Neutral Citation: 1996 ONICDRG 158

OIC: A-012031

ONTARIO INSURANCE COMMISSION

BETWEEN:

GEORGE A. KOTA

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, George A. Kota, was injured in a motor vehicle accident on June 3, 1991. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under Ontario Regulation 672.¹ Wawanesa paid Mr. Kota income benefits of $600.00 per week. These benefits were terminated on June 3, 1994. The parties agreed that Mr. Kota should have been paid until June 10, 1994. Mr. Kota seeks a reinstatement of his weekly income benefits for the period from June 11, 1994 onwards. Mr. Kota also seeks a special award, interest and expenses.

The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:

1. Is Mr. Kota entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from June 11, 1994 onwards?

2. Is Mr. Kota entitled to receive a special award pursuant to section 282(10) of the Insurance Act?

The Insurer agreed to pay Mr. Kota interest on any benefits owing and his expenses of this proceeding.

Result:

1. Mr. Kota is not entitled to further weekly income benefits after June 11, 1994 pursuant to section 12(5)(b) of the Schedule.

2. Mr. Kota is not entitled to a special award pursuant to section 282(10) of the Insurance Act.

3. Mr. Kota is entitled to his expenses of this proceeding.

Hearing:

The hearing was held in North York, Ontario, on April 22, and 23, 1996, before me, Fern Kirsch, Arbitrator.

Present at the Hearing:

Applicant:

George A. Kota

Applicant's Representative:

Robert A. Besunder, Barrister and Solicitor

Insurer's Representative:

Gregory P. Heckel, Barrister and Solicitor

Witnesses:

George A. Kota

Exhibits:

20 Exhibits were filed in this proceeding

Other documentation before the Arbitrator:

Application for Arbitration dated March 15, 1995

Response of Insurer dated April 21, 1995

Mediation Report dated September 23, 1994

Prehearing letter of Arbitrator Robinson dated July 13, 1995

Decision on a Preliminary Issue of Arbitrator Baltman dated December 22, 1995

ENTITLEMENT

Background:

Mr. Kota is 34 years of age. He was self-employed as a drywaller in the construction industry at the time of the motor vehicle accident on June 3, 1991.

Mr. Kota was paid weekly income benefits pursuant to section 12 of the Schedule until June 3, 1994. The parties agreed that Mr. Kota should have been paid until June 10, 1994. The issue in this application is whether Mr. Kota is entitled to weekly income benefits from June 11, 1994 onwards, pursuant to section 12(5) of the Schedule.

Section 12(5) of the Schedule provides that Wawanesa is not required to pay a weekly income benefit for any period in excess of 156 weeks unless it has been established that the injury from the motor vehicle accident continuously prevents Mr. Kota from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

The accident and its aftermath:

On June 3, 1991, Mr. Kota was driving through an intersection on a green light when another vehicle passed through a red light, causing the accident. On impact, Mr. Kota's car spun around and hit a metal pole. Both cars were totally destroyed.

Mr. Kota testified that even with his seatbelt on, he was thrown around in his car. He stated that his body moved sideways and hit the dash and the window. He was cut on his face and lips. In addition, Mr. Kota testified that he held on to the steering wheel in such a way as to injure his right shoulder and arm. He also suffered a whiplash injury to his neck. Mr. Kota testified that he lost consciousness immediately after the accident.

Mr. Kota did not attend at the hospital, although an ambulance was called for the occupant of the other vehicle.

Mr. Kota attributes other injuries which developed over time, to the accident. These include pain in his mid and lower back, headaches, depression, lack of motivation and self-confidence, and difficulty sleeping.

Mr. Kota indicated that his complaints were continuing at the date of the hearing.

Education, Training and Experience:

Mr. Kota has the equivalent of two years of University education in computer science and business, in addition to high school. Mr. Kota has no other formal education.

Mr. Kota has a varied work history. He worked as a computer operator and data entry clerk for about three years with a firm that processed seismic data. In this position, Mr. Kota mounted computer tapes to process data, and performed regular computer room maintenance. Mr. Kota has also processed work orders by computer, and worked at a credit agency where he verified credit limits to merchants by computer. These latter positions were part-time jobs.

Mr. Kota testified that he has an aptitude for music. He has played keyboards and guitar in a five person band, although he had little training. He worked as a concert promoter for a band, locating performances and negotiating leases for expensive equipment.

In 1987, Mr. Kota's band broke up and its equipment was repossessed. Mr. Kota then worked as a keyboard and guitar player for another band, and tried to record an album with still a third band. Mr. Kota performed many duties for his own band, and these others. The duties included acting as a sound technician, loader, light show operator, stage hand and security co-ordinator. Mr. Kota was unable to earn a living in music, despite his professed love for the industry.

Mr. Kota learned the drywalling trade from his father who owned his own business. Mr. Kota started doing this work when he was in his teens, and often reverted to drywalling to make ends meet, especially while trying to earn a living in the music industry.

At the time of the accident Mr. Kota owned and operated his own fledgling drywalling company called Quality Interiors, which he had started sometime in 1989 or 1990. The majority of Mr. Kota's business in the year preceding the accident was performed as a subcontractor for a company called R-Zone Construction. In addition to Mr. Kota's work for R-Zone Construction, Mr. Kota worked for a few other contractors. He testified that he had no doubt that he would have been able to have a profitable career as a drywaller if the accident had not occurred.

Mr. Kota often had to estimate the cost of his materials and work, as a subcontractor. He testified he was experienced with the entire process of drywalling from the application of insulation to the finished job, but noted that he never learned to read building plans. He also had experience taping, plastering and preparing the drywalls into paintable form, painting and wallpapering.

Mr. Kota testified that as a drywaller, he was required to lift 4 foot by 8 foot heavy sheets of drywall either to the ceiling or walls. The drywall was affixed by way of nails or screws, and was then sanded, taped and resanded. Mr. Kota was required to move and climb scaffolding, climb ladders and often work with his arms above his head for long periods of time.

At the time of the accident, Mr. Kota was helping his father patent an environmental cleansing apparatus. He corresponded with various government agencies, performed filing, retained lawyers, responded to correspondence, made telephone calls and generally acted as his father's "patent agent." In performing this work, he was required to keyboard on a Macintosh computer using Microsoft Word, word processing software. Mr. Kota earned no income for this work.

Applicable law:

If Mr. Kota is to be successful in his claim for weekly income benefits for any period after June 4, 1994, he must establish that his injuries from the motor vehicle accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, according to section 12(5) of the Schedule.

The burden of proof is on Mr. Kota to prove with credible evidence on a balance of probabilities that he is disabled to the extent required by the section.

In my view, an Applicant must establish several things in order to meet the burden of proof. Firstly, he must establish what his residual impairments are, and that they are caused by the motor vehicle accident, if causation is in issue. Secondly, he must establish his education, training and experience. After this, an Applicant must prove that his injuries from the accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited.

I agree with the numerous decisions dealing with the criteria for examining whether any proposed employment is suitable. The criteria were summarized in Caruso² as follows:

• 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.³

• 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.⁴

• 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.⁵

• 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.⁶

Evidence and Findings:

Mr. Kota complained of injuries to his right shoulder and arm as a result of the motor vehicle accident. He also suffered a whiplash injury to his neck. Mr. Kota alto attributes other injuries which developed over time to the accident, including pain in his mid and lower back, headaches, depression, lack of motivation and self-confidence, and difficulty sleeping.

i) Mr. Kota's physical complaints

I found Mr. Kota to be a likeable, intelligent, individual. Nevertheless, he presented his evidence in an exaggerated, flamboyant and argumentative style. He had a tendency to testify based on self-diagnosis obtained through reading, and had a poor memory for dates and events. In addition, his evidence was inconsistent on several occasions. Accordingly, I did not find him a credible witness. Mr. Kota was the only witness who testified in this proceeding. Accordingly, where Mr. Kota's evidence differs from the objective findings in the documentary evidence, I rely on the documentary evidence over that of Mr. Kota.

Shortly after the accident on June 3, 1991, Mr. Kota saw his family doctor, Dr. G. Farago. He reported on June 19, 1991 that Mr. Kota was suffering from musculo fascial sprain and strain in the cervical spine and right shoulder.⁷ Dr. Farago sent Mr. Kota for x-rays, which came back negative and physiotherapy which lasted approximately three months.⁸ The physiotherapy consisted of ultrasound, heat, cold and a TENS machine to his neck and shoulder.

Mr. Kota was seen by Dr. Kronby, a neurologist, at the request of Wawanesa on October 23, 1991. Dr. Kronby also diagnosed myofascial pain in the neck and right shoulder with right shoulder joint dysfunction. He opined that Mr. Kota's injuries were directly attributable to the motor vehicle accident of June 3, 1991.

Mr. Kota was referred to Accident Rehabilitation Centre Inc. ("ARC") where he was assessed on January 21, 1992.⁹ It is unclear who referred Mr. Kota to ARC as Dr. Kronby specifically stated that he did not make the referral.

ARC completed a physical demands analysis of Mr. Kota's job as a drywaller. It assessed Mr. Kota's movement in his neck and arms. ARC found that Mr. Kota exhibited a mild dysfunction. ARC confirmed that Mr. Kota's job consisted of lifting and carrying more than 20 lbs, prolonged standing and sitting, reaching above the shoulders, walking and climbing. Similarly, it concluded that Mr. Kota suffered from myofascial pain syndrome of the cervical spine. ARC concluded that "it is obvious that due to increased physical demands in his job this patient is disabled and has not been able to return to work thus far."¹⁰ It suggested that Mr. Kota attend a four week functional restoration treatment program at ARC.

Mr. Kota attended an exercise program at ARC from February 3, 1992 until April 9, 1992. He testified that while using the apparatus at the program he experienced back pain for the first time. There is some evidence that Mr. Kota withdrew from this program without completing it, however this is unclear.¹¹

Wawanesa submitted that Mr. Kota injured himself on the apparatus at ARC, and accordingly his back pain does not result from the accident. I do not accept this submission, as no evidence supports this view. Although Mr. Kota's back injuries were not initially diagnosed, he had no past history of back pain or arm pain. Mr. Kota testified that during the accident his body was twisted about in the car. I find it reasonable to conclude in all the circumstances, that Mr. Kota's back injury was sustained in the motor vehicle accident, and that he became more aware of it while he was using the apparatus at ARC.

Dr. Farago referred Mr. Kota to Dr. R.K. Chow, a physiatrist whom he saw on March 10, 1992. In his report of April 21, 1992,¹² Dr. Chow noted tenderness in the "midline of the cervical spine, upper thoracic spine, paraspinal muscles of the neck and back and shoulder girdle on right side--especially in the medial aspect of the scapula." Dr. Chow also diagnosed myofascial strain. He confirmed that "all the activities of his job will certainly create sufficient stress and strain over the neck and shoulder--thereby exacerbating his pain." He went on to recommend that Mr. Kota look for a "light sedentary job." He suggested that Mr. Kota should keep active and do regular neck and shoulder exercises and physiotherapy.

Dr. Chow performed a reassessment of Mr. Kota on September 25, 1992.¹³ He noted that Mr. Kota continued to have "intermittent right shoulder and neck pain on and off" and that he had a recent onset of back pain in the lumbar area. Dr. Chow's report noted that the neurological examination was intact and there was no spinal deformity. Dr. Chow concluded that Mr. Kota had "residual soft tissue strain of the neck and shoulder girdle" and suggested that he would benefit from a work assessment for his work capabilities and tolerance. He agreed with the recommendation that Mr. Kota attend the F.I.T. For Work Centre.

Wawanesa sent Mr. Kota to the F.I.T. For Work Centres for an evaluation on December 7, 1992.¹⁴ The evaluation report was completed by Ricardo Tarzia, physiotherapist, and Leslie Johnson, occupational therapist and is dated December 18, 1992.

The F.I.T personnel confirmed Mr. Kota's complaints of pain in his neck, shoulder, upper thoracic and lumbar spine, headaches, and difficulty sleeping. They also performed a job demands analysis of Mr. Kota's job as a drywaller.

F.I.T. concluded that Mr. Kota remained functionally limited and confirmed that he would benefit from a functional restoration program. Their recommendations and findings were approved by Dr. K.M. Rittenberg, their medical consultant.¹⁵

Mr. Kota commenced an intensive functional restoration program at F.I.T. in January 1993. The F.I.T. report dated March 1, 1993 states that Mr. Kota put forth a moderate effort in the program. He was involved in a physical conditioning program designed to improve his flexibility, strength and cardiovascular endurance. His level of performance increased only slightly during the work fitness sessions. As Mr. Kota was not making significant functional gains, he was discontinued from the work fitness component of the program.

The Insurer hired Lindsey Morden Health and Rehabilitation Services to work with Mr. Kota. The rehabilitation consultant, Lori Atwood requested that Ms. S. Marjoribanks, an occupational therapist with the Ontario March of Dimes, perform a Physical Capacities Assessment on Mr. Kota on July 20-22, 1993, to determine Mr. Kota's capacity to return to work as a drywaller.¹⁶

Ms. Marjoribanks acknowledged that although Mr. Kota's attendance and punctuality were poor, he "appeared to be giving maximum effort on all activities." She noted that he demonstrated some restrictions in body mobility and lifting and carrying. She also found that Mr. Kota's job required medium physical activities. She found that Mr. Kota met the light" physical classification, and he had restrictions in all his job requirements, with the exception of reaching, handling, fingering, feeling and seeing. She confirmed that some discrepancies remain between client's capabilities and the job requirements." She suggested that Mr. Kota required a continuing fitness and work-hardening program, or a monitored, graduated work trial before returning to full-time employment.

I find that the evidence is clear that Mr. Kota's physical injuries continued until June 1994. After this date the evidence as to the persistence of Mr. Kota's physical difficulties is less convincing.

As I noted earlier, Mr. Kota was contradictory and flamboyant in describing his medical problems. During his examination in chief he testified that the pain in his shoulder is not as severe as it was three months after the accident. He testified that he is able to reach up over his head, and lift light items. He confirmed that he is unable to lift drywall. Mr. Kota also confirmed that he has a better range of motion in his neck, and that he is better now than after the accident. He concluded that his neck stiffness is uncomfortable, but does not stop him from turning his head. He stated that he is concerned about turning his head quickly as he is afraid that he might injure himself. Later in his examination in chief he indicated that the pain in his neck feels like an "icepick," or like "needles." The pain is always different. The sensations are constant in the morning and at night, and if he does the wrong thing he is constantly reminded of his disability. Later on he indicated that since June 1994 his neck and shoulder pain has gotten better, but he was unable to lift with his right arm.

Mr. Kota stated that the injury to his shoulder initially caused him pain when he was reaching or lifting, but it got better as time went on. The pain had progressively lessened to the point where he is now able to reach up over his head and lift light items only. At no time did Mr. Kota state that he was free from pain in his shoulder and neck.

Dr. Train, a chiropractor, confirmed in his report of October 17, 1994 that as at October 12, 1994, Mr. Kota continued to experience sharp, recurring, piercing pain to the upper thoracic and lower lumbar spine. Dr. Train also noted pain and discomfort in the right shoulder upon exertion.

Mr. Kota changed family doctors to Dr. Dubins. Dr. Dubins, confirmed that Mr. Kota continued to experience pain in his right shoulder, upper back and neck to the date of his report of April 15, 1996.¹⁷ He confirmed that Mr. Kota had a complete range of motion in his neck and back but had some discomfort at the extreme end of the range of motion of these areas.

Mr. Kota testified that Dr. Oolo, Dr. Farago and Dr. Dubins suggested that if he overstressed his injury he would reinjure himself. No documentary evidence confirms this.

Mr. Kota's testimony that he experienced ongoing pain in his right shoulder and neck was supported by the uncontradicted evidence of his chiropractor Dr. Train, and his family doctor, Dr. Dubins. I find that Mr. Kota suffered from pain in his right shoulder, neck, and back as a result of the accident as of the date of the hearing of this matter.

I heard some evidence that Mr. Kota is continuously prevented from returning to work as a drywaller. Certainly, Dr. Dubins noted in his clinical note dated August 1, 1995 that Mr. Kota had "persistent chronic back pain and headaches...avoid repetitive bending and/or lifting."¹⁸Nevertheless, I heard little evidence as to Mr. Kota’s functional limitations from the pain in his right shoulder, neck and back, after this date, and how these limitations continuously prevent Mr. Kota from engaging in any other occupation or employment for which he is reasonably suited by virtue of his educational or vocational background.

I cannot assume that the only suitable work that Mr. Kota can engage in is what he was doing at the time of the accident. Neither can I conclude, on the evidence before me, that all employment for which Mr. Kota is reasonably suited will have the same physical demands and requirements as his occupation as a drywaller. Mr. Kota failed to prove that he cannot meet the physical demands and requirements of the other employment from his past background for which he is reasonably suited. He failed to explore any other occupation or employment for which he is reasonably suited, nor has he shown that his injuries from the accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited.

Accordingly Mr. Kota has failed to meet the onus of proof under section 12(5)(b) of the Schedule, with respect to his physical problems, he is not entitled to receive further weekly income benefits from June 11, 1994. Mr. Kota’s claim for weekly income benefits at the rate of $600.00 per week for the period from June 11, 1994 onwards pursuant to section 12(5)(b) of the Schedule is dismissed.

ii) Mr. Kota's psychological complaints

Mr. Kota submitted that he suffers from depression, headaches, insomnia, lack of motivation and self-confidence which result from the accident. I do not agree for the following reasons.

He testified that he was depressed due to his pain and inability to work, and had extreme difficulties sleeping and thereby attending appointments. He started seeing a psychiatrist Dr. P.K. John for these difficulties on September 21, 1994 and continues to see him. He was a self-referred patient. Dr. John prescribed anti-depressant medication and other medication to assist him with his sleep.

Wawanesa submits that Mr. Kota's depression resulted from of a pre-existing personality disorder. It relies upon the report of Dr. A. Margulies.¹⁹ Dr. Margulies diagnosed Mr. Kota after meeting with him on November 17, and December 20, 1995 for approximately two and one half hours. Upon a review of Dr. Margulies report, I had difficulty ascertaining exactly why he reached the conclusions he did, and on what basis. Much of his report appeared to be based on conjecture only. On the other hand, Dr. John has been seeing Mr. Kota for several years.

Dr. John makes no findings of a personality disorder as found by Dr. Margulies. He confirms only that Mr. Kota was suffering from a major depression which is a significant factor in his continued inability to function adequately. He confirms that Mr. Kota has a variety of symptoms suggesting depression including headaches, feelings that life was not worth living, inability to sleep and suicidal thoughts. He confirms that the depression has also affected his motivation resulting in diminished interest and energy, and that from a psychiatric point of view his condition would prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training and experience.²⁰ I find that the evidence of Dr. John is more credible than that of Dr. Margulies. Accordingly, where their evidence differs, I accept the evidence of Dr. John over that of Dr. Margulies.

Mr. Kota confirmed that he was suffering from serious depression. He had lost most of his friends, his relationship with his girlfriend had ended and he became a recluse. He testified that he had no money and no life. His parents were tired of watching him and trying to motivate him. It is clear that Mr. Kota's depression was serious enough to merit long term psychiatric treatment and medication after the accident.

Accordingly, I find that Mr. Kota's lack of motivation and inability to attend appointments on time were as a result of his depression and the related symptoms. This depression continues to date.

Mr. Kota submits that his depression and associated symptoms were caused by the accident. He claims that he first started having problems with depression during the course of his treatment at F.I.T. between January 1993 and March 1993.

This is inconsistent with the F.I.T. report dated December 18, 1992 which indicated that Mr. Kota was not suffering from depression a month earlier. It confirmed that Mr. Kota was tested on the Beck Depression Inventory scale which is used to screen for depression, and there were no findings consistent with depression. In addition, the report noted that Mr. Kota denied cognitive or behavioural changes since the accident, although the report did note that Mr. Kota was having some difficulties getting motivated.

I find that Mr. Kota's complaints about depression did not arise until long after the motor vehicle accident. He then waited another year and a half before seeing Dr. John, whom he started seeing on his own, without a referral from his family doctor. He met with Dr. John initially on September 21, 1994.

The F.I.T. report notes that Mr. Kota had complained of headaches at the base of his skull, which lasted for two to three days when present. In addition, the F.I.T. report of March 1, 1993 states that Mr. Kota was having difficulty sleeping. Nevertheless, I find that these complaints could not have been too serious at this point, as Mr. Kota's family doctors did not document them. This finding is strengthened by the fact that Mr. Kota gave inconsistent evidence concerning the frequency of the headaches. On one occasion he stated that the headaches occurred every four to six weeks, or once or twice a week on occasion. On cross-examination he variously testified that his headaches were several a week, to a couple a month.

Dr. Farago, Mr. Kota's first family doctor did not document headaches until February 2, 1993, and Dr. Dubins did not note headaches until January 17, 1995.

Dr. John's evidence that Mr.Kota was suffering from sleep difficulties was confirmed by Dr. J. Dubins, Mr. Kota's present family physician. He documented insomnia and headaches from January 17, 1995 until March, 1996.²¹ He found that Mr. Kota had chronic myofascial strain pain syndrome and noted that his "depression is secondary to this because of his anger and frustration." Dr. Dubins made this link between Mr. Kota's chronic myofascial strain pain syndrome and his depression in his very short report of April 15, 1996. He also stated that Mr. Kota's poor motivation, tardiness and insomnia were due in part to his headaches and omnipresent pain in his right shoulder and upper back and neck. These links were unsubstantiated in the report.

I have reviewed Dr. John's notes for the period from October 13, 1994 until August 22, 1995. Dr. John did not appear to link Mr. Kota's depression to his injuries from the car accident. As Dr. John did not note any particular link between Mr. Kota's chronic myofascial strain and his depression in the time period before Dr. Dubins' report, I have difficulty accepting Dr. Dubins' conclusion in this regard. This is further substantiated by Dr. John's note on the Medical Report filed pursuant to the General Welfare Assistance Act. He was asked whether in his opinion Mr. Kota's depression limited his motor activities. In response to this question he noted that they should check with the family doctor.

I find that insufficient evidence links Mr. Kota's depression and associated complaints (headaches, lack of motivation and self-confidence and insomnia) to the accident. Accordingly, I find that they are not injuries that Mr. Kota sustained as a result of the accident.

SPECIAL AWARD

Mr. Kota seeks a special award under section 282(10) of the Insurance Act on the ground that Wawanesa unreasonably withheld or delayed the payment of his weekly income benefits.

Section 282(10) states:

(10) 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 No-Fault 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.

[emphasis added]

Cases at the Commission have held that a special award can only be granted in cases where benefits are found to be due and owing. As no benefits were found to be owing in this case, no special award may be granted here.²² Even if I had found benefits were owing, the evidence was insufficient to justify a special award. Accordingly, Mr. Kota's claim for a special award is dismissed.

EXPENSES

Mr. Kota seeks an award of the expenses he has incurred in this arbitration. Under section 282(11) of the Insurance Act, an arbitrator may exercise discretion in awarding expenses. It has been held that it is appropriate to award an applicant his or her expenses unless it is established that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."²³

The parties agree, that Mr. Kota is entitled to his expenses in this case. Accordingly, I award Mr. Kota his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code. If the parties cannot agree on the total amount of expenses, either party may apply to the Ontario Insurance Commission for an assessment of the expenses.

ORDER:

1. Mr. Kota's claim for further weekly income benefits from June 11, 1994 onwards pursuant to section 12(5)(b) of the Schedule is dismissed.

2. Mr. Kota's claim for a special award pursuant to section 282(10) of the Insurance Act is dismissed.

3. Mr. Kota is entitled to his expenses of this proceeding.

September 20, 1996

Fern Kirsch Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term Schedule" will be used to refer to Regulation 672.
2. 2Caruso and Guarantee Co. of North America (May 9, 1996), OIC A-006856 (at page 29).
3. 3Sandra Singh and State Farm Mutual Automobile Insurance Company (May 8, 1995), OIC A-005714
4. 4Spicer and State Farm Mutual Automobile Insurance Company (May 24, 1995), OIC A-010158
5. 5Rodway and Royal Insurance Company of Canada (June 12, 1995), OIC A-007593
6. 6Mills and Canadian General Insurance Company (July 6, 1995), OIC A-005599 and Shirley A. Reid and Continental Insurance Company (July 27, 1995), OIC A-006022.
7. 7Exhibit 5.
8. 8Exhibit 8, page 2.
9. 9Exhibit 8.
10. 10Exhibit 8, page 3.
11. 11Exhibit 9, March 1, 1993 letter, page 3.
12. 12Exhibit 7, page 4.
13. 13Exhibit 7.
14. 14Exhibit 9.
15. 15Exhibit 9, December 21, 1992, correspondence.
16. 16Exhibit 12.
17. 17Exhibit 14.
18. 18Exhibit 14.
19. 19Exhibit 20.
20. 20Exhibit 15.
21. 21Exhbit 14.
22. 22Whitney and Cooperators General Insurance Company (March 31, 1993), OIC A-001005, page 19.
23. 23McCormick and Economical Mutual Insurance Company (OIC A-000139, October 2, 1991)