Neutral Citation: 1996 ONICDRG 202

OIC A-012214

BETWEEN:

SELEWA (STEVE) YOUNATHAN

Applicant

and

GAN COMPANY of CANADA, LTD. (formerly known as SIMCOE & ERIE GENERAL INSURANCE COMPANY)

Insurer

DECISION

The Applicant, Selewa (Steve) Younathan, was injured in a motor vehicle accident on July 20, 1990. He applied for and received statutory accident benefits from GAN Company of Canada, Ltd. ("GAN", formerly known as Simcoe & Erie General Insurance Company), payable under Ontario Regulation 672.¹ Weekly income benefits were terminated by GAN on July 12, 1994. Mr. Younathan seeks reinstatement of his benefits from July 13, 1994 and a special award. GAN alleges that Mr. Younathan was overpaid and seeks repayment of benefits. The parties were unable to resolve their disputes through mediation and Mr. Younathan applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Younathan entitled to weekly income benefits from July 13, 1994?
What is the amount of his weekly income benefit?
Is GAN entitled to a repayment of benefits?
Is Mr. Younathan entitled to a special award?

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

Mr. Younathan is entitled to further weekly income benefits from July 13, 1994. Because of the overpayment of benefits, his benefits resume November 4, 1996.
Mr. Younathan's weekly income benefit is $385.
GAN is not entitled to a repayment.
Mr. Younathan is not entitled to a special award.
Mr. Younathan is entitled to his arbitration expenses.
Mr. Younathan is not entitled to interest on outstanding benefits to the date of this decision.

The hearing was held in Hamilton, Ontario, on November 7 and 8, 1995, and February 27, 28, 29, and March 1, 1996, before me, David Evans, Arbitrator.

Present at the Hearing:

Applicant:

Selewa (Steve) Younathan

Mr. Younathan's Representative:

David E. Ivey Barrister and Solicitor

GAN’s Representative:

Larry Kielbowich Barrister and Solicitor

GAN's Officer:

Bruce Davidson

The proceedings were recorded by Nancy Fairhurst in November 1995 and by Margaret Cunningham in February and March 1996.

Witnesses:

Selewa (Steve) Younathan

Carl E. Galli

Jane Fridrich

James Anthony Forbes

Tricia Doyle

The exhibits are listed in Schedule "A" to this decision.

Evidence and Findings:

Mr. Younathan was injured in car accidents on July 20, 1990, and January 23, 1991. As a result of his injuries, he has not been able to return to work driving a taxi.

Mr. Younathan received weekly income benefits from GAN Canada pursuant to section 12 of the Schedule for four years. He seeks the reinstatement of benefits on the basis that he is not trained for any suitable work. GAN Canada has accepted that he cannot return to being a taxi driver, but suggests that he can find suitable work.

GAN Canada also disputes the amount of the weekly income benefit and is seeking repayment on an overpayment of the quantum of benefits.

Background:

Mr. Younathan was born on August 31, 1953, in Jordan, received his schooling in Iraq, and came to Canada in 1974. After the accidents, the Centre for Vocational Evaluations and Rehabilitation Services Ltd. found that he had the Canadian equivalent of grade 3 beginning in spelling, grade 8 beginning in reading, and grade 8 end in arithmetic. His first language is not English.

Mr. Younathan testified that after arriving in Hamilton — where he has lived since immigrating to Canada — he took an introductory course in industrial welding in 1974 and further training on the job at National Steel Car. During lay-offs he worked as a stock boy or in a steel factory.

In late 1979, Mr. Younathan started driving a taxi. In 1982, he bought his own taxi plate with the help of his brother-in-law, Warda Oshana. In 1986, after taking out a loan to repay Mr. Oshana, he registered the plate jointly with his wife. He testified that his wife never drove the cab.

Over the four or five years before the accident Mr. Younathan drove for Yellow Cab. He testified that the company was only a broker, and he was the owner/operator of his taxi.

Mr. Younathan testified that in August 1989, to obtain a cheaper insurance rate, he stopped letting the car to other drivers and drove more hours himself. He alleges that his gross 1989 earnings were around $34,000, and about $24,000 for the first half of 1990.

Mr. Younathan testified that on Friday, July 20, 1990, a car hit the side of his car. As a result, he developed continuing pain in his lower back and in his legs, particularly his right leg. He also developed problems sleeping.

Mr. Younathan attempted a return to work in November and December 1990, working two hours a day with restrictions such as no lifting. He found it hard to sit in the car or exit from it. Dr. Douglas Morrison and the physiotherapist, Anil Gokhale, who saw Mr. Younathan in November 1990 were concerned that this attempt to work may have aggravated the condition of his spine.

Dr. Walter Kean, after referring Mr. Younathan for a CT scan, advised him that he had a permanent disc herniation. He prescribed Ketoprofen and recommended against continuing to work as a taxi driver. (The report of Dr. Kean dated May 4, 1995, confirms that he diagnosed the clinical features of an irritation of the sciatic nerve to the right and left legs, with the right more affected. It was his opinion that the clinical findings were suggestive of an irritation of the L5 nerve.)

Mr. Younathan stopped driving his cab permanently at the end of December 1990 and gave it up for scrap at the end of 1991.

Mr. Younathan leased the cab plate to Yellow Cab from February, 1991, until mid-1993 at $500 per month. Mr. Younathan testified he then sold the plate for the amount it had cost him: $65,000. Details of the plate sale are set out in Exhibit 18. (As best I can determine, this cost includes the interest costs, since according to the conditional sales agreement signed by Mr. Younathan and Mr. Oshana as purchasers, the purchase price was $27,000. It appears Mr. Younathan bought out Mr. Oshana's share for $13,979 in 1986.)

Mrs. Younathan started working after the accident, first driving children to and from school, and later becoming a hairdresser.

Mr. Younathan suffered a second accident on January 23, 1991. His car was sideswiped by another car that had lost control. His family physician, Dr. Beer, sent him for further physiotherapy in February 1991. Mr. Younathan noticed improvement in his movements, but not in the pain which he suffered.

Over the ensuing period he tried chiropracty, physiotherapy, and acupuncture without permanent success.

The doctors GAN sent him to in the immediate post-accident period, such as Dr. Morrison, Dr. Porte, and Dr. McKnight, did not recommend any treatment different from that arranged by Dr. Beer.

Mr. Younathan started seeing a psychologist, Dr. Krames, in 1991. His appointments now are generally monthly. Scattered throughout Dr. Krames' notes are references to Mr. Younathan doing taxes for people. Such references occur on March 18, 1994, March 10, 1995, and March 31, 1995. Mr. Younathan denied that he ever received money from strangers for tax preparation, and states that he spent only 20 or 30 minutes over two or three days to do the work.

Mr. Younathan testified that at present he still has constant pain in his back radiating into his legs, although the level of his pain can vary. The pain starts after 20 minutes of sitting. He can sit for approximately another 10 minutes, but then he must get up and walk around for two or three minutes. He then may be able to sit for another 20 minutes. Standing or walking can also make the pain worse. He may lie back to relax, but then he will have to get up and start walking. In the hearing room he tended to sit on the front edge of the chair.

As for his sleeping problems, Mr. Younathan states that he takes pills around 9:00 p.m., goes to bed around 11:00 or 11:30 p.m., then gets up around 2:30 a.m. when the pain starts and walks, reads, or watches television until he lies down again around 4:00 or 4:30 a.m. He then gets up at 6:30 or 7:00 a.m. The worst time for his pain is the early morning.

Rehabilitation Efforts:

Ms. Tricia Doyle testified that she was the original adjuster on the file, and continued to supervise it as other adjusters handled it. She testified that two different rehabilitation companies were involved in Mr. Younathan's treatment: International Rehabilitation Associates Inc. ("IRA"), from March 1991 to September 1992, and Crawford & Company Healthcare Management, from February to September 1993.

The International Rehabilitation caseworker interviewed Mr. Younathan in the summer of 1991. Her report of August 8, 1991, notes that at this point it appeared that Mr. Younathan could not return to driving a taxi, and he had expressed an interest in exploring computer or real estate work. She also noted that he appeared to be very uncomfortable throughout the interview and found it difficult to sit still. He was sent to the Centre for Vocational Evaluations and Rehabilitation Services Ltd. ("CVERS").

The CVERS report noted the physical limitations imposed by Mr. Younathan's back condition and his relatively limited education and work history. It was noted that he had difficulty sitting for extended periods, even for sedentary activities, but was able to persevere and complete the activities, by alternately sitting and standing. He was described as showing good work behaviours and a positive attitude.

An analysis of Mr. Younathan's interests and aptitudes revealed compatibility within the skilled business, skilled service and skilled technology occupational groups, but the verbal sub-tests requiring language usage and work knowledge were extremely weak, and reduced his overall score on aptitude testing.

He experienced some moderate low back pain from reaching and manipulation, and the report noted that he would have to increase his physical tolerances and endurance. Mr. Younathan showed some ability in several areas: he demonstrated good manual skills and perceptual abilities for a skilled trade occupation, and a good capacity for several business- or clerical-related occupations that were listed, such as loans officer, payroll clerk, or real estate appraiser, with some training. However, he had to upgrade his language and numerical abilities before he could pursue formal retraining. His poor sitting and standing tolerances would also have to be increased in order for him to pursue competitive re-employment in the areas listed.

In a follow-up letter to Dr. Beer dated October 18, 1991, the rehabilitation caseworker confirmed that Dr. Beer felt it would be appropriate for Mr. Younathan to retrain for any occupation in which he would not have to engage in prolonged bending, lifting or sitting; the letter was countersigned by Dr. Beer (which is not always the case with the confirming letters in the material).

The report of December 9, 1991, indicated that Mr. Younathan was tested at the St. Charles Adult Education Centre, where it was determined that his English — but not his math — needed upgrading. He started his upgrading that October on a flexible schedule. The caseworker concluded that although skill upgrading and future retraining would take a significant amount of time, Mr. Younathan's potential for returning to work was high.

GAN sent him to the Canadian Back Institute ("CBI") in February and March 1992 for a comprehensive rehabilitation program. The discharge summary of March 31, 1992, indicates that at that time, Mr. Younathan was not able to handle the prolonged sitting required of a cab driver, nor the occasional lifting. The report concluded that his sitting tolerance problems would have to be addressed if he were attending classes or seeking other business-oriented employment: during a 20-minute test for sitting tolerance, Mr. Younathan required three breaks of approximately one minute.

Ms. Doyle testified that in the spring of 1992 she switched the rehabilitation focus to examining self-employment opportunities for Mr. Younathan, but eventually concluded that this was a risky job opportunity. The report of July 28, 1992, showed that of three companies Mr. Younathan had expressed an interest in, only one (Becker's) showed some possibilities. The owners of several such stores contacted by the worker indicated that the job is quite physical, and delegating the work to employees would not be cost-effective. Mr. Younathan testified that, after investigating several other franchise opportunities himself, he decided the same conclusion.

IRA closed its file in September 1992. Ms. Doyle testified that she felt the company was not getting anywhere with finding a vocation for Mr. Younathan.

On September 24, 1992, Dr. Krames, who had been treating Mr. Younathan in the psychology program at the Hamilton Pain Clinic, wrote to Ms. Doyle requesting that GAN buy a computer for Mr. Younathan, noting that he planned to use the computer at home to run his own company, perhaps in importing. Mr. Younathan eventually received the computer in June 1993, after mediation.

The St. Charles records show that on August 21, 1992, Mr. Younathan transferred to the high school credit program, where he completed three lessons in grade 9 Math and one lesson in grade 9 English. He also completed half credits in a computer introductory course in January 1993 (75%) and in advanced WordPerfect in May 1993 (50%). (I note that he did not yet have his own computer.) He testified that he thought these courses would eventually lead to bookkeeping or accounting courses.

Mr. Younathan had also tried taking — but did not complete — a correspondence course in accounting with the Ontario government in the first part of 1993.

Ms. Doyle testified that in late January 1993 GAN reinstated rehabilitation services, this time with Crawford: she thought somebody new might be more focussed.

The Crawford report of February 3, 1993, by Kimberley Terpstra to Marlene Lafave of GAN indicates that Mr. Younathan experienced pain while walking, standing or sitting for any longer than 15 minutes, and had to constantly change his position because of pain and stiffness.

Ms. Terpstra reported in March 1993 that Dr. Beer did not think Mr. Younathan was ready for employment due to his pain, and that he would be unable to do a job requiring sitting for long periods of time or lifting, carrying or bending.

The Canadian Back Institute, which had treated Mr. Younathan in March 1992, carried out a functional capacity evaluation in April 1993. The report (discussed in more detail below) concluded that a sedentary job allowing frequent changes of position would be most suitable for Mr. Younathan. Ms. Terpstra wrote a confirming letter to Dr. Beer — which he did not countersign — stating that Dr. Beer had agreed with these conclusions and would medically release Mr. Younathan to part-time employment in a sedentary occupation and to continue with his computer and accounting courses.

Further reports by Ms. Terpstra indicate that she discussed the release to part-time work with Mr. Younathan in June 1993, to which he responded that he planned to buy a convenience store if his case with the insurance company settled, with his brother managing the store and doing the physical work.

Mr. Younathan testified that after Ms. Terpstra started working with him, he thought she was going to arrange with GAN for him to attend school to obtain bookkeeping, accounting or computer skills. He contacted the Toronto Business College and several other colleges. In the end, he never attended these schools.

Ms. Terpstra's file was reviewed by counsel for Mr. Younathan at the hearing, and he put questions to Ms. Jane Fridrich — a vocational consultant with Crawford Disability Management who testified for GAN — regarding her understanding of entries in the file. It appeared that on June 30, 1993, Miss Terpstra herself called the carrier to find out whether the carrier would fund the upgrading courses. Ms. Fridrich's understanding of a note dated July 22, 1993, was that GAN was not going to fund these courses because GAN felt Mr. Younathan was not disabled from engaging in suitable employment.

Ms. Terpstra carried out a Transferrable Skills Analysis in August 1993. Her report of August 17, 1993, indicates that the analysis included — as part of Mr. Younathan's upgrading or training at the time — "Bookkeeping/Accounting Clerk" and "Computer Operator." On the basis of the information given it, the computer selected 73 sample job alternatives, of which Ms. Terpstra concluded 20 would be in demand. (The raw data, set out at Tab 35, indicates that the computer was run on August 4, 1993, to create the output of 73 jobs.) The occupations were of a clerical, accounting or bookkeeping nature.

I note that this analysis and report were created after Ms. Terpstra had apparently been informed of GAN's position. This report clearly played an important role in forming opinions provided by the Insurer's examining doctor, Dr. Galway, in 1994, and by Ms. Fridrich.

In a further report to Ms. Lafave of August 25, 1993, Ms. Terpstra states that she met with Dr. Beer to review the analysis. She reports that he released Mr. Younathan to the occupations on a part-time basis, but he did not feel Mr. Younathan would be able to perform them on a full-time basis for a long period, the length of which he could not estimate. She wrote to Ms. Lafave: "Once this report is reviewed, further rehabilitation efforts should be discussed."

Ms. Terpstra sent a closing report dated September 23, 1993. She wrote that Mr. Younathan had been medically released to pursue retraining as well as being released to a sedentary-type position on a part-time basis. However, she understood that Mr. Younathan had no intention of either pursuing part-time employment or researching a new vocational direction. Rather, he intended to work part-time in his own company utilizing his computer, bookkeeping and accounting skills. She therefore concluded she could do nothing further for him.

From then on GAN made no further attempts at rehabilitation or vocational assistance for Mr. Younathan. GAN continued to pay Mr. Younathan weekly income benefits into 1994. Mr. Younathan testified that in the fall of 1993, he paid for an introductory course with H&R Block, including a software program to practice on. Because his mark was less than 75%, he did not get a certificate, just a slip confirming that he had finished the course. He has taken no other retraining courses since then. As far as using whatever he learned of accounting or tax law, he testified that he tried to help friends for $5.00 or the cost of a coffee, but even the returns of those who did not have to pay any taxes ended up being revised by Revenue Canada.

Ms. Doyle admitted that in March 1994 she instructed Doug Thompson — the file handler at the time — to get a doctor to release Mr. Younathan to one of the positions that had been identified in 1993.

GAN chose Dr. H.R. Galway to carry out an examination in April 1994. In his report dated April 8, 1994 (discussed further below), Dr. Galway wrote to Mr. Thompson, in effect, releasing Mr. Younathan to light sedentary work. He based a large part of his report on the work done in 1993 by the Canadian Back Institute and Ms. Terpstra.

In a letter dated June 20, 1994, to Fred Jacobi — who took over the file for a period of about six weeks — Dr. Galway reaffirmed his conclusion that Mr. Younathan could be released to a light sedentary job with a 35-40 hour work week.

Mr. Younathan received a final cheque for the period June 15-July 12, 1994.

Mr. Jacobi forwarded Dr. Galway's reports to Dr. Beer by letter dated July 18, 1994. Dr. Beer replied by letter dated September 8, 1994, that Mr. Younathan could not sit or stand for very long and could not work because of his pain. He felt Mr. Younathan should continue to collect benefits. GAN did not reinstate Mr. Younathan's benefits in response to this letter. The file also contains handwritten notes over Dr. Beer's signature dated August 6, 1993, and July 12, 1994, to the effect that Mr. Younathan was still unable to engage in an occupation or employment due to his injuries.

After his benefits were terminated, Mr. Younathan continued to investigate some business opportunities. He wrote to a Korean toy company but got no reply. He sent approximately 20 faxes about setting up an import/export company and obtained some information from the government, but he eventually abandoned the idea. He had planned a community sale to sell products like Tide detergent, but, in fact, Tide did not want to get involved with him. He also contacted a Korean company through New York, to import tooth brushes, but again he got no reply. He also applied for a mechanic's license because he thought Petro Canada would be more interested in him if he were a mechanic, but he failed the test.

Mr. Younathan testified that in the fall of 1995 he investigated translator work, but he found out that accreditation requires at least high school and two years of university. He had helped a family benefits caseworker with translation two or three times, on a volunteer basis. He did not believe he would have found full-time work in any event, and then in October 1995 he understood that the government cut back on translators.

Release to any reasonably suitable occupation or employment:

GAN relied on section 12(5)(b) of the Schedule to terminate Mr. Younathan's benefits. Having received benefits for more than 156 weeks, Mr. Younathan is only entitled to further benefits if his injury continuously prevents him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

The question of the burden which an applicant must meet under section 12(5)(b) has been considered in a number of cases, most recently summarized by Arbitrator Blackman in Ian Murray and Wawanesa Mutual Insurance Company² wherein he stated that the range of "suitable" employment would encompass that which reasonably flows from an insured's education, training or experience. Suitable employment should not be substantially different in nature, status or remuneration from the immediate pre-accident employment, nor would it require more than a modicum of training or upgrading at the point in time of inquiry.

As I understood him, counsel for Mr. Younathan submitted that the mere fact of Mr. Younathan's not being able to return to driving a taxi entitled him to benefits under section 12(5)(b), subject to the Insurer proving there was a suitable employment for him. This approach has been rejected by arbitrators. Arbitrator Manji stated in Carole A. Caruso and Guarantee Company of North America³ that it is not sufficient for applicants to establish that, as a result of the injuries sustained in the accident, they are unable to perform the essential tasks of their pre-accident employment, and then rely on the insurer to prove that there is some suitable employment for which they are qualified and capable. She went on to state that unless applicants are able to adduce strong medical evidence of total disability, the arbitrator must be presented with some evidence that the applicants have made a bona fide effort to identify, try to find, or attempt some sort of "suitable" employment but failed because their injuries continuously prevent them from engaging in such employment.

Of course, applicants must first be medically released to reasonably suitable work. The evidence on the release to work is somewhat contradictory in this case. In any event, it appears to me that here, the release was to work for which Mr. Younathan did not yet have the appropriate education, training or experience.

I turn first to the physical aspects of returning to work. The April 1993 Canadian Back Institute functional capacity evaluation suggested that Mr. Younathan demonstrated positive inorganic signs indicative of symptom magnification and a disability perception. No further active treatment was recommended, and the report stated that it was not realistic to expect symptom resolution. With respect to the issue of what kind of work Mr. Younathan could perform, it was noted under the heading "Physical Abilities Compared to Job Demands" on page 11 that Mr. Younathan's doctor had already established that he is not physically capable of performing his job and that he did not demonstrate sufficient sitting tolerance to perform his job during the functional capacity evaluation. Concerns about the sitting tolerance for further education were expressed. It was then noted:

His future employment interests are in the area of bookkeeping and business in general. Anything in this area will also involve prolonged sitting. However, he should be physically able to perform this job, given the opportunity to make postural changes as he works.

I take "this job" to mean a job in the area of bookkeeping and business in general.

It was in this context that the CBI found no physical reasons why Mr. Younathan could not return to work, noting that a relatively sedentary job allowing frequent changes of position with two work heights (standing and sitting) would be "most suitable." The authors did suggest that to promote a successful return to work it would be more realistic to attempt an initial part-time return to work. The authors could not make specific suggestions about the type of work, as they were not experts in vocational counselling. They continued as follows:

Mr. Younathan's idea of bookkeeping is a reasonable option. This he may be able to do on a part-time basis and will allow him to structure his own work day as opposed to working on structured hours (i.e. 9 to 12 or 12 to 5 etc.)

Reading these comments as a whole, I cannot see a wholesale release to any kind of job. I find the release is limited to "bookkeeping and business in general" work allowing frequent changes of position, preferably with two work heights, and starting part-time.

Ms. Terpstra wrote that Dr. Beer had also released Mr. Younathan to continued training and a part-time return to work. Counsel for Mr. Younathan suggested that Ms. Terpstra could have been inaccurate, since the report before me had not been countersigned by Dr. Beer. Ms. Doyle testified that in the first few years after the OMPP legislation was passed, GAN did not ensure that the countersigned letters were returned to the company; rather, the doctors would tend to keep the signed copy in their files.

Dr. Beer's reports apparently contradict the release to work, although it may be that he only considered the job of taxi driver and not any suitable occupation. One year prior to the termination of benefits, when Mr. Younathan was approaching the third anniversary of his accident, Dr. Beer wrote in a letter dated June 3, 1993, that Mr. Younathan had "severe disability" with respect to his low back, and that he could not sit for any great length of time: "I do not think that he could operate at [sic] taxi, whether it's for twelve hours or for one hour." I find that at this point Dr. Beer was still turning his mind to "own" occupation, not "any" occupation.

After Dr. Galway saw Mr. Younathan, Dr. Beer wrote on a prescription slip dated July 12, 1994, that Mr. Younathan was still unable to engage in an occupation or employment due to his injuries. He subsequently wrote to Mr. Jacobi on September 8, 1994, that Mr. Younathan was in a great deal of pain and could not work because of this:

With all due respect to Dr. Galway's note, I do not believe anyone could do the type of work Mr. Younathan does with the type of pain he has to endure. Mr. Younathan cannot sit or stand for very long. I believe that Mr. Younathan should continue to collect his disability compensation from your company as he is eligible for it.

Dr. Beer refers to the "type of work [he] does," which would seem to be that of taxi driver, and by the time he wrote this letter that was not in issue, as GAN had conceded that Mr. Younathan did not have the sitting tolerance to be a taxi driver. The statement is ambiguous, but GAN did not follow up any further with Dr. Beer to clarify: the benefits had been terminated by that point and were not reinstated.

In any event, even assuming there was a release to a particular kind of training or part-time work, Ms. Terpstra's analysis, Dr. Galway's report, and Ms. Fridrich's analyses relied to a large extent on the CBI report. The issue, then, is whether there are any suitable occupations for Mr. Younathan in the "bookkeeping and business in general" areas.

Dr. Galway

Dr. Galway, in addition to examining Mr. Younathan, reviewed the material forwarded to him. He drew particular attention to Ms. Terpstra's reports of her discussions with Dr. Beer and Mr. Younathan and her transferable skills analysis, as well as the CBI report of April 1993. Ms. Doyle admitted that it is not clear Dr. Galway ever received the CVERS report.

In describing Mr. Younathan's background, Dr. Galway states that Mr. Younathan had the equivalent of a high school education, and that he had worked mainly in a cashier-type capacity in several variety stores. I find these assumptions, based on the evidence, essentially incorrect.

Dr. Galway noted some discrepancies between Mr. Younathan's description of his symptoms and the objective evidence. For instance, Mr. Younathan's primary complaints were described as back and lower right leg, yet during most of the interview, Mr. Younathan stood with most of his weight on the right leg. Dr. Galway commented that this was totally contrary to what one would expect. He also noted that the disc herniation observed in the 1990 CT scan was on the left and not the right side, and that there was some variance between the symptom location level and the site of mooted pathology at the L4-5 level on the left.

Dr. Galway concluded that Mr. Younathan had no evidence of any nerve root irritation or neurological dysfunction in the lower extremities. Because of what he described as the long-standing chronic pain pattern, he could not distinguish mechanical and spondylogenic pain from psychogenic pain, but he thought the pain should not be a barrier to returning to work nor suggest potential future harm.

Dr. Galway thought Mr. Younathan capable of carrying out the modified work that would be associated with Ms. Terpstra's list. As to the physical limitations and restrictions, he reiterated the earlier recommendations of the CBI from 1993. In particular, he thought the barriers to work which the CBI had identified were on target: evidence of a behavioural problem; a severe disability perception; and the length of time since he was off work. Dr. Galway thought Mr. Younathan's prognosis was guarded. He told Mr. Younathan that there were no physical barriers of a musculoskeletal nature preventing him from returning to appropriately modified, sedentary, light work within the framework of what had already been put forward by the rehabilitation counsellors [emphasis added].

The reports of Ms. Terpstra — Mr. Younathan's most recent rehabilitation counsellor — suggest to me that the jobs she thought Mr. Younathan could physically do were predicated on his having the appropriate bookkeeping, accounting or computer skills.

Jane Fridrich: Labour Market Evaluation

Jane Fridrich, vocational consultant with Crawford Disability Management, gave evidence on occupations that, in her opinion, Mr. Younathan could perform. She testified that the CBI functional capacities evaluation of April 1993 and Ms. Terpstra's transferrable skills analysis formed the basis of her report. She testified that she had not spoken with Ms. Terpstra, as her understanding was that Ms. Terpstra was on long-term disability. She looked at Ms. Terpstra's list of occupations and picked the three positions she considered to be still available in the market and potentially suited to Mr. Younathan's physical restrictions:

Order Clerk, Food & Beverage, CCDO code 6614;
Taxi Dispatch, NOC code 1475 and NOC code 6641;
Accounting Clerk, NOC code 1431.

She described the order clerk job as a minimum-wage part-time job taking orders at places like hamburger or submarine fast-food outlets. She did not know if any heavy lifting was involved. The job requires standing all day. The wage averages about $7,000 a year. She knew that you could work into full time if you were an assistant manager, but she did not know how many years of experience were needed.

Mr. Younathan had earned some $20-25,000 per year driving his cab, and Ms. Fridrich suggested an order clerk would earn more in the nature of $7,000. Aside from the question of whether or not Mr. Younathan could physically perform that job, I find that occupation to be too different in remuneration to be suitable.

Her information about the occupation of taxi dispatcher indicated that some sort of experience in the business, such as being a taxi driver, was required. A taxi dispatcher basically must be able to coordinate destinations and schedules, and have good communication skills. She admitted she knew nothing of Mr. Younathan's customer skills or scheduling abilities. The training for this position is on-the-job, with a salary range around $10/hour, full time.

I have some trouble dismissing the proposed occupation of taxi dispatcher. This is a full-time job that pays more than minimum wage. Mr. Younathan had been a taxi driver for more than a decade in the Hamilton area. However, Ms. Fridrich admitted she knew nothing of Mr. Younathan's customer skills or scheduling abilities.

Mr. Younathan testified that a dispatcher must know all the city to give information to the drivers. When he was driving, he would call in several times a day for information, so he did not believe he knew enough to be a dispatcher. He thought that he would have to sit in front of a microphone for 12 hours. He admitted that he did not know if a work station could be set up to accommodate his need to stand and sit intermittently, nor did he know what training dispatchers undergo.

I am not convinced that Mr. Younathan has investigated this job to any great degree. However, a taxi dispatcher requires good communication skills, and Mr. Younathan's English is not clear or particularly easy to understand. Furthermore, although, in general, market considerations are not supposed to play a large role in determining the suitability of an occupation, I turn to Ms. Fridrich's August 14, 1995, report and the information she obtained from the Canada Employment Centre on the availability of jobs in the Hamilton labour market for the period January-June 1993. While there were 40 job orders for accounting clerks and four for bookkeepers, there were none for dispatchers and radio operators. In all these circumstances, and on the balance of probabilities, I find that this occupation would be unsuitable.

Ms. Fridrich agreed that if Mr. Younathan had never successfully completed a course in bookkeeping or accounting, he would not have the training or background necessary for accounting or bookkeeping work.

In preparing her reports, Ms. Fridrich had presumed that Mr. Younathan did his own books (which appears not to have been the case), but in her letter dated November 7, 1995, she notes that even if Mr. Younathan had done his own books, his duties would not have included extended payroll, accounts receivable/payable, or profit and loss statements. Therefore, he would have been capable of only entry-level positions in accounting, and even for those he would need a demonstrated knowledge of accounts receivable/payable and payroll from another source.

I have no hesitation in finding many of the occupations suggested by Ms. Fridrich unsuitable. The list of accounting/bookkeeper/computer operator occupations that Ms. Terpstra generated and upon which Ms. Fridrich relied was predicated upon Mr. Younathan having the appropriate training or experience. I find that Mr. Younathan did not have that experience, and I accept his evidence that he did no more than rudimentary bookkeeping for his taxi business.

Similarly, I am satisfied that Mr. Younathan did not have the education, training or experience to work as a translator or interpreter.

I also accept Ms. Fridrich's conclusion that, unless Mr. Younathan had the appropriate business or educational background — he does not — he would be an inappropriate candidate for a franchise to run a convenience store.

What of the burden on Mr. Younathan? GAN had relied on Dr. Galway's report to say that he could perform reasonably suitable occupation. Dr. Galway in turn relied on the CBI report. I find that the CBI report releases Mr. Younathan to a relatively narrow range of sedentary occupations.

It appears to me that in the particular circumstances of this case, Mr. Younathan must present some evidence that he has made a bona fide effort to identify, try to find or attempt some sort of suitable employment within the framework of the types of occupations identified for him.

I find that Mr. Younathan has made these kinds of bona fide efforts, mainly by trying to identify and train himself for these types of occupations. He took some computing courses, with mixed success. He tried to obtain a certificate from H&R Block, but failed. He tried to obtain a mechanic's licence to make himself more acceptable to Petro Canada, but failed. He investigated some self-employment business ventures, but failed to identify a suitable business.

In all these circumstances, and given the particular facts of this case, I find that Mr. Younathan has met his burden.

I find that he was entitled to the continuation of benefits in 1994.

I hope that Mr. Younathan will now consider — and that GAN will help him to train for — the kinds of clerical or bookkeeping jobs he is physically capable of and for which he would be suited after a reasonably short period of training. Certainly, based on his previous level of remuneration, I would not expect GAN to fund Mr. Younathan for training as an accountant.

Amount of Benefit: Expenses and Post-accident Income:

Pursuant to s.12(7)1 of the Schedule, Mr. Younathan could base his claim on his average gross weekly income over the four or 52 weeks before the accident.

Mr. Younathan bases his claim on the 52 weeks before the accident.

As background to how the business ran, Mr. Younathan testified that Yellow Cab deducted expenses such as computer service and rental before it issued his cheques. Mr. Younathan included the monies from Yellow Cab and clients who contacted him directly on his run sheets (which were not available for review — what raw revenue data he had consisted of hand-written statements of income and expenses from 1982 to 1990).

It is apparent that GAN had some difficulty in determining the appropriate level of benefits, as can be seen by the fluctuating level of benefits and the several requests for information in Exhibit 30. The accountants called by both parties had similar difficulties: Carl Galli, of BDO Dunwoody, prepared a report on Mr. Younathan's behalf dated November 29, 1995; Brian Forbes, of Coopers & Lybrand, replied by a report dated February 16, 1996; in response, Mr. Galli revised his own calculations. Both had to make a number of assumptions.

The accountants did agree on some matters. For instance, in determining the amount of Mr. Younathan's average gross weekly income, both accountants divided the income earned over the 52 weeks before the accident by 52 to obtain the average gross weekly income, notwithstanding the fact that Mr. Younathan had — as in previous years — taken several weeks' vacation.⁴ They ignored income earned by Mr. Younathan during his attempt at a return to work in November and December 1990, since expenses exceeded the revenue generated. Mr. Forbes also relied on Mr. Galli's schedule totalling the monthly revenues for the 52-week pre-accident period as $42,722.40.

Mr. Galli and Mr. Forbes differed in three main areas: the period over which expenses should be determined; the calculation of ceasing expenses; and the amount of post-accident income to be deducted from benefits payable.

Period for Determining Expenses

Mr. Galli relied on the figures set out in the 1989 and 1990 statements of income and expenses to determine expenses, thus attempting to match the expenses to the 52-week period preceding the accident. Mr. Forbes relied on the 1989 statement of income and expenses alone, not attempting to match the expenses to the 52-week period preceding the accident. He divided the 1989 expenses into variable or fixed (splitting the capital cost allowance 50/50). He then applied the ratio of the variable expenses to the income earned over the 52 weeks before the accident to determine the variable expenses.

I have before me two conflicting statements of income and expenses for 1990, rendering both suspect in my eyes.⁵ Mr. Forbes also noted that the 1989 statement represented the last statement filed and assessed by Revenue Canada prior to the first accident, so there was no possibility that it could have been prepared for any purpose other than for income taxes.

In light of the discrepancy noted, I prefer Mr. Forbes' approach except for two items of the period pre-accident which appear well-documented — the insurance expense and the capital cost allowance.

Ceasing Expenses

In determining weekly benefits, s.12(7)3 provides that business expenses which cease as a result of the accident shall be deducted from a person's income from self-employment before calculating his or her gross weekly income.

Mr. Galli and Mr. Forbes differed on the amount of the insurance expense and whether or not capital cost allowance and property taxes should be deducted at all.

As noted above, I do not accept Mr. Forbes' treatment of the insurance expense. Exhibit 17 contains invoices for the periods August 3, 1989 to August 3, 1990, totalling $2,685 (these dates coincide almost exactly with the period at issue). Since I have the actual invoices, I find that the appropriate amount to use is the $2,685 figure.

Regarding capital cost allowance, I note that it has not always been deducted,⁶ and that the approach of arbitrators has been flexible.

Mr. Galli excluded capital cost allowance from ceasing expenses on the basis that this is not a "real" cash outflow, and that a large part of the capital cost allowance related to a van that had apparently been purchased in 1989 and — he believed — had not been used in the taxi business. He also alleged that capital cost allowance is not deducted pursuant to the Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996.⁷

I do not know what benefit can be derived from looking at the law in effect after January 1, 1994. As for "real" expenses, I am willing to accept that point for part of the capital cost allowance claimed. The capital cost allowance schedules show that part of the allowance was for "goodwill." Clearly, no actual expense was incurred by Mr. Younathan for the depreciation of his goodwill. On the other hand, the schedule for 1990 shows that in that year Mr. Younathan acquired a cellular phone. He clearly stopped using it for business purposes after the accident. Its capital cost allowance was $113.40 — less than half the cost of the annualized monthly rental.⁸

A large part of the ceasing expense relates to the automobiles. The value of class 16 on the schedule at the start of the year was $573 (presumably the remaining value after depreciation of the taxicab), and there was an acquisition of $12,000 during the year. Mr. Galli testified that his understanding was that a Voyager van had been purchased for $12,000 in September 1989, and that livery plates were put on it. Mr. Younathan testified that his wife paid for the livery plates, and that in 1991 and 1992 she used the plates to drive children to school. He testified that the van was not used as a taxi. I have concerns about Mr. Younathan having taken the deduction for the van when his evidence was that it was his wife's expense. I also found his evidence on the point confusing and somewhat evasive. For instance, he testified that he could use his taxi plate as a livery licence, and that he had a second vehicle available to him if he needed it (presumably the Voyager in the year before the accident), although he denied that he ever did use it.

It is Mr. Younathan's burden to convince me of his quantum. His tax returns for 1989 and 1990 show deductions in capital cost allowance for the van. He testified that he was not able to continue in his business after July 1990. On the documents before me it certainly appears that the Voyager formed part of his business. Mr. Younathan did not impress me in this portion of his testimony. Accordingly, I include the capital cost allowance of the van as a ceasing expense.

Unlike the goodwill, the van clearly had a declining value which is reflected in the capital cost allowance, and thus this appears to me to be a "real" expense.

As for the actual figures for capital cost allowance, Mr. Forbes did not use the capital cost allowance schedules filed for the 1989 and 1990 years, relying strictly on the 1989 figure, half of which he apportioned as a variable expense. Since I have the actual schedules before me, I prefer to rely on them.

Therefore, for the capital cost allowance I allow deductions for the vehicles and for the cellular phone but not for the goodwill, based on the figures set out in the schedules, at $2,060.15 (see Table "A" at the end of this decision).

As for the property taxes or rent, Mr. Galli submitted that Mr. Younathan did not meet the guidelines for deducting these items from his income tax, and therefore these expenses should be excluded.

Mr. Younathan had claimed these expenses on his income taxes. In reviewing the records in Exhibit 7, it appears that Mr. Younathan consistently deducted his office expense over the years, thereby reducing his income taxes for that period. Mr. Younathan deducted these expenses for a business that effectively stopped operating after the accident. I am not satisfied on the evidence I heard and in these particular circumstances that I should now disregard these expenses. Accordingly, I include them as ceasing expenses.

Amount of Benefit

I calculate the ratio of variable expenses at 18%, and the amount of weekly fixed expenses at $192.21 (see Table "B" at the end of this decision). After subtracting the ceasing expenses, I arrive at a weekly income benefit of $385.00 (see Table "C" at the end of this decision).

Deduction for Post-accident Income

Section 15 of the Schedule allows the insurer to deduct from any weekly income benefit 80 per cent of any income received or available from any occupation or employment subsequent to the accident.

Mr. Younathan rented his plate to Yellow Cab for a period of time after the accident. Mr. Galli and Mr. Forbes differed on the attribution of this income and on the deduction of interest expense for the purchase of the plate.

The plate was jointly registered to Mr. and Mrs. Younathan. Nonetheless, Mr. Forbes attributed 100% of the plate income to Mr. Younathan. Mr. Younathan testified that only he drove the cab. It appears that Mr. Younathan did not split pre-accident rental income with his wife (when Mr. Younathan let other drivers rent his cab). In all the circumstances I find it would be more consistent to attribute 100% of the post-accident rental income to Mr. Younathan.

Mr. Forbes deducted from the post-accident income an interest expense that appeared in 1992. Mr. Galli pointed out that if there was an interest expense it should have appeared earlier, thereby decreasing Mr. Younathan's pre-accident income and hence his weekly income benefit as well. As best I can determine Mr. Younathan received his interest expenses back on sale of the plate in November 1993. In all the circumstances, I disregard this expense. I calculate the total lease receipts as $15,458.00, of which — pursuant to section 15 — 80% is deductible, or $12,366.40.

Repayment, Special Award and Interest

As can be seen in Table "D" at the end of this decision, I calculate that Mr. Younathan had been overpaid by $46,526.95 at the time of the termination of benefits. In effect, Mr. Younathan was paid benefits up to November 3, 1996.

Since I have found Mr. Younathan's benefits to be ongoing, and that his overpayment has now in effect been repaid, I find there is no basis to order a repayment of benefits.

Since Mr. Younathan is only now entitled to receive benefits again, there is nothing on which to base a special award. The same applies to interest: if anything, Mr. Younathan had the use of over two years' worth of benefits in advance.

Expenses:

Mr. Younathan was successful in his arbitration, so he would normally be entitled to his expenses. I am concerned about the delays that arose due to tardiness in providing income materials to GAN. However, I did find Mr. Galli's testimony helpful in several respects, and I adopted his position on several matters, so I will follow the usual practice and exercise my discretion to award expenses to Mr. Younathan, including the costs of having Mr. Galli testify as an expert witness.

Order:

Mr. Younathan is entitled to further weekly income benefits from July 13, 1994. Because of the overpayment of benefits, his benefits resume November 4, 1996.
Mr. Younathan's weekly income benefit is $385.
GAN is not entitled to a repayment.
Mr. Younathan is not entitled to a special award.
Mr. Younathan is entitled to his arbitration expenses.
Mr. Younathan is not entitled to interest on outstanding benefits to the date of this decision.

December 4, 1996

David Evans Arbitrator

Date

Schedule "A"

Exhibits

from Revenue Canada 1987-94 Inclusive
of Income and Expenses — 1989
Tax Return — 1989
of Income and Expenses — 1990
Tax Return — 1990
of Expense Page from January 20, 1990, and Letter from Dalton Insurance January 24, 1991
of Income and Expenses 1982-90 Inclusive
of Notes — Dr. Krames
prepared by Dr. Krames
Report — Coopers & Lybrand, February 16, 1996
Vitae, Dr. Max Beer
Vitae, Dr. Lester Krames
Vitae, Carl E. Galli
of Mr. Galli — November 29, 1995
from Coopers & Lybrand — February 20, 1996
A, B, C — Mr. Galli
of Automobile Insurance and Invoices
regarding sale of plate
Vitae, Ms. Jane Fridrich
Progress Notes
dated November 7, 1995, from Jane Fridrich to Mr. Keilbowich
Report dated November 27, 1995
.V.E.R.S. Report dated September 27, 1991
dated November 13, 1995, from Mr. Ivey to Mr. Keilbowich
dated January 11, 1996, from Mr. Ivey to Mr. Keilbowich
dated February 27, 1996, from Ms. Fridrich to Mr. Keilbowich
Binders: because of the volume of documentation, it was agreed that only items discussed before me would be evidence. The following are the tabs I reviewed:

Vitae of James Anthony Forbes
dated February 28, 1996, from The Toronto School of Business
Income Calculations & Correspondence
Report #2 dated August 8, 1991 from International Rehabilitation Services
Review/Denial Request Reply Sheet
Review/Payment Denial Request

Table "A": Capital Cost Allowance

	CCA	Percentage	Proportion
1989	$2,628.65	45.2055%	$1,188.29
1990	$1,591.14	54.7945%	$871.86
Total			$2,060.15

Since the 52-week pre-accident period overlaps with part of the periods covered by the schedules, I apportion the amounts on the basis of 165 days running from one year prior to the first accident to January 1, 1990, (165/365, or 45.2055%), and 200 days from then to the time of the accident (200/365, or 54.7945%). The capital cost allowance on the vehicles in 1989 was $2,628.65, and that for the vehicles and the phone in 1990 was $1591.14.

Table "B": Ceasing Expenses

The following table sets out my calculations of the ceasing expenses:

Ceasing Expenses	Variable	Fixed
Auto/Truck Expense	$6,000.00
Insurance		$2,685.00
Business Tax, Fees, Licences, Dues		$550.00
Office Expense, Postage, Telephone		$200.00
Property Taxes or Rent		$4,700.00
Capital Cost Allowance	$0.00	$2,060.15
	$6,200.00	$9,995.15
Gross Revenues	$34,390.00
Variable Ceasing Expenses as a Percentage	18.0285%
Fixed Ceasing Expenses per week		$192.21

Table "C": Weekly Income Benefit

In the following table I set out the total revenues, subtract the ceasing expenses to obtain the self-employment income, and set out the average weekly income and the resulting weekly income benefit (80% of the average weekly income):


Total revenues for period ending July 20, 1990	$42,722.40
Less Ceasing Expenses:
Variable @18.0285%	($7,702.21)
Fixed expenses @192.21	($9,995.15)
Self-employment Income	$25,025.04
Average Weekly Income (over 52 weeks)	$481.25
Weekly Income Benefit (80% of average)	$385.00

Table "D": Entitlement and Overpayment

In the following table I set out what Mr. Younathan's entitlement is up to termination. The period July 27, 1990, to July 12, 1994, constitutes 1446 days or 206.57 weeks (206 weeks and 4 days). Total benefits ($79,529.45) minus 80% of post-accident income leaves a net entitlement of $67,163.05 at termination. By that point he had been paid $113,690, resulting in an overpayment of $46,526.95:


Self-employment Income	$25,025.04
Average Weekly Income (over 52 weeks)	$481.25
Weekly Income Benefit (80% of average)	$385.00
Total @206.57 weeks of benefits	$79,529.45
80% of Post-accident income	$12,366.40
Entitlement	$67,163.05
Actually paid	$113,690.00
Overpayment	$46,526.95
Weeks of benefits per overpayment	120.85
Date of Termination	12-Jul-94
Paid up to	03-Nov-96

Dividing the overpayment by the benefit amount gives the total number of weeks of benefits the overpayment represents. As can be seen by the above, Mr. Younathan, in effect, received benefits for 120 weeks and 6 days after termination: that is, he was paid up to November 3, 1996.

Footnotes

Prior 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.
(August 23, 1996), OIC A-003224
(May 9, 1996), OIC A-006856
Although there may be some controversy on this point, the approach they took is consistent with an earlier arbitral decision in similar circumstances: Rajbir Singh and Wellington Insurance Company (June 24, 1994), OIC A-004139
See Exhibits 4 and 5.
Nasib S. Mander and Wellington Insurance Company (September 24, 1993), OIC A-002057
The reference was to section 83 of the said Schedule, which states that income shall not take into account "expenses that are eligible for capital cost allowance." A possible interpretation of this section is that capital expenditures should not be deducted in the calculation of income. As a consequence, capital cost allowance itself may be deducted.
See Exhibit 6.

Selewa (Steve) Younathan v. GAN Company of Canada, Ltd., 1996 ONICDRG 202

Case Summary