Neutral Citation: 1996 ONICDRG 46

File No.: A-009871

ONTARIO INSURANCE COMMISSION

BETWEEN:

Nicolae Polmolea

Applicant

and

Progressive Casualty Insurance Company of Canada

Insurer

DECISION

Issues:

The Applicant, Nicolae Polmolea, was injured in a motor vehicle accident on August 12, 1993. He applied for and continues to receive weekly benefits, in the amount of $185.00 per week, from the Insurer, Progressive Casualty Insurance Company of Canada ("Progressive"), under section 13 of Ontario Regulation 672,¹ as an unemployed claimant. Mr. Polmolea claims that he had an offer of employment at the time of the accident, and is entitled, therefore, to be paid weekly income benefits in the amount of $600.00 per week, under section 12 of the Schedule. The parties were unable to resolve their disputes through mediation and Mr. Polmolea 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. Polmolea entitled to receive weekly benefits under section 12 rather than section 13 of the Schedule based on an offer of employment?

2. If Mr. Polmolea is entitled to receive weekly income benefits under section 12 of the Schedule, what is the correct amount of the weekly benefit payable to Mr. Polmolea?

Mr. Polmolea also claims interest on any amounts owing, and his expenses incurred in respect of the arbitration.

Result:

1. Mr. Polmolea is not entitled to receive weekly income benefits under section 12 of the Schedule based on an offer of employment.

2. Mr. Polmolea is not entitled to his expenses incurred in respect of the arbitration.

Hearing:

The hearing was held in Hamilton, Ontario, on February 16, April 28 and August 23 and 24, 1995, before me, Shemin Manji, Arbitrator.

Present at the Hearing:

Applicant:

Nicolae Polmolea

Applicant's Representative:

Jack S. Shinehoft Barrister and Solicitor

Insurer's Representative:

Casey Van Moorlehem Barrister and Solicitor

Insurer's Officer:

Tim Christie

Witnesses:

Mr. Nicolae Polmolea Mr. Nicolae Roman Mr. Daniel Whelan Mr. Gaetano Piconi-Chiodo Mr. Dumitru Covaci Ms. Kristin Jahn

A list of exhibits and other documents on the record is attached as Schedule A. A list of authorities filed by Progressive is attached as Schedule B.

Interpretation services in English and Romanian were requested for the hearing by the Ontario Insurance Commission. However, at the outset of the hearing, in the presence of counsel, Mr. Polmolea refused these services.

Reasons for Decision:

1. Background facts and issues:

Mr. Polmolea is 43 years of age, is married and has two sons aged 3 and 4. He and his family live in Hamilton. Mr. Polmolea immigrated to Canada from Romania in 1987, and first settled in Edmonton, Alberta. He lived in Edmonton until October 1992. Mr. Polmolea testified that he did not know any English when he came to Canada, and during the first six months after his arrival, he attended a school in Edmonton, to learn English. Mr. Polmolea testified that after this he held various jobs. He worked as an auto mechanic for a while. He delivered pizza. In 1991, Mr. Polmolea went to school to obtain a class A-Z licence - a licence to operate heavy trucks and tractor-trailers. However, after he obtained his licence, he was not able to find a job as a truck driver. Mr. Polmolea testified that his last job in Edmonton was operating a restaurant. The restaurant had to be closed in March 1992, as a result of a downturn in the economy. After the restaurant closed, Mr. Polmolea experienced difficulty finding a job in Edmonton.

Mr. Polmolea testified that he and his wife moved to Hamilton in October 1992, after he received a call from an elderly retired friend, Mr. John Baba, of Hamilton. Mr. Baba had recently moved to Hamilton. Mr. Baba had previously lived in Edmonton for 10 years, and had been a regular customer of Mr. Polmolea's at the restaurant. After the restaurant closed, Mr. Polmolea helped Mr. Baba move to Hamilton by driving his (Mr. Baba's) van and trailer from Edmonton to Hamilton (Mr. Baba had a problem driving because of his age and his health). Before returning to Edmonton, Mr. Polmolea asked Mr. Baba to let him know if he became aware of any jobs in Hamilton. Mr. Baba agreed to do so.

Mr. Polmolea testified that in September 1992, Mr. Baba called him to tell him that he had found a job for him. Mr. Baba said that a Romanian man with a truck would hire him as a driver, and he asked Mr. Polmolea to come to Hamilton.

After Mr. Polmolea moved to Hamilton, Mr. Polmolea testified that Mr. Baba attempted to arrange a meeting between Mr. Polmolea and Mr. Dumitru Covaci, the man with the truck. A meeting was arranged some time in November 1992 at the Romanian Club, but Mr. Covaci failed to show for the meeting.

Mr. Polmolea testified that subsequently he telephoned Mr. Covaci about the job. Mr. Covaci said that because he (Mr. Polmolea) lacked experience, he required training. However it was winter time. Mr. Covaci did not want to train Mr. Polmolea in the winter. He asked Mr. Polmolea to wait until the spring or summer when they would talk again.

Mr. Polmolea testified that after this telephone conversation with Mr. Covaci, he tried to find a job as a truck driver but was unsuccessful, because he lacked experience and did not own a truck.

Mr. Polmolea testified that he received a telephone call from Mr. Covaci on June 1, 1993. He and Mr. Covaci decided to meet the next day to discuss the job.

Mr. Polmolea and Mr. Covaci met on June 2, 1993. Mr. Polmolea claims that at the meeting he and Mr. Covaci entered into a contract of employment. Mr. Polmolea testified he and Mr. Covaci agreed that Mr. Covaci would provide Mr. Polmolea with on the job training for 2 to 3 weeks, without pay. They agreed that if Mr. Covaci was satisfied with Mr. Polmolea's performance at the end of the training period, Mr. Polmolea would commence full-time employment with C & D Delivery (Mr. Covaci's trucking company) as of September 1, 1993, at a gross weekly income of $900.00.

Mr. Covaci owns a freight liner/tractor trailer and has been transporting cargo for Garfield Container Transport Inc. ("Garfield") from Oakville, Ontario to the United States since 1990. Prior to June 1993, Mr. Covaci worked exclusively for himself. No one had worked for Mr. Covaci, except to fill in occasionally.

Mr. Polmolea testified that between June 2, 1993 and June 28, 1993, he accompanied Mr. Covaci on 5 or 6 trips to and from the United States (mostly from Oakville, Ontario to Port Elizabeth, New Jersey). Mr. Polmolea testified that during these trips he learnt Mr. Covaci's route. He also learned about obtaining documents to transport cargo to the United States and recording cargo information. During these trips Mr. Covaci had an opportunity to observe Mr. Polmolea drive his truck. Mr. Polmolea testified that after the trips, Mr. Covaci asked him to attend at the offices of Garfield to complete documentation, prior to commencing work on September 1, 1993.

On August 12, 1993, at 8:00 p.m., Mr. Polmolea was driving his 1981 Ford pick-up truck through an intersection on a green light when the rear right side of the truck was struck by another vehicle, which was going through a red light from Mr. Polmolea's right.²

Mr. Polmolea felt reasonably well immediately following the accident and therefore did not go to the hospital when an ambulance arrived at the scene. However, later he began to develop low back and neck pain and he attended at the Hamilton General Hospital later that evening. Mr. Polmolea was examined in the Emergency Department, prescribed some medication and released.³

Mr. Polmolea saw his family doctor, Dr. Sheryl Shoham, a few days later because his pain persisted. Dr. Shoham sent Mr. Polmolea for x-rays of his cervical spine. Dr. Shoham prescribed further medication. She also prescribed physiotherapy and chiropractic treatments. Following his visit with Dr. Shoham, Mr. Polmolea started attending for physiotherapy treatments 5 times a week and chiropractic treatments 3 times a week.⁴

Mr. Polmolea notified Progressive, the Insurer of his 1981 Ford pick-up truck, of the accident shortly after it occurred and on August 19, 1993, he submitted an "Ontario Automobile Insurance Application for Accident Benefits" form to Progressive.

After investigating Mr. Polmolea's claim for accident benefits, Progressive determined that he was eligible to receive a weekly benefit of $185.00 pursuant to section 13 of the Schedule, as he was unemployed at the time of the accident.

Mr. Polmolea claims that, prior to the accident, an agreement had been reached between him and C & D Delivery, that he would begin full time employment with C & D Delivery on September 1, 1993, at a gross weekly income of $900.00. The accident intervened and his injuries rendered work as a truck driver impossible. Mr. Polmolea claims that based on the offer of employment, he should be receiving weekly income benefits, under section 12(2)1.iii of the Schedule, in the amount of $600.00 per week, the maximum under the Schedule, rather than $185.00 per week under section 13 of the Schedule, from August 1993 to the present.

Progressive takes the position that section 12(2)1.iii of the Schedule does not apply in this case because there was no "legitimate offer of employment." Progressive also takes the position that even if it is determined that Mr. Polmolea meets the requirements of section 12(2)1.iii of the Schedule, he is not entitled to a weekly benefit greater than $185.60.

2. Findings:

(a) Does Mr. Polmolea qualify to receive weekly income benefits under section 12(2)1.iii of the Schedule?

As noted above, Mr. Polmolea claims entitlement to weekly income benefits from August 1993 to the present under section 12(2)1.iii of the Schedule. Section 12(2)1.iii provides as follows:

12.-(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1. He or she must have been at the time of the accident,

iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

Mr. Polmolea must establish that he had a legitimate offer of employment at the time of the accident and the offer was evidenced in writing. Mr. Polmolea relied on two undated handwritten documents signed by Mr. Covaci and the testimony of a Mr. Nicolae Roman, the testimony of Mr. Covaci and his own testimony in support of his position.

The first handwritten undated document signed by Mr. Covaci ("Exhibit 1") states:

AGREEMENT

Agreement was made between C & D Delivery and Mr. Nicole (sic) Polmolea on June 2nd 1993 to train him as truck driver for two to three weeks. He was never paid on his trainning (sic) or his personal expense. It wasn't his responsibility to fill any kind of papers or bills. He was just shown how to do the paper work.

After two weeks of trainning (sic) he was okay (sic) to drive as truck driver.

The job was avialable (sic) for him on 1st Sep 1993, and his gross wages was calculated as nine hundred dollars per week. He was told to come and do the job application before the start date.

The second handwritten document, a note ("Exhibit 2"), states:

TO WHOM IT MAY CONCERN

MR. POLMOLEA NICOLAE WAS TRAINED BY C & D DELIVERY TO DRIVE THE TRACTOR TRAILER AND HE WAS TO START WORK ON SEPT 1/93. HIS WAGES WAS TO BE NINE HUNDRED DOLLARS A WEEK.

Exhibits 1 and 2 support Mr. Polmolea's position. At the hearing, Mr. Polmolea could not explain why Exhibits 1 and 2 were not dated. He testified that Exhibit 2 was prepared and signed after the accident. He testified that Exhibit 1 was prepared and signed after the completion of his training in June 1993 but before the accident. He testified that Exhibit 1 was prepared and signed when Mr. Covaci asked him to attend at the offices of Garfield to complete documentation prior to commencing work on September 1, 1993. Mr. Polmolea testified that it was both his and Mr. Covaci's idea to have a written agreement. He indicated that such an agreement may have been required by Garfield.

Mr. Covaci, also, could not explain why Exhibits 1 and 2 were not dated. He testified that because his English is poor, his wife drafted these documents. Mr. Covaci testified that he signed both documents and the information contained in them was accurate. Mr. Covaci explained that his offer of gross wages of $900.00 a week was based on the assumption that Mr. Polmolea would be making 3 trips per week and that Mr. Polmolea would be paid a gross income of $300.00 per trip. Mr. Covaci testified that neither document (Exhibits 1 and 2) makes reference to the number of trips because he did not feel that there was a need to do so. Mr. Polmolea was a good driver and Mr. Covaci thought that if everything worked out, Mr. Polmolea would be making 3 trips a week.

Mr. Covaci testified that Exhibit 2 was prepared and signed in response to Mr. Polmolea's request for further documentation. Mr. Covaci could not recall whether Exhibit 2 was prepared and signed before or after the accident. In respect of Exhibit 1, Mr. Covaci initially testified, on cross-examination, that he thought that it was prepared and signed in June 1993. However, Mr. Covaci changed his testimony later after it was pointed out to him that Exhibit 1 indicates that it was prepared after the accident. Specifically, the third paragraph reads, in part,: "The job was avialable (sic) for him on 1st Sep 1993... . He was told to come and do the job application before the start date." [Emphasis added] It was suggested to Mr. Covaci that Exhibit 1 could not have been prepared in June 1993 because this sentence indicates that the writer knew that Mr. Polmolea failed to attend at Garfield to file his application before September 1, 1993. Mr. Covaci testified that he could not recall when the document was prepared and signed. He blamed the injuries he sustained in a work related accident in March 1994 for his inability to recall this information.

Based on my reading of Exhibits 1 and 2 and Mr. Polmolea and Mr. Covaci's testimony, I find that Exhibits 1 and 2 were prepared and signed after the accident.

Even though Exhibits 1 and 2 were written after the accident, they appear to meet the requirement, in section 12(2)1.iii of the Schedule, that the offer be evidenced in writing. Because the words "...and evidenced in writing" in section 12(2)1.iii are not followed or qualified by the words "before the accident," it appears that an offer evidenced in writing either before or after the accident would meet the requirements of the section.⁵

Although Exhibits 1 and 2 appear to meet the requirement in section 12(2)1 .iii of the Schedule that the offer be evidenced in writing, I do not find them helpful. They carry little evidentiary weight. They are not corroborative documents made contemporaneously with the offer or in the ordinary course of business. They add little if anything to the testimony of Mr. Polmolea and Mr. Covaci.

I also did not find Mr. Nicolae Roman's testimony helpful on the issue of the legitimacy of the offer and its terms. Mr. Roman is the financial secretary of the Romanian Cultural Association. He was a friend of Mr. Baba's,⁶ the man who asked Mr. Polmolea to move to Hamilton from Edmonton. After Mr. Polmolea arrived in Hamilton, he was introduced to Mr. Roman by Mr. Baba. Mr. Roman knew Mr. Covaci from Romanian cultural events. Mr. Roman's testimony corroborated Mr. Polmolea's evidence, however, Mr. Roman was not present when Mr. Polmolea and Mr. Covaci met on June 2, 1993. He could not corroborate Mr. Polmolea's claim that Mr. Covaci offered him a job on June 2, 1993 or that Mr. Polmolea and Mr. Covaci entered into a contract of employment before the accident.

Thus, my assessment of the legitimacy of the offer and its terms rests on my findings as to the credibility of Mr. Polmolea and Mr. Covaci. For the reasons to follow, I did not find Mr. Polmolea and Mr. Covaci credible witnesses.

I found their conduct inconsistent with their testimony. Mr. Covaci testified that at the end of the training in June 1993, he advised Mr. Polmolea that he was expected "to come to Garfield" to complete an application and undergo a medical examination before starting work on September 1, 1993. Mr. Covaci testified that he never saw or heard from Mr. Polmolea after June 30, 1993. Mr. Polmolea failed to show up at Garfield. Mr. Polmolea did not call Mr. Covaci between August 13, 1993 and September 1, 1993 to inform him that he had been involved in an accident and to advise him that he would not be able to attend at Garfield prior to September 1, 1993. Mr. Covaci also did not call Mr. Polmolea after September 1, 1993 to find out why Mr. Polmolea had failed to show up at Garfield. Mr. Covaci testified that he continued with his work as usual. He testified that he only found out that Mr. Polmolea had been involved in an accident in December 1993.

Mr. Polmolea testified that he did not call Mr. Covaci after the accident because he was waiting to hear from Mr. Covaci about where he was supposed to go and the papers that he was supposed to take with him to Garfield.

I believe that Mr. Polmolea and Mr. Covaci had some discussions prior to the accident about Mr. Polmolea working for Mr. Covaci. I also believe that Mr. Polmolea may have accompanied Mr. Covaci on trips to the United States in June. However, after June 1993 no further communication took place between Mr. Polmolea and Mr. Covaci. This can only be explained on the basis that no legal relations had been created between them, i.e., there was no legitimate offer or contract of employment at the time of the accident.

Mr. Covaci testified that he hired a Mr. Jack Jakosiak in 1994, and Mr. Jakosiak made a few trips to and from the United States for him. I am unable to accept this as evidencing an intention on the part of Mr. Polmolea and Mr. Covaci to create legal relations in June 1993. The evidence indicates that Mr. Covaci hired Mr. Jakosiak in 1994 not in place of Mr. Polmolea but because Mr. Covaci was involved in a work-related accident in March 1994 and was unable to drive his truck following the accident. Ms. Kirsten Jahn, a private investigator who was hired by Progressive, in November 1994, to obtain information about Mr. Covaci/C & D Delivery from Garfield, testified that she was advised by Garfield that Mr. Jakosiak made a couple of trips for Mr. Covaci following his (Mr. Covaci's) work-related accident in March 1994.

My conclusion that there was no offer or agreement of employment is strengthened by statements made by Mr. Polmolea to Progressive before December 1993.

On August 17, 1993, Mr. Polmolea was interviewed over the telephone by Mr. Daniel Whelan, an insurance adjuster with Progressive, regarding the accident of August 12, 1993. During the interview, Mr. Polmolea was asked by Mr. Whelan: "Do you have a job now?." He was also asked about his daily activities before the accident and which of these activities he was not able to do as a result of the accident. Mr. Polmolea advised Mr. Whelan that he had no job and that he had been unemployed and on social assistance since he came to Hamilton from Edmonton. He also advised Mr. Whelan that the daily activities which he was unable to perform as a result of the accident were: (I) looking after his two small children the way he used to before the accident, i.e., when his wife went shopping; (ii) looking for work; and, (iii) driving a car. At the end of the interview, Mr. Whelan asked Mr. Polmolea if there was anything else about the accident or injury that he wanted to add. Mr. Polmolea reiterated his earlier comment that because of the accident he was unable to look for work. Mr. Polmolea made no mention of his alleged prospective employment with Mr. Covaci or C & D Delivery or of his inability to perform the tasks required of a truck driver.

On August 19, 1993, Mr. Polmolea filed an "Ontario Automobile Insurance Application for Accident Benefits" form with Progressive.⁷ Again, Mr. Polmolea does not mention his alleged prospective employment with Mr. Covaci or C & D Delivery. In section 5, "Claimant's Medical Condition as a Result of Accident," the nature and extent of the injuries sustained by Mr. Polmolea are described by him as "severe saft (sic) thishue (sic) injury". Nothing appears in the space "If you were Employed at Time of Accident - Do injuries sustained prevent you from performing the essential tasks of your employment? Explain." In the space immediately below that entitled "If you were Not Employed at Time of Accident - Do you suffer a substantial inability to perform the essential tasks in which you would normally engage? Explain," Mr. Polmolea wrote: "Yes. I cant perform any fizicol (sic) work. I can not take care of my children (1- 6 months old and 20 months old). "In section 6 "Claimant's Employment," Mr. Polmolea indicated that at the time of the accident he was unemployed. He placed a check mark in the box for "Unemployed" but he did not place a check mark in the box for "Was Entitled to Start Work within 1 Year."

On October 16, 1993, Mr. Polmolea attended, for a medical assessment, at the offices of Dr. Sol Goldenberg, trauma consultant, at the request of Progressive. Dr. Goldenberg reviewed with Mr. Polmolea, in detail, his past medical, work and social history. Mr. Polmolea failed to mention to Dr. Goldenberg that he had received a job offer, although he advised him that he had been unemployed for about 12 years (since March 1992), that he had operated a restaurant in Edmonton for 3 years which he had closed down and that he had moved to Hamilton in October 1992 with the hope of getting a job as a truck driver.⁸

At the hearing, Mr. Polmolea was asked why he failed to mention the job offer to Dr. Goldenberg. Mr. Polmolea testified that Dr. Goldenberg misreported what he (Mr. Polmolea) told him on October 16, 1993. Mr. Polmolea testified that he told Dr. Goldenberg that he had come to Ontario because he had been promised a job, and not that he came to Ontario with the hope of getting a job as a truck driver.

At the hearing, Mr. Polmolea was also asked why he would say to Mr. Whelan, on August 17, 1993, that he was looking for work at the time of the accident when he claims to have had a job offer at the time. Mr. Polmolea testified that when he told Mr. Whelan that he was looking for work, he meant to say that he was waiting for work. He did not use the correct word because of his very poor English. At that time the word "looking" to him meant "waiting". Mr. Polmolea testified that since the interview with Mr. Whelan his English has improved significantly. He now knows the meaning of "looking" and "waiting" and understands that they are not the same.

Mr. Polmolea was also asked why he made no mention of his prospective employment with Mr. Covaci or C & D Delivery during his interview with Mr. Whelan. Mr. Polmolea's answer was inconsistent and confusing. Mr. Polmolea testified that Mr. Whelan "tricked" him by advising him to talk only about what he was doing at the time of the accident, and not about what he was going to do in the future. Mr. Polmolea also testified that he said he did not have a job because on the day of the accident he did not have a job. Mr. Whelan did not ask him if he had a job offer or a job to go to in the future. Mr. Polmolea testified that, in any event, he told Mr. Whelan about his job with Mr. Covaci.

Mr. Polmolea was also asked why he made no mention of his alleged prospective employment with Mr. Covaci or C & D Delivery in the "Ontario Automobile Insurance Application for Accident Benefits" form which he submitted to Progressive. Mr. Polmolea testified that he did not think to write about the job offer from Mr Covaci under Section 5 of the form. He testified that before placing a check mark in the box for "Unemployed" under Section 6 of the form, he called Progressive because there were also boxes for "Was Entitled to Start Work within 1 Year" and "Unpaid Homemaker" and he did not know what they meant. He testified that a woman at the insurance company and the adjuster, Mr. Whelan, both told him to place a check mark in the box for "Unemployed," even though he told them both that he had a job starting September 1, 1993.

Mr. Whelan was called as a witness by Progressive to respond to Mr. Polmolea's allegations that he had been "tricked." Mr. Whelan had little independent recollection of his telephone interview with Mr. Polmolea of August 17, 1993 but he testified that on that day, with Mr. Polmolea's permission, he recorded his and Mr. Polmolea's entire conversation over the telephone. The micro cassette of the conversation was tendered by Progressive as evidence at the hearing and marked as Exhibit 8.

Mr. Whelan testified that he had been employed with Progressive as a claims adjuster for over 2 years prior to August 1993 and had taken hundreds of statements from claimants. Mr. Whelan testified that his questions to Mr. Polmolea on August 17, 1993 were standard questions. He had no reason to "trick" Mr. Polmolea or to influence his answers. He had never known Mr. Polmolea before August 17, 1993 and had no personal interest in the matter. It did not matter to him whether Mr. Polmolea was employed or unemployed at the time of the accident.

Mr. Whelan also testified that he and Mr. Polmolea understood each other on August 17, 1993. Mr. Whelan conducted the interview without an interpreter. Mr. Whelan testified that it was his practice to terminate the interview and arrange for an interpreter to be present, if he felt that there was a communication problem.

Mr. Whelan could not recall Mr. Polmolea mentioning any job offer. He denied that he would have advised Mr. Polmolea to indicate that he was unemployed, if he had been told by Mr. Polmolea that he had a job starting September 1, 1993.

I accept Mr. Whelan's testimony and reject Mr. Polmolea's testimony that Mr. Whelan "tricked" him. I have listened carefully to the recorded conversation between Mr. Polmolea and Mr. Whelan on August 17, 1993. The questions that were put to Mr. Polmolea during the interview were straightforward and routine questions. I find that Mr. Whelan did not influence Mr. Polmolea's answers or "trick" him in any way. At the end of the interview, Mr. Whelan gave Mr. Polmolea an opportunity to say anything he wanted about the accident or his injury. Mr. Polmolea failed to report his alleged prospective employment with Mr. Covaci. Further, at the end of the interview, Mr. Whelan asked Mr. Polmolea if he understood all of his (Mr. Whelan's) questions. Mr. Polmolea responded that, with Mr. Whelan's help, he (Mr. Polmolea) "understood everything."

My review of the recorded conversation indicates that while Mr. Polmolea's English on August 17, 1993 was far from perfect, Mr. Whelan and Mr. Polmolea understood each other. Mr. Whelan clarified when Mr. Polmolea said he did not understand a question or where it appeared from Mr. Polmolea's answer that he did not understand a question.

On the basis of all of the above, I conclude that Mr. Polmolea has not established that he had a legitimate offer of employment at the time of the accident. Accordingly, he is not entitled to weekly income benefits under section 12 of the Schedule. Mr. Polmolea has been properly compensated, at a rate of $185.00 per week, under section 13 of the Schedule as a person who was unemployed at the time of the accident.

Because I have determined that Mr. Polmolea does not qualify to receive weekly income benefits under section 12(2)1.iii of the Schedule, I need not determine the amount of the weekly income benefit to which Mr. Polmolea would have been entitled under that section.

(b) Expenses:

Mr. Polmolea seeks an award of the expenses he has incurred in this arbitration. An arbitrator's authority to make an award for expenses in favour of an applicant is found under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations. [emphasis added]

Arbitrators have generally exercised their discretion to award applicants their expenses, regardless of outcome. However, expenses have been denied where it has been determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

Progressive submits that it would be inappropriate to award expenses to Mr. Polmolea because his case is without merit and this hearing was unnecessary.

Although I have found that there was no offer or contract of employment at the time of the accident, I believe that Mr. Polmolea and Mr. Cavaci had some discussions prior to the accident about Mr. Polmolea working for Mr. Covaci. However, I found both Mr. Polmolea and Mr.Covaci less than candid in their testimony. The evidence indicates that after November 1993, Mr. Polmolea and Mr. Covaci attempted to construct a claim that would maximize Mr. Polmolea's benefits. Accordingly, I decline to exercise my discretion to award expenses to Mr. Polmolea.

Order:

1. Mr. Polmolea does not qualify to receive weekly income benefits based on an offer of employment. Accordingly, his application for weekly income benefits under section 12(2)1.iii of the Schedule is dismissed.

2. Mr. Polmolea is not entitled to his expenses incurred in respect of the arbitration. Accordingly his application for expenses under section 282(11) of the Schedule is dismissed.

March 22, 1996

Shemin Manji Arbitrator

Date

SCHEDULE A - THE RECORD

Exhibits:

Exhibit 1

Undated handwritten document entitled "Agreement" signed by Mr. Dumitru Covaci

Exhibit 2

Undated handwritten document signed by Mr. Dumitru Covaci

Exhibit 3

Trip Sheets (6) and visa receipts for gas (5) for the period June 2, 1993 to June 28, 1993

Exhibit 4

Ontario Automobile Insurance Application for Accident Benefits of Mr. Nicolae Polmolea dated August 19, 1993

Exhibit 5

Ontario Automobile Insurance Medical or Psychological Report (Form 4) of Dr. Sheryl Shoham dated October 12, 1993

Exhibit 6

Report of Dr. Sol Goldenberg dated October 16, 1993

Exhibit 7

Rehabilitation Assessment Report of the Canadian Back Institute dated April 12, 1994

Exhibit 8

Micro cassette of conversation between Mr. Nicolae Polmolea and Mr. Dan Whelan on August 17, 1993

Exhibit 9

2 handwritten documents dated December 28, 1994 signed by Mr. Dumitru Covaci

Other documents before the Arbitrator, but not marked as exhibits:

Report of Mediator dated June 3, 1994

Application for Appointment of an Arbitrator dated June 29, 1994

Response by Insurer dated August 5, 1994

Reply by Insured Person dated August 15, 1994

Pre-hearing letter dated December 19, 1994 (pre-hearing held December 15, 1994) by Arbitrator Mackintosh

SCHEDULE B

Authorities submitted by Progressive:

1. Robert Oshana and Progressive Casualty Insurance Company and State Farm Mutual Automobile Insurance Company, November 17, 1994, OIC File No. A-002167

2. Elizabeth Ann Arsenault and Guardian Insurance Company of Canada, November 17, 1993, OIC File No. A-003173

3. Joseph Marry and Sun Alliance Insurance Company, March 12, 1993, OIC File No. A-002329

4. David Senater and Simcoe & Erie General Insurance Company, October 28, 1994, OIC File No. A-007147

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. 2Exhibits 4 and 6
3. 3Exhibit 6
4. 4Exhibits 5 and 6
5. 5See also Robert Oshana and Progressive Casual ty Insurance Company and State Farm Mutual Automobile Insurance Company, November 17, 1994, OIC File No. A-002167, Lawrence Reid and Co-operators General Insurance Company, April 11, 1995, OIC File No. A-005291 and Gerard J. Lessard and Canadian General Insurance Company, September 7, 1995, OIC File No. A-009269
6. 6Mr. Baba passed away in 1993.
7. 7Exhibit 4
8. 8Exhibit 5