Exhibit 2, tab 17, pages 15-16
12. 12Judy Spicer and State Farm Mutual Automobile Insurance Company, May 24, 1995, OIC File No. A-010158
13. 13Shirley Reid and Continental Insurance Company, July 27, 1995, OIC File No. A-006022
14. 14Reid decision, page 11
15. 15Exhibits 6, 7, 8, 9, and 10
16. 16Exhibit 2, tab 9, page 3
17. 17Eleanor B. Rodway and Royal Insurance Company of Canada, June 12, 1995, OIC File No. A-007593
18. 18Exhibit 2, tab 17, page 16