Neutral Citation: 1995 ONICDRG 192

File No.: A-005409

ONTARIO INSURANCE COMMISSION

BETWEEN:

KEVIN HANNA

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

The Applicant, Kevin Hanna, was injured in a motor vehicle accident on June 23, 1990. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ The Applicant claims further benefits, which the Insurer has refused. 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. Was the Applicant employed, within the meaning of section 12 of the Schedule, at the time of the accident?

2. Is the Applicant entitled to receive ongoing weekly benefits, including benefits after 156 weeks, under section 12 or section 13 of the Schedule, after September 4, 1992?

3. What is the appropriate rate of weekly benefits?

4. Is the Applicant entitled to vocational rehabilitation services under section 6(1)(c) of the Schedule?

5. Is the Insurer entitled to repayment of weekly benefits overpaid?

6. Is the Applicant entitled to his expenses incurred in the arbitration?

7. Is the Insurer entitled to an award under section 282(11.2) of the Act?

The Applicant also claims interest on any amounts owing.

Result:

1. The Applicant was a full-time employee of TJ's Car Care at the time of the accident. I do not accept the Applicant's claim that he was also employed doing house renovations for his mother.

2. The Applicant is not entitled to any further weekly income benefits after September 4, 1992.

3. The Applicant's benefits paid between June 30, 1990 and August 28, 1990 should have been paid at the rate of $185.60 per week.

4. The Applicant is not entitled to vocational rehabilitation services.

5. The Applicant was entitled to benefits of $1,484.80 ($185.60 a week for eight weeks), but received benefits of $2,560 ($320 a week for eight weeks). The Insurer is entitled to repayment of benefits overpaid, in the amount of $ 1,075.20, with interest under section 27 of the Schedule.

6. The Applicant is not entitled to be reimbursed for arbitration expenses incurred.

7. The Insurer is not entitled to an award under section 282(11.2) of the Act.

Hearing:

The hearing was held in Hamilton, Ontario, on March 28, 29 and 30, 1995, before me, Nancy Makepeace, Arbitrator.

Present at the hearing:

Applicant:

Kevin Hanna

Applicant's

Michael W. Kelly

Representative:

Barrister and Solicitor

Insurer's

Nestor E. Kostyniuk

Representative:

Barrister and Solicitor

Witnesses:

Kevin Hanna, the Applicant

Tom Nelson, the Applicant's former employer

Roger King, the Applicant's former co-worker

Shirley Hanna, the Applicant's mother

Peggy Thompson, employment counsellor, Futures program

Dr. Walter Kean, rheumatologist

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

The proceedings were recorded by Ms. Elaine Ritsema (March 28), Ms. Julie Gordon (March 29), and Ms. Katie Weatherbie (March 30), all of Mark Nimigan Court Reporters.

Evidence and Findings:

(i) Pre-Accident Employment at TJ's Car Care

The Applicant is a 29 year old single man. At the time of the accident, on June 23, 1990, he had been working for about two and a half weeks as a car cleaner for TJ's Car Care ("TJ's"). The Insurer submitted that this activity was not "employment or occupation" within the meaning of section 12 of the Schedule. According to the Insurer, the placement was an educational program offered by the provincial government through Mohawk College.

I heard oral evidence about the arrangement with TJ's from the Applicant, from Tom Nelson, a co-owner of TJ's, and from Peggy Thompson, an employment counsellor with the Futures Program, the provincial government sponsor of the Applicant's placement at TJ's. I also considered documents filed in respect of the TJ's placement.² There was no dispute about the essential features of the arrangement with TJ's.

The Applicant's work at TJ's has some features of an educational program. "Futures" is a program of the Ontario Ministry of Education and Training funded through the Ontario Training and Adjustment Board. The minimum wage pay is set by the program, and the employer is not permitted to supplement that wage. The Applicant's 1990 T4 slip was issued by Mohawk College, not by TJ's. Mohawk also issued the Applicant's Record of Employment. Each placement is limited to a fixed period of 16 weeks, with the possibility of one 10 week extension. Finally, Futures staff people make at least two on-site visits, and monitor the client's work habits, attitude, and job skills development.

However, Futures placements are posted at job centres, as well as schools and community colleges. There is no requirement that participants be enrolled in any academic courses. Ms. Thompson described Futures as a workplace program, not a pre-employment program. Futures identifies possible placements for the client and helps the client prepare a resume. It is the client's responsibility to contact the employer and arrange an interview. The client is not guaranteed a job, but has to compete with other candidates, including candidates not involved in Futures. Moreover, the client or the employer can terminate the placement, with notice, before the end of the 16 weeks. The "Employer/Participant Work Experience Placement Agreement" is signed by parties identified as "the employer", "the employee", and "the program delivery organization". Participants work 40 hours a week, and are paid biweekly, on the basis of time sheets completed by the employee and employer. They are not paid for missed time. They receive 4% vacation allowance, and deductions are made for income tax, Canada Pension Plan, and unemployment insurance.

The term "employment" is not defined in the Act or the Schedule. The Applicant's work for TJ's was the same as that of other TJ's employees, except that he did not use the buffer or repair stone chips because it was felt these tasks needed a more experienced hand. He was paid for his services, and he was expected to perform. TJ's hired the Applicant and directed his activities. I find that the Applicant was employed by TJ's as a car cleaner before the accident. In any event, whether the employer is TJ's, the Futures program, Mohawk College or some combination of them, I find that the Applicant was employed as a car cleaner before the accident.

(ii) Renovation work

The Applicant testified that in addition to his work at TJ's, he was working, for a month or six weeks before the accident, renovating a house owned by his mother. He received no wages for this work, but whenever he needed extra money, his mother would lend it to him, recognizing his work at a rate of $10 an hour. Shirley Hanna, the Applicant's mother, corroborated the Applicant's testimony. She testified that the family had refurbished several houses, and that the work was done by her three sons and her daughter. She kept track of the time worked by the Applicant and his siblings, but discarded these records once the work was paid for.

The Applicant did not report this income on his 1990 income tax return. I would not necessarily expect an insured person in this situation to be able to produce income tax documents, paystubs or payroll records. However, I think it is reasonable to expect an insured person to be able to provide some supporting documentation - time sheets (however informal), cancelled cheques, bank records, receipts for building materials, or receipts for items purchased with loan proceeds. In this case, no documentation was filed in support of this claimed income. Moreover, in their testimony at the hearing, neither the Applicant nor his mother could estimate the number of hours the Applicant had worked on the renovations before the accident, and they gave no details about the work being done in the weeks immediately before the accident. Finally, there is no reference to this work in any of the WCB documents or medical reports filed.

I am prepared to accept that the Applicant helped his mother with house renovations from time to time. I am not persuaded that he was employed in this task.

(iii) Pre-accident income

For eight weeks, the Insurer paid weekly income benefits at the rate of $320 a week, based on the Employer's Confirmation of Income form, signed by Mr. Nelson, the owner of TJ's, which stated that the Applicant earned a gross weekly income of $400 in each of the four weeks before the accident. There is no dispute that TJ's actually paid the Applicant $5 an hour (minimum wage) for 40-44 hours a week. At the hearing, the Applicant testified that due to overtime, he grossed $240-250 a week at TJ's. However, the Record of Employment states that the Applicant's average gross weekly income in June 1990 was about $218. The Applicant was unable to explain this discrepancy. I accept the Record of Employment as an accurate statement of the Applicant's pre-accident income from TJ's.

The Applicant explained that he earned additional income (to $400 a week) from his renovation work. He testified that he told the Insurer's adjuster that he intended to include this income on the Employer's Confirmation form, and the adjuster "became snappy and said, 'just put down $400 and send it back'". According to the Applicant, Mr. Nelson signed the form, reluctantly, after speaking to the adjuster. Mr. Nelson gave no evidence about this incident. The adjuster did not testify.

In the absence of independent corroboration, I do not accept the Applicant's explanation for the discrepancy in the income figures. In any event, for the reasons given in the preceding section, I do not accept that the Applicant was employed doing renovation work at the time of the accident. Since his average gross weekly income from TJ's in the four weeks before the accident was less than $232, the Applicant was entitled only to the minimum benefit of $185.60 per week.

(iv) Entitlement to weekly benefits after September 4, 1992

On Saturday, June 23, 1990, the Applicant was a front seat passenger in a car which was struck head-on. He recalls putting his right foot on the dashboard to brace himself, and hitting his head and left elbow on the windshield. He testified that he lost consciousness momentarily. After he was helped out of the car, he sat beside the car until the ambulance came. He was taken to Haldimand War Memorial Hospital emergency room.³ He complained of a headache, and reported that he had injured his head; however, the emergency report states that he did not lose consciousness. The Applicant also reported pain in his left arm and elbow. There was also a small abrasion on his forehead and a large laceration on his left elbow. The elbow laceration was stitched and the arm was splinted. An x-ray of his left elbow showed soft tissue injury only. The Applicant was discharged a few hours after the accident. He testified that he felt light-headed and nauseous, and had to rest on someone's lawn about a block and a half from the hospital. Once he got home, he slept on the couch, without going upstairs to his bedroom, for several days. All his muscles were aching, he had headaches, and his left arm hurt.

On June 26, he returned to the hospital to have the drain in his elbow removed and the dressing changed. The stitches were removed on July 10. On July 30, Dr. Mustard noted that the wound had healed, although the Applicant complained of weakness and inability to fully extend his left elbow. On examination, the elbow lacked 10 degrees of extension. The note concludes, "return to work Aug. 27".⁴

The Applicant testified that he returned to full-time work at TJ's at the end of August, on Dr. Mustard's recommendation. Weekly benefits were terminated at that time.

According to the Applicant, his left arm was still stiff and weak, and had limited movement when he returned to work. Since he is left-handed, this limited his ability to apply pressure, for example in scrubbing. His left shoulder gave him trouble with swivelling in order to clean a trunk or a back seat (especially in a two-door car). At first, the Applicant was asked to do errands and other light work, and other workers helped him with difficult tasks. However, he testified that Mr. Nelson soon expected him to do his regular work as usual. The Applicant testified that Mr. Nelson fired him one day because of absenteeism, lateness and poor performance; however, after a discussion, Mr. Nelson changed his mind, and the Applicant continued to work for a couple of months longer. The Applicant could not remember when the job at TJ's ended.

There are serious discrepancies in the evidence about the Applicant's return to work after the accident. The Record of Employment indicates that the Applicant worked at TJ's between June 4 and November 17, 1990, a period of 24 weeks. There is no indication of a nine-week absence between June 23 and August 27, 1990. On cross-examination, the Applicant was evasive when asked whether he reported his absence to Futures. At first, he answered "kind of". He then said that "it was between Tom Nelson and the woman at Mohawk". He suggested that if his absence were reported, he would lose the job, and TJ's would lose the position. He also said he was supposed to make up the time later.

The Applicant testified that he did not tell the Insurer he was being paid by Futures while receiving weekly income benefits. He added, "they [the Insurer] were none too quick in paying me". I do not accept this explanation. The Insurer issued its first cheque, for $900, three days after the accident, and the second cheque, for $1,660, two weeks later.⁵ I find that the Insurer paid the Applicant promptly and within the time limits set out in section 24 of the Schedule.

Mr. Nelson testified that the Applicant returned to work on the Wednesday following the accident, although he was unable to do the job because of pain. He corroborated the Applicant's testimony that they had a dispute about absences, lateness and performance. In direct examination, he testified that he could not remember when the Applicant stopped working. However, in his written statement of August 31, 1993, he said that the Applicant had left around the end of August:

he took off to the States somewhere. He just disappeared. Futures never paid him those 3 weeks and I don't think he ever finished the program. I think he could work 16 weeks with Futures and he worked 12 weeks. He called from Myrtle Beach or something saying he was down there with his buddies.⁶

When confronted with this statement on cross-examination, Mr. Nelson confirmed it. Roger King, a former TJ's employee, could not recall when the Applicant returned to work after the accident, or when he left the job.

I am troubled by these discrepancies. If, as the Applicant testified at the hearing, he did not return to work until the end of August, then he received nine weeks pay from Futures to which he was not entitled. If, on the other hand, he returned to work within a week of the accident, as Mr. Nelson and Mr. King testified, then the Applicant's statements to his doctor, and his testimony before me were untruthful, and he received eight weeks of weekly income benefits to which he was not entitled. Whichever scenario is true, I find that the Applicant has tailored his account of events for financial benefit.

It is difficult to determine what really happened here. Ms. Thompson testified that while Futures would generally do some monitoring in the final weeks of a placement, this might be done by telephone, if there were no reported problems with the employee. She did not know what, if any, monitoring Futures did in this case: she did not handle the Applicant's file herself, and was unable to find his file. Mr. Nelson, on the other hand, might have little interest in telling Futures about the Applicant's absences, or problems with his performance, since TJ's was not paying the Applicant's wages. I note, as well, that the Applicant knew Mr. Nelson before applying for the job, so their relationship was not at arm's-length.

The Applicant's elbow injury was serious enough to require stitches, a drain, and three follow-up visits with Dr. Mustard. On the last visit (July 30), the Applicant was still complaining about weakness and restricted extension in the elbow. I am prepared to accept that these symptoms would make it difficult for the Applicant to return to his job as a car cleaner in the first few weeks after the accident. Most significantly, Dr. Mustard's note, "return to work Aug. 27" appears to have been recorded contemporaneously with the Applicant's July 30 visit, and suggests, in my view, that the Applicant told Dr. Mustard that he was still off work on July 30 and that Dr. Mustard recommended that he return to work on August 27. Considering the Applicant's testimony and demeanour as a whole, I do not think it likely that the Applicant was misleading Dr. Mustard; I find it more likely that he was misleading the Futures program by failing to report his absence from work. However, I do not need to determine when the Applicant returned to work because the Insurer did not dispute the Applicant's entitlement to benefits paid in July and August 1990.

Prior to the motor vehicle accident, on October 26, 1988, the Applicant had cut and fractured his right index and middle fingers on a table saw, while working as a labourer at Wilkinson Steel.⁷An open reduction was done, and his torn tendons were sutured. He wore a cast for about a month, then attended physiotherapy for five months. However, the right index finger did not heal properly, and the Applicant was left with permanently limited movement in that finger.

The Applicant never returned to Wilkinson Steel. He worked at Stanpac, a packaging company, for about six months in 1989⁸. He testified that the finger injury affected his ability to pick up, grip and carry things in that job. After leaving Stanpac, the Applicant did not work again until he started at TJ's in June 1990.

The Applicant's right index finger continued to bother him in 1990. Indeed, Dr. Wood's clinical notes and records⁹ indicate that he saw the Applicant twice in 1990 after the accident. His notes refer only to the finger injury.

The Applicant claimed workers' compensation benefits for his finger injury, and received a 2% permanent partial disability award in September 1990. The Workers' Compensation Board ("WCB") pension assessment report of Dr. C.M. Colaco, dated September 28, 1990, does not mention the motor vehicle accident of three months earlier. The Applicant appealed the award, which was increased to 2.5% in December 1990. The second WCB pension assessment report, dated December 10, 1990, by Dr. W.F. Little, does not mention the motor vehicle accident either.

The WCB referred the Applicant to the Centre for Vocational Evaluations and Rehabilitation Services Ltd. ("CVERS") for a vocational assessment. According to the CVERS report of Rehabilitation Consultant Dan Covelli, dated January 29, 1991, the Applicant complained of tingling in the finger tip, pain in the affected joint, and restricted movement, and did not mention the motor vehicle accident or the job at TJ's. The assessment included the "Valpar Small Tools Mechanical #1 Test". The report notes:

Mr. Hanna demonstrated good manual and finger dexterity, but did experience some frustration when manipulating with his right hand. He indicated some pain was present in his hand and it radiated up his arm to the shoulder region. Despite this, he was able to continue with the work sample and scored at a very competitive rate.

The report does not mention any problem with the left arm. Mr. Covelli opined that the Applicant had a permanent disability which

imposes physical limitations on his ability to perform repetitive medium and heavy level work, especially activities requiring heavy lifting, pushing or pulling, vertical right arm extension, or repetitive manipulation with his right hand.

He recommended that the Applicant explore light work: construction inspection, skilled technology or sales. In cross-examination at the hearing, Dr. Kean agreed that the Applicant's finger injury was a significant problem for him and would affect his ability to do various jobs, including that of car cleaner.

The Applicant testified that he reported his car accident to CVERS, but was advised that it was not relevant and might preclude his getting workers' compensation benefits. I think it unlikely that a vocational rehabilitation assessor would consider the serious accident-related difficulties claimed by the Applicant to be irrelevant to his rehabilitation prospects.

I find that in late 1990 and early 1991, the Applicant's accident-related symptoms were not serious enough to require medical attention. I find that the Applicant was more concerned about his work-related finger injury, which restricted his ability to work with his right hand. I am not persuaded that the Applicant believed his accident-related symptoms were disabling.

Further to the recommendations of CVERS, the WCB sent the Applicant to Mohawk College for academic upgrading, beginning in April 1991, with the goal of completing high school. The Applicant testified that he attended classes between 9 a.m. and 2:30 or 3:00 p.m., five days a week, with a lunch and two breaks. According to the Applicant, he was having headaches and pain in his neck, shoulder, low back and arm, and these problems interfered with his concentration and prolonged sitting. He explained that he did not see his doctor during this period because he thought he just had soft tissue injuries. However, he testified that he did stretching and weight exercises at home.

On February 11, 1992, the Applicant told Dr. Wood that he had been in a car accident "12 months ago". He complained about his left shoulder and elbow, as well as headaches and a bump on his head. This was the first time Dr. Wood recorded a complaint about the Applicant's accident-related injuries. Dr. Wood found full range of motion in the shoulder. He referred the Applicant for an x-ray of the cervical and lumbar spine; the x-ray was negative. When the Applicant saw Dr. Wood on March 17, 1992, he complained again about headaches and left shoulder soreness. Dr. Wood recommended that he continue his exercises. Dr. Wood also noted that he and the Applicant had a half-hour discussion about suing in connection with the accident.

The Applicant testified that he was involved in a minor rear-end collision in early 1992, about three years before the hearing. He says he did not attend hospital or receive treatment for his injuries. There is no reference to this accident in the documents filed, and no submissions were made on this point. I accept that this accident had no significant impact on the Applicant's condition.

In September, 1992, having finished the upgrading course, the Applicant started a program in mechanical engineering technology, at Mohawk College¹⁰. He quit the college program after two months, because it wore him down. The Applicant claims ongoing benefits after September 4, 1992.

The Applicant next saw Dr. Wood on December 10, 1992, complaining of headaches, irritability, sleepiness, and neck pain. They again discussed the Applicant's lawsuit. Dr. Wood referred him to Dr. Raymond C. Lo, a neurologist, for investigation of "post-concussion pain syndrome".

In his report of January 14, 1993, Dr. Lo opined that "[I]t is unusual to have post-concussion syndrome lasting beyond a year. Judging from the description, he either blacked out or was amnestic [sic] for a minute or two. It was not considered to be a significant head injury." Dr. Lo felt that the Applicant's symptoms of irritability and sleepiness were related to stress. He arranged a CT scan of the head; it was negative. In his follow-up report to Dr. Wood, he concluded "[T]his patient has muscle tension headaches." He suggested use of a heating pad, massage, and perhaps chiropractic manipulation. He did not think any further neurological investigation was called for.

In his medical-legal report of March 3, 1993,¹¹ Dr. Wood reported that all neurological investigations had been negative, though physical examination showed a 10-15% restriction of motion in the left elbow, and a 10-15% loss of neck rotation. Dr. Wood diagnosed "mild concussion with soft tissue injury to he [sic] muscles surrounding neck shoulder and left elbow.... definitely related to the accident." He concluded: "Kevin describes a degree of dysfunction and disability far in excess of what is noted in the physical findings." In cross-examination, the Applicant admitted that Dr. Wood had encouraged him to return to work.

Dr. Walter F. Kean, a rheumatologist, examined the Applicant in June 1993, on referral from Dr. Wood.¹² On physical examination, he found the Applicant to be neurologically normal. However, he noted a laceration scar and slight tenderness posterior to the left elbow, as well as tenderness at the left rhomboid muscles, in the lower cervical spine, in the low back, and on the left forehead. Shoulder range of motion was good, but there was decreased range of motion in the neck. Dr. Kean felt that the pain in the neck, upper back, low back, and elbow resulted from the accident. He referred the Applicant to Dr. Robert Duke, a neurologist, for consultation concerning his headaches, irritability, and poor concentration and attention. Dr. Kean also recommended "a very vigorous physical strengthening program", unless Dr. Duke found it was contraindicated. In a subsequent medical-legal report, Dr. Kean opined that the Applicant was not fit to work as a car cleaner or in other manual labour when he examined him in June 1993.¹³

The Insurer relied on the medical-legal reports of Dr. John Darracott, a physiatrist who examined the Applicant at the Insurer's request on September 13, 1993 and December 21, 1994.¹⁴ When he examined the Applicant for the first time, Dr. Darracott gave the following opinion:

... [The Applicant's] complaints and degree of dysfunction are out of keeping with the clinical findings. There was no clinical evidence of significant organic cause for continuing dysfunction. The only restriction of range I noted, was related to loss of full extension of the cervical spine, and this was in the absence of tight paraspinals suggesting a voluntary restriction of range. I can find no neurological deficit. There is no evidence of any spasm of the cervical or lumbar paraspinal muscles, ...

With regard to the elbow, Dr. Darracott stated, "[h]e had a full range of movement of all joints of the upper limbs, excluding the right index PIP joint, ..." which had been injured in 1988. Dr. Darracott opined that the Applicant would be able to return to normal work activities following an eight-week reconditioning program including stretching routines for the neck and lumbar spine.

In April 1994, the Applicant worked for three days at a marine salvage company¹⁵. (He had previously done marine salvage work before starting at TJ's.) He testified that he was unable to continue because of his accident-related injuries.

In a medical-legal report dated April 12, 1994,¹⁶ Dr. Kean opined that as three years had passed since the accident, "there is a greater than 90% chance that the pain will be permanent in any or all of the above areas [headache, neck pain, upper back pain, low back pain, left arm pain] to some degree." According to Dr. Kean, there is a "greater than 75% chance" that the Applicant could develop osteoarthritic changes in the cervical spine. He expected that the Applicant would need to use analgesic and anti-inflammatory drugs intermittently for the rest of his life. He recommended Amitryptiline. Although he had not examined the Applicant since June 1993, it remained Dr. Kean's opinion that the Applicant was not fit to work as a car cleaner. At the hearing, he explained that the Applicant's injury would make it difficult for him to rotate his shoulders without splinting his arms; this would make it difficult to work inside a car.

In May 1994, the Insurer asked Dr. Darracott to review further medical reports, including Dr. Kean's April 12, 1994 report.¹⁷ Dr. Darracott did not change his opinion that the Applicant was not disabled. He disagreed with Dr. Kean's view of the Applicant's neck and low back problems.

Dr. Darracott also disputed Dr. Kean's prognosis of early degenerative change in the cervical spine. He relied on a paper by V. Wright reviewing the factors to be considered in assessing the likelihood of post-traumatic osteoarthritis.¹⁸ He also noted that the cervical spine x-rays of October 27, 1993 - three years post-accident - were normal.¹⁹

Dr. Kean examined the Applicant for the second time on February 23, 1995.²⁰ The Applicant reported no significant improvement in his symptoms. In addition to his previous findings, Dr. Kean now noted "loss of muscle bulk at the left anconeus muscle compared to the right" and "marked tenderness to palpation in the distal humerus and upper ulna and radius". In his report, Dr. Kean opined that these findings were "consistent with muscle injury local nerve damage, and fracture at the lateral humerus and proximal radius". In Dr. Kean's opinion, x-rays of the Applicant's left elbow performed on February 24, 1995 showed "evidence of fracture at the lateral epicondyle of the left humerus. The corresponding articular area of the radius was also irregular consistent with a previous undisplaced fracture. These changes of the radius are clearly seen on two views." According to Dr. Kean, the x-rays also showed "early changes consistent with osteophyte formation at the neural foramina" at C4-5, C5-6 and C6-7.

When Dr. Darracott examined the Applicant again on December 21, 1994, the examination was "unchanged". Dr. Darracott reiterated his opinion that the Applicant is not disabled. He found "no evidence of wasting or loss of muscle tone" in the limbs. Once again, he disputed Dr. Kean's prognosis of early osteoarthritic changes in the cervical spine.

Dr. Kean continued the debate in his final report of March 7, 1995, and in his testimony at the hearing.

(v) Analysis

Although benefits were terminated at the end of August 1990, the Applicant claims further and ongoing benefits only from September 4, 1992, when he quit his mechanical engineering program. The Applicant testified that, at the time of the hearing, he continues to have daily pain in his neck, upper back, shoulders, and low back. The neck pain is accompanied by headaches, usually daily. His symptoms are aggravated by activity and relieved by resting, stretching, and changing position. He avoids lifting or prolonged sitting. His left forearm is tense and stiff. He has pain and numbness in his left elbow, and it feels weak when he lifts something. According to the Applicant, his symptoms are the same as or worse than they were immediately after the accident, although he copes with them better now.

As has been stated in many arbitration decisions, an insured person is not entitled to weekly income benefits just because he suffers ongoing pain as a result of the accident. I am not persuaded that the Applicant's accident-related injuries render him substantially unable to perform his essential tasks as a car cleaner after September 4, 1992.

I do not accept that the Applicant is disabled by post-concussion syndrome or any other neurological problem after September 4, 1992. The emergency report noted "no loss of consciousness". Subsequent neurological investigations by Drs. Lo and Duke have been negative. Dr. Lo opined that the Applicant's head injury was "relatively minor" and probably did not account for his symptoms. He diagnosed stress-related muscle tension headaches. Dr. Duke diagnosed post-injury headaches with muscular contraction and vascular qualities. The Applicant takes no medication for his headaches, and has not followed up with the neurologists for further treatment.

Investigation of the Applicant's complaints of neck, shoulder and low back pain has been inconclusive. Cervical spine x-rays done on February 1992 and October 1993 were negative. Dr. Wood reported in March 1993 that the Applicant had lost only about 10-15 degrees of side to side mobility in his neck. In September 1993, Dr. Darracott stated that the Applicant's loss of cervical extension, in the absence of spasm, suggested voluntary restriction of neck movement. When Dr. Wood examined the Applicant's left shoulder on February 11, 1992, he found a full range of motion, and x-rays done that day were essentially negative. On April 12, 1994, Dr. Kean found a good range of motion in the shoulders, despite tenderness to palpation over the left rhomboids muscle. X-rays of the low back have also been negative, and the most positive finding has been Dr. Kean's report of slight tenderness over the lower lumbar area. More significant is the fact that the Applicant made no complaint about neck, shoulder and low back problems until February 1992. I am not persuaded that these problems remained asymptomatic for a year and a half after the accident, then suddenly became disabling.

I do not accept that the Applicant's left elbow was fractured or otherwise seriously injured in the accident. Elbow x-rays taken on the day of the accident were negative. By July 30, 1990, Dr. Mustard noted that the wound on the left elbow had healed, although the Applicant continued to complain of slight weakness and loss of motion. After his initial elbow injuries were treated in June and July 1990, the Applicant did not seek medical treatment for the elbow until February 1992, when he complained to his family doctor about his accident-related problems. The first reference to an elbow fracture is found in Dr. Kean's March 7, 1995 report.

Dr. Kean admitted at the hearing that the radiologist who examined the February 24, 1995 x-rays had not identified any evidence of fracture. In January 1995, only a month earlier, Dr. Darracott had found "no evidence of wasting or loss of muscle tone". Dr. Kean had himself found no evidence of fracture or muscle wasting when he examined the Applicant in April 1994. Dr. Mustard and Dr. Wood found no evidence of fracture. Nor has any doctor found more than a 10% loss of motion in the elbow. Indeed, Dr. Darracott found the range of motion to be normal in September 1993 and December 1994. I find it very unlikely that any evidence of fracture or muscle wasting appearing for the first time in February 1995 is related to the motor vehicle accident some four and a half years earlier.

Moreover, I am troubled by the discrepancies in the Applicant's statements as to whether he is right-handed, left-handed, or ambidextrous. At the hearing, he testified that he is left-handed, but is "sometimes considered ambidextrous". For example, he can throw a ball or use a hammer with his right hand, "but not well". In cross-examination, he admitted that he shoots pool right-handed, that he uses both hands in sports, and that writing is the only thing he cannot do with his right hand. The WCB's first pension assessment also says that the Applicant is ambidextrous but writes with his left hand. However, in his March 30, 1989 report to the WCB²¹, Dr. Wood stated that the Applicant was right-handed. Dr. Lo also believed the Applicant was right-handed²². I find that the Applicant is sufficiently ambidextrous that any ongoing left elbow symptoms would not, in themselves, disable him from working as a car cleaner.

An important element of my decision is the fact that the Applicant did not complain about accident-related injuries until February 1992, a year and a half after the accident. He focussed on his finger injury during this time, and sought attention for his accident-related injuries only after receiving his WCB pension for the finger. Moreover, the Applicant was not referred to specialists (Dr. Lo, Dr. Kean, and Dr. Duke) until early 1993, after he had decided to claim benefits and start a lawsuit. In my view, this suggests that the Applicant's accident-related problems were not serious enough to require medical attention until he decided to focus on his legal entitlements.

In March 1993, Dr. Wood, the Applicant's family doctor, stated that the Applicant "describes a degree of dysfunction and disability far in excess of what is noted in the physical findings." Dr. Wood diagnosed mild concussion and soft tissue injury of the neck, shoulder, and left elbow. Dr. Darracott agreed with this assessment when he examined the Applicant in September 1993 and December 1994. At the hearing, Dr. Kean admitted that his examinations of the Applicant in April 1994 and March 1995 found the Applicant to be neurologically normal.

In cases of soft tissue injury, where there may be little objective evidence of injury, the Applicant's general credibility becomes an important issue. For the reasons given above, I did not find the Applicant to be a credible witness. This affects the weight I accord his subjective complaints of pain and weakness.

Dr. Wood and Dr. Kean also agreed with Dr. Darracott's recommendation that the Applicant engage in a reactivation program. Indeed, a number of the medical reports suggest that the Applicant played golf and snooker fairly frequently after September 1992²³. In his signed statement of August 31, 1993, Mr. Nelson said, "[t]he last time I saw [the Applicant] he was playing pool". At the hearing, Mr. Nelson testified that he had seen the Applicant playing pool "occasionally". On cross-examination, the Applicant admitted that he plays nine holes of golf two or three times a week, and carries his own golf bag, which weighs about 30-35 pounds. He also admitted to playing snooker regularly.

An insured person should not be penalized for attempting to return to his pre-accident activities despite ongoing pain and limitations. However, I am satisfied that the Applicant's sports activities, reported to several doctors over several years, have been more than occasional or experimental. I find that the Applicant's level of activity is inconsistent with his claim that he is unable to work as a car cleaner. In particular, the Applicant's sports activities require a strength and range of motion in the neck, shoulders, and arms which is, in my view, compatible with the physical requirements for a car washer.

Considering all the circumstances, I am not satisfied that the motor vehicle accident significantly contributed to any symptoms the Applicant has suffered after September 4, 1992. I find that after that date, he was no longer disabled from working as a car cleaner.

After 156 weeks, an insured person is not entitled to weekly benefits unless it is established that his accident-related injuries continuously prevent him from engaging in any occupation for which he is reasonably suited by education, training or experience.²⁴ This is a stricter test for entitlement. I heard no submissions as to when the 156 weeks referred to in subsection 12(5)(b) expire in this case. In any event, for the reasons given above, I am not satisfied that the Applicant's accident-related injuries continuously prevent him from engaging in other light work for which he is reasonably suited by education, training or experience.

At pre-hearing, the parties had agreed that there was no issue in this case as to the application of section 16(2) of the Schedule. In any event, the issue does not arise, given my finding that the Applicant was not disabled after September 4, 1992.

Repayment:

I find that the Applicant was entitled to weekly income benefits of $185.60 per week for the eight-week period between June 30, 1990 and August 28, 1990, for a total of $1,484.80. He received $320 per week, for a total of $2,560. The Insurer seeks repayment of the difference.

Section 27(1) of the Schedule states that:

A person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud.

In Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260²⁵, Senior Arbitrator Susan Naylor considered the meaning of the phrase "through error or fraud". She made the following comments:

... the requirement of "error" in section 27(1) requires more than an error of judgement or "being wrong" on the part of the insurer in paying benefits. Otherwise, the broader wording of Section 27(2) and (3) would be redundant. It is not sufficient therefore to establish merely that an applicant has received benefits to which he or she is subsequently adjudged not to be entitled. To give meaning to the terminology of the section, the stipulation that benefits be paid "through error" in order to be recoverable must require that responsibility for the payment be attributable in some material way to the actions of the applicant. I agree with this approach, which has been followed in a number of arbitration decisions.

In this case, benefits were overpaid as a result of the Applicant's overstatement of his income on the Employer's Confirmation of Income form. For the reasons given above, I am not satisfied with his explanation for this error. I find that the Applicant gave the Insurer inaccurate information in order to maximize his weekly benefits. Accordingly, the Applicant is required to repay the benefits overpaid.

Although the Applicant did not work while receiving weekly benefits, he did not report his absence to the Futures program, and he continued to receive his wages from TJ's. Section 15 of the Schedule states:

The insurer may deduct from any benefit payable under this Part 80 percent of any income received or available from any occupation or employment subsequent to the accident.

I heard no submissions as to whether the Applicant's wages from TJ's in July and August 1990 are "income received or available from any occupation or employment", given that they were improperly obtained as a result of the Applicant's failure to report his absence from work. In the absence of submissions, I find that this money is not "income"; presumably, it is recoverable by the Futures program.

The Insurer submitted that under section 12(4)(b) of the Schedule, it is entitled to reduce the Applicant's benefits on account of the workers' compensation benefits the Applicant received in 1991 and 1992 while attending his academic upgrading course. However, given my finding that no weekly benefits are payable after August 28, 1990, it is not necessary for me to decide this issue.

The Applicant must repay benefits overpaid, in the amount of $1,075.20, plus interest under section 27(4) of the Schedule.

Rehabilitation Services:

The Applicant seeks rehabilitation benefits, including academic upgrading, a pain management program, and appointment of a case manager. No further detail was given, and the Applicant has not submitted any specific claim to the Insurer. Given my finding that the accident is not a significant contributor in the Applicant's ongoing difficulties, I am not satisfied that rehabilitation services are required as a result of the accident.

Expenses:

The Applicant seeks an award of the expenses he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

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

The prescribed expenses and amounts are set out in Part 6 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Senior Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero and The Co-Operators General Insurance Company, February 13, 1992, OIC File No. P-000251.

I find that this application had little merit. I do not find it appropriate to exercise my discretion to award the Applicant his expenses.

Section 282(11.2) Award:

The Insurer seeks an award under section 282(11.2) of the Act, which provides as follows:

(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

Although the application had little merit, I am not persuaded that it was frivolous or vexatious, or abusive of the dispute resolution process. The Applicant and his counsel conducted the proceeding expeditiously. In my view, it is appropriate in this case, for the Insurer to bear the cost of responding to the application for arbitration.

Order:

1. The Applicant is not entitled to any further weekly income benefits after September 4, 1992.

2. The Applicant was entitled to benefits of $1,484.80 between June 30 and August 27, 1990 ($185.60 a week for eight weeks), but received benefits of $2,560 ($320 a week for eight weeks). The Applicant was overpaid by $1,075.20.

3. The Insurer is entitled to repayment of $1,075.20, with interest under section 27 of the Schedule.

4. The Applicant is not entitled to be reimbursed for his arbitration expenses.

5. The Insurer is not entitled to an award under section 282(11.2) of the Act.

December 21, 1995

Nancy Makepeace

Arbitrator

Date

Appendix

Exhibits:

1. Report of Dr. Wood, dated March 3, 1993

2. Report of Dr. Kean, dated June 24, 1993

3. Report of Dr. Duke, dated November 2, 1993

4. Report of Dr. Kean, dated August 23, 1993

5. Report of Dr. Kean, dated April 12, 1994

6. Report of Dr. Kean, dated March 7, 1995

7. Report of Dr. Darracott, dated September 17, 1993

8. Report of Dr. Darracott, dated June 13, 1994

9. Report of Dr. Darracott, dated January 18, 1995

10. Report of Dr. Darracott, dated January 30, 1995

11. Hospital records

12. WCB records

13. Employer's Confirmation of Income

14. Letter to Michael Kelly from Fiona Cochrane, dated September 8, 1994

15. Record of Employment, dated January 3, 1991

16. Memo of Royal, dated July 5, 1990

17. June 26, 1990 cheque payable to Kevin Hanna, from Royal, in the amount of $900.

18. July 5, 1990 cheque payable to Kevin Hanna, from Royal, in the amount of $1,660.

19. Income tax returns for 1989, 1990, 1991, 1992, 1993

20. Transcript

21. Paystub of April 14, 1994, in the amount of $198.

22. Records of Dr. Lo, dated January 14, 1993

23. Records of Dr. Mustard

24. X-ray report, dated October 27, 1993

25. Records of Dr. Wood

26. Statement of Tom Nelson, dated August 31, 1993

27. Employer/Participant Work Experience Placement Agreement

Other Documents before the Arbitrator:

Report of Mediator, issued August 18, 1993

Report of Mediator, issued January 13, 1995

Application for Arbitration, dated January 16, 1995

Application for Appointment of an Arbitrator, dated February 23, 1994

Response to an Application for Arbitration, dated February 2, 1995

Response by Insurer, dated April 22, 1994

Reply by Insured Person, dated May 17, 1994

Pre-hearing letter dated August 16, 1994

Pre-hearing letter dated March 8, 1995

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. 2Employer's Confirmation of Income form, Exhibit 13; Written statement signed by Mr. Nelson, Exhibit 26; Record of Employment, Exhibit 15; Applicant's income tax return for 1990, Exhibit 19; Letter prepared by Fiona M.S. Cochrane, a clerk with the Futures Program, Exhibit 14; and sample "Employer/Participant Work Experience Placement Agreement" form, Exhibit 27.
3. 3Exhibit 11
4. 4Dr. Mustard's clinical notes and records, Exhibit 23
5. 5Exhibits 17 and 18
6. 6Exhibit 26
7. 7Exhibit 12
8. 8The Applicant's 1989 income tax return (Exhibit 19) indicates that his only employment income in 1989 was $5,120.59 from Stanpac. His 1990 income tax return reports no income from Stanpac.
9. 9Exhibit 25
10. 10Exhibit 20
11. 11Exhibit 1
12. 12Consultation note dated June 24, 1993, Exhibit 2, and Medical-legal report dated April 12, 1994, Exhibit 5
13. 13Report dated August 23, 1993, Exhibit 4
14. 14Reports dated September 17, 1993, Exhibit 7; June 13, 1994, Exhibit 8; January 18, 1995, Exhibit 9; and January 30, 1995, Exhibit 10.
15. 15Exhibit 21
16. 16Exhibit 5
17. 17Exhibit 5
18. 18"Post-Traumatic Osteoarthritis - A Medico-Legal Minefield", British Journal of Rheumatology 1990; 29:474-478.
19. 19Exhibit 24
20. 20Report dated March 7, 1995, Exhibit 6
21. 21Exhibit 12
22. 22Consultation note to Dr. Wood, January 14, 1993, Exhibit 22
23. 23For example, see Dr. Daracott's September 1993 and January 1995 reports, and Dr. Kean's March 1995 report.
24. 24Upheld on appeal, dated September 29, 1992
25. 25Upheld on appeal, dated September 29, 1992