Neutral Citation: 1995 ONICDRG 77

File No. A-005767

ONTARIO INSURANCE COMMISSION

BETWEEN:

EDGAR COWIE

Applicant

and

THE NON-MARINE UNDERWRITERS MEMBERS OF LLOYD'S, LONDON, ENGLAND

Insurer

SECOND DECISION

Issues:

The Applicant, Edgar Cowie, was injured in a motor vehicle accident on February 14, 1991. He received certain statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. The Insurer subsequently denied benefits. 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.

This is the second arbitration hearing initiated by Mr. Cowie. Following the first arbitration, I awarded Mr. Cowie weekly benefits under section 13 of the Schedule, for the period from March 24, 1991 to April 18, 1991 inclusive, and I denied weekly benefits, beyond that date. I also awarded Mr. Cowie payment of the cost of the drug Triazolam under section 6 of the Schedule. My decision of March 9, 1993 is currently under appeal to the Director of Arbitrations.

In the present arbitration proceeding, Mr. Cowie seeks payment of further medical and rehabilitation benefits which were not raised in the first arbitration and have been denied by the Insurer.

Following the conclusion of the present hearing on June 27, 1994, Mr. Cowie filed a third Application for Arbitration, dated November 23, 1994, also in connection with his motor vehicle accident of February 14, 1991. Mr. Cowie made claims for weekly income replacement benefits² for the period May 11, 1992 to June 11, 1992 (a time period considered in the decision from the first arbitration); loss of earning capacity benefits³; and medical and rehabilitation expenses for chiropractic treatment received from August 8, 1994 to September 7, 1994, a time period which followed the conclusion of the present arbitration hearing.

By letter dated January 18, 1995, Mr. Cowie was informed by the Executive Coordinator/Registrar of the Dispute Resolution Group of the Ontario Insurance Commission that the issue of his entitlement to weekly benefits is currently the subject of an appeal before the Director of Arbitrations and would not be reconsidered at the arbitration level. However, on consent of the Insurer, Mr. Cowie's claim for payment of chiropractic treatments in August and September 1994, following the conclusion of the second hearing, was added as an issue to be determined in this decision.

The issues in this hearing are:

1. Is the Applicant entitled to payment of medical and rehabilitation benefits claimed under section 6 of the Schedule?

2. Is the Applicant entitled to payment of a special award under subsection 282(10) of the Insurance Act in respect of an alleged unreasonable withholding or failure to pay benefits by the Insurer?

3. Is the Applicant entitled to be reimbursed for his expenses incurred in the arbitration? Is the Applicant entitled to interest on any amounts found to be owing?

4. Is the Insurer entitled to an assessment against Mr. Cowie in the amount of $1,000 under section 282(11.2) of the Insurance Act?

5. The Applicant requests a recommendation to the Director of Arbitrations to refer a question to the chair of the medical and rehabilitation advisory panel concerning his medical condition, treatment and rehabilitation under section 282(5) of the Insurance Act?

Result:

1. The Applicant is not entitled to payment of medical and rehabilitation benefits claimed under section 6 of the Schedule.

2. The Applicant is not entitled to payment of a special award under subsection 282(10) of the Insurance Act.

3. The Applicant is not entitled to be reimbursed for his expenses incurred in this arbitration. No interest is payable.

4. The Insurer is not entitled to an assessment against Mr. Cowie in the amount of $1,000 under section 282(11.2) of the Insurance Act.

5. I decline to make a recommendation to the Director of Arbitrations for the referral of a question to the chair of the medical and rehabilitation advisory panel pursuant to the provisions of section 282(5) of the Insurance Act.

Hearing:

The hearing was held in Toronto, Ontario, on April 18 and June 27, 1994, before me, Janice Mackintosh, arbitrator.

Present at the Hearing:

Applicant:

Edgar Cowie

Applicant's Representative:

Risa M. Stone (for June 27, 1994 date only)

Barrister and Solicitor

Insurer's Representative:

Mark Fonseca

Barrister and Solicitor

Insurer's Officer:

John Shepherd

Witnesses:

Mr. Edgar Cowie

Exhibits and other documents before the arbitrator are listed in Appendix A.

Preliminary Objection:

At the commencement of the hearing, Mr. Cowie requested a new arbitrator on the basis that I had previously heard the issue of his entitlement to weekly benefits and had denied a portion of his claim. Mr. Cowie had previously raised this issue in a series of letters between Mr. Cowie and the Executive Coordinator/Registrar of the Dispute Resolution Group of the Ontario Insurance Commission (Exhibits 1, 5, 6, and 7). By letter dated March 22, 1994 (Exhibit 6), the Executive Coordinator/Registrar informed Mr. Cowie of the Commission's decision to proceed with the second hearing before the same arbitrator who heard the evidence in the first hearing to ensure continuity and avoid unnecessary repetition of evidence. Mr. Cowie raised no new issues or arguments before me which had not already been canvassed in the correspondence between himself and the Executive Coordinator/Registrar. I declined to overturn the decision of the Executive Coordinator/Registrar and I proceeded with the second hearing as scheduled.

Evidence and Findings:

a) Background and Issues:

At the time of the accident on February 14, 1991, Mr. Cowie was a 57 year old retired person. He had retired from selling real estate due to a downturn in the economy. Mr. Cowie states that he enjoyed good health and a pleasant retirement lifestyle prior to his accident. He claims that, despite the passage of more than three years from the date of the accident, he has not returned to his former state of good health and well-being. Mr. Cowie submits that he requires medical and rehabilitation benefits under section 6 of the Schedule to help him overcome the continuing effects of post-traumatic stress disorder, daily headaches, limitation in the movement of his neck and spine, and fatigue, allegedly the result of the February 14, 1991 accident.

In particular Mr. Cowie seeks payment of: $1,200 for an eight hour psychological assessment conducted by Dr. McLachlan at Mr. Cowie's request in April and May 1993 (Exhibit 3); $1,375 for psychological therapy received intermittently between the period July 1993 to June 1994 (Exhibits 3 and 25) and transportation expenses of $27.50 connected to this therapy; payment for further psychological treatments recommended by Dr. McLachlan (Exhibit 21) and related travel expenses; payment for computer education and work conditioning programs recommended by Dr.McLachlan (Exhibits 4, 14 and 21). He also claimed $380 for chiropractic expenses incurred during the period February 23, 1994 to May 13, 1994 (Exhibit 23), as well as $90 for additional chiropractic expenses incurred in the period after this hearing, August 8 to September 7, 1994 (invoice attached to third Application for Arbitration dated November 23, 1994); and prescription expenses totalling $29.75. Mr. Cowie confirmed that no further medication expenses have been submitted to the Insurer to the date of this hearing and that no other medication expenses are outstanding. At the hearing, Mr. Cowie agreed that medication expenses have been paid by the Insurer and are no longer in dispute.

In the decision from Mr. Cowie's first arbitration dated March 9, 1993, I concluded that Mr. Cowie no longer suffered a substantial inability to perform the essential tasks of his retirement after April 18, 1991. However, it is an established principle that the test for receipt of benefits under section 6 of the Schedule is different from the test to determine eligibility for weekly benefits under section 13 of the Schedule. In order to obtain payment of the supplementary medical and rehabilitation expenses claimed under section 6 of the Schedule, Mr. Cowie must establish that the expenses claimed are reasonable and required as a result of injuries suffered in the February 14, 1991 accident.

The Insurer claims that Mr. Cowie has fully recovered from the injuries sustained in the motor vehicle accident of February 1991 and that no further treatment or rehabilitation is required in respect of those injuries. The Insurer submits that Mr. Cowie's current complaints are significantly different from those recorded by his treating physician during the first year following the accident and that, over time, Mr. Cowie has revised and amplified his complaints. The Insurer alleges that Mr. Cowie continues to obtain new medical opinions and treatment, not from real need, but in an effort to reconstruct his post-accident medical history to strengthen his ongoing claim for weekly benefits, and to obtain computer training to facilitate his return to the workforce.

In the alternative, the Insurer submits that if Mr. Cowie does currently suffer problems, they are unrelated to the motor vehicle accident of February 1991. Finally, the Insurer submits that if Mr. Cowie's current complaints are related to the February 1991 accident, the expenses requested by Mr. Cowie are unreasonable and beyond the scope of section 6.

b) Mr. Cowie's complaints following the accident:

On the day after the accident, Mr. Cowie saw his family physician, Dr. Istvan Sekely, with respect to neck pain and a decreased range of motion of the cervical spine. Mr. Cowie continued intermittent treatment with Dr. Sekely over the next seven months, from February 15, 1991 to September 10, 1991. In the first hearing, counsel for Mr. Cowie conceded that none of Dr. Sekely's medical reports for the period February 15 to September 10, 1991 referred to a loss of consciousness following the accident, or to complaints of nightmares following the accident. Dr. Sekely has never been called to testify about Mr. Cowie's complaints during this period. Following Mr. Cowie's first arbitration hearing, I concluded at page 9 of my decision dated March 9, 1993:

I find that, during the period February 15, 1991 to September 10, 1991, the Applicant's chief complaints, as reflected by Dr. Sekely's medical reports, were of neck pain, tender paravertebral neck muscles and a decreased range of motion of the cervical spine.

I reaffirm my original finding, despite the filing of a further medical report from Dr. Sekely dated December 9, 1992 (Exhibit 17), which was not provided to me during the first arbitration hearing, although it was available. In the report of December 9, 1992, Dr. Sekely stated that he saw Mr. Cowie on two further occasions in April 1992, approximately seven months after his examination of September 10, 1991. Dr. Sekely noted no neuromuscular abnormalities during his physical examination of Mr. Cowie on April 7, 1992, and concluded that Mr. Cowie "did not have any disability that would have prevented him from working". In an examination conducted on April 24, 1992, Dr. Sekely noted Mr. Cowie's continuing complaints of neck pain, "associated at times with mild suboccipital headache". Dr. Sekely first refers to Mr. Cowie's complaint of nightmares connected to the events of the February 1991 accident during his examination of April 24, 1992. Dr. Sekely noted an absence of physical findings in his examination of Mr. Cowie and concluded that he had no further treatment to offer him. Dr. Sekely referred Mr. Cowie to Dr. D.C. Kitching for stress management.

c) Mr. Cowie's psychological complaints and claim for psychological treatments and computer training:

In a report dated November 4, 1992 (part of Exhibit 12), Dr. Kitching stated that Mr. Cowie was referred to him for psychotherapeutic counselling, and for treatment of insomnia and nightmares, which Mr. Cowie attributed to the motor vehicle accident 14 months earlier. Dr. Kitching saw Mr. Cowie six times from April 27, 1992 to September 29, 1992. On the second visit, May 11, 1992, Dr. Kitching noted an "early resolution of the insomnia by the action of the [prescribed] medication". On the third visit, June 30, 1992, Dr. Kitching noted "Essentially a state of fitness had returned". On the fifth visit, Dr. Kitching noted that Mr. Cowie reports "he sleeps routinely, eats routinely, performs everyday activities routinely."

In a report dated November 4, 1992, Dr. Kitching observed:

At this time, [September 11, 1992] it appears what is equally important to him [Mr. Cowie], is the completion of insurance papers. He even arrives with the suggested documentation of post-traumatic psychosis. At no time has he presented with any symptoms to justify this disability diagnosis. Only speculation would suggest the origin of the same.

On the final visit of September 29, 1992, Dr. Kitching noted that:

He [Mr. Cowie] is willing to accept this date as termination of all symptoms as related to former motor vehicle accident. Medication is no longer required. Contrary to the patient's expectation, he was assured that once his symptoms had resolved, there would be no expectation of them to return. Since he was not sure of what kind of report or document to request, he came prepared with a "note" with specific directions as to how to word his diagnosis. No such coaching is appreciated.

During the first arbitration hearing (December 17, 1992) Mr. Cowie's counsel submitted that while the Applicant's physical complaints may have resolved over time, his psychological complaints relating to nightmares and insomnia persisted until June 30, 1992, when Dr. Kitching reported that "a state of fitness had returned". Through his counsel, Mr. Cowie conceded that by June 30, 1992, he no longer suffered a substantial inability to perform the essential tasks of his retirement. However, Mr. Cowie continued to dispute Dr. Kitching's opinion that by June 30, 1992 "a state of fitness had returned", and that by September 29, 1992 "all symptoms as related to the former motor vehicle accident" were terminated. At the first hearing in December 1992, Mr. Cowie testified that he was still not 100 per cent well. He estimated that he had reached only 75 per cent of his former level of fitness and well-being.

In April 1993, more than half a year after the conclusion of Dr. Kitching's treatment, Mr. Cowie sought psychological evaluation and treatment from Dr. John McLachlan, consulting psychologist. Mr. Cowie first saw Dr. McLachlan on April 27, 1993, more than two years after the motor vehicle accident of February 14, 1991, and subsequent to the release of my decision in the first arbitration concerning Mr. Cowie's disability. Dr. McLachlan conducted a lengthy psychological assessment at the request of Mr. Cowie. Following his assessment, Dr. McLachlan prepared a report dated May 25, 1993 (Exhibit 13), in which he concluded that Mr. Cowie met the criteria for the diagnosis of Post Traumatic Stress Disorder as he continued to experience intrusive memories, flashbacks and nightmares of the car accident.

Dr. McLachlan obtained a medical history from Mr. Cowie and reviewed two medical reports, selected by Mr. Cowie, out of the numerous medical reports prepared by Dr. Sekely and Dr. Kitching. Dr. McLachlan relied upon the following information in reaching his conclusion. "He [Mr. Cowie] told me...that he lost consciousness for a few seconds". This information differs from the report of Dr. Sekely, dated April 8, 1992, in which he notes:

As a result of the impact, Mr. Cowie sustained a flexion/extension movement of his cervical spine. He did not hit his head or any other parts of his body on the inside of the car. Immediately after the impact he was able to get up and walk around...(page 6 March 9, 1993 decision)

Dr. McLachlan noted:

He [Mr. Cowie] has worked to overcome a driving phobia and within three months he was able to drive a car. He is still nervous in a motor vehicle and is more nervous as a passenger than as a driver...

Neither Dr. Sekely nor Dr. Kitching made any reference to Mr. Cowie's inability to drive, or to a driving phobia, in their numerous reports covering the period immediately following the accident up to September 1992, despite the fact that Dr. Kitching was providing psychotherapeutic counselling to Mr. Cowie specifically for psychological difficulties related to the accident.

Dr. McLachlan noted "He [Mr. Cowie] told me that he has had nightmares since the accident in which his accident of February 1991 is replayed in his mind." Dr. McLachlan also referred to "panic states". However the first reference to nightmares following the accident does not occur until April 24, 1992, more than a full year after the accident (Exhibit 17, Dr. Sekely's December 9, 1992 report). There is no reference to "panic states" by either of the earlier treating doctors.

Dr. McLachlan noted:

He [Mr. Cowie] brought me a copy of a report written by Dr. Kitching which was dated November 4, 1992. In this report Dr. Kitching indicated he treated Mr. Cowie by medication for insomnia and flashback phenomena.

Dr. McLachlan continues:

He [Mr. Cowie] was taking Restoril until recently as he found that he felt immobilized and "zombie-like" but he continues to take Triazolam, both of which were prescribed by Dr. Kitching.

On this information, Dr. McLachlan recommended that Mr. Cowie be referred to a psychiatrist for a medication review to determine whether he is receiving optimal pharmacological treatment. However, Dr. McLachlan makes no reference to Dr. Kitching's conclusion that by June 30, 1992, "Essentially a state of fitness had returned", and ignores the fact that Mr. Cowie last saw Dr. Kitching in September 1992, at which time Dr. Kitching indicated that no further medication was required. In addition, the last prescription receipt for Triazolam submitted to the Insurer by Mr. Cowie was dated 12-10-92.

Dr. McLachlan noted:

At the present time he [Mr. Cowie] complains of daily headaches (which were not present before the accident) and which are experienced in the frontal area and the temples as well as throughout the entire head. He tends to treat these with Tylenol 2...

In contrast, by April 1992, Dr. Sekely noted complaints of "mild" suboccipital headache "at times" (Exhibit 17). Dr. Kitching makes no reference to headaches in his reports and observed that other than the complaints of insomnia and nightmares, Mr. Cowie "appeared to be physically fit and [an] emotionally stable person" (Report dated November 4, 1992, Part of Exhibit 12).

Dr. McLachlan stated that Mr. Cowie's general prognosis was positive provided he received the appropriate treatment. Dr. McLachlan recommended further professional counselling directed at helping Mr. Cowie manage his nightmares and other aspects of his post-traumatic stress disorder. In addition, Dr. McLachlan reported as follows:

He [Mr. Cowie] is, at the present time, working on a program to prepare himself to return to work, beginning on a part time basis and he will shortly begin a work trial.

To assist him in the process, I recommend that funding for some basic computer education be paid to him by your company. This would include courses in MS DOS, Keyboarding, Wordperfect and an introduction to a spreadsheet program such as Lotus....Such courses will assist in his work conditioning program and be directly applicable to helping him return to the real estate field (Exhibit 14, letter dated August 26, 1993).

In a further letter dated June 8, 1994 (Exhibit 21), Dr. McLachlan reported that Mr. Cowie continues to experience: driving anxiety, difficulty in maintaining sleep due to nightmares related to the operation of a motor vehicle, depression, apprehension, difficulty with memory, concentration, and consolidating new learning. Mr. Cowie described himself to Dr. McLachlan as "more limited now in that he feels less able to shop, swim, dance, drive and engage in other activities" (Exhibit 13, page 6). Dr. McLachlan concluded that Mr. Cowie's symptoms were related to the accident and recommended additional psychological treatment approximately once per month for at least 12 months and courses to enhance Mr. Cowie's concentration, self-confidence, and employment skills, such as an introduction to computers, and keyboarding.

In contrast, during the post-accident period from February 1991 to September 1992, neither Dr. Sekely nor Dr. Kitching refer to complaints of depression, difficulty with motor skills, reduced memory and concentration, or difficulty consolidating new learning. Both these doctors reported gradual overall improvement in Mr. Cowie's physical and psychological condition.

Mr. Cowie claims that he is more limited now than before. He testified that he is unable to bathe everyday, unable to move his neck freely and has difficulty combing his hair due to neck pain and fatigue. Yet, he has abandoned a pleasant retirement lifestyle to begin a work-trial to re-enter the workforce.

I am disturbed by the significant discrepancies between the complaints and symptoms noted by the doctors who treated Mr. Cowie within the first year and a half following his accident, and the complaints and symptoms Mr. Cowie reported to Dr. McLachlan more than two years after the accident. I find that Mr. Cowie has to a certain extent reconstructed his medical history and created further symptoms, long after the accident.

Dr. McLachlan attributed all the complaints and symptoms reported by Mr. Cowie in April and May 1993, to the accident of February 1991. Dr. McLachlan does not address the discrepancy between Mr. Cowie's original and present complaints. He offered no explanation why, more than two years after the accident, psychological symptoms which had largely resolved appear to have returned worse than ever, and completely new complaints have apparently emerged. In the absence of testimony from Dr. McLachlan addressing these concerns, I give little weight to his opinion that Mr. Cowie suffers post-traumatic stress disorder related to the 1991 motor vehicle accident. I am therefore not satisfied that Mr. Cowie required further psychological treatment or computer courses, as recommended by Dr. McLachlan.

Mr. Cowie testified that he seeks rehabilitation to assist him to return to his former career as a real estate sales person. He has been informed by colleagues that in order to work efficiently in this field in the 1990s, he must be computer-literate. Mr. Cowie concedes that he was not working prior to the accident, however his position is that the Insurer is responsible for providing occupational retraining under section 6(1)(c) of the Schedule, to enable him to return to the workforce. I do not agree. In my view, section 6(1)(c) requires a nexus between the injuries or limitations suffered as a result of a motor vehicle accident and the rehabilitation or occupational training sought. Mr. Cowie's desire for computer training appears to flow from his decision to leave retirement and return to the workforce, rather than a need to overcome or compensate for injuries or limitations suffered as a result of the motor vehicle accident. I find that Mr. Cowie has failed to establish the necessary connection between the injuries he suffered and the rehabilitation sought.

Mr. Cowie also seeks payment of the $1,200 cost of Dr. McLachlan's full psychological assessment under section 6 of the Schedule. Neither Dr. McLachlan nor Mr. Cowie established why such an extensive psychological assessment was conducted or required.

Dr. McLachlan indicated that the assessment was made at Mr. Cowie's request, rather than on Dr. McLachlan's initiative or at the request of another treating physician. It is not clear to me that such an assessment was reasonably required for treatment of Mr. Cowie's psychological complaints resulting from the accident. Furthermore Dr. McLachlan's assessment was hampered by Mr. Cowie's failure to make full and frank disclosure of his medical history, and therefore has limited therapeutic value. Mr. Cowie has failed to establish that the $1,200 expense for the full psychological assessment is reasonably required as a result of injuries suffered in the February 1991 accident. I therefore decline to award payment of this expense under section 6 of the Schedule.

d) Referral to medical rehabilitation advisory panel:

Mr. Cowie requested that I recommend to the Director of Arbitrations the referral of a question to the chair of the medical and rehabilitation advisory panel concerning his medical condition, treatment and rehabilitation under section 282(5) of the Insurance Act, and for an additional examination by an advisor qualified to conduct an assessment of him. I note the comment of the Director of Arbitrations at page 5 of the appeal decision Sharon Lee and Unifund Assurance Company, September 14, 1995, OIC File No. P-000078:

There is little benefit in another doctor evaluating the appellant three years post-accident and drawing conclusions as to what the physical state of the appellant might have been, which was not already canvassed by the chiropractors, psychologists and medical doctors who evaluated the appellant closer to the time of her injuries.

I adopt the view of the Director of Arbitrations. Furthermore, in view of Mr. Cowie's unreliability concerning the details of his medical history, I am not convinced that a further psychological evaluation of Mr. Cowie, more than three years post-accident, would be of any value. I therefore make no recommendation to the Director of Arbitrations for a referral to the chair of the medical and rehabilitation advisory panel.

e) Mr. Cowie's current physical complaints and claims for chiropractic treatment:

On February 23, 1994, Mr. Cowie began chiropractic treatments with C. J. Lapena D.C., three times a week. These treatments began approximately three years after the motor vehicle accident. Dr. Lapena prepared a Form 4 medical report to the Insurer dated April 4, 1994 (Exhibit 22). Upon initial examination Dr. Lapena noted a 50 per cent limitation of neck movement, neck and arm pain, headaches, dizziness, 50 per cent limitation in low-back spine motion, low-back pain, mid-back pain, left thigh pain, depression, reduced sleep, fatigue, and reduced memory. Dr. Lapena reported that these symptoms first appeared on the date of the February 1, 1991 accident and made the following diagnosis:

Chronic spinal dysfunction due to acceleration/deceleration injury (whiplash) [with a secondary diagnosis of] myofascial pain syndrome (muscle/tendon) [and] advancing degenerative disc/joint disease in neck.

Dr. Lapena recommended further chiropractic visits with monthly evaluations for an indefinite period. Mr. Cowie seeks payment of $470 in chiropractic expenses incurred (Exhibit 23 plus invoice dated September 7, 1994 submitted with the third application for arbitration dated November 23, 1994), as well as the further chiropractic treatments recommended by Dr. Lapena, and transportation costs to and from the Glen Erin Chiropractic Centre.

The Insurer submits that the chiropractic treatments recommended by Dr. Lapena are for physical conditions unrelated to the accident.

Dr. Lapena's clinical findings of a 50 per cent limitation of Mr. Cowie's neck movement and 50 per cent limitation of low back spine motion must be considered in the context of the earlier findings of Dr. Sekely, who treated Mr. Cowie in the months immediately following the February 1991 accident.

By September 10, 1991, Dr. Sekely observed that Mr. Cowie's range of motion of the cervical spine was essentially normal and the rest of the musculoskeletal and neurological examination was essentially normal (medical report dated April 8, 1992, Exhibit 4 in first arbitration). Dr. Sekely repeats this finding when he examined Mr. Cowie again in April 1992 (Exhibit 17). Neither Dr. Sekely nor Dr. Kitching noted complaints of arm pain, dizziness, impairment of low back spine motion, low back pain, left thigh pain, or mid-back pain, in the two years immediately following the accident. In a form 4 report dated September 29, 1992, Dr Kitching noted "states - finally resolved physical and mental health symptoms".

Like Dr. McLachlan, Dr. Lapena does not address the discrepancy between Mr. Cowie's original complaints and his present complaints. No explanation is given why, more than three years after the accident, physical symptoms which had largely resolved appear to have significantly worsened, while completely new symptoms have appeared. In the absence of testimony from Dr. Lapena addressing these concerns, I am unable to grant any weight to his opinion that Mr. Cowie's current physical complaints relate to the 1991 motor vehicle accident. I therefore decline to order payment of Mr. Cowie's chiropractic expenses or related transportation expenses.

f) Special Award:

In view of my findings in respect of Mr. Cowie's claims for benefits under the Schedule, there is no basis upon which to grant a special award against the Insurer under the provisions of section 282(10) of the Act.

g) Expenses:

Mr. Cowie seeks an award of the expenses he has incurred in this arbitration. An award of 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.

In the decision Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, Senior Arbitrator Naylor made the following comment about expenses:

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.

However in several decisions of the Commission, expenses have been denied to an applicant in cases where it is found that the applicant lacked credibility, or provided false or misleading evidence⁴. I have concluded that Mr. Cowie's claims were weak and that he has been less than forthright concerning his medical history and present symptoms. I therefore decline to exercise my discretion to award Mr. Cowie his expenses of this arbitration.

The Insurer submits that the assessment paid by the Insurer under section 14 of the Insurance Act, should be repaid by the Applicant according to the provisions of section 282(11.2) of the Act which provides:

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.

I find that Mr. Cowie's zealous pursuit of benefits from the Insurer appears to be motivated in part by a fundamental misunderstanding of his rights under the Schedule and confusion concerning the extent of the Insurer's responsibility to him following the accident. Mr. Cowie appears convinced that the Insurer has an absolute obligation to provide rehabilitation and retraining even where there is no nexus between the retraining sought and the original injuries suffered in the motor vehicle accident. I am not convinced that Mr. Cowie's claims are tantamount to an abuse of process or are frivolous or vexatious to the extent contemplated under section 282(11.2) of the Insurance Act. I therefore decline to assess an amount against Mr. Cowie.

Order:

1. The Applicant is not entitled to payment of the further medical and rehabilitation benefits claimed under section 6 of the Schedule.

2. The Applicant is not entitled to payment of a special award under subsection 282(10) of the Insurance Act.

3. The Applicant is not entitled to be reimbursed for his expenses incurred in the arbitration. No interest is payable.

4. The Insurer is not entitled to an assessment against Mr. Cowie in the amount of $1,000 under section 282(11.2) of the Insurance Act.

5. I decline to make a recommendation to the Director of Arbitrations for a referral to the medical and rehabilitation advisory panel pursuant to the provisions of subsections 282(5) to 282(9) of the Insurance Act.

June 22, 1995

Janice Mackintosh

Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Letter from OIC to Mr. Cowie, dated March 8, 1994

Exhibit 2

Summary of outstanding accounts owing to Dr. McLachlan, dated April 7, 1994

Exhibit 3

Invoices for May 25, 1993 to October 15, 1993 from Dr. McLachlan

Exhibit 4

Letter from Dr. McLachlan to Adjusters Canada, dated August 26, 1993

Exhibit 5

Letter from Mr. Cowie to OIC, dated March 15, 1994

Exhibit 6

Letter from OIC to Mr. Cowie, dated March 22, 1994

Exhibit 7

Letter from Mr. Cowie to OIC, dated February 22, 1994

Exhibit 8

Series of four photographs of Mr. Cowie (Exhibits 8(a) to (d)

Exhibit 9

Photograph of Winston Thomas taken by friend of Mr. Cowie in the 1980s

Exhibit 10

Series of five photographs (Exhibits 10(a) to (e)) Photograph 10(a) is available only - see letter to parties dated April 21, 1994

Exhibit 11

Four investigative reports of August 18, 24, 27 and October 5, 1992 (Exhibits 11(a) to (d))

Exhibit 12

Five reports of Dr. Kitching, dated May 11, August 7, September 11, November 4, and December 10, 1992

Exhibit 13

Seven page report, dated May 25, 1993, with curriculum vitae attached, from Dr. McLachlan

Exhibit 14

Letter from Dr. McLachlan to Adjusters Canada, dated August 26, 1993

Exhibit 15

Letter from Insurer's counsel to Mr. Cowie, dated June 10, 1993

Exhibit 16

Insurer's Response, dated December 23, 1993

Exhibit 17

Report of Dr. Sekely, dated December 9, 1992

Exhibit 18

Assessment of Claim by Insurer, dated January 28, 1992, with cancelled cheques attached

Exhibit 19

Prescription for Triazolam submitted by Mr. Cowie, dated 12-10-92

Exhibit 20

Videotape allegedly of Mr. Cowie, taken July 29, 1992 and August 22, 1992

Exhibit 21

Report of Dr. McLachlan, dated June 8, 1994

Exhibit 22

Form 4 Medical Report of Dr. Lapena, dated April 4, 1994

Exhibit 23

List of chiropractic expenses totalling $380

Exhibit 24

Form 4 Medical Report of Dr. Kitching, dated September 11, 1992

Exhibit 25

Invoice #7013 from Dr. McLachlan for $475

Exhibit 26

Form 4 Medical Report of Dr. Kitching, dated September 29, 1992

Other documents before the arbitrator:

Decision, Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, March 9, 1993, OIC File No. A-001159

Report of Mediator, dated October 7, 1993

Application for Appointment of an Arbitrator, dated October 18, 1993

Response by Insurer, dated December 23, 1993

Reply by Insured Person, dated January 5, 1994, with Appendix dated January 4, 1994

Application for Arbitration, dated November 23, 1994 - Form 4 Medical Report of Dr. Kitching, dated May 11, 1992 attached

Chiropractor's Statement of Account, dated September 7, 1994

Letter from Executive Coordinator/Registrar to the parties, dated January 18, 1995

Pre-hearing letter, dated February 24, 1994

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. 2Only available in respect of accidents on or after January 1, 1994, under the provisions of Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
3. 3Ibid.
4. 4Mark W. Cooper and Jevco Insurance Company, April 13, 1994, OIC File No. A-005905 (under appeal); Antonio Ferrari and Royal Insurance Company, September 8, 1994, OIC File No. A-007313 (under appeal); Rustom Tagiran and Simcoe & Erie General Insurance Company, August 15, 1994, OIC File No. A-004660 (under appeal); and Melinda Upper and Canadian General Insurance Company, June 3, 1994, OIC File No. A-002855.