Neutral Citation: 1996 ONICDRG 91

File No.: A-014428

ONTARIO INSURANCE COMMISSION

BETWEEN:

GEORGE NORTON

Applicant

and

COLONIAL PENN INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, George Norton, was injured in a motor vehicle accident on September 4, 1992. He originally received statutory accident benefits payable under Ontario Regulation 672¹ from the Pilot Insurance Company in Ontario. Carriage of the claim was then assumed by the Colonial Penn Insurance Company, Mr. Norton's personal insurer in the United States. Weekly income benefits were terminated by the Insurer on December 31, 1992. Supplementary medical and rehabilitation expenses continued to be covered by the Insurer except for items related to Mr. Norton's heart condition and other miscellaneous claims. 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. Norton entitled to weekly income benefits from January 1, 1993 onwards pursuant to sections 12(1) and 12(5)(b) of the Schedule?

2. Is Mr. Norton entitled to additional supplementary medical and rehabilitation benefits from January 1, 1993 pursuant to section 6 of the Schedule?

3. Is the Insurer entitled to deduct certain Canada Pension Plan benefits from any weekly income benefits owed to Mr. Norton pursuant to section 12(4)(b) of the Schedule?

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

Result:

1. Mr. Norton is not entitled to further weekly income benefits.

2. Mr. Norton is not entitled to further supplementary medical and rehabilitation benefits.

3. As no additional weekly income benefits are owing to Mr. Norton, no determination is necessary concerning the deductibility of Canada Pension Plan benefits by the Insurer.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York on November 7, 8 and 9, 1995. Final written submissions on the issue of the deductibility of Canada Pension Plan benefits were completed November 24, 1995.

Present at the Hearing:

Applicant:

George Norton

Applicant's Representative:

William A. McClelland Barrister and Solicitor

Insurer's Representative:

J. Douglas Wright Barrister and Solicitor

Insurer's Officer:

Mr. Sandy Schoenstein

Witnesses:

Mr. Norton, Dr. Kyriacos Louloupides, Dr. Robert McBurney, Dr. Henry Berry, Mr. Schoenstein

Exhibits:

The parties filed 50 exhibits, including a surveillance tape of Mr. Norton.

Facts and Findings:

Background

On September 4, 1992, Mr. Norton was hit by a car as he attempted to cross the street at a crosswalk in Belleville, Ontario. He was 66 years old at the time and a resident of Washington State, U.S.A. He was born in Beeton, Ontario, and currently lives in Belen, New Mexico. Mr. Norton was visiting a friend in Belleville at the time of the accident. Within a week or two of the accident, Mr. Norton was driven by a friend back to his home in Everson, Washington. Mr. Norton claims that he suffered various injuries as a result of the accident and that these injuries have prevented him from returning to his former occupation of prospector or to any job for which he is reasonably suited. He also maintains that he has incurred various medical costs which reasonably result from the motor vehicle accident.

Mr. Norton's entitlement to accident benefits initially appeared to proceed on the basis that he was entitled to begin work as a prospector pursuant to a legitimate offer of employment within the meaning of section 12(2)1.iii of the Schedule. Mr. Norton had apparently been a prospector for some period prior to the accident. In final submissions, counsel for Mr. Norton suggested that the issue of entitlement could be determined in relation to either the offer of employment or Mr. Norton's previous occupation which, it was submitted, involved the same employment duties. The Insurer disputed Mr. Norton's ability to use either position in determining entitlement and maintained that the focus of the inquiry should be on the offer of employment. The Insurer further submitted that if the employment offer was the reference point, then any ongoing entitlement should be considered under section 13 of the Schedule following the date on which the offer of employment was expected to end (as if Mr. Norton were again unemployed).

As discussed below, based on the numerous inconsistencies in the evidence in this case, it will not be necessary to determine whether the proper frame of reference for considering Mr. Norton's entitlement to accident benefits is his pre-accident job or the offer of employment or both; nor will it be necessary to consider the section 13 issue. The determination of Mr. Norton's ability to return to gainful employment will be made on the assumption that the duties Mr. Norton used to perform as a prospector, and those he would have performed under the offer of employment are the same.

Demeanor and Credibility

At the hearing, Mr. Norton appeared to be a pleasant and interesting man with a generally good recall of events. He was articulate and coherent. I agree with one physician's assessment of him as being "very engaging in conversation." In cross-examination, however, he gave inconsistent and contradictory evidence and was, at times, argumentative and evasive in his answers. He professed not to recall a variety of documented events and statements. The medical reports concerning Mr. Norton's family history are bafflingly inconsistent: he told some physicians that he had no children, while he told others that he had three grown children; he told some physicians that his father died in his forties either of over-work or the war, while he told others that his father died in his eighties of either old age or an unknown cause.

He told Dr. John Knudsen, the first physician he saw after the accident, that he had not seen a doctor for years before the accident; however, his family physician, Dr. Robert McBurney, testified about visits and tests done on Mr. Norton in the years leading up to the accident. One of Mr. Norton's complaints following the accident was a somewhat diminished memory and concentration. However, in an IME report prepared by Dr. Henry Berry approximately two-and-a-half years after the accident, he suggested, apparently for the first time, that there was a period from the age of four or five to the time of the accident in which he could not recall much of his life and that he had some form of "memory gap" for about 11-12 months following the accident. He told Dr. Berry that he had not suffered any other accidents since the motor vehicle accident, but there is a hospital emergency record in March 1994 of a serious physical assault on Mr. Norton in the garage of his home.

He further suggested that some of the doctors who treated him were more interested in personal gain than in alleviating his medical problems. He also suggested that the Insurer may have been involved in death threats made against him over the telephone, as well as the assault on him in March 1994. He thought that the Insurer may have cut his phone lines.

Based on this testimony, I am unable to find Mr. Norton a credible witness, and this affects some of my findings in relation to Mr. Norton's ability to return to gainful employment.

Applicable Law

The provisions of the Schedule relevant to the issues in this case are as follows:

s. 12(1) 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....

s. 12(5) The insurer is not required to pay a weekly benefit under subsection (1),

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

s. 6(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident....

Mr. Norton bears the onus of establishing certain key elements of these provisions on a balance of probabilities: what his pre-accident or employment-offer job was; what the essential tasks of those jobs were; that he sustained certain injuries as a result of the accident; that as a result of those injuries, he was prevented from performing the essential tasks of his pre-accident or employment-offer job; that he was also rendered continuously disabled from engaging in any occupation for which he is reasonably suited; and that as a result of his accident-related injuries, he has incurred reasonable medical and/or rehabilitation expenses. As will be discussed in detail below, the various inconsistencies in the evidence, Mr. Norton's lack of credibility, and the general insufficiency of evidence on key elements of this case lead me to the conclusion that Mr. Norton is not entitled to any further weekly income benefits or medical or rehabilitation expenses.

Pre-Accident Employment

Mr. Norton gave very little detailed evidence of his pre-accident activities. He testified that he had worked as a prospector for several years prior to the accident. This involved travelling to various sites in North and South America searching for minerals and collecting rock samples for mining and engineering companies. He would be retained by these companies as projects arose and was never without work for any significant period of time. Projects could last for three or four months at a time. Prior to being a prospector, Mr. Norton was involved in construction. He also held a pilot's licence at the time of the accident, although this has since expired.

Mr. Norton testified that he had worked with Sierra Minerals as a prospector for approximately two to three years prior to the accident. He had most recently worked for them on a project in New Mexico in late July or early August, 1992 and had been paid $3,000.00 plus expenses every two weeks. No documentary or corroborative evidence was provided in support of this testimony. The evidence appears to be that Mr. Norton was travelling about in the weeks immediately preceding the accident. He was, apparently, on some type of mining business in Ontario at the time of the accident. The job of prospecting involved extensive travelling, walking long distances in remote areas, climbing in rough terrain, and carrying heavy equipment and mineral samples. Work as a prospecting supervisor was said to be just as difficult as prospecting because the supervisor had to set an example for the rest of the crew.

On August 19, 1992, Mr. Norton accepted a written offer of employment from Maxwell Engineering for a position as Supervisor of Operations of a gold mining project in Mexico. He had not notified Sierra Minerals of this prior to the motor vehicle accident. The offer from Maxwell Engineering stated that the project was to start within a month, was to operate on a continuous basis and would require Mr. Norton to travel to the site on an "as required" basis. The remuneration package was stated to be $4,000.00 per month plus travel expenses when Mr. Norton was in Mexico. On October 1, 1995, in response to an inquiry from counsel for the Insurer, D.C. Maxwell of Maxwell Engineering wrote that he believed "the job offered to Mr. Norton would have lasted between 12 and 18 months and depending on the circumstances, it may have been extended beyond this period." Mr. Norton said that the job with Maxwell Engineering would involve running a prospecting crew, but he could not recall if the job would involve prospecting duties. Mr. Norton testified that he has not worked since the motor vehicle accident, although a notation in a report of Dr. Alan S. King on August 3, 1994 indicates that he had just been "on business" in Juarez, Mexico.

Mr. Norton's status as a prospector at the time of the accident is not at all clear. He told some of the physicians he saw after the accident that he was a prospector. However, a medical report dated August 3, 1994, by Dr. Alan S. King of the New Mexico Heart Clinic, Ltd., notes that Mr. Norton is a "67-year old medically retired (except for some involvement in mines in Mexico) prospector." In cross-examination, Mr. Norton denied telling Dr. King this. An admitting record dated September 8, 1994 from St. John's Mercy Medical Centre in St. Louis (where Mr. Norton was seen about chest pains while he was driving through the St. Louis area) also notes Mr. Norton as "retired." He denies making this statement. A medical report dated February 14, 1995 by Dr. Don F. Seelinger in New Mexico states that prior to the accident, Mr. Norton "had been living in the Northwest and was trading stocks and was doing well" and that he was "unable to continue trading well after the accident and lost money." The same report also describes Mr. Norton's occupation as "engineer." Mr. Norton denies that he was trading stocks for a living at the time of the accident. It is noteworthy that Mr. Norton's family physician for 35 years, Dr. R. J. McBurney of Orangeville, Ontario, testified that he did not know that Mr. Norton was a prospector until the morning of the arbitration hearing. Finally, it is unclear why Mr. Norton testified that the move from Sierra Minerals to Maxwell Engineering was "moving on to better things" when the latter position involved a drop in pay of approximately $2,000.00 per month.

Assuming, however, that Mr. Norton was an active prospector at the time of the accident, it is unclear whether the offer of employment from Maxwell Engineering would involve the same prospecting duties he previously performed. The offer was for a "supervisor of operations" of a gold mining project. Mr. Norton provided no details as to the tasks involved in this job other than that it would entail running a prospecting crew. It is unclear whether Mr. Norton was referring to this job when he stated that being a prospecting supervisor was just as difficult as being a prospector.

Because of these and numerous other inconsistencies in the evidence, I am not satisfied that Mr. Norton was an active prospector at the time of the accident, nor am I able to delineate the essential tasks of the job Mr. Norton would have been doing pursuant to the offer from Maxwell Engineering. I am unable to accept counsel's suggestion that Mr. Norton's previous work as a prospector and the offer of "supervisor of operations" involved the same employment tasks. However, even assuming that Mr. Norton was an active prospector prior to the accident, that he would have worked as a prospector for Maxwell Engineering and that the issue of entitlement could be determined in relation to either of these positions, I am still unable to find that the injuries he suffered in the motor vehicle accident disabled him from returning to work as a prospector or to any other suitable occupation after December 31, 1992.

Medical History and Accident

Mr. Norton testified that he was in excellent health prior to the accident. However, when asked at the Belleville General Hospital, immediately after the accident, whether he had a medical history, he is noted as saying "just degenerating slowly - this will speed it up." Dr. McBurney, his family physician, testified that Mr. Norton had had few complaints in the check-ups prior to the accident. The most recent general check-up was in April 1992. Mr. Norton's blood pressure was noted to be good and his blood tests were normal. A chest x-ray and cardiogram were also normal. Dr. McBurney stated that there was nothing to indicate that Mr. Norton had a risk of developing heart problems. A friend of Mr. Norton's who testified at the hearing, Dr. Kyriacos Louloupides, stated that Mr. Norton was a very strong and powerful man before the accident and that he never complained or took aspirin for any pain he might have had. Mr. Norton told Dr. Donald Berry in Washington in November 1993 that he had undergone some cardiac tests approximately three years earlier because "his heart was enlarged," but that those tests were normal.

In the accident, Mr. Norton was hit by a car as he attempted to cross the street at a crosswalk. He was hit on the left side and fell to the ground on his right side. When the ambulance arrived, he was found sitting on the sidewalk. The ambulance call report notes that he was conscious, alert and oriented as to person, place and time, although he was confused as to the day. The Belleville General Hospital emergency record notes that he was alert and conscious and oriented as to person, place and time. There is a note that he "felt woozy." He complained of pain and numbness on the right side of his head, pain in his right ankle and hip, and numbness in his right hand and the toes of his right foot. No obvious injury or trauma was noted. He was examined and released about four hours later. He returned to the hospital four days later complaining of pain and numbness in his head, back pain and numbness in his toes. He was prescribed anti-inflammatory and pain medication and was released.

Mr. Norton testified that he lost consciousness at the time of the accident. However, the evidence is replete with inconsistencies concerning the exact duration of this loss of consciousness. In direct examination, Mr. Norton indicated that he recalled being hit by a car and then waking up in the hospital. In cross-examination, he said that he did not know how long he was unconscious, that he was unconscious off and on for about an hour, and that he was unconscious for more than 15 minutes. The hospital emergency record notes a momentary loss of consciousness of about 15 seconds, although Mr. Norton testified that he would not have said that and that he could have said anything in the state he was in following the accident. A clinical note dated November 4, 1992 by Dr. David Fantle, a neurologist Mr. Norton saw in Washington, states that Mr. Norton was unconscious on an intermittent basis for three to four hours. A clinical note of Dr. Spady dated August 3, 1993 states that Mr. Norton suffered a loss of consciousness for three days off and on. On August 3, 1994, Dr. Alan S. King of the New Mexico Heart Clinic reports that Mr. Norton told him that he was in a coma for three days following the accident. On September 6, 1995, Mr. Norton told Dr. Glen Kelley that he was unconscious for 15 minutes or more. On the basis of this wide divergence of evidence, I am unable to determine the exact length of the loss of consciousness, assuming that this took place at all.

Mr. Norton also claims to have suffered chest injuries in the accident. In particular, he testified that his chest was severely bruised. However, no objective findings of any such bruising are noted in the Belleville General Hospital records or other medical reports. Dr. McBurney states that Mr. Norton did mention this bruising when Mr. Norton called him about the accident in mid-October 1992. Mr. Norton had not gone to see Dr. McBurney immediately following the accident. Mr. Norton's friend, Dr. Louloupides, also testified that Mr. Norton's chest was hurting during the drive back to Washington following the accident.

Post-accident Medical Treatment

Within a week or two of the accident, Mr. Norton was driven back to his home in Washington by his friend, Dr. Louloupides. There, Mr. Norton saw Dr. John Knudsen, a general practitioner, concerning his complaints of low back pain, hip pain, neck pain, right scalp numbness and pain, and numbness in his right toes. Dr. Knudsen diagnosed a concussion, lumbar strain and cervical strain, but was unable to distinguish a specific pattern to the neurological deficits reported by Mr. Norton. Dr. Knudsen referred Mr. Norton to Dr. David Fantle, a neurologist. In March 1993, Dr. Fantle reported that Mr. Norton suffered from chronic post-concussive syndrome with a probable right sciatic neuropathy and persistent cervical and lumbar strain symptoms. A CT scan of Mr. Norton's head on November 10, 1992 showed a "questionable old cortical infarct."

In the spring of 1993, Mr. Norton returned to Ontario and on April 10, 1993, he went to the Dufferin Area Hospital in Orangeville, Ontario, complaining of pain between his shoulder blades and coughing. Diagnostic imaging indicated congestive heart failure. Mr. Norton was subsequently seen back in Washington by an associate of Dr. Fantle, Dr. Paul Goff, regarding an "increasing exertional shortness of breath" which appeared to be cardiovascular in nature and was stated to be unrelated to the motor vehicle accident. On September 7, 1993, roughly one year after the accident, Dr. Fantle reported that Mr. Norton had made a very gradual but partial recovery and continued to have significant pain, decreased endurance and a feeling of decreased mental acuity. Dr. Fantle did not know of any further testing or therapy that would be of use to Mr. Norton and referred him to a physiatrist for possible additional assistance with therapy.

In November 1993, Dr. Donald Berry, a specialist in internal and pulmonary medicine, saw Mr. Norton and felt that recurrent pulmonary emboli was the most likely explanation of his shortness of breath and coughing problems, although he also thought asthma or an endobronchial lesion might be a possibility. In December 1993, Dr. Donald Barnett of St. Joseph Hospital in Washington reported signs of congestive failure in connection with Mr. Norton's complaints of shortness of breath; there was no evidence of a pulmonary embolus.

In December 1993, Dr. Fantle filed an Ontario Automobile Insurance Medical or Psychological Report in which he noted the primary diagnosis as a contusion injury to Mr. Norton's right sciatic nerve and post-concussive syndrome, and the secondary diagnosis as dyspnea (breathing difficulty) and hemoptysis (coughing of blood) of unknown etiology. Dr. Spady filed a similar report in January 1994 and noted that the symptoms of concussion and sciatic nerve contusion had gradually subsided and that the etiology of the cardiac symptoms could not be determined.

Mr. Norton was seen on March 26, 1994 by Dr. Robin Nicholson in the emergency department of St. Joseph Hospital in Bellington, Washington. He had been assaulted by a person who had entered his garage. He had been struck a number of times on the head, but apparently did not suffer a loss of consciousness. His primary complaint was of headaches. He was diagnosed as having suffered a closed head injury, but refused a CT scan of his head to rule out the possibility of a severe intracranial injury. He was released with pain medication and head injury instructions.

From June to September, 1994, in his new home of New Mexico, Mr. Norton saw Dr. Ralph Brower, an osteopath. Dr. Brower reported that Mr. Norton suffered the following injuries in the motor vehicle accident: acute cervical and dorsal strain with numbness at top of scalp, headaches, pain in right ankle, leg, knee and hip, and numbness in right leg. Dr. Brower also stated that the cardiomyopathy and coronary problems could be related to the accident. In August 1994, Dr. Brower referred Mr. Norton to Dr. Alan S. King at the New Mexico Heart Clinic. Dr. King expressed grave concerns that Mr. Norton had recently had an atypical presentation of a coronary event which could lead to sudden death under unpredictable circumstances. However, Mr. Norton refused Dr. King's recommendation of immediate hospitalization for appropriate monitoring and treatment. Mr. Norton was also seen by Dr. Don Seelinger, a neurologist in New Mexico, but he stated that EEG and MRI testing did not uncover anything that would account for Mr. Norton's complaints of head pain and numbness.

Over the summer of 1995, Mr. Norton saw four additional doctors in the New Mexico area, Dr. Luis Esquivel, Dr. Anthony Martinez, Dr. Glen Kelley and Dr. Samuel Tabet. The diagnoses from these doctors suggested a right rotator cuff tear.

Post-hearing Medical Treatment and Evidence

Following the hearing, Mr. Norton had a follow-up visit with Dr. Kelley on January 29, 1996. Dr. Kelley's report stated that "it is clear that the MRI results he has of a chronic rotator cuff tear are consistent with injuries he sustained at the time of the accident dated 09/04/92." Dr. Kelley also said that he would refer Mr. Norton for formal neuropsychological testing regarding his cognitive status and would follow up with him after the testing was complete. Mr. Norton was subsequently seen by Dr. Tony J. Kreuch, clinical neuropsychologist, who reported on March 7, 1996 that Mr. Norton was "experiencing neurocognitive impairments secondary to the effects of a closed head injury and a possible degenerative process." Cognitive rehabilitation and a reassessment were also recommended. Counsel for Mr. Norton sought to introduce both of these reports following the hearing. He submitted that although Dr. Kelley's diagnosis was not new, the evidence presented was highly relevant and was not available at the time of the arbitration. He also submitted that it was not possible to have the neuropsychological testing done before the arbitration and that the resulting report provides useful, objective evidence of head injury. Counsel for the Insurer objected to the admission of these reports, submitting in part that a further IME might need to be conducted to properly respond to them.

I am not prepared to admit the two reports at this late stage of the proceedings. Mr. Norton saw numerous doctors in the three years between the accident and the hearing and was represented by counsel from early on in the process. There is no reason why Mr. Norton could not have obtained this or similar evidence well before the arbitration. The Insurer would also be prejudiced if it were not permitted to cross-examine on the reports (the authors reside in Albuquerque, New Mexico) and/or obtain additional evidence in response. The evidence-gathering process must have some finality, and I am not prepared to re-open that process on the basis of the limited information contained in these materials. Dr. Kelley's report, in any event, provides only limited elaboration on the issue of a causal connection between the motor vehicle accident and Mr. Norton's shoulder problems. Dr. Kreuch's report contains additional inconsistency concerning the loss of consciousness at the time of accident and makes no mention of the 1994 assault and resulting diagnosis of closed head injury. I am, therefore, unable to admit these materials at this stage of the proceedings.

Current Medical Condition

Currently, Mr. Norton complains of a sensation of numbness in his head, memory and concentration difficulties, vision, hearing and balance problems, neck spasms and pain, back pain, right shoulder and hip pain, weakness in his right knee and ankle, and lowered stamina due to his heart condition. He attributes these symptoms to the motor vehicle accident, but maintains that it is his "body joints and head" problems, as opposed to his heart condition, that disable him from returning to work as a prospector. He states that he is still able to perform the functions of daily living, such as cooking, shopping and general housework. He is still capable of travelling, as his movements in the years following the accident show.

Relationship of Accident and Symptoms

The physicians in this case disagree as to whether Mr. Norton's problems were caused by the motor vehicle accident. There is also a dispute as to whether and when Mr. Norton was capable of returning to his pre-accident activities.

There are only a few direct opinions as to the relationship between Mr. Norton's symptoms and the accident. Regarding his heart problems, Dr. King, the cardiologist Mr. Norton saw in New Mexico, gave the "near certain assessment" that Mr. Norton's "cardiomyopathy is unrelated to any previous trauma." Dr. McBurney, Mr. Norton's family physician who testified at the hearing, reported on May 16, 1995 that "it would seem that his symptoms date from the M.V.A., and the complications arising from it." However, on cross-examination, Dr. McBurney indicated that he was not prepared to say that Mr. Norton's heart problems are more probably than not caused by the accident. He admitted that Dr. King would be more qualified than himself to comment on the possible relationship between the heart problems and the accident.

On July 27, 1993, Dr. Paul Goff, a specialist in hemotology and oncology, and an associate of Dr. Fantle, stated that Mr. Norton's heart and breathing problems could not be considered to be related to the motor vehicle accident. On July 13, 1995, Dr. Spady, the general practitioner Mr. Norton was seeing in Washington, stated that although it would be hard to prove, Mr. Norton's cardiac problems could have resulted from his injury. A paper review of Mr. Norton's medical file was conducted in August 1994 by Dr. Harry Reese (orthopedist/orthopedic surgeon) and Dr. Bruce Francis (internal medicine) of the Objective Medical Assessments Corporation in Seattle, Washington. They concluded that Mr. Norton's heart problems were probably not related to the motor vehicle accident. The osteopath in New Mexico, Dr. Brower, reported on September 29, 1994 that Mr. Norton's coronary problems could be related to the 1992 accident. Finally, Dr. Henry Berry, the neuropsychiatrist who testified at the hearing, stated that Mr. Norton's heart problems were not related to the accident.

In my view, this evidence does not establish on a balance of probabilities that Mr. Norton's coronary problems were caused by the motor vehicle accident. The only physicians to draw a connection between the accident and the heart problems do so on the basis of a possible relationship, and the physicians concerned are general practitioners and an osteopath with no apparent expertise in cardiology. In my view, much more positive evidence from specialized practitioners would be required to establish a causal relationship, notwithstanding the apparent development of the symptoms only after the motor vehicle accident.

Regarding Mr. Norton's muskuloskeletal and cognitive complaints, I found Dr. Berry's evidence to be the most helpful. Dr. Berry is a highly qualified and experienced specialist in internal medicine, psychiatry and neurology. He examined Mr. Norton at the request of the Insurer and provided an extensive report of his findings. His testimony at the hearing was not seriously challenged on cross-examination. After a thorough examination of Mr. Norton and review of the medical reports, Dr. Berry arrives at the following conclusions in his report of June 15, 1995:

[There is] no evidence that he has suffered any permanent physical injury of any significance as a result of the pedestrian accident...[extensive neurological investigations] have shown changes in keeping with aging but without any evidence of brain injury or abnormality attributable to the accident and minimal concussion...he does have the expected degenerative thoracic and lumbar spine changes of a patient in his age group...there is no evidence that he has suffered any permanent injury to the vertebral column, the lumbar region or to the nerve roots or sciatic nerve as a result of the accident...his symptom of an extraordinary memory loss extending back over much of his adult life, is of a functional (non organic) type and is not attributable to the accident or minimal concussion....ordinarily, symptoms and disability after an accident of this type in a patient in this age group, would persist up to several weeks to a few months and would then subside. Since that time, in my opinion, his symptoms and disability are attributable to his heart disease, the onset of congestive heart failure, persistent fatigue and muskuloskeletal symptoms attributable to aging, without any genuine or permanent disability relatable to the effects of the pedestrian accident....

There are only two other direct statements regarding the cause of Mr. Norton's ongoing muskuloskeletal and cognitive complaints. In his report of September 29, 1994, Dr. Brower states that Mr. Norton suffered the following injuries in the motor vehicle accident: acute cervical and dorsal strain with numbness at top of scalp, headaches, pain in right ankle, leg, knee and hip, and numbness in right leg. Dr. McBurney reported on May 16, 1995 that Mr. Norton's symptoms would seem to date from the motor vehicle accident and the complications arising from it. It is noteworthy that the physicians who diagnosed Mr. Norton as suffering from post-concussive syndrome, Dr. Fantle and Dr. Spady, did so on the basis of Mr. Norton's unreliable reports of intermittent and prolonged unconsciousness following the accident. There is no evidence that Mr. Norton's shoulder problems were caused by the accident.

Accordingly, I am unable to find that Mr. Norton's persistent muskuloskeletal and cognitive symptoms are the result of the motor vehicle accident. I prefer the evidence of Dr. Berry to that of Dr. Brower and Dr. McBurney on this point. Dr. Berry is a highly qualified specialist and provided a thorough and persuasive review of Mr. Norton's difficulties. Dr. McBurney is a general practitioner and Dr. Brower's background and qualifications were not made available to me. Their reports, in any event, do not contain detailed or systematic reviews of the cause of Mr. Norton's symptoms. Much more substantial evidence would be required to establish a connection between his symptoms and the accident.

Ability to Return to Work

There is little doubt that Mr. Norton was injured in the motor vehicle accident. It is less clear, however, how long those injuries prevented him from returning to work as a prospector (assuming he was employed as such). The law is clear that an applicant is only entitled to receive accident benefits for the period in which he or she suffers a substantial inability to perform the essential tasks of his or her employment and, beyond three years, for the period in which the injury continuously prevents the applicant from returning to a reasonably suitable occupation. An applicant's participation and co-operation in any rehabilitation initiatives may be relevant to this determination.²

Dr. Knudsen originally reported that Mr. Norton would be able to resume his employment on November 1, 1992. However, on January 25, 1993, he stated that Mr. Norton was expected to fully recover, but that due to the subtle nature of his injuries, no new date of recovery could be projected. Dr. Fantle noted in mid-December 1992 that no further therapy was indicated for Mr. Norton and that he would gradually improve with time (Mr. Norton was then planning on returning to Mexico to recover). In December 1993, Dr. Fantle noted Mr. Norton's estimated return to work as "unknown."

On January 9, 1994, Dr. Spady stated that Mr. Norton would never be able to return to his previous work of prospecting and mining engineering which required a great deal of stamina and a high level of fitness. On September 29, 1994, Dr. Brower reported that Mr. Norton was unable to work as a mining consultant due to his numerous ailments and pain. On May 16, 1995, Dr. McBurney stated that Mr. Norton's symptoms had prevented him from working since the date of the accident. Dr. McBurney also testified that he thought Mr. Norton could return to a sedentary type of job.

On October 27, 1995, Dr. Martinez stated that his prognosis was guarded and that he expected Mr. Norton's symptoms to persist for at least one year. He also thought surgery might be required on Mr. Norton's right shoulder. His assessment was that Mr. Norton would be unable to return to his previous occupation as a prospector at the level at which he was functioning prior to the accident. In early 1995 and again in late October 1995, Dr. Reese reported that Mr. Norton was capable of returning to work as a prospector within six weeks of the accident (this opinion was given on the basis of a paper review of the file only).

As noted previously, the materials indicate that on numerous occasions, Mr. Norton refused diagnostic testing, medical treatment and rehabilitation therapy. This was the case even when Dr. King cautioned him about the possibility of sudden death due to cardiac malfunctioning and when he had potentially suffered a serious closed head injury from the assault in March 1994. He routinely refused to take medications prescribed for his physical and mental ailments, explaining that medicine only 'masked" the symptoms. He is noted as being familiar with training techniques from previous athletic activities and as attempting to rehabilitate himself, but denies ever having told Dr. Fantle in March 1993 that he 'walked long distances carrying dumbbells in his arms and doing a number of exercises with them as he walks."

In early January 1994, Dr. Knudsen notes that Mr. Norton called his office requesting a letter relating his respiratory illness to the automobile accident. When informed that such a letter could not be provided (as there was no such relationship), Mr. Norton became irate and was threatening towards Dr. Knudsen and his staff. Mr. Norton also said he would be in to confront Dr. Knudsen and that he had 'better get out the back." On cross-examination, Mr. Norton denied seeking such a letter from Dr. Knudsen and denied threatening anyone; he said 'someone must be hallucinating."

On the basis of this evidence, I am unable to find that the injuries Mr. Norton suffered in the accident prevented him from returning to prospecting or other suitable employment after January 1, 1993. Dr. Berry reported that the injuries sustained by Mr. Norton would be expected to resolve within several weeks to a few months of the accident. There has been no diagnosis of chronic pain or similar condition from the accident. No psychiatric evidence was presented to suggest any psychological disability from the accident. Mr. Norton, in fact, refused treatment in connection with a possible depression. No further therapy was indicated in December 1992 and Mr. Norton early on refused to participate in recommended programmes of rehabilitation. He has had ongoing manipulative therapy, but apparently has not asked the Insurer for any active rehabilitative assistance to return to gainful employment. He also appears not to have had any contact with Sierra Minerals after the accident or with Maxwell Engineering after November 1992, concerning a possible return to work.

Mr. Norton developed a serious cardiac condition in early 1993 which left him short of breath and fatigued. Prior to this hearing, Mr. Norton appeared simply to have been intent on establishing a connection between his heart condition and the accident. On November 11, 1993, Dr. Donald Berry makes the only report of an attempt to return to work by Mr. Norton. Mr. Norton is noted as saying that he "has attempted to go back to work, but is too short of breath to do this." There is no other evidence of actual physical limitations or difficulties in returning to work. In this regard, no functional abilities evaluation has documented Mr. Norton's current strengths and weaknesses and correlated this to a potential return to work.

With respect to any benefits beyond 156 weeks, although Mr. Norton appears to have been involved in a unique occupation at some period prior to the accident, no vocational or rehabilitation evidence was presented suggesting that Mr. Norton is incapable of returning to some other suitable type of employment. The essential tasks of the job offered by Maxwell Engineering are not known, and it is possible that Mr. Norton could be involved in mining engineering in some other capacity than prospecting (assuming that that is what the job offer entailed). As noted at the outset of this decision, Mr. Norton offered little evidence of his pre-accident education, training and experience. I simply do not have enough medical, vocational and rehabilitation evidence to find that Mr. Norton has established that he is unable to return to gainful and reasonably suitable employment.

I am, therefore, unable to find that Mr. Norton was disabled from returning to the job of prospecting after January 1, 1993. His only apparent limitation in returning to work is related to his heart condition, and he has shown little interest in participating in a structured therapy programme. He has not established that his ongoing complaints and any inability to return to gainful employment are related to the accident, and he has demonstrated a general lack of credibility in connection with his medical history and efforts to return to his previous activities. There is also a general lack of medical, vocational and rehabilitation evidence supporting any actual inability to return to his previous occupation or a reasonably suitable alternative.

Supplementary Medical and Rehabilitation Benefits

For similar reasons, I find that Mr. Norton is not entitled to any additional medical or rehabilitation benefits after December 1992. A list of medications and treatments in 1994 and 1995 was provided at the hearing. All the items dealt with Mr. Norton's heart and muskulo-skeletal problems except for some dental work in April 1993. The medical reports do not mention any injury to Mr. Norton's teeth as a result of the accident, nor as I have already found, has Mr. Norton established a causal connection between his ongoing heart and muskuloskeletal problems, the accident and an inability to return to gainful employment. I am, therefore, not prepared to grant Mr. Norton any additional medical and rehabilitation benefits from January 1, 1993.

Expenses:

Although Mr. Norton appears to believe that his inability to return to work is as a result of the accident, I have found his application to be deficient in several respects (including, in particular, his credibility). In these circumstances, and pursuant to my discretion under section 282(11) of the Insurance Act, I am only prepared to award Mr. Norton one-half of his expenses of the arbitration. If the parties are unable to agree on the amount owing, they may apply to the Registrar for an assessment.

Order:

1. Mr. Norton is not entitled to further weekly income benefits.

2. Mr. Norton is not entitled to further supplementary medical and rehabilitation benefits.

3. The Insurer shall pay to Mr. Norton half of his expenses of the arbitration.

June 3, 1996

Eban Bayefsky Arbitrator

Date

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. 2In this regard, I agree with Arbitrator Manji's comments in the recent decision of Carole A. Caruso and Guarantee Company of North America, May 9, 1996, OIC File No. A-006856 in which she states that to establish entitlement beyond the 156-week mark, "the applicant must present some evidence that he or she has made a bona fide effort to identify, try to find or attempt some sort of 'suitable' employment but failed because his or her injuries continuously prevent him or her from engaging in such employment" (at p. 30).