Neutral Citation: 1996 ONICDRG 138

OIC A-013485

ONTARIO INSURANCE COMMISSION

BETWEEN:

STAMATIOS TOGIAS

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Stamatios Togias, was injured in a motor vehicle accident on September 17, 1991. He applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under Ontario Regulation 672.¹ Co-operators terminated weekly income benefits on September 24, 1994. The parties were unable to resolve their disputes through mediation and Mr. Togias 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. Togias entitled to weekly income benefits for any period beyond September 24, 1994?

2. Is Co-operators entitled to a repayment?

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

Result:

1. Mr. Togias is not entitled to weekly income benefits for any period beyond September 24, 1994.

2. Co-operators is entitled to a repayment of $4,182.41, due to Mr. Togias' receipt of Canada Pension Plan benefits. Co-operators is not entitled to any repayment arising out of Mr. Togias' calculation of his weekly income.

3. Mr. Togias is entitled to 50% of his expenses in this arbitration. Mr. Togias is not entitled to any expenses arising out of the preparation for and attendance on March 11, 1996.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on June 20, 24, 25, 26, 27 and July 2, before me, Deena Baltman, Arbitrator. I received further submissions by teleconference on August 6, 1996.

Present at the Hearing:

Applicant:

Stamatios Togias

Mr. Togias's

Neil Sacks

Representative:

Barrister and Solicitor

Co-operators's

Philippa G. Samworth

Representative:

Barrister and Solicitor

Court Reporter:

Michelle Pahl

Witnesses:

The witnesses are listed in Appendix "A."\

Exhibits:

The exhibits are listed in Appendix "B."

INTRODUCTION:

At the time of his accident on September 17, 1991, Mr. Togias was 43 years old. He was living with his wife and two daughters in Toronto, and working full-time as a waiter at La Castile Steak House.

Mr. Togias claims that he suffered a variety of serious and disabling injuries as a result of this accident, including neck and back pain, dizziness, impaired sexual function, reduced memory and concentration, and mood swings. Despite extensive investigation and treatment, he denies any improvement since the accident and has not returned to any gainful employment.

Co-operators paid Mr. Togias weekly income benefits for three years on the basis that he was disabled from his pre-accident employment as a waiter. After three years, the test becomes much stricter. Co-operators terminated benefits on September 24, 1994, on the basis that Mr. Togias did not meet this stricter test under section 12(5)(b), which provides:

12.--(1) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience. [emphasis added]

The issue, therefore, is whether Mr. Togias' injuries from the accident continuously prevent him from engaging in any occupation for which he is reasonably suited by education, training or experience. I find they do not, for the following reasons.

EVIDENCE:

1. Background

Mr. Togias, who is now 48 years old, lived in Greece until he was 22 years old. He completed six years of public school and served in the army for three years. In 1970, he emigrated to Canada with few English skills. He worked for four years as a waiter, during which time he achieved fluency in English. He attended Seneca College for one year to upgrade his schooling, obtaining "A" grades. Mr. Togias then attended York University full-time for three years and part-time for a further two years, studying political science and English, and eventually completed two Bachelor's degrees, earning marks between "B+" and "C+." He supported himself through this process by working as a waiter during the summer months.

Mr. Togias' wife, Sylvia, is from Poland. They met in an ESL (English as a second language) class in Toronto and were married in 1976. The couple lived in Poland from 1982 to 1986. While there, Mr. Togias became proficient in Polish and taught ESL to Polish natives. Upon his return to Canada, he explored the possibility of teaching ESL but concluded that he would not be competitive without a teaching certificate. He has since worked as a waiter at various "fine dining" establishments, including the Whaler's Wharf, Barclay's Steak House, Carman's Club and The Old Mill. At the time of the accident he was working as a full-time waiter at La Castile, which later went into receivership.²

Mr. and Mrs. Togias have two daughters, who are now 13 and 11 years old. The family speaks English at home. Mr. Togias was generally in good health before this accident. He played soccer on a regular basis and also participated in cycling and tennis.

2. The Accident and its Aftermath

The accident happened on September 17, 1991, when Mr. Togias was leaving work. After coming out of the driveway of the restaurant and turning left, his car was hit from behind at high speed by a racing vehicle. Mr. Togias testified that he heard a "crash" and the next thing he remembers is that someone was holding ice on the back of his head. He "can't say whether he blacked out or lost consciousness." The impact spun his car around so that he ended up facing in the opposite direction.³ Because of the extensive damage to his car he had to be extracted from it (by the fire department) but was able to walk away. The car was later declared a "write-off."

Following the accident, Mr. Togias was taken by a co-worker to St. Joseph's Health Centre. He was ambulatory upon arrival and described as being in minimal distress, but complaining of headache; he had apparently struck his head on the back of the car seat, and his chest on the steering wheel. Although Mr. Togias testified that he saw flashing lights and experienced blurry vision and buzzing in his ears immediately after the accident, none of this is recorded in the emergency records.⁴ The hospital staff described him as fully alert and oriented and assigned a Glasgow Coma Scale score of 14 out of 14. There is no record of any loss of consciousness. He was reviewed and discharged home the same day.

3. Medical Treatment

Mr. Togias saw his family physician, Dr. Hanet, on September 20, 1991, and complained of neck pain, dizziness, swelling and abrasions to his head, and low back pain and stiffness. He reported to Dr. Hanet that he initially had a "black-out"⁵ after the accident. Dr. Hanet expected him to be disabled for four to six weeks, and referred him to the Canadian Back Institute (C.B.I.) for rehabilitation. However, despite an "excellent" prognosis at C.B.I. in the initial assessment of October 29, 1991, Mr. Togias did not improve over the next few months. He reported that he was unable to exercise because of dizziness. The C.B.I. found that he was developing a chronic pain syndrome and recommended that he discontinue treatment at C.B.I. and start a pain management programme.

In order to investigate the complaints of dizziness, Dr. Hanet referred Mr. Togias to Dr. Yufe, a neurologist, who saw him on two occasions and found no signs of any neurological disorder. A CT scan and an MRI proved normal.⁶ Mr. Togias was also referred to Dr. Chapnick, an ear, nose and throat specialist, because of complaints of balance and hearing loss.⁷ Dr. Chapnick assessed him in October 1991, ran various tests, re-assessed him in May 1992, and concluded there were no abnormalities. He reported to Dr. Hanet that Mr. Togias' complaints "most likely relate to his whiplash injury and should disappear with time."

In May 1992, Mr. Togias was referred to the Pain Management Clinic by Gibson & Associates, the rehabilitative firm retained by the Insurer. He presented with dizziness, visual disturbances, erratic sleep patterns, nightmares, fear of driving, personality changes and cognitive deficits. The Clinic noted that Dr. Hanet "confirmed [that] neurological and E.N.T. investigations ...did not reveal organic reasons for Mr. Togias' dizziness."⁸ The Clinic recommended a therapy programme combining exercise, relaxation techniques, and coping strategies, plus a neuropsychological evaluation to determine the extent of any cognitive difficulties.

Mr. Togias also consulted with Dr. Mailis, a physiatrist, in October 1992. In addition to his earlier complaints, he was deeply concerned about sexual impotence. He advised Dr. Mailis that he had "never had any contact with his wife since the motor vehicle accident and this has been a major problem for him."⁹ Dr. Mailis reported that Mr. Togias "may be very depressed and he may have a functional impotence type of problem."¹⁰ She referred him to Dr. Radomski, a urologist, who found no physical abnormalities and concluded that Mr. Togias may have "psychogenic impotence."¹¹ Dr. Radomski treated him with medication, but this was not successful in alleviating Mr. Togias' sexual difficulties.

Because of persisting complaints of dizziness, Mr. Togias was seen in further otolaryngological consultation by Dr. Rutka in December of 1992. He found no obvious abnormalities, but arranged for further investigations, including a balance function test and an audiogram. Both proved normal. In his report of May 11, 1994,¹² Dr. Rutka stated:

...it is difficult for me to know whether he is complaining of true vertigo...

...Mr. Togias has been investigated in the extreme by many people and there has been no evidence of any worrisome peripheral or central vestibular disorder identified to date. This gentleman has had a normal MR scan, normal audiogram and ENG in the past.

...There is no medical or surgical treatment that can be provided for him. Although these symptoms are in a sense real to him I nevertheless have not identified evidence to suggest pathologic alteration of the vestibular system...

In June 1993, the Insurer referred Mr. Togias to Dr. Macartney-Filgate, a neuropsychologist, for assessment, as had been recommended by the Pain Management Clinic. Dr. Macartney-Filgate set out her findings in her report of August 6, 1993:¹³

I cannot rule out an initial very mild head injury, but his current symptom constellation, the cognitive findings, and the response pattern to measures of emotional and personality function is far more consistent with persisting difficulties attributable to an emotional or psychological basis.

Unfortunately, Mr. Togias now appears well entrenched in his disability, and efforts to provide him with assistance have thus far been unsuccessful. I think that if any change is to occur in his functioning, he will require intensive psychological intervention, and I think that a Day Hospital treatment might be appropriate for him, in addition to pharmacological evaluation and monitoring by a psychiatrist...

Overall, the degree of disability appears excessive given the nature of the accident and the injury...[emphasis added]

Dr. Macartney-Filgate concluded that Mr. Togias would not likely obtain employment until his psychological outlook improved; consequently, there was no point referring Mr. Togias for vocational training or job placement until he resolved some of his emotional difficulties.

In response to these recommendations, Mr. Togias was referred to the Day Treatment Assessment program at St. Joseph's Health Centre in September 1993. Although he was enrolled in the program until January 1994, his attendance was irregular and he sometimes failed to provide explanations for his absence.¹⁴ During group sessions, the staff noted that Mr. Togias refused to speak clearly and audibly, despite several requests.¹⁵ Throughout the program, Mr. Togias maintained that "his problems were physical" and vehemently denied any psychological complications. Although the program staff noted some improvement in his condition, Mr. Togias repeatedly denied that any progress had been made.¹⁶ He was angry that none of the treatment had helped him and felt that everyone was wasting time. As stated in the Discharge Summary:

...[he] concentrated on finding causes and a "cure"...[angry] that accident occured and no treatment had helped him and everyone was wasting time...though stating he would do whatever needed to get better, behaviour observed did not substantiate this statement...

...[he] had broad knowledge base re communication skills and demonstrates verbal and written expertise re complex issues...when confronted by staff and co-group members on strengths observed and progress made, [he] denied that this could be...

Dr. Desai, the psychiatrist presiding over the program, diagnosed a "somatoform pain disorder with differentiated diagnosis of fictitious [sic] disorder..."¹⁷ He found no evidence of any major depressive disorder. His consultation report of May 9, 1994, painted a dim prognosis:¹⁸

Mr. Togias persistently feels he is not being understood by anyone...There are prominent passive/aggressive traits...Mr. Togias remains an extremely difficult patient to treat...I am fairly sure that any attempt to rehabilitate Mr. Togias will fail because of very poor alliance...

...Mr. Togias does not seem to be motivated for ...therapeutic involvement...

In his later report of September 20, 1994, Dr. Desai reiterated this poor prognosis:

Based on the chronic nature of his symptoms and his oppositional attitude towards many interventions, his prognosis remains poor. I do not expect him to return to work in the near future...It may not be inappropriate to expect that he could remain permanently dysfunctional, requiring life-long psycho-social assistance. [emphasis added]¹⁹

Although Mr. Togias claimed he would do what was necessary to help himself, he was reluctant to set goals with respect to stress management or vocational pursuits.²⁰ For example, he expressed interest in exploring teaching as a profession,²¹ but did not follow through on the suggestion that he contact an ESL courses program. Similarly, when Mr. Winch, a rehabilitation consultant retained by the Insurer, suggested to Mr. Togias that he explore teaching English to Greek immigrants, Mr. Togias initially told the worker that he "would contact the various Boards of Education and get back to [him],"²² but failed to do so.

Later, Mr. Brown, another rehabilitation consultant, suggested a "graduated" work trial at a restaurant at the Danforth, whereby Mr. Togias would begin working two or three shifts per week and, if successful, eventually explore paid employment. When this idea was supported by Dr. Desai,²³ Mr. Togias initially "agreed to attempt such a placement."²⁴ However, when a meeting was later scheduled to set up a plan for the work trial, Mr. Togias arrived late, refused to take off his coat, and stated that the rehabilitation consultants "obviously did not understand the seriousness of his condition or [they] would not even be proposing that he return to work."²⁵ He claimed that he could not recall any advice from Dr. Desai suggesting that he should return to work. He later failed to attend two meetings of the "Job Seeking Skills Group."²⁶ Eventually, the rehabilitation consultants concluded that Mr. Togias was "employing tactics such as 'forgetting' and various physical symptoms to stall his return to work."²⁷

Finally, Mr. Brown arranged a three way meeting among himself, Dr. Hanet and Mr. Togias, "in order to confirm with Dr. Hanet that Mr. Togias has no medical symptoms at the present time which would prevent his actively seeking employment."²⁸ In that meeting, Dr. Hanet urged Mr. Togias to cooperate with a work trial. Dr. Hanet's notes record that he and Mr. Brown acknowledged that Mr. Togias was depressed "but [treatment] for depression involves getting out and doing something for self."²⁹ Mr. Togias testified that although he resented Mr. Brown, he trusted Dr. Hanet and got along well with him. Nonetheless, he did not follow Dr. Hanet's advice to cooperate in a job search and/or work trial.

Mr. Togias' refusal to cooperate in a work trial is particularly troubling given his admission in cross-examination that he did volunteer work at his children's school for approximately one year. Mr. Togias testified that he volunteered for approximately two hours each week at the "safe arrival" program, which required him to attend at the school and communicate messages between the school and the parents regarding students' absences or late arrivals. He retrieved messages from an answering machine or over the phone from parents and then wrote them down on a piece of paper. He later recorded the absences or late arrivals on individual student cards so that the school would have an ongoing record. Although Mr. Togias performed this work for short intervals and it involved relatively simple tasks, it suggests that, when motivated, he is capable of making efforts to ease his way back into the work force. Moreover, the volunteer work is inconsistent with Mr. Togias' claim that he cannot absorb or retain new information.

In order to encourage Mr. Togias to return to work, Gibson & Associates referred him to Vocational Pathways Inc. (Pathways) in the spring of 1994 "for vocational evaluation and alternate career planning."³⁰ Pathways reported that Mr. Togias showed poor attendance and compliance and performed well below competitive levels on various tests. On his final day in the programme Mr. Togias left after 15 minutes, declaring that everyone was trying to put him in an "insane asylum." Pathways eventually concluded that Mr. Togias was not competitively employable, even on a part-time basis. In its report of May 26, 1994, Pathways stated:

With the exception of the final day of programme...he continuously presented as lethargic, despondent and quite flat. Despite ongoing counselling efforts, it was not possible to instill in him any enduring interest in the evaluation process or in his vocational future; he remained pre-occupied with physical and personal concerns.

It became clear during this protracted evaluation programme that Mr. Togias is currently unable to function to competitive work standards, and in fact presents as significantly disabled from a psychological and emotional perspective.³¹

In September, 1994, Mr. Togias' counsel referred him for an assessment with Dr. Patmanidis, a psychiatrist. Dr. Patmanidis opined that Mr. Togias suffered from a chronic pain disorder and post traumatic personality change. He concluded that Mr. Togias was "totally disabled and is unable to engage in any occupation for which he was reasonably suited by education, training and experience."³²

Mr. Togias' counsel also referred him to Dr. Franks, a physiatrist who specializes in the neurological rehabilitation of brain damage patients. Dr. Franks assessed Mr. Togias in January, 1995. Mr. Togias repeated a number of his earlier complaints to Dr. Franks, but stated that "the difficulties with intercourse and dizziness are the ones he would like to have corrected the most."³³ He also reported a number of "spells" and "falls" since the accident,³⁴ none of which were witnessed.³⁵

Dr. Franks suggested³⁶ that Mr. Togias may have sustained injury to his neuro-vascular system as a result of the "violent whipping action" in the accident. He found that Mr. Togias' symptoms and his presentation were consistent with a genuine, organic pathology arising out of the accident, and that his emotional problems arose because of his preoccupation with "somatic symptomatology."

Dr. Franks speculated that Mr. Togias's accounts of falling were compatible with "vertebral basilar ischemia," which I will discuss below. The CT and MRI studies were normal because, unlike a SPECT study,³⁷ they "only show evidence of destruction of brain tissue and give no information as to brain function." Dr. Franks spent "some time" explaining the physiological basis of vertebral basilar ischemia to Mr. Togias and recommended that he consult with Dr. David Spence, a neurologist with a particular interest in that condition.

In response to Dr. Franks' opinion, the Insurer referred Mr. Togias to Dr. Henry Berry for an assessment. In addition to being a specialist in neurology and internal medicine, Dr. Berry also holds a diploma in psychiatry and is a consultant at the Clarke Institute of Psychiatry. Dr. Berry found that Mr. Togias' ongoing symptoms were primarily functional (non organic). Specifically, he stated that Mr. Togias' complaints of dizziness, sexual impotence, headaches, depression, and cognitive difficulties rested upon subjective evidence only. Therefore, in order to assess the reliability of those complaints, Dr. Berry examined numerous records and reports along with extensive surveillance compiled by the Insurer, the details of which are set out below. He concluded that Mr. Togias' claims were not credible.³⁸ As stated in his report of February 20, 1996:

The videotapes reveal a capacity for normal, vigorous, pleasurable and social behaviour and also reveal that his stated history of symptoms and disability is not an entirely credible one...For diagnostic purposes, this can be termed a type of factitious disorder and simulation arising out of opportunities for secondary gain and for the advantages of the illness role.[emphasis added]

Dr. Berry specifically rejected the diagnoses of vertebral basilar ischemia, stating:³⁹

Dr. Franks is well known for his views on mild head injury and brain damage which occurs by mere shaking of the adult head without blows or concussion and for ascribing a variety of severe emotional and behavioural changes to "mild brain damage". I would hope that Dr. Spence, on the basis of his history of dizziness, falling and apparent blacking out will not suggest a diagnosis of injury to the vertebral artery at the time of the neck strain and that the psychological and situational determinants of his illness behaviour will be recognized.[emphasis added]

Dr. Berry's hopes were not to be realized. In March 1996, after a referral by Mr. Togias' counsel, Dr. Spence assessed Mr. Togias and concluded that he was indeed suffering from vertebral basilar ischemia. Dr. Spence has a certification in both neurology and internal medicine. He also has a special interest in strokes, and is Director of the Stroke Prevention and Atheroscleroses Research Centre in London, Ontario.

Dr. Spence's report of March 5, 1996 sets out Mr. Togias' account of the accident and his subsequent symptoms. Mr. Togias told Dr. Spence that he had no memory of events between the point of impact and a realization later that someone was holding ice wrapped in a towel against his head. Dr. Spence inferred from this that Mr. Togias was unconscious "for a period of minutes."⁴⁰ Mr. Togias also reported to Dr. Spence that he experienced flashing lights, blurred vision, and dizziness beginning the day after the accident. He described poor short term memory⁴¹ and sudden falls ("drop attacks"), where his legs would give out with no warning (as distinguished from other falls he had, which were more of a "fainting" nature). Neurologic examination revealed a "definitely abnormal nasal tickle" (diminished sensation in the right nostril) and "definite dysdiadochokinesis in the left arm" (reduction of rapid alternating hand patting movements).

On the basis of Mr. Togias' history and the findings on examination, Dr. Spence concluded that Mr. Togias had suffered a type of stroke at the time of the accident, known as "traumatic vertebral basilar ischemia" (VBI). In cases of VBI, the vertebral arteries are pinched or stretched to the point where their inner lining is damaged. This trauma can lead to the formation of clots or the buildup of scar tissue in the arteries, which in turn blocks or reduces the flow of blood to the brain. Because the vertebral arteries supply the entire brainstem and the occipital lobe of the brain, this can lead to a wide variety of symptoms, including loss of consciousness, dizziness, headaches, double vision, and memory loss.

According to Dr. Spence, many neurologists and neurosurgeons are aware that violent rotation of the neck, such as occurs with improper chiropractic manipulation, can cause stroke by pinching the vertebral arteries. However, "most are not aware that serious vertebral artery injury can occur with minor head turning for example with swimming, yoga, and seemingly minor flexion-extension injuries of the neck in motor vehicle accidents."⁴² [emphasis added]The likelihood of serious injury is even greater where, as here, there is a violent collision; Dr. Spence emphasized that the mechanism of this accident, which contained both a strong rear impact and a rotational force, could easily explain the occurrence of VBI. Dr. Spence finds support for his belief in a textbook entitled "Cerebrovascular Disorders,"⁴³ which states:

Trauma to the vertebral arteries inflicted by hyperextension or sudden rotary movements of the neck can produce disastrous brainstem disease. The most common causes of such trauma seem to be hyperextension or "whiplash" injuries of the neck, overenthusiastic chiropractic manipulations in which the head is forcibly turned and snapped, and freak accidents...[emphasis added]

Dr. Spence testified that he has seen over 50 patients who sustained strokes due to car accidents. Although most complain of symptoms at the time, others, like Mr. Togias, may have a delayed onset of symptoms, along with transient ischemic attacks (small warning strokes). Dr. Spence felt that Mr. Togias' reports since the accident of drop attacks, dizziness and memory loss was indicative of ongoing transient ischemic attacks. In his experience, these patients are at risk for further strokes. He feels that Mr. Togias is likely to continue having transient attacks with repeated episodes of falling, double vision, memory loss, etc. Because of that risk, Dr. Spence opines that Mr. Togias is not employable in either of his pre-accident vocations as a waiter or a teacher. Moreover, he doubts that Mr. Togias will be employable in the future in any position that is not sedentary or requires memory recall.

Dr. Spence based his poor prognosis partly on the results of the neuropsychological testing conducted by Dr. James Sweeney, who was retained by Mr. Togias' counsel. Dr. Sweeney assessed Mr. Togias in March 1996, and concluded that he sustained a "moderate to severe head injury" in the accident, leaving him severely impaired. Dr. Sweeney testified that he found two strong indicators of brain dysfunction: (1) an inability to respond to abrupt changes in the environment, and (2) deficiencies in learning new information. As a result, Dr. Sweeney predicted that Mr. Togias would not be able to function adequately in any activities or employment that involved rapidly changing circumstances or spontaneous verbal communication, particularly if the environment is emotional.⁴⁴ Dr. Sweeney concluded:

It is very clear from a neuropsychologic perspective that this man is and will continue to be unemployable competitively in his previous job as a waiter and in employment positions commensurate with his education, training and experience.⁴⁵

That opinion is shared by Dr. Hanet, Mr. Togias' family physician, who has treated Mr. Togias for over twenty years and seen him regularly since this accident. In his reports of August 10, 1995⁴⁶ and April 4, 1996,⁴⁷ he states that before the accident he saw Mr. Togias "infrequently," whereas since the accident, Mr. Togias has complained regularly of neck and back pain, headaches, dizziness, sexual dysfunction, and depression. Dr. Hanet believes that "all his symptoms are related to the accident" and that "he is totally disabled...his prognosis is poor and I wonder if he will ever be able to return to work."

The Applicant also relies on the very recent report⁴⁸ of Aaron Freeman, a rehabilitation consultant retained by his counsel. Mr. Freeman met with Mr. Togias and reviewed the medical records and the surveillance. He concluded that Mr. Togias

...is certainly unemployable as a waiter on a full-time or part-time basis.

Moreover, on the balance of probabilities, it is my view that he is competitively and permanently unemployable in any other capacity. For various reasons, I do not believe that Mr. Togias could ever be relied upon to attend a job on a regular, predictable and ongoing basis.

4. Surveillance and Credibility

The surveillance in this case is both detailed and impressive. It spans the period of June 1994 to December 1995 (approximately one and a half years) and includes observations made on twelve days. It captures Mr. Togias in a wide range of physical, mental and social activities that strongly contradict virtually all of his complaints since this accident. The following is merely a few of the highlights; a more detailed summary is contained in Appendix "C."

On March 23, 1995, Mr. Togias was observed as he purchased groceries and drove to and from the community centre. Before getting into his car at one point, he bent fully at the waist and extended his right leg back while he rearranged a floor mat for several seconds. He moved easily and at a normal pace. He then attended a medical examination with Dr. Berry (arranged by the Insurer) at St. Michael's Hospital. In contrast to his activity level earlier in the day, he moved slowly and cautiously while he attended and exited the hospital grounds.⁴⁹ Dr. Berry observed that Mr. Togias moved "slowly with marked limitation of neck movement, and a reduction of low back movement...[an] unusually quiet, sad patient without spontaneous speech."⁵⁰

Within a few hours of his meeting with Dr. Berry, Mr. Togias was observed at the community centre, watching his two children swim. He turned his head repeatedly and easily while viewing the surroundings, and chatted with other spectators. He bent to remove items from a knapsack, met and walked with his children, and then drove home. Aside from the laboured pace seen at St. Michael's hospital and the restrictions demonstrated to Dr. Berry, he showed no signs of physical impediments.

On July 15, 1995, Mr. Togias attended a number of grocery stores in his neighbourhood. He carried and loaded heavy groceries without difficulty. He drove his children to the recreation centre, where he swam 26 laps at a good pace. He then played a ball game known as "monkey in the middle" with his daughters, in the shallow end. During the game, he jumped up and down and lunged to the side in order to catch the ball. He picked his younger daughter up out of the water and jostled playfully with his older daughter.

After this vigorous play, he exited the pool, bent fully forward to pick up his gym bag, and entered the change room. He then left the recreation centre and drove home, showing no signs of fatigue or distress. He next walked to the corner store where he purchased cigarettes. He then drove on city streets and on Highways #400 and 401, and was found at The School restaurant in Markham. He parked some distance from the front entrance, along with what appeared to be employees' vehicles.

Over the next several hours, Mr. Togias was observed working as a waiter in the dining area of the restaurant reserved for special occasions. He wore a waiter's uniform and, along with three other waiters, served 120 guests at a wedding reception. Mr. Togias repeatedly served plates of food to various tables and carried quantities of soiled dishes, glasses and tableware into the kitchen. He walked at a rapid pace, and gathered, stacked and carried a considerable number of dishes proficiently. At one point he was seen bending fully forward at the waist to retrieve eight to ten ashtrays which he stacked against his body. He appeared familiar with his surroundings and was not required to search for any of the items he required. He also appeared to be familiar with his co-workers and conversed with them amicably.

Mr. Togias was at the restaurant from approximately 3:30 p.m. until 1:45 the following morning. When leaving, he carried his uniform along with some food in a container. He then changed his clothes while standing beside his car, reaching and extending his arms easily. He bent forward and changed his footwear without any difficulty, and then drove home.

Mr. Togias testified that this was the first and only time he worked at The School. He said he did so to "help" the manager, whom he knew, and was not paid for his services. He claimed that he dropped and broke several dishes because he was so fatigued, and was forced to rest for "two to three hours" during the evening. Mr. Togias testified that because of his poor performance, it became clear to him and to the manager that he was not capable of working as a waiter, even part-time.

Mr. Togias acknowledged that he has "visited" The School on several occasions since the accident. He claimed he went only to socialize with the staff, and that he usually visited "during rest hours." Each "visit" lasted two to three hours on average, or, at the most, four to five hours. While there he might on occasion "help" by passing "an ashtray, or a doily," or placing "a wedge of lemon or a piece of parsley" on a plate. He claimed this was the extent of any assistance that he provided to the restaurant, and that he was never paid for these services. Mr. Togias admitted in cross-examination that on all these occasions he wore a waiter's uniform, but claimed he did so only because the manager advised him that if he was going to be amongst the staff then he should dress like them. Neither the manager nor anyone else associated with The School testified at the hearing.⁵¹

I find Mr. Togias' explanation of his activities at The School highly suspect. If Mr. Togias' services during his "visits" were as limited as he claims, it is unlikely that the manager would have required him to wear a waiter's uniform. Mr. Togias also appeared familiar with both the staff and the physical layout of the kitchen, suggesting that he worked there previously. Moreover, Mr. Togias called no evidence to corroborate his testimony about The School. Finally, I note that Mr. Togias did not advise any of his caregivers of his visits to The School or his work trial on July 15, 1995 until after the Insurer disclosed that it discovered him at The School.

I do not accept Mr. Togias' explanation for his visits to The School. The only reasonable inference from all the evidence is that Mr. Togias has performed at least some work at The School on more than one occasion since this accident.

On Sunday, August 6, 1995, Mr. Togias made two trips to a Home Depot outlet. During his second visit, he attended an hour long seminar entitled "How to Hang Wallpaper." He wore a "painter's hat" and participated actively in the seminar by asking questions, taking notes and conversing with another attendee. After the seminar, Mr. Togias, accompanied by the instructor, chose several tools from the wallpaper section of the store, including a "dipping tray" and a sponge. He carried the items to the cashier and then out to his car, where he unloaded them. He then picked his children up from the recreation centre and returned home. Mr. Togias appeared fit and content.

Mr. Togias testified that later that day his wife and daughter hung wallpaper in his daughter's bedroom. He claimed that he merely "helped,"⁵² and denied that he had attended the lecture in order to learn how to hang wallpaper. He explained that he had dropped his wife and daughter elsewhere and, while waiting for them, attended the lecture just to pass the time.

I find it highly improbable that Mr. Togias did not do the wallpapering (or most of it) himself. Why else did he attended the wallpapering lecture at the Home Depot, and afterwards buy wallpapering tools? The lecture was on a Sunday, when his wife was off work. If the plan was, as he claims, for her to do the work, why didn't Mrs. Togias attend the lecture? The logical explanation is that Mr. Togias hung most (if not all) of the wallpaper himself. It is conceivable (but unlikely) that although Mrs. Togias actually hung the paper, Mr. Togias attended the lecture in order to learn the procedure so that he could pass it on to her. This at least suggests that Mr. Togias was able to absorb, retain and later communicate new information, a cognitive skill that he claims he lost as a result of this accident.

I conclude that Mr. Togias either hung most (if not all) of the wallpaper himself, or else he taught his wife how to hang the wallpaper and assisted her in the task.

In my view, the surveillance records raise very serious questions about Mr. Togias' credibility. Mr. Togias claims that he is both physically disabled and profoundly depressed. Yet on twelve out of thirteen days⁵³ on which he was observed, Mr. Togias engaged in a wide variety of physical, social and mental activities. He carried out vigorous physical activities, including swimming, waitering, lawn care and renovation work. Although he occasionally walked slowly, throughout the surveillance he moved freely and without any physical restrictions. He appears fit, relaxed, and agile. There is no evidence of dizziness or hesitation in movement, except when he attended an appointment with Dr. Berry at St. Michael's Hospital, where he knew he would likely be observed. On that occasion he walked at a deliberate and laboured pace, in contrast to his normal and unrestricted pace during the hours before and after the appointment.

The surveillance also contradicts Mr. Togias' evidence that he is depressed, anti-social and afraid to drive. He often exhibited a pleasant demeanor and interacted normally with others. On several occasions he engaged happily, even playfully with his children. Mr. Togias testified that since the accident he is "always" frightened when driving, and is often concerned that he "might black out." Yet the tapes reveal him driving on a number of occasions, to a variety of destinations, often accompanied by his children. I find it unlikely that any man with Mr. Togias' professed complaints of a driving phobia, drop attacks, and double vision would consistently drive his children about. Whatever his shortcomings, it is clear from both Mr. Togias' evidence and his presentation on the videotapes that he is a loving and attentive father. Why then would he knowingly and repeatedly risk the safety of his family?

Mr. Togias explained that he continued to drive because until Dr. Spence testified at the hearing, it was not apparent to him that it was unsafe to do so; he stated that if he felt dizzy while driving, he would pull over to the side of the street and stop. Yet he told Dr. Spence that he had unpredictable "dropfalls," where he would collapse without warning. If that is true, he would have no time to pull over safely. Mr. Togias also explained that it was necessary for him to drive because his wife did not, and therefore he was the only means of family transportation. Yet Mr. Togias resides directly on a bus route and lives only two blocks away from the Bloor subway line. Moreover, several of his car trips were for recreational purposes, on busy highways, and of considerable distance,⁵⁴ thus contradicting his evidence that he drove only when necessary and for short distances.

Finally, the surveillance is inconsistent with Mr. Togias' claim that the accident impaired his cognitive abilities and, in particular, his short term memory. He participated actively in a lecture at the Home Depot and later, as I have found, used that information when wallpapering his daughter's bedroom. I have also found that he worked as a waiter at The School on a number of occasions, which suggests that he is able to receive and respond to requests for service. In his volunteer work at his daughter's school, he received and recorded messages from parents. In the videos, he appears calm and organized, and carries out a wide range of life activities without any evidence of confusion or hesitation.

Nor did Mr. Togias' testimony at the hearing suggest any cognitive difficulties. He had good recall of the sequence of his treatment and the various assessments since the accident. I find that on the occasions where he claimed forgetfulness, it was usually because he was confronted with discrepancies between his evidence in chief and earlier records or reports. Although his cross-examination was interrupted at several points to accommodate the schedules of various witnesses, Mr. Togias followed the questions easily and answered them coherently, albeit at times disingenously. Throughout a vigorous and thorough questioning by Insurer's counsel, he showed considerable shrewdness and calculation.

My assessment of Mr. Togias is supported by his own words. During the hearing, counsel for the Insurer introduced in evidence some handwritten notes⁵⁵ that Mr. Togias made regarding the testimony of Doctors Berry and Macartney-Filgate, who were called by the Insurer. Mr. Togias made some of the notes while the experts were testifying; others he made during a recess or later the same day. In response to Dr. Berry's evidence that Mr. Togias was capable of working as a waiter, Mr. Togias wrote:

• a waiter has to possess:

• excellent social /proffessional [sic] skills

• be a good psychologist to treat each client according to their mood/need/etc...

• be sensitive to each client's needs (i.e. tell a joke when the situation permits, or be serious when the situation demands)

• the entire career of a waiter is fraught with the task to please - just like an actor...

In response to Dr. Macartney-Filgate's evidence that Mr. Togias likely has, at most, a factitious disorder, he wrote:

• factitious disorder - patient in need of emotionally being ill - what nonsense

The insinuations Dr. M-Filgate [sic] makes about marital problems existing prior to the accident are smacking of pernicious bias.

In response to earlier questions of him by Insurer's counsel, Mr. Togias noted:

I can't teach competitively since there are certified teachers who are unemployed

I have always been modest, never bragged about my achievements; always been altruistic; never put my personal interest above that of the general (society's)

I had always strived to have a happy family. My family is very unhappy now due to my condition. Financial hardship of last 2 yrs is the main cause.

Other general comments by Mr. Togias include:

Not everything I talked about at St Joseph's has been recorded. What has been written down is the subjective interpretation of the nurses regarding my physical and mental health.

Dr. Barry's [sic] report is based on the video surveillance he was given prior to my visiting him and on the "recommendations" he was given by the insurance [sic]

If medication were the cause of drowziness [sic], I should feel drowzy [sic] all day long, which is not the case with me.

Although I may not agree with the substance of Mr. Togias' notes, I find that they are coherent, literate, and responsive to the evidence. Moreover, they demonstrate that he is capable of absorbing, analyzing, and effectively replying to information in a highly charged, stressful environment where he has a great deal at stake. Mr. Togias' counsel pointed out that Mr. Togias made some of the notes later that day when he was outside of the hearing room. On that basis, counsel argued that Mr. Togias reacts slowly and with difficulty to new information, and requires more time than the average person to process information. I disagree, for two reasons: first, I have already found that Mr. Togias testified in a thoughtful and intelligent manner during cross-examination, where he was required to answer questions "on the spot," as it were. Second, even if Mr. Togias made some of his notes outside of the hearing room, that shows that he is capable of retaining new information, and thus contradicts his repeated assertions that he has difficulties with short term memory.

Although my decision does not turn in any substantive way on Mr. Togias' notes, and I would have arrived at the same conclusion without them, the notes add further support to my view that he does not suffer from any significant cognitive deficits.

5. Sylvia Togias

Sylvia Togias is married to the Applicant. She is 44 years old and works as a dental assistant. She testified that Mr. Togias has deteriorated dramatically since the accident, both physically and mentally. Before the accident, he was a happy and productive husband, father and worker. Now he is irritable, forgetful, and unreliable. He has dizzy spells, double vision and chokes on his food. They no longer enjoy sexual relations⁵⁶ and have a very limited social life.

Mrs. Togias testified that since the accident Mr. Togias has fallen off the sofa, from a seated position, without warning. This happened "many times, and he still does it." He is clumsy and often drops dishes ("breaks a glass at least once a week") or cuts himself. When moving about the kitchen, he supports himself by holding onto the table or countertop. Mrs. Togias claimed that her husband does little around the house and is impatient and inattentive with their children. He often sleeps downstairs because he has difficulty climbing stairs. She knew virtually nothing about her husband's "visits" to The School, and accepted at face value his advice that he was not working. She acknowledged, however, that he drives on a regular basis. Although I found Mrs. Togias to be a sympathetic witness, her evidence was troubling in many respects. First, I found it peculiar that she permitted her husband to regularly drive their children about the city if she observed that he was falling off the couch, having dizzy spells and experiencing double vision. Even if he was the only driver in the family, she could have made other arrangements if she was genuinely concerned about his vision and coordination. Second, the evidence contradicts her claim that Mr. Togias is largely sedentary and has little interest in his children. The videotapes show him happily engaged with the children on a regular basis. He negotiates stairs without difficulty and is often physically quite vigorous. I have also found that Mr. Togias worked as a waiter on a number of occasions since the accident.

I conclude that Mrs. Togias has an unrealistic view of her husband's limitations and is not aware of many of his outside activities. For these reasons, I give her evidence little weight.

SUBMISSIONS AND FINDINGS:

In order to recover benefits, Mr. Togias must establish that because of the injuries in this accident he is disabled from any job for which he is reasonably suited by education, training or experience. Mr. Togias argues that his physical and cognitive injuries alone are disabling. In the alternative, Mr. Togias argues that even if he is not physically or neurologically disabled, he is prevented from working by severe depression.

In support of his first position, Mr. Togias relies on the evidence of Dr. Spence and Dr. Sweeney. Dr. Spence concluded that Mr. Togias was suffering from vertebral basilar ischemia, and would likely never return to gainful employment. I accept that Dr. Spence is a well-known and internationally respected researcher in cerebral vascular disease. I also accept that in certain cases, whiplash injuries from car accidents may give rise to VBI. I am not, however, persuaded that Mr. Togias is genuinely suffering from VBI; alternatively, even if VBI is an accurate diagnosis in this case, I do not believe it to be disabling.

In arriving at a diagnosis of VBI, Dr. Spence relied heavily on Mr. Togias' report that he lost consciousness and saw flashing lights at the accident scene, and soon experienced blurry vision, ringing in his ears, and sudden drop falls. Yet as I have already noted,⁵⁷ Mr. Togias failed to mention many of those symptoms on several occasions before meeting with Dr. Spence. In the first four months following this accident, Mr. Togias complained primarily of neck and back pain. When he later complained of dizziness, all the neurological and otolaryngolical examinations proved normal. Moreover, Mr. Togias told Dr. Spence that he had several "drop falls," where he collapsed without warning, which Dr. Spence testified are indicative of VBI. Yet the records suggest that most of his falls were preceded by dizziness or emotional upset. To the extent that Dr. Spence's diagnosis of VBI rests on what I have found to be unreliable reporting by Mr. Togias, I give little weight to Dr. Spence's opinion.

I note as well that Dr. Spence has received only a summary of the surveillance. He has not seen the videos nor read the full narrative of the surveillance prepared by the investigator. Dr. Spence expressly rejected the possibility that Mr. Togias was fabricating any of his symptoms, stating that Mr. Togias was not "neurologically sophisticated enough" to manufacture VBI. He explained that because Mr. Togias suffers from transient ischemia, he can function normally on an intermittent basis. According to Dr. Spence, therefore, the videos simply show Mr. Togias during his good intervals. As an example, he suggests that Mr. Togias was simply "lucky" the day he did a shift of waitering work: "He and management got away with it that day because he didn't happen to have an event while he was working that shift."

I find it difficult to reconcile the videotapes with Dr. Spence's explanation that Mr. Togias' condition is transitory and therefore only intermittently disabling. If Dr. Spence is correct, why does virtually all the surveillance evidence reveal Mr. Togias in an active, fit, and mentally alert state? The tapes show Mr. Togias functioning capably on 12 out of 13 days,⁵⁸ a surprisingly high ratio if the Insurer was merely "lucky." Moreover, I have found that Mr. Togias participated in a range of physical and cognitive activities. Finally, many of the surveillance records span periods of eight or more hours, which suggests that Mr. Togias is not only physically and mentally fit but able to carry on for prolonged periods.⁵⁹

Rather than being transient, I find Mr. Togias' condition to be selective, in that he chooses to engage in activities that suit his preferred lifestyle but avoids activities which may reduce his financial recovery in this arbitration. For example, Mr. Togias is quite able to swim, shop, attend lectures, wait tables, and do renovation work, when it suits him. However, when the Insurer requested his cooperation in a work trial that had been approved by his physicians, he refused to even attempt employment. Mr. Togias claims he knew any work trial was doomed to fail because he performed poorly as a waiter at The School. Yet Mr. Togias' evidence that he dropped dishes and had to nap during his waitering shift at The School was completely uncorroborated. Certainly, both his doctors⁶⁰ and his rehabilitation workers thought he could try waitering. If it was so obvious to Mr. Togias that he could not work as a waiter, why did he refuse to have himself observed in a work trial?

Nor do I agree with Dr. Spence that Mr. Togias is not sophisticated enough to manufacture his complaints. He is well educated and literate and, as I have found, testified in a shrewd and deliberate manner. The evidence suggests that Mr. Togias is prepared to adjust his presentation for litigious reasons, as he was observed walking in a laboured way when attending Dr. Berry's office for an I.M.E., in contrast to his normal unrestricted pace. Although he has no formal medical training, he was well versed about VBI long before seeing Dr. Spence. Dr. Franks had discussed the condition with him in detail during their meeting, and Mr. Togias later read his report. Mr. Togias was, therefore, familiar with the indicia of VBI before meeting with Dr. Spence and had time to prepare a compatible history.

Mr. Togias also relied upon the evidence of Dr. Sweeney, the neuropsychologist, who concluded that Mr. Togias sustained significant cognitive impairment as a result of this accident. Again, Dr. Sweeney has not seen the surveillance tapes, but simply reviewed a summary of the surveillance. He concluded that it did not seriously contradict Mr. Togias' claims. Dr. Sweeney explained that head injury victims are usually highly motivated to "fit back in" to domestic life and their community, as they do not wish to appear "disordered" to others. Therefore, he opines, they "try to put on a happy face," even though they are in pain.

I find it difficult to reconcile Dr. Sweeney's explanation of the surveillance with other evidence in this case. If Mr. Togias is indeed highly motivated to re-enter society, why has he refused to cooperate in a work trial at a restaurant? Although he professed interest in teaching ESL, at no time since the accident has he inquired into obtaining teaching qualifications in Ontario. Mr. Togias also failed to cooperate with numerous programs that were designed specifically to reintegrate him into society. The staff at the Day Treatment program found that he was poorly motivated and hostile. Although Vocational Pathways Inc. concluded he was not employable, they did so largely because of Mr. Togias' preoccupation with his injuries, and before much of the surveillance evidence was gathered. Pathways also found that Mr. Togias showed poor attendance and compliance with the program. I note that the staff at these latter two programs observed Mr. Togias on several occasions over a period of months, and therefore had a better opportunity to assess his motivation than did Dr. Sweeney, who met with Mr. Togias only once.

Dr. Sweeney testified that Mr. Togias showed the most difficulty with "rapidly changing circumstances and spontaneous verbal communication," especially in situations "that involve emotional issues."⁶¹ I find this observation inconsistent with Mr. Togias' testimony and the notes that he made during the hearing. Nor does it accord with my finding that Mr. Togias has worked as a waiter on several occasions since this accident. Dr. Macartney-Filgate, the neuropsychologist retained by the Insurer, also disagreed that Mr. Togias was cognitively impaired; she concluded that Mr. Togias' performance during testing was "much more severely and generally impaired than would be expected, even if he did have a vertebrobasilar problem."⁶²She also found the test results incompatible with both the original injury history and the videos, which she reviewed in their entirety. Seen against all these contradictions, Dr. Sweeney's conclusion that Mr. Togias is unemployable simply does not stand up.

Mr. Togias also relied on Aaron Freeman, the rehabilitation consultant he retained, who concluded that he was "unemployable...in any... capacity."⁶³ Mr. Freeman, who has no medical credentials and saw Mr. Togias only once, dismissed the surveillance videos because the activities depicted were "of relatively short duration and in no way whatsoever did they indicate or prove that Mr. Togias was capable of being employed...These activities only suggested that he could do what he said he could do. [emphasis added]"⁶⁴ Mr. Freeman also found that Mr. Togias was motivated to mitigate his situation, in part because "he even tried to return to work on his own accord."

Contrary to Mr. Freeman's assessment, the surveillance reveals Mr. Togias in a number of prolonged activities which he claimed he was incapable of performing or avoided (e.g., driving long distances, waitering for ten hours). Moreover, Mr. Togias did not admit to working as a waiter until he was confronted with the surveillance evidence, and only admitted to volunteer work (at his daughter's school) under cross-examination. I have also found, despite his denials, that he has worked as a waiter on other occasions since the accident. For all these reasons, I find Mr. Freeman's assessment to be unreliable.

I find that Mr. Togias is neither physically nor cognitively disabled by this accident. Nor do I accept Mr. Togias' alternative submission that he is debilitated by depression arising out of the accident. As proof that he is genuinely depressed, Mr. Togias relies on the report of his psychiatrist, Dr. Patmanidis, who concluded that he is "totally disabled" from any suitable work. Remarkably, Dr. Patmanidis did not change his opinion after viewing all of the surveillance.

I give little weight to Dr. Patmanidis' opinion, for several reasons. First, Dr. Patmanidis formed his views on the basis of Mr. Togias' subjective complaints, several of which are contradicted by other evidence. For example, Mr. Togias told Dr. Patmanidis that he has been "avoidant of driving because of his phobia,⁶⁵ even though the videos show him driving frequently and with ease. Mr. Togias also told Dr. Patmanidis that he is "intolerant to noises."⁶⁶ Yet he shops in busy, noisy neighbourhoods (The Danforth, Bloor West Village) and waits tables at a wedding banquet. Second, Dr. Patmanidis was not aware that Mr. Togias was working at The School (restaurant) or doing volunteer work at his daughter's school. Finally, although Dr. Patmanidis watched the videos, he did not read the investigator's narrative report, which not only describes Mr. Togias' activities but establishes that he engaged in them for prolonged periods. I question whether Dr. Patmanidis would still conclude that Mr. Togias was simply "trying to keep active" if he knew that Mr. Togias waited tables for ten hours after shopping, swimming and playing with his children.

Mr. Togias also points to Dr. Desai's reports as further evidence that he has a genuine psychiatric disorder arising from this accident. Dr. Desai diagnosed that Mr. Togias was suffering from a somatoform pain disorder, meaning that he honestly believes himself to be disabled despite the absence of any organic damage. However, I view Dr. Desai's diagnoses with several reservations. First, Dr. Desai made a differential diagnosis of factitious disorder, meaning that Mr. Togias may have been fabricating physical or psychological symptoms. Also, Dr. Desai found that Mr. Togias was hostile to the staff and refused to comply with rehabilitation efforts, suggesting that many of his difficulties may have been attributable to poor motivation rather than genuine disability. In addition, Dr. Desai recommended to Mr. Togias that he engage in a work trial, which is inconsistent with Mr. Togias' claim that he was obviously disabled. Finally, Dr. Desai diagnosed Mr. Togias before the surveillance was available, and therefore did not have some critical information before him.

CONCLUSION:

I do not accept that Mr. Togias is disabled from working by physical, cognitive or psychological problems, alone or in combination. On the contrary, much of the evidence suggests that he is capable of returning to his pre-accident employment as a waiter and/or an ESL teacher. Although Co-operators paid him benefits for three years on the basis that he was disabled from his pre-accident employment, it had not yet gathered significant surveillance or medical opinion to contradict his claims. Co-operators was therefore not in a position to assert that Mr. Togias could work as a waiter until over three years following the accident.

Even if I am incorrect, and Mr. Togias has a legitimate physical and/or psychiatric disorder, I do not believe such disorder to be disabling, in view of a) the high level of physical and cognitive activities depicted in the surveillance b) his presentation at the hearing and c) the inconsistencies observed by the medical assessors. I therefore conclude that Mr. Togias is not disabled in accordance with section 12(5)(b), and is not entitled to benefits beyond September 24, 1994.

REPAYMENT:

The Insurer seeks repayment on two bases: a) receipt of Canada Pension Plan benefits, and b) overstatement of weekly income. Only the second claim is in issue.

A) Canada Pension Plan Benefits

The parties agree that since November 1993, when Mr. Togias began receiving Canada Pension Plan benefits, the Insurer has overpaid him the sum of $4,182.41. He therefore owes the Insurer $4,182.41 under subsection 27(3) of the Schedule.

B) Overstatement of Weekly Income

The Insurer also seeks repayment on the basis that Mr. Togias overstated his weekly income. Although the parties agree that Mr. Togias' original calculation was incorrect, they disagree whether his mistake amounts to an "error" within the meaning of subsection 27(1) of the Schedule, which states:

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.[emphasis added]

Previous case law has considered the term "error." In Levenson,⁶⁷ Senior Arbitrator Naylor (as she then was) found that not any error would justify a repayment; the insurer must establish that "responsibility for the payment [is] attributable in some material way to the actions of the applicant."⁶⁸ [emphasis added] The onus of proof is on the insurer.⁶⁹

In his application for benefits, Mr. Togias stated that he earned tips of "$500.00" per week, in addition to his base salary of $140.00 per week. The employer's confirmation reports the same base salary along with tips of "approx. $500.00" per week. Mr. Togias testified that the bookkeeper relied on his advice when filling in the amount of weekly tips. On the basis of these forms, Co-operators paid Mr. Togias the sum of $512.00 per week for 156 weeks.

Approximately one and a half years after the accident, Co-operators asked Mr. Togias for written verification of the amount of tips he received pre-accident. Mr. Togias produced a notebook containing a record of tips prepared by him while employed as a waiter. In his notebook, Mr. Togias recorded tips which averaged $460.00 over the fifty-two weeks preceding the accident, approximately $40.00 less per week than the amount he earlier declared to the Insurer. On the basis of this information, the parties agree that Mr. Togias was overpaid $22.00 per week in benefits which, multiplied over 156 weeks, results in an overpayment of $3,432.00.

The issue is whether this overpayment is due to a material error on Mr. Togias' part. He told Co-operators he averaged $500.00 per week in tips, when his own records show he averaged $460.00 per week. At first glance, a discrepancy of $40.00 per week may amount to a material error. Other factors, however, militate against such a finding. First, the parties agree that although Mr. Togias averaged $460.00 per week for the entire 52 weeks pre-accident, he averaged $480.00 per week during the weeks actually worked in the year pre-accident (Mr. Togias did not work for approximately one month in the year before the accident while he was in between jobs). Moreover, in the last four weeks recorded in his notebook, Mr. Togias averaged $519.00 per week in tips. Seen in that light, Mr. Togias' estimate of $500.00 was not far off.

The Insurer argues that if Mr. Togias had reviewed his notebook before submitting a claim, he would have calculated his loss more accurately. Mr. Togias submitted his application on September 24, 1991, only one week after his accident. He testified that he did not have the notebook with him when he filled out the form because he had left it in his locker at work after his last shift before this accident. Although I agree that Mr. Togias could have retrieved the book before submitting his application, he was, due to his injuries, operating under less than ideal circumstances at the time. Moreover, although the Insurer could have requested written verification at the outset, it did not do so until approximately one and a half years later, whereupon Mr. Togias promptly provided his notebook.

Under all the circumstances, I find that any error by Mr. Togias is not sufficiently material or culpable to merit repayment. Consequently, I decline the Insurer's request for a repayment.

Expenses:

Mr. Togias claims his expenses incurred in the hearing. An arbitrator has discretion under section 282(11) of the Insurance Act to award expenses:

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

Previous arbitration cases have provided guidelines for the exercise of this discretion. In McCormick,⁷⁰ former Senior Arbitrator Naylor stated that it is appropriate to award an applicant his expenses unless it is found that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."

Although Mr. Togias was unsuccessful in his claim for additional benefits, this case contained a serious divergence of opinion among various medical experts. Both parties called or filed considerable expert evidence regarding Mr. Togias' condition. On the other hand, I did not find Mr. Togias to be a credible witness. He misled the Insurer and this tribunal regarding many of his activities since this accident. He refused to cooperate in a work trial but worked repeatedly as a waiter. Although several medical assessors supported his claim, I have found that their opinions were based primarily on unreliable reporting by Mr. Togias. In the final result, his claim had very little merit.

In these circumstances, I find that Mr. Togias is entitled to only 50% of his expenses.

This hearing was originally scheduled to proceed before me on March 11, 1996. I permitted the Applicant an adjournment, with the condition that he could not recover any expenses arising out of his preparation for and attendance on that date. That order stands.

Order:

1. Mr. Togias is not entitled to weekly income benefits for any period beyond September 24, 1994.

2. Co-operators is entitled to a repayment of $4,182.41, due to Mr. Togias' receipt of Canada Pension Plan benefits. Co-operators is not entitled to any repayment arising out of Mr. Togias' calculation of his weekly income.

3. Mr. Togias is entitled to 50% of his expenses in this arbitration. Mr. Togias is not entitled to any expenses arising out of the preparation for and attendance on March 11, 1996.

August 16, 1996

Deena Baltman Arbitrator

Date

APPENDIX "C"

SURVEILLANCE:

1. Friday, November 25, 1994

Mr. Togias was active from approximately 9:00 a.m. to 8:00 p.m. He drove his children to school on two occasions. On one of the occasions he was observed interacting playfully with his older daughter, and appeared to "chase" her a short distance by striding rapidly. He was smiling and laughing. He later purchased groceries at a number of stores (including a hardware store) on Bloor Street West. He carried his purchases in two shopping bags of some weight. While purchasing groceries, he easily reached items at various heights and loaded and carried his shopping basket with no difficulty. At one of the cashier areas, he was observed bending and squatting fully while handling the grocery basket. He negotiated entries, exits and doorways to various grocery establishments with little effort.

Mr. Togias later drove his daughters to "2-4-1 Pizza". He helped them get their jackets on and off. He later drove his children to the skating rink and watched them for over an hour. He was observed smiling, waving and laughing in the direction of his children. Upon his return home, he carried a garbage can in from the driveway.

At all times, Mr. Togias entered and exited his vehicle in fluid, unrestricted motions. He was seen leaning fully to the right side to unlock the passenger doors. While driving, he used full head turns to the left and right. At one point he successfully negotiated his vehicle out of a very tight parking spot, using several full head rotations and a three point turn. Throughout the day he showed no signs of stress or fatigue.

2. Saturday, November 26, 1994

Mr. Togias was active from approximately 9:00 a.m. to 6:00 p.m, without any apparent restrictions. He made a purchase at a nearby convenience store. He then drove his children to a recreation centre. Later he attended a local bank, four grocery stores, a hardware store and a bakery. He carried his accumulated purchases in plastic grocery bags held in both hands. He then collected his children from the recreation centre and returned home. There were two further occasions that day where Mr. Togias was seen driving away from home.

Mr. Togias demonstrated the same ease in driving and shopping as he did one day earlier.

3. Saturday, December 3, 1994

Mr. Togias was active from approximately 8:45 a.m. to 7:15 p.m., again without any apparent restrictions. He drove his wife to work. He returned home, and drove his children to the recreation centre. He then attended a number of retail and grocery stores and made several purchases, which he carried by hand. He was patient and selective when purchasing meats and vegetables, and loaded and unloaded his shopping basket easily, bending where necessary. He drove home and then to the recreation centre to retrieve his children. He stopped for gas, dropped his children off at a Greek community centre, and then attended "The School Fine Dining Restaurant" (The School), in Markham, where he was observed smoking a cigarette. He visited there for a short period and then returned to the Greek community centre to pick up his children. While there he interacted well with other adults. He then picked his wife up from work and returned home.

4. Thursday, March 23, 1995

Mr. Togias was active from approximately 7:30 a.m. to 7:30 p.m. He drove to the community centre. He was later seen carrying grocery bags. Still later, he took a walk, carrying a coffee mug in one hand and a cigarette in another. He paused to chat with a neighbour. He was observed bending and extending his body in order to adjust the floor mats in his car. He reattended the community centre. All of these activities were performed at a normal pace and with ease.

He then attended a medical examination (arranged by the Insurer) at St. Michael's Hospital. In contrast to his activity level earlier in the day, he moved slowly and cautiously while he approached, attended and exited the hospital grounds. He was later observed at the community centre, watching his two children swim. He turned his head repeatedly and easily while viewing the surroundings, and chatted with other spectators. He bent to remove items from a knapsack, met and walked with his children, and then drove home.

Aside from the laboured pace seen at St. Michael's hospital, he showed no signs of physical impediments.

5. Saturday, May 20, 1995

On this day Mr. Togias was active from approximately 9:00 a.m. to 3:00 p.m. He drove his wife to work. He later drove his children to a friend's home, and was seen socializing with another parent. He then drove his children to the recreation centre and was observed with them in the indoor swimming pool. Over the next 20 -25 minutes, he swam twenty-seven laps of approximately twenty-five⁷¹ metres each, of which thirteen were front crawl, nine breast stroke, three back crawl and two elementary back strokes.⁷² He paused briefly at the end of each lap and adjusted his goggles. He swam in a vigorous and competent manner with no apparent restrictions or difficulty.

After he completed his laps, Mr. Togias walked to the shallow end of the pool, where his daughters were playing. He splashed one of his daughters in a playful manner. He was observed with an obvious tan from the centre of his upper arm down to his hands. He exited the pool easily by a side ladder, and carried his knapsack into the changeroom. He drove home, changed into more formal attire, and returned to the recreation centre. He smoked a cigarette and then collected his children from the centre. Before driving away, he bent down to retrieve the floor mat from the driver's side of his vehicle and then swung it forcefully against a steel pole three times.⁷³ He bent down fully to restore the mat in the car and then drove home, where he watered a neighbour's lawn for approximately 20 minutes.

All these activities were performed without hesitation or restriction.

6. Sunday, May 21, 1995

Mr. Togias was active from approximately 11:00 a.m. to 2:00 p.m. He was observed outside his home fully bending and reaching for an item in his car. He later chatted with a neighbour and then was seen on his front lawn holding a beverage cup in his left hand and a pair of clipping shears in his right hand. For the next twenty minutes, he cut and trimmed his front lawn, without any apparent restrictions. He changed his position occasionally in order to cut more accurately. For several minutes he stood on his right leg and fully bent his left leg against a retaining wall. He leaned forward, trimmed with his right hand, and occasionally drank the beverage held in his left hand. Mr. Togias was later observed cutting in a full squatting position for approximately seven minutes. While completing the yard work, he turned his head fully to the left and right and also upward and downward while drinking his beverage or trimming the grass.

He later drove his daughter to her girlfriend's house, carrying her roller blades in and out of the car. He chatted with the other parent and then drove home.

Throughout the day Mr. Togias moved freely and without any obvious limitations.

7. Saturday, July 15, 1995

On this day, Mr. Togias was active from approximately 11:00 a.m. to 1:45 a.m. the following day. He attended a number of grocery stores in his neighbourhood. He was seen carrying bags of potatoes and onions to the cashier. He loaded the groceries (including a ten pound bag of potatoes) into a bundle buggy, went to the bank, purchased more items at the drugstore and the IGA, and then returned home.

He later drove his children to the recreation centre. He swam 26 laps at a pace "twice as fast"⁷⁴ as previously noted. He was observed to swim efficiently and in good form. On this occasion, he paused only once throughout his swim, to adjust his goggles.

He then joined his daughters in the shallow end and played a game known as "monkey in the middle", wherein his daughters threw the ball back and forth over the top of his head as he attempted to catch or intercept it. During this game, which spanned eleven minutes, he jumped up and down, leapt forward as well as to the left and right, and reached out with either or both hands to catch the ball. He exhibited good hand/eye co-ordination when attempting to intercept the ball or diving to the side. Mr. Togias threw the ball with his right or both hands, raising them above head level.

At one point, when attempting to intercept the ball thrown by his younger daughter, he picked her up out of the water using primarily his left arm, and cradled his right arm underneath her legs. He lifted her (she was then ten years old) and stood erect in a fluid manner, such that her body was lifted approximately 75 percent above the water. He also played energetically with his older daughter; on three occasions, when she was attempting to intercept the ball, he pushed her forward using both his hands, so that she would not be able to catch it. Throughout the game Mr. Togias moved effortlessly and without any obvious limitations.

After this vigorous play, he exited the pool, bent fully forward to pick up his gym bag, and entered the change room. He then left the recreation centre and drove home, showing no signs of fatigue or distress. He next drove home, parked, and walked to the corner store where he purchased cigarettes. He then drove on city streets and on Highways #400 and 401, and was found at The School restaurant in Markham. He parked some distance from the front entrance, along with what appeared to be employee's vehicles.

Over the next several hours, Mr. Togias was observed working as a waiter in the dining area of the restaurant reserved for special occasions. He wore a waiter's uniform and, along with three other waiters, served 120 guests at a wedding reception. Mr. Togias repeatedly served plates of food to various tables and carried quantities of soiled dishes, glasses and tableware into the kitchen. He walked at a rapid pace, and gathered, stacked and carried a considerable number of dishes proficiently. At one point he was seen bending fully forward at the waist to retrieve eight to ten ashtrays which he stacked against his body. He appeared familiar with his surroundings and was not required to search for any of the items he required. He also appeared to be familiar with his co-workers, and conversed with them amicably.

Mr. Togias was at the restaurant from approximately 3:30 p.m. until 1:45 the following a.m. When leaving, he carried his uniform along with some food in a container. He then changed his clothes while standing beside his car, reaching and extending his arms easily. He bent forward and changed his footwear without any difficulty, and then drove home.

8. Sunday, August 6, 1995

Mr. Togias was active from approximately 11:30 a.m. to 3:30 p.m. He drove to a Home Depot outlet, accompanied by his children. He carried strips of molding into the store, and obtained a refund at the "Customer Return" counter. He then viewed some wall repair merchandise, purchased a tub of "poly-filler" and returned home.

He later drove his children to the recreation centre, and attended a grocery store, where he bought cigarettes. He then drove to a donut shop, and was seen walking and carrying a donut in his left hand and a hot beverage in his right. He retrieved a section of plastic covering which had been placed on the sidewalk for disposal and carried it to his car. He then drove to the Home Depot outlet, where he attended an hour long seminar entitled "How to Hang Wallpaper." Mr. Togias, wearing a "painter's hat," participated actively in the seminar by asking questions, taking notes and conversing with another attendee. After the seminar, Mr. Togias, accompanied by the instructor, chose several tools from the wallpaper section of the store, including a "dipping tray" and a sponge. He carried the items to the cashier and then out to his car, where he unloaded them. He then picked his children up from the recreation centre and returned home. Mr. Togias appeared fit and content.

9. Monday, September 4, 1995

Mr. Togias was active from approximately 8:30 to 3:30. He drove to the Pape and Danforth area and purchased some items at a bakery. Mr. Togias then drove to Markham, utilizing the Don Valley Parkway and Highway #404. He attended at a restaurant known as "Gekko's Grill & Breakfast" (Gekko's), where he was joined by the manager of The School restaurant, who owned Gekko's. They entered Gekko's, which was under renovation. Mr. Togias was wearing jeans and a casual shirt. Shortly after another adult entered Gekko's carrying buckets of paint and painting tools.

In cross-examination, Mr. Togias explained that a few friends were painting the store that day. Although he was there for approximately five hours, he claimed he did no physical work whatsoever, and was merely there "on a social visit." I find this unlikely, given Mr. Togias' attire,⁷⁵ the length of time that he was inside the restaurant, and his acknowledgment that the other men there, who are his friends, were there for the express purpose of painting. In these circumstances, the most reasonable inference is that Mr. Togias did at least some renovation work that day.

APPENDIX "A"

List of Witnesses

1. Dr. David Spence

2. Mr. Stamatios Togias

3. Dr. James Sweeney

4. Dr. Henry Berry

5. Dr. Macartney-Filgate

6. Peter Kaiageorgos

7. Mrs. Sylvia Togias

APPENDIX "B"

Exhibits

1. Applicant's Brief #1

2. Five Coloured Diagrams

3. Chapter entitled "Cerebrovascular Disorders"

4. Medical Brief #1

5. Medical Brief #2, Volume 1

6. Medical Brief #2, Volume 2

7. Document Brief

8. Rehabilitation Brief

9. Article by Dr. Spence in Lawyers Weekly

10. Applicant's Brief #2

11. Three Photos of Applicant's Car

12. G-NDS Scores

13. Dr. Sweeney's Pre-assessment Clinical Interview

14. Extract from DSM on Factititous Disorders

15. Curriculum Vitae of Dr. Macartney-Filgate

16. Surveillance Brief

17. Dr. Gray's Report of June 25, 1996

18. Scoring System Chart

19. Police Report

20. Handwritten Notes by Mr. Togias

21. Report of Dr. Patmanidis dated June 27, 1996

22. Seven Videotapes

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. 2Exhibit 8, Tab 2, p.12
3. 3There is conflicting evidence as to whether his car rotated a single 180 degree turn, or more. The police report confirms that the car rotated, but does not specify how many times. Mr. Togias gave different accounts on this point to various assessors.
4. 4Nor did Mr. Togias refer to these symptoms when questioned in an examination for discovery about his complaints at the hospital immediately after the accident (see transcript dated June 16, 1995, p.27, Q.192)
5. 5It appears that Mr. Togias later gave different accounts as to whether there was any "black-out" (or loss of consciousness) at all, and, if so, for how long. See, for example, the report of Gibson & Associates: "...can not [sic] say with any certainty if he blacked-out" (Exhibit 8, Tab 2, p. 50); the report of Dr. Franks: "There may have been a very brief period of loss of awareness" (Exhibit 4, Tab 28, p.2); the report of Dr. Spence: "...[he] remembers the sound of the collision, and the next thing he remembers is that he came to in the car." (Exhibit 4, Tab 35, p.2)
6. 6A repeat MRI, done on April 15th, 1996, also proved normal.
7. 7Although Mr. Togias testified that he experienced flashing lights and double vision after the accident, there is no suggestion in Dr. Chapnick's notes that he mentioned this. The first reference post-accident to any vision problems is Dr. Hanet's note of March 9, 1992, which states "blurred vision with reading." In May, 1992, Mr. Togias advised his rehabilitation worker that he did not develop an eye problem until "three or four months "post accident and that it "occurred after reading" (Exhibit 4, Tab 9, p. 2). In June 1992, Mr. Togias was referred to an optometrist, whom he advised that "he does not believe he has a vision problem - patient thinks its related to neck." He was prescribed reading glasses. (Exhibit 6, Tab 7, p. 2)
8. 8Exhibit 4, Tab 9, p.5
9. 9Exhibit 4, Tab 10, p.2
10. 10Exhibit 4, Tab 10, p.2
11. 11Exhibit 4, Tab 12, p.1
12. 12Exhibit 4, Tab 25, p.1-2
13. 13Exhibit 4, Tab 15, p.13-14
14. 14Exhibit 6, Tab 17, p. 27 (reverse), pp. 33, 34
15. 15Exhibit 6, Tab 17, pp. 25, 35 (reverse) During the hearing, both the reporter and I had to ask Mr. Togias to speak louder on several occasions.
16. 16Exhibit 6, Tab 17, p.30 (reverse), p. 33 (reverse)
17. 17Exhibit 4, Tab 24, p.1
18. 18Exhibit 4, Tab 24, p.1-2\
19. 19Exhibit 6, Tab 17, p.1
20. 20Exhibit 6, Tab 17, p. 20 (reverse)
21. 21Exhibit 6, Tab 17, p.26 (and reverse)
22. 22Exhibit 8, Tab 2, p.46\
23. 23Exhibit 8, Tab 2, p.72
24. 24Exhibit 8, Tab 2, p.69
25. 25Exhibit 8, Tab 2, p. 73
26. 26Exhibit 8, Tab 2, p.76
27. 27Exhibit 8, Tab 2, p.77
28. 28Exhibit 8, Tab 2, p.80
29. 29Mr. Brown's report of the meeting states that "Dr. Hanet understood the intention of the meeting and delivered the message clearly" (Exhibit 8, Tab 2, p.80)
30. 30Exhibit 8, Tab 1
31. 31Exhibit 8, Tab 1, p. 11
32. 32Exhibit 4, Tab 27, p.2
33. 33Exhibit 4, Tab 28, p.7
34. 34Mr. Togias'evidence regarding these episodes is inconsistent. Although he testified that the first fall occurred within days of the accident, and that he reported it to Dr. Hanet, there is no record of any fall in Dr. Hanet's notes until over three months post-accident (Exhibit 5, Tab 3, p.19). Mr. Togias also testified that some of the falls occurred suddenly, without warning. Yet several records suggest they were preceded by dizzy spells (Exhibit 5, Tab 3, p.11; Exhibit 6, Tab 17, p.26; Exhibit 8, Tab 3, p.52) or occurred after he was emotionally upset (Exhibit 8, Tab 1, p.6; Exhibit 6, Tab 16, p.1).
35. 35Except by his wife, Sylvia, on whom I comment below.
36. 36Exhibit 4, Tab 28, p.5
37. 37A SPECT scan was done on February 23, 1996, and produced only "mild" findings (Exhibit 1, Tab 1, p.1) Dr. Reid, who performed the SPECT scan and reviewed numerous other records and reports, eventually concluded that Mr. Togias sustained "a very mild head injury with superimposed neuropsychiatric response." (Exhibit 10, Tab 6, p. 6)
38. 38Exhibit 4, Tab 31, p.8
39. 39Exhibit 4, Tab 29, p.30
40. 40Exhibit 4, Tab 35, p.2
41. 41As an example of short term memory loss, Mr. Togias testified in chief that since the accident he has had difficulty remembering people's names. However, a note from the St. Joseph's Day Treatment program states that Mr. Togias "made it clear that remembering names was not difficult for him..." (Exhibit 6, Tab 17, p. 16)
42. 42Exhibit 9
43. 43Exhibit 3, p.142. The textbook is authored by James F. Toole and Aneel N. Patel. Dr. Spence described this text as "one of the three leading texts in the field of cerebral vascular disease."
44. 44Exhibit 4, Tab 36, pp. 8-9
45. 45Exhibit, 4, Tab 36, p.9
46. 46Exhibit 4, Tab 30
47. 47Exhibit 4, Tab 40
48. 48June 12, 1996 (Exhibit 10, Tab 3)
49. 49This was not captured in the videotape, but is set out in the investigator's written report (Exhibit 16, Tab 6, p.4-5)
50. 50Exhibit 4, Tab 29, p.26
51. 51The clinical records of Dr. Sweeney state that Mr. Togias reported that he returned to work for five to six months on a "part-time trial basis" in the summer of 1995 (Exhibit 13, p. 14) Mr. Togias denied this, and testified that although Dr. Sweeney inserted this information into his draft report, upon reviewing it Mr. Togias contacted him to advise that he did not perform any services at The School until the winter and even then it was not "regular part-time work," but merely the odd task as described above. Dr. Sweeney acknowledged in cross-examination that Mr. Togias contacted him to correct his draft report, resulting in an amended version, which states "For about six months, beginning last winter, he frequented a restaurant of a friend to socialize and to try to help his friend and test his ability by carrying out tasks in the kitchen and as a waiter." (Exhibit 4, Tab 36, p.4)
52. 52This evidence was contradicted by his wife, Sylvia, who testified that she and her daughter hung the wallpaper without any assistance whatsoever from Mr. Togias.
53. 53The Insurer produced all the surveillance it obtained. Only one day (August 5th, 1995) was recorded as "inactive," and that was simply because Mr. Togias could not be located; however, his car was not parked in his garage for some time that day (Exhibit 16, Tab 9, pp. 1-2).
54. 54For example, his "visits" to The School, in Markham. He also drove his wife and children to and from Niagara Falls on one occasion.
55. 55Exhibit 20. It was Mr. Togias himself who first brought the notes to counsel's attention. In order to accommodate the schedules of various witnesses, and on consent of counsel, Mr. Togias' cross-examination was interrupted on several occasions. I observed that he was making notes during the cross-examination of various experts. At one of the points where Insurer's counsel was resuming his cross-examination, Mr. Togias carried the notes with him to the "witness stand" and asked me if he could refer to them during the remaining cross-examination. I agreed. When Insurer's counsel later sought to enter the notes in evidence, I overruled the objection of Mr. Togias' counsel, on the basis that it was Mr. Togias who originally asked to refer to the notes and because they bore on his claim that he could not assimilate or respond to new information.
56. 56Mr. Togias' counsel points to the sexual dysfunction as evidence of profound depression, which is in turn, he submits, disabling Mr. Togias from working. As I state below, however, I do not believe that Mr. Togias is significantly depressed. Consequently, his sexual impotence, whatever its origin and extent, does not bear on the issue before me.
57. 57See Footnotes 4, 5, and 7
58. 58See Footnote # 53, supra.
59. 59Mr. Togias admitted in cross-examination that although he may have discomfort, he is capable of sitting, standing and walking for prolonged periods. For example, on July 15, 1995, Mr. Togias attended several grocery stores, swam vigorously at the recreation centre, played water games energetically with his children, drove to Markham and worked a ten hour shift as a waiter for a wedding banquet. (see Appendix "C, "pp.5-7)
60. 60That is, Doctors Hanet and Desai (see pp. 11-12, supra). Mr. Togias points out that Dr. Hanet later reported that he was totally disabled. It is difficult to understand how Dr. Hanet could assess Mr. Togias' ability to work after Mr. Togias ignored his recommendation that he cooperate in a work trial. Dr. Hanet appears to have accepted Mr. Togias' complaints at face value. I also note that although Dr. Hanet is aware that surveillance was conducted, he has not seen any of the videos or read the investigator's report. For these reasons, I give little weight to his conclusion that Mr. Togias cannot work.
61. 61Exhibit 4, Tab 36, pp.8-9
62. 62Exhibit 4, Tab 42, p.5
63. 63Exhibit 10, Tab 3, p. 10
64. 64Exhibit 10, Tab 3, pp. 8-9
65. 65Exhibit 4, Tab 27, p. 1
66. 66Exhibit 4, Tab 27, p. 1\
67. 67Levenson and The General Accident Assurance Company of Canada, February 18, 1992), OIC A-000260; appeal decision (September 29, 1992), OIC P-000260
68. 68Supra, p. 28
69. 69Saqui and Allstate Insurance Company of Canada (April 30, 1996), OIC A-011612, p. 13 (under appeal)
70. 70McCormick and Economical Mutual Insurance Company (October 2, 1991), OIC A-000139
71. 71This was the investigator's estimate. Mr. Togias testified that the lap in question was only 15 metres long. The actual distance is not evident from the video.
72. 72Exhibit 16, Tab 7, p.7
73. 73Although this is not apparent in the video, it is described in the written narrative prepared by the investigator.
74. 74Exhibit 16, Tab 8, p.7. This was the investigator's estimate. Although Mr. Togias appears to be moving at a good pace, the actual speed is not evident from the video.
75. 75Although the surveillance includes several weekend days, this is the only time where Mr. Togias is seen wearing jeans.