Neutral Citation: 1995 ONICDRG 90

File No. A-000104

BETWEEN:

N. R.

Applicant

and

WELLINGTON INSURANCE COMPANY

Insurer

DECISION

The Applicant, N.R., was injured in a series of six motor vehicle accidents. Three of the accidents, those which occurred on November 13, 1990, December 15, 1991 and May 11, 1993, relate to Wellington Insurance Company ("Wellington"). The parties agreed that disputes arising from the last accident of May 11, 1993, are not in issue in this proceeding. Three other accidents occurred on June 23, 1989, August 27, 1990, and November 2, 1992. These accidents relate to other insurers who are not before me in this proceeding. The first two accidents, which occurred on June 23, 1989 and August 27, 1990 involved Co-Operators General Insurance Company ("Co-Operators") and are relevant in determining N.R.'s physical and psychological condition prior to the accidents of November 13, 1990 and December 15, 1991.

N.R. received weekly income benefits from Wellington in respect of his accident on November 13, 1990, paid under section 12 of Ontario Regulation 672¹. Wellington stopped paying weekly income benefits for that accident effective June 21, 1991 on the basis that N.R.'s continuing disability was not the result of injuries suffered in that accident.

Wellington paid no weekly benefits to N.R. in connection with the accident of December 15, 1991 on the basis that N.R. did not suffer a substantial inability to perform his essential tasks as a result of that accident.

The parties were unable to resolve their disputes through mediation and N.R. applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Did N.R. commence his arbitration proceeding in respect of the November 13, 1990 accident within the time-limits prescribed under section 281(5) of the Insurance Act and section 26 of the Schedule?
Is the Insurer precluded from filing the medical reports of Dr. Langer and Dr. Stancer because of an alleged bias?

The issues pertaining to benefits are:

Is N.R. entitled to payment of weekly income benefits in the amount of $600.00 under section 12 of the Schedule from June 22, 1991 to September 24, 1992, when he states he returned to work?
Is N.R. entitled to a special award against Wellington under section 282(10) of the Insurance Act?

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

Result:

Preliminary Issues:

N.R. commenced his arbitration proceeding in respect of the November 13, 1990 accident within the time-limits prescribed under section 281(5) of the Insurance Act and section 26 of the Schedule.
The Insurer is not precluded from filing the medical reports of Dr. Langer and Dr. Stancer.

With respect to benefits:

N.R. is not entitled to payment of weekly income benefits under section 12 or 13 of the Schedule from June 21, 1991 to September 24, 1992.
N.R. is not entitled to a special award under section 282(10) of the Insurance Act. No interest is payable to N.R.
N.R. is entitled to his expenses incurred in the hearing.

Hearing:

The hearing was held in Toronto, Ontario, on June 20, 21, and September 12, 1994, before me, Janice Mackintosh, arbitrator.

Present at the Hearing:

Applicant: N.R.

Insurer's Representative: Christopher Blom Barrister and Solicitor

Insurer's Officer: Patrick Johnson

Witnesses: N.R. Ms. Darlene Jakubowski

The proceedings were recorded by Mr. Stephen A. Van Alstyne, of Legal Transcript Services.

Exhibits: The 18 exhibits and other documents before the arbitrator are listed in Schedule A.

Background:

N.R. was born on December 1, 1953. He is married with two children aged ten and six. He described himself as a self-employed entrepreneur engaged in numerous business activities over the years, including: importing and exporting goods from Guyana, sales, carpentry, and furniture design. Prior to the first of his motor vehicle accidents, N.R. testified that his principal business activities were: driving a car for a courier service on an intermittent basis, silk screen artist, and designer of a religiously significant print expressing the attributes of Allah, and marketing this print to the Muslim community.

Pre-accident history and medical condition:

a) First accident - June 23, 1989:

On June 23, 1989, N.R. was sitting in his parked car in the Eaton's parking lot when someone reversed their car into the front of his car. After this accident, N.R. felt immediate neck pain and an occipital headache. The following week he developed low back pain. Several months after the accident he developed left anterior chest pain along the costochondral junction and ten months after the accident he developed left arm and shoulder pain². In a report dated April 30, 1990, Dr. Edwin P. Urovitz, an orthopaedic surgeon on the active staff of Centenary Health Centre, concluded that:

The delay in onset of all symptoms other than those related to the neck pain and associated headaches indicate that such symptoms were in no way related to the accident in question [June 23, 1989]. There would appear to be evidence to suggest a major degree of emotional overlay resulting in enhanced awareness of somatic complaints which exists in disproportionate fashion³.

In a report dated June 26, 1990, N.R.'s family doctor, Dr. L. Lerner also noted that N.R. complained of short-term memory loss. Dr. Lerner referred N.R. to Dr. Paul Clarke, a neurologist, for this complaint. I was not provided with a report from Dr. Clarke⁴.

On examination on June 17, 1990, approximately one year after the accident, Dr. Lerner recorded complaints of "immediate chest pain with walking or stretching and right pectoral muscle tenderness with all range of motion"⁵.

N.R. testified that as a result of the injuries he sustained in the first accident of June 1989, he was unable to work for about a year. In June 1990, he and Co-Operators settled his claims arising out of the June 1989 accident. N.R. testified that he was unable to return to the physically demanding work of print making and silk-screening because of continuing injuries to his neck, arms, shoulders, and back. However in July and August 1990, he did carpentry work for members of his family, and friends. He claims he earned a net profit of $5,972 in the period July 22, 1990 to August 27, 1990⁶.

b) Second accident - August 27, 1990:

On August 27, 1990, N.R. was driving along a highway when he noticed an accident ahead. He was unable to brake quickly enough to avoid striking the car in front of him. He claims to have reinjured his neck and back and to have hit his head and chest against the steering wheel upon impact⁷. He testified that a few weeks after the accident he began to experience auditory and visual hallucinations, and difficulty with his memory⁸. Co-Operators began to pay N.R. weekly income benefits in the amount of $1,011.20⁹ under the optional benefits provisions of section 12 of the Schedule.

In October 1990, N.R.'s family physician referred him to Dr. Michael Stuparyk, a consultant in internal medicine. In a report dated October 31, 1990¹⁰, Dr. Stuparyk described N.R.'s chief complaint following the August 1990 accident as follows:

Confusion, auditory hallucinations. Father's voice talking to him. Lack of concentration when voices heard. Impatient with his family. Anger may occur suddenly with no reason. Aggressive behaviour.

Dr. Stuparyk also noted headaches, whiplash injury to neck, and right thoracic chest pain. He queried whether N.R.'s auditory hallucinations were due to schizophrenia, or secondary to a cerebral contusion experienced in the August 1990 accident.

N.R.'s family physician, Dr. Lerner, arranged for psychiatric and psychological evaluation, and therapy for N.R. Dr. Ron Wilson, a neurologist, administered various diagnostic tests and concluded¹¹:

I feel this man suffers from a mood disorder and possibly a thought disorder producing multiple somatic complaints. The thought disorder could be producing auditory hallucinations.

c) Third accident - November 13, 1990:

There is some confusion concerning the facts of this accident in the medical reports filed, however according to N.R., on November 13, 1990, he was driving in the curb lane when another driver made a right hand lane change directly in front of him causing N.R. to strike the other vehicle. This is the first of the two accidents which are in issue in this hearing. N.R. testified that he could not remember whether he was wearing a seat-belt when his chest hit the steering wheel on impact. He claims that he immediately felt pain in his chest at the scene of the accident. Soon after he began to experience cramps which were so severe as to cause him to think he was experiencing a heart attack. N.R. testified that he also reinjured his neck and low back, however, his biggest concern arising from this accident was the severe cramping in his chest.

N.R. testified that when Co-Operators learned of his November 1990 accident, they terminated weekly income benefits in respect of his August 27, 1990 accident, effective December 14, 1990.

On January 15, 1991, N.R. applied to Wellington Insurance for statutory accident benefits in connection with his November 13, 1990 accident¹². Under section 6 of the Application for Accident Benefits entitled "Claimant's Employment", N.R. noted that he was still recovering from the accident of August 27, 1990. Under the heading "Income from Employment", N.R. noted "other monetary compensation" in the weekly amount of $1,011.20: the sum he had been receiving in benefits from Co-Operators in respect of the August 1990 accident.

Wellington initially accepted N.R.'s disability claim and paid weekly income benefits under section 12 of the Schedule, in the amount of $293.84, retroactive to December 17, 1990¹³. Dissatisfied with this amount, N.R. commenced mediation proceedings against both Co-Operators and Wellington claiming weekly income benefits at the level of $1,011.20, as previously paid to him by Co-Operators. At mediation neither insurer agreed to top up N.R.'s weekly income benefit to that level¹⁴. However, Wellington increased weekly income benefits to $600. N.R. continued to receive weekly income benefits from Wellington in respect of his November 1990 accident and continued to pursue Co-Operators to top up his benefit to the higher level of benefits $1,011.20 in respect of his August 1990 accident.

In January 1991, N.R.'s treating psychiatrist, Dr. Tom Enright, referred him to the psychology department of Centenary Hospital for "diagnostic clarification, in an attempt to differentiate between organic and /or an emotional etiology of his recent symptoms" including visual and auditory hallucinations, which he had experienced since the motor vehicle accident of August 1990¹⁵. A report dated March 11, 1991, prepared by B. Abrams, psychometrist, concluded:

The pattern of cognitive deficits involved verbal memory, verbal learning, speed of processing, and visual-attentional functions primarily. In my opinion, this pattern is most similar to that seen in dysfunction of the left frontal-temporal, and right parietal-occipital regions. While the cognitive, personality, behavioral and perceptual disturbances noted are not inconsistent with head injury, a latent schizophrenic disturbance cannot be ruled out on the basis of psychometrics alone. Clinically however, he did not appear to me to be suffering from a psychotic disorder, and while there is also evidence to suggest that he may be exaggerating the severity of some of his symptoms (given that he has some unresolved insurance issues, and that he has knowledge of the characteristic symptoms and presentation of schizophrenia from his involvement with his psychotic brother), the underlying pattern of deficits is more consistent with the diagnosis of head injury.

In the spring of 1991, Wellington arranged for the examination of N.R. by Dr. Fred Langer, an orthopaedic specialist, and Dr. Harvey C. Stancer, a psychiatrist. At the hearing, N.R. strenuously objected to the introduction of Dr. Langer's report dated March 4, 1991, Dr. Stancer's report dated May 1, 1991, and Dr. Stancer's follow-up letter dated January 24, 1992¹⁶.

N.R. alleged that both these doctors were biased against him, and were members of a group of doctors who were conspiring with the insurance industry to defraud consumers. In support of his allegations, N.R. relied on the fact that Dr. Langer spent only 45 minutes with him and refused to give him a further appointment or to treat him for his complaints. Dr. Langer's role in this case was limited to examining and reporting on the orthopaedic condition of the Applicant at the request of the Insurer, and did not extend to treatment. I do not find that Dr. Langer's actions alone constitute bias. I admitted the report dated March 4, 1991, into evidence¹⁷.

Dr. Langer stated that he was unable to determine the contribution of each of the three accidents to N.R.'s current disability and concluded:

The physical examination fails to reveal any significant abnormality and it is likely that from a physical point of view [N.R.] has no serious problem.

This is in spite of his physical type symptoms such as back pain, neck pain, and pain in the chest.

On the other hand, [N.R.] does admit to having psychiatric problems.

N.R. also alleged that Dr. Langer and Dr. Stancer failed to adhere to specific guidelines proposed by the College of Physicians and Surgeons of Ontario, for medical examinations undertaken at the request of third parties¹⁸. Neither Dr. Stancer nor Dr. Langer were called to testify concerning N.R.'s bald allegations of professional misconduct and absent other evidence in of support of the allegation of bias, I permitted the Insurer to file Dr. Langer and Dr. Stancer's materials.

In his report dated May 1, 1991, Dr. Stancer concluded:

Further, there does not appear to be significant evidence to support the presence of a major psychiatric disorder, either in his previous psychiatric contact or when I saw him. This does not preclude the presence of personality characteristics which have been present for many years and not related to the motor vehicle accidents¹⁹.

N.R. provided Co-Operators with a copy of the report of Dr. Tom Enright, dated April 4, 1991, which suggested he had sustained a head injury in the August 1990 accident²⁰. Co-Operators agreed to reinstate weekly income benefits in the amount of $1,011.20, for disability relating to N.R.'s August 1990 accident²¹. In May 1991, N.R. notified Wellington of Co-Operator's decision. In June 1991, Co-Operators reimbursed Wellington for all weekly income benefits that Wellington had paid to N.R. in connection with the November 13, 1990 accident²² up to June 21, 1991. N.R. testified that he did not participate in the negotiations between these two insurers. Wellington closed its file in connection with N.R.'s November 1990 accident²³.

Time Limits Argument:

Wellington submits that N.R. is now precluded from pursuing arbitration against it, in respect of the November 1990 accident, because N.R. commenced this arbitration proceeding beyond the time-limit prescribed by section 281(5) of the Insurance Act.

Section 281(5) of the Insurance Act, provides:

(5) A proceeding in a court or an arbitration proceeding in respect of no-fault benefits must be commenced within two years after the insurer's refusal to pay the benefit claimed or within such longer period as may be provided in the No-Fault Benefits Schedule.

Time-limits are also dealt with in section 26 of the Schedule as follows:

26.-(1) A mediation proceeding under section 280 of the Insurance Act or an arbitration or court proceeding under section 281 of the Act in respect of benefits under this Regulation must be commenced within two years from the insurer's refusal to pay the amount claimed in the application for statutory accident benefits or, if the person has attended school or accepted, or returned to, an occupation or employment, as permitted by section 16, within two years of the insurer's refusal to pay benefits.

N.R. commenced arbitration in respect of the November 1990 accident by an application to the Commission dated July 8, 1993. Wellington submits that this application was filed more than two years after its last payment of weekly income benefits to N.R. effective June 21, 1991.

Wellington argues that the simple act of stopping benefits implies "the insurer's refusal to pay the benefit claimed" referred to in section 281(5) of the Insurance Act. I do not agree. Section 24(8) of the Schedule provides:

(8) If the insurer refuses to pay an amount claimed in an application for statutory accident benefits, the insurer shall forthwith give written notice to the insured person giving the reasons for the refusal.

The Schedule and the Insurance Act, create a scheme for the provision of statutory accident benefits to insured persons. In my view, section 281(5) of the Insurance Act cannot be read in isolation from sections 24(8) and 26(1) of the Schedule. The insurer is required to give the insured person written notice when it refuses to pay an amount claimed in an application for accident benefits. This is particularly important where there are several accidents, overlapping claims, and ongoing negotiations, as in the present case. Wellington concedes that it did not give written notice informing N.R. of its refusal to pay further weekly income benefits in respect of the November 1990 accident, and giving reasons for its refusal, until January 1992²⁴. I conclude that the two year time period referred to under section 281(5) of the Act, begins to run from the time the insurer has complied with the written notice provisions under section 24(8) of the Schedule²⁵.

N.R.'s application for arbitration in connection with the November 1990 accident, dated July 8, 1993, was filed within two years of Wellington's written notice of refusal dated January 2, 1992. N.R. is not precluded from proceeding with his application for arbitration in respect of the November 1990 accident.

Does N.R.'s claim in respect of the November 1990 accident arise under section 12 or 13 of the Schedule?

Wellington now takes the position that N.R. does not qualify for weekly income benefits under section 12(1) of the Schedule because he was not working at the time of the November 13, 1990 accident and had not worked since his previous accident on August 27, 1990. There is no claim for repayment of benefits.

N.R. claims self-employed status based on his carpentry work in the summer of 1990.

In order to qualify for benefits under section 12(3), N.R. must establish that he was employed or self-employed for any 180 days in the 12-month period before the November 1990 accident. N.R. concedes that during the 12 months from November 1989 to November 1990, the only work he performed was from June or July 1990 to the date of his second accident on August 27, 1990. Prior to that period, N.R. did not work because he was recovering from injuries received in his first accident in June 1989. The period from June to August 27, 1990 is less than the 180 days required under section 12(5). I conclude that N.R. is not entitled to weekly income benefits under section 12 of the Schedule and must establish entitlement to weekly benefits (non income) under section 13. Accordingly, I need not consider the merits of N.R.'s claim for benefits in the maximum amount of $600 under section 12, in respect of the November 1990 accident.

Under section 13 of the Schedule, Wellington is required to pay a weekly benefit in the amount of $185 (less any payments for loss of income received by N.R.) during the period in which N.R. suffered substantial inability to perform the essential tasks in which he would normally engage, as a result of injuries suffered in the November 1990 accident.

I received limited evidence concerning N.R.'s essential tasks prior to the November 1990 accident. He testified that he continued to wash and dress himself and to do light shopping. He explained that although his wife works full-time, he has never participated in the domestic chores or childcare responsibilities in his household. He stated that he had not recovered from his most serious problems caused by the August 1990 accident when the November 1990 accident occurred.

The medical evidence relating to the August 1990 accident satisfies me that at the time of his November 1990 accident, N.R.'s activities were limited by his psychological and psychiatric problems, which arose shortly after the August 1990 accident²⁶. N.R. testified that at times his memory and concentration were so bad that he could not remember the names of his children.

N.R. testified that his most serious physical problem following the November 1990 accident was the severe cramping in his chest. N.R. claims that as a result of the chest cramping which occurred five or six times per day, he was unable to return to carpentry work as soon as he otherwise would have after the August 1990 accident.

N.R.'s testimony about the injuries suffered in the November 13, 1990 accident differs markedly from his complaints to his family physician, Dr. Lerner, on November 17, 1990²⁷. Dr. Lerner noted complaints of immediate headache, tenderness around the occipital region of the spine, and low back pain. He concluded that N.R. suffered a cervical myofascial strain and post traumatic migraine headache.

Some months after the accident, Dr. Lerner noted complaints of right-sided rib and chest pain. It is unclear from Dr. Lerner's report dated March 11, 1992, when N.R. first complained of chest pains following the November 1990 accident²⁸. Dr. Lerner initially refers to chest pain, pleuritic in nature and right sided rib pain in an examination on January 4, 1991. However, later in the same report, he writes:

[N.R.] complained of headaches and neck pains intermittently, throughout December 1991. Starting in February of 1992, on February 3rd he complained of persistent pleuritic chest pain. A bone scan performed was negative, re: fractures/dislocations of the ribs. It was felt that he was suffering from post-tramatic costochondritis.

Two days after his third accident of November 13, 1990, N.R. was assessed by the Canadian Back Institute ("CBI")²⁹. This assessment was conducted at the request of Co-Operators Insurance, in respect of N.R.'s claims from his second accident of August 27, 1990. N.R. had previously been assessed by CBI on May 30, 1990 in respect of injuries from the June 1989 accident. The CBI report refers to injuries suffered in the June 23, 1989 and August 27, 1990 accidents. No reference is made to the November 13, 1990 accident which had occurred two days earlier.

The CBI report concludes:

Based on the examination it appears [N.R.] presents with a longstanding chronic neck and back problem which is mechanical in origin and the result of a MVA in June 1989 which has been further exacerbated by a reinjury in August of this year [1990]. There also appears to be some strong inorganic element to this patient's symptoms and [N.R.] appears very fixated on his pain symptoms.

The CBI report does not refer to chest pains although N.R.'s cervical and thoracic areas were examined.

I find that N.R. did not experience severe chest pain soon after the November 1990 accident, as he claims. The onset of his chest pain occurs a significant period of time after the November 1990 accident. N.R. complained of a similar delayed onset of chest pain following the June 1989 accident. Dr. Urovitz concluded that this was not accident related³⁰. A similar pattern followed the August 1990 accident³¹. N.R.'s unexplained chest pain, which arose well after the November 1990 accident, may be related to his previously documented chest pain; however, I find that it is not the result of the November 1990 accident. Furthermore there is no medical evidence to suggest that N.R. was prevented from performing his essential tasks of daily living by injuries suffered in the November 1990 accident.

I conclude that N.R. has failed to establish that he suffered a substantial inability to perform the essential tasks in which he would normally engage as a result of injuries he suffered in the November 1990 accident. He is therefore not entitled to weekly benefits under section 13 of the Schedule, in respect of this accident.

Essential Activities Prior to N.R.'s fourth accident on December 15, 1991:

By a hand-delivered notice dated June 20, 1991, Co-Operators informed N.R. that his weekly income benefits in respect of the August 1990 accident would be terminated a second time, effective June 22, 1991³².

Following the termination of his benefits from Co-operators, N.R. claims that he attempted to return to sales work in July 1991. He states that he purchased 14 pairs of stereo speakers, with a view to reselling them at a profit. He testified that by September 1991 he had sold approximately half of the speakers, but had difficulty finding buyers after that time. He also stated that his neck, back, and chest injuries prevented him from carrying the speakers out of his house, where they were stored, and delivering them to buyers.

N.R.'s testimony concerning his business activities during this period was very vague. He provided little documentation in support of this alleged business activity other than a receipt for 28 "JVC" stereo speakers from Electronic Palace, Jamaica, New York, bearing the incomplete date of 07 19, four receipts signed with his name dated April and May 1993³³, a time period well beyond the December 1991 accident, and two pictures of approximately 16 stacked boxes labelled "JVC", stored in a bedroom. N.R. originally provided these pictures to Zurich Insurance Company ("Zurich") in support of his claim for weekly income benefits arising out of a fifth motor vehicle accident which occurred on November 2, 1992³⁴.

N.R. did not establish that his sales activities during the 52 weeks preceding the December 1991 accident totalled 180 days, as required under section 12(3) of the Schedule. Further, the evidence provided does not persuade me that N.R. actually engaged in the business of selling stereo speakers during the 52 weeks preceding his December 1991 accident. I conclude that N.R. is not entitled to weekly income benefits under section 12 of the Schedule and must establish entitlement to weekly benefits (non income) under section 13. Accordingly, I need not consider the merits of N.R.'s claim for benefits in the maximum amount of $600 under section 12, in respect of the December 1991 accident.

By October 1991, N.R. was focusing his attention on pursuing mediation against Co-Operators in respect of his August 1990 accident³⁵. N.R. sought reinstatement of his weekly income benefits from June 22, 1991, on the basis that he continued to be substantially disabled as a result of injuries suffered in the August 1990 accident. Co-Operators did not agree to reinstate benefits. N.R. ultimately initiated arbitration against Co-Operators. However, in a decision on a preliminary issue dated December 21, 1993, Arbitrator Palmer concluded that N.R. was not entitled to proceed with his arbitration against Co-operators because he had commenced his proceeding beyond the time limit prescribed by the Insurance Act³⁶.

d) Fourth accident - December 15, 1991:

N.R. was a passenger in his wife's car on December 15, 1991, when she lost control of the car and swerved up onto a curb. The right front wheel of the car went over the curb and the right rear wheel slammed into the curb. This is the second of the two accidents which are in issue in this hearing.

On January 7, 1992, N.R. submitted an application for accident benefits to Wellington Insurance in connection with the December 1991 accident. He described his injuries as "headache, pain in the neck, upper back, lower back". Under the heading "If you were not employed at time of accident - Do you suffer a substantial inability to perform the essential tasks in which you would normally engage - Explain", N.R. inserted the date of his August 27, 1990 accident. He noted that he was unemployed at the time of the December 1991 accident³⁷.

N.R.'s family doctor completed a form 4 medical report in connection with the December 1991 accident³⁸. Dr. Lerner noted cervical myofascial strain and rib and chest pain, along with depression, and stated that he had previously treated N.R. for similar complaints after his accidents of June 23, 1989 and November 13, 1990.

Wellington reopened its file on N.R. when it received the Application for Accident Benefits in respect of the December 1991 motor vehicle accident³⁹. After reviewing the file, Wellington sent a letter to N.R., dated January 2, 1992, denying benefits in respect of the earlier November 1990 accident⁴⁰.

On January 17, 1992, N.R. met with a representative of Wellington who prepared a written statement concerning the events of the December 1991 accident. N.R. identified the written statement and his signature affixed to it. The statement reads in part:

I last worked in August 1990 and was not fit for work when this incident occurred due to memory problems and an ear pain. I also have cramps in my chest which come when I exert myself. These three things would have prevented me from working even prior to this incident. I also have neurological problems. The memory problems started with the August 1990 accident. These come and go but I think it is worse than when it started⁴¹.

On a separate page the statement continues:

Prior to this accident I was bored and didn't really do anything. I did not do anything substantial around the house and did not participate in any hobbies. That has not really changed since the incident of December 1991 except I am in more pain.

In a letter dated February 7, 1992, Wellington denied N.R.'s claim for weekly benefits under section 13 of the Schedule in connection with the December 1991 accident on the basis that, by his own admission, he was not substantially disabled from performing his essential tasks⁴².

For the following reasons, I have reached the same conclusion as Wellington. On cross-examination, N.R. agreed that the material parts of the written statements relied upon by Wellington were true. N.R. offered no further details concerning his essential tasks during the period preceding the December 1991 accident or his inability to perform them. It is an established principle in arbitration decisions of the Commission that the accident benefits scheme does not compensate applicants for pain and suffering unless an applicant establishes that the pain substantially disables him or her from performing essential tasks⁴³. N.R. has failed to satisfy this burden of proof.

Furthermore, the preponderance of the medical opinion suggests to me that the most disabling aspect of N.R.'s overall condition is related to his intellectual, emotional, and psychological functioning rather than to his physical complaints. In a report dated October 15, 1993, Dr. Terrence Fiss, a neuropsychologist associated with Centenary Hospital, concluded:

There is currently evidence of considerable impairment of memory and attention in this man which is probably of sufficient magnitude to prevent him from returning to gainful employment or taking up his familial role in the near future. The etiology of this impairment may be less related to brain damage secondary to head injury per se at this juncture and more related to the emotional consequences of the changes brought about by the accidents, particularly since the accident of August 1990 when the memory problems, hallucinations and personality problems reportedly began. The differential DSM-IIIR diagnosis of his presenting emotional symptoms at this time should include Schizophreniform Disorder (295.40), Generalized Anxiety Disorder (300.02) and Dysthymia (300.40). There also appears to be a long-standing disturbance in his personality, classified as Schizotypal with prominent aggressive traits, a finding which is consistent with his brother's reports of personality disturbance. It is unclear whether or not the latter tendencies pre-dated the accident(s) or not, however⁴⁴.

I conclude that at the time of the December 15, 1991 accident, N.R.'s daily activities were already severely limited because of the emotional and psychological problems which arose after the August 1990 accident. In view of N.R.'s limited description of his activities prior to December 1991, I am not persuaded that this accident resulted in any further inability to perform his essential tasks.

N.R. testified that by September 24, 1992, his condition had improved sufficiently to permit him to resume his former work selling stereo speakers. However, he was involved in a fifth motor vehicle accident a little over a month later, on November 2, 1992. This fifth accident involved Zurich Insurance and is not before me. N.R. provided few details of his return to work in 1992 and I make no findings in respect of it. N.R. was involved in a sixth motor vehicle accident on May 11, 1993 involving Wellington, however, the parties agreed that disputes arising from the sixth accident are not in issue in this hearing.

Special Award:

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

Expenses:

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

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

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

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

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

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

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

In view of the multiplicity of accidents and the factual complexity of N.R.'s claims, it is not surprising that N.R. was uncertain about his entitlement under the Schedule. Furthermore, Wellington initially accepted N.R.'s claim for weekly income benefits under section 12 in connection with the November 1990 accident and then subsequently changed its position thereby creating doubt and uncertainty in N.R.'s mind as to the accuracy of Wellington's subsequent decision. In these circumstances, I am prepared to exercise my discretion to award N.R. his expenses of this arbitration. I will remain seized of the issue of expenses in the event of a dispute between the parties concerning the amount of expenses to be paid.

Order

N.R. is not entitled to payment of weekly income benefits under section 12 or 13 of the Schedule from June 21, 1991 to September 24, 1992.
N.R. is not entitled to a special award under section 282(10) of the Insurance Act. No interest is payable to N.R.
N.R. is entitled to his expenses incurred in the hearing.

July 6, 1995

Janice Mackintosh Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1 Joint book of documents prepared by Insurer

Tab 1 Dr. Lawrence Lerner - April 17, 1991

Tab 2 Dr. Lawrence Lerner - March 11, 1992

Tab 3 Dr. Lawrence Lerner medical certificate - February 3, 1992

Tab 4 Dr. Lawrence Lerner - clinical notes and records (documents not provided at hearing)

Tab 5 Dr. Fred Langer - March 4, 1991

Tab 6 Dr. Harvey Stancer - May 1, 1991

Tab 7 Dr. Harvey Stancer - January 24, 1992

Tab 8 Dr. Tom Enright - April 4, 1991

Tab 9 Dr. Gary Moddel - June 17, 1993

Tab 10 B. Abrahms - January 29, 1991

Tab 11 Dr. Terrence Fiss - October 15, 1993

Tab 12 Dr. Terrence Fiss - clinical notes and records

Tab 13 Dr. Ron Wilson - clincal notes and records

Tab 14 Curriculum Vitae A Dr. Fred Langer B Dr. G. Moddel C Dr. Terrence Fiss

Tab 15 Revenue Canada Income Tax Summary – 1989

Tab 16 Purchase record from Electronic Palace bearing no. 14242, with four pages from invoice book dated April 4, April 14, April 24 and May 5, 1993

Tab 17 Wellington Insurance Company file documentation (November 13, 1990 accident) A Claim Notice - November 14, 1990 B Correspondence from R. Green to N.R. - January 9, 1991 C Correspondence From R. Green to N.R. - January 25, 1991 D Correspondence from R. Green to N.R. - January 30, 1991 E R. Green note - February 18, 1991 F D. Zimmerman memo - February 22, 1991 G R. Green note - May 3, 1991 H D. Zimmerman memorandum - January 7, 1992 I Correspondence from D. Zimmerman to N.R. - January 22, 1992

Tab 18 Wellington Insurance Company file documentation (December 15, 1991 accident) A Application for Accident Benefits B Medical report C Statement of N.R. - January 17, 1992 D Statement of N.R. - January 17, 1992

Tab 19 Wellington Insurance Company claim documents (May 11, 1993 accident) A Application for Accident Benefits B Medical Report C Statement of N.R. - July 4, 1993

Exhibit 2 Fax dated June 6, 1991 from Wellington to Cooperators

Exhibit 3 College of Physicians and Surgeons, College Notices Issue No. 11, December 1986

Exhibit 4 Photo #5 of N.R.'s silk screen poster

Exhibit 5 Photocopies of a series of receipts for carpentry work

Exhibit 6 Pictures taken by Zurich Insurance of remaining boxed speakers

Exhibit 7 Application for Accident Benefits package submitted to Wellington, dated January 15, 1991

Exhibit 8 Application for Accident Benefits and Form 4 and medical report, dated January 7, 1992

Exhibit 9 Handwritten statements signed by Applicant, dated January 17, 1992

Exhibit 10 Medical report of Dr. Stuparyk, dated October 31, 1990

Exhibit 11 Dr. Urovitz' report dated April 30, 1990

Exhibit 12 Dr. Myers' report dated April 20, 1990

Exhibit 13 CBI report of November 20, 1990

Exhibit 14 Dr. J.R. Garber's report dated April 20, 1992

Exhibit 15 Medical report of Dr. Lerner dated June 26, 1990

Exhibit 16 Medical report of Dr. Michele Macartney-Filgate dated December 30, 1991

Exhibit 17 Letter dated February 7, 1992 from Wellington to N.R.

Exhibit 18 1990 income tax return for N.R.

Footnotes

Prior 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.
Exhibits 12 and 15
Exhibit 11
Exhibit 15
Exhibit 15, page 2
Exhibits 5 and 18
Exhibit 1, tab 5 and Exhibit 13
Exhibit 1, tab 13, page 2, report dated October 2, 1990
Co-Operators Insurance was not before me in this hearing and I received no explanation of the basis for this calculation.
Exhibit 10
Exhibit 1, tab 13, page 1
Exhibit 7
Exhibit 1, tab 17c
Reports of Mediator, dated March 20 and March 22, 1991
Exhibit 1, tab 10
Exhibit 1, tabs 5, 6 and 7
Exhibit 1, tab 5
Exhibit 3
Exhibit 1, tab 6
Exhibit 1, tab 8
Exhibit 1, tab 17(g)
Exhibit 2
Exhibit 1, tab 17(h)
Exhibit 1, tab 17(i)
Domenica Paulozza and Liberty Mutual Fire Insurance Company, April 22, 1994, OIC File No. A-00666; Emilia Zeppieri and Royal Insurance Company of Canada, February 17, 1994, OIC File No. A-005237.
Exhibit 1, tab 10, report of Dr. Abrams
Exhibit 1, tab 2
Exhibit 1, tab 2
Exhibit 13
Exhibit 11
Exhibit 10
Nazrur Rahman and Co-Operators General Insurance Company, December 21, 1993, OIC File No. A-000854.
Exhibit 1, tab 16
Exhibit 6
Report of Mediator in respect of August 27/90 accident, dated December 20, 1991, Exhibit 14, report of Dr. Garber
Nazrur Rahman and Cooperators General Insurance Company, December 21, 1993, OIC File No. A-000854
Exhibit 8
Exhibit 8, dated January 7, 1991
Exhibit 1, tab 17(h)
Exhibit 1, tab 17(i)
Exhibit 9
Exhibit 17
Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260; S.S. Gaba and Allstate Insurance Company of Canada, August 21, 1992, OIC File No. A-000624; Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024; Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064; Douglas R.G. Williams and Jevco Insurance Company, May 6, 1992, OIC File No. A-000112; Edgar Cowie and The Non-Marine Underwriters, March 9, 1993, OIC File No. A-001159 (under appeal); Carlo Caring and The Wawanesa Mutual Insurance Company, February 18, 1993, OIC File No. A-000860 (pending variation application); Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894; Steve Sminitich and Gore Mutual Insurance Company, April 8, 1992, OIC File No. A-000931; Barbara Edwards and State Farm Mutual Automobile Insurance Company, July 12, 1993, OIC File No. A-001707 (under appeal); Janet Youkhaneh and Prudential Assurance Company, February 21, 1994, OIC File No. A-002021.
Exhibit 1, tab 11

N. R. v. Wellington Insurance Company, 1995 ONICDRG 90

Case Summary