Neutral Citation: 1996 ONICDRG 164

OIC A-009670

ONTARIO INSURANCE COMMISSION

BETWEEN:

NORMAN LUCAS

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Norman Lucas, was injured in a motor vehicle accident on October 6, 1990. He applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under Ontario Regulation 672.[1] Weekly income benefits were terminated by Dominion on November 4, 1993. The parties were unable to resolve their disputes through mediation and Mr. Lucas applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits after November 4, 1993 under section 12(5)(b) of the Schedule?

2. What is the correct amount of weekly benefits to which the Applicant is entitled under section 12 of the Schedule?

3. Is the Insurer entitled to repayment of any weekly benefits overpaid, under section 27(1) of the Schedule?

4. Is the Applicant entitled to payment of his expenses for an academic upgrading program sponsored by John Molenaar, under section 6(1)(f) of the Schedule?

5. Is the Applicant entitled to reimbursement of his arbitration expenses incurred, under section 282(11) of the Act?

6. Is the Insurer entitled to reimbursement of its assessment of $2,000, under section 282(11.2) of the Act?

Mr. Lucas also claims interest on any overdue benefits.

At the pre-hearings and interim benefits motion, the parties had identified an additional issue regarding mileage allowance for massage therapy. This was no longer in dispute by the time of the hearing.

Result:

1. The Applicant is not entitled to weekly income benefits after November 4, 1993.

2. Between October 13, 1990 and November 4, 1993, the Applicant was entitled to weekly benefits at the rate of $252.93.

3. The Insurer is not entitled to repayment of benefits overpaid.

4. The Applicant is not entitled to rehabilitation benefits relating to the claimed academic upgrading program.

5. The Applicant is entitled to half his arbitration expenses.

6. The Insurer is entitled to an award of $1,000 under section 282(11.2) of the Act.

Hearing:

The hearing was held in Orillia, Ontario on May 23 and 24, 1995 and in North York, Ontario on October 16, 17, 18 and 19, 1995 and November 3, 1995, before me, Nancy Makepeace, arbitrator.

Present at the Hearing:

Applicant:

Norman Lucas

Mr. Lucas's

Tyler P. Higgins

Representative:

Barrister and Solicitor

Dominion's

Joan Takahashi

Representative:

Barrister and Solicitor

Dominion's

Ann Baumgartner

Officer:

Claims Manager

Suzanne Young

Claims Representative

Witnesses are listed in an appendix to this decision. Twenty-eight exhibits were filed.

The proceedings were transcribed by Chris Bertrand, of Legal Reporting Services (May 23 and 24, 1995) and Frances Wilson, of Viva Voce Verbatim (October 16, 17, 18 and 19, 1995).

The Applicant's application for interim benefits was denied in my earlier decision dated March 23, 1995.

Background:

The Applicant, Norman Lucas, is a 37-year old married man and father of three children. He resides in Kirkfield, Ontario. On the evening of Saturday, October 6, 1990, he was driving his motorcycle along a highway when a glass bottle - a beer bottle or pop bottle - was thrown out of the car ahead of him. The bottle struck the visor of the Applicant's helmet and forced him backwards. He was able to maintain control of the bike, but he drove off the road through a ditch, and stopped in a parking lot, dropping his motorcycle. After a short time, he chased after the car and recorded its licence plate, then went home.

The Applicant felt neck pain immediately after the accident. The next day, his pain got worse, and he developed a severe headache.

On October 9, 1990, the Tuesday after Thanksgiving, the Applicant returned to his job as a lumber clerk at Minden Home Hardware. When he tried to shelve a box of ceiling tile, he felt sick to his stomach, and left work. The Applicant has not returned to work since that time.

The Applicant claims that shortly before the accident, he had accepted an offer to work as a construction supervisor with Verly Construction Group Inc. ("Verly"), and was scheduled to start work on October 15, 1990. Following its investigation, the Insurer paid weekly benefits at the maximum rate of $600 based on the salary the Applicant would have received from Verly. The Insurer now claims that there was no job offer, and seeks repayment of overpaid benefits.

The Applicant claims that he continues to be disabled from working as a lumber clerk, a construction supervisor, or in any other suitable occupation because of ongoing neck, shoulder and arm pain, headaches, depression and post-traumatic stress syndrome ("PTSD") resulting from the accident. He seeks ongoing weekly benefits of $600 from the date of termination. He also seeks vocational retraining to be paid for by the Insurer. His proposal is that John Molenaar, an architect, should train him on a private basis as an architectural technologist.

The Offer of Employment:

At the time of the accident on October 6, 1990, the Applicant had been working at Minden Home Hardware for several months. The employer's payroll records indicate that the Applicant earned $8 an hour, and generally worked 40 hours a week, for a gross weekly income of $320. The Applicant claims that a few days before the accident, he had accepted a new job as a construction supervisor with Verly, and was scheduled to start that job on October 15, 1993 at an annual salary of $52,000.

Further to section 12 (2)1iii of the Schedule, if the Applicant establishes his entitlement "to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing," he is entitled to weekly benefits at the maximum rate of $600 based on the job offer, rather than the $252.93 weekly benefit to which he would otherwise be entitled based on his pre-accident job as a lumber clerk.[2]

The Applicant testified that he applied for the job at Verly in response to an advertisement in the Toronto Star. He telephone the number listed in the ad, and spoke to Richard Schlosser, president of the company. After one further telephone conversation, he attended at Verly's offices for an interview with Mr. Schlosser. Some time later, Mr. Schlosser called the Applicant and offered him the job. The Applicant accepted and they agreed that he would start work on October 15. After the accident, the Applicant telephoned Mr. Schlosser and told him he would not be able to work for him because of his injuries.

The only documentary evidence in support of the Applicant's testimony is a January 29, 1991 letter from Mr. Schlosser, on Verly letterhead,[3] stating that the advertisement was placed in the Star on Monday, September 18, 1990 and the interview took place on Friday, September 22, 1990. Mr. Schlosser confirms that he hired the Applicant to start work on October 15. He states that the Applicant called him on October 9 to tell him that he would not be able to do the job. A replacement was subsequently hired.

The Applicant also relied on the March 22, 1991 report of a private investigator, Peter McNulty, who interviewed Mr. Schlosser on the Insurer's behalf.[4] The Insurer increased the Applicant's benefits to $600 weekly on the basis of Mr. McNulty's investigation.

Clare Catania testified that she owns and operates Verly with her husband, Paul Catania. She testified that Mr. Schlosser was hired in August 1990 and left the company in the spring of 1991. According to Ms. Catania, Mr. Schlosser was president of the company in name only, and was given the title only because he insisted. His responsibilities included purchasing, sales, visiting work sites, managing the office and assisting Mr. Catania, who generally worked on site. According to Ms. Catania, Mr. Schlosser did not have signing or hiring authority. Ms. Catania testified that she had no knowledge of the January 29, 1991 letter from Mr. Schlosser on which the Applicant relied. She confirmed, however, that Verly had placed an ad for a construction supervisor in the fall of 1990, although she testified that the ad was placed in the Toronto Sun, not the Star. She also confirmed that Mr. Schlosser told her that the Applicant was scheduled to come in for an interview. However, she does not believe the interview ever took place, and her review of the company's records turned up only a note concerning the Applicant's initial phone call.

The Insurer filed an affidavit signed by Douglas Richardson, an articling student with the Insurer's counsel's firm. Mr. Richardson deposed that he had searched the advertisements in the Toronto Sun between September 5 and September 24, 1990, and in the Toronto Star between August 17 and September 24, 1990 and could find no ad from Verly.

The Applicant did not produce the advertisement, and could not remember any details about it. Nevertheless, I am prepared to accept that Verly advertised for and hired a construction supervisor some time in late 1990 or early 1991. The evidence of the Applicant, Mr. Schlosser, and Ms. Catania is consistent on this point, and I found Ms. Catania's account of the company's expansion at that time quite plausible. I also accept the evidence of the Applicant and Ms. Catania that the Applicant spoke to Mr. Schlosser about the job, and they arranged an interview.

The Applicant bears the onus of proving that he accepted a job offer from Verly before the accident. I find that he has not met that onus.

Ms. Catania was firm in her testimony that Mr. Schlosser did not have authority to hire. She also insisted that neither she nor her husband had any knowledge of the Applicant's having been hired. Even if I find that her involvement in the operation of the company was less than she claimed, and even if I significantly discount her hearsay testimony about her husband's knowledge of these events, this discrepancy calls for an explanation from the Applicant. The matter is further complicated by Ms. Catania's testimony that Mr. Schlosser left the company without notice and under a cloud as to his conduct while working for Verly. Moreover, Mr. Schlosser's statement to the investigator contradicted the Applicant's testimony on one significant point: whereas the Applicant testified that he was interviewed by Mr. Schlosser alone, Mr. Schlosser told Mr. McNulty that he and Mr. Catania did the interview together. Neither Mr. Schlosser nor Mr. Catania was called as a witness in these proceedings. In these circumstances, I place little weight on Mr. Schlosser's letter.

Since the offer of employment provision requires that the offer be "evidenced in writing," this disposes of the Applicant's claim with regard to the offer. In any event, in the absence of persuasive documentary evidence, the Applicant's claim depends almost entirely on his own credibility, and I did not find the Applicant's evidence credible because of a number of gaps and discrepancies.

1. The Applicant could not recall the address or describe the building where the interview took place. He could not remember the date or day of the week when the interview happened.

Mr. Schlosser stated in his letter that the interview took place on Friday, September 22. He told the same thing to the investigator, who correctly noted in his report that September 22, 1990 was a Saturday. The hardware store's records for that week show that the Applicant worked 8 a.m. to 5 p.m. on both the Friday and the Saturday of that week. However, the Applicant testified that the interview happened "after 4:30," and he could not remember when he left work. Mr. Pentney, the owner of the hardware store, was not aware of any arrangement for the Applicant to leave early that week. When asked whether he drove to the interview directly from Kirkfield (where he lives), the Applicant stated that he believed he might have stopped at his mother's home. I find this an odd thing for the Applicant to do after leaving work in Minden sometime in the late afternoon in order to drive to Mississauga for an important job interview.

2. When asked on cross-examination who chose the October 15 start date and when, the Applicant answered that he "believed" Mr. Schlosser said during the interview that he would need him "sometime in October." The Applicant could also not recall the date when the job was offered to him. This job would have been a significant advance for the Applicant, who had never earned anywhere near $50,000 previously. I would expect the Applicant to have a vivid recall of the details of the interview and the offer. But his testimony about these events was very vague and contrasted with his otherwise detailed testimony.

3. I would expect the Applicant to do everything possible to keep such a good job, despite his accident. Instead, he telephoned Mr. Schlosser with the bad news within days of the accident - on October 9, three days afterwards, according to Mr. Schlosser - although the job was not to start until October 15. The Applicant did not explain why he did not wait to see how he would feel by the 15th. When asked whether he requested a postponement of the start-date, the Applicant said "I believe I did." I think he would remember such a discussion. Moreover, Ms. Catania testified that Verly did hire a construction supervisor in November 1990, which suggests there was little urgency about the October 15 start date. I do not accept that the company would go through the hiring process in September, and do it again in November in order to avoid waiting a few weeks to see whether their first choice - the Applicant - would recover in a few weeks.

4. Ms. Catania testified that when the job was filled, the successful candidate was paid about $17 per hour for a week of about 50 hours on average (about $850 per week, $44,200 annually) and his employment lasted only for the duration of a particular project. Ms. Catania also testified that Mr. Schlosser was paid $750 per week. These figures are substantially lower than the $50,000 the Applicant claims he was offered. There are also significant discrepancies in the evidence as to the salary offered to the Applicant. In his direct testimony, the Applicant said he was offered $50,000. In cross-examination, he said $52,000. In his letter to the Social Assistance Review Board appealing the termination of his welfare benefits, he gave a figure of $53,000. He gave the same $53,000 figure to a Vocational Pathways caseworker in August 1993.[5] Also in the fall of 1993, he told the psychologists at the Sunnybrook Hospital Pain Clinic that the job would have paid $60,000 a year.[6] Mr. Schlosser's letter set out a figure of $52,800. The Applicant's counsel pointed out that even if the Applicant were only offered $750 per week, he would still be entitled to benefits at the maximum rate of $600 per week. I find that the discrepancies with respect to salary seriously undermine the Applicant's evidence that there was an offer at all. At the very least, they indicate that the parties had not reached agreement on salary - one of the essential terms of an employment contract.

5. The Applicant did not mention the Verly job at all in his Application for Accident Benefits[7] or his statement made to the adjuster, Nick van Kooten,[8] both of which referred only to the hardware store job, although they were prepared on October 25, only ten days after the Applicant would have started the Verly job. Mr. van Kooten testified that the Applicant did not mention the Verly job during their meeting. In response to his counsel's question, "Did you tell Mr. van Kooten about the job offer?" the Applicant said "I believe so." The Applicant also "believed" that he had given Mr. Schlosser's January 1991 letter to Mr. van Kooten. I found the Applicant to be intelligent, voluble, and keen to assert what he sees as his rights. Even if I accept that he may not have known, in the fall of 1990, that his benefits could be based on a job offer, I believe he would have expressed his disappointment at losing such a good job as a result of the accident. And though he may have been "glassy-eyed" on October 25, as Mr. van Kooten indicated, I find it significant that Mr. van Kooten was able to prepare a statement of about 800 words based on his interview with the Applicant. I am not persuaded that the Applicant's injuries or medications at that time would have prevented him from talking about the Verly job.

6. The only witness to corroborate the Applicant's testimony about the Verly offer was Jasmine Lucas, his wife. She recalled seeing the Verly ad and discussing it with her husband. She remembered that the Applicant spoke to Mr. Schlosser on the phone, then travelled to Mississauga for the interview. Ms. Lucas testified that she was present when Mr. Schlosser called the Applicant and offered him the job. She said that she and the Applicant were happy, and they discussed travel arrangements and the new clothing he would need for the job. Despite her clear interest in the outcome of this matter, I found that Ms. Lucas' testimony was plausible and had convincing detail. However, she, like her husband, was vague as to the date the job was offered and the date the Applicant was to start work. These are crucial matters since the offer must have been made and accepted before the accident, if it is to come within section 12(2)1iii.

Further, without persuasive evidence as to the basic terms of the employment contract - the salary and start date, - I cannot conclude there was a contract in existence at the time of the accident.

I am prepared to accept that the Applicant spoke to Mr. Schlosser by phone, and arranged for an interview. He felt he was likely to get the job. Mr. Schlosser may have indicated that he was "on the short-list". The Applicant and his wife likely discussed their hopes for the job. However, given the serious discrepancies and gaps in the evidence, I find that the Applicant had not received an offer of employment from Verly at the time of the accident. As a result, he is entitled to benefits at the rate of $252.93 per week, based on his income from Minden Home Hardware in the four weeks before the accident.

Repayment:

Accordingly, the Applicant's weekly benefits have been overpaid by $56,225.34. The Insurer claimed repayment of this amount on the basis that the Applicant's claim about the job offer was fraudulent. Section 27(1) of the Schedule is as follows: "A person must repay to the insurer any benefit received under this Regulation that is paid to the person through error or fraud."

In the arbitration decision, Dana Levenson,[9] Senior Arbitrator Susan Naylor made the following comments about the requirements of this provision:

Section 27(1) requires that benefits must be repaid when they have been paid to the person "through error or fraud." Fraud is not in issue here. It is a term readily understood. However, the meaning of the phrase "paid through error" is less clear.

The Concise Oxford Dictionary defines "error" as follows:

1. A mistake. 2. The condition of being wrong in conduct or judgement. 3. A wrong opinion or judgement 4. The amount by which something is incorrect or inaccurate in a calculation or measurement.

There is [sic] therefore a number of meanings in ordinary usage that may be attributed to the word used. However, some assistance is provided by the statutory context in which the words appear. Subsection 27(2) and (3) provide for repayment of benefits in circumstances where there is no "error" but where the recipient is disqualified from payment or where deductible payments have been received, in which case repayment is required to the extent of the deduction.

These provisions suggest that the requirement of "error" in section 27(1) requires more than an error of judgement or "being wrong" on the part of the insurer in paying benefits. Otherwise, the broader wording of section 27(2) and (3) would be redundant. It is not sufficient therefore to establish merely that an applicant has received benefits to which he or she is subsequently adjudged not to be entitled. To give meaning to the terminology of the section, the stipulation that benefits be paid "through error" in order to be recoverable must require that responsibility for the payment be attributable in some material way to the actions of the applicant.

For the reasons set out above, I find that the Applicant has not met the onus of proving that he is entitled to weekly income benefits based on a pre-accident job offer from Verly. In turning to the repayment issue, the onus shifts to the Insurer to prove that the Applicant's benefits were overpaid "through error or fraud."

The Applicant testified that he did not know Mr. Schlosser before calling him about the Verly job, and he denied having any involvement in the preparation of Mr. Schlosser's January 1991 letter, which was prepared on Verly letterhead. The Insurer paid benefits based on the Verly offer after its private investigator interviewed Mr. Schlosser. The Insurer did not lead oral evidence from Mr. Catania, although as the principal of Verly he is surely in the best position to contradict the statements of the Applicant and Mr. Schlosser about these events. The only explanation I heard for the Insurer's failure to call Mr. Catania was that he was working on site that day. I think it is likely that Mrs. Catania, the mother of three small children, has less direct knowledge of the day-to-day operation of the company than she claims. In any event, Mrs. Catania corroborated the Applicant's evidence that Mr. Schlosser was President of the company, and that the Applicant called Mr. Schlosser in response to a newspaper job ad and arranged for an interview. Considering Mrs. Catania's testimony about Mr. Schlosser's role in Verly and his departure from the company, I have some concern that Mr. Schlosser might have purported to hire the Applicant, although he did not have authority to do so. Alternatively, Mr. Schlosser and Mr. Catania might have disagreed about the offer after it was made. For these reasons, I am not satisfied that the overpayment of benefits resulted from error or fraud on the part of the Applicant.

Essential Tasks:

An insured person is entitled to receive weekly benefits for 156 weeks while he is substantially unable to perform the essential tasks of his pre-accident employment. In this case, the Insurer did not dispute the Applicant's entitlement to benefits before November 4, 1993. There was no dispute about the Applicant's tasks as a lumber clerk at Minden Home Hardware, which included stocking the shelves, filling customers' orders by loading lumber onto a truck, delivering and unloading lumber, and maintenance (sweeping, raking, putting out garbage).

Other Suitable Occupations:

After 156 weeks, the test for entitlement becomes stricter: the insured person must establish that his injuries continuously prevent him from engaging in any employment or occupation for which he is reasonably suited by education, training or experience.

Before working at Minden Home Hardware, the Applicant had worked in the construction industry for many years, and he clearly has broad skills, training and experience in this area. He applied for and claims that he was offered a job as a construction supervisor. I find that the Applicant is reasonably suited to the occupation of construction supervisor. The Applicant has also worked as a maintenance supervisor in a health care facility and as a service person doing residential repairs for a construction company.

The Applicant completed grade 11 in high school. He served two years in the armed forces (navy) as an underwater weapons operator. Helga Guthrie, a vocational evaluator at Vocational Pathways, found that the Applicant has "a strong psychometric profile," and identified vocational strengths including "strong verbal reasoning, mechanical reasoning and clerical perception." She identified five suitable vocational options for the Applicant: construction project manager, construction supervisor, marina manager, court clerk, and emergency services dispatcher. In a follow-up report, Ms. Guthrie identified a number of sedentary dispatch, sales and clerical positions for which she felt the Applicant would be suited.

Medical evidence:

The Applicant has undergone extensive investigation and treatment in the five and a half years since the accident.

On October 9, 1990, after his failed attempt to return to work, the Applicant attended at Minden Hospital. X-rays of his cervical spine were negative, except for some slight loss of normal cervical lordosis, which suggests muscle spasm.

The Applicant saw his family doctor, Dr. A.E. Lauwers, the same day. Dr. Lauwers diagnosed cervical neck strain, and prescribed Flexeril and Tylenol 3. On October 12, during a house call, Dr. Lauwers noted that the Applicant had paracervical muscle spasm and "virtually no range of motion" in the neck. The Applicant complained of pins and needles in his right hand, which Dr. Lauwers noted were in the distribution of C7-T1. The Applicant also complained about severe headaches, for which Dr. Lauwers prescribed Talwin.

Dr. Lauwers saw the Applicant regularly over the following months. His initial diagnosis was "severe cervical neck strain."[10] He ordered nerve conduction studies of the right arm and shoulder (December 6, 1990) and a CT scan of the cervical spine (November 27, 1990), both of which were negative.

Dr. Lauwers referred the Applicant for physiotherapy treatment[11] at Beaverton Physiotherapy Centre two to three times a week between November 29, 1990 and October 11, 1991, when the Applicant was discharged because of his lack of improvement. Dr. Lauwers also prescribed a cervical collar, but the Applicant stopped wearing it on Dr. Kay's recommendation in 1991. The Applicant has also received regular massage treatment from Gail Sherrington, Registered Massage Therapist, starting in May 1991. Massage therapy gives the Applicant temporary relief from pain.

Dr. Lauwers referred the Applicant to Dr. Fred Doris, a rheumatologist, who examined the Applicant on November 8, 1990, but had little to add to Dr. Lauwers findings and treatment plan. Dr. Doris referred the Applicant to Dr. Gil Faclier, an anaesthesiologist at the Sunnybrook Hospital Pain Clinic in Toronto.

Dr. Faclier felt that the Applicant suffered from post-traumatic migraine headaches and post-traumatic myofascial disease with possible cervical facet contusion. He also suspected that the Applicant had post-traumatic T1 radiculopathy. Dr. Faclier ordered a CT scan, CT myelogram, tomogram, and MRI, all of which were negative. Dr. Faclier prescribed Metoprolol for the Applicant's headaches. This gave little relief and was later replaced with Flunarazine, which reduced the duration of the Applicant's headaches.

Dr. Faclier referred the Applicant to Dr. J. Kay, an anaesthesiologist at Ross Memorial Hospital in Lindsay, who gave the Applicant trigger point injections every few weeks, as needed. The injections provided temporary relief. New x-rays done at Ross were negative except for a slight widening at C3-4 and evidence of reduced range of neck motion.[12]

An August 1991 psychological assessment by Dr. Lynn Levy, a psychologist at the Sunnybrook Pain Clinic, found that the Applicant "does not present as psychologically distressed, with the exception of some infrequent symptoms of Post-Traumatic Stress Disorder." The assessors felt that the Applicant's PTSD symptoms and headaches would respond to relaxation and biofeedback intervention, and the Applicant completed this program in November 1991.[13] The Applicant also attended for regular psychological counselling with Dr. Levy.

Dr. Kay reviewed the Applicant's treatment in January 1992. He noted that an MRI of the Applicant's neck was negative, that Dr. Faclier's diagnostic facet nerve blocks (at C3, 4, 5, 6 and 7) provided no relief, and that massage and trigger point injections were giving the Applicant temporary relief.

In addition to the medications already noted, the Applicant was prescribed Amitryptilline, non-steroidal anti-inflammatory drugs, Toradol, Ativan, and Sumatriptan. In addition to physiotherapy and massage treatment, the Applicant began receiving chiropractic treatment in 1995. However, the Applicant has shown little or no improvement. By the time benefits were terminated, Dr. Lauwers' diagnosis was "cervical myofascial pain syndrome secondary to traumatic neck injury" and post-traumatic stress disorder.[14] In his report of February 6, 1995, Dr. Lauwers added a third diagnosis of depression, and endorsed the opinion of Dr. Kay.

Dr. Kay opined on January 25, 1993 that the Applicant suffered from chronic cervical myofascial pain syndrome as a result of the motor vehicle accident. He stated that the symptoms could be exacerbated by repetitive motion or strain, and placed the following physical restrictions on the Applicant:

1. No lifting over 10 kg.

2. No repetitive motions with right arm.

3. No reaching above shoulder level.

4. No sudden motion; e.g. acceleration/deceleration/jolting.

5. Neck range of motion limited to 20 degrees in all directions.

6. Exertion limited to 30 minute periods with adequate rest in between.

He concluded: "Physical activities should be temporarily suspended if exacerbation of pain occurs."

Dr. Kay reassessed the Applicant on September 22, 1993. He reported that the Applicant's headaches were decreased in intensity and frequency - they now occurred about twice a month. There was little change, however, in the Applicant's chronic neck and right shoulder pain. Dr. Kay recommended that the Applicant continue his current treatment, "and that he not use the right arm and shoulder in any form of work." Dr. Kay predicted that the Applicant's treatment would be prolonged.

The Applicant's treating doctors agree that the Applicant sustained a severe soft tissue injury of the neck, which has led to pain and reduced range of movement in his neck and shoulder, pins and needles radiating down the right arm, and cervicogenic migraine-type headaches. Although the Applicant's doctors have questioned whether he might suffer from cervical facet disfunction or C7-T1 radiculopathy, objective testing has failed to provide evidence for these diagnoses. By early 1991, the Applicant's doctors also agreed that the Applicant's symptoms were likely to be chronic, and that improvement would be slow, given his failure to improve significantly in the early months after the accident.

In early 1991, the Insurer referred the Applicant to Rehabilitation Services of Canada ("RSC") for rehabilitation case management. After an initial evaluation in April 1991, RSC specialists managed the file and prepared progress reports every month or two between September 1991 and October 1993, when the Applicant's file was closed. By early 1992, the RSC specialist expressed concern about the Applicant's failure to improve, and recommended an Insurer Medical Examination by Dr. Greg L. D'Angelo, an orthopaedic surgeon. The RSC specialists consistently noted that the Applicant was depressed, frustrated, anxious and pain-focussed, and recommended that the Applicant increase his activity level and take responsibility for his rehabilitation.

Dr. D'Angelo examined the Applicant at the Insurer's request on July 22, 1992. Based on his physical examination of the Applicant, his review of the Applicant's medical records, and the history of the Applicant's symptoms, Dr. D'Angelo opined that the Applicant had sustained a soft tissue strain of his cervical spine and possibly a strain of his right shoulder. He felt that the Applicant's recovery was being prolonged by "a considerable functional overlay." However, given that the Applicant had no history of related problems before the accident, Dr. D'Angelo opined that his present symptoms "are ... a direct result of the motor vehicle accident." Dr. D'Angelo stated that the Applicant's future employability would not be affected by his injuries, but he gave no opinion as to his employability at the time of the assessment.

At the recommendation of RSC, the Insurer referred the Applicant to Vocational Pathways Inc. for a Functional Abilities Evaluation. The assessment was performed on July 26, 1993 by Ilse Wong, kinesiologist, on the basis of the Applicant's description of his duties as a construction superintendent, an occupation which is categorized as light. Ms. Wong identified a number of barriers to employment:

1. Reduced range of motion in the cervical and thoraco-lumbar spine and right shoulder;

2. Restricted static standing to periods less than five minutes; weightbearing limited to less than 20 minutes;

3. Restricted in pushing and pulling to occasional demands;

4. Severely reduced right hand (dominant) grip strength by approximately 72 percent;

5. Moderately obese;

6. Unable to sustain work while in a kneeling or crouched position;

7. Carrying within the sedentary industrial work level;

8. Unable to sustain a non-resistive activity between chest and low-levels with his right upper extremity;

9. Restricted in sustained or occasional overhead reaching;

10. Reduced sustained cervical flexion of extension i.e. looking down or up.

Ms. Wong recommended that the Applicant begin a work-hardening program or return to work as a construction supervisor on a part-time basis - four hours a day for one month, six hours a day for another month, then full-time. No functional assessment was ever conducted with respect to the lumber clerk job because of the Applicant's reliance on the Verly offer.

On receiving the FAE report, the Insurer referred the Applicant to Vocational Pathways for a vocational assessment. The report indicated that there were a number of direct entry jobs for which the Applicant would be suited and which would be within his functional abilities as determined by the FAE. On the basis of this report, the Insurer refused vocational retraining and terminated RSC's services in September 1993.

At the time of the hearing, the Applicant's treatment providers reported little improvement in the Applicant's symptoms. In Dr. Lauwers' opinion, the Applicant remained unable to return to his pre-accident work, but could work part-time in sedentary, "non labour type employment."[15] Dr. Lauwers testified that in his opinion, the Applicant remains disabled by cervical myofascial pain syndrome and post-traumatic stress syndrome. In a report dated May 8, 1995, Sharol King, a kinesiologist, and Dr. Peter Begg, a chiropractor, concluded that the Applicant could not return to full-time work or overhead work, but could do part-time sedentary work if mechanical neck stress was minimized.

Credibility and Motivation:

Arbitrators have stated consistently that an insured person may be entitled to benefits on account of disabling pain, even if the objective medical investigations - x-ray, CT scan, MRI, EMG, tomogram and the like - reveal no evidence of impairment. However, in such cases, the arbitrator must rely on the applicant's evidence about his pain and his abilities. The applicant's credibility therefore becomes a critical issue.

In this case, the Applicant's credibility is seriously undermined by the unexplained gaps and discrepancies in his testimony about the Verly job offer. There were other troubling discrepancies in his evidence.

When the Applicant applied for welfare after his statutory accident benefits were terminated, he did not tell Victoria County Social Services about his job at Minden Home Hardware. He also failed to mention the alleged Verly offer until 1994, when he reported that he had worked for Verly for 30 days before the accident.[16] In a subsequent letter to the Social Assistance Review Board ("SARB") appealing the termination of his welfare benefits, he stated that he "was employed" as a construction supervisor at $53,000 a year. In August 1993, the Applicant told the vocational evaluator at Vocational Pathways that "he had been employed ... for three months in the capacity of supervisor/trouble shooter, earning $53,000 per year, plus bonuses." He described in detail his duties in that position. He also told Cindy Brunette and Janet Davidson, specialists at Rehabilitation Services of Canada, that he had been earning about $50,000 at the time of the accident.[17] In cross-examination, he admitted that he was not employed at Verly at the time of the accident.

The Applicant also misrepresented his pre-accident income at Minden Home Hardware. On October 25, 1990, the Applicant told Mr. van Kooten that he earned $400 per week at the hardware store ($10 an hour), and he signed a statement and an Application for Accident Benefits containing this information. The employer's payroll records and Record of Employment clearly indicate that the Applicant earned $8 an hour, and generally worked 40 hours a week, for a total of $320 gross. In cross-examination, the Applicant testified that he did not recall whether he had ever made more than $320 a week. The employer's records show that he did not. I do not accept that the Applicant does not remember how much he earned at Minden Home Hardware, given that he had been unemployed for some months previously. I find that the Applicant exaggerated his earnings at the hardware store in order to increase his benefit rate.

The Applicant's willingness to tailor his statements and evidence about his financial and employment circumstances in order to enhance his benefits suggests that he may also be willing to tailor his reports of pain and disability to the same purpose.

There is also evidence that the Applicant's motivation to return to work is less than ideal. On December 12, 1993, the Applicant's family doctor, Dr. Lauwers, indicated on a Social Services form report that the Applicant could not return to his previous occupation, but could do part-time sedentary work. Ms. Osborne referred the Applicant for Vocational Rehabilitation ("VR"). After a waiting period, a letter was sent to the Applicant, dated March 21, 1994, asking him to indicate within 30 days whether he wished to participate in the program. A further letter, dated April 21, 1994, stated that since the Applicant had failed to respond to the earlier letter, his file would be closed. Benefits were terminated effective June 30, 1994, but they were reinstated on an interim basis, effective August 8, 1994, when the Applicant appealed the termination of his benefits to SARB.

Ms. Osborne testified that when she met with the Applicant on June 21, 1994, she asked him why he did not follow up with the VR program; he explained that his lawyer had advised him not to do so because it could hinder his legal proceedings against the Insurer.[18] The Applicant corroborated Ms. Osborne's account of the conversation. Ms. Osborne testified that the Applicant consistently told her that he wanted the Insurer to subsidize a four-year university course.

The Applicant testified that he was not told that participation in VR was mandatory to receive social assistance benefits. In his appeal letter to SARB, he said that Ms. Osborne told him meeting that his "benefits could be terminated" if he did not attend [emphasis in original]. He insisted in that letter that he had left the meeting feeling that "all was in order" regarding his welfare claim. The letters from Social Services say nothing about the consequences of non-participation, though the April 21, 1994 letter indicates that the Applicant's VR file would now be closed. I could find nothing in the Social Services file to indicate that the Applicant was clearly warned that VR participation was mandatory. In her testimony, Ms. Osborne would only say that she "would have" explained this to the Applicant.

In cross-examination at the hearing, Dr. Lauwers stated that he had not known about the Applicant's refusal to participate in the Social Services VR program and he agreed that this would "absolutely" cause him to question the Applicant's desire to recover. I find that the Applicant's decision not to participate in the VR program indicates that he is more interested in protecting his right to benefits than getting back to work. Although the Applicant testified that he did not feel the program would help him get "meaningful work," I find that his main concern was to hold out for a university program, a concern that comes through clearly in his appeal letter to SARB. [19]

The rehabilitation caseworkers retained by the Insurer formed a similar impression. Helga Guthrie, a Vocational Evaluator at Vocational Pathways, conducted a vocational evaluation of the Applicant between July 19 and July 23, 1993. She opined that the Applicant was fixated on a university program leading to secondary school teaching, or a college funeral director program. She expressed her concern about his "tendency to withdraw his cooperation when he felt that assigned work activities were at risk of 'sabotaging' his pre-established retraining plan." She summarized her findings as follows:

Mr. Lucas presented as a pleasant, very focused individual who has developed for himself a specific career path, and who was unreceptive to counselling efforts and unwilling to consider suggestions for alternate, possibly more appropriate career options.

Mr. Lucas' presentation and performance over the course of the programme highlighted a number of occupationally-relevant strengths and aptitudes and confirmed his ability to meet the reasonable demands of the competitive work place, keeping in mind his assessed physical tolerances and limitations.

At this time, the main barrier to Mr. Lucas' rehabilitation and return-to-work appears to be his focus on lengthy retraining initiatives, and his unwillingness to consider more directly accessible options which allow for his currently existing skills and abilities to be capitalized upon.

Ms. Guthrie opined that the Applicant "could be successful in a training programme at the community college or university level" but this "does not appear necessary to his successful rehabilitation" given his aptitudes and experience.

By late 1992, the Applicant's two caseworkers at Rehabilitation Services of Canada began to report that the Applicant would accept nothing less than a university degree program subsidized by the Insurer. He repeatedly expressed his determination to attend university and his disinterest in any occupation that would not pay him the $50,000 salary he claimed he had earned before the accident. When the Insurer refused to offer the Applicant a vocational retraining program based on Ms. Guthrie's report indicating that suitable direct entry jobs were available, the Applicant refused job search, resume, or interview training offered by the RSC.

The Applicant's refusal to take reasonable steps to rehabilitate himself suggests that his accident-related injuries are less serious than he claims, and are not a significant contributing factor in any ongoing disability.

Investigation and Surveillance evidence:

Peter Psaila, a private investigator employed by Allbright Investigations Ltd., testified on behalf of the Insurer, and his investigation reports and surveillance videotapes were entered into evidence. On the afternoon of Wednesday, April 20, 1994, Mr. Psaila observed the Applicant over a two hour period. The Applicant drove his van to a friend's house about 10-15 minutes away, and the two talked and did some chores in the driveway before the Applicant returned home. The videotape of about 10 minutes shows the Applicant:

• standing and talking with his friend, often with his hands in his pockets;

• walking between his friend's garage and the vehicles in the driveway, and between the driveway and his friend's house;

• opening the driver's side door of his van and entering the van;

• reversing the van (twice), looking over his right shoulder as he did so;

• leaning forward under the raised hood of a car;

• leaning forward into the rear of the van;

• carrying a toolbox in his right hand between the van and his friend's garage;

• pumping gas, leaning forward and using his right arm on the pump handle; and

• removing two bicycles from the van, pushing one and pedalling the other up the driveway to his house.

The next day, April 21, 1994, Mr. Psaila followed the Applicant and his wife for about two and a half hours while they did errands. The videotape of about three minutes shows the Applicant driving and entering and exiting the vehicle.

On Saturday, October 22, 1994, Mr. Psaila observed the Applicant as he attended an All-Candidates Meeting; the Applicant ran for councillor, but did not succeed. Mr. Psaila shot about seven minutes of videotape showing the Applicant standing and talking to people outside before and after the meeting.

On reviewing the videotape evidence, I noted that the Applicant swung his left arm for balance when he carried the toolbox, but I did not observe him to be having much more difficulty with this task than his friend had when he carried it from the garage a few minutes earlier. In general, the videotape shows the Applicant walking and standing in a slouched position, looking at the ground. He also tends to hold his upper body and arms in a stiff position, and to turn his head by twisting at the waist rather than the neck. Dr. Lauwers made the same observation when he observed the videotape. However, Dr. Lauwers admitted that at least twice on the tape, the Applicant clearly shows greater range of neck movement than Dr. Lauwers "saw in five years." Dr. Lauwers also admitted that the Applicant shows more range of movement in the videotape than the 20% Dr. Kay observed. Dr. Lauwers appeared to be troubled by what he saw on the videotape, and he stated several times that it might cause him to doubt his opinion as to the extent of disability. I am not convinced that the Applicant's apparent stiffness on the videotape reflects pain or limitation of movement rather than poor posture, poor flexibility and deconditioning.

I do not find it necessary to review the investigation report and surveillance videotape of April 11, 1995, the day of the Applicant's Insurer Medical Examination with Dr. Richman.

Weekly Benefit Entitlement: Conclusion

As early as July 1993, Ms. Wong recommended that the Applicant return to work as a construction supervisor or in other light industrial work on a full-time basis after a period of work-hardening or part-time work. In addition to the limitations noted above, Ms. Wong identified a number of strengths:

1. Lifting within the Light industrial work level;

2. Normal sitting tolerance;

3. Fair walking pace and tolerance;

4. Able to climb the occasional flight of stairs;

5. Able to reach between chest and low-level for sustained periods with his left hand and arm in a non-resistive activity;

6. Able to kneel for brief periods;

7. Able to perform a full squat to the ground on an occasional basis.

Ms. Wong also reported that some tests could not be completed because the Applicant was "pain-focussed" and felt that the restrictions imposed by Dr. Kay would be permanent. These were identified as barriers to employment.

At the Insurer's request, the Applicant was assessed by Dr. Jack Richman, a pain and occupational medicine specialist, on April 11, 1995. On physical examination of the Applicant, Dr. Richman could find no muscle wasting to account for the Applicant's apparent weakness on some tests, no muscle spasm to explain the Applicant's reports of pain, and no palpable muscle bands, which in Dr. Richman's opinion are required for a diagnosis of trigger points. He felt that the Applicant resisted moving his neck and observed that the Applicant showed a full range of neck motion when distracted. Based on his physical examination of the Applicant and his review of the medical records, Dr. Richman concluded that there was no objective evidence of impairment. He testified that in his opinion the Applicant did not satisfy the diagnostic criteria for myofascial pain syndrome. He did not believe the Applicant needed more treatment or rehabilitation.

On functional assessment, Dr. Richman found that the Applicant could deal with medium demands - lifting 50 pounds maximum with frequent lifting and/or carrying of objects up to 30 pounds. He also felt that the Applicant could reach, handle and finger repetitively, but not with his right arm, and "[h]e should not use his right arm repetitively at or above shoulder height..." Dr. Richman opined that the Applicant could work as a construction supervisor. In fact, he could even work as a "labourer" if he could avoid working with his right arm over the shoulder. Dr. Richman did not believe that further treatment or rehabilitation was required. He did, however, recommend that the Applicant avoid working over the shoulder by delegating these tasks or working from a ladder or scaffold.

Dr. Richman's conclusions as to the Applicant's abilities were qualified by his belief that the Applicant had not cooperated with the assessment and had not given his maximum effort. He testified that the Applicant did not show physiological signs of effort or distress (e.g. increase in heart rate, sweating, rubbing his neck or shoulder) despite his claims that he could not perform a given activity. Dr. Richman did not believe there was a psychological issue, "but one of desire to impress upon others, the extent of his injury."

As I have stated above, the significant gaps and discrepancies in the Applicant's evidence seriously undermine his credibility, and his decision to pursue litigation to the exclusion of rehabilitation leads me to doubt that his remaining disability is as significant as he says it is. These factors cause me to assess his claims of pain and disability with some skepticism, and to assume, in the absence of compelling evidence to the contrary, that the surveillance videotapes fairly reflect the Applicant's minimal remaining disability. In the absence of objective medical evidence of impairment, I am not satisfied that the Applicant's neck symptoms prevent him from returning to work as a construction supervisor or in some other suitable occupation.

Nor do I accept Dr. Lauwers' diagnosis of post-traumatic stress disorder, which was based on the report of Dr. Lynn Levy, the psychologist at the Sunnybrook Hospital Pain Clinic. Dr. Levy did not find the Applicant to be psychologically distressed and she found only that the Applicant "experiences some injury-related nightmares infrequently" after thinking or talking about the accident. Dr. Levy recommended biofeedback intervention to deal with the Applicant's "infrequent" PTSD symptoms as well as his headaches. On referral to the biofeedback program, the psychological assessors diagnosed PTSD with the following comment:

Norman clearly has many of the signs of post-traumatic stress disorder including frequent distressing recollections of the event, avoidant behaviour and elevated physiological arousal.

The finding of recollections and nightmares is entirely dependent on the Applicant's report. In any event, it was noted that "[t]hese have decreased in frequency but still occur approximately twice per month" - this was in late 1991. Although the Applicant told the assessors he avoided driving his motorcycle, the only objective evidence as to the Applicant's "avoidant behaviour" is that he drives frequently, including a regular drive of 240 km to and from his massage therapist. Elevated physiological arousal - anxiety - can arise from many causes. Nothing in the report satisfies me that these are symptoms of PTSD.

The Applicant's accident was a minor one. The police were not called to the scene. The Applicant did not attend hospital, but felt well enough to chase the other vehicle and then drive himself home. The Applicant described the damage to the motorcycle in his October 25, 1990 statement to Mr. van Kooten:

The damage to the motorcycle was minimal. The turn signal was bent and the rear tire damaged. The visor on my helmet is scratched from glass and the gel coat is broken at the chin area. I was wearing a full snowmobile suit at the time. There is a small cut on the jacket.

The minor nature of the accident is, in my view, inconsistent with a diagnosis of PTSD, which requires that

The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, e.g. serious threat to one's life or physical integrity; serious threat or harm to one's children, spouse, or other close relatives and friends; sudden destruction of one's home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence.[20]

The brief discharge summary prepared by Bruce Petelka, a Mental Health Therapist at Ross Memorial Hospital, does not convince me that the Applicant suffers disabling psychological symptoms as a result of the accident. The Applicant attended only four sessions between January and March 1994, and quit because of transportation problems. At the same time, the Applicant was attending for regular massage therapy in Courtice, a round trip of 240 km.

In any event, I find that the Applicant's failure to take responsibility for his rehabilitation is the main reason for the Applicant's ongoing physical and psychological symptoms.

Vocational Rehabilitation:

Based on my finding that the Applicant's accident-related injuries do not prevent him from working as a construction supervisor or in other light industrial employment, I find that the Applicant does not need vocational retraining as a result of the accident. The Applicant's desire for academic upgrading is admirable. By all accounts, he has the abilities necessary for college or university studies. However, the Insurer's responsibility is limited to returning the Applicant, as much as possible, to his pre-accident level of function. The Applicant's decision to focus his attention almost exclusively on his claim that the Insurer should subsidize university studies has unfortunately hindered his physical and psychological recovery from the accident. I have to agree with Dr. Lauwers that the Applicant will not see substantial improvement in his situation until these proceedings and the lawsuit arising out of the accident are completed.

Expenses and Insurer's Assessment:

The Insurer asked me to deny the Applicant his arbitration expenses and order him to reimburse the Insurer for its $2,000 assessment on the ground that the application for arbitration was fraudulent and frivolous.

I have not found the Applicant a reliable or credible witness, and I found his claim to have little merit. All else being equal, I would be inclined to grant the Insurer's motion in its entirety. However, I find that the Insurer's conduct of these proceedings substantially prolonged the hearing and expanded the issues in dispute.

The Insurer's counsel's cross-examination of the Applicant lasted some five and a half hours, and was terminated only after I gave several firm warnings that little time remained. In the end I was forced to rely on my power under the Statutory Powers Procedure Act to limit unduly repetitious testimony.[21] The Applicant's case was completed by the end of the third day of hearing, even though preliminary issues and opening statements were dealt with until mid-afternoon of the first day and cross-examination of the Applicant took more than half of the second day. The Insurer's witnesses then testified for three days. In my view, the Insurer could have responded effectively to the Applicant's case in half this time. The Insurer also filed a great deal of unnecessary documentary evidence, including the Applicant's entire welfare file, the file of Canada Life, the Applicant's mortgage insurer, and a brief of correspondence pertaining to the Insurer's ongoing production requests.

In particular, the Insurer's attack on the Applicant's credibility went far beyond what was necessary to respond to the application. I have referred to the credibility issues that affected my decision. Other gaps and discrepancies - as to the Applicant's education and employment history, the exact mechanics of the accident, when the Applicant separated from his wife and their contact thereafter, comments made by the Applicant and his wife to an insurance broker and the broker's casual observations of the Applicant around town - were collateral to the main issues and need not have been explored with such diligence. These matters unduly prolonged the hearing.

Considering all the circumstances, I find this an appropriate case to exercise my discretion to award the Applicant half his arbitration expenses. The Insurer is entitled to an award of $1,000, being half its assessment fee of $2,000.

Order:

1. The Applicant's application for further weekly benefits and rehabilitation benefits is dismissed.

2. The Insurer's motion for repayment of overpaid benefits is dismissed.

3. The Insurer shall reimburse the Applicant for half his arbitration expenses incurred, subject to the limits set out in Regulation 664, less $1,000. I may be spoken to about any dispute as to the amount payable.

September 30, 1996

Nancy Makepeace Arbitrator

Date

Appendix - Witnesses

Norman Lucas, the Applicant

John Molenaar, architect, prospective sponsor of vocational retraining program

Wayne Teel, Reeve of Aldon Township and Councillor, County of Victoria

Jasmine Lucas, the Applicant's (estranged) wife

Michelle Osborne, fieldworker, Victoria County Social Services

Christine Peel, director, Victoria County Social Services

John Pentney Jr., president and co-owner of Minden Home Hardware, the Applicant's former employer

Robert Anderson, insurance broker

Dr. Robert Lauwers, the Applicant's family doctor

Clare Catania, co-owner of Verly Construction

Nick van Kooten, independent insurance adjuster

Helga Guthrie

Peter Psaila, private investigator

Dr. Jack Richman, occupational medicine specialist

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.

2The Applicant worked full-time (five days a week) for three of the four weeks immediately prior to the accident, and he worked four days in the remaining week.

3Exhibit 4

4Exhibit 2, Tab IV A 4

5Exhibit 1, Tab I D 23.

6Exhibit 1, Tab I C 1.

7Exhibit 1, Tab I A 1

8Exhibit 2, Tab II 1

9Dana B. Levenson and the General Accident Assurance Company of Canada (February 18, 1992), OIC A-000260 (appeal decision dated September 29, 1992).

10Report of April 3, 1991, Exhibit 1, Tab I C 2

11Including neck care education and exercise, laser, TENS, ultrasound, stretch and spray, stretching exercises, and posture correction.

12May 1, 1991 Radiology report.

13Psychological Assessment of Lynn M. Levy and Brian D. Doan, September 24, 1991, and January 6, 1992 report of Bio-Behavioural Treatment and Research Unit.

14Report of August 11, 1993, Exhibit 1, Tab I C 3.

15Social Services Medical Report, December 12, 1993.

16Application dated August 29, 1994, Exhibit 13, p. 11.

17Pro gress Reports 14 and 15, Exhibit 1, Tabs I D 15 and 17

18Exhibit 13, p. 5

19In February 1993, the Applicant told Donna G. W. Mills, a Vocational Evaluator at the Barrie & District Association for People with Special Needs, that he hoped to attend university and eventually teach English and/or Geography. He also stated that he had been accepted as a mature student at Trent University.

20DSM III R, "Post-traumatic Stress Disorder," Exhibit 25.

21Section 23(2) of the SPPA as amended.