Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 135

Appeals P-001159 and P-005767

OFFICE OF THE DIRECTOR OF ARBITRATIONS

EDGAR COWIE Appellant

and

THE NON MARINE UNDERWRITER'S, MEMBERS OF LLOYDS Respondent

Before: David R. Draper, Director's Delegate

Representatives: Edgar Cowie (appearing in person) Mark Fonseca (counsel for Lloyds)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeals are dismissed and the arbitration decisions, dated March 9, 1993 and June 22, 1995, are confirmed.
No appeal expenses are payable.

August 12, 1996

David R. Draper Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEALS

Mr. Cowie appeals two arbitration orders, dated March 9, 1993 and June 22, 1995, both involving his entitlement to accident benefits under Ontario Regulation 672, the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the Schedule"). The first appeal focuses on his entitlement to weekly benefits under section 13 of the Schedule, while the second involves claims for supplementary and rehabilitation benefits under section 6.

II. BACKGROUND

This matter has a lengthy procedural history, arising from Mr. Cowie's automobile accident on February 14, 1991. At the time of his accident, he was retired from selling real estate. Therefore, his claim for weekly benefits was under section 13 of the Schedule, which provides:

13.--(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage . . .

The Non Marine Underwriter's, Members of Lloyds ("Lloyds"), paid Mr. Cowie weekly benefits for a number of weeks, but stopped paying on the basis that he was no longer substantially unable to perform his essential tasks. The parties could not agree on the number of weeks paid. Mr. Cowie only acknowledged payments to March 23, 1991, while Lloyds claimed he was paid weekly benefits from February 22, 1991 to May 16, 1991, a period of twelve weeks.

Mr. Cowie disagreed with Lloyds' decision to end his weekly benefits. After an unsuccessful attempt to reach a mediated settlement, the dispute went to arbitration. The main issue before the arbitrator was whether Mr. Cowie was entitled to weekly benefits from March 24, 1991 to June 30, 1992. Mr. Cowie also claimed certain prescription costs and his arbitration expenses. Lloyds argued that not only should Mr. Cowie's claims be rejected, he should be ordered to repay some of the weekly benefits he already received.

On the first day of the arbitration hearing, neither party was represented by a lawyer. As I understand it, the hearing started, but was adjourned to allow Mr. Cowie to review Lloyds' surveillance evidence and to consider retaining a lawyer. Both parties had lawyers at the resumption of the hearing. The hearing concluded on the second day.

The arbitrator heard from three witnesses - Mr. Cowie and two private investigators hired by Lloyds. Fourteen exhibits were filed. The medical reports came from two doctors. The early reports were prepared by Dr. Istuan Sekely, Mr. Cowie's family doctor. These reports focussed on Mr. Cowie's physical condition, and did not particularly support his claims. In Dr. Sekely's opinion, Mr. Cowie was completely disabled from any type of physical activity for approximately six weeks following the accident, and partially disabled for another three weeks, with continuing symptoms of neck pain.

According to the arbitrator, Mr. Cowie disagreed with Dr. Sekely's assessment of his disabilities. In particular, he claimed that he had ongoing headaches and psychological problems that were being treated by Dr. D. Kitching.

Dr. Kitching and Dr. Sekely work in the same medical clinic. Although Dr. Kitching describes himself as practising family and industrial medicine,¹ Dr. Sekely referred Mr. Cowie to him for psychotherapeutic counselling.² At page 11 of her decision, the arbitrator set out Dr. Kitching's description of his first visit with Mr. Cowie on April 27, 1992:

He (Mr. Cowie) described episodes of nocturnal disturbances occurring from "nightmares" of increasing frequency and malicious content. No doubt such symptoms are purely subjective and are nebulous to quantitate clinically. Otherwise, he appeared to be physically fit and emotionally stable person, both sincere and quite direct in his communicative skills.

Dr. Kitching reported that when he saw Mr. Cowie on June 30, 1992, "[e]ssentially a state of fitness had returned."³ On September 11, 1992, Mr. Cowie told him that "he sleeps routinely, eats routinely, performs everyday activities routinely. He remains unemployed." Although Mr. Cowie wanted him to report to Lloyds that he was disabled, Dr. Kitching stated that "[a]t no time has he presented with any symptoms to justify this disability diagnosis." Finally, Dr. Kitching reported that on their last visit on September 29, 1992, Mr. Cowie was "willing to accept this date as termination of all symptoms as related to the motor vehicle accident."

According to the arbitrator, Mr. Cowie also disagreed with Dr. Kitching's assessment of his condition. He claimed that he was still unable to do some of his routine activities as well as he did before the accident, or at all.

After reviewing Mr. Cowie's essential tasks, the arbitrator accepted that he was unable to carry them out due to his neck injuries until April 18, 1991. She also accepted that from April 19, 1991 to April 27, 1992, he was troubled by intermittent neck pain, headaches, insomnia and nightmares. She found, however, that these symptoms were not so disturbing or disabling that he continued with regular medical treatment.

The arbitrator concluded that Mr. Cowie was only entitled to weekly benefits until April 18, 1991. She did not order him to repay any benefits because Lloyds had not established that he was paid beyond that date. The arbitrator also ordered Lloyds to pay certain prescription expenses and Mr. Cowie's arbitration expenses.

In his Notice of Appeal, Mr. Cowie claimed he was entitled to weekly benefits until September 29, 1992, plus additional medical and rehabilitation expenses. One difficulty with Mr. Cowie's position is that at the arbitration hearing, his lawyer conceded that the claim for weekly benefits did not continue beyond June 30, 1992. Lloyds suggests this was a tactical decision to minimize the importance of the surveillance done after this date.⁴ Whatever the reason for the concession, I find no basis to conclude that Mr. Cowie is not bound by it. Therefore, the main issue in this appeal is Mr. Cowie's entitlement to weekly benefits from April 19, 1991 to June 30, 1992.

As stated in many previous decisions, my role on appeal is not to second-guess the arbitrator's evaluation of the evidence. She was able to consider the documentary evidence along with the testimony of the witnesses. Mr. Cowie contends, however, that the arbitrator's decision should not be allowed to stand because she was biased, her factual findings are not supported by the evidence, and she did not properly apply the eligibility test in section 13 to the facts of his case.

Mr. Cowie submitted some new evidence with his appeal, including a report prepared after the arbitration decision by Dr. John McLachlan, a consulting psychologist. Lloyds objected to the introduction of any new evidence. The parties were initially advised that the Director of Arbitrations would deal with the appeal on the record, including the admissibility of the new evidence. After my appointment, I asked for oral submissions on both appeals.

I will deal with the specific grounds for Mr. Cowie's appeal below. After reviewing the material with his objections in mind, however, I am not persuaded that there is any reason to disturb the arbitrator's order. In my view, she applied the proper test and made findings supported by the evidence.

This case is somewhat unusual in that the only medical evidence came from Mr. Cowie's own doctors. Lloyds did not arrange any medical assessments. The fundamental problem with Mr. Cowie's claim, however, is that while both Dr. Sekely and Dr. Kitching recorded his complaints, neither found much wrong with him. Mr. Cowie seems to believe that their reports support his claims. I agree with the arbitrator that, at best, they provide only limited support.

Before the first appeal was decided, Mr. Cowie made some additional claims for supplementary medical and rehabilitation expenses under section 6 of the Schedule. Essentially, his position was that he continued to have accident-related physical and psychological problems requiring ongoing treatment and retraining. Lloyds denied these claims. Following an unsuccessful mediation, Mr. Cowie applied for a second arbitration hearing.

Mr. Cowie did not want to wait for the appeal decision from the first arbitration before proceeding with the second hearing, but he objected to the involvement of the same arbitrator. His submissions were not accepted and the second hearing went on before the same arbitrator.

The arbitrator identified the following claims in dispute:

$1,200 for an eight-hour assessment conducted by Dr. John McLachlan at Mr. Cowie's request in April and May 1993.
$1,375 for psychological therapy received intermittently from July 1993 to June 1994, plus transportation expenses of $27.50 related to this therapy.
Payment for further psychological treatments recommended by Dr. McLachlan and related travel expenses.
Payment for computer education and work conditioning programs recommended by Dr. McLachlan.
$380 for chiropractic expenses incurred during the period February 23, 1994 to May 13, 1994, plus $90 for additional chiropractic expenses incurred in the period after this hearing, August 8 to September 7, 1994.

As in the first hearing, Mr. Cowie initially attended without a lawyer. He contested Lloyds' surveillance evidence, including photographs and videotapes, claiming he was not the person shown. The arbitrator reminded Mr. Cowie that some of this evidence was introduced at the first hearing, and he conceded, through his lawyer, that he was the person under observation.⁵

At the end of the first day, a second hearing date was set. When the hearing resumed, Mr. Cowie had a lawyer, although not the one who represented him at the first hearing.

The second hearing involved 26 exhibits, some of which were also exhibits in the first hearing, and one witness - Mr. Cowie. One of the medical reports was an additional report from Dr. Sekely, dated December 9, 1992, that was not submitted in the first hearing, although it was available. Mr. Cowie argued that Lloyds deliberately withheld this report. I find no basis for this serious allegation, and accept that it was a matter of inadvertence.

The "missing" report is important because it clarifies Mr. Cowie's visits to Dr. Sekely. In her first decision, the arbitrator found that Mr. Cowie last saw Dr. Sekely on September 10, 1991, approximately seven months before he first saw Dr. Kitching. This finding supported her view that although Mr. Cowie continued to be troubled by intermittent neck pain, headaches and insomnia after April 18, 1991, "[t]hese symptoms were not so disturbing or disabling to cause the Applicant [Mr. Cowie] to continue treatment with his family doctor (other than the single visit on September 10, 1991) or to follow up the referral to Dr. Kitching, until April 27, 1992" (p.17).

Dr. Sekely's December 1992 report includes reference to two additional visits on April 7 and 24, 1992, when Mr. Cowie complained of "ongoing neck pain, associated at times with mild occipital headache."⁶ The arbitrator considered this new information, but did not change her opinion about his condition (p.8).

In the second hearing, the arbitrator was given medical reports from Dr. Sekely, Dr. Kitching, Dr. McLachlan and Dr. Lapena, a chiropractor. Mr. Cowie relied heavily on Dr. McLachlan's reports, which the arbitrator considered over four full pages of her decision. She found that Mr. Cowie was not referred to Dr. McLachlan, but initiated the request for a lengthy psychological assessment himself. She also found that he did not give Dr. McLachlan an accurate history of his post-accident medical problems. Because Dr. McLachlan's opinions were based on inaccurate information, the arbitrator was not prepared to place much reliance on them.

In a decision dated June 22, 1995, the arbitrator rejected Mr. Cowie's claims. She also rejected Lloyds' submission that Mr. Cowie should be ordered to pay an assessment under section 282(11.2) of the Insurance Act because his claims were frivolous, vexatious or an abuse of process.

Mr. Cowie appealed this second arbitration decision, raising many objections. Again, I am not persuaded that there is any basis for interfering. In my opinion, the arbitrator was not biased as alleged by Mr. Cowie, she made findings based on the evidence before her, and properly applied the tests relevant to his various claims.

III. ANALYSIS AND CONCLUSIONS

Mr. Cowie represented himself in both appeals. Although his grounds for appeal reflect a great deal of work, they are difficult to follow. I will deal with his specific objections to the decisions, as I understand them.

A. The First Appeal

Bias: Mr. Cowie's allegation of bias in this appeal appears to be based on the arbitrator's assessment of the evidence. In essence, he claims that she misread, or selectively read, the medical reports in a way that compromised his claims.

The arbitrator's role is to evaluate the evidence. I find nothing to suggest that the arbitrator did not approach this task properly. The fact that she made findings against Mr. Cowie's position does not amount to bias.

Lloyds' refusal to arrange a medical examination: Mr. Cowie submits that if Lloyds doubted his disability, an assessment "by their doctors" should have been arranged.

The Schedule gives an insurer the right to require an examination by a doctor of its choosing, but it is not required to do so. The onus is on the applicant to establish his or her claim. The insurer can refuse a claim if it finds that the applicant's own doctors do not support it, or there is other contrary evidence. This may be a risky strategy, but it is permissible.

"Essential tasks": Mr. Cowie submits that the arbitrator erred in her interpretation of section 13 of the Schedule, or in applying it to his case. He claims that she should have considered his ability to do all of the activities set out on page 5 of the arbitration decision.

To be eligible under section 13, the person must be substantially unable to perform his or her "essential tasks." The Schedule distinguishes "essential tasks" from normal "activities." The Director of Arbitrations recently discussed this distinction in Whitney and Co-operators General Insurance Company (July 10, 1996, OIC P-001005):

Not every activity is a task, and not every task is an essential one. Tasks have been described as involving "an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants", while the qualifying word "essential" also means the task is to be basic, necessary or fundamental. (p. 4)

This is the approach taken by the arbitrator in identifying Mr. Cowie's essential tasks. Therefore, I find no error in her interpretation of section 13. Nor am I persuaded that she erred in her determination of which of Mr. Cowie's activities were "essential tasks."

Surveillance: Mr. Cowie contends that the arbitrator should not have relied on the surveillance evidence because it was never proven that he was the person being observed. At page 17 of her decision, the arbitrator records that Mr. Cowie did not dispute that the surveillance evidence properly identified him. In a subsequent letter to the parties, she confirmed that Mr. Cowie's lawyer conceded in his presence that there was no issue of identification.

There is no suggestion that Mr. Cowie's lawyer did not make this concession. The arbitrator, therefore, was entitled to rely on it. Further, the arbitrator was able to view the photographs in Mr. Cowie's presence, but expressed no concern that he was not the person shown.

Dr. Sekely's December 1992 report: Mr. Cowie submits that the arbitrator erred in finding that there was a seven-month gap between his last appointment with Dr. Sekely and his first appointment with Dr. Kitching. Specifically, Mr. Cowie submits that she erred in finding that his last visit with Dr. Sekely was on September 10, 1991.

Based on the evidence before her, the arbitrator's finding was reasonable. However, the "missing report" from Dr. Sekely, dated December 9, 1992, confirms Mr. Cowie's contention that he saw Dr. Sekely twice in April 1992, shortly before he first saw Dr. Kitching.

The question is whether this information would have affected the outcome. I am not persuaded that it would have. The arbitrator specifically considered the December 9, 1992 report in the second hearing, but stated that it did not affect her view of Mr. Cowie's condition (p.8).

The "missing report" does not change the fact that there was a seven-month gap in Mr. Cowie's medical treatment. He did not see Dr. Sekely from September 10, 1991 to April 7, 1992. Further, Dr. Sekely found very little wrong with Mr. Cowie in April 1992. Although Mr. Cowie complained on ongoing neck pain and mild suboccipital headaches on April 7, 1992, he found no neuromuscular abnormalities, and did not feel Mr. Cowie had "any disability that would have prevented him from working."

On April 24, 1992, Mr. Cowie reported having nightmares. Dr. Sekely gave him some advice to help him sleep and referred him to Dr. Kitching for ongoing stress management. Dr. Sekely does not suggest, however, that he viewed the nightmares as particularly disabling.

Headaches: Mr. Cowie submits that the following statement from page 9 of the decision is wrong:

If the Applicant [Mr. Cowie] was disturbed by headaches, insomnia and nightmares during this period, these symptoms were not serious or frequent enough to be noted by Dr. Sekely in any of his reports.

Mr. Cowie points to Dr. Sekely's report, dated April 8, 1992, which states at page 2 that, " [a]ccording to Mr. Cowie he had not had any problems with neck pain or suboccipital headaches prior to this accident on February 14, 1991."

I find nothing inconsistent or mistaken about the arbitrator's finding. Dr. Sekely's report suggests that Mr. Cowie complained of suboccipital headaches during his first visit on February 15, 1991. The arbitrator also notes that on September 10, 1991, Mr. Cowie complained of "intermittent neck pain radiating to the occipital area." However, her comments on page 9 were dealing with the period between the first visit and what she believed was the final visit on September 10, 1991. She accurately states that during this seven-month period, there was no reference in the medical reports to headaches, insomnia or nightmares.

Failure to deal with all reports: Mr. Cowie submits that the arbitrator erred in failing to consider all the medical reports. In particular, he claims that she did not mention Dr. Kitching's report, dated May 11, 1992. Further, she failed to deal with the fact that Dr. Kitching's report, dated December 10, 1992, specifically supported his claim for weekly benefits.

The arbitration exhibits are listed in Schedule 1 to the decision, including Dr. Kitching's report of May 11, 1992. Arbitrators must consider all the evidence, but are not required to discuss every exhibit in the decision. I find nothing to suggest that the arbitrator here failed to do a thorough review. On the contrary, the decision reflects a careful analysis.

The value of Dr. Kitching's reports, including those dated May 11, 1992 and December 10, 1992, is limited by the fact that they address Mr. Cowie's ability to return to work, which is not the eligibility test for weekly benefits under section 13. More importantly, I do not read Dr. Kitching's reports as particularly supportive of Mr. Cowie's claim. In his December 10, 1992 report, he refers to Mr. Cowie's complaints as "nebulous' and states:

His stated symptoms prior to June 30, 1992 were subjective in content and his personal priorities directed his enthusiasm when to consider himself fit for work.

In my view, Dr. Kitching's opinion about Mr. Cowie's disability was more sceptical than supportive.

B. The Second Appeal

The arbitrator did not reject Mr. Cowie's claim for further medical and rehabilitation benefits under section 6 of the Schedule on the basis that he was no longer eligible for weekly benefits. She correctly stated that the tests under the two sections are different. An applicant may be able to perform his or her essential tasks, but still require medical care or rehabilitation.

Mr. Cowie raised the following grounds for his appeal:

Bias/Conflict of interest: Mr. Cowie argues that the arbitrator should not have dealt with the second hearing when her first decision was under appeal.

The fact that an arbitrator has dealt with a previous claim, whether favourably or unfavourably, does not mean that he or she is precluded from holding a second hearing. In a system that involves ongoing claims that may require overlapping evidence, it makes a good deal of sense to assign the same arbitrator unless there is some specific reason not to do so. The question is whether a pending appeal is a sufficient reason.

I accept that a pending appeal is factor to be considered, particularly where there is an allegation of bias. In this case, however, Mr. Cowie was not forced to proceed before the same arbitrator. He was told that if he had concerns about having the same arbitrator, his second hearing could be stayed pending the outcome of the appeal. If his appeal were successful for reasons of bias or some fundamental error, presumably a different arbitrator would have been assigned. Mr. Cowie asked to go on with the second hearing, although he repeated his objection to the arbitrator.

In the particular facts of this case, I am not persuaded that there was any reason for the arbitrator to step aside. Mr. Cowie alleged that there were problems with the first decision, but his concerns had not yet been addressed when the second hearing started. The arbitrator did not believe the appeal compromised her ability to deal fairly with the second hearing. With the advantage of hindsight, I agree with her assessment.

Intimidation: Mr. Cowie claims that he was intimidated by the arbitrator and had to continue the first day of the hearing without a lawyer.

The evidence simply does not support this allegation. This was Mr. Cowie's second arbitration hearing. He started the first hearing without a lawyer, but was granted an adjournment to retain a lawyer. Despite this experience, he came to the second hearing without a lawyer.

The arbitrator had concerns about the way Mr. Cowie was conducting his case. Specifically, she questioned his insistence on contesting the surveillance evidence when his former lawyer conceded in the first hearing that there was no issue of identification. The letter from the arbitrator to the parties, dated April 21, 1994, states as follows:

I was prepared to grant Mr. Cowie's request for an adjournment for the remainder of the day of hearing, to permit him to obtain legal counsel. However, I reminded Mr. Cowie of the provisions of the Insurance Act, R.S.O., c. I-8, which permit an arbitrator to order an applicant to pay up to $1000 to an insurer, if an arbitrator finds that an arbitration has been frivolous, vexatious or an abuse of process. I also informed Mr. Cowie that factors such as delay, and unreasonably prolonging the proceedings, were taken into consideration when determining an applicant's claim for expenses of the hearing, under section 282(11) of the Insurance Act.

Mr. Cowie considered his position and decided that he would proceed for the remainder of the day, without counsel.

I have no reason to doubt the accuracy of this paragraph, nor am I persuaded that it reflects any intimidation. In my opinion, the arbitrator was providing Mr Cowie with information that he needed to consider. The fact that Mr. Cowie had to make difficult choices about how to handle his case does not amount to intimidation.

Dr. McLachlan's reports: Mr. Cowie submits that the arbitrator should have accepted the Dr. McLachlan's opinions, particularly when Lloyds did not submit any reports of its own.

An arbitrator is not required to accept any medical opinion at face value. As with other evidence, its strength must be evaluated. The value of the medical opinion will depend on factors such as the expertise of the doctor, his or her opportunity to evaluate the applicant, and the accuracy of the information upon which the opinion is based.

In this case, the arbitrator concluded that Dr. McLachlan's views were of limited value because he had no involvement until April 1993, more than two years after the accident, and he did not receive a "full and frank disclosure" of Mr. Cowie's medical history (p.14). In my view, these are appropriate considerations. I find no reason to interfere with the arbitrator's evaluation of this evidence.

Mr. Cowie complains that both Dr. Kitching and Dr. McLachlan reported that they found him straightforward and sincere and, therefore, there was no basis for the arbitrator to find that he did not accurately describe his medical history to Dr. McLachlan. Again, the arbitrator must consider all the evidence. After hearing from Mr. Cowie and reading the various reports, she was "disturbed by the significant discrepancies between the complaints and symptoms noted by the doctors who treated Mr. Cowie within the first year and a half following his accident, and the complaints and symptoms Mr. Cowie reported to Dr. McLachlan more than two years after the accident." I am satisfied that there was evidence to support this finding.

Dr. Lapena's report: Mr. Cowie submits that the arbitrator failed to deal with the objective evidence of Dr. Lapena supporting his claims.

As with Dr. McLachlan's reports, the arbitrator had to assess the strength of Dr. Lapena's opinion. For the same reasons expressed above, I believe the arbitrator considered appropriate factors, and find no reason to interfere with her assessment.

Dr. McLachlan's invoices: As I understand it, Mr. Cowie contends that the arbitrator should have ordered Lloyds to pay Dr. McLachlan's invoices because he was forced to arrange his own assessment when Lloyds' failed to do so.

The arbitrator concluded that Mr. Cowie did not establish that such an extensive psychological assessment was reasonably required as a result of the accident. In my opinion, the evidence supports this conclusion. I do not interpret the reports of either Dr. Sekely or Dr. Kitching as recommending any significant evaluations.

Treatment and rehabilitation: Mr. Cowie claims that Lloyds failed to pay for treatment despite medical reports stating that further treatment was required. As a consequence, Lloyds should have been ordered to pay a special award under section 282(10) of the Insurance Act. Specifically, Mr. Cowie refers to Lloyds' failure to pay for computer training recommended by Dr. McLachlan and for weekly benefits based on Dr. Kitching's report, dated May 11, 1992.

As stated above, I do not find Dr. Kitching's reports particularly supportive of Mr. Cowie's position. A number of the medical reports, including Dr. Kitching's report of May 11, 1992, consider the wrong test. Instead of addressing Mr. Cowie's ability to return to work, they consider his ability to return to work. It is difficult to ask the insurer to pay benefits based on an opinion that does not address the proper test.

The arbitrator dealt with Mr. Cowie's request for computer training at page 14 of her decision. Mr. Cowie was retired at the time of the accident. In my opinion, the arbitrator reasonably concluded that:

Mr. Cowie's desire for computer training appears to flow from his decision to leave retirement and return to the workforce, rather than a need to overcome or compensate for injuries or limitations suffered as a result of the motor vehicle accident. I find that Mr. Cowie has failed to establish the necessary connection between the injuries he suffered and the rehabilitation sought.

Finally, a special award under section 282(10) is based on a percentage of the amount found to be owing. If there is no amount owing, no special award can be ordered. That is the situation here.

Allegations: Mr. Cowie submits that the arbitrator erred in admitting into evidence Lloyds' allegation that he continued to get new medical opinions and treatment, not based on real need, but to reconstruct his medical history to strengthen his claim for accident benefits.

Mr. Cowie is confusing submissions and evidence. At page 7 of her decision, the arbitrator simply recorded Lloyds' position about additional assessments. She then went on to evaluate the evidence in light of the submissions of the parties, including this one.

Surveillance: Mr. Cowie maintains his position that it was never proven he was the person observed by the private investigators. He says that Lloyds' lawyer told him that he would call one of the investigators as a witness, but failed to do so.

It is not clear from the decision that the arbitrator relied on the surveillance evidence in reaching her decision. However, based on her letter to the parties dated April 21, 1994, I find that she was not impressed with Mr. Cowie's testimony that the surveillance was of someone else. I am not inclined to second-guess this assessment when she had the opportunity to view the photographs and videotapes in Mr. Cowie's presence, and to hear his testimony. Finally, I am not persuaded that Lloyds was under any obligation to call the investigator as a witness.

Medical and Rehabilitation Advisory Panel: Mr. Cowie submits that the arbitrator erred in refusing to recommend a referral to the Medical and Rehabilitation Advisory Panel under section 282(5) of the Insurance Act.

I find no error in the arbitrator's decision not to recommend a referral. In my view, her concerns about the value of involving another doctor at such a late date were quite justified, particularly considering the subjective nature of Mr. Cowie's complaints.

Improper letter: Mr. Cowie contends that the lawyer for Lloyds improperly sent the arbitrator a letter, dated January 10, 1995, that was inaccurate and an attempt to influence the outcome.

The contentious letter is from Lloyds' lawyer to the Registrar, not the arbitrator, asking for assistance on how to deal with a third application for arbitration filed by Mr. Cowie. This letter led to an agreement that rather than hold another hearing, Mr. Cowie's further claim for chiropractic expenses would be included in the pending appeal decision.

The letter is not listed as one of the documents included in the second hearing. It is not clear, therefore, that the arbitrator considered it. Even if she did, however, I am not persuaded that it would have prejudiced Mr. Cowie's case.

Expenses: Mr. Cowie submits that the arbitrator erred in refusing to award him his arbitration expenses when she ordered them in the first hearing in the same circumstances. Further, he claims that she failed to apply the principles set out in McCormick and Economical Mutual Insurance Company (October 2, 1991, OIC A-000139).

As I read Mr. Cowie's submissions, he is questioning how the arbitrator could have refused to grant him his expenses when she found that there was not a sufficient basis for ordering him to pay an assessment under section 282(11.2) of the Insurance Act. The principles set out in McCormick for granting expenses involve similar language to that found in section 282(11.2). In my opinion, however, the tests are not identical. There is room for an arbitrator to conclude that the applicant should be denied his or her expenses, but has not acted in a manner that warrants an assessment under section 282(11.2). The arbitrator concluded that this was such a case and in the particular circumstances here, I am not prepared to interfere with her exercise of discretion.

IV. APPEAL EXPENSES

Although I do not question the sincerity of Mr. Cowie's position, I found little merit in his appeals. Appeal expenses do not strictly follow the outcome, but I am not persuaded that expenses should be ordered here.