Neutral Citation: 1995 ONICDRG 94

File No. A-006234

ONTARIO INSURANCE COMMISSION

BETWEEN:

SUSAN JESSO (DIMOU)

Applicant

and

ALPENA INSURANCE COMPANY, LIMITED

Insurer

DECISION

Issues:

The Applicant, Susan Jesso (Dimou), was injured in a motor vehicle accident on February 24, 1991. She received weekly income benefits of $600 from the Insurer, payable under section 12 of Ontario Regulation 672¹. Benefits were terminated on July 27, 1993.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits from July 27, 1993, including benefits after 156 weeks?

2. Is the Insurer entitled to repayment of $1,797 on account of the Applicant's post-accident income?

3. Is the Applicant entitled to a special award, under subsection 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, as amended?

4. Is the Applicant entitled to be reimbursed for her expenses incurred in the arbitration proceeding?

The Applicant also claims interest on overdue benefits.

Result:

1. The Applicant is not entitled to weekly income benefits after July 27, 1993.

2. The Applicant is ordered to repay to the Insurer the amount of $1,797, representing benefits overpaid.

3. The Applicant is not entitled to a special award.

4. The Applicant is entitled to one-third of her expenses incurred in respect to the arbitration, subject to section 282(11) of the Insurance Act. If the parties are unable to agree as to the amount owing, either of them may bring the matter before me for determination.

Hearing:

The hearing was held in North York, Ontario, on January 5, 11, 12, 16 and 23, 1995, before me, Nancy Makepeace, arbitrator.

Present at the hearing:

Applicant's

Stephen D. Braithwaite

Representative:

Barrister and Solicitor

Insurer's

Joan Takahashi

Representative:

Barrister and Solicitor

Brian Ferstman

Barrister and Solicitor

Witnesses:

Joannis (John) Dimou, the Applicant's father

Antigone (Anita) Dimou, the Applicant's mother

Steven Sibley, rehabilitation management consultant

Maria Joshua, senior claims representative, Zurich

Kim Robertson, director, Health Recovery Clinic

Dr. Eunice Lau, the Applicant's family doctor

Steven Hill, senior physiotherapist, Rehab West Inc.

Dr. Ruth A. Smith, treating physiatrist

Dr. G.J. Lloyd, orthopaedic consultant

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

The Applicant's failure to appear:

The Applicant was not present at the hearing, and she did not testify. At the outset of the hearing, the Applicant's counsel advised that the Applicant wished to testify as the last witness at the hearing. The Insurer's counsel objected. I ruled that the Applicant could testify at any point during the presentation of the case on her behalf, but must testify before the Insurer opened its case. The Applicant's case opened with the testimony of her parents, John Dimou and Anita Dimou. On the morning of the second day of the hearing, the Applicant's counsel advised that the Applicant would not testify at all, and that the Applicant's case was closed.

Subsection 15.3(b) of the Dispute Resolution Practice Code says, "[a]n arbitration order shall not be made against a party solely on the failure of a party to attend at the hearing." Nonetheless, the Applicant bears the burden of proving, on a balance of probabilities, that she is entitled to the benefits claimed.

The Insurer submitted that I should draw an adverse inference from the Applicant's failure to testify. I agree. It is essential for an arbitrator to have an opportunity to assess the applicant's credibility and circumstances in a case, like this one, involving chronic soft tissue pain in the absence of significant objective evidence of injury.

In assessing the evidence offered on behalf of the Applicant and the Insurer, I have drawn an adverse inference from the Applicant's decision not to testify.

Entitlement to weekly income benefits:

Under section 12 of the Schedule, an insured person is entitled to weekly income benefits if, as a result of a motor vehicle accident, she is unable to perform the essential tasks of her pre-accident employment. After 156 weeks, weekly income benefits are payable only if the accident-related injuries continuously prevent the Applicant from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

Background facts:

The Applicant is in her early thirties. For about five or six years before the accident, she worked full-time as a legal secretary for Weir Associates. Mr. Braithwaite, her counsel in this proceeding, is a member of that firm. The Applicant also did some part-time work for other lawyers, but she did not rely on this work in claiming weekly income benefits.

I received very little evidence about the Applicant's job duties. In her Application for Accident Benefits, she described her job, variously, as law clerk, secretary, and receptionist, and she listed her tasks as typing, computer work, dictaphone transcription, using an adding machine, handling telephone calls, photocopying, filing and related secretarial duties (Exhibit 8).

Except for a short time some years ago, the Applicant has always lived at home with her parents. Aside from her work, she was also active in her church before the accident. Her parents testified that she did little housework because she was working full-time and they were not employed.

On February 24, 1991, the Applicant was driving her car when it was struck by a snowplow while making a left turn. Her mother, who was the front-seat passenger, described the accident at the hearing. According to the Applicant's mother, the snowplow dragged the car into a ditch or field. Some passersby drove the Applicant and her mother to the Credit Valley Hospital, where the Applicant was seen in the emergency department and discharged.

The Applicant has not returned to full-time work since the accident, but she returned to work on a part-time basis (two hours a day, two days a week) in May 1991, about 10 weeks after the accident. The Applicant concedes that her weekly income benefits between May 6, 1991 and July 27, 1993 were overpaid by $1,797 on account of her post-accident income.

The Applicant contends that she is unable to work full-time or increase her hours beyond four hours a week, because of ongoing pain in her neck, low back, shoulders, left knee, left leg, and chest. She also complains of fatigue and weakness, sleep problems, lack of concentration, headaches, palpitations, and driving phobia. She has been treated with analgesics, antidepressants, physiotherapy, chiropractic and massage. She relies on the opinions of Dr. Reynolds, Dr. Minuk, Dr. Selchen and Dr. Lau, all of whom have diagnosed fibromyalgia.

The Applicant married in August 1991. She and her husband, Lester Jesso, live with her parents. Her sister has also moved into the parental home since the accident. The Applicant's parents testified that the Applicant has reduced her housework, and her church, social and recreational activities as a result of the accident.

The Insurer contends that the Applicant could have returned to her pre-accident job on a full-time basis by July 27, 1993, when benefits were terminated. The Insurer relies on the July 8, 1993 report of Dr. Richman, as well as the January 1993 report of Dr. G. Lloyd. The Insurer also relies on evidence of surveillance conducted in October 1991 and January 1992. The Insurer says that the Applicant does not want to work full-time, and has failed to cooperate with the rehabilitation and treatment recommendations of her doctors.

The calculation of benefits issue:

At the beginning of the first day of hearing, counsel for the Insurer moved to have the issue of the Applicant's pre-accident income added to the issue-agenda at the hearing. Insurer's counsel conceded that this issue was not raised in the Report of Mediator, the Application for Appointment of an Arbitrator, or the Insurer's Response. However, she submitted that the Insurer ought to be allowed to raise the issue because it had not received satisfactory disclosure of documents supporting the Applicant's claimed pre-accident income.

Counsel for the Applicant objected to this issue being raised.

The pre-hearing letter of February 22, 1994 states that while post-accident income is in issue, "the computation of the basic amount of weekly income benefit at $575.60 is not in dispute in this arbitration." Several arbitration decisions have interpreted subsection 281(1) of the Insurance Act to mean that unless the applicant consents, an insurer cannot raise the issue of the amount of benefit in response to an application which claims ongoing disability and does not put amount of benefit in issue.² For the reasons set out in those decisions, I ruled that the Insurer may not raise this issue in this arbitration.

Findings and analysis:

I do not accept that the Applicant was disabled by fibromyalgia or any other condition after July 27, 1993.

Orthopaedic and neurological examinations of the Applicant have been essentially negative, and there is no evidence of any significant restriction in movement.

The Applicant saw her family doctor, Dr. Lau, the day after the accident. Dr. Lau diagnosed cervical, thoracic, and lumbosacral sprain/strain (whiplash), contusion of the left knee, and superficial bruising of the right thigh, calf and foot. Dr. Lau has seen the Applicant frequently about her accident-related injuries. Her clinical notes and records were filed, and she testified at the hearing.

Dr. Lau testified that the Applicant's pain results from "a complex interaction between the motor vehicle accident injury, fibromyalgia, and significant psychological factors." In diagnosing fibromyalgia, she relied on the opinions of the specialists: Dr. Reynolds, a rheumatologist; Dr. Minuk, an internist; and Dr. Selchen, a neurologist.

On cross-examination, Dr. Lau agreed that she found no muscle spasm after about two years post-accident, and passive range of motion was "quite good" by the fall of 1991, although the Applicant's muscles were still "slightly tender on palpation".

Dr. Lau referred the Applicant to Dr. Vir B. Sennik, an orthopaedic surgeon, in May 1991. Dr. Sennik opined that the Applicant has "severe muscle spasm secondary to a muscle and ligamentus [sic] injury to the neck area." However, his neurological examination of the Applicant was normal. He stated,

She moves around quite comfortably and the neck also is quite mobile until I go to examine her. When I go to examine her she has 10% flexion and 10% flexion [sic].

In August 1991, Dr. Lau referred the Applicant to Dr. Daniel H. Selchen, a neurologist. His neurological examination of the Applicant was normal. In his opinion, her problems were functional. In his first report (August 19, 1991), Dr. Selchen noted giveway weakness in the left arm and leg for which he could find no motor deficit. He stated that the Applicant "had minimal active neck movement but I could move her neck passively to virtually a full range."

When Dr. Selchen saw the Applicant again in October 1991, he found her to be "a little bit less functional than previously". He told her he thought her pain was predominantly fibromyalgic". In a January 13, 1995 letter to the Insurer's counsel, Dr. Selchen stated that when he described the Applicant's symptoms as "fibromyalgic" in his October 1991 report, he used the term only to describe "a constellation of symptoms" (diffuse soft tissue pain, sleep difficulties, chronic fatigue, depression), and not a disease. He stated, "I do not believe that fibromyalgia is a disease". He reaffirmed that he did not believe the Applicant had any significant neurological illness.

By the last time he examined the Applicant in July 1992, Dr. Selchen felt that she had made "very considerable improvement", and had "turned the corner in terms of her soft tissue injuries".

Dr. Lau referred the Applicant to Dr. Ruth E. Smith, a specialist in physical medicine and rehabilitation, in April 1992, and Dr. Smith examined her twice, on April 9, 1992 and July 20, 1992. Dr. Smith testified at the hearing. Dr. Smith found no muscle spasm or neurological abnormalities in the Applicant's cervical, thoracic or lumbar spine. Range of motion was full, except for a mild reduction in lumbar motion. On examination of the left knee, she found slightly more crepitus than on the right, and slightly more "play", but she doubted this was of clinical significance.

Dr. Smith did not believe that the Applicant has fibrositis. At the hearing, she explained that while the Applicant had some of the tender points characteristic of fibrositis, the response was not palpable or significant, and the Applicant had other non-fibrositic tender points. Dr. Smith opined that the Applicant suffers from myofascial (soft tissue) pain, has poor posture and is deconditioned.

At the request of the Insurer, the Applicant was examined by Dr. Geoffrey J. Lloyd, an orthopaedic surgeon, on January 25, 1993. Dr. Lloyd testified at the hearing. Dr. Lloyd "has great difficulty" believing that fibromyalgia exists. In any event, he does not accept that the Applicant has the characteristic fibrositic trigger points. He also reported that her range of movement was good, and he found no involuntary muscle spasm. He noted that she looked normal when she was unaware of being observed. He accepted that she believed she was disabled, but felt that her complaints were "bizarre". In Dr. Lloyd's opinion, the Applicant's "general demeanour and complaints would certainly suggest that there is a major psychogenic component" to her complaints.

In November 1993, the Applicant saw Dr. W.J. Reynolds, a rheumatologist, on referral from Dr. Lau. Dr. Reynolds diagnosed fibromyalgia, on the basis of her diffuse soft tissue pain, fibrositic tender points, sleep difficulties and depression. Dr. Reynolds saw the Applicant again in January 1994. He confirmed his diagnosis of fibromyalgia, and reported that there was little change in her condition.

It is not unusual in chronic pain cases that there are few if any objective signs of injury. However, reliance on the Applicant's subjective reports make her credibility a critical issue. Her decision not to appear at the hearing suggests that she did not want to be exposed to cross-examination. I assess her credibility accordingly.

The Applicant contends that she suffers from fibromyalgia. She relies on the opinions of Dr. Lau, Dr. Reynolds and Dr. Selchen, as well as that of Dr. Howard Minuk, an internist, who examined her at the Insurer's request on July 4, 1991. Dr. Minuk reported tenderness and reduced range of motion in the Applicant's neck, left shoulder, and left back. He felt that she had "soft tissue residuals". He also identified "[n]umerous fibrositic trigger points", and opined that fibrositis was "setting in". He confirmed his diagnosis of "ongoing fibrositis" when he saw the Applicant again on October 17, 1991.

Whether fibromyalgia is a discrete physical condition or a form of depression is not at issue in this case, because statutory accident benefits are awarded for disability arising from "physical, mental or psychological injury". The experts in this case disagreed as to whether the Applicant has fibromyalgia. I find that Dr. Reynolds was the only doctor who made a clear diagnosis of fibromyalgia. His reports are not detailed, and he did not testify at the hearing. My impression of his clinical notes and reports is that in making his diagnosis, he relied almost exclusively on the Applicant's complaints, and did not have access to her other medical records.

Dr. Selchen qualified his use of the term "fibromyalgia". My impression is that Dr. Minuk's use of the term was similarly limited. Dr. Lau did not make an independent diagnosis of fibromyalgia, but rather relied on the specialists.

I found Dr. Ruth Smith to be a candid witness who was not acting as the Applicant's advocate. She was very knowledgeable about fibromyalgia. Though she and Dr. Lloyd disagreed as to the nature of this condition, they agreed that the Applicant does not display its characteristic trigger points. I do not accept that the Applicant has fibromyalgia.

The Applicant has a heart murmur, and beginning in February 1992 (a full year after the accident), she began to complain of palpitations and other symptoms that can indicate heart problems. These problems recurred in 1993 and again in 1994. Electrocardiogram and echocardiogram investigations were negative. Dr. T. Rebane, a cardiologist, suspected that she had "no serious underlying cardiac problem", and felt the symptoms were probably stress related. He recommended a thallium study, to make sure. This was never done. I am not satisfied that the Applicant suffers from disabling heart problems or that any heart problems she has are related to the accident.

The Applicant's treating doctors and the Insurer's experts have all recommended that the Applicant participate in regular aerobic and strengthening exercise, and a work-hardening program. They have also recommended that she receive psychological treatment. The Applicant has not complied with these recommendations. Instead, she has chosen to rely on passive therapies: chiropractic, massage, and physiotherapy.

In July 1991, Dr. Minuk recommended that the Applicant discontinue passive treatment and begin an exercise program at the Canadian Back Institute. He believed that with this therapy, she would be able to return to work full-time within two months (Report of July 11, 1991). On follow-up in October 1991, the Applicant told him that the CBI was too far from her home, and she was continuing with passive therapies.

In September 1991, the Applicant discontinued chiropractic treatment because, as she told her chiropractor, Dr. Fligg, "she was undergoing physiotherapy, preparing for her wedding, and therefore was unable to schedule further treatment." Interestingly, she also terminated physiotherapy at about the same time, citing her involvement in chiropractic treatment. The Applicant was married in August 1991, and Mrs. Dimou testified that her daughter did most of the planning for the reception of about 100 people.

On referral from Dr. Lau, the Applicant was assessed on September 25, 1991, by Steven Hill, a physiotherapist and kinesiologist, at the Rehab West Inc. clinic. Mr. Hill opined that the Applicant's main problem was poor posture. He recommended that she attend for eight weeks of physiotherapy treatment, focusing on postural control, muscle strengthening, and work-hardening. Although he normally requires a minimum of two or three one-hour sessions per week, the Applicant had made it clear at the outset that she was available for only one session per week.

The Applicant was treated with manual techniques, range of motion and stretching exercises, and TENS. She reported no real change in her symptoms, and Mr. Hill reported that the Applicant's posture remained poor at the end of her therapy. In his testimony, Mr. Hill added that the Applicant did not comply with or remember his advice, and he saw no evidence that she performed home exercises as she claimed. He questioned her motivation, and believed that "she had made the absolute most out of her symptoms". He believed she was "faking".

In February 1992, the Insurer retained Steven E. Sibley, a rehabilitation management consultant, to meet with the Applicant and Dr. Lau in order to develop a rehabilitation plan. Mr. Sibley testified at the hearing. At their first meeting, on February 5, 1992, in the Applicant's home, Mr. Sibley observed that the Applicant remained seated for 45 minutes, with no apparent discomfort, before stating that she had difficulty with prolonged sitting. The Applicant's parents were present, and interrupted frequently to talk about their own disabilities. The Applicant's mother, who was employed part-time before the accident, has not returned to work since the accident. The Applicant's father was also injured in the accident. He had previously retired early because of a workplace injury. (The Applicant's husband is also disabled, as a result of a workplace injury, and is participating in a WCB retraining program.) Mr. Sibley felt that the environment in the Applicant's home was one where everyone talks about their disabilities.

Mr. Sibley stated at this meeting that with a work-hardening program and appropriate assistive devices, the Applicant should be able to substantially increase her hours. He proposed that he visit the Applicant's workplace. The Applicant refused. Mr. Sibley went ahead with the job site analysis on April 21, 1991. The employer advised that the firm would be willing to consider simple modifications to the Applicant's workstation (a headset, an ergonomic chair, an OBUS forme), but they had replaced the Applicant and could not take her back on a full-time basis.

As well as resisting the job site analysis, the Applicant refused to have a functional capacity evaluation, and she refused psychological treatment or treatment at a chronic pain program. She also refused to attend a driving program, though she had requested one for her driving anxiety; this was cancelled after Mr. Sibley scheduled three separate appointments.

In a July 3, 1992 letter to the Applicant, Mr. Sibley stated that in a telephone conversation on June 30, "you [the Applicant] made it very clear that you did not wish to accept my calls to discuss your ongoing rehabilitation needs." Mr. Sibley invited the Applicant to call him at her earliest convenience, and said that if he did not hear from her within two weeks, he would assume she is no longer interested in rehabilitation. The file was subsequently closed, but was re-opened a few months later. The file was finally closed in March 1994.

In June 1992, at the suggestion of Dr. Smith, Mr. Hill started the Applicant on a work-hardening program, consisting of treadmill walking, stairclimbing, and shoulder strengthening exercises. In his June 11, 1992 report to Dr. Lau, he reported that the Applicant participated only at very low intensity, although she made no complaints of pain and he observed no signs of distress. He "did not feel [the Applicant] would make any improvement exercising at today's intensity". He suggested daily physiotherapy to improve her exercise tolerance. According to Mr. Hill, the Applicant

called later that day to make a 'deal' regarding her appointments. She felt that her schedule could only accomodate [sic] 2 sessions per week. I explained that this was inadequate in my opinion to make significant gains and was not consistent with my own and Dr. Smith's recommendations. Mrs. Jesso then stated that if this was not good enough she should discontinue therapy. I agreed with this decision.

Mr. Hill concluded that alleviating the Applicant's symptoms depended on "how much time and effort she is willing to commit to her recovery program."

On referral from Mr. Sibley, the Applicant was assessed for a functional restoration and pain management program at the Health Recovery Clinic on October 21 and 22, 1992. The report of Sue Heathcote, then director of the clinic, was filed in evidence, and Kim Robertson, a physiotherapist, who is now director of the clinic, testified at the hearing. Ms. Robertson conducted the physical assessment of the Applicant.

The difficulties of assessing the Applicant are set out in the report:

... a comprehensive assessment which would include a preliminary interview, a physical assessment, functional capacity testing, and a psychological assessment, normally reqiures [sic] in the region of 4 hours. Unfortunately, Mrs. Jesso was insistent that she could not tolerate more than 2 hours at a time, and the preliminary interview took two hours as the client had many questions with respect to the operation of the clinic and required detailed explanations of the program. Mrs. Jesso returned the following day to complete the assessment, however left the clinic following her physical assessment and prior to her functional capacity testing because this portion of the assessment could not be completed within her 2 hour limit. Further, Mrs. Jesso refused to be interviewed by our psychologist.

Ms. Robertson testified that she was unable to complete the physical assessment, and did only a "cursory" range of motion and strength test. Inconsistent strength testing results indicated less than maximum effort.

The report also states that the Applicant "displays somewhat aggressive, angry behaviour, and ... rather rigid cognitive mind set. She appears to be dependent on passive modalities as evidenced in her determination to continue with massage therapy despite its lack of benefit to date". Further,

... despite lengthy explanation regarding the benefits of active exercise, relaxation training, and pain management education, Mrs. Jesso did not appear motivated to commit herself to such a program. She stated that she was willing to try 2 hours per day, a maximum of 3 days per week. The limit of 2 hours per day, unfortunately, would pose a significant barrier to her recovery. Should Mrs. Jesso be prepared to commit herself to 4 hours per day, 3 days per week we would be willing to accept her into program and to fill in the gaps in the pain management education on a one to one basis.

In addition, Ms. Robertson felt that the Applicant's "uncooperative and negative attitude could have an adverse affect [sic] on the other clients." It was concluded that the Applicant was "not a suitable candidate" for a functional restoration and pain management program.

In 1994, Dr. Reynolds referred the Applicant to the Arthritis Society for treatment of fibromyalgia. She refused to relate her medical history, and the file was closed. When the file was re-opened, she did not comply with the recommendations of the physiotherapist and occupational therapist.

Indeed, aside from using a pool occasionally in 1991, there is no evidence that the Applicant has complied with the recommendation made by all her doctors that she embark on an active exercise program. She has also consistently refused psychological or psychiatric treatment.

In my view, the Applicant's refusal to participate in the treatment and rehabilitation program recommended by all her doctors indicates either that her symptoms are not serious enough to call for treatment, or that she has decided not to treat them, for reasons of her own.

The Applicant returned to her pre-accident duties for two hours a day, twice a week, about 10 weeks after the accident, in early May 1991. At the time of the hearing in January 1995, she had not increased her hours of work, or even attempted to do so. I agree with Dr. Lloyd that this pattern of recovery from injury is atypical.

The medical reports filed in this case do not support the Applicant's claim of ongoing disability.

In October 1991, Dr. Minuk felt that while the Applicant could not do all the activities of her work, she "certainly can do some part-time work which should be gradually increased" (Report of October 22, 1991). In a follow-up report, he stated that when he saw the Applicant in October 1991, he did not believe she could work half days (four hours), five days a week, although she might "presently" be able to, if she followed his recommendations regarding medication and exercise (Report of January 2, 1992).

Dr. Smith felt that the Applicant's job was "ideal", because it is sedentary, light, and the Applicant's position of authority allows her to delegate some tasks. She recommended a functional ability evaluation, to determine the Applicant's work-readiness and necessary workplace modifications. She expected that the Applicant would eventually be able to return to work full-time, if she embarked on an active rehabilitation program.

In January 1992, Dr. Minuk believed that the Applicant would be able to return to work, "perhaps in two months time", if she followed his recommendations for medication and active rehabilitation. He did not think she was able to work half-days yet.

In June 1992, Mr. Hill expressed the view that nothing prevented the Applicant from returning to work full-time. He recommended that she gradually increase her hours.

On assessing the Applicant at the Health Recovery Clinic in October 1992, Ms. Robertson stated that there were no physical findings to support the Applicant's claim that she cannot work more than two hours a day.

On May 17, 1993, the Applicant was seen for a work capacity evaluation by Dr. J. Richman, an occupational medicine specialist, at the request of the Insurer. The evaluation was based on an interview, a review of the medical records and investigative and other reports provided by the Insurer, a physical examination, the Loma Linda Activities Sort, a Maximum Voluntary Effort test, the Canadian Aerobic Fitness test, and a work tolerance screening, based on the physical demands for a legal secretary/law clerk (as set out in the Canadian Classification and Dictionary of Occupations). Dr. Richman concluded that the Applicant was not disabled, and was capable of returning to her pre-accident job full-time, although an ergonomic chair might help her. He added that she demonstrated a lack of cooperation, motivation and effort during her evaluation.

In October 1993, Dr. Lau proposed a schedule for the Applicant's gradual return to full-time work over a period of several months, with the aid of appropriate assistive devices (telephone headset, ergonomic chair, etc.). Dr. Lau advised the Applicant to avoid kneeling, lifting, carrying over 10 lbs, reaching over the shoulder with her left arm, stooping, repetitive bending, and crouching. The Insurer provided an ergonomic chair, and was prepared to provide other necessary assistive devices, once a further job site analysis could be done (the Applicant refused). Dr. Lau reported that the Applicant's response to the return-to-work program was anger.

In my view, if the Applicant had intended to return to full-time work, there is no reason she could not have followed the very reasonable return-to-work plan proposed by Dr. Lau in October 1993.

Mrs. Dimou testified that the Applicant decided that she was disabled very soon after the accident, and has not changed her view. This is clear from Dr. Lau's clinical records, and Dr. Lau conceded this point on cross-examination. The Applicant applied for disability benefits, Canada Pension Plan benefits and a disability tax credit within the first year after the accident. The medical records in this case speak for themselves: the Applicant's main problem is her disability-focus and lack of motivation to return to a normal life. Moreover, the Applicant's pre-accident position is no longer available.

Arbitrators have often said that it is not just "some" disability that entitles an insured person to weekly benefits, but a "substantial" disability, a disability that is "significant" or "sizable". In this case, I find that any ongoing symptoms suffered by the Applicant do not render her substantially unable to work at her pre-accident job as a full-time legal secretary. Given my conclusion on this issue, it follows that the Applicant does not satisfy the more onerous test for entitlement after 156 weeks under subsection 12(5)(b) of the Schedule.

Post-accident income:

Section 15 of the Schedule provides as follows:

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

The parties agreed that between May 6, 1991, when the Applicant returned to work part-time, and July 27, 1993, when benefits were terminated, the Applicant earned income of $7,151. The parties also agreed that the Applicant's benefits should have been reduced by $5,721 (80% of $7,151) on account of this income, but were actually reduced by only $3,924. As a result, the parties agreed that benefits were overpaid by $1,797.

The Insurer submitted that the Applicant should be ordered to repay this amount. According to the Insurer, it failed to make the appropriate deductions because the Applicant did not provide timely evidence of post-accident income. Maria Joshua, a senior claims representative with the Insurer, testified that in May 1991, when the Applicant told the Insurer that she was working part-time, the Insurer advised the Applicant that her benefit would be reduced accordingly. The Insurer requested paystubs from the employer in July, but did not receive them until October, when they were provided by the Applicant. In the meantime, the Insurer had continued to pay benefits of $600 per week. Once the Insurer received the paystubs, subsequent benefit cheques were adjusted accordingly.

According to Ms. Joshua, the Applicant provided paystubs only when the Insurer insisted. On behalf of the Applicant, Mr. Braithwaite stated that the Applicant provided her paystubs infrequently because the firm only paid her "every three months or so". A letter dated October 4, 1991 from the Applicant to her supervisor and a list of the Applicant's invoices to the firm (both in Exhibit 7) indicate that the Applicant invoiced the firm roughly every two weeks after October 1991. No documents were filed concerning payments between May and October.

Subsection 27(1) of the Schedule provides as follows:

27.-(1) A person must repay to the insurer any benefit received under this Regulation that is paid to the person through error or fraud.

In the absence of an explanation from the Applicant, I accept the Insurer's evidence that the Applicant was overpaid as a result of the Applicant's failure to give the Insurer timely notice of her post-accident income, and not through administrative error by the Insurer.

The Applicant is ordered to repay $1,797 in overpaid benefits.

Special award:

The Applicant seeks a special award under section 282(10) of the Act, on the ground that the Insurer unreasonably terminated benefits. Since I am awarding no further benefits, the question of a special award does not arise.

Expenses:

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

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

The prescribed expenses and amounts are set out in 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.

For the reasons set out above, and particularly in light of the Applicant's failure to appear at the hearing, I found that the Applicant's case had very little merit. Because of the Applicant's conduct, the Insurer was put to unnecessary expense.

However, after advising me that the Applicant would not appear, Mr. Braithwaite rested the Applicant's case, after only half a day of oral evidence. The following two full days of hearing were taken up with the Insurer's seven witnesses. The Insurer also filed a great deal of documentary evidence. In addition, the decision of the Insurer's counsel to persist with lengthy examination and cross-examination, despite my repeated advice that it was not necessary, unduly prolonged the hearing.

Given the problems with the way both parties handled this case, I find it appropriate to exercise my discretion with regard to expenses by ordering the Insurer to reimburse the Applicant for one-third of her expenses incurred in the proceeding, subject to the limits set out in section 282(11) of the Insurance Act.

Order:

1. The Applicant is not entitled to weekly income benefits after July 27, 1993.

2. The Applicant is ordered to repay to the Insurer the amount of $1,797, representing benefits overpaid.

3. The Applicant is not entitled to a special award.

4. The Applicant is entitled to one-third of her expenses incurred in respect to the arbitration, subject to section 282(11) of the Insurance Act. If the parties are unable to agree as to the amount owing, either of them may bring the matter before me for determination.

July 12, 1995

Nancy Makepeace

Arbitrator

Date

APPENDIX A

Exhibits:

Exhibit 1

Insurer's Brief - volume 1

Exhibit 2

Insurer's Brief - volume 2

Exhibit 3

Insurer's Brief - volume 3

Exhibit 4

Steven Sibley's curriculum vitae

Exhibit 5

Letter from Steven Sibley to the Applicant, dated July 3, 1992

Exhibit 6

Kim Robertson's curriculum vitae and notes

Exhibit 7

Applicant's pay documentation

Exhibit 8

Pay stubs and other documents from adjuster's notes

Exhibit 9

Arthritis Society notes, dated April 27, 1994

Exhibit 10

Dr. Lau's clinical notes and records

Exhibit 11

Greater Niagara Hospital note

Exhibit 12

Pool therapy documentation

Exhibit 13

Letter from Dr. Selchen, dated January 13, 1995

Exhibit 14

Dr. McKenzie's reports, dated June 3, 1993 and July 21, 1994

Exhibit 15

Investigation report

Exhibit 16

Applicant's brief and index

Exhibit 17

Dr. Smith's curriculum vitae

Exhibit 18

Steven Hill's curriculum vitae

Exhibit 19

Videotape of surveillance on October 16 and 17, 1991

Exhibit 20

Videotape of surveillance in January 1992

Exhibit 21

Dr. Lloyd's curriculum vitae

Exhibit 22

Documents re previous arbitrations

Exhibit 23

Dr. Richman's curriculum vitae

Exhibit 24

Accounts brief

Other documents before the arbitrator:

Report of Mediator, dated August 10, 1992

Application for Appointment of an Arbitrator, dated November 12, 1993

Response by Insurer, dated December 2, 1993

Pre-hearing letter, dated February 22, 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. 2Lorenzo Rescigno and State Farm Mutual Automobile Insurance Company, September 26, 1994, OIC File No. A-008268; Francine Alexander and Constitution Insurance Company, January 31, 1995, OIC File No. A-007573.