Neutral Citation: 1996 ONICDRG 142

OIC A-003224

ONTARIO INSURANCE COMMISSION

BETWEEN:

IAN MURRAY

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Ian Murray, was injured in a motor vehicle accident on November 6, 1990. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672,¹ until November 5, 1993. Weekly income benefits were then terminated by the Insurer. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

The issues in this hearing are:

1. Is Mr. Murray entitled to payment of weekly income benefits subsequent to November 5, 1993?

2. What is the correct quantum of weekly income benefits to which Mr. Murray is entitled?

3. Is Mr. Murray entitled to payment of the following amounts, pursuant to section 6 of the Schedule:

(a) the sum of $11,176.15 incurred in respect of massage therapy administered by David Slabotsky, R.M.T.;

(b) the sum of $2,593.30 incurred in respect of transportation by taxi to medical appointments?

4. Is Mr. Murray entitled to payment of a special award, pursuant to section 282(10) of the Act?

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

Result:

1. Mr. Murray is entitled to payment of weekly income benefits subsequent to November 5, 1993.

2. Mr. Murray is entitled to weekly income benefits as follows:

November 6, 1990 to November 5, 1991

$532.26

November 6, 1991 to November 5, 1992

$501.30

November 6, 1992 to November 5, 1993

$492.90

November 6, 1993 to November 5, 1994

$361.67

Mr. Murray is entitled to the minimum weekly amount of $185.60 thereafter, subject to variance in accordance with the method of calculation accepted herein. Should the parties be unable to resolve between themselves the question of ongoing quantum, a resumption of the hearing may be scheduled before me, pursuant to section 60.1(b) of the Dispute Resolution Practice Code.

3. Mr. Murray is entitled to payment of :

(a) the sum of $11,176.15 in respect of massage therapy administered by David Slabotsky, R.M.T.

(b) the sum of $2,593.30 incurred in respect of taxi transportation to medical appointments.

4. Mr. Murray is entitled to a special award in the lump sum of $25,000.00, inclusive of interest.

5. Mr. Murray is entitled to interest on overdue payments in accordance with section 24(4) of the Schedule.

6. Mr. Murray is entitled to his expenses incurred in respect of this arbitration proceeding.

Hearing:

The hearing was held in North York, Ontario, on April 16, 17, 18 and 30, and May 6, 1996, before me, Lawrence Blackman, Arbitrator.

Present at the Hearing:

Applicant:

Ian Murray

Applicant's

Hugh DesBrisay

Representative:

Barrister and Solicitor

Insurer's

David Lindsay

Representative:

Barrister and Solicitor

Witnesses:

Mr. Ian Murray

Ms. Karen Haberman

Dr. Alan S. Gordon

Dr. Ken Citron

Mr. Jeffrey C. Smith

Court Reporter:

Ms. Sandra Riddell

Exhibits:

The exhibits to this hearing are listed under Schedule "A" to this decision.

Evidence and Findings:

1. Post-156 week Entitlement

(a) Background

Mr. Murray was born in 1951, in Nova Scotia, where he completed grade 11. He subsequently attended and graduated from the Nova Scotia College of Art and Design with a degree of Bachelor of Fine Art in Fine Art.

Mr. Murray testified that it had been his intent from age nine to be an artist, and his post-secondary education and employment has essentially involved, or has been incidental to the creative arts. Mr. Murray's experience in a variety of venues such as painting, drawing, sculpture, TV production, and radio programming coalesced in his career choice as a "multi-media artist."

Multi-media art entails creating a thematic environment using and mixing diverse media, including constructed sets and props, music, visual effects, and text. This involves diverse physical and intellectual demands including long hours of film editing and mixing, in addition to audio engineering, administration, camera operation, and carpentry.

Mr. Murray testified that although other individuals might assist him, his "hand" appeared in every intellectual, emotional, and physical facet of his productions. Riverfront Medical Evaluations, Limited who assessed Mr. Murray at the request of Wawanesa, considered his job "to be composed of approximately 60% light and 40% medium level duties."² Mr. Murray took exception to the use of the term "light work" to describe, for example, long hours of stressful editing.

Mr. Murray also had some experience teaching and lecturing. His only long term teaching position was at Ryerson in 1986 to 1987, which he described as involving gruelling hands on physical work building sets, in addition to more traditional aspects of teaching. He has also had limited computer training.

Mr. Murray testified as to the enormous satisfaction he obtained from his artistic work, which he described as more of a vocation than a job. I was impressed with Mr. Murray's desire to return to his former life of creative endeavours.

No evidence was presented that Mr. Murray suffered from any relevant pre-accident physical or psychological complaints.

(b) The accident and its aftermath

On November 6, 1990, Mr. Murray was a front seat passenger in a vehicle involved in a multi-car accident on Toronto's Don Valley Parkway. He testified that he lost consciousness as a result of the impact, and awoke partially in the back seat of the car. He attended Sunnybrook Medical Centre that same day with complaints of neck and shoulder pain. The nursing assessment, however, records no loss of consciousness.

Subsequent records from Sunnybrook indicate complaints of numbness and weakness in the left arm in the weeks following the accident. Considerable muscle spasm is also initially noted. The records indicate a difference of opinion amongst the Sunnybrook doctors as to whether Mr. Murray's initial cervical x-rays revealed a small fracture of the cervical spinous process. Dr. Michael Schwartz, a neurosurgeon whose review of the x-ray failed to reveal any fracture, nonetheless, felt that Mr. Murray had sustained a "significant ligamentous injury."³

Mr. Murray's complaints following the accident included headaches, hearing loss, damage to his teeth and jaw, and cervical, shoulder, inter-scapular, and pain in his left arm and low back. Treatment included various medications, a collar, arm sling, a TENS unit, dental work, anaesthetic injections, acupuncture, hydrotherapy, massage therapy, and physiotherapy, conducted at a variety of clinics.

Mr. Murray uses a walking cane, Obus Forme, and a sacro-brace. Tape has been applied across his back by his physiotherapist as a physical reminder as to which movements should be avoided.

Mr. Murray's most significant ongoing complaints are headaches, varying in intensity and consistency (but always present in some manner), ringing in his left ear, and pain in his neck, left arm, low back and between his shoulder blades.

Mr. Murray described a life shattered by this accident. He testified that he has not created any new art since the accident due to difficulty concentrating, walking, standing, sitting, writing or typing. The only work which he has been capable of performing are a few brief speaking engagements, and tasks in connection with preserving the art which he had previously created. Mr. Murray testified as to the significant difficulty he has had in performing these limited undertakings.

He has applied for and received grants from the Ontario Arts Council following the accident, but has been unable to perform the work contracted.

(c) Medical Assessments

Mr. Murray's evidence was echoed by the Insurer's orthopaedic expert, Dr. Evans, who comments in his initial report of March 18, 1991, that Mr. Murray has been "absolutely devastated"⁴ by the soft-tissue injuries sustained in the accident. In his subsequent report of August 30, 1991, Dr. Evans confirms Mr. Murray's continuing disability, and comments that this "is a very dreadful story of some young man who seems to be getting incredibly worse."⁵

Dr. Evans last comments on the question of disability in his June 16, 1992 report where he states: "I am afraid this young man, now, is in a post-traumatic stress syndrome which may never be resolved. My apologies."⁶

In addition to Dr. Evans and his family doctor, Dr. Selick, Mr. Murray has been seen by a wide variety of doctors whose specialties include neurology, neurosurgery, rheumatology, physiatry, dentistry, prosthodontics, oral surgery, psychiatry, anaesthesiology, physical and rehabilitation medicine, and otolaryngology. I will deal with the most pertinent medical evidence. Dr. Evans recommended that Mr. Murray attend a session at the Toronto Rehabilitation Centre for a programme of physiotherapy, occupational therapy and some psychological support.

Wawanesa however referred Mr. Murray to the F.I.T. for Work Centres for an assessment on September 21, 1992. Dr. K. Rittenberg of F.I.T. writes in his November 2, 1992 report that:

an intensive, interdisciplinary functional restoration program consisting of an active physical component, as well as educational, counselling and pain management components . . . represents this gentleman's only chance at breaking out of his present state and possibly regaining some degree of normal function in his life.⁷

Mr. Christodoulou, Mr. Murray's claim adjuster at Wawanesa asked Mr. Murray to attend an active rehabilitation programme, leaving the choice of facility to Dr. Selick. Dr. Selick referred Mr. Murray to the Orthopedic Therapy Clinic, where treatment continued until approximately August 1993.

As the third anniversary of the accident approached, Mr. Murray was referred by Wawanesa to Riverfront Medical Evaluations, Limited ("Riverfront") for a five-hour functional capacity evaluation, performed on October 4, 1993. Their report, encompassing some 71 pages, addresses the question of whether Mr. Murray "is ready to return to work as a Multi-Media Artist Producer." The report concludes that Mr. Murray "is unable to safely perform the essential duties of his employment." The report does not directly consider any alternative work that Mr. Murray might be capable of performing.

Riverfront found Mr. Murray to be co-operative "on all aspects during the testing." As noted above, Riverfront assessed Mr. Murray's pre-accident job as being approximately 60% light and 40% medium level duties. The report did not indicate that any of Mr. Murray's job duties fell within the sedentary level, which it defined as the level below light duties. The report concluded:

Mr. Murray does not meet the job requirements for Multi-media Artist Producer for the following activities: static lifting, dynamic lifting, static pushing/pulling, carrying, sitting, standing/walking, climbing, stooping, kneeling, crouching, reaching forward/overhead, handling and fingering. His bending movements at the knees and waist are guarded and compensated. His lifting postures and mechanics are unsafe. His left shoulder flexion was impaired during lifting activities. This impairment is most noticeable during lifting or reaching over shoulder height. His right side performed better than his left on most strength activities.

Mr. Murray meets the job standards for the following activities: balancing, reaching lateral/backward, feeling, talking, hearing and seeing.⁸ [emphasis added]

Following receipt of this report, Wawanesa sent Mr. Murray a letter dated November 18, 1993, which states in part:

According to the assessment, you are able to do sedentary type work. This means you should be able to do many of the related tasks of your job as a multimedia artist and producer. Therefore we have ceased disability benefits to you as of November 5, 1993.

We will continue to pay accident related medical costs and expenses you have incurred. We will also assist you in enabling you to find related work in your field if you so desire.⁹

Wawanesa subsequently retained Lindsey Morden Health & Rehabilitation Services. It is uncertain whether their consultant reviewed the Riverfront report. The consultant states in her March 17, 1994 report of being "concerned about how the client will adjust to returning to work, as it has been over three years since the client has worked." The consultant's rehabilitation goal appeared to be limited to determining if any modifications or assistive devices were necessary to allow Mr. Murray to accept any job offers that he might obtain. Mr. Murray testified that he discontinued the consultant's services when she stated that she would report only to Wawanesa.

In 1995, Mr. Murray began seeing Dr. Gordon, a neurologist and an Associate Professor and Assistant Dean at the Faculty of Medicine at the University of Toronto. Dr. Gordon testified that Mr. Murray had sustained a significant head and neck injury in the accident, and was suffering from cerviogenic headaches, which arise from Mr. Murray's cervical spine and are referred into his eye and temple. Dr. Gordon stated that although this is a controversial medical concept, it is one which he feels is a true condition. Mr. Murray has had anaesthetic injections to the back of his neck, which have provided him with short term relief. More permanent neurosurgical procedures are also being considered.

I found Dr. Gordon to be an extremely qualified, knowledgeable, credible witness, who gave his evidence in an impartial manner. I accept Dr. Gordon's evidence, which was not challenged by any medical report or oral evidence.

Dr. Handelsman, a doctor of rheumatology and internal medicine, states in his February 16, 1995 report that Mr. Murray sustained:

an initial extension rotation injury to the cervical and dorsolumbar spines . . . with his initial symptoms most likely he sustained an injury to the left inner ear, going along with dizziness, vertigo, which subsequently improved and the ongoing sensation of distorted sounds arising out of the left ear.¹⁰

Dr. Handelsman's prognosis was guarded. He suggested that Mr. Murray try to increase his level of activity by small increments. He did not foresee Mr. Murray ever returning to his former work in the manner he was accustomed. He concludes by saying that Mr. Murray "will find it difficult to obtain meaningful employment in the future."

Mr. Murray was also recently seen by Dr. Citron, a staff psychiatrist at Mount Sinai Hospital. Dr. Citron's diagnosis was "a severe chronic pain syndrome which is quite debilitating." Dr. Citron did not feel secondary gain was a factor in this case. I was not referred to any medical opinion that suggested that Mr. Murray was malingering. No surveillance or investigative evidence was presented.

(d) Analysis and Conclusion

Mr. Murray was paid weekly income benefits in the amount of $185.00 until November 5, 1993, pursuant to section 12(1) of the Schedule. This subsection, which covers a 156 week period, requires that the insured person prove, on a balance of probabilities, that he or she "suffers substantial inability to perform the essential tasks of his or her occupation or employment."¹¹

Section 12(5)(b) states that the insurer is not required to pay a weekly benefit:

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.

The question as to an applicant's onus regarding the post-156 week entitlement test has been the subject of considerable comment. It has been accepted that "Applicants are not required to prove a negative: that there is no job that they can do."¹² Arbitrator Manji in Caruso states that "the applicant is not required to demonstrate that he or she is incapable of any other conceivable and commensurate employment or occupation."

Recent arbitration decisions have grappled with what is the "positive obligation"¹³ on insureds. Arbitrator Evans stated that applicants as part of discharging the onus of proof "must explore career options."¹⁴ Arbitrator Seife held that "the applicant must identify some sort of 'suitable' employment, describe the physical demands of the work and demonstrate with credible evidence that their injuries continuously prevent them from engaging in such employment."¹⁵ Arbitrator Manji in the Caruso decision required the Applicant (if unable to adduce strong medical evidence of total disability) to provide some evidence that he or she "has made a bona fide effort to identify, try to find or attempt some sort of 'suitable' employment but failed because his or her injuries continuously prevent him or her from engaging in such employment."

What is being acknowledged in these cases, is that subsection 12(5)(b) encompasses a broader range of inquiry than subsection 12(1). The issue of disability is considered not merely in terms of the occupation or employment engaged in at the time of the accident, but in terms of any occupation or employment for which the insured person is reasonably suited by education, training or experience.

I find that the comments noted above concerning the "positive obligation" of insureds may provide helpful approaches, depending on the circumstances of the case, in determining whether the applicant has met, on a balance of probabilities, the disability test set out in section 12(5)(b) of the Schedule. The onus of proof of course rests on an applicant throughout to prove his or her disability. Where an applicant adduces evidence which prima facie meets its onus, an insurer "runs the risk of an adverse inference in the absence of evidence to the contrary."¹⁶

Arbitrator Manji identified the following criteria for determining whether an applicant is entitled to weekly income benefits after 156 weeks:¹⁷

• The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background.¹⁸

• The range of alternative employment that may be considered depends on the applicant's background. It may include jobs that are different from the work that he or she was doing at the time of the accident, but only if they are reasonably suitable or appropriate for the applicant. If the job is substantially different in nature, status or remuneration, it may not be an appropriate alternative.¹⁹

• Work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status or remuneration, it may not be an appropriate alternative.²⁰

• The primary focus is on an applicant's disability or functional limitations and not on the broader availability of work in the job market; however, the disability cannot be seen in a vacuum, but should be viewed in the context of the applicant's competitiveness in the existing marketplace.²¹

The following further criterion was identified by former Arbitrator Draper²²:

• The injuries must prevent the applicant from performing the duties of the alternative work, not simply make the job more difficult, or make the applicant somewhat less productive. However, the test is not limited to whether the applicant is physically capable of performing each component task of the job without risking further injury. The question is whether the applicant is substantially able to do the alternative job, considered as a whole, including reasonable hours and productivity.

I agree that the question of what is "suitable" will differ in each case. It may be extremely expansive. It may be restricted to the occupation or employment engaged in at the time of the accident. The evidence will vary according to the facts of each case. The range of "suitable" employment would encompass that which reasonably flows from an insured's education, training or experience, and which is neither substantially different in nature, status or remuneration from the immediate pre-accident employment, nor would require more than a modicum of training or upgrading at the point in time of inquiry.

Mr. Murray has been engaged in creative artistic endeavours his entire adult life. I am satisfied that Mr. Murray has from the accident date, been unable to perform the essential duties of his pre-accident occupation.

I am further satisfied, on the basis of the medical evidence submitted and specifically the Riverfront report, that there are alternative positions, including camera operator, film editor and audio engineer, identified in the Riverfront report, for which Mr. Murray is reasonably professionally suited. I am further satisfied, on the basis of the Riverfront report and the further medical evidence noted above, that Mr. Murray does not meet the physical requirements of those positions, as defined by Riverfront. I specifically find that Riverfront's notation of restrictions in inter alia lifting and carrying, as well as sitting, standing, walking, handling, and fingering would prevent Mr. Murray from engaging in these light and medium level jobs.

Although the position of sales-promotion administrator identified by Riverfront is less physically demanding, I find that it is sufficiently different in nature and status from Mr. Murray's pre-accident work as to be an inappropriate alternative. I also find that the final identified job of advertising salesperson is not reasonable because of the significant difference in status and nature of that occupation. In addition, this position was defined in the Riverfront report as more physically demanding.

I am satisfied in this case, following the approach of Arbitrator Seife, that alternative "suitable" employment and the physical demands of such employment have been identified.²³ I am further satisfied, on the basis of the medical evidence and the evidence of the Applicant, that Mr. Murray has established that he is substantially unable to engage in those positions.

The Insurer presented no evidence of any other employment for which Mr. Murray might be reasonably suited by education, training, experience and current limitations. Wawanesa's rehabilitation expert never addressed the question of what other work might be suitable. The gist of the Insurer's submission was that Mr. Murray was a multi-talented individual who could certainly do something. It was however merely speculative as to what that "something" was. As stated above, there is no requirement on the applicant to prove a negative, that there is no job that he or she can do.

I therefore find, on a balance of probabilities, that Mr. Murray has established, that since November 5, 1993, he has been continuously prevented from engaging in any occupation or employment for which he is suited by education, training or experience. Accordingly, he is entitled to weekly income benefits from the date weekly income benefits were terminated.

I must add, however, that I am hopeful that if appropriate and meaningful vocational rehabilitation is provided to Mr. Murray in conjunction with treatment recommended by his treating specialists, that with the level of co-operation previously given by the Applicant (which was favourably commented on by medical practitioners), an obviously talented man such as Mr. Murray can return to employment for which he is reasonably suited.

2. Quantum:

Mr. Murray was self-employed at the time of the accident. Although his unincorporated business continued to generate income and expenses after the accident, Mr. Murray testified that his injuries prevented him from creating any further artistic work.

Sections 12 and 15 of the Schedule set out the statutory process of calculating the weekly income benefit payable, and the deduction, if any, for post accident income received or available.

The Applicant retained as his accounting expert, Mr. Clive G.M. Barker. The Insurer retained Mr. Jeffrey C. Smith. Both are chartered accountants.

At the arbitration hearing, the Applicant conceded two points on the quantum issue, with which I concur. Firstly, section 15 clearly states that post-accident income is deducted from the benefit payable, and not from gross pre-accident income. Secondly, it was inappropriate in this case to include as income, monies generated by capital dispositions, as the capital gains could not be properly calculated.

The remaining areas of dispute between the parties were as follows:

(a) The truthfulness of the Applicant's stated Pre-Accident and Post-Accident Income.

The Insurer submitted that Mr. Murray's stated pre-accident income was greater than his bank deposits, and that his declared post-accident income was less than his bank deposits. Wawanesa therefore argued that Mr. Murray had exaggerated his pre-accident income and had minimized his post-accident income in order to maximize the weekly income benefit payable. The Insurer thus submitted that Mr. Murray was not credible, and that he was only entitled to the minimum weekly income benefit of $185.00²⁴ paid by Wawanesa from November 6, 1990 until November 5, 1993.

Mr. Murray's Application for Benefits dated December 19, 1990, showed a gross income of $37,445.90 in the 52 weeks preceding the accident, supported by two pages itemizing 34 separate sources of income during that year. Mr. Barker's amended report of August 15, 1995 puts Mr. Murray's gross income for that period at $39, 299.72 (excluding capital asset sales), based on source documents including bank statements, cheque stubs and grant statements. Mr. Murray has not filed income tax returns since 1989, although his returns for 1989 to 1993 have now been prepared.

Mr. Smith was retained by Wawanesa on August 9, 1995. His request for certain documentation and information from the Applicant was answered immediately, and he was allowed full access to all requested financial books and records (sorted by year, and subdivided by income and expense categories), as well as bank deposit books.

Following Mr. Smith's review of the Applicant's source documentation, Wawanesa's counsel requested information on bank deposits for certain specified months. The letter states:

However, should Mr. Murray be able to demonstrate that the deposits over and above his stated invoices were loans from friends and family then his benefits would be as calculated at the bottom of Schedule "1".²⁵

Schedule "1" is found in Mr. Smith's September 6, 1995 report. The weekly income benefit is calculated in this schedule using Mr. Murray's gross income in the 52 weeks prior to the accident (excluding capital dispositions) and deducting pre-accident expenses to the extent that they decrease after the accident. Mr. Smith believed this to be a "fair calculation" of Mr. Murray's entitlement, if the income and expense information provided by Mr. Murray was accurate.

By letter dated September 18, 1995, the Applicant's counsel forwarded to Wawanesa's counsel, a statement identifying Mr. Murray's individual bank deposits for the months requested. This extremely comprehensive chart sets out the date, account number, transaction number, amount, source, and the supporting paper documentation for each bank entry.

Mr. Smith, however, was not advised by Wawanesa that the document only responded to the requested months. Mr. Smith hence stated in his April 29, 1996 report that he could not reconcile the total bank deposits and Mr. Murray's chart. At the arbitration hearing, Mr. Desbrisay took Mr. Smith through Mr. Murray's bank deposits in the months for which documentation was requested. The numbers either reconciled or were extremely close.

Mr. Smith confirmed that he had not requested any further documentation from the Applicant Mr. Desbrisay confirmed in an April 24, 1996 letter to Wawanesa that the Insurer was not requesting any additional documentation from Mr. Murray

The Insurer failed to identify any item as being inappropriately included as income by Mr. Murray, or any item improperly not being declared as income (despite having an opportunity to go behind the source documents and, in fact, contacting the Ontario Arts Council, which had provided grants to Mr. Murray).

I found Mr. Murray to be a very credible witness. Despite being cross-examined over the course of three days, spread over some two weeks, Mr. Murray's evidence remained consistent and essentially unshaken. In light of that finding, as well as Mr. Murray's full financial disclosure, and the failure of the Insurer to show any item improperly included or excluded as income, I am satisfied, on the balance of probabilities, with the truthfulness of Mr. Murray's declared pre- and post-accident income.

(b) The validity of the Applicant's stated Pre-Accident and Post-Accident Expenses.

The Insurer also questioned the truthfulness of Mr. Murray's declared business expenses. The Insurer did not dispute that the expenses were incurred, but submitted that it was impossible to determine whether they were all truly business-related. Wawanesa queried why Mr. Murray, who produced no new work after the accident, would continue to incur significant post-accident expenses, in some cases exceeding his pre-accident expenses. Mr. Desbrisay responded:

Mr. Murray incurred substantial expenses for subcontract, art supplies and services and craft services/crew meals subsequent to his accident as a result of a number of expenses that he was required to incur in order to maintain artwork, store artwork, restore studio premises and in order to attempt to advance ongoing projects by use of subcontractors.²⁶

Despite having an adequate opportunity to fully investigate Mr. Murray's financial documentation, and thoroughly cross-examine the Applicant, Wawanesa could not point to a single expense as being fraudulently, inappropriately, inaccurately or inadvertently included as a business expense. The Insurer's only submission was that certain of the expenses (none of which were identified) were "neutral" and "could," hypothetically, be either personal or business-related.

Based on the Applicant's unshaken evidence, his full disclosure, and the lack of any evidence to the contrary, I am satisfied, on a balance of probabilities, that the Applicant's declared business expenses are accurate.

As I am satisfied with the accuracy of the revenue and expense data being relied upon, it now remains to be considered whether the calculation accepted by Mr. Smith (based on deducting expenses to the extent to which they cease, from Mr. Murray's pre-accident revenue in the 52 weeks preceding the accident) is indeed a fair approach, and consistent with the Schedule.

(c) Ceasing expenses

The Applicant submitted, that as his business did not cease after the accident, and as no particular expense category ceased to any significant extent, there should be no deduction for "ceasing" expenses pursuant to paragraph 12(7)(3) of the Schedule, which states:

Business expenses which cease as a result of the accident shall be deducted from a person's income from self-employment before calculating his or her gross weekly income.

The Applicant relied on the following comments of former Senior Arbitrator Naylor in Philippe:²⁷

it is not necessary for a particular expense to stop in its entirety after the accident in order for the expense to be treated as a ceasing expense. If a significant proportion of the expense stops as a result of the accident, that proportion may be regarded as an expense that has ceased under section 12(7)3.

The Applicant further submitted that post-accident income should be calculated as gross revenue, less any additional post-accident expenses.

While Wawanesa agreed with the Applicant's method of calculating post-accident income, it argued that in calculating his gross weekly income, it was fair, reasonable and consistent with the Schedule, to deduct from Mr. Murray's gross revenue, expenses to the extent that expenses were reduced following the accident.

As I stated in the Kotak²⁸ decision, paragraph 12(7)(3) of the Schedule is ambiguous. The paragraph does not provide any guidance where an insured's business continues after the insured becomes disabled as a result of a motor vehicle accident. I therefore agreed with Arbitrator Makepeace that:

the Schedule does not necessarily mandate a single accounting approach for all cases. In each case, the arbitrator has discretion to determine which approach most fairly, reasonably and accurately reflects the applicant's financial situation before the accident, considering all the circumstances.²⁹

In this case I was given two accounting choices, making no deduction for ceasing expenses, and deducting expenses to the extent that they cease. In this case, I find that the latter approach "most fairly, reasonably and accurately" reflects Mr. Murray's financial situation before the accident. To compensate Mr. Murray for expenses which no longer exist, would provide him with a windfall which I do not find is sanctioned by the Schedule.

(d) Is Mr. Murray's gross weekly Income greater In the 4 or 52 weeks preceding the accident.

Pursuant to paragraph 12(7)(1) of the Schedule, Mr. Murray's gross weekly income is deemed to be the greatest of his average gross weekly income from his occupation for either the 4 or 52 weeks prior to the accident (subject to a minimum amount of $232.00).

Assuming that Mr. Murray's raw data was accurate, Mr. Smith agreed that the Applicant's pre-accident gross revenue in the year prior to the accident (excluding capital dispositions), was $39,299.72, or $755.76 per week.

Mr. Murray's average gross weekly revenue in the four weeks preceding the accident was $771.70.

The parties agreed that the ceasing expense to be deducted was identical whether gross weekly income was based on the 4 or the 52 weeks preceding the accident. Therefore, pursuant to paragraph 12(7)(1) of the Schedule, Mr. Murray's deemed gross weekly income is the larger figure of $771.70 (based on the four weeks pre-accident) less ceasing expenses as defined above.

Therefore, using the expense data provided by Mr. Murray, the weekly income benefit in this case is (as set out in Exhibit 18) as follows:

November 6, 1990 to November 5, 1991

$532.26

November 6, 1991 to November 5, 1992

$501.30

November 6, 1992 to November 5, 1993

$492.90

November 6, 1993 to November 5, 1994

$361.67

Accounting data was not available for subsequent periods. I therefore decline to make any order concerning quantum after November 5, 1994. I find only that the Applicant is entitled to the minimum weekly amount of $185.60, subject to variance using the method of calculation accepted above. Should the parties not be able to resolve between themselves the question of ongoing quantum, a resumption of the hearing may be scheduled before me, pursuant to section 60.1(b) of the Dispute Resolution Practice Code.

3. Supplementary Medical Expenses

The issues in this proceeding under the heading of supplementary medical expenses were confined to claims for massage therapy totalling $11,176.15, and transportation in the amount of $2,593.30.

The claim is pursuant to section 6 of the Schedule. The pertinent portions of the section state:

6.(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,

(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;

(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident;

Senior Arbitrator Rotter, in the Plows³⁰ decision, set out the following criteria that must be met, for an insurer to be liable to pay an item under subparagraph 6(1)(f):

(1) it must be a reasonable expense resulting from the accident

(2) it must be required because of the accident

(3) a medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the Insurer so requires

Senior Arbitrator Rotter also commented on the term "reasonable" as follows:

The word "reasonable," which is used in the legislation, has two different, although not unrelated meanings in this context. The Oxford English Dictionary defines "reasonable" as follows:

(1) in accordance with reason; not absurd

(2) within the limits of reason; not greatly less or more than might be expected; inexpensive; not extortionate; tolerable; fair

I agree with, and adopt, Senior Arbitrator Rotter's analysis.

(a) Massage Therapy

Mr. Murray began massage therapy with Anne Ruebottom in January 1991. In May 1991, he switched to David Slabotsky, a registered massage therapist. Mr. Murray's outstanding account at the arbitration hearing was $11,176.15 for more than 100 visits over more than a two and a half year period. Mr. Murray testified that despite significant financial difficulties, he had paid approximately $1,700.00 towards the outstanding account.

Mr. Slabotsky wrote in a March 6, 1994 letter that the purpose of his treatment was:

reducing spasm, mobilizing joints, myofascial release, remedial exercise to help Mr. Murray regain full use and function of his body so that he can resume the active and successful professional life he enjoyed before his MVA.

Mr. Slabotsky indicated that Mr. Murray had made significant improvement as a result of his treatment. Karen Haberman, an extremely well qualified physiotherapist at a separate unrelated clinic, testified that Mr. Slabotsky's treatment was "very helpful" in increasing mobility, and assisted the healing process. Ms. Haberman impressed me as a dedicated professional, who did not allow her obvious concern for her patient's welfare to cloud her objectivity.

Maureen Dwight, the clinic director of The Orthopaedic Therapy Clinic, had stated earlier, in her March 3, 1993 letter, that Mr. Murray's progress was dependent on Mr. Slabotsky's treatment. She anticipated that the use of passive approaches would diminish as his strength increased. The frequency of such treatment has, in fact, decreased and by April 1995, the attendances were down to once a month.

Dr. Selick stated in his August 17, 1995 report, that although the effects of massage therapy might be temporary, it made Mr. Murray feel better prior to engaging in more active physiotherapy, and thus assisted his progress. As well, massage therapy helped reduce the use of medication. Thus, Dr. Selick concluded that massage therapy was a good choice for Mr. Murray. This report, however, contradicts his earlier October 19, 1992 report, in which Dr. Selick stated that it was difficult to gauge the benefits of ongoing massage, that the relief seemed "very short-lived," and that it "could" be phased out over the remainder of 1992.

Dr. J. Evans, the orthopaedic surgeon retained by the Insurer, commented:

The massage therapist, I am sure, had produced a feeling of comfort and wellbeing throughout the time but in my opinion, it is not necessary for long term improvement and therefore I do not believe they are of value at the present time.

There is no requirement in the Schedule that treatment must lead to "long term improvement" in order to be reasonable. I find that decreasing pain without the use of medication, even on a short term basis, is a reasonable, and indeed, even a laudable treatment goal. Furthermore, I am satisfied that the massage treatment provided to Mr. Murray was reasonable for increasing mobility. I am further satisfied that the frequency of the treatments, which were gradually decreased to once a month, was not excessive.

I have concerns about Mr. Slabotsky's hourly rate of $80.00, plus G.S.T. The Insurer however did not challenge the reasonableness of this figure. In the absence of any contrary evidence as to "going" rates, I allow Mr. Slabotsky's hourly amount.

I am further satisfied, on the basis of Ms. Haberman's oral evidence and the medical evidence filed, that the treatment was required because of the accident.

I was not advised that the Insurer ever requested a signed statement confirming that the massage therapy was necessary for Mr. Murray's treatment or rehabilitation. However, I am satisfied, based both on the filed documentation and the oral testimony, that the massage therapy was necessary for Mr. Murray's treatment.

I therefore find that the Insurer is liable to pay Mr. Murray the sum of $11,176.15, as claimed.

(b) Transportation

Mr. Murray does not drive. After the accident, Mr. Murray found that the jerking motion of TTC above and below ground transportation aggravated his symptoms, and eliminated the benefits he obtained from massage and physiotherapy. He testified that on one occasion, he blacked out on a streetcar. He found that going to medical appointments by cab was far less taxing. The Insurer, however, had indicated, that after January 15, 1993, they would no longer pay for taxis, but would give "a credit for the TTC only."

Dr. Selick, in his October 19, 1992 report, stated that taxi rides "could some day stop" and felt that Mr. Murray "should" be able to get about by public transit within another three or four months. However, in his August 17, 1995 report, Dr. Selick recounted a subway ride which put Mr. Murray "in bed for a week." He further stated that Mr. Murray had consistently repeated that the bouncing, jostling, frequent stops and starts, and roughness of TTC rides worsened his neck and back pain and spasm. Dr. Selick felt that it was reasonable "at times" for Mr. Murray to be allowed to travel by taxi.

Dr. Handelsman states in his February 16, 1995 report that it was not "unreasonable" for Mr. Murray "at times" to require a taxi cab. Dr. Evans, however, felt in his October 30, 1992 report that "a requirement for a cab is not necessary and public transportation would be well within his capabilities."

Mr. Murray submitted typed itemized lists of expenses to Wawanesa, including transportation costs. Each transportation entry details the date, description, and cost of each trip. The trips were for attendances at medical practitioners, or at locations, such as pharmacies or Starkman Surgical Supply Ltd., which were injury-related. None of the individual trips were challenged by the Insurer.

Mr. Murray also provided pages of supporting documentation. I received no evidence that any further supporting documentation was ever requested.

The net amount claimed for taxi transportation expenses (after deducting those amounts paid by Wawanesa) was $2,593.30, covering a period from 1993 to 1996.

Transportation to and from treatment is specifically enumerated under section 6(1)(d) of the Schedule. Other transportation costs can be encompassed under section 6(1)(f).

I was impressed by Mr. Murray's statement that taxi cab fare was for him "food money," in that, on his extremely limited means, taking a cab meant that less money was available for basic necessities. This forced Mr. Murray to take taxis only on a restricted basis. His typed sheets show that on numerous occasions he took the TTC for medical attendances. I find that economic necessity forced Mr. Murray to judiciously limit his use of taxis. I find that using taxis for medical and medically-related attendances, as an intermittent means of transportation, was in this case reasonable, and was required because of the accident. I received no evidence that a signed statement was requested by the Insurer.

I therefore find that Mr. Murray is entitled to payment of the sum of $2,593.30 for transportation expenses.

4. Special Award

Section 282(10) of the Act provides:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

A Special Award requires a finding that "an insurer has unreasonably withheld or delayed payments." "Unreasonable" is defined in the Concise Oxford Dictionary of Current English, Eighth Edition [Clarendon Press, Oxford, 1990] as:

1 going beyond the limits of what is reasonable or equitable (unreasonable demands) 2 not guided by or listening to reason.

I agree with Arbitrator Palmer's comments that:

"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.³¹

In determining whether Wawanesa "has unreasonably withheld or delayed payments," I have considered the following:

(a) Pay Now, Dispute Later

Section 6(7) of the Schedule states that:

In case of a dispute concerning an expense described in clause (1)(a), (b) or (d), the insurer will pay the expense pending resolution of the dispute. [emphasis added]

Section 6(1)(d) includes transportation expenses for the insured to and from treatment. For a period of time, Wawanesa paid only the TTC equivalent for such transportation. Since autumn 1994, Wawanesa has not paid anything towards Mr. Murray's transportation to and from any treatment.

Section 6(7) is mandatory. It requires certain expenses to be paid by the Insurer, pending the resolution of any dispute as to the reasonableness, necessity, or requirement of the expense. Preventing any delay of an insured's access to a restricted range of goods and services, is the paramount legislative concern.

I find that by contravening section 6(7), and not paying the claimed expenses for transportation to and from treatments, including Mr. Murray's attendances with the family doctor, physiotherapy, and medical specialists, Wawanesa has unreasonably withheld payments.

(b) Quantum of Weekly Income Benefit

After Mr. Murray furnished Wawanesa with his Application for Benefits dated December 19, 1990, the Insurer requested on January 15, 1991, further supporting documentation, including income tax returns, to verify the income claimed. By letter dated March 5, 1991, Wawanesa indicated that it would pay $185.00 per week, pending receipt of "proper documentation," at which time it would "increase this amount."³² Mr. Murray was paid $185.00 weekly from November 6, 1990 until November 5, 1993.

Mr. Murray has not filed income tax returns from 1989 onwards, although his returns for 1989 to 1993 were prepared at some unspecified later date. The initial report of Mr. Murray's accounting expert is dated April 17, 1995. The Insurer, however, first retained an accountant on August 9, 1995 (with the arbitration scheduled to commence on August 23, 1995).

As noted above, Mr. Smith's request for information from the Applicant by letter dated August 11, 1995, was fully responded to by letter dated August 18, 1995. Mr. Smith was further allowed to fully review Mr. Murray's source documents.

Wawanesa's counsel subsequently corresponded on September 7, 1995, that if the Applicant was able to demonstrate that his "deposits over and above his stated invoices were loans from friends and family" for certain specified months, then his benefit would be roughly that calculated by the Applicant's accounting expert.

Mr. Murray's counsel responded by letter dated September 18, 1995, enclosing the extremely detailed schedule noted above.

For reasons never disclosed, the Insurer did not immediately forward on to Mr. Smith the information it had requested. In fact, Mr. Smith closed his file. Only in April 1996, on the eve of the rescheduled arbitration hearing, did the Insurer provide the deposit information to Mr. Smith, some seven months after it was received. Wawanesa however failed to clarify to Mr. Smith that the company had only requested information for certain months, allowing Mr. Smith to come to a mistaken conclusion.

Mr. Smith agreed at the arbitration hearing that the income and expense numbers in the Applicant's documentation added up. His concerns however, as set out above, were whether the Applicant had correctly identified all post-accident income and whether the expenses claimed were personal or business-related.

Wawanesa, however, had ample opportunity to investigate Mr. Murray's income and expenses. Wawanesa was provided with all the information which it, and its accounting expert requested. If Wawanesa indeed had concerns about any particular item, it failed to seek any further explanation or clarification. No evidence was presented at the arbitration hearing that Mr. Murray was lying about any expense or income item. On cross-examination concerning expenses, Mr. Smith acknowledged that he had nothing to suggest that Mr. Murray was not telling the truth. No single expense or income item (other than capital items which was agreed to) was successfully challenged by the Insurer. No evidence of any misrepresentations in the Applicant's documents was presented.

I find that Wawanesa's position on the quantum issue was guided not by reason, but by unyielding inflexibility. I find that Wawanesa had made up its mind that Mr. Murray was entitled only to the minimum weekly income benefit,³³ and closed its mind to any evidence to the contrary. This is entirely contrary to the continuing contractual obligation owed by an insurer to an insured person. I agree with the comments of Director's Delegate Naylor's that:

The principles governing statutory accident benefits reinforce insurers' obligations to give full and fair consideration to every claim, and if claims are denied, to take a fresh look if new information is available or circumstances may have changed.³⁴

Accordingly, I find that Wawanesa unreasonably withheld payment of the higher weekly income benefit to which Mr. Murray was entitled.

(c) Entitlement to Weekly Income Benefit

Senior Arbitrator Rotter held that "a reasonable course of action includes providing some advance notice to the insured person"³⁵ that benefits are going to be terminated. In this case the Insurer sent its notice of termination almost two weeks after benefits were terminated.

Wawanesa's termination letter dated November 18, 1993 says:

According to the assessment, you are able to do sedentary type work. This means you should be able to do many of the related tasks of your job as a multimedia artist and producer. Therefore we have ceased disability benefits to you as of November 5, 1993.

This letter did not provide Mr. Murray with a copy of the Riverfront assessment, upon which the Insurer was relying. As noted above, the Riverfront report referred to in this letter does not indicate that any of Mr. Murray's work as a multimedia artist was sedentary in nature. In addition, the Riverfront report states that Mr. Murray does not meet most of the job requirements of his work, including sitting, standing, handling and fingering. I find that Wawanesa misstated the contents of this report to Mr. Murray.

Wawanesa also misstated the entitlement test after 156 weeks. The question is not whether an insured can do some or even many of "the related tasks" of one's job, but whether the insured is unable to engage in any occupation or employment for which he or she is reasonably suited, as defined. An occupation or employment means the job considered as a whole, including reasonable hours and productivity,³⁶ not piecemeal aspects of the job.

The Applicant testified that after receiving the termination letter, he phoned Mr. Christodoulou. The adjuster told him that none of his clients received weekly income benefits after three years, and that if Mr. Murray couldn't work, then he could go on welfare. Mr. Murray also indicated that Mr. Christodoulou stated to him that as Mr. Murray had only been receiving $185.00 a week in weekly income benefits, he should not be concerned about what occupation he went back to.

This evidence is hearsay, which although allowed in arbitration proceedings, must be properly weighed. I found Mr. Murray to be a very credible witness. No one was called from Wawanesa to contradict these statements, from which I draw an adverse inference. No notes from the adjuster's file countering this allegation were filed. I therefore accept, on the balance of probabilities, that the above statements were indeed made to Mr. Murray by the adjuster. By letter of November 18, 1993, the Insurer writes Mr. Murray that it would: "also assist you in enabling you to find related work in your field if you so desire." This letter appears to accept that the Applicant could not do his former work. There is, however, no indication in the letter of what "related work" might be appropriate.

Lindsay Morden state in their initial assessment January 19, 1994 that "the focus of the client's rehabilitation is a return-to-work in the client's field as was instructed by the account." The consultant's actual focus appears to have been investigation and surveillance (being interested with whether Mr. Murray took out the garbage or whether he had to lie down during a meeting). The rehabilitative initiative seemed to me to be guided more by the desire to justify a past decision, rather than provide any meaningful rehabilitative assistance.

I find that when benefits were terminated, Wawanesa knew that the medical evidence was consistent that Mr. Murray could not engage either in his former work as a multi-media artist or in the occupations identified in the Riverfront report which, viewed fairly and realistically, were appropriate to Mr. Murray. In addition, I find that Wawanesa was unable to identify any employment for which Mr. Murray was reasonably suited. Notwithstanding this, Wawanesa, without any advance warning, terminated weekly income benefits to its insured, misstating to Mr. Murray both its contractual obligations and the evidence upon which it was relying.

I can only therefore come to the conclusion that the remarks attributed to Mr. Christodoulou reflects the pre-set intention of Wawanesa in this case to refuse further payment of Mr. Murray's weekly income benefits, regardless of the evidence, including that of their own experts. This amounts to a derogation of their obligation to fully and fairly consider every claim.

Accordingly, I find that the Insurer has unreasonably withheld payment of weekly income benefits after November 5, 1993.

(d) Requirement to forthwith give written notice to the insured person giving the reasons for the refusal

Section 24(8) of the Schedule provides:

If the insurer refuses to pay an amount claimed in an application for no-fault benefits, the insurer shall forthwith give written notice to the insured person giving the reasons for the refusal. [emphasis added]

By letter dated September 14, 1995, the Applicant's counsel submitted to Mr. Christodoulou of Wawanesa a statement of outstanding medical expenses totalling $7,275.09, consisting of five single-spaced typed pages of items detailed by date, description and cost (divided by the principal amount, PST, and GST), together with some 47 pages of supporting documentation. Mr. Murray testified that when he received no response to this correspondence, he phoned Wawanesa, but was unable to reach the adjuster. His messages were not returned.

Mr. Murray's counsel also left a message for the Insurer, which was not returned. He then forwarded a further letter to Mr. Christodoulou dated January 3, 1996, indicating that Mr. Murray was in significant financial difficulty, and that the delay in payment was exacerbating his condition.

Wawanesa's response was a letter dated January 18, 1996 indicating that they did not have on file the Applicant's September 14, 1995 letter.

By letter dated February 16, 1996, the Applicant resubmitted to Wawanesa, by courier, the itemized list of outstanding expenses and copies of the supporting documentation. Faxed confirmation of receipt from Wawanesa was requested, as well as either payment of the amount claimed, or identification of which claims were being denied. Wawanesa did not respond.

On March 11, 1996, Mr. Murray's counsel wrote to the Insurer's earlier counsel setting out the above history. Mr. Murray's uncontradicted evidence was that there had been no response by Wawanesa.

Mr. Murray testified that Wawanesa has not paid for any medical expenses since August or September 1994. This was not challenged by the Insurer. The Insurer's own Correspondence Brief indicates that the last cheque went out to Mr. Murray sometime prior to November 10, 1994.

By failing to comply with the provisions of section 24(8) of the Schedule and forthwith provide written notice to Mr. Murray of its refusal and the reasons for the refusal to pay any amount claimed, I find that Wawanesa has unreasonably withheld payments.

(e) Amount:

Having found that Wawanesa unreasonably withheld or delayed payments, I find that Mr. Murray is entitled to a special award. I have discretion as to the amount of the award, up to a maximum of 50% of the amount owing at the time of this decision "together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of two per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule."

This provision is ambiguous. It is unclear whether the compound interest is part of that figure against which a maximum of 50% is to be applied, or is over and above that amount. I agree with Arbitrator Sampliner that the latter interpretation:

limits the arbitrator's ability to adjust the size of the award to fit the insurer's conduct. Such a limitation of the arbitrator's ability to assess and control the size of the award is, in my opinion, repugnant to the intent of section 282(10) within the framework of the no-fault scheme.³⁷

I therefore agree with Arbitrator Sampliner that the arbitrator's discretion is to award up to 50 per cent of:

benefits awarded + two per cent simple interest under section 24(2) + two per cent compound interest.

In exercising my discretion, I am guided by the comments of Senior Arbitrator Rotter that:

a special award, if ordered, must be substantial enough to have a deterrent effect. It should be more than a nominal amount, which could be viewed as a licence to act unreasonably.³⁸

I find that a purpose of the special award is to discourage insurers from failing to meet their contractual and statutory obligations to their own insureds. In this case, I find that Wawanesa exhibited following the third anniversary of the accident, an inflexible, unyielding, and cavalier attitude in considering and performing its contractual obligations towards its own insured.

A mitigating factor is the Applicant's failure to provide at an early date, the requested documentary evidence of its quantum claim. While this justified caution on the part of the Insurer, it did not excuse what I find to be a failure to "fairly re-evaluate" Mr. Murray's claim "in light of the new information provided."³⁹

I do not accept the submission that the Insurer's counsel's actions should be taken into account in making a special award. I find that he conducted himself in a professional manner and should not be faulted for vigorously defending his client's position.

I was provided with the decision of Whiten v. Pilot Insurance Company (1996), 15 L.W. 1539-036, in which Justice Matlow considered the net worth of the Defendant in not taking issue with the jury's punitive damage award of $1,000,000. Justice Matlow states that:

a very substantial award for punitive damages was required to punish the defendant and to effectively send the implied reminder to the defendant and to other insurers that they owe their insureds a duty of good faith in responding to claims made under policies of insurance issued by them.

I agree with Senior Arbitrator Rotter that the criteria necessary to establish punitive damages "goes considerably beyond"⁴⁰ [emphasis added] the basis upon which a special award may be made. I find however that as deterrence is one factor considered by Senior Arbitrator Rotter, that the effect on the Insurer is a factor which can be considered in determining the appropriate quantum of the special award. However, no evidence was presented to me in this case as to the net worth of this Insurer.

The effect of the Insurer's unreasonable withholding or delaying of payments on the Applicant is also a factor to be taken into consideration in making a special award.

Mr. Murray testified that the failure of the Insurer to reimburse his medical expenses adversely affected his ability to obtain pain relief and treatment. Eventually he was forced to go on welfare to get a drug card. Mr. Murray testified that on more than one occasion welfare terminated his benefits on the basis that he should be receiving monies from the Insurer. An assignment to welfare has been signed by Mr. Murray.

Mr. Murray testified that as a result of his disability and the Insurer's withholding of benefits, he was forced to sell his house and is now in public housing. He has had to sell tools and part of his collection. He has borrowed from about 40 different relatives, friends, and non-profit organizations in order to survive. He testified of a life hounded by creditors. Numerous demand letters were filed in this regard.

The unreasonableness of the Insurer in this case in withholding certain payments is significant. It is not however the worst imaginable case meriting a 50 per cent award. The total award of benefits in this case, including interest pursuant to section 24(4) of the Schedule, is in excess of $100,000.00. Taking into consideration the factors enumerated above, I find that a special award of a lump sum of $25,000.00, which amounts to less than 25% of the outstanding benefits, simple interest and the compounded interest under section 282(10) of the Act, is appropriate in both absolute and relative terms, in the circumstances of this case.

Expenses:

In this case I am satisfied that Mr. Murray is entitled to his expenses in accordance with Section F of the Dispute Resolution Practice Code, effective August 1, 1995 and Ontario Regulation 664, R.R.O. 1990. If the parties are unable to agree on the expenses payable, they may apply to the Commission to have the expenses assessed.

Order:

1. Wawanesa shall pay Mr. Murray weekly income benefits subsequent to November 5, 1993.

2. Wawanesa shall pay Mr. Murray weekly income benefits as follows:

November 6, 1990 to November 5, 1991

$532.26

November 6, 1991 to November 5, 1992

$501.30

November 6, 1992 to November 5, 1993

$492.90

November 6, 1993 to November 5, 1994

$361.67

Mr. Murray is entitled to the minimum weekly amount of $185.60 thereafter, subject to variance in accordance with the method of calculation accepted herein. Should the parties be unable to resolve between themselves the question of ongoing quantum, a resumption of the hearing may be scheduled before me, pursuant to section 60.1(b) of the Dispute Resolution Practice Code.

3. Wawanesa shall pay Mr. Murray:

(a) the sum of $11,176.15 incurred in respect of massage therapy administered by David Slabotsky, R.M.T.

(b) the sum of $2,593.30 incurred in respect of taxi transportation to medical appointments.

4. Wawanesa shall pay Mr. Murray a special award in the lump sum of $25,000.00, inclusive of interest.

5. Wawanesa shall pay Mr. Murray interest on overdue payments in accordance with section 24(4) of the Schedule.

6. Wawanesa shall pay Mr. Murray his expenses incurred in respect of this arbitration proceeding.

August 23, 1996

Lawrence Blackman Arbitrator

Date

SCHEDULE A - EXHIBITS

1. Productions Brief.

2. Medical and Rehabilitation Benefits in Dispute Brief.

3. Arbitration Medical Brief.

4. Correspondence Brief.

5. Motor Vehicle Accident Report, November 6, 1990, Accident Number 54737.

6. Ian Murray, Income Accounting, 1989 to 1994 inclusive.

7. Report of Mr. Clive G.M. Barker, C.A., dated April 17, 1995.

8. Report of Mr. Clive G.M. Barker, C.A., dated August 15, 1995, and curriculum vitae.

9. Copy of letter from the Ontario Arts Council, dated April 29, 1996, and enclosure entitled "Electronic Media Grants - Guide to Applicants."

10. Correspondence Brief - Volume II.

11. Seven Tax Accounting Summaries prepared by Mr. Ian Murray, 1989 to 1994 inclusive.

12. Copies of letters from Artscape dated December 13, 1994, March 17, 1995 and April 19, 1996; Bell Canada dated October 30, 1992, December 11, 1992 and January 5, 1993; Diner's Club International - en Route dated July 19, 1994 and April 12, 1996; Mr. Carlos Vizueta dated March 6, 1995; Goldlist Property Management dated September 22, 1995 and undated notice; Eaton's dated February 14, 1996 and Unitel dated September 9, 1993.

13. Copy of article entitled "Drug-Induced Headache" by Dr. Ninan T. Mathew.

14. Copy of Figure 183, page 150, from "Manual Therapy for the Thorax", by Ms. Dianne Lee.

15. Report of Mr. Jeffrey C. Smith, C.A., dated September 6, 1995.

16. Report of Mr. Jeffrey C. Smith, C.A., dated April 29, 1996.

17. Correspondence Brief - Volume III.

18. Summary filed by Mr. Murray, entitled "Ceasing Expenses."

19. Summary filed by Mr. Murray, entitled "No Ceasing Expenses."

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. 2Ergos Evaluation Summary Report, Exhibit 1, "B", Tab 5, at page 2.
3. 3Sunnybrook Health Science Centre note, November 12, 1990, Exhibit 1, Tab "A"/1.
4. 4March 18, 1991, Exhibit 1, Tab "A"/2.
5. 5August 30, 1991, Exhibit 1, Tab "A"/4.
6. 6June 16, 1992, Exhibit 1, Tab "A"/7.
7. 7November 2, 1992, Exhibit 1, Tab "B"/1.
8. 8Exhibit 1, Tab "B75 at page 12.
9. 9Exhibit 10, Tab 1.
10. 10Exhibit 3, Tab 3
11. 11As benefits are not paid for the first week of disability, Mr. Murray received benefits for only 155 weeks. I received no submissions as to whether "156 weeks" referred to in section 12(5)(b) means 156 weeks of disability, benefits, or calendar weeks. The submissions of counsel assumed that section 12(5)(b) was the applicable entitlement test for the entire period claimed. I therefore make no decision as to the meaning of "156 weeks".
12. 12Singh ibid, at page 20.
13. 13Gagnon and Jevco Insurance Company (May 1, 1996) OIC A-015357.
14. 14Gagnon, ibid, at page 5.
15. 15Wigle and Royal Insurance Company of Canada (January 12, 1996) OIC A-012312.
16. 16Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at page 329.
17. 17Caruso and Guarantee Company of North America (May 9, 1996) OIC A-006856.
18. 18Singh and State Farm Mutual Automobile Insurance Company (May 8, 1995) OIC A-005714
19. 19Spicer and State Farm Mutual Automobile Insurance Company (May 24, 1995) OIC A-010158.
20. 20Rodway and Royal Insurance Company of Canada (June 12, 1995) OIC A-007593.
21. 21Mills and Canadian General Insurance Company (July 6, 1995) OIC A-005599 and Reid and Continental Insurance Company (July 27, 1995) OIC A-006022.
22. 22Spicer, ibid.
23. 23See Exhibit 1, Part "B", Tab 4.
24. 24The statutory minimum is actually $185.60 per week.
25. 25September 7, 1995, Exhibit 10, Tab 2.
26. 26Exhibit 4, Tab 6.
27. 27Phillippe v. Royal Insurance Co. of Canada (January 24, 1994) OIC A-001736.
28. 28Kotak and CAA Insurance Company (Ontario) (December 20, 1995) OIC A-011445.
29. 29Gene Meandro and Pilot Insurance Company (June 7, 1994) OIC A-004433, pp. 10-11.
30. 30Plows and Jevco Insurance Company (January 16, 1992) OIC A-000175 and A-000588
31. 31Plowright and Wellington Insurance (October 29, 1993) OIC A-003985.
32. 32Exhibit 17, Tab 5.
33. 33He was actually paid 60 cents a week less than the minimum, which has never been remedied, although this was conceded by the Insurer.
34. 34Luke Offeh and Allstate Insurance Company of Canada, July 3, 1996, OIC P-006494, citing e.g. Zeppieri and Royal Insurance Company of Canada (February 17, 1994, OIC A-005237), affirmed on appeal (December 22, 1994, OIC P-005237).
35. 35Erickson and Guarantee Co. of North America, June 2, 1992, OIC File No. A-000560
36. 36Spicer, ibid, at page 20.
37. 37Beiler v. Alpina Insurance Co. (August 9, 1994) OIC A-003051.
38. 38Erickson and the Guarantee Company of North America (July 16, 1992) OIC A-000560.
39. 39Zeppieri and Royal Insurance Company of Canada (February 17, 1994, OIC A-005237), affirmed on appeal (December 22, 1994, OIC P-005237), at page 13.
40. 40Ibid, at page 6.