Neutral Citation: 1996 ONICDRG 3

FILE No.: A-001662

ONTARIO INSURANCE COMMISSION

BETWEEN:

KENNETH CARL JOHNSON

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Kenneth Carl Johnson, was involved in a motor vehicle accident on July 5, 1991. He received statutory accident benefits from State Farm Automobile Insurance Company ("State Farm"), payable under Ontario Regulation 672.¹ State Farm ceased paying weekly income benefits on July 1, 1992, and refused to pay for Mr. Johnson's yard work. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Johnson entitled to weekly income benefits after July 1, 1992?

2. Is Mr. Johnson entitled to reimbursement for yard work expenses?

Mr. Johnson also claims interest on any amounts owing, a special award and his expenses incurred in the arbitration process.

Result:

1. Mr. Johnson is not entitled to weekly income benefits after July 1, 1992.

2. Mr. Johnson is not entitled to reimbursement for yard work expenses.

Hearing:

The hearing was held in St. Catharines, Ontario, on May 30, May 31 and June 1, 1995, before me, Fred Sampliner, arbitrator.

The proceedings were recorded by Lynn Sciamonte and Brian Penfound of R.J. Penfound Associates.

Present at the Hearing:

Applicant:

Kenneth Carl Johnson

Insurer's

Representative:

Joseph J. Sullivan

Barrister and Solicitor (assisted by Michael Puskas, articling student)

Insurer's

Officers:

Darren Sullivan Stephen Burnett

Claims Superintendent Claims Supervisor

Witnesses:

Jens Knof - chiropractor

Dr. Ervin Oinonen - family doctor

Shaun Baylis - social worker

Stephen Burnett - claims supervisor

Kenneth Carl Johnson - Applicant

Exhibits:

28 exhibits were filed by the parties, listed in Appendix A.

Evidence and Findings:

Mr. Johnson was 56 years old at the time of the July 5, 1991 motor vehicle accident. He was injured in a previous accident on December 2, 1989, for which he did not receive benefits under the Schedule. At the time of the 1989 accident, Mr. Johnson was attempting to market a hockey board game that he had developed. For most of his working life, Mr. Johnson had been employed in hockey; as a minor league player, coach and manager in Canada and the United States.

Mr. Johnson claims that as a result of back pain from the July 5, 1991 accident, he has been unable to market the hockey board game, and that he qualifies as a self-employed person, entitled to ongoing weekly income benefits under section 12 of the Schedule after July 1, 1992, when State Farm terminated the weekly income benefits. State Farm says that Mr. Johnson's health problems began after the 1989 accident, and that he ceased work as a result of this first accident. State Farm maintains that it owes no further weekly income benefits after it ceased payments to Mr. Johnson on July 1, 1992.

In order for Mr. Johnson to be eligible for weekly income benefits as a result of the July 5, 1991 accident, he must prove on a balance of probabilities that he meets the test set out in section 12 of the Schedule:

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment....

Under this test, pain and suffering from accident injuries are not compensated unless the pain causes the injured person to be substantially unable to do his or her job. This section applies to injuries and resulting disabilities from accidents after June 21, 1990. Therefore injuries arising from the December 2, 1989 accident are not covered under the Schedule.

The evidence which I have reviewed demonstrates that Mr. Johnson's health problems began after the first accident in 1989. On December 2, 1989, Mr. Johnson was travelling to visit a friend in a Montreal hospital when he was rear-ended at a stoplight by a two ton truck. Mr. Johnson testified that his car was pushed about 25 feet forward. He immediately went to hospital, where he was examined and x-rayed, found to have sustained soft tissue injuries and released.

Upon his return to his home town of St. Catharines, Ontario, Mr. Johnson visited his family physician and began physiotherapy treatment. At the hearing, Mr. Johnson testified that since 1989 he has continuously suffered from sleeplessness, neck, back and leg pain, headaches, and lack of concentration, with little or no improvement until the hearing.

The Canadian Back Institute (CBI) reported on Mr. Johnson's condition on March 1, 1991, four months before the July 1991 accident. At that time, Mr. Johnson was still receiving physiotherapy treatments as a result of the 1989 accident. Mr. Johnson told CBI that his neck pain had gradually improved, but that his back was not any better. More specifically, the report states that Mr. Johnson suffered disturbed sleep, lower back pain when bending down, and constant left low back pain, intermittently radiating to the legs. CBI concluded that as a result of his poor physical condition and mechanical back pain, Mr. Johnson was unable to play hockey or travel.

Dr. Ervin Oinonen has been Mr. Johnson's family physician since before the 1989 accident. He testified that Mr. Johnson sustained a myofascial (soft tissue) injury of the neck and back in the 1989 accident, and that his subjective complaints had not significantly changed since then. In fact, one month before the July 5, 1991 accident, Dr. Oinonen stated that Mr. Johnson complained of chronic low back pain and anxiety, which further substantiates the pre-existing complaints noted by CBI.

Dr. Oinonen testified that he was not surprised by the continuing complaints of chronic back pain. According to Dr. Oinonen, Mr. Johnson had degenerative facet joint arthritis, which, he said, is typical of people who have played competitive sports. Dr. Oinonen stated that CAT scans conducted both before and after the July 1991 accident found narrowing of a lumbar disc space, with minimal bulging of the sac containing the vertebrae, and some nerve root impingement. In fact, on referral from Dr. Oinonen, Dr. Fraser diagnosed a herniated lumber disc in May 1990. Four years later, in 1994, Dr. Andrew Talalla, a neurological surgeon, read CAT scans, examined Mr. Johnson and recommended surgery to decompress the L4/L5 spinal disc, and try to resolve the pinched nerve root.

Dr. Oinonen also pointed out that the nature and degree of Mr. Johnson's back complaints were similar before and after the 1991 accident. According to Dr. Oinonen, Mr. Johnson's complaints and the objective evidence of his condition were unchanged from 1989 onwards.

Dr. Oinonen's opinion is convincing. Dr. Oinonen has been Mr. Johnson's regular treating physician since the 1989 accident, and he knows the man and his condition quite well. His treatment history of Mr. Johnson and his conclusions were given in a straightforward and unbiased manner. His opinion that the 1989 accident and arthritis precipitated Mr. Johnson's ongoing disability is supported by x-rays indicating a herniated lumbar disc before the 1991 accident, and a pinched nerve from the 1989 accident. I accept Dr. Oinonen's unequivocal opinion that Mr. Johnson's chronic back pain and consequent dysfunction were likely caused by his pre-existing arthritic condition and injuries from the 1989 accident.

In addition, Mr. Johnson's own evidence does not support his claim. Mr. Johnson testified that his activities have been unchanged since the 1989 accident. He stated that he has been unable to lift weights over ten pounds without pain, sit for extended periods, read due to lack of focus, brush his teeth, climb stairs, wash floors, clean bathrooms, carry loads of laundry or groceries, or perform most home maintenance and yard work. Referring to his ability to work, Mr. Johnson testified that he has been unable to aggressively market his hockey board game as a result of his back pain and inability to drive his car to visit stores and customers. Mr. Johnson stated that he drives to stores in the St. Catharines area to check on sales of the games, and occasionally drives across the U.S. border to New York on errands. However, it is clear from his evidence, and from statements he has made to experts, that his condition has remained substantially the same since the 1989 accident.

Mr. Johnson's social counsellor testified that Mr. Johnson said he had not worked since 1989. Mr. Shaun Baylis counselled Mr. Johnson in 21 sessions between October 1991 and September 1992. Mr. Baylis testified that Mr. Johnson told him that although the 1991 accident heightened his back pain and difficulties, he ceased marketing the hockey game in 1989. Mr. Baylis also testified that Mr. Johnson appeared frustrated and confused. I accept Mr. Baylis' evidence.

The evidence from Mr. Baylis and Mr. Johnson establishes that he substantially ceased his marketing efforts in 1989. The uncontroverted opinion of Dr. Oinonen establishes that the cause of Mr. Johnson's disability stems from his arthritis and the 1989 accident. Based upon this evidence, it is clear that Mr. Johnson has failed to prove, on a balance of probabilities, that he suffered a substantial inability to market the hockey board game as a result of the July 5, 1991 accident.

Moreover, I find that Mr. Johnson's evidence is not reliable. Mr. Johnson testified that since the accident he does not regularly travel long distances. He stated at the hearing that since 1989 he has kept small numbers of his games in a few area stores in order to keep his trademark rights alive. Mr. Johnson stated that he occasionally checks with these retailers on sales of the hockey board games. However, at a small claims court hearing on March 11, 1992, Mr. Johnson said just the opposite. In that proceeding, Mr. Johnson testified that he was regularly driving to Kitchener for work. When faced with this contradiction at the arbitration hearing, Mr. Johnson could not explain it, nor could he even recall transacting any business in Kitchener. Further, on cross-examination, Mr. Johnson refused to answer questions concerning the frequency of his travel to the United States, and was otherwise evasive. I am persuaded by Mr. Johnson's court evidence and his inability to explain his travels, that he has been marketing the board game more than he is willing to admit. Furthermore, Mr. Johnson admits he was a funeral pallbearer in September 1991. This evidence quite obviously conflicts with Mr. Johnson's position that he is unable to lift heavy objects. Mr. Johnson's complaints to his health care professionals and his testimony about his aches, pains and disability are only credible insofar as he himself is reliable and accurate. Mr. Johnson's failure to explain the inconsistency in his sworn testimony, his refusal to answer questions at the arbitration, and his general evasiveness cause me to find that his evidence is not reliable or accurate.

Mr. Johnson bears the onus of convincing me, on a balance of probabilities, that after the termination of weekly income benefits, the 1991 accident caused him to be unable to market his hockey board game. However, after hearing Mr. Johnson and his experts' evidence for three days, it was manifestly clear to me that he failed to meet this onus. Mr. Johnson's own experts did not support his claim, and Mr. Johnson himself was not credible. Thus, at the conclusion of Mr. Johnson's evidence, I determined that State Farm's evidence need not be adduced.

I find that Mr. Johnson has failed to establish on a balance of probabilities that, as a result of the July 5, 1991 accident, he suffered a substantial inability to perform the essential tasks of his employment after July 1, 1992.

Yard Work Expenses:

Expenses for yard work necessitated by an accident victim's condition fall under the general rubric of section 6(1)(f) of the Schedule, "other goods or services of a non-medical nature, which the insured person requires because of the accident." The established criteria are: that the item must be a reasonable expense resulting from the accident, it must be required because of the accident, and if the insurer requests, it must be authorized as necessary by a signed statement from a medical practitioner.

The Report of Mediator states that Mr. Johnson claimed that he paid $20 to have his lawn cut two or three times per month between the date of the accident and November 1991, and from April through November 1992. At the hearing, I specifically requested Mr. Johnson to present me with evidence to substantiate his claim for reimbursement of his yard work expenses.

However, neither Mr. Johnson, his witnesses nor any of the medical opinions addressed the issue of Mr. Johnson's ability to conduct the outside house chores. Mr. Johnson simply stated at the hearing that he hired people to shovel snow, cut his lawn and perform other home maintenance tasks. He failed to provide me with any bills, invoices, doctors' certificates, affidavits or other supporting evidence to verify payment or performance of the jobs. In the complete absence of any independent evidence supporting either the need, performance or payment of the claimed expenses, I find that Mr. Johnson has failed to meet his burden to prove that the expense was necessary, accident-related or reasonable in the circumstances.

Special Award:

A special award under section 282(10) of the Insurance Act may be granted where the arbitrator is convinced that the insurer has unreasonably withheld or delayed payment. Although Mr. Johnson did not provide me with a clear picture of his reasons for claiming a special award, it seems to me largely based on his feelings of anger and frustration because State Farm refused to pay him additional accident benefits. Mr. Johnson demonstrated his anger and frustration throughout the hearing.

However, Mr. Johnson's evidence failed to demonstrate any additional entitlements. Since the evidence did not result in further benefits, I have no basis upon which to make a special award.

Expenses:

Generally, win or lose, arbitrators have granted insureds their expenses of the arbitration process where the claim has merit and is brought in good faith. Conversely, expenses have not been awarded where the arbitrator finds that the insured has pursued a completely unmeritorious, dishonest, or frivolous claim.

Likewise, arbitrators have taken a dim view of insureds who seek additional benefits, but fail or refuse to comply with production agreements or orders.² From my experience, the speedy and efficient operation of this or any adjudication system largely depends upon minimizing formality, conflict, and maximizing the information exchange that ultimately leads to parties' adjusting their positions to the facts.

In this case, Mr. Johnson failed to cooperate with legitimate production requests and orders. He agreed to produce some information at the first pre-hearing conference. Later, Mr. Johnson was ordered by the pre-hearing arbitrator to produce this information. Mr. Johnson refused to comply. Specifically, Mr. Johnson did not provide original signed authorizations for State Farm to obtain clinical notes and records of his health care practitioners, in order to review Mr. Johnson's condition and treatment before the hearing. He also failed to provide a list of his essential job duties, and delayed disclosure of his OHIP health card number so that a list of his government funded treatment was not available before the hearing.

At the opening of the hearing, Mr. Johnson was unable to adequately explain his failure to comply with the production orders to my satisfaction. In my opinion, Mr. Johnson impeded State Farm's legitimate efforts to obtain relevant medical information about his pre-accident condition. Mr. Johnson's conduct leads me to draw the adverse inference that he was attempting to hide evidence which would detract from his claim. Further, I find Mr. Johnson's refusal to abide by the pre-hearing arbitrator's order is an abuse of process in itself. The consequence of all this is that Mr. Johnson is not entitled to his expenses of the arbitration process.

In addition, Mr. Johnson wasted a great deal of time at the hearing. He testified himself and conducted exceedingly lengthy witness examinations, often concerning irrelevant material (property damage, hockey career), despite my cautions to him and rulings. Mr. Johnson refused to be governed by my orders. Periodically, Mr. Johnson vented his feelings in uncontrolled outbursts, speeches, and diatribes against State Farm personnel and others.

In sum, I find that Mr. Johnson has brought a completely unmeritorious claim to arbitration. After three days of hearing Mr. Johnson's case, I was in possession of hardly a scintilla of evidence connecting his continuing disability claim to the 1991 accident. Nothing was presented to substantiate the yard work claim. Mr. Johnson belligerently disobeyed orders and prolonged the proceedings.

Mr. Johnson must deal with the consequences of his behaviour. The Dispute Resolution Practice Code provides that the insured person may be ordered to pay the insurer's assessment to participate in the arbitration process where the claim is found to be frivolous, vexatious or an abuse of process. Based upon Mr. Johnson's conduct both before and at the hearing, along with the complete failure of his evidence, I find that his pursuit of this claim is an abuse of process to frustrate and vex State Farm. Mr. Johnson must pay State Farm its $1,000 assessment fee.

Order:

1. State Farm is not required to pay Mr. Johnson any benefits or expenses of this arbitration.

2. Mr. Johnson shall pay State Farm $1,000.

January 9, 1996

Fred Sampliner

Arbitrator

Date

APPENDIX A

Exhibit

1. Copy of report of Dr. Oinonen (September 30, 1992)

2. Copy of note of Dr. Oinonen (March 27, 1992)

3. Copies of Mr. Johnson's authorizations for records

4. Copy of Ministry of Health authorization with note from Mr. Johnson

5. Personal Profile System test

6. Letter to Mr. Johnson from State Farm (June 7, 1993)

7. Letter to Mr. Johnson from Ontario Insurance Commission (February 11, 1993)

8. State Farm Assessment of Claim form and letter to Mr. Johnson (July 8, 1992)

9. Copy of authorization to obtain Mr. Johnson's medical records from State Farm

10. Copy of State Farm letter to Dr. Oinonen (August 20, 1992)

11. Copy of State Farm letter to Mr. Johnson (September 28, 1992)

12. Copy of report of Dr. Allan McFarlane (June 28, 1994)

13. Copy of report of Shaun Baylis (April 6, 1992)

14. Copy of report of Dr. Hugh Cameron (September 8, 1992)

15. Copy of report of Dr. Gerald Fulton (June 17, 1992)

16. Copy of Dr. Oinonen referral note and consult note of Dr. D.M. Fraser (May 11, 1990)

17. Copy of report of Dr. Andrew Talalla (December 19, 1994)

18. Copy of statement of Evelyn Johnson

19. Copy of report of Dr. A. Margulies (September 17, 1992)

20. Copy of CV of Dr. Allan Gold and copies of "The Standard" and "Toronto Star" newspaper articles

21. Copies of Mr. Sullivan's letters to Mr. Johnson with attachments (May 19 and May 26, 1995)

22. Copy of report by Dr. Fred Langer (May 15, 1992)

23. Copy of Mr. Johnson's note after medical examination

24. Copies of Mr. Johnson's notes of meetings or conversations with State Farm

25. Copy of Canadian Back Institute report (March 1, 1991)

26. Copy of Ontario Court General Division transcript (small claims), Carl Johnson v Daybol Rentals Inc.

27. Statement of Alexanian Carpet

28. CV of Carl Johnson

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term "Schedule” will be used to refer to Regulation 672.
2. 2Pietro Manti and Wawanesa Mutual Insurance Company, December 17, 1992, OIC File No. A-001496; Gus Tallis and Royal Insurance Company of Canada, May 1, 1995, OIC File No. A-007109.