Neutral Citation: 1995 ONICDRG 60
File No. A-004077
ONTARIO INSURANCE COMMISSION
BETWEEN:
COMFORT AYERTEY
Applicant
and
TORONTO TRANSIT COMMISSION (MARKEL INSURANCE COMPANY OF CANADA)
Insurer
DECISION
Issues:
The Applicant, Comfort Ayertey, was injured in a motor vehicle accident on June 28, 1992. She applied for and received weekly income benefits from the Toronto Transit Commission ("the T.T.C."), under section 12 of Ontario Regulation 6721. The T.T.C. terminated weekly income benefits on September 13, 1992. Mrs. Ayertey claims that she continued to be eligible for weekly benefits until February 28, 1993.
The parties were unable to resolve their disputes through mediation and Mrs. Ayertey applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. Ayertey entitled to weekly benefits for any period from September 14, 1992 to February 28, 1993?
Is Mrs. Ayertey entitled to weekly benefits under section 12 (income benefit) or section 13 of the Schedule (benefit if no income) ?
Is Mrs. Ayertey entitled to a special award under section 282(10) of the Insurance Act?
Mrs. Ayertey also claims interest on any amounts owing, and her expenses incurred in respect of this arbitration proceeding.
Result:
Mrs. Ayertey is not entitled to weekly benefits for any period from September 14, 1992 to February 28, 1993.
Mrs. Ayertey is not entitled to a special award.
Mrs. Ayertey is not entitled to her expenses.
Hearing:
The hearing was held in North York, Ontario, on June 16, 1994 and June 17, 1994, before me, Shemin Manji, arbitrator.
Present at the Hearing:
Applicant: Comfort Ayertey
Applicant's Representative: Altor Shields Barrister and Solicitor
Insurer's Representative: Karen McGuire Barrister and Solicitor
Witnesses: Comfort Ayertey Michael Giavedoni Jim Bailey Mark Chiarelli Steven Flood
A list of exhibits and other documents on the record is attached as Schedule A.
Reasons for Decision:
A. Weekly Benefits
(1) Background Facts and Issues:
The Applicant, Comfort Ayertey, is 41 years old. On June 28, 1992, she was a passenger on a T.T.C. bus when it was suddenly cut off by a car. The driver of the bus, Mr. Michael Giavedoni, slammed on the brakes to avoid hitting the car. Mrs. Ayertey was standing in the bus at the time. She was thrown forward and injured from the impact.
Following the accident, Mrs. Ayertey was taken to Humber Memorial Hospital where she was examined and released (Exhibit 1, Tab 1).
Mrs. Ayertey was not working at the time of the accident. However, she had been employed by Nestlé Enterprises Limited ("Nestlé") in 1990 and 1991 as a temporary, seasonal employee. She claims that, shortly before the accident, she was called by Nestlé to return to work on June 29, 1992.
Mrs. Ayertey received weekly income benefits, under section 12 of the Schedule, until September 13, 1992. She claims weekly income benefits, under section 12 of the Schedule, from September 14, 1992 to February 28, 1993.
The T.T.C. states that Mrs. Ayertey was not employed at the time of the accident and should have been paid weekly benefits under section 13, not section 12. It also contends that Mrs. Ayertey did not suffer a substantial disability after September 13, 1992 and therefore is not entitled to weekly benefits after that date.
I will deal with the disability issue first.
(2) Was Mrs. Ayertey disabled after September 13, 1992?
My assessment of Mrs. Ayertey's credibility is central to my determination of whether she was disabled beyond September 13, 1992. Mrs. Ayertey's testimony and the medical documents that she tendered as evidence in this hearing are useful in determining her entitlement to additional statutory accident benefits only to the extent that I find Mrs. Ayertey to be a truthful and reliable witness. I have concluded that Mrs. Ayertey is not a credible witness and that, in general, her testimony is unreliable. I have based my assessment of Mrs. Ayertey's credibility upon the following factors.
Mrs. Ayertey testified that on the day following the accident, she felt a lot of pain in the left side of her waist, left side of her shoulder and her entire neck. She also felt dizzy and had a headache. She testified that she was supposed to report for work at Nestlé on June 29, 1992, but she did not because she could not stand and bend due to the pain in her left shoulder and the left side of her waist. Mrs. Ayertey testified that during the period September 13, 1992 to February 28, 1993 her condition improved, but not enough to allow her to perform her essential tasks.
Mrs. Ayertey attributes her ongoing disability after September 13, 1992 in large part to a left shoulder injury that she alleges she sustained in the accident. However, Mrs. Ayertey provided several different accounts of the injuries she suffered on the bus on June 28, 1992 and how she suffered the injuries. These inconsistencies in her account of the accident cause me to question her credibility.
Immediately following the accident, Mrs. Ayertey was taken to Humber Memorial Hospital. The records of Humber Memorial Hospital (Exhibit 1, Tab 1) indicate that she informed the staff at the hospital that she was standing on the bus. The bus came to a sudden stop. She "...hit left post ribs on pole". The diagnosis of the doctor who examined Mrs. Ayertey at the hospital was rib contusion. There was no mention of injury or pain to the left shoulder.
On June 29, 1992, the day following the accident, Mrs. Ayertey attended at the office of Dr. Y. Rehemtula, her family doctor. Dr. Rehemtula was away on vacation. Mrs. Ayertey was seen by a Dr. R.E. Edney instead. Dr. Edney's notes (Exhibit 2, Tab 2) indicate that Mrs. Ayertey informed him that she was on a bus on the previous day, the bus stopped suddenly, she "...fell back against bar". Dr. Edney's notes also indicate that Mrs. Ayertey complained of pain in her neck and low back. During his examination, Dr. Edney noted that Mrs. Ayertey was tender in the back (cervical and lumbar area) but that there were no radiating symptoms. He concluded that Mrs. Ayertey had sustained a back and neck strain.
Mrs. Ayertey changed family doctors after her visit with Dr. Edney. Dr. Nwafor Agulefo became her family doctor on June 30, 1992, the next day. Dr. Agulefo's clinical notes and records (Exhibit 2, Tab 10) indicate that when Mrs. Ayertey saw him on June 30, 1992, she informed him that she was on a T.T.C. bus on June 28, 1992:
...when a second car suddenly crossed in front of the bus causing the driver to apply the bus brakes with [such] force that the passengers were thrown out of their seats and jerked forwards to pole beside the driver and backwards injuring themselves.
[Mrs. Ayertey] injured her back, left flank, neck and with pains and aches all over the body. Crush injury left forearm. Arm swollen and tender down to the wrist.
It is interesting to note that this is the first and only mention of Mrs. Ayertey having sustained a crush injury in her left arm in the accident of June 28, 1992. This is also the first mention of an injury to the left flank.
Mrs. Ayertey gave a statement to the T.T.C. on July 7, 1992. The statement (Exhibit 2, Tab 9) says that Mrs. Ayertey was standing in the front of the bus, in front of the bench seat on the door side of the bus holding on to a pole with her right hand, when the driver of the bus stopped the bus suddenly, to avoid hitting a car that had cut across the bus. The statement says that when the bus stopped, Mrs. Ayertey fell forward and lost her grip. She struck her left hip on the padded rail by the fare box.
On July 31, 1992, Mrs. Ayertey saw Dr. Zeldin, an orthopaedic specialist, at the request of the T.T.C. In his report of July 31, 1992 (Exhibit 2, Tab 5), Dr. Zeldin states that Mrs. Ayertey complained of persistent pain in her neck, back, chest and left shoulder, as well as recurring headaches. Dr. Zeldin states that Mrs. Ayertey related the following history of injury to him: "...she was standing on a bus. The bus stopped suddenly and [she] was jolted, striking the left side of her back on an upright post." Based on the history related to him by Mrs. Ayertey, Dr. Zeldin could not find a satisfactory explanation for her complaints of left shoulder pain and chest pain.
Last, but not least, Mrs. Ayertey saw a dentist, Dr. Barry Laibovitz, for a temporomandibular joint (TMJ) test in November 1992. In his report of November 17, 1992 (Exhibit 1, Tab 2), Dr. Laibovitz indicates that Mrs. Ayertey informed him that when the bus driver applied his brakes suddenly, "(h)er back hit the fare box and pole". This is the first mention of Mrs. Ayertey striking the fare box (a steel box with sharp edges).
These discrepancies by the doctors in reporting the injuries that Mrs. Ayertey suffered in the bus accident on June 28, 1992 and how she suffered those injuries were not explained at the hearing. It is improbable that all of the doctors would have misreported Mrs. Ayertey's account of the accident and her injuries.
Further, at the hearing, in her examination-in-chief, Mrs. Ayertey testified that she was standing at the front of the bus on the door side of the bus when a car cut across the bus. When the driver applied the brakes, she was thrust forward and the left side of her body, specifically the left side of her waist and her left shoulder, struck the fare box near the driver. On cross-examination, Mrs. Ayertey testified that when the driver of the bus applied the brakes suddenly, everyone in the bus was pushed forward. She tried to hold on to the horizontal pole at the front of the bus with her left hand. She grabbed the pole so hard that she hurt her left shoulder. Her hand slipped along the pole to the fare box and the left side of her body hit the fare box.
On cross-examination, Mrs. Ayertey agreed with counsel for the T.T.C. that the discrepancy between the statement she gave to the T.T.C. on July 7, 1992 and her testimony was significant. She agreed that if she had been holding the pole with her right hand, as indicated in the statement, her right shoulder would have been injured. However, Mrs. Ayertey testified that the statement that she gave to the T.T.C. was inaccurate. She testified that although she signed the statement, it was written by Mr. Jim Bailey of the T.T.C. and she did not read the statement before she signed it. I am unable to accept this explanation. Mr. Bailey testified at the hearing. I accept his evidence that although he wrote the statement, it was based on information provided to him by Mrs. Ayertey, and she read each page of the statement before signing it.
Mrs. Ayertey's testimony about how she sustained injuries in the accident on June 28, 1992 was also contradicted by the bus driver, Mr. Michael Giavedoni. Mr. Giavedoni testified that the bus was travelling at a speed of five to ten kilometres per hour when a car cut across the bus. He testified that before he applied the brakes, Mrs. Ayertey was standing and holding, with her right hand, the first vertical bar on the bus. When he applied the brakes suddenly, she was thrown forward and she hit the left side of her body against the horizontal padded bar protecting the fare box. Mrs. Ayertey told him afterwards that she had hurt her back and that she was feeling light-headed. He testified that, to his knowledge, no one else was injured in the accident.
The discrepancies in Mrs. Ayertey's testimony about how she injured her left shoulder in the accident, the inconsistencies between her testimony and the history of her injuries that she gave to the various doctors who assessed her, and the inconsistencies between her testimony and the testimony of Mr. Giavedoni call into question the legitimacy of her claim. These discrepancies cast doubt on her claim that her complaints of left shoulder pain after September 13, 1992 were related to the accident and also on her claim that she was disabled after that date.
These discrepancies and inconsistencies in Mrs. Ayertey's evidence assume even greater significance when considered in conjunction with her failure to advise doctors who assessed and treated her that she had problems with her neck and shoulders, in particular her left shoulder, prior to the accident.
Dr. Rehemtula's clinical notes and records (Exhibit 2, Tab 2) indicate that Mrs. Ayertey was involved in a motor vehicle accident in May 1989. She complained of pain in her neck and both shoulders following that accident. Dr. Rehemtula's clinical notes and records also indicate that Mrs. Ayertey was involved in an accident on December 26, 1990 when she was running from a house fire and tripped and fell. She dislocated and fractured her left shoulder in this accident. Mrs. Ayertey was seen and treated by an orthopaedic surgeon, Dr. Rick Zarnett, at the fracture clinic at Humber Memorial Hospital on January 3, 1991. In his consultation report of January 7, 1991 (Exhibit 2, Tab 3), Dr. Zarnett states that he warned Mrs. Ayertey about the possibility of recurrent dislocation with this type of injury. Mrs. Ayertey was also seen and treated by another orthopaedic surgeon, Dr. Donald McGonigal, between January 16 and February 6, 1991, for her left shoulder injury, and received physiotherapy (Exhibit 2, Tab 4).
Mrs. Ayertey was specifically asked about her health prior to the accident by some of the doctors who assessed her after the accident. On July 22, 1992, she saw Julie Hill-Flewelling, Ph.D. and James Belfrage, Ph.D., C. Psych., at the Premier Treatment & Health Management Centre ("Premier"), for the purposes of a psychological assessment. In their report of July 22, 1992 (Exhibit 1, Tab 3), Dr. Hill-Flewelling and Dr. Belfrage indicate that Mrs. Ayertey informed them that she had not been involved in any previous accidents. On July 31, 1992, Mrs. Ayertey saw Dr. Zeldin at the request of the T.T.C. In his report of July 31, 1992 (Exhibit 2, Tab 5), Dr. Zeldin indicates that Mrs. Ayertey informed him that "... she has always been in good active health prior to this injury. She has had no previous difficulty in this regard." (Exhibit 2, Tab 5)
At the hearing, Mrs. Ayertey testified that she did not tell the doctors about the May 1989 accident because she had forgotten about it. It was not serious. Mrs. Ayertey testified that she told Dr. Hill-Flewelling and Dr. Zeldin about the December 1990 accident in which she fractured her left shoulder. I do not accept Mrs. Ayertey's testimony that she had forgotten about the May 1989 accident. Further, I do not accept her testimony that she told Dr. Hill-Flewelling and Dr. Zeldin about the December 1990 accident. It is improbable that both Dr. Hill-Flewelling and Dr. Zeldin would fail to report the previous injury to Mrs. Ayertey's left shoulder and say that she said something that she didn't.
Mrs. Ayertey's failure to accurately report her medical history casts even more doubt over her credibility. I also find that her previous history is relevant in my assessment of the degree of disability, if any, that she suffered after September 13, 1992 as a result of the accident.
Mrs. Ayertey withheld from the T.T.C. the name of her prior family doctor, Dr. Rehemtula, despite repeated requests from the T.T.C. for this information. Mrs. Ayertey kept insisting that she had had no other family doctor and that Dr. Agulefo was her family doctor prior to the accident (Exhibit 9), even though she testified, at the hearing, that she had only seen Dr. Agulefo once before the accident, in 1989.
The records of Humber Memorial Hospital of June 28, 1992 state that "Dr. Ramatoo" was her family doctor. It appears that someone who was not familiar with the name "Rehemtula" made an error. Mrs. Ayertey kept insisting that she had no knowledge of and had never seen a doctor by this name (Exhibit 9). The T.T.C. was only able to confirm that Mrs. Ayertey had a family doctor prior to the accident and to obtain her correct name and copies of her clinical notes and records after it received a summary of Mrs. Ayertey's OHIP records from the Ministry of Health.
At the hearing, Mrs. Ayertey testified that the reason she did not provide the T.T.C. with this information was because she had not seen Dr. Rehemtula for a long time and had forgotten about her. I am unable to accept this explanation. The records from Humber Memorial Hospital indicate that she informed staff at the Hospital that she had a family physician and provided them with a name that was remarkably similar. Further, the clinical notes of Dr. Rehemtula indicate that Mrs. Ayertey attended at her office on at least 11 occasions before the accident and as recently as the day after the accident. The only inference that I can draw from Mrs. Ayertey's failure to disclose her prior family physician's name is that she did not want the T.T.C. to find out about her previous injuries.
Again, Mrs. Ayertey's failure to disclose important information to the T.T.C. and the doctors who were assessing her, calls into question the legitimacy of her complaints of pain after September 13, 1992 and their relationship to the accident of June 28, 1992.
Mrs. Ayertey relies on the reports of Dr. Agulefo, of September 10, 1992 (Exhibit 1, Tab 5), November 4, 1992 (Exhibit 1, Tab 6), November 16, 1992 (Exhibit 1, Tab 8), January 11, 1993 (Exhibit 1, Tab 7) and January 19, 1993 (Exhibit 1, Tab 9), to prove that she suffered a substantial inability to perform her essential tasks after September 13, 1992. She also relies on the report of Dr. Hill-Flewelling and Dr. Belfrage of July 22, 1992, and the report of Dr. Laibovitz, a dentist, of November 17, 1992. I will review Dr. Agulefo's reports first.
(a) The reports of Dr. Agulefo
I did not find Dr. Agulefo's reports helpful. A review of his reports confirms that Mrs. Ayertey's left shoulder complaints played a significant role in her alleged disability after September 13, 1992. However, the reports also indicate that Dr. Agulefo's evaluation of Mrs. Ayertey's disability after the accident was dependent on her history of her alleged injuries from the accident, and her complaints of pain.
Further, it appears from Dr. Agulefo's reports that he was not aware that Mrs. Ayertey had sustained any previous injuries. This is confirmed by a review of his clinical notes and records. Dr. Agulefo's clinical notes and records indicate that he saw Mrs. Ayertey on approximately 13 occasions in connection with the injuries she allegedly sustained in the accident. However, it does not appear from the notes that Dr. Agulefo was familiar with Mrs. Ayertey's medical history. Dr. Agulefo's clinical notes and records show that the first time he ever saw Mrs. Ayertey was on June 30, 1992, two days after the accident. There is no indication from his notes of that day or any other day that he obtained any information from Mrs. Ayertey about her medical background. He had no information about Mrs. Ayertey's previous accidents and injuries. Therefore, Dr. Agulefo's reports do not address the question of whether the previous injuries, in particular the injury to her left shoulder, contributed in any significant way to her disability after the accident.
Dr. Agulefo's clinical notes and records indicate that Mrs. Ayertey had repeated attacks of bronchitis in August, October and December 1992 and that these attacks were debilitating. Yet, none of Dr. Agulefo's reports address the functional implications of these attacks for Mrs. Ayertey and whether they contributed in any significant way to her disability after August 1992.
During those attacks, Mrs. Ayertey complained of, among other things, pain in the chest and headaches (some of the same complaints which Mrs. Ayertey and Dr. Agulefo attributed to the accident). Dr. Agulefo's clinical notes and records indicate that the frequency of these attacks was of sufficient concern to him that, in January 1993, he referred her to Dr. Howard Minuk, a specialist in Internal Medicine (Exhibit 2, Tab 10). After performing pulmonary function studies, Dr. Minuk concludes, in his report of January 28, 1993 (Exhibit 2, Tab 10), that Mrs. Ayertey most likely had asthma. In a follow-up report dated February 9, 1993 (Exhibit 2, Tab 10), Dr. Minuk states that Mrs. Ayertey felt markedly improved as a result of the treatment that he prescribed on January 27, 1993. He states that further pulmonary function studies indicated that Mrs. Ayertey "...probably ha[d] a residual air flow obstruction combined with a definite element of lung restriction which most likely is related to her weight".
(b) The report of Dr. Julie Hill-Flewelling and Dr. James Belfrage
Following his first visit with Mrs. Ayertey on June 30, 1992, Dr. Agulefo referred her to Premier for treatment. Premier's clinical notes and records indicate that Mrs. Ayertey was seen by Dr. Hill-Flewelling and Dr. Belfrage for a psychological assessment on July 22, 1992. Based on the information provided to them by Mrs. Ayertey and psychological tests that they conducted, Drs. Hill-Flewelling and Belfrage conclude, in their report of July 22, 1992 (Exhibit 1, Tab 3), that Mrs. Ayertey was suffering from depression and anxiety secondary to the injuries she sustained in the accident. They recommended psychological counselling.
I did not find the report of Drs. Hill-Flewelling and Belfrage helpful. The report says nothing about the extent of Mrs. Ayertey's psychological disability, if any, after September 13, 1992. Drs. Hill-Flewelling and Belfrage do not make a prognosis or comment on the duration of Mrs. Ayertey's psychological disability. Further, their finding that Mrs. Ayertey was suffering a psychological disability as a result of the accident appears to have been based entirely on the information that she provided to them about her history and her pre-accident activities. The evidence indicates that Mrs. Ayertey was not honest and accurate in reporting her medical history to them. For example, she informed them that she had not been involved in any previous accidents.
(c) The report of Dr. Laibovitz
Premier's clinical notes and records (Exhibit 1, Tab 3) indicate that Mrs. Ayertey was also referred by Premier to see a dentist, Dr. Barry Laibovitz, for a temporomandibular joint (TMJ) test, in October 1992. Dr. Laibovitz conducted an assessment on November 17, 1992 and, in his report of the same date (Exhibit 1, Tab 2), concludes that Mrs. Ayertey had a temporomandibular joint disorder as a result of a whiplash-type injury she sustained in her accident of June 28, 1992. He notes, however, that he found the whiplash-type injury that Mrs. Ayertey was suffering from "...unusual in view of the trauma which she suffered".
In his report, Dr. Laibovitz recommends treatment involving the use of a removable appliance - an intra-oral orthotic. He states that his treatment would take approximately three months. He also suggests that Mrs. Ayertey receive intensive physiotherapy and a consultation with a psychotherapist because, in his opinion, she appeared to be suffering from "the psychological remnants of post-traumatic syndrome".
I did not find Dr. Laibovitz' report helpful. Dr. Laibovitz does not discuss or provide an opinion of the effect of the TMJ problem on Mrs. Ayertey's pre-accident activities. He does not comment on the extent and duration of her disability at the time of his assessment, if any. Further, Dr. Laibovitz' opinion that Mrs. Ayertey's TMJ problem was caused by her accident of June 28, 1992, appears to have been based entirely on the information provided to him by Mrs. Ayertey.
The evidence indicates that there are significant discrepancies between Mrs. Ayertey's description of her injuries and complaints to Dr. Laibovitz, and her description of her injuries and her complaints to the T.T.C. and to other health care professionals who assessed her and treated her. For example, Mrs. Ayertey advised Dr. Laibovitz that immediately following the accident, her jaws made noise and, since the accident, her jaw had become fatigued whenever she chewed. This is the first mention of any jaw complaint after the accident. No other health professionals mention that Mrs. Ayertey complained of jaw problems. I note that a specific category for "TMJ" complaints exists in the standard interim reports that Premier sent to Dr. Agulefo. This category was never circled or ticked by the person completing the reports. I am unable, from a review of the notes and records of Premier and of Dr. Laibovitz, to discern the reason why Mrs. Ayertey was referred by Premier to Dr. Laibovitz. At the hearing, Mrs. Ayertey testified that she experienced jaw problems immediately following the accident and reported her problems to Dr. Agulefo and Premier. However, Mrs. Ayertey could not explain why her complaints were not recorded by them. Neither Dr. Agulefo nor anyone from Premier was called to testify on her behalf.
(d) The reports of Dr. Zeldin
In contrast to the reports of Drs. Agulefo, Laibovitz, Hill-Flewelling and Belfrage, I found the reports of Dr. John Zeldin, dated July 31, 1992 and November 27, 1992, more complete. They include his opinion of the effect of the injuries that Mrs. Ayertey sustained on her work and pre-accident activities, and comments about the duration of her disability. However, they too are limited by the fact that Dr. Zeldin was not provided with an accurate medical history from Mrs. Ayertey.
Dr. Zeldin conducted examinations of Mrs. Ayertey on July 31 and November 27, 1992, at the request of the T.T.C. In his report of July 31, 1992 (Exhibit 2, Tab 5), Dr. Zeldin concludes, based on his information from Mrs. Ayertey, his physical examination and his review of her x-rays that, on June 28, 1992, Mrs. Ayertey sustained a soft tissue contusion and strain in her back. This contusion produced some pain and discomfort. Dr. Zeldin could not find a satisfactory explanation for Mrs. Ayertey's complaint of chest and left shoulder pain arising out of such an injury. He notes that x-rays of Mrs. Ayertey's left shoulder showed a little irregularity; however he opines that this was not related to the accident.
Dr. Zeldin opines that as a result of the contusion she sustained, Mrs. Ayertey could suffer pain, discomfort, and impairment for some weeks or perhaps a month or two. He feels that, in the normal course of events, he would anticipate that she could return to work by September 11, 1992 (six weeks from July 31). However, Dr. Zeldin states that he is reluctant to prognosticate in Mrs. Ayertey's case because during his examination of her, she presented "... a picture of such over-reaction and exaggeration of response". Dr. Zeldin states that Mrs. Ayertey would require reassessment if she has ongoing difficulty beyond that timeframe.
Mrs. Ayertey submitted that Dr. Zeldin's failure to specify a timeframe for her return to work and his statement that she would require reassessment if she had ongoing difficulty after six weeks supports her position that she suffered a substantial inability to perform her essential tasks after September 13, 1992. I agree that Dr. Zeldin's report of July 31, 1992 is inconclusive. However, when that report is read in conjunction with his report of November 27, 1992, it refutes Mrs. Ayertey's position. In his report of November 27, 1992 (Exhibit 2, Tab 6), Dr. Zeldin states as follows:
My opinion at the present time is much as previously outlined. That is to say, patient sustained what appears to be a minor or at the most moderate soft tissue contusion and strain which is consistent with some pain and discomfort for a few weeks or at the most a few months. Patient's ongoing complaints have taken a far more protracted course than one can explain by the nature of her injury or the subsequent findings.
Taking the whole picture in balance, it is my opinion that, while not wishing to deny patient her complaints, she is long since over the significant physical sequelae of her injury .... She is physically able to return to her regular activity including the essential duties of her occupation. [emphasis added]
(3) Conclusion
I find that Mrs. Ayertey is not entitled to weekly benefits after September 13, 1992. As I indicated at the outset, my assessment of Mrs. Ayertey's credibility is central to my determination that she did not continue to suffer a substantial disability after September 13, 1992. Based on my assessment of her credibility, I do not accept her claim that she was disabled beyond September 13, 1992 because of her alleged injuries from the accident.
The opinions of doctors who assessed and treated Mrs. Ayertey are necessarily dependent upon the honesty and accuracy of her report of how the accident occurred, the injuries she sustained, her symptoms, and any pre-existing conditions. The evidence indicates that she was not honest or accurate in reporting her injuries, symptoms and medical history. Therefore, I did not find the medical opinions of the doctors who assessed her helpful in determining her entitlement to weekly benefits.
I am not satisfied that Mrs. Ayertey suffered any disability, as a result of the accident, after September 13, 1992. Therefore, I do not need to determine whether she qualifies for weekly benefits under section 12 or section 13 of the Schedule.
B. Special Award
Mrs. Ayertey seeks a special award under section 282(10) of the Insurance Act. Section 282(10) provides as follows:
If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
Mrs. Ayertey submits that the T.T.C. unreasonably withheld payment of weekly income benefits after September 13, 1992. Further, Mrs. Ayertey submits that the T.T.C. unreasonably delayed payment of weekly income benefits prior to September 13, 1992.
I have determined that Mrs. Ayertey is not entitled to any weekly benefits after September 13, 1992. Accordingly, I find that the T.T.C. acted reasonably in terminating these benefits on September 13, 1992.
The issue of Mrs. Ayertey's entitlement to weekly benefits prior to September 13, 1992 was not before me in this arbitration. Under the circumstances, I am not in a position to determine whether the T.T.C. unreasonably delayed payment of weekly benefits prior to September 13, 1992. In any event, even if I were to find that the T.T.C. acted unreasonably, a special award is based on the amount to which the Applicant is entitled at the time of the award. I have concluded in this case that Mrs. Ayertey is not entitled to any additional weekly benefits. Therefore, I cannot make a special award.
C. Expenses
Mrs. Ayertey seeks an award of the expenses she has incurred in this arbitration. An arbitrator's authority to make an award for expenses in favour of an applicant is found 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. [emphasis added]
Arbitrators have generally exercised their discretion to award applicants their expenses, regardless of outcome. However, expenses have been denied where it has been determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
I do not believe that this is an appropriate case in which to award the Applicant her expenses. I accept that Mrs. Ayertey suffered an injury in the accident of June 28, 1992. However, I found her claim for additional weekly benefits without merit. I found Mrs. Ayertey less than candid in her testimony. She attempted to construct a claim that would maximize her benefits by withholding important information from the T.T.C. and the health care professionals who were assessing and treating her. According, I decline to exercise my discretion to award expenses to Mrs. Ayertey.
Order:
Mrs. Ayertey is not entitled to weekly benefits for any period from September 14, 1992 to February 28, 1993.
Mrs. Ayertey is not entitled to a special award.
Mrs. Ayertey is not entitled to her expenses.
June 1, 1995
Shemin Manji Arbitrator
Date
SCHEDULE A - THE RECORD
The following documents were introduced into evidence:
Exhibits:
Exhibit 1 Applicant's Document Brief
Tab 1 Records of Humber Memorial Hospital
Tab 2 Clinical notes and records of Dr. Barry Laibovitz
Tab 3 Notes and records of Premier Treatment & Health Management Centre
Tab 4 Letter dated July 2, 1993 from Dr. Laibovitz to Lofranco, Sabetti, Daly
Tab 5 OMPP Medical Report (Form 4) of Dr. Nwafor Agulefo dated September 10, 1992
Tab 6 OMPP Medical Report (Form 4) of Dr. Agulefo dated November 4, 1992
Tab 7 OMPP Medical Report (Form 4) of Dr. Agulefo dated January 11, 1993
Tab 8 Report of Dr. Agulefo dated November 16, 1992
Tab 9 Report of Dr. Agulefo dated January 19, 1993
Exhibit 2 Respondent's Document Brief
Tab 1 OHIP Summary
Tab 2 Clinical notes and records of Dr. Y. Rehemtula
Tab 3 Clinical notes and records of Dr. Rick Zarnett
Tab 4 Clinical notes and records of Dr. Donald McGonigal
Tab 5 Report of Dr. John Zeldin dated July 31, 1992
Tab 6 Report of Dr. Zeldin dated November 27, 1992
Tab 7 Report of Mantis Investigation Agency
Tab 8 Taxi receipts from June 30, 1992 to September 25, 1992
Tab 9 Statement by Comfort Ayertey
Tab 10 Clinical notes and records of Dr. Agulefo
Tab 11 OMPP Medical Report (Form 4) of Dr. Agulefo dated June 30, 1992
Tab 12 OMPP Medical Report (Form 4) of Dr. Agulefo dated September 10, 1992
Tab 13 OMPP Medical Report (Form 4) of Dr. Agulefo dated November 4, 1992
Tab 14 Invoice dated January 28, 1993 of Dr. Agulefo to Premier Treatment and Health Management Centre
Exhibit 3 Letter dated September 28, 1992 from Nestle Enterprises Limited, Confectionery Division to the T.T.C.
Exhibit 4 Nestlé Employee Requisition dated June 17, 1992
Exhibit 5 OMPP Employer's Confirmation of Income dated July 8, 1992
Exhibit 6 T.T.C. Claim Settlement Draft dated October 27, 1992 & Garexy courier slip dated October 27, 1992 from Lofranco, Longley & Vickar to 1835 Yonge Street, 2nd Floor, Toronto.
Exhibit 7 Letter dated July 13, 1992 from Lofranco & Sabetti to the T.T.C.
Exhibit 8 Letter dated July 21, 1992 from the T.T.C. to Lofranco & Sabetti
Exhibit 9 Letter dated April 11, 1994 from Lofranco, Sabetti, Daly to the T.T.C.
Other documents before the Arbitrator, but not marked as exhibits:
Report of Mediator, dated April 20, 1993
Application for Appointment of an Arbitrator, dated May 16, 1993
Response by Insurer, dated June 10, 1993
Pre-hearing letter, dated August 30, 1993
Letter dated October 21, 1993, from Lofranco, Sabetti, Daly to the Ontario Insurance Commission
Letter dated October 26, 1993, from the Ontario Insurance Commission to Lofranco, Sabetti, Daly
Letter dated November 22, 1993, from Lofranco, Sabetti, Daly to the Ontario Insurance Commission
Application for Appointment of an Arbitrator, dated December 5, 1993
Response by Insurer, dated January 7, 1993
Pre-hearing letter, dated March 17, 1994
Order to the Ministry of Health of Arbitrator Draper dated March 17, 1994 (Summary of OHIP records)
Order to Dr. Agulefo of Arbitrator Draper dated March 17, 1994 (clinical notes and records)
Letter dated April 4, 1994, to Lofranco, Sabetti, Daly from the T.T.C.
Decision on Preliminary Issue of Arbitrator Draper dated April 5, 1994
Letter dated May 4, 1994, from Arbitrator Shemin Manji to the T.T.C.
Order to Dr. McGonigal of Arbitrator Manji dated May 4, 1994 (clinical notes and records)
Order to Dr. Zarnett of Arbitrator Manji dated May 4, 1994 (clinical notes and records)
Order to Dr. Rehemtula of Arbitrator Manji dated May 4, 1994 (clinical notes and records)