ONTARIO INSURANCE COMMISSION
Neutral Citation: 1996 ONICDRG 79 File No.: A-010811
BETWEEN:
Alton Jeffery Jackson, Applicant
and
Kingsway General Insurance Company, Insurer
DECISION
The Applicant, Alton Jeffery Jackson, was injured in a motor vehicle accident on September 8, 1993. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 Weekly income benefits were terminated by the Insurer on February 2, 1994. 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:
- What is the correct amount of any weekly income benefit to which Mr. Jackson may be entitled?
- Is Mr. Jackson entitled to weekly income benefits beyond February 2, 1994?
- Is Mr. Jackson entitled to the Supplementary Medical and Rehabilitation Benefits set out in Exhibits 1 and 15?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
The correct amount of the Applicant's weekly benefit payable from September 15, 1993 to February 2, 1994 is $185.60, which amount the Insurer has already paid to the Applicant.
The Applicant is not entitled to any weekly benefits beyond February 2, 1994.
The applicant is entitled to $537.64 in supplementary medical benefits, together with interest thereon at the rate of 2% per month commencing on January 9, 1996.
The Applicant is entitled to his filing fee for arbitration, plus reasonable expenses for photocopying the receipts for medical and rehabilitation expenses submitted to the Commission and the Insurer.
Hearing:
The hearing was held in North York, Ontario, on October 19, and 20, 1995 and January 8, and 9, 1996, before me, Stewart McMahon.
Present at the Hearing:
Applicant: Alton Jeffery Jackson
Applicant's Representative: Gary Will - With respect to October 19 and 20, 1995 only Barrister and Solicitor
Insurer's Representative: Myron L. Sidenberg, Q.C. Barrister and Solicitor
Insurer's Officer: Carol Thurlow
Witnesses:
Mr. Alton Jackson, Dr. Joseph Wong, Ms Laura Westover, Mr. Chris McIntyre, Mr. Ken Herbert, Mr. Paul Reed, Mr. Karl Walter, Ms Carol Thurlow.
Exhibits:
19 Exhibits were filed, they are listed in Schedule "A" to these reasons. Representation on behalf of the Applicant:
Mr. Jackson was unrepresented until shortly before the originally scheduled arbitration date of August 23, 1995. At the request of his counsel, Mr. Gary Will, the hearing was adjourned until October 18, and 19. 1995, to allow counsel time to prepare the Applicant's case. Mr. Jackson was represented by Mr. Will at the hearing on October 18, and 19, 1995. Mr. Jackson was not content to allow his counsel to present his case and frequently interjected. At the end of Mr. Jackson's examination in chief, he asked for an opportunity to 'have his say', which I allowed.
Originally, only two days were scheduled for the hearing. At the end of the second day the matter had not been concluded and it was scheduled to resume on January 8, and 9, 1996. During the first two days in October, Mr. Will called the Applicant and his former common law spouse and Dr. Chan, a physiatrist, to give evidence. Mr. Will had placed three further witnesses under summons to testify concerning Mr. Jackson's pre-accident employment. One of these individuals, Mr. Ackbarally was unavailable as he was in Atlanta, Georgia. Another, Mr. Brain, attended on the first day of the hearing, but telephoned on the second to advise that his car had broken down while on route from "up north," and he had no other means of transportation available. Mr. Will indicated that he would be calling these two individuals upon the resumption of the hearing in January. No mention was made of the third individual who was served with a summons.
Shortly before the resumption on January 8, 1996, the Commission received correspondence from Mr. Will advising that Mr. Jackson had terminated his retainer. At the commencement of the hearing on January 8, 1996, Mr. Jackson confirmed that he intended to represent himself. Mr. Jackson advised that the decision to call witnesses to corroborate his pre-accident employment had been Mr. Will's, and that he would not be calling them.
To assist Mr. Jackson, I reviewed the provisions of sections 6 and 12 of the Schedule, and confirmed what documentation had been filed as exhibits. Mr. Jackson filed two further medical reports (Ex's 12&13) and a number of receipts. He also asked for an opportunity to give further evidence concerning the receipts, which I allowed. Mr. Jackson then closed his case and the balance of the hearing was occupied by the Insurer's evidence and reply evidence by Mr. Jackson and his former common law spouse.
Evidence and Findings:
1. DEMEANOR AND CREDIBILITY OF THE APPLICANT
Mr. Jackson's evidence was far from satisfactory. His testimony on key points was often vague and contradictory. Mr. Jackson was frequently argumentative and sought to deflect important avenues of inquiry. Wherever there is a conflict on a significant point between the evidence of Mr. Jackson and other witnesses, or a conflict between Mr. Jackson's viva voce evidence and documentary evidence, I prefer the alternate evidence.
2. ENTITLEMENT TO WEEKLY INCOME BENEFITS
(i) The Law
Section 12(1) of the Schedule sets out the basis for entitlement to weekly income benefits.
Section 12(1) reads as follows:
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 if the insured person meets the qualification set out in subsection (2) or (3)
(ii) Pre-accident Work History
The Applicant must establish through the presentation of credible evidence what his pre-accident work history was. This history is vital for two purposes. Firstly, it provides the basis for defining the essential tasks of the insured's employment or occupation. Secondly, it provides the basis for calculating the insured's pre-accident earnings, which in turn provides the basis for calculating the amount of the benefit.
The exhibits filed at the hearing indicate that Mr. Jackson told the Insurer's representative and all of the people involved with his immediate post accident care, that at the time of the accident, he was a self employed handyman involved in construction work and landscaping. These documents include:
- The Application for Accident Benefits signed by Mr. Jackson on September 13, 1993.
- A statement signed by Mr. Jackson on September 15, 1993.
- The report of a examination by Dr. Mascarenhas conducted on behalf of the Insurer on October 6, 1993.
- The Rehabilitation Assessment Summary form completed by employees of the Canadian Back Institute on December 21, 1993.
- The clinical notes and records of Mr. Jackson's family physician Dr. T.S. Ying.
In July 1994, some ten months after the accident, Mr. Jackson advised the Insurer for the first time, that in addition to working as a handyman, he was employed on a full time basis by Global Courier Service as the company's "shipper and receiver." Mr. Jackson supported this allegation with a letter on Global Courier Service letterhead, dated July 26, 1994. The letter states:
This is to confirm that Mr. A.J.Jackson was employed with Global Courier Service from June 3rd, 1993 to September 8th, 1993. He earned a salary of $600 weekly as a shipper and receiver.
The letter was signed by Mr. I. Ackbarally.
In January 1996, the Insurer contacted Mr. Ackbarally in an effort to obtain payroll records. Mr. Ackbarally advised that he could not produce them, because his accountant had them. However he did provide the Insurer with a letter dated January 5, 1996 which states:
Mr. Jackson was employed by Global Courier Service from June 3, 1993 to September 8, 1993:
Total payroll for period $3219.66
Office renovations July'93 825.00
Renovations to Owners resident[sic] Aug '93 2000.00
Total Earnings $6044.66
Last pay cheque September 21, 1993 600.00
Mr. Jackson testified that Global Courier Service was a small company with approximately 6 employees, that made deliveries for a number of retail businesses. He stated that he worked as the company's Shipper and Receiver. According to Mr. Jackson, this involved receiving packages from various corporate customers, and loading them into the driver's vehicles. Mr. Jackson testified that he worked 45 to 50 hours per week in this capacity.
Mr. Jackson also stated that he acted as the company's sales manager.
When Mr. Jackson was asked for the address of the business, he stated that it was run from a house on Aloma Cres. He could not provide the house number, and was unsure if it was in Mississauga or Brampton. When asked how many shipments the company made in a week he replied, "It's beyond me."
Mr. Jackson testified that he was frequently paid in cash, and that he was not issued a T4 slip.
Mr. Ken Herbert, a private investigator retained by the Insurer, talked to Mr. Ackbarally some time in late 1995 or early 1996. Mr. Herbert testified that Mr. Ackbarally told him his accountant had the payroll records, but that Mr. Jackson had worked for him form June to September as a shipper receiver.
Mr. Jackson's former common law spouse, Ms. Laura Westover, also testified on his behalf. Mr. Jackson and Ms. Westover still live in the same house. Ms. Westover owns the house and Mr. Jackson rents the basement. Ms Westover referred to Mr. Jackson's position as shipper receiver, but her description of the job made it appear to be that of a courier.
The Insurer asked Mr. Jackson at the outset for details concerning his pre-accident earnings. Mr. Jackson had no apparent reason for not advising the Insurer of his employment with Global from the outset. To the contrary it was to his advantage. It was only after the Insurer consistently refused to pay Mr. Jackson more than the minimum benefit, because of the lack of evidence concerning his income as a handyman, that any reference was made to working as a shipper and receiver. In light of this, the evidence concerning Mr. Jackson's alleged employment by Global Courier Service must be subjected to careful scrutiny.
Mr. Jackson testified that he had earlier forwarded other letters from Mr. Ackbarally to the Insurer. Mr. Jackson could not provide copies of these letters. Ms. Thurlow, the Insurer's representative at the hearing, testified that a review of her file did not reveal any prior letters from Mr. Ackbarally. I do not accept Mr. Jackson's evidence on this point.
When the two letters from Global Courier Service are compared it is immediately evident that they are not consistent. Firstly, the initial letter states that Mr. Jackson worked as a shipper and receiver, at a salary of $600 per week. This suggests a full time job in a single capacity. The second letter refers to Mr. Jackson as being employed at three distinct functions; namely as a shipper and receiver, as a contractor doing work for the business and as a contractor doing private work for Mr. Ackbarally. With respect to the shipper receiver aspect, the total salary divided over the approximately 14 weeks of alleged employment is only $230 per week, suggesting that either the work was part-time only, or intermittent. In light of these inconsistencies I conclude that the letters are not reliable evidence of the nature or extent of Mr. Jackson's involvement with Global Courier Service, or its owner Mr. Ackbarally. As noted above, Mr. Jackson chose not to call Mr. Ackbarally, despite the fact that his former counsel had served him with a summons. Accordingly, I do not have the benefit of Mr. Ackbarally's evidence.
Mr. Jackson's own evidence was less than convincing, particularly his inability to provide any of the details one would normally expect of a shipper receiver, such as the address of the business, or some indication of the number of shipments made by the company during the course of a week.
Considering all of the evidence, I am satisfied that in the summer of 1993, Mr. Jackson did some renovation work at Mr. Ackbarally's house and place of business. This type of work is consistent with Mr. Jackson's work history as a handyman. He may also have done some work for the business, loading and making deliveries, but I find that at best this aspect of the relationship provided Mr. Jackson with occasional work.
I turn now to a consideration of the nature and extent of Mr. Jackson's activities as a self employed contractor.
Mr. Jackson testified that he graduated from a two year course at the Toronto School of Business approximately 8 years ago, and with only one significant exception was continuously employed in automobile sales and construction from his graduation to the date of the accident. His income tax returns for the years 1989 through 1992 belie this evidence. In 1989 Mr. Jackson reported a net income of only $4,193.00. In 1990 he reported earnings of $5,570 and UIC payments of $394.00. In 1991 he reported earnings of $12,385, and UIC payments of $1,440.00. In 1992 his earnings dipped to $5,654, but he received UIC payments of $7,680.00. 1992 is the first year that Mr. Jackson reports any self employed activity, reporting a business loss of $1,822.00.
Mr. Jackson did not file a tax return for 1993; the year of the accident, nor for any subsequent year.
Mr. Jackson testified that he last worked as a car salesman some time in 1992 or 1993, and since that time has earned his living as a self employed contractor engaged in landscaping and construction projects.
As noted above, Mr. Jackson was interviewed shortly after the accident by a representative of the Insurer. At that time, he was asked for his business records. Because he had none, the representative suggested to Mr. Jackson that he obtain letters from the people he had worked for.
Mr. Jackson delivered only two such letters to the Insurer. Both letters were filed as exhibits.
The first is a letter dated November 12, 1993 signed by Wilf Brain. The typed portion states:
This is to acknowledge that Alton Jeffrey Jackson was employed by myself as a sub-contractor for a period extending from June to September.
Someone has written in, after the word "September," the following notation: "($2,500 - 2,900. mo)" The second letter is dated November 20, 1993 and signed by a W. Bennett. The typed portion states:
This letter certifies that A.J. Jackson worked for us finishing our basement. He did some electrical and plumbing work as well as landscaping. He worked for us at intervals, as needed since January of 1993.
Someone has written in, after "1993," the following notation: "To September 93 (approx. $8,790)."
I heard no evidence as to who altered these letters, or when. During the course of the hearing Mr. Jackson referred to only three contracts.
One contract was for Mr. Wilf Brain. Mr. Jackson referred to some sub-contracting work doing post-fire clean up. I heard no evidence as to when this work was undertaken or its duration. Mr. Jackson also referred to a project at Mr. Brain's residence, where he erected a berm with railway ties, laid flagstones for a path, and laid sod. Mr. Jackson recalled doing some of this work at night and during the course of three full weekends over the summer of 1993. He could not provide the dates when he worked, but when asked by his counsel if he worked on the project in the four weeks immediately preceding the accident, he replied in the affirmative.
The second contract was for Mr. and Mrs. Bennett. Mr. Jackson testified that he did the work periodically, principally in exchange for a place to stay when he was working in that part of town. Mr. Jackson was asked if the Bennetts were friends. He replied that if the people he dealt with were decent, the relationship inevitably became friendly. However I note that the Emergency Record of the Scarborough General Hospital, listed W. Bennett as Mr. Jackson's sister, and he provides her address as his own. I am satisfied that Mr. Jackson intentionally hid this fact from the Insurer and the Commission, so that it would appear that the letter confirming the work at the Bennett residence was from a disinterested third party.
The third contract was for Mr. Ackbarally. The details concerning this project are set out above.
I find that the letters signed by Mr. Brain and Mrs. Bennett are of little value to me in defining the scope of the work done by Mr. Jackson. The letters provide little or no detail concerning the scope or extent of the work. Each of the letters were altered after they were typed to add references to the dollar value of the contracts, however no evidence was tendered, as to who added the references, or when. Again, Mr. Jackson chose not to call the authors, despite the fact that they had been served with summons, and accordingly I do not have the benefit of their evidence.
The evidence tendered by Mr. Jackson suggests to me that he worked principally on small residential projects, and that the work was not constant.
In conclusion, I find that at the time of the motor vehicle accident, Mr. Jackson was a self employed handyman, who contracted out his services doing renovation and landscaping work. This work is physically demanding, and required Mr. Jackson to stand for extended periods, to lift and carry heavy objects, and to work with hand-held power tools. However as a self employed individual, Mr. Jackson had considerable flexibility in defining the hours and pace of his work, and I am satisfied there were considerable periods of down time" between projects.
(iii) Quantum
Section 12 of the Schedule provides that the quantum of a weekly income benefit is to be 80% of the insured's gross weekly income after certain deductions that do not apply here. The section also provides for a minimum benefit of $185.60 regardless of the insured's pre- accident income. Finally the section allows the insured to elect to calculate his benefit based upon his income in the four weeks immediately preceding the accident, or the 52 weeks immediately preceding the accident. In either case it is incumbent on the insured to prove through credible evidence what his income was, failing which his benefit will be limited to the minimum benefit of $185.60 per week.
In this case, Mr. Jackson was unable to prove what his income was in either the 4 or 52 weeks preceding the accident.
For the reasons stated above I give the letters from Global Courier Service very little weight. Likewise, I place very little weight on the letters from W. Bennett or Wilf Brain. Mr. Jackson's own evidence is insufficient to establish his income. I do not accept his evidence concerning his work at Global Courier Service. With respect to his income from construction and landscaping his evidence was vague and inconsistent, and was insufficient to allow me to calculate with any certainty his income in either the 4 or 52 weeks preceding the accident. In addition, I draw an adverse inference from the fact that Mr. Jackson chose not to file an income tax return for 1993.
In the absence of credible evidence to establish Mr. Jackson's income I find that he is entitled to the minimum benefit of $185.60 per week.
(iv) The motor vehicle accident and the Applicant’s initial treatment and rehabilitating
The motor vehicle accident occurred on September 8, 1993 at approximately 1:45 in the afternoon. Mr. Jackson testified that he struck the side of another vehicle which was attempting to make a U turn in front of him. Mr. Jackson declined transportation to hospital by ambulance, but later that day a friend who picked him up at the accident scene took him to the Emergency Department of the Scarborough General Hospital. A review of the Emergency Record reveals negative findings upon an examination of the cervical spine and skull, a tender right shoulder, a tender right knee, a tender lower back, and a sore finger on the left hand. These same complaints are reported in the statement signed by Mr. Jackson on September 15, 1993, and in the clinical notes and records of Dr. Chan, a family practitioner who saw Mr. Jackson shortly after the accident.
In contrast to this evidence, Mr. Jackson testified that he injured both his knees and shoulders, and that he struck his head on the interior roof of the car. He could not adequately explain why the documents refer only to right knee and shoulder pain, and there is no reference to a head injury. I am satisfied that Mr. Jackson's complaints are accurately set out in the above mentioned documents.
Mr. Jackson was referred for a course of physiotherapy at Joints and Things, which commenced on September 29, 1993, and ended on December 21, 1993.
On October 6, 1993, Mr. Jackson was seen on behalf of the Insurer by Dr. Mascarenhas. It is worth mentioning that at the start of Dr. Mascarenhas' report he noted that Mr. Jackson was a somewhat reluctant and evasive historian. The doctor opined that Mr. Jackson would be symptomatic into the future, but that he did not anticipate any permanent symptomatology or residual disability, and that after completing his course of physiotherapy over the next month or so he would be fit to return to work as a handyman.
On December 21, 1993, Mr. Jackson was referred to the Canadian Back Institute (CBI) for a physiotherapy assessment. As a result of the assessment, Mr. Jackson was enrolled in a 20 to 25 day rehabilitation program. The client is normally expected to attend daily, for between 2 to 4 hours, with the workload increasing over the course of the program. Mr. Jackson was dissatisfied with the program. He is a muscular individual and at the time of the accident, he had a gym set up in his basement, where he regularly worked-out with weights. He found that most of the exercises scheduled for him at the CBI were well below his tolerances. He refused to attend for more than two hours per day. Chris McIntyre, the exercise therapist assigned to Mr. Jackson's file, testified that Mr. Jackson advised him that he saw no need to attend for more than two hours, because he would get no more benefit from a prolonged stay, and he had other important things to do. Having reviewed the reports and heard from Mr. McIntyre, I am satisfied that there is some merit to Mr. Jackson's complaint that the program was not well suited to his needs, but I do not believe this fact supports his claim of continuing disability.
Towards the end of January the staff at the CBI concluded that Mr. Jackson was fit to return to work as a construction worker. The Discharge Summary from the CBI records that Grace Liu, a physiotherapist, discussed the matter with Mr. Jackson's family physician, Dr. Ying, who concurred. When Mr. Jackson was advised of this conclusion, a argument ensued during which Mr. Jackson alleged that the CBI staff lied about their conversation with Dr. Ying. Mr. Jackson refused to return to the program. From a review of Dr. Ying's clinical notes, I am satisfied that Dr. Ying did speak with Ms. Liu, and concurred with the opinion that Mr. Jackson was fit to return to work.
The Insurer terminated weekly income benefits on February 2, 1994.
(v) Post accident employment.
Mr. Jackson has held a number of jobs in construction and sales since his departure from the CBI program. The first was in February 1994. Mr. Jackson was hired by Century Interiors to do interior demolition work on a residential premises. Mr. Jackson was responsible for removing carpeting, fixtures, and drywall. He worked 8 hours per day for approximately three weeks.
In mid September 1994, Mr. Jackson was hired by Everest Restoration. It would appear that this work was heavier than the work at Century Interior. Mr. Jackson was removing and replacing brickwork on the outside of a multi-storey building. This work required him to descend from the roof of the building in a sling, and to manipulate a jackhammer and a power saw, to remove the brick. Mr. Jackson stayed at this job for approximately three weeks.
There is a reference in Dr. Ying's clinical note of December 15, 1994 to "now working" Mr. Jackson denied that he was working in December. He suggested the note could mean almost anything, and that for example he considered showing up for the hearing as "work." In common parlance, "working" means employment. Dr. Ying would have no reason to make the notation, unless Mr. Jackson advised him that he was employed. I am satisfied that Mr. Jackson was employed in December 1994.
In the spring of 1995 Mr. Jackson worked for a short while at a health products store as a picker/packer.
In the summer of 1995 Mr. Jackson worked at a car dealership as a used car salesman for approximately a month. He left after an argument with the owner, and has threatened a wrongful dismissal suit.
Mr. Jackson testified that he quit all other jobs because the pain was unbearable and he could only cope by consuming alcohol and enough drugs to kill a horse." Ms. Westover testified that when Mr. Jackson found a job, he obtained painkillers, which he then overconsumed, to deal with the pain.
Mr. Jackson testified that he remains unable to lift his right arm above his head, that his low back feels like a ball of fire" and that his knees swell up and are painful if he walks even a few blocks. As I will set out more fully below these complaints are not borne out on medical examinations carried out in 1994 and 1995.
(vi) Subsequent medical opinions
In August 1994, Mr. Jackson saw Dr. Woolford, an orthopaedic surgeon. Dr. Woolford's observations and opinions are set out in a report dated August 18, 1994, which was filed at the hearing. The only remarkable findings were a slightly painful arc of abduction in Mr. Jackson's right shoulder, and slight stiffness on forward flexion of his lumbar spine. In all other respects Mr. Jackson's examination was normal. Dr. Woolford acknowledged that Mr. Jackson would need analgesics from time to time, but felt that he should try to return to work in September. It would appear that Dr. Woolford was not advised of the work stint in February 1994. In my opinion Dr. Woolford's report does not establishes that Mr. Jackson was disabled at the time he saw him in August 1994.
At some point in 1994, Mr Jackson switched family doctors. Mr. Jackson testified that Dr. Ying was incompetent, and sent him to ineffective specialists. I received no evidence concerning his new family physician's findings.
In July 1995, Mr. Jackson's new family physician referred him to Dr. Wong, a Physiatrist. Mr. Jackson saw Dr. Wong on July 25, 1995, and August 16, 1995. Dr. Wong's report dated October 5, 1995 was filed at the hearing and Dr. Wong was called to testify.
Dr. Wong recorded his impressions after the first visit as follows: "Mr. Jackson has diffuse body pain. The pain intensity is not very severe, but, I find that he is very stiff. His chronic insomnia is contributing to a lot of his muscle stiffness." On the second visit Dr. Wong recorded that Mr. Jackson's chronic neck and muscle pain had improved. He accounted for this by the reduction in Mr. Jackson's insomnia. He recorded his impressions as follows; 1. Mild chronic myofascial pain syndrome involving his neck and back muscles. 2. Anxiety disorder and depression. 3. Chronic insomnia. Dr. Wong related all of these problems to the motor vehicle accident. In his report and while testifying Dr. Wong indicated that, when he first examined Mr. Jackson, he did not believe that he was fit to return to his pre-accident employment. Because of the reduction in his physical symptoms Dr. Wong opined that Mr. Jackson was physically fit to work by the time of his second examination, on August 16, 1995. However Dr. Wong did not believe that Mr. Jackson was psychologically fit to return to work.
I place very little weight on the opinion provided by Dr. Wong. Despite the fact that he acknowledged that obtaining a history from Mr. Jackson was difficult, he did not obtain a report or clinical notes from Dr. Ying, so that he could trace the development of his symptoms, nor did he have the reports of Drs. Mascarenhas or Woolford. He was unaware of the fact that Mr. Jackson had engaged in construction work on at least two occasions. He placed a great deal of significance on Mr. Jackson's mental state of health, but had no report from a psychiatrist. Finally Mr. Jackson told him that prior to the motor vehicle accident, he operated a construction company that grossed $98,000 a year and required him to work 5 or 6 full days per week. In response to a question posed by me, Dr. Wong admitted that if the nature of Mr. Jackson's work was such that he could pace himself so as to take 15 minute breaks every couple of hours he was capable of working a full day.
Dr. Woolford saw Mr. Jackson again in June 1995. The report of the physical exam is unremarkable. Mr. Jackson did have one new complaint, namely slight discomfort on movement of the right hip. No explanation for this was provided. Dr. Woolford did note the existence of overlying anxiety and depression. Dr. Woolford saw no need for further treatment.
Dr. Ying authored a report dated August 14, 1995, which chronicles his involvement with Mr. Jackson. The first point worth noting is that Mr. Jackson saw Dr. Ying on only three occasions after September 1994. In May 1995, Mr. Jackson reported persistent back pain, but his physical examination was normal. Dr. Ying reported that Mr. Jackson was suffering from chronic myofascial pain syndrome and undue psychological overlay. He also suggested that due to his long absence from work, his prognosis for returning is poor. This is presented as a simple statement of fact and does not address the central question, of whether or not Mr. Jackson is capable of performing the essential tasks of his occupation.
Mr. Jackson claims to have become depressed about a month or so post accident. This is corroborated by Ms. Westover. However Mr. Jackson did not begin to see psychiatrist until the summer of 1995. No medical report from the psychiatrist was filed In my view, Mr. Jackson has not tendered sufficient evidence to establish a psychological disability.
Mr. Jackson attended the first day of the hearing walking with the assistance of a cane, which he testified he had been using for about a month. No medical evidence on the point was filed, no explanation as to why the cane was necessary, was provided, nor was there any evidence linking the complaint to the motor vehicle accident.
During the last two days of the hearing Mr. Jackson could frequently be seen grimacing and pushing the thumb of his right hand into his groin. No evidence was called to explain the nature of the complaint or to link it to the motor vehicle accident.
(vii) Conclusion regarding entitlement to weekly benefits
Having considered all of the evidence, I am not satisfied that Mr. Jackson has tendered any reliable evidence to support his contention that after February 1, 1994 he remained disabled from carrying on his trade as a handyman. I accept that as of February 1, 1994, Mr. Jackson was still symptomatic, but I am not satisfied that the extent of those symptoms would have prevented him from carrying out projects of the type he was engaged in at the time of the accident. In that regard I conclude that to bolster his claim for benefits, Mr. Jackson both exaggerated the nature of the work he was engaged in at the time of the accident, and magnified his post accident complaints. Despite my concerns about the rehabilitation program designed by the staff at the CBI, its reports contains the best evidence of what Mr. Jackson's capabilities were. This evidence suggests that while Mr. Jackson continued to suffer from some residual impairments, they were not sufficient to prevent him from returning to work. I accept this evidence. The opinions expressed by Dr. Wong are largely based upon Mr. Jackson's subjective complaints, which I have found are unreliable. The reports of the other physicians who saw Mr. Jackson in 1994 and 1995, suggest to me that while he remained symptomatic, he was not substantially disabled.
(v) Post-Accident Income
In light of the fact that I have concluded that Mr. Jackson is not entitled to any weekly income benefits beyond February 1, 1994, I need not deal with the question of any post accident income.
3. ENTITLEMENT TO SUPPLEMENTARY MEDICAL BENEFITS
The supplementary medical benefits being sought by Mr. Jackson, are set out in Exhibits 1, and 15. It does not appear that any of these receipts were delivered to the Insurer outside of the mediation and arbitration process. The Insurer was content to deal with the requests, and indicated that it would review them in the interval between the end of the first two days of the hearing and its resumption in January 1996. In January, the Insurer indicated that it was denying all the requests. What follows are my rulings on each of the requests, with short reasons where necessary.
Exhibit 1 tab 1 - Prescription receipts
The only evidence with respect to these receipts was given by Mr. Jackson, who indicated that he purchased all of the drugs and they were purchased to deal with symptoms emanating form the motor vehicle accident. No attempt was made to explain what the drugs were prescribed for and no medical evidence was filed. Some of the drugs are for well known antibiotics, and are clearly unrelated to the motor vehicle accident. I do not accept Mr. Jackson's evidence that a prescription for a skin ailment was related to the accident. I am not satisfied that Mr. Jackson has tendered sufficient evidence to establish that the prescriptions are related to the motor vehicle accident.
This claim is disallowed.
Exhibit 1 tab 2 - Chiropractic expenses.
These treatments date from August 1995 to October 1995. Mr. Jackson testified that he was attending for chiropractic treatments because of continuing symptoms in his back. A number of the doctors have indicated that Mr. Jackson could expect to remain symptomatic. I am satisfied that this expense is reasonable. The total portion not covered by OHIP is $190.35. I allow this amount.
Exhibit 1 tab 3 - Parking receipts.
One receipt pre-dates the accident, the other is undated. This claim is disallowed.
Exhibit 1 tab 4 - Mileage claim for attendances at CBI - 12 visits.
Mr. Jackson testified that he had not measured the distance, but that he estimated it to be between 30 to 35 kilometres. I allow 30 kilometres x 12 visits x 30 cents per kilometre for a total of $108.00
Exhibit 1 tab 5 - clavicle strap, knee brace and corset.
All of these items were prescribed by Dr. Wong. The items are for the treatment of complaints that are consistent with Mr. Jackson's initial complaints I allow the expenses totalling $174.79.
Exhibit 1 tab 6 - Community Centre Membership (not yet purchased).
Mr. Jackson has a gym in his basement, and has already had the benefit of a supervised physiotherapy program, which I note he discontinued. This claim is disallowed.
Exhibit 15 pages 1 and 2 - Prescription receipts.
These claims are disallowed for the same reasons as set out above.
Exhibit 15 page 3 - Chiropractic expenses.
This claim is allowed for the same reasons as set out above. Amount allowed $64.50.
Exhibit 15 page 4 - Parking.
This claim was withdrawn.
Total supplementary expenses allowed: $537.64. Because these claims were not submitted to the Insurer in advance of the arbitration proceedings I have determined that no interest accrues until the last day of the Arbitration hearing.
4. EXPENSES
I have found that Mr. Jackson's claim for further weekly income benefits was wholly without merit, in that it was not supported by any reliable evidence, I decline to award Mr. Jackson his expenses with respect to this aspect of the claim. I have allowed Mr. Jackson a number of his supplementary medical expenses. However these receipts were not provided to the Insurer in advance of the Arbitration process, in fact some of the receipts were not produced until the third day of the hearing. Considering all of the circumstances, I award the Applicant the cost of filing for Arbitration plus reasonable expenses for photocopying the receipts delivered to the Commission and the Insurer.
Order:
The Applicant's claim for further weekly income benefits beyond February 2, 1994, is dismissed.
The correct amount of the weekly income benefit is $185.60. As this amount was paid to the Applicant during the period of his entitlement to weekly benefits, no further weekly benefit is payable.
The Insurer shall pay to the Applicant Supplementary Medical and Rehabilitation benefits totalling $537.64 together with interest at the rate of 2% per month from January 9, 1996.
The Applicant is entitled to the cost of filing for Arbitration plus a reasonable amount for the photocopying of the receipts for medical and rehabilitation expenses submitted to the Commission and the Insurer.
May 17, 1996
Stewart McMahon Arbitrator
Date
List of Exhibits
- List of supplementary Medical and Rehabilitation Expenses
- Letter from Wilf Brain, dated November 12, 1993
- Letter from W. Bennett, dated November 20, 1993
- Letter from Global Courier, dated July 26, 1994
- Revenue Canada Computer summary 89, 90, 91, 92
- Application for Accident Benefits
- Hospital Record, Scarborough General Hospital - Emergency Room
- Handwritten statement signed by Mr. Jackson, on September 15, 1993
- Insurer's Medical Brief
- Report of Dr. Wong, dated October 5, 1995
- CBI Progress Report and notes
- Report of Dr. V. E. Hajek, dated August 11, 1995
- Report of Dr. Woolford, dated June 28, 1995
- Report of Dr. Ying, dated August 14, 1995
- Receipts for Medical and Rehabilitaion Expenses
- Timesheet and Application from Everest Construction
- Statement from Ackbarally, dated January 5, 1996
- Ten (10) pictures, taken by Mr. Waters, December 24, 1993
- Letter from Paul McEwen of Coopers' & Lybrand to Mr. Jackson, dated January 18, 1994