Neutral Citation: 1996 ONICDRG 111

OIC A-008036

ONTARIO INSURANCE COMMISSION

BETWEEN:

GARRY ARTHUR CHEETHAM

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Garry Arthur Cheetham, was injured in a motor vehicle accident on October 22, 1993. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Mr. Cheetham claimed a weekly income benefit under section 12 of the Schedule. Pilot Insurance Company paid Mr. Cheetham a weekly benefit under section 13 of the Schedule until April 20, 1994. Mr. Cheetham claimed that he was entitled to a weekly benefit under either section on an ongoing basis. He also claimed interest on overdue benefits and a special award. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Cheetham entitled to weekly benefits under section 12 or section 13 of the Schedule?

2. Is Mr. Cheetham entitled to weekly benefits after April 20, 1994?

3. Is Mr. Cheetham entitled to a special award under section 282(10) of the Insurance Act?

The Applicant also claims interest on any overdue benefits, and his expenses incurred in respect of the hearing.

Result:

1. Mr. Cheetham is entitled to weekly benefits under section 13 of the Schedule.

2. Mr. Cheetham is entitled to a weekly benefit after April 20, 1994.

3. Mr. Cheetham is entitled to interest on overdue benefits under section 24(4) of the Schedule.

4. Mr. Cheetham is not entitled to a special award.

5. Mr. Cheetham is entitled to his expenses of the arbitration.

Hearing:

The hearing was held in Chatham, Ontario, on May 1 and 2, 1995. A brief telephone resumption was held on May 12, 1995. The hearing concluded on June 7, 1995 in North York Ontario, before me, Suesan Alves, arbitrator. A motion to reopen the hearing in order to permit the Applicant to file further evidence was heard by telephone conference call on March 6, 1996.

Present at the Hearing:

Applicant: Garry Arthur Cheetham

Applicant's Representative: Jerry F. O'Brien Barrister and Solicitor

Insurer's Representative: Grant Black Barrister and Solicitor

Grace Pang Barrister and Solicitor

Witnesses: Garry Cheetham, Dr. Michael Hall

Exhibits: 19 exhibits were filed at the hearing.

Evidence and Findings:

Background

The Applicant, Garry Cheetham, injured his left knee in a work accident in January 1989. At that time Mr. Cheetham worked as a feed operator at Elan Corporation, a tool and die company. Mr. Cheetham received workers' compensation benefits as a result of that injury. He attempted to return to his job on three occasions. The last of these attempts took place between March 4, 1991 and April 9, 1991. On May 5, 1991 Mr. Cheetham's employer, Elan Corporation, went out of business.

Mr. Cheetham was awarded a permanent partial pension for his knee injury from the Workers' Compensation Board ("the Board"). In addition, the Board determined that Mr. Cheetham's earning capacity could be improved through suitable upgrading and retraining. The hope was that Mr. Cheetham's earnings after upgrading and training, when combined with his permanent partial pension, would approximate the $15.91 per hour he made before he injured his knee.

The Board sponsored Mr. Cheetham's upgrading and retraining program. During this program, the Board paid Mr. Cheetham a temporary supplement under section 147(2) of the Workers' Compensation Act. Mr. Cheetham upgraded his Grade 10 education to Grade 12, then began the retraining phase of his program. He completed the first year of a general business program at a community college under the sponsorship of the Board. He spent between 46 and 54 hours a week preparing for and attending his lectures, studying and completing assignments. Mr. Cheetham was in the second and final year of the program when he was injured in a motor vehicle accident on October 22, 1993. This motor vehicle accident gives rise to Mr. Cheetham's claims for statutory accident benefits.

Mr. Cheetham was unable to continue attending college as a result of his injuries. Since he was no longer participating in the upgrading and retraining program, the Board discontinued his temporary supplement. Mr. Cheetham claimed a weekly income benefit under section 12 of the Schedule. The Insurer claimed that Mr. Cheetham qualified for a weekly benefit under section 13 of the Schedule.

Mr. Cheetham's entitlement to a section 12 or a section 13 benefit:

Section 12 of the Schedule provides for the payment of a weekly income benefit to a person who is injured in a motor vehicle accident, suffers a substantial inability to perform the essential tasks of his occupation or employment, and meets certain qualifications. In order to qualify for a benefit under section 12(2) of the Schedule, a person must, at the time of the accident, be employed or self-employed, on a temporary lay-off, or entitled to start work within one year under a legitimate offer of employment. Under section 12(3) of the Schedule, if a person is unemployed at the time of the accident, he may nevertheless qualify for a benefit if he worked for 180 days in the 12 months before the accident. An insured person need only meet one of the qualifying provisions under section 12(2) or (3).

Mr. Cheetham claimed that at the time of the accident, he was engaged in the occupation of retraining. AOccupation" is not defined in the Insurance Act or in the Schedule. In the case of LaPlante and Pilot Insurance Company,² Arbitrator Manji noted that the word occupation can be broadly defined as "what occupies or engages one's time and attention." However, she found that the context of section 12 requires some connection between the occupation at the time of the accident, and salary, wages, profit, remuneration or return capable of being estimated in monetary terms. I agree with and adopt her interpretation.

Applying that interpretation to the facts of this case, at the time of the accident, retraining was primarily what occupied or engaged Mr. Cheetham's time and attention. There was also a tie between Mr. Cheetham's retraining and remuneration, namely the monthly supplement paid by the Board. I will now examine the facts of this case in light of the qualifying provisions in section 12(2) and (3) of the Schedule.

Mr. Cheetham's position is that at the time of the accident, he was an employee of the Workers' Compensation Board, and qualified for a benefit under section 12(2)(i) as an employed person. Mr. Cheetham testified that the Board imposed certain conditions upon him, such as maintaining regular attendance at school, reporting and explaining any absences, keeping his marks up, and meeting once per month with his counsellor. In exchange, the Board paid for his tuition, books, a mileage allowance and a temporary supplement. Mr. Cheetham's testimony as to the details of the arrangement is supported by documentation from the Board. Mr. Cheetham also submitted that since the monthly payments made to him by the Board were subject to income tax, these monies were income from employment, and that he was an employee.

I find that the Board sponsored Mr. Cheetham's educational upgrading program. While the Board imposed certain conditions in exchange for the funds advanced to Mr. Cheetham, those conditions do not appear to be typical of the sort of control usually exercised in the course of an employer-employee relationship. Mr. Cheetham's position appears analogous to a student receiving a bursary. While the funds may be subject to income tax, this does not necessarily make the funds employment income. I conclude that Mr. Cheetham was not employed by the Workers' Compensation Board during his educational upgrading program.

In the alternative, the Applicant relied on the case of Jolin and Jevco Insurance Company³ as authority for the proposition that a person receiving benefits from the Workers' Compensation Board is entitled to be considered a section 12 claimant. I do not read that case quite as broadly. In that case, Mr. Jolin established by documentary evidence that he continued to be an employee at the time of the accident. In Mr. Cheetham's case, it is clear that the employer closed its doors and ceased operations in May 1991, more than two years before the motor vehicle accident. I therefore find that at the time of the accident, Mr. Cheetham was not an employee of Elan Corporation.

I also find that at the time of the accident, Mr. Cheetham was not on a temporary lay-off — his former employer ceased operations. I heard no evidence that an offer of employment was made to Mr. Cheetham before the accident or at all. According to the evidence before me, Mr. Cheetham last worked on April 9, 1991. The motor vehicle accident occurred on October 22, 1993, more than two years later. I heard no evidence which suggested that Mr. Cheetham was other than a student during the 12 months before the accident.

Since Mr. Cheetham meets none of the qualifying provisions of section 12(2) or (3) of the Schedule, he does not qualify to receive a section 12 benefit. I conclude that Mr. Cheetham's claim for a weekly benefit can only therefore arise under section 13 of the Schedule.

Is Mr. Cheetham entitled to a section 13 benefit after April 20, 1994?

Section 13 of the Schedule provides for the payment of a weekly benefit during the time an insured person suffers a "substantial inability to perform the essential tasks in which he would normally engage." The Insurer paid Mr. Cheetham a section 13 benefit until April 20, 1994. Mr. Cheetham claimed that he was entitled to ongoing weekly benefits.

Mr. Cheetham's essential tasks

Based on Mr. Cheetham's testimony and a report prepared by a rehabilitation worker dated April 15, 1995, I find that at the time of the accident, Mr. Cheetham's essential tasks were to attend St. Clair College as a full-time student, to perform household maintenance, and to look after his personal care.

Mr. Cheetham drove between his home and the college, commuting approximately four hours each week, since there was no public transit. On a daily basis, Mr. Cheetham carried a large, heavy knapsack of texts and binders to his locker and retrieved these materials as needed during the course of the day. Mr. Cheetham spent between 31 and 34 hours a week at the college campus. Of this time he spent approximately 11 hours attending lectures and studying, and 20 to 24 hours per week working at a computer completing assignments. When he returned home in the evenings, Mr. Cheetham studied between 15 and 20 hours a week. At the end of his first year, he attained an average of 75%.

I find that in order to perform his essential tasks as a student, Mr. Cheetham sat between 49 and 58 hours per week while driving, attending lectures, studying and using a computer. He used both hands to type on the alphabetic and numeric keypads of a computer keyboard, and moved his neck up and down and from side to side while reading text and entering data into a computer. I also find that Mr. Cheetham needed to concentrate in order to read, understand, study and retain the content of his course material, and to complete his assignments. Each segment of Mr. Cheetham's courses was premised on a grasp and retention of earlier material. A student who was not abreast of the course material experienced difficulty following lectures.

With respect to performing home maintenance and outdoor chores, prior to the accident, Mr. Cheetham washed the walls outside the house, put in new plumbing, painted the trim of the family home, took out the garbage, cut and raked the grass, and shovelled snow. Prior to the accident, he was able to independently perform his personal care.

Pre-accident condition

At the time of the motor vehicle accident, Mr. Cheetham had problems with his left knee giving way as a result of his work injury. He was restricted from bending, squatting, and performing repetitive movements with his knee. He was able to walk three blocks at a time before his knee pain increased. In July 1992, he had further surgery on his knee for a medial meniscus tear. He testified that he would pace himself and use devices, such as a brace, to stabilize his knee, or a cushion when he kneeled. Mr. Cheetham also had neck pain prior to the motor vehicle accident which was treated by a chiropractor. Prior to the accident, he took two Tylenol #2 daily to help him manage his neck and knee pain.

Post-accident condition

On October 22, 1993, Mr. Cheetham was travelling at approximately 80 kilometres per hour along the highway when a car drove into his path. Both vehicles were "totalled"as a result of the collision. Mr. Cheetham suffered a displaced fracture of his left wrist, an undisplaced fracture of a toe, and soft tissue injuries to his low back, neck and left shoulder.

The fractured toe healed uneventfully. Mr. Cheetham went on to develop problems with respect to his other injuries. At the time of the hearing, Mr. Cheetham complained of chronic pain to his left wrist, hand, neck, left shoulder extending into his left elbow, and to his low back extending into both buttocks and down his right leg. Mr. Cheetham was diagnosed as suffering from chronic pain syndrome. Mr. Cheetham claims that as a result of his pain, he remains substantially unable to perform his essential tasks, and remains entitled to receive weekly benefits after April 20, 1994, when the Insurer terminated these benefits. I will deal first with Mr. Cheetham's ability to attend college, and then with his ability to perform his household and personal responsibilities.

Mr. Cheetham's wrist fracture was reduced arthroscopically and positioned with pins. Once the pins were removed, Mr. Cheetham began physiotherapy. Approximately three months after the accident, Mr. Cheetham's left arm began to throb at night. His palm would swell and shine and he experienced increased hair growth on the back of his hand. His hand became hot, sweaty, and painful, and his fingers extremely sensitive to touch. This series of changes, which can follow a fracture or injury to nerves and blood vessels, was diagnosed by at least five of Mr. Cheetham's physicians,⁴ as a reflex sympathetic dystrophy, related to the trauma and fractures sustained in the motor vehicle accident.

Mr. Cheetham received 11 nerve block treatments between January and May 1994 for relief of the symptoms in his left arm and hand. He went on to have surgery in February 1995 (a left thoracic sympathectomy), to snip the sympathetic nerve in an attempt to stop the pain and hypersensitivity on the back of his left hand and his three outside fingers. Dr. Gurr, an orthopaedic surgeon, noted in his report of April 6, 1995 that following the surgery, Mr. Cheetham had experienced some recurrence of symptoms, including a cold hand and increased sensitivity feeling of three of his fingers. He still had pain at extremes of pronation and supination, limitation of dorsiflexion and palmar flexion.

A number of the physicians who have treated Mr. Cheetham provided medical opinions that Mr. Cheetham has a significant disability as a result of his wrist injury. Dr. Roth, an orthopaedic surgeon who specializes in upper limb problems and who repaired Mr. Cheetham's wrist fractures, felt that Mr. Cheetham will never be able to do anything with his left hand that requires repetitive movement. Dr. Klein, Mr. Cheetham's family physician, accepts this opinion. Dr. Gurr, the orthopaedic surgeon who treated Mr. Cheetham's knee injury, expressed the opinion that Mr. Cheetham could not return to any job requiring the use of his left hand. As of April 6, 1995, Dr. Gurr concluded that Mr. Cheetham has significant disability related to his wrist dysfunction. None of these opinions specifically comment on Mr. Cheetham's ability to use his left hand on a computer keyboard, or on his ability to make notes at lectures or while studying.

Mr. Cheetham testified that initially the surgery helped his left wrist and hand pain. He believed that he was still recovering from the surgery at the time of the hearing. Mr. Cheetham testified that because of his wrist injury, any movement of his left wrist increases his pain. Three of the fingers of his left hand are extremely sensitive to touch. He is able to type for a minute or two before his pain increases significantly. He does not believe that he will be able to use a computer keyboard to complete his assignments. Mr. Cheetham is right hand dominant. He experiences pain in his left wrist and stiffness in his neck when he leans forward and tries to write or to make notes.

Dr. Michael Hall, the orthopaedic surgeon who examined Mr. Cheetham on behalf of the Insurer on February 24, 1994, testified at the hearing. Dr. Hall reported to the Insurer that Mr. Cheetham "needs his left hand to work with a computer, but the wrist is not an essential feature of this, and his fingers are quite mobile. I believe that he might very well be inhibited in his use of the computer or other keyboard, but I do not believe that he is totally prevented from using this."

There is no issue as to the mobility of Mr. Cheetham's fingers; he complains of the sensitivity of his fingers and the mobility of his wrist. In my view the inhibition is significant. Prior to the accident Mr. Cheetham used a computer keyboard between four and five hours on a daily basis in order to complete his assignments. He can now do so for two minutes before developing significant pain. I conclude that Mr. Cheetham cannot realistically use a standard keyboard to complete his assignments on a computer.

Mr. Cheetham also complained of low back pain following the motor vehicle accident. According to Dr. Klein, Mr. Cheetham's family physician, Mr. Cheetham's back was the area of his body that troubled him the most and about which he consistently complained from the time of the accident until July 1994, when he last examined Mr. Cheetham.

In November 1993, Mr. Cheetham complained to Dr. Klein that he developed headaches with any kind of sitting. In February 1994, Mr. Cheetham complained that his back pain was getting worse. He was experiencing pain down his right leg to his ankle, which was worse with extension than flexion. In March 1994, Mr. Cheetham could not walk 200 yards in eight minutes because of pain in his legs. In late March 1994, he complained of back pain if he sat for any length of time. On various examinations, Dr. Klein found that Mr. Cheetham had restricted flexion and extension of the back and difficulty with twisting and lateral movements to varying degrees. In Dr. Klein's opinion, Mr. Cheetham's complaints were supported by his findings on examination.

Different medications such as anti-inflammatories and pain killers were prescribed for Mr. Cheetham over time without much success in relieving his pain. He has been using a TENS machine for his back pain since December 1993. His family physician arranged for Mr. Cheetham to attend a pain clinic where he received epidural injections for his back pain. These injections provided minimal relief. In May 1994, Mr. Cheetham was discharged from the pain clinic since they could provide no further assistance. At times he obtains relief from physiotherapy, but such relief is generally short-lived. In July 1994, Dr. Klein noted that none of the bone scans or CT-scans pointed to any real organic pathology at that time and concluded that Mr. Cheetham is left with chronic pain syndrome.

Dr. Gurr, an orthopaedic surgeon who had previously treated Mr. Cheetham in relation to his work-related knee injury, is of the opinion that most of Mr. Cheetham's pain and disability will remain on a permanent basis with respect to his low back.

Mr. Cheetham testified that sometimes his low back hurts after sitting for 20 minutes. He gets some relief by standing up for a few minutes and then sitting down again. He also tries to relieve some of the tension in his back by supporting his neck and right arm. He uses an Obus forme. His sitting tolerance varies from half an hour to two hours. After two hours of sitting with breaks, he finds that he has to lie down and rest. Over the course of a day his neck pain increases, he develops pain along both sides of his spine, pain radiates down his right leg to his toes, and his left arm hurts. When he has tried to increase his sitting tolerance, he has found that it takes three to four days to bring his pain down to manageable levels. Mr. Cheetham testified that he would be unable to sit through a class period of 55 minutes or through a double period of one hour and 50 minutes, without developing severe pain.

Dr. Michael Hall, the orthopaedic surgeon who examined Mr. Cheetham at the Insurer's request, noted Mr. Cheetham's complaints of low back pain extending into the hips and extending down the right leg to the ankle through the back of the leg, and of soreness across the lumbo-sacral region. Dr. Hall noted that in a letter from Dr. Klein, Mr. Cheetham's family doctor, dated November 16, 1993, Mr. Cheetham was able to flex through two-thirds of a normal range and extend normally at the lumbar spine. In his report to the Insurer, Dr. Hall stated that this further persuaded him that his "thought that [Mr. Cheetham] was deliberately falsifying his examination is likely to be correct. "Dr. Hall found Mr. Cheetham's limitation of movement of his back and his statement of pain in the low back "really not to be credible" and could "see no reason why he should not in terms of the back aspect of the motor vehicle accident return to his school work."

At the hearing Dr. Hall testified that in his opinion, Mr. Cheetham would be able to go to school by some means, stay at school for five days a week for seven to eight hours a day, with time off for lunch. While at school, he would sit and work with paper, pencil and computers, listen to lectures and use his books.

Dr. Hall felt that the TENS machine worn by Mr. Cheetham for his back pain had largely a placebo effect. In his testimony Dr. Hall expressed concern that TENS machines help people who wear them to become cripples in their own mind, leading them to lapse into becoming "contented chronic cripples who sign off from life."

Dr. Klein reviewed Dr. Hall's report and commented that "certainly there is some discrepancy between Dr. Hall's examination and my own. Some of that may be just a fluctuation in the patient's pain level on the day of the examination." Dr. Klein provided a detailed review of Mr. Cheetham's complaints and of his findings on examination since the motor vehicle accident. Dr. Klein noted that Mr. Cheetham consistently showed levels of pain and that those complaints had been supported by his findings on examination. He found it "difficult to believe that this patient has got a complete return of pre-accident level of function." Dr. Hall did not comment on Dr. Klein's report.

Prior to the accident, Mr. Cheetham sat between 49 and 58 hours during the week in order to perform his essential tasks. I conclude on the preponderance of the evidence that Mr. Cheetham is unable to sit for nine or more hours a day.

Mr. Cheetham also complained of pain to his left elbow, left shoulder and neck as a result of the motor vehicle accident. Dr. James Allen, an orthopaedic surgeon, noted in March 1995 that Mr. Cheetham continues to have significant pain and discomfort about his left shoulder which will radiate up into his neck and down his arm to about his elbow. Dr. Allen felt that Mr. Cheetham's problem was suggestive of chronic rotator cuff tendonitis, perhaps a cervical spine whiplash type injury or soft tissue strain, which has probably left him with a chronic pain syndrome. Dr. Allen felt that "it is just something that he is going to have to learn to live with and with time, he will probably be able to function somewhat better than at present... but I think that he is going to be left with a rather significant permanent partial disability involving the left upper limb and neck and hand." He had no further suggestions for active treatment.

Dr. Gurr, an orthopaedic surgeon, also noted the chronic nature of Mr. Cheetham's neck, back and shoulder pain. He, too, was of the opinion that most of Mr. Cheetham's pain and disability will remain on a permanent basis with respect to his neck and shoulder.

Mr. Cheetham testified that he will experience difficulty carrying his bag of books because of his neck and shoulder problems. Reading is problematic because when he bends his head forward, pain goes up both sides of his neck and into his head. He also experiences more neck stiffness than he did prior to the motor vehicle accident. He believes that he will experience difficulty independently reaching books or other materials in the library because of the neck and arm movements involved.

Dr. Hall felt that Mr. Cheetham voluntarily restricted the movement of his neck and that Mr. Cheetham had a full range of flexion of his neck. Dr. Hall also found Mr. Cheetham to have unrestricted shoulder movement. Again, on the preponderance of the evidence, I prefer the evidence of the Applicant's physicians. I conclude that Mr. Cheetham will experience increased levels of pain while carrying his books and reading.

Mr. Cheetham testified that he finds it difficult to concentrate, to remember things and to focus on any topic while coping with the pain from his motor vehicle injuries. He testified that he forgets things easily. He has difficulty remembering where he puts things unless he makes a note of it. He finds it hard not to be distracted. He does not believe that he will be able to study effectively because he cannot concentrate or focus sufficiently.

Dr. Klein, Mr. Cheetham's family physician, acknowledged the subjective nature of Mr. Cheetham's concerns about his inability to concentrate. He felt that Mr. Cheetham's concerns were reasonable. Mr. Cheetham had difficulty sleeping. Dr. Klein noted that Mr. Cheetham got satisfaction from his school attendance. He agreed that it was in Mr. Cheetham's best interests on a long-term basis to return to school. He stated that "It is hard to determine whether he will ever have the ability to concentrate and get back to school and move ahead. "Mr. Cheetham has been Dr. Klein's patient since 1989. I accept his view that Mr. Cheetham was motivated to return to his academic program and that Mr. Cheetham would be unable to concentrate.

Where the opinions expressed by Mr. Cheetham's physicians vary from that expressed by Dr. Hall, I prefer the evidence of Mr. Cheetham's physicians. They addressed themselves to Mr. Cheetham's complaints. They had the benefit of seeing Mr. Cheetham repeatedly, were familiar with him, his injuries and condition, and provided considered opinions.

I accept Mr. Cheetham's evidence. I found him candid in his responses to questions. He often volunteered information during cross-examination with a view to assisting counsel. He gave thoughtful responses where appropriate. He expressed frustration with his pain and with being unable to complete the second year of his college program.

I conclude that the cumulative effect of Mr. Cheetham's injuries is that he is substantially unable to perform his essential tasks as a college student. His difficulties in concentrating, studying, absorbing and retaining material, completing his assignments, and sitting, are significant. It may be feasible for Mr. Cheetham to complete his academic program, perhaps a few courses at a time, with the benefit of various assistive devices and accommodations.

Mr. Cheetham testified that because of his post-accident pain, he no longer cuts the grass or takes out the garbage. He believes that the pain from painting the trim outside the house would be extremely severe. With respect to his personal care, Mr. Cheetham now has difficulty taking a bath or showering without assistance. He also has difficulty washing his back and one side of his body. He experiences difficulty holding the soap with his left hand. He has trouble putting on his slacks and socks because of increased low back pain caused by bending. His wife assists him with these aspects of his personal care. Prior to the accident he was able to perform his personal care independently. I conclude that Mr. Cheetham is also substantially unable to perform the household maintenance and that he encounters significant difficulty in independently performing aspects of his personal care as a result of his injuries from the motor vehicle accident.

Mr. Cheetham asked the Insurer to fund a rehabilitation program as recommended by Dr. Klein, his family physician, and by Dr. Clifford, a physiatrist. It was Dr. Clifford's hope that with the benefit of a rehabilitation counsellor who would coordinate a functional restoration program with physical rehabilitation, vocational rehabilitation, and psychological support components, Mr. Cheetham might return to school in September 1994.⁵ The Insurer declined to fund such a program. In my view, in the absence of such intervention, Mr. Cheetham has no better strategies for coping with his pain or for performing his essential tasks, and remains substantially unable to perform these tasks. He therefore remains entitled to weekly benefits under section 13 of the Schedule. Mr. Cheetham is entitled to interest on overdue benefits as provided under section 24(4) of the Schedule.

The motion to reopen the hearing

On March 6, 1996, a motion brought by the Applicant was heard by teleconference call. The Applicant wished to reopen the hearing in order to file a medical report which had been obtained following the hearing. Section 40.1 of the Dispute Resolution Practice Code - August 1, 1995 provides that "The arbitrator may reopen a hearing at any time before he or she makes an arbitration order."

The medical report had been obtained following the hearing. Counsel for the Applicant advised that although the Applicant's appointment had been booked with the examining physician in 1993, that physician was so busy that he was unable to see Mr. Cheetham until 1996. Counsel for the Applicant submitted that the report was relevant to Mr. Cheetham's ongoing complaints of disability.

Counsel for the Insurer opposed the admission of the new evidence as being highly prejudicial to the Insurer's case. Counsel for the Insurer further submitted that the prejudice could not be lessened by any step, such as the recalling of witnesses.

In the case of Tran and Pilot Insurance Company,⁶ Arbitrator Manji proposed certain considerations which may guide an arbitrator in exercising his or her discretion. In her view, the discretion to receive further evidence after the case is closed should be exercised "only in exceptional or extraordinary circumstances. To do otherwise would be to delay and jeopardize the arbitration process and the finality required in the process." The arbitrator should be satisfied that the evidence is not only "relevant, but so weighty that if adduced it would have an important influence on the result of the case. It must also be shown that the lateness of its presentation was justified by unusual circumstances beyond the control of the party seeking to adduce it." I agree with and adopt these criteria.

I was not persuaded that the circumstances were exceptional or extraordinary. While the physician's schedule is beyond Mr. Cheetham's control, he was aware of the three year delay. The report was outstanding when the arbitration hearing was scheduled. In this case while the evidence may be relevant, it was not suggested that it was so weighty that it would have an important influence on the outcome of the case. I therefore declined to reopen the hearing to receive the further medical report and requested the Office of the Registrar to return this material to counsel for the Applicant.

The claim for a special award

Section 282(10) of the Insurance Act provides for the payment of a special award where an arbitrator is of the opinion that an Insurer has unreasonably withheld or refused to pay benefits. The Applicant claimed a special award in respect of rehabilitation expenses and physiotherapy expenses. The Insurer disputed that such an award was payable.

a) Rehabilitation expenses

Counsel for the Applicant raised the claim for a special award with respect to rehabilitation expenses in the course of his submissions. It is unclear whether the Insurer was aware of the Applicant's intention to make such a claim in respect of rehabilitation expenses before these submissions. The evidence before me establishes that the Applicant sought approval of rehabilitation expenses in the amount of $10,200.00 and that the Insurer declined to pay this expense.

Section 281(2) of the Insurance Act provides that "No person may bring a proceeding in any court or refer a matter to arbitration unless mediation has first been sought and has failed." Thus issues must be mediated before they are arbitrated. There was no evidence that the claim for rehabilitation expenses was mediated. Section 282(3) of the Insurance Act provides that "The arbitrator shall determine all issues in dispute and such other issues as the parties may agree." Thus, if the Insurer consented to have the issue of rehabilitation expenses included in this arbitration, I would have jurisdiction to deal with the Applicant's claim for rehabilitation expenses. There was no indication of such a consent. I find therefore that I have no jurisdiction to deal with a claim for rehabilitation expenses in this arbitration.

It follows that I can only exercise my jurisdiction to determine whether "an insurer has unreasonably withheld or delayed payments" in relation to a claim for benefits which is properly before me. Since I have no jurisdiction to determine Mr. Cheetham's claim for rehabilitation benefits in this arbitration, I conclude that I have no jurisdiction to determine whether he is entitled to a special award in respect of such benefits.

b) Physiotherapy expenses

On June 7, 1995, at the resumption of the hearing, counsel advised that the claim for physiotherapy expenses was settled. The claims for physiotherapy expenses and for a special award with respect to physiotherapy benefits were withdrawn.

Expenses

The Applicant claims an award of his expenses. An arbitrator has a discretion to make an award for expenses under section 282(11) of the Insurance Act. The prescribed expenses and amounts are set out in Schedule F of the Dispute Resolution Practice Code-1995 Release. I exercise my discretion to award the Applicant his expenses in respect of the arbitration having regard to the circumstances of this case, the submissions of counsel, and the objective of facilitating applicant's access to the arbitration process. In the event that the parties cannot agree as to the total amount of expenses, a party may apply for an assessment of expenses through the Office of the Registrar.

Order:

1. The Applicant is entitled to weekly benefits under section 13 of the Schedule.

2. The Applicant is entitled to weekly benefits after April 20, 1994

3. The Applicant is entitled to interest on overdue benefits under section 24(4) of the Schedule.

4. The Applicant is not entitled to a special award

5. The Applicant is entitled to his expenses incurred in respect of the arbitration.

June 28, 1996

Suesan Alves Arbitrator

Date

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. 2(March 15, 1995), OIC A-003567
3. 3(October 27, 1995), OIC A-002187
4. 4Dr. Roth, an orthopaedic surgeon who specializes in upper limb problems who repaired the fracture to Mr. Cheetham's wrist, Dr. Walker, an anaesthetist at a pain clinic who administered 11 nerve block treatments to relieve his left arm and hand complaints, Dr. Jamieson, who performed a left thoracic sympathectomy, Dr. Clifford, a physiatrist who assessed Mr. Cheetham on one occasion, and Dr. Klein, Mr. Cheetham's family physician.
5. 5Dr. Clifford's report dictated June 15, 1994 states "Although this does not seem reasonable at the present time, it is the writer's opinion that returning to full-term school in September /94 remains an inappropriate time line." The report was amended by Dr. Clifford on April 25, 1995 to read..." remains an appropriate time line"(emphasis added)
6. 6(August 16, 1995), OIC A-005207