Neutral Citation: 1995 ONICDRG 61
File No. A-007035
ONTARIO INSURANCE COMMISSION
BETWEEN:
MAS NISHIMURA
Applicant
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Mas Nishimura, was injured in a motor vehicle accident on August 30, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on July 21, 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:
Is Mr. Nishimura's claim properly considered under section 12 of the Schedule? If so, what is the proper amount of his weekly income benefits, and what is their duration?
If Mr. Nishimura's claim is not properly considered under section 12, is he eligible for section 13 benefits, and if so, what is the duration of benefits?
The Insurer claims repayment of any benefits overpaid. The Applicant seeks repayment of his expenses incurred in the hearing and interest on any amounts owing. A claim for a special award was withdrawn at the hearing.
Result:
Mr. Nishimura was not employed, self-employed or unemployed, in the sense required under section 12, at the time of the accident and therefore no benefits are payable under section 12.
The evidence presented did not establish that Mr. Nishimura was substantially unable to perform his essential tasks as a result of the accident; therefore no benefits are payable under section 13.
Royal is entitled to repayment of the section 12 benefits paid, in the amount of $8,606.
The Applicant is entitled to his expenses incurred in the arbitration.
Hearing:
The hearing was held in North York, Ontario, on March 29 and 30, 1995, before me, Ruth Hartman, arbitrator.
Present at the Hearing:
Applicant:
Mas Nishimura
Applicant's Representative:
Peter B. Cozzi Barrister and Solicitor
Insurer's Representative:
Stanley C. Tessis Barrister and Solicitor
Evidence:
I heard evidence under oath from Mr. Nishimura and Mr. Angus Carmichael. Their evidence was recorded by a court reporter provided by the Insurer. Twelve exhibits were filed during the two days of hearing.
Cases cited:
Vito Luigi Calogero and The Co-operators General Insurance Company, November 20, 1991, OIC File No. A-000251
S.D. Kahkesh and Lloyd's Non Marine Underwriters, March 31, 1992, OIC File No. A-000378, appeal decision August 19, 1992, OIC File No. P-000378
Margherita Menonna and Allstate Insurance Company of Canada, August 30, 1994, OIC File No. A-003005
Albert Stoll and Kingsway General Insurance Company, October 18, 1991, OIC File No. A-000386
Theresa Walicki and Security National Insurance Company, January 27, 1993, OIC File No. A-001403
Douglas R.G. Williams and Jevco Insurance Company, May 6, 1992, OIC File No. A-000112
Reasons for Decision:
Mr. Nishimura was a front seat passenger in a motor vehicle which was struck on the rear passenger side on August 30, 1992. On November 30, 1992, he applied for, and received, insurance benefits from September 7, 1992 to July 21, 1993, except for a period of employment from October 26, 1992 to November 17, 1992.
A. Section 12 entitlement
1. Background
Mr. Nishimura, aged 71, received a Grade 8 education in Canada before beginning his working life at age 12. He was employed by the Royal Canadian Yacht Club (RCYC) in Toronto for over 25 years prior to his retirement in 1988. He said that he started at RCYC as a gardener, a seasonal job. He later worked year-round in the marine yard doing various duties, including carpentry and maintenance work, as well as installing and removing masts, using a crane, as required. The yard crew maintained the nine to ten boats owned by RCYC and occasionally worked on the approximately 400 member-owned boats moored at the Island site of RCYC.
When he officially retired at 65, Mr. Nishimura moved to Prince Edward Island to live with a friend. He did not work from 1988 to 1991. He eventually became bored with "beaches and bingo", he said, and moved back to Toronto in late 1991. He claims he returned to work at the RCYC after moving back to Toronto.
2. Law
Section 12(1) of the Schedule provides for a weekly income benefit to be paid to persons injured and suffering "substantial inability to perform the essential tasks of his or her occupation or employment". However, to qualify for this benefit, one must be "employed or self-employed", "on a temporary lay-off, or entitled to start work within one year under a legitimate offer of employment...". If unemployed at the time of the accident, one must have been employed "for any 180 days in the twelve-months period before the accident" and unable to perform the essential tasks of the "occupation or employment in which he or she spent the most time during the twelve month period before the accident."
In Margherita Menonna and Allstate Insurance Company of Canada, August 30, 1994, OIC File No. A-003005, Arbitrator Sampliner considered whether a 41-year old woman was a full-time homemaker, under section 13, or a part-time employee, under section 12. Mrs. Menonna worked an hour each school day supervising the lunchroom of a local school. Referring to Theresa Walicki and Security National Insurance Company, January 27, 1993, OIC File No. A-001403, he concluded that Mrs. Menonna's employment was "likewise nominal" and therefore she was primarily a homemaker, coming within section 13 of the Schedule rather than section 12. In Walicki, Arbitrator Palmer concluded that a 43-year old woman was "first and foremost a home-maker" with a "regular part-time job as a newspaper carrier, which on the scale of remunerative employment, must be considered at the extreme low end of the spectrum...".
No case law was put before me regarding section 12 and insured persons working during retirement. By analogy to the above cases, however, the question in this case is whether it is more appropriate to consider Mr. Nishimura to be a retired person at the time of his accident or one who was employed, self-employed or unemployed in the sense required by section 12.
As has been discussed in Arbitrator Palmer's decision in S.D. Kahkesh and Lloyd's Non Marine Underwriters, March 31, 1992, OIC File No. A-000378, upheld on appeal August 19, 1992, OIC File No. P-000378, it is up to Mr. Nishimura, as Applicant, to show that he qualifies for benefits under section 12 and to establish his gross weekly income from his occupation or employment.
Mr. Nishimura said that he considered himself unemployed rather than retired in his years in P.E.I, adding he would not work for under $10 an hour and not much work was available there. His representative submitted that Mr. Nishimura, although retired, had returned to full-time employment in the year prior to the accident and was unable to perform the essential tasks of that employment, due to the accident.
The Insurer's representative submitted that Mr. Nishimura was a retired gentleman who occasionally took on odd jobs and could not be said to have been employed or self-employed at the time of the accident.
3. Evidence regarding the 12 months prior to August 30, 1992
a) Full-time RCYC employment
Mr. Nishimura's testimony was vague regarding his return to full-time employment with RCYC in 1991/92. He said that he "decided to start working again" sometime in late 1991, after he returned to Toronto. Although his recollection of details was somewhat cloudy, he remembered calling up RCYC, returning to work at the same job he had left in 1988, and quitting again, in April 1992, because he did not get along with the supervisor.
While Mr. Nishimura suggested that he returned to his former full-time employment, no documentation from RCYC or any other source confirms this. He explained he was "sort of a contractor but also a regular employee", no taxes were deducted by RCYC, and once he was paid, he kept no records of his earnings or work done. He estimated, for income tax purposes, that he earned $6,500 for the full year in 1992.
The clinical notes of Dr. Lam, his family doctor, show that Mr. Nishimura was seen for a cervical strain on March 10, 1992, and indicate that Mr. Nishimura was "now back to work coping well despite 69 yrs old". No details regarding the nature of this work are given.
b) South Wind Job
i) Mr. Nishimura's testimony
Mr. Nishimura testified that almost immediately after he quit RCYC in April, 1992, he was offered a job by Mr. Angus Carmichael. His duties were to restore the wood surfaces on the South Wind, a 65' boat built in 1936 and moored at RCYC. It was owned by Mr. Lou Massue, an RCYC member who lived in Owen Sound. Mr. Nishimura knew Mr. Massue from his many years at RCYC but considered Mr. Carmichael to be his employer for the South Wind job.
Mr. Nishimura said that he was hired to scrape the wood surfaces of the deck, rails, and cabin interior, replace any damaged wood and then sand and varnish the surfaces six or seven times to get the required finish. From his description of his duties, they did not involve prolonged overhead work (his specified medical restriction) but mostly required working in a standing position or on his knees with his arms and neck held downward, using a scraper and/or brush.
Mr. Nishimura provided no employment records of this job. He said that he worked on this boat from 8 a.m. to 4 p.m. Monday to Friday every week, except for days of heavy rain, from May 1992 to August 1992. He claimed he wrote his hours on a piece of paper, gave this to Mr. Carmichael, and would then be paid in cash. While he recalled that he occasionally received money from Mr. Massue, this was only when he was short of money and Mr. Massue happened to be on the boat.
Mr. Nishimura confirmed that he had a "small" argument with Mr. Massue around the time of the accident. He recalled that he confronted Mr. Massue about not receiving any pay for a month. He never received the money and did not pursue the matter further with Mr. Massue or the courts. He conceded that this disagreement "could" have been one of the reasons he did not return to work for Mr. Massue. He also stated that while he could possibly have done the work on the South Wind, he did not return to work after his accident because of a general "sort of discomfort".
ii) Mr. Carmichael's testimony
Mr. Carmichael, aged 68, a retired elevator mechanic and inspector, said he had an arrangement with Mr. Massue, under which he would do electrical work on the South Wind in return for use of his property in Owen Sound. In this capacity, he said, he would be at RCYC each year, usually in the spring and fall, to work on the South Wind.
Mr. Carmichael testified that he knew Mr. Nishimura as a seasonal employee with the RCYC yard crew who was laid off every winter. He said that they worked together for a couple of days each spring to install the South Wind's mast, and each fall, to remove it for winter storage. He had a high regard for Mr. Nishimura's character and work habits and so, when he heard, from RCYC yard workers in April 1992, that Mr. Nishimura was looking for work, he spoke with Mr. Massue and "left word in the yard" for Mr. Nishimura that there was work on the South Wind. He said he had no other way of contacting Mr. Nishimura.
Mr. Carmichael was emphatic in his testimony that he was not Mr. Nishimura's employer. He did not hire Mr. Nishimura, nor make any employment arrangements with him, he said. Nor did he see himself as Mr. Nishimura's supervisor, saying he "wanted no part of it" as it brought "nothing but grief." He insisted that any and all employment terms were arranged privately between Mr. Massue and Mr. Nishimura. He said that he was told later, by both, that Mr. Nishimura had asked for $12 an hour but settled for $10. He had no knowledge of Mr. Nishimura's duties, he said, other than observing what needed to be done on the South Wind and what he felt Mr. Nishimura was capable of doing.
Mr. Carmichael confirmed that he signed the Employer's Confirmation of Income dated December 6, 1992 which listed him as Mr. Nishimura's employer from August 1, 1992 to August 30, 1992. However he was adamant that the form was blank when he signed it, and claimed no knowledge of the particulars set out in the form, including the fact that he was listed as employer. The form, as completed, indicates that Mr. Nishimura is employed in "full-time" "casual" employment as "carpenter, master rigger". The job is described as "carpentry on boats" with "standing, light lifting, uses tools, hammer and saws" listed as physical requirements. The gross income reported for the 52 weeks preceding the accident is $1,620 for four weeks, August 1 to 30, 1992.
Mr. Carmichael testified that he thought that Mr. Nishimura's work on the South Wind would take "at least the whole summer" and that the boat needed at least one and a half years' worth of work. However, his testimony regarding the work done or to be done by Mr. Nishimura included items which Mr. Nishimura confirmed in his testimony were done by others - such as painting the hull and other surfaces, and working on the mast. Regarding the woodwork which was done by Mr. Nishimura, Mr. Carmichael estimated that at least four coats of varnish were required, with sanding between coats. He said that, from his general observations, exterior wood resurfacing on boats was normally done before the end of August, as the cool weather ruined the fresh varnish. Mr. Nishimura confirmed that by August 1992 he had done about six coats of varnish.
Mr. Carmichael said that he was in touch with Mr. Massue every week. He would see Mr. Nishimura about once every two weeks. Occasionally, he said, he would receive a paper from Mr. Nishimura with hours and a dollar amount noted which he would pass along to Mr. Massue. He recalled receiving, on five or six occasions, a cheque from Mr. Massue payable to him for various items, including monies owing to Mr. Nishimura. He said that he would cash the cheque and give Mr. Nishimura the amount indicated by Mr. Massue.
Mr. Carmichael confirmed that he was aware of an argument between Mr. Massue and Mr. Nishimura. He thought it was a dispute over money and that it occurred about two or three weeks before the accident. While he recalled that Mr. Nishimura did not work on the South Wind after his accident, he was not aware when Mr. Nishimura last worked on the boat.
c. Contract work RCYC late 1992
Mr. Nishimura said that he "felt better" in October 1992 and began working at RCYC on contracts. He had indicated to RCYC earlier in the year that he was interested in doing this end-of-season work building rough wooden frames for boat owners keeping their boats at the RCYC site over the winter. The Employer's Confirmation of Income from RCYC indicated that Mr. Nishimura worked from October 26, 1992 to November 17, 1992 with a gross income of $1,880 for three weeks' work.
Mr. Nishimura said that he was able to do this work without difficulty until one morning in November when he awoke with pain in his neck. He did not return to work thereafter.
On November 21, 1992, Dr. Lam saw Mr. Nishimura for neck pain with no history of injury "accounting for his neck pain". He noted that Mr. Nishimura had "complained of a similar problem on March 10, 1992".
On November 23, 1992, Mr. Nishimura was seen by another general practitioner, Dr. Donskoy, a doctor who was treating the driver of the vehicle involved in the accident of August 30, 1992. In the clinical notes of Mr. Nishimura's first visit, Dr. Donskoy writes that details of the accident are in the driver's chart and adds: "No pain after MVA. WORK: Carpentry - self-employed. Did not miss any work. Off work since 18 [of November]...".
d) Findings regarding section 12 entitlement
Based on the oral testimony, the contemporaneous medical and tax documentation, and the limited employment information, I cannot conclude, on the balance of probabilities, that Mr. Nishimura was employed or self-employed at the time of the accident on August 30, 1992.
From both Mr. Carmichael's and Mr. Nishimura's description of the resurfacing work, it was essentially completed prior to the accident, consistent with such work normally being finished before the end of August. I conclude from Mr. Nishimura's testimony that he would not have returned to work on the South Wind after Mr. Massue's refusal to pay him for a month's work. I find that this dispute probably occurred some time prior to the accident and that, in any event, the work on the South Wind had been essentially completed by August 30, 1992. I cannot conclude that Mr. Nishimura was "employed" by either Mr. Massue or Mr. Carmichael at the time of the accident on August 30, 1992.
While there was some evidence of employment or self-employment in the previous 52 weeks, in order for Mr. Nishimura to be classified as "employed" within the meaning of section 12, he must show that he was employed for a minimum of 180 days in the previous 12 months. He has failed to prove this, on a balance of probabilities.
Mr. Nishimura provided no plausible explanation for the absence of any record of his alleged full-time employment at RCYC for three to five months. The absence of such documentation suggests casual employment similar to that in late fall, 1992. Given that it was winter, it is more probable than not that this work was sporadic and short-term, not full-time regular employment as alleged.
From the duties he described, it is unlikely that Mr. Nishimura's work on the South Wind would have taken 40 hours per week from May to August 1992, as he claimed.
Mr. Nishimura's income tax return for the 1991 year indicated approximately $12,000 in income, made up entirely of pension income, except for $320 of employment income reported on a T4 slip from RCYC. For the 1992 year, his tax return indicated his income was approximately $20,000, mostly pension income except for $6,500 in employment income from "odd jobs". There was no T4 slip from RCYC or any other employer. For the 1993 year, Mr. Nishimura's tax return listed only pension income totalling $12,719.
In the Director's decision in Kahkesh, (supra), the effect, if any, of tax return information was discussed as follows:
Much was made of the appellant's personal income tax return not including tips. The respondent argued the tip income should be disregarded on the basis that the return should reflect accurately the totality of individual's income for the year in which it is filed. Furthermore, to allow the appellant to rely on additional undeclared income would be to permit him to perpetrate a wrong, either against the insurance company or against Revenue Canada.
Recently, the Alberta Court of Queen's Bench dealt with the same allegation in a personal injury action. In the case Milton Coates v. Wolfe and Eba Engineering Consultants Ltd., (unreported June 9, 1992) Justice C.J.Virtue stated, "I do not consider it a rule of general application that failure to report income for tax purposes in all circumstances deprives a plaintiff of the right to recover loss of that income."
...The Court held the plaintiff's cause of action arose out of the defendant's negligence (admitted at trial), not her failure to properly report her income, and declined to apply the principle noted.
Here, the appellant's cause of action is founded on the no-fault insurance scheme, which gives a right of recovery against his own insurer for income benefits arising out of a motor vehicle accident in which he was injured. There is no allegation, as far as I can see, that the evidence of the appellant's gross revenue (including tips) is unworthy of belief. The issue is, did he prove gross income as required for the proper determination to be made by the arbitrator? [emphasis added]
Mr. Nishimura's own estimate of his income from "odd jobs" in 1992 was $6,500. His 1991 employment income, supported by a T4 slip from RCYC was $320.00. Accepting Mr. Nishimura's testimony that he would not work for less than $10 an hour (a best case scenario as he said that contract work generally paid $15 or more), he can be said to have worked 682 hours or just over 85 days (at eight hours per day) in two years. When the confirmed three weeks of post-accident contract work are excluded, the number of days left are well short of the l80 days required under section 12. While I accept the income figure for 1992 is estimated, I cannot accept as credible, considering all the evidence before me, Mr. Nishimura's testimony that he worked 40 hours a week from January to April and from May to August 1992.
My impression from the evidence is that Mr. Nishimura retired from active full-time employment in 1988, at the usual age of 65. However, as with many retirees, from time to time, he subsequently sought and accepted various jobs that came his way, within his skill, ability and experience. Such jobs included the work on the South Wind in the summer of 1992 and the contract work with RCYC during the year.
The information before me does not support Mr. Nishimura's claim of employment or self-employment at the time of the accident. Nor can I reasonably conclude, on the evidence provided, that he was unemployed at the time of the accident but employed for the requisite minimum of 180 days in the 12 months previous. At the time of the accident, Mr. Nishimura was primarily "retired" as opposed to "unemployed" within the meaning of section 12, with the possibility of short-term contract work available for late fall. This is consistent with his reporting to Dr. Donskoy in November 1992 that he had not missed work as a result of the accident.
In summary, Mr. Nishimura has not established that his claim should be considered under the provisions of section 12.
B. Entitlement to section 13 benefits
Under section 13, an insured person over 16 and not entitled to benefits under section 12 is entitled to weekly benefits if he or she suffers "a substantial inability to perform the essential tasks in which he or she would normally engage."
Mr. Nishimura's representative made no submissions regarding this issue, referring me to the medical evidence on record. The Insurer submitted that Mr. Nishimura did not establish that he suffered a substantial inability to perform essential tasks as a result of the accident.
1. Evidence
From Mr. Nishimura's own testimony, the motor vehicle accident did not disable him from his essential tasks. After the accident, he said that he felt a "sort of discomfort, not really bad" in his neck and both shoulders and part-way down his spine at the neck. He said that he thought he should "take a rest", but he did not seek medical attention for his complaints.
Dr. Donskoy, in a letter to the Mr. Nishimura's representative, reported that Mr. Nishimura did not feel any pains right away and continued working up to November 18, 1992 when he first experienced neck pain which subsequently grew worse. Mr. Nishimura denied telling any doctors that he continued working after the accident. As stated in my discussion of section 12 entitlement, it is more likely than not that Mr. Nishimura did not "miss work", as noted by Dr. Donskoy contemporaneously on November 23, 1992, because he was not working at the time of the accident. Perhaps Dr. Donskoy subsequently interpreted his note to mean that he had continued working.
When Mr. Nishimura was called for contract work by RCYC in October 1992, he said he felt "not uncomfortable physically" and noticed no change or difficulty when he began working.
Two to three weeks after starting this contract work at RCYC, he said that he could not get out of bed because of neck pain. He could not recall the details or timing of his symptoms or medical attention. The medical records indicate that he saw Dr. Lam on Saturday, November 21, 1992, and Dr. Donskoy, on Monday, November 23, 1992.
The clinical notes of Dr. Lam, the first doctor to treat Mr. Nishimura in November 1992, show that any restrictions in ability occurred subsequent to a spontaneous onset of pain almost three months after the accident. Dr. Lam, who examined Mr. Nishimura both before and after the accident, described his symptoms as being similar to an onset of neck pain Mr. Nishimura had had in March, 1992. Mr. Nishimura, when asked, said that he did not tell Dr. Lam about the accident as he did not know he was injured until other doctors told him he was, after looking at his x-rays.
Mr. Nishimura reported to Dr. Donskoy on November 23, 1992 that he could not go to work on Wednesday, November 18th because of neck pain. He also told him of the motor vehicle accident on August 30, 1992, but Dr. Donskoy was already aware of this accident, and said so in his clinical notes, as he was treating the driver of the vehicle for injuries from the same accident.
Dr. Donskoy reported in his notes that Mr. Nishimura had no prior neck problems. The medical reports subsequent to Dr. Donskoy all refer to the motor vehicle accident as the onset of his neck pain. In April 1993, at the request of Dr. Donskoy, Mr. Nishimura was seen by Dr. V. Kekosz, specialist in rehabilitation medicine. Dr. Kekosz appeared to assume that Mr. Nishimura was treated with analgesics shortly after the accident, although neither Mr. Nishimura's testimony nor the medical records indicates this. In 1993, Mr. Nishimura's complaint was of pain in the cervical spine "when turning his head". Dr. Kekosz reported that Mr. Nishimura was "independent in all aspects of self care", having "officially retired five years previously, and worked "on an intermittent basis" since. She concluded his symptoms were a result of extensive degeneration of the discs at C3-C7, a permanent and underlying condition which had been acutely exacerbated by the motor vehicle accident. She added:
Mr. Nishimura has not yet returned to his former full-time work. He occasionally has been doing some odd jobs which are very inconsistent and are not demanding. Mr. Nishimura is not able to do any work overhead which requires extension of the cervical spine, since this will cause more pain.
In summary, Mr. Nishimura has suffered from a moderate myofascial strain of the cervical spine. He has been suffering from a significant underlying degenerative disc disease of the cervical spine which has predisposed him to more pain and a slower rate of recovery....
...He will have difficulties in performing tasks that require prolonged periods of neck extension with the arms extended above the head.
Mr. Nishimura was also seen by Dr. Kliman, an orthopaedic specialist, in May 1993, and reportedly denied having any neck problems prior to the accident. Dr. Kliman reported to Dr. Donskoy that x-rays showed "quite severe degenerative change throughout his neck". He concluded that Mr. Nishimura had a "hyperextension strain on a background of marked degenerative change in his neck" and recommended conservative treatment and no further investigation.
2. Findings
Setting aside the question of whether the onset of pain in November resulted from the August motor vehicle accident, nothing really suggests that Mr. Nishimura was unable to perform the essential tasks he normally engaged in at any time. Indeed, the only medical restriction placed on him subsequent to November 1992, was avoidance of prolonged extension of the neck with arms overhead.
No oral evidence was led regarding Mr. Nishimura's regular daily tasks. He testified that he had only a "sort of discomfort, not really bad" prior to the acute episode of neck pain on November 18, 1992.
On the evidence presented, I am unable to conclude that Mr. Nishimura suffered a substantial inability to perform his essential tasks as a result of the accident either prior to the onset of neck pain in November 1992, or subsequently.
C. Expenses and Repayment
As stated by Senior Arbitrator Naylor in Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, the legislative scheme for the arbitration process set out in the Insurance Act is such that an applicant should be awarded expenses unless the application for an arbitration hearing was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings".
The Insurer suggested that this case was delayed because of the late disclosure of clinical notes and records ordered to be exchanged by pre-hearing Arbitrator Draper on December 14, 1994. These were not received until the day of the hearing. As well, he submitted that where inaccurate and carelessly completed documents regarding income were provided to, and relied on by, the Insurer, costs should not be payable.
I understand the Insurer's concerns regarding the preparation of the income information. However, I am not satisfied that the delays in disclosure resulted in the hearing being unreasonably prolonged, or prejudiced the Insurer in this hearing in any other manner. In the circumstances, Mr. Nishimura is entitled to his expenses incurred in the arbitration proceeding.
Order:
Mr. Nishimura was not employed, self-employed or unemployed, in the sense required under section 12, at the time of the accident and therefore no benefits are payable under section 12.
The evidence presented did not establish that Mr. Nishimura was substantially unable to perform essential tasks as a result of the accident; therefore no benefits are payable under section 13.
Royal is entitled to repayment of the section 12 benefits paid, in the amount of $8,606.
Mr. Nishimura is entitled to his expenses incurred in the arbitration.
June,1995
Ruth Hartman Arbitrator
Date