Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1997 ONICDRG 145

Appeal P96-00010

ED J. OPATOWSKI Appellant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA Respondent

Before: Susan Naylor, Director’s Delegate

Counsel: Ed J. Opatowski (in person) Guy Farrell (for General Accident)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is dismissed and paragraphs 1, 2, 3, 4, 5 and 6 of the arbitrator’s order, dated November 20, 1995, are confirmed.
The arbitrator’s order is varied by the addition of paragragh 7, which reads as follows:

A further application for arbitration in respect to benefits under section 6 of the Statutory Accident Benefits Schedule arising out of the accident on August 30, 1993 may not be filed until such time as Mr. Opatowski has

(a) paid General Accident Assurance Company of Canada the amount of its assessment ordered at paragraph 3 to this order;

(b) completed a claim for the benefits using the prescribed form;

Mr. Opatowski must pay General Accident $500 under subsection 282(11.2) of the Insurance Act. Such sum is payable prior to any further application for arbitration being filed in respect to General Accident.
Mr. Opatowski is not entitled to his appeal expenses.

July 30, 1997

Susan Naylor Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Ed J. Opatowski applied for arbitration in respect of his entitlement to accident benefits following an automobile accident on August 30, 1993. He received accident benefits from General Accident Assurance Company (General Accident), the insurer of the other vehicle involved in the collision. These were paid under the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, R.R.O. 1990, Reg. 672 (“the Schedule”). Mr. Opatowski’s weekly benefits were terminated after about five and a half months, as of February 7, 1994. There was also a dispute about General Accident’s liability to pay various other expenses and benefits. After a three-day hearing, the arbitrator made the following rulings:

Mr. Opatowski was not entitled to weekly benefits pursuant to section 12 or section 13 of the Schedule, from February 7, 1994 onwards.
Mr. Opatowski was not precluded from receiving weekly benefits under 17(1)(f) of the Schedule.
General Accident was not entitled to a repayment.
At the commencement of the hearing, Mr. Opatowski withdrew his claim for supplementary and medical benefits.
Mr. Opatowski was not entitled to care benefits pursuant to section 7 of the Schedule.
Mr. Opatowski was entitled to his expenses.

Mr. Opatowski appealed the arbitrator’s rulings about his weekly benefits, care benefits and medical and rehabilitation benefits.

Mr. Opatowski does not dispute the arbitrator’s ruling that his claim properly falls under section 13 rather than section 12 of the Schedule, but argues that the arbitrator erred in discounting the work he performed in setting up a photocopy machine business. He also appeals her ruling on disability.

The arbitrator rejected General Accident’s argument that Mr. Opatowski was driving the vehicle involved in the accident without the owner’s consent and was therefore excluded from receiving weekly benefits under the terms of the subsection 17(1)(f) of the Schedule. She also held that General Accident could not rely upon the “material misrepresentation” exclusion in subsection 17(3)(a), because it did not have a contract of insurance with Mr. Opatowski.

General Accident appealed these rulings but later on withdrew its appeal. However, the evidence in relation to the section 17 exclusion remained the subject of controversy. In particular, Mr. Opatowski claimed that General Accident’s agents and representatives forged an affidavit (or collaborated in a forgery) to advance its position at the arbitration. This suspicion occupied a great deal of Mr. Opatowski’s attention throughout the appeal.

The arbitrator did not hear any evidence about Mr. Opatowski’s claim for medical and rehabilitation expenses because of her ruling that he withdrew these claims at the start of the hearing. Mr. Opatowski requested an order entitling him to the benefits claimed, or, in the alternative, a re-hearing.

Mr. Opatowski appealed the arbitrator’s order denying him care benefits under section 7. He disputed the legality of the termination of his weekly benefits and the decisions about his medical and rehabilitation benefits, and he claimed a special award under s. 282(10) of the Insurance Act, R.S.0. 1990, c. I-8, (“the Act”). He also asked that General Accident’s business practices be investigated; its lawyer be barred from appearing before the Commission; charges be laid under section 447 of the Act; and changes be made to the Commission’s Dispute Resolution Practice Code. In addition, he alleged various breaches of his rights under the Canadian Charter of Rights and Freedoms, R.S.C., 1985 Appendix II, No.44 (“the Charter“).

II. THE COURSE OF THE PROCEEDINGS

It should be stated at the outset that this case has certain unusual features. Mr. Opatowski’s situation was complicated by a number of factors. He was involved in a previous automobile accident, three years earlier, involving similar myofascial injuries. That accident involved a different insurer. His recovery from his physical injuries was complicated by serious psychological difficulties, and he was disabled from work for the period between the two accidents. He also developed problems associated with excessive use and dependency on narcotic analgesics for pain relief. Mr. Opatowski later settled any accident benefit claims arising out of the earlier accident and therefore had no further recourse from that source.¹

Mr. Opatowski has not been an easy person to deal with in respect to his problems. His anger, distrust and volatility are well-recorded and, according to the medical evidence, are an aspect of his psychiatric difficulties. His relations with his doctors have at times been troubled. He blames General Accident for most of his problems, even though it was not the insurer involved in the first accident.

His dealings with General Accident quickly soured and took on a highly adversarial character. Rather than proving his own entitlement, Mr. Opatowski focused on attacking General Accident and its representatives, advancing numerous allegations of fraudulent and underhanded dealings.

Mr. Opatowski represented himself at the arbitration and on appeal. He discharged his lawyer shortly before the arbitration hearing began, but insisted on proceeding that day, despite the arbitrator’s entreaties that the proceedings be adjourned so that he could retain another lawyer.

Although it would have been helpful for a lawyer to represent him, there is no indication that Mr. Opatowski was unable to present his case on his own. He chose to go ahead with the arbitration. In the absence of evidence that a miscarriage of justice occurred, it is not now open to him to try to re-argue his case anew.

Mr. Opatowski raised numerous complaints and issues in his extensive written submissions. Because of the completeness of the written submissions and the risk that the number of side-issues might cause the parties to lose sight of the main reason for the hearing - Mr. Opatowski’s entitlement to benefits - the parties were directed to make oral submissions on two issues only:

Whether, and if so, how, the arbitrator erred in finding that Mr. Opatowski did not suffer substantial inability to perform the essential tasks in which he would normally engage, from February 7, 1994 onwards;
Whether Mr. Opatowski waived his rights to claim medical and rehabilitation benefits and the effect of any such waiver.

The remainder of the issues I have dealt with on the basis of the written material only. A deadline was set for receipt of any further written submissions. Additional material filed after this time was rejected.

I have the benefit of a full transcript of the testimony given at the arbitration hearing. Although I am not setting out every point made by the parties or specifically referring to many of the documents before me, I carefully considered each and every one of them in reaching my decisions.

I have given Mr. Opatowski every consideration because he represented himself on the appeal. He filed a number of documents as evidence on appeal although they were not put before the arbitrator. Rather than deal with the admissibility of each document separately, I admitted them all into evidence, and gave each its due weight.

Both parties requested preliminary hearings and orders in connection with the allegations of impropriety related to the affidavit in issue. General Accident asked that the allegations be struck from the record as scandalous. Mr. Opatowski asked for interim expenses to enable him to call various witnesses, stating they had material evidence to contribute to the investigation. He also sought an order granting intervenor status to certain outside parties for the same reason, although they themselves had not sought such standing. I rejected these requests for the following reasons:

The Commission’s dispute resolution process is not a court and the formalities associated with pleadings do not apply in this forum. There is no provision for striking out written statements that are alleged to be abusive or scandalous. I doubted whether addressing Mr. Opatowski’s allegations separately would have contributed materially to the speed or efficiency of the proceeding, and therefore there was no real benefit to doing so.

I also rejected Mr. Opatowski’s request for interim expenses under section 282(11.1) of the Act. Usually an award of expenses is best left for after the completion of the hearing on the merits, when the adjudicator has the complete picture. There must be good reason, including a sound evidentiary foundation, to justify making an interim award. This was lacking here. Interim expenses are not to be awarded for the purpose of an evidentiary “fishing” trip, to seek out information that might support an otherwise unsupported claim, or where the subject of the inquiry is not central to the core question of entitlement to benefits. Moreover, Commission arbitrations under the dispute resolution provisions of the Act are adjudicative proceedings to determine an applicant’s entitlement to accident benefits, not general investigations.

I also rejected Mr. Opatowski’s request that the Law Society of Upper Canada and other persons be made intervenors on the appeal. His request did not meet the criteria for granting intervenor status set out in the legislation, Dispute Resolution Practice Code, and in appeal decisions.

III. ANALYSIS

A. Disputed evidence

Mr. Opatowski makes a number of allegations of misconduct against General Accident and others. These include:

fraud, forgery, conspiracy and bribery in connection with an affidavit filed at the arbitration;
malicious filing of false evidence suggesting that Mr. Opatowski was driving a stolen vehicle or a vehicle with stolen plates;
deliberate “burying” of important evidence;
malicious misrepresentation of the contents of a medical report that led to the termination of benefits;
malicious misrepresentation about the state of pre-arbitration disclosures relating to rehabilitation;
suppression or fabrication of the existence of a surveillance videotape referred to in a medical report.

I deal with some of these points below in so far as they relate to the arbitrator’s findings on the section 17 exclusion. Although that issue is not under appeal, Mr. Opatowski’s objections are of broader implication going to credibility generally, to the insurer’s and its lawyers’ handling of the case and

1. The Affidavit

Mr. Opatowski alleges forgery, conspiracy and bribery involving General Accident, its lawyer, Guy Farrell, the adjuster on the file, James Giffen, and unspecified lawyers in another law firm. The allegations concern an affidavit purportedly sworn on January 20, 1994 by Maxine Edwards, Mr. Opatowski’s common-law spouse, and marked as an exhibit at the arbitration hearing. The affidavit was filed in support of General Accident’s position that Mr. Opatowski was disqualified from weekly benefits because he did not have the owner’s consent to drive the vehicle. Although the arbitrator found in favour of Mr. Opatowski and so did not rely upon the affidavit, the allegations involve serious charges that must be addressed.

The background facts are set out in the arbitrator’s decision. The accident involved a collision between a 1984 Nissan, driven by Mr. Opatowski, with Ms. Edwards and her daughter as passengers and another vehicle owned and driven by Patricia Zamalynski, insured by General Accident. Mr. Opatowski’s vehicle turned out to have no insurance. Both he and Ms. Edwards claimed accident benefits from General Accident under the priority rules in the Act.

The arbitrator had to sort out the ownership history of the Opatowski vehicle, which she described, quite fairly, as “a muddled one”. Mr. Opatowski and Ms. Edwards testified about their involvement with the vehicle and the arbitrator accepted their side of the story.

To summarise, the Nissan was bought and registered in Ms. Edwards’ name but she could not drive it. Shortly before the accident, she transferred the car to a friend, Heather Nembhard, who was supposed to maintain the insurance. Unbeknownst to Ms. Edwards, Ms. Nembhard cancelled it.² The gist of testimony was that the transfer was effected to enable Mr. Opatowski and Ms. Edwards to obtain a license plate for the vehicle, which neither could do directly because, in either case, their driving licenses had been suspended for non-payment of fines. General Accident based its position on Ms. Nembhard’s legal ownership of the vehicle as Mr. Opatowski acknowledged that Ms. Nembhard would not have let him drive her vehicle. However, the arbitrator found that Ms. Nemhard was only technically the owner and that Mr. Opatowski had actual possession and control of the vehicle at all material times. She found this being the true scheme of affairs, Mr. Opatowski did not need Ms. Nembhard’s permission to drive the vehicle and so was not disqualified under subsection 17(1)(f) of the Schedule.

In support of its argument, General Accident filed a copy of an affidavit, marked Exhibit 2, Tab 2, purportedly sworn by Ms. Edwards and prepared by her own lawyers in connection with her claim for benefits. Ms. Edwards was questioned in detail about this affidavit at Mr. Opatowski’s arbitration hearing. She acknowledged that the signature on the affidavit was hers, although she did not remember signing it. She stated that her lawyer told her it was the best thing to do and she signed it “without knowing the procedure, the situation”. The arbitrator concisely summarised her evidence as: I don’t remember signing the affidavit but if I did, my lawyer made me do it.

The first two paragraphs of the affidavit outlined Ms. Edwards’ address and date of birth. The next three paragraphs stated as follows:

I do not own a vehicle. I am not dependent on anyone who has owns (sic) a vehicle.
I was a passenger in the vehicle owned and driven by Heather Nembhard. (Emphasis added)
I am claiming under the automobile insurance policy of Patricia Zamalynski as I have no access to any other insurance policy.

The affidavit, which I will call Affidavit #1, was sworn before “R. Lee”.

In his Notice of Appeal, Mr. Opatowski attached a copy of a second affidavit, which I shall call Affidavit #2, which he had apparently obtained from the offices of Ms. Edward’s law firm after the hearing. It was dated the same day as Affidavit #1, also sworn before R. Lee and purportedly signed by Ms. Edwards. Paragraphs 1 to 3 and 5 were the same as Affidavit # 1. However, there was a different version of paragraph 4. It said:

I was a passenger in the vehicle owned and driven by Patricia Zamalynski .

Mr. Opatowski also alleged that Ms. Edwards’ purported signature was different in either affidavit.

Armed with the two affidavits, Mr. Opatowski listed “fabricating evidence” as the first ground in his Notice of Appeal:

It is to my understanding that Guy Farrell [General Accident’s lawyer] submitted a tampered with affidavit of Ms. Maxine Edwards and then bribed Mr. Robert Lee of the firm David & David to produce an affidavit of Ms. Edwards to be consistent with the affidavit submitted at the hearing of October 16-18, 1995.

I am submitting to the claim of Robert Lee the original and only affidavit sworn before him on January 20, 1994.

General Accident and its lawyers denied any impropriety. According to them, Affidavit #1 was provided to them in early 1994 by Ms. Edward’s lawyers in connection with Ms. Edward’s claim for accident benefits. They had not seen Affidavit #2 until this appeal.

Mr. Opatowski clearly believes that something improper was done, although the specifics of what was supposed to have happened and who perpetrated what impropriety are more difficult to discern. At various times, he alleged that:

David & David had provided General Accident with the “real” affidavit, and the General Accident had then manufactured a false one;³

General Accident bribed or made some arrangement with Mr. Lee to manufacture another false affidavit consistent the one submitted at the hearing and that both affidavits #1 and #2 were forgeries;⁴

Mr. Farrell, with General Accident’s approval, offered Mr. Lee money to destroy the original affidavit or to sell it to Mr. Farrell and then produce an affidavit consistent with the false one, created by Mr. Giffen, the adjuster, filed at the arbitration.⁵

Mr. Farrell altered the original affidavit to insert paragraph 3 and forged her signature.⁶

There is no factual basis for Mr. Opatowski’s allegations, which I find preposterous.

On cross-examination at the arbitration hearing, Ms. Edwards identified the signature on Affidavit #1 as hers and defended herself quite vigorously against the suggestion that she had sworn an affidavit containing false information about Ms. Nembhard’s ownership of the car. She stated that Affidavit #1 was not inconsistent with the position taken at the hearing because Ms. Nembhard was the owner “on paper”. Ms. Edwards testified on behalf of Mr. Opatowski. It is incongruous that he directs allegations against General Accident’s representatives, when they involve his own wife’s affidavit, prepared by her lawyers in connection with her claim.

Neither affidavit is consistent with the testimony given at the hearing, which was that Mr. Opatowski was driving the vehicle. However, while the content of both affidavits may be somewhat puzzling, there is nothing to suggest anything sinister went on. It is not as if the probability of a perfectly innocent and sensible explanation for the discrepancy between the two affidavits does not exist. Indeed, that is a good deal more probable than Mr. Opatowski’s contorted scenario. For example, given that paragraph 4 of Affidavit #2 is clearly wrong to the point of nonsense - it says that Ms. Edwards was a passenger in a vehicle owned and driven by Patricia Zamalynski, who is the driver of the other vehicle involved in the accident, (no one has suggested at any time that Ms. Edwards was travelling in this vehicle) - it is quite possible that a mistake was made in drafting the affidavit (Affidavit # 2) and a corrected version was issued (Affidavit #1).

Mr. Opatowski may no doubt argue that General Accident has not put forward any hard evidence to refute his theory or to advance another explanation. However, in the absence of any factual foundation for the allegations, the obvious inapplicability of Affidavit # 2, and the likelihood of an innocent explanation, in my view there is no obligation on General Accident or its lawyers to spend time, money and energy collecting evidence to address what is nothing more than an expression of belief by Mr. Opatowski.

I find no merit in Mr. Opatowski’s allegations and no reason to interfere with the arbitrator’s findings on this basis.

2. The license-plate

The other major issue over the use of evidence relating to the section 17 issue involved the contents of a witness’ “will-say” statement contained in an investigation brief marked Exhibit 2. In an unidentified “investigation summary”, dated February 4, 1994 at Tab 3, it was stated that a Constable Ian Coish would say that the vehicle involved in the accident had anomalies in its registration: “The V.I.N. # provided to the police was not found in the Ministry of Transportation information system. The plate ZRR 533 is also not registered. It is assumed that the vehicle was stolen previously.” (Emphasis added). In cross-examination, Mr. Farrell also made reference to plate ZRR 533.⁷

Mr. Opatowski states that plate ZRR 533 was an incorrect reference (the plate involved in the accident was 557 SSR) and that the reference to the vehicle having been stolen was deliberately introduced to bolster General Accident’s case under section 17 and undermine his general credibility. Mr. Opatowski submits that this evidence was unfair and prejudiced the arbitrator against him.

I do not know why reference was made to an incorrect license plate or even why the investigation summary was made an exhibit at the hearing. I note, however, that Mr. Opatowski himself referred to the wrong license plate in the written statement he provided to General Accident.

In any event, I am satisfied that Mr. Opatowski was not prejudiced in any way. The arbitrator did not mention the information in her decision and there is no reason to think that she relied on, or was influenced by, it. In fact, she accepted Mr. Opatowski’s testimony about the ownership of the vehicle as credible and found in his favour under section 17.

Mr. Opatowski objects to the arbitrator’s use of the term “lifestyle”.⁸ He considers the term, when taken with the contents of the “will-say” statement, to be suggestive of a life of crime and therefore evidence of her bias.

It is difficult to know what to make of this objection. The arbitrator’s reference to Mr. Opatowski’s “lifestyle” was made in the context of considering his essential tasks for the purposes of benefit entitlement. The full statement says:

Unfortunately, I heard very little evidence from Mr. Opatowski about his tasks and activities, or what his lifestyle was like before or after the accident.

It is crystal clear that by this language, the arbitrator was simply addressing, in a neutral fashion, the test set out for benefits which requires identifying what the individual normally did before the accident. There is no basis for inferring from this statement, or any other, that the arbitrator considered Mr. Opatowski to be engaged in criminal activities or factored such a view into her decision.

3. Mr. Opatowski’s driver’s license

Mr. Opatowski also complains that a statement in the arbitrator’s decision that he “was unable to get a driver’s license” (p. 16) is incorrect and prejudicial. He argues that his license was suspended for non-payment of fines and had not been removed for any other more serious reason.

In her review of the evidence about the vehicle’s ownership, the arbitrator considered the similarities between Mr. Opatowski’s two accidents. At page 16, she stated:

Succinctly, in both instances, [i.e. the 1990 accident and the 1993 accident] Mr. Opatowski, who was unable to get a driver’s license, lived with women who owned cars that they could not drive and did not insure, and at all material times, Mr. Opatowski had the control and possession of the cars.

It is clear from a review of the decision that the arbitrator knew that Mr. Opatowski’s license had been suspended for non-payment of fines. The transcript shows that any uncertainty that may have existed on the point was dispelled. It is equally clear that Mr. Opatowski was not licensed to drive at the time of either accident.

Appellants should not hope to succeed on the basis of a minute dissection of every word or possible nuance of the arbitrator’s reasons, or by drawing fine distinctions in the meaning of the language used. The substance of the arbitrator’s finding was correct. Moreover, once again, the statement was made in the context of the section 17 issue in which the arbitrator accepted Mr. Opatowski’s testimony. The arbitrator did not mention the issue elsewhere in her decision and there is no reason to think that she relied on it or was influenced by it in any other context.

I now move on to the substance of the appeal: the arbitrator’s refusal of continued weekly benefits after February 7, 1994.

B. Entitlement to weekly benefits

To qualify for weekly benefits under section 13 of the Schedule, Mr. Opatowski must show that he suffers substantial inability to perform the essential tasks in which he would normally engage for the period claimed. This requires findings, based on the evidence, about what Mr. Opatowski’s essential tasks were before the accident and what he was able and unable to do afterwards. It is his responsibility to bring forward credible evidence to allow an arbitrator to make this finding.

Prior appeal decisions have established that my function on appeal is not to revisit the evidence and simply substitute my view of the weight that should be attributed to it.⁹ In reaching her decision, the arbitrator had the advantage of hearing and observing the witnesses in person and of viewing the documentary evidence in the entire context of the evidence presented. This advantage is important, even in appeals where, as here, there is a transcript of the testimony given. For this reason, an arbitrator’s factual findings will not generally be disturbed unless he or she made a serious error, such as ignoring key evidence, relying on inapplicable or irrelevant evidence, reaching conclusions that are unsupported by the evidence or following an unfair procedure.

Although Mr. Opatowski’s objection to the arbitrator’s decision is framed numerous ways, his appeal essentially boils down to an objection to the weight the arbitrator attributed to the evidence. He is asking me to re-evaluate all the evidence before the arbitrator and come to a different conclusion. He asks me to attribute less significance than the arbitrator did to certain factors and more to others - a statement in a report over the testimony the doctor gave at the hearing, one doctor’s view over another’s, or the evidence he gave over that of his doctor. He also seeks to bolster his case by introducing more evidence. However, my role is not to re-hear the case afresh or to second-guess the arbitrator’s evaluation of the evidence. The weight to be given to the evidence is a matter for the arbitrator’s judgment.

1. Essential tasks

Mr. Opatowski disputed the arbitrator’s findings about what his essential tasks were before the accident and the test applied. He felt she did not attach enough importance to the steps he was taking to rehabilitate himself from his prior accident in 1990, and ignored the work he did in his fledgling photocopy business.

At the time of the 1993 accident, Mr. Opatowski had a three-year history of disability. Before his first accident in 1990, he was well and took pride in his physical condition. However, that is not the comparative period for the purposes of determining General Accident’s liability to pay benefits. It is his condition before the 1993 accident, not the first accident, that counts.

The arbitrator had a difficult job determining Mr. Opatowski’s level of recovery and functioning in the period leading up to the 1993 accident. This was compounded by the fact that few details of what he did during that time were provided.

The arbitrator described Mr. Opatowski’s essential tasks as those of an “unemployed person who was looking after himself” (Decision, page 12). She found that he was independent in self-care and able to participate in some household work. Mr. Opatowski complained that the arbitrator ignored or discounted the efforts he was making to rehabilitate himself. I do not think she did. In her reasons, she took into account that Mr. Opatowski was involved in an exercise program and taking steps to increase his level of functioning, including joining a health club, working out at a low-level and swimming several times a week.

In my view, the arbitrator correctly directed herself to the requirements of section 13 of the Schedule. She applied the test as described in Lui and Wellington Insurance Company, (April 28, 1993, OIC File A-001894): Aessential tasks in which the appellant would normally engage rather than the complete range of activities, pastimes and pleasures” (Decision, p.9).

Mr. Opatowski argued that another passage in Lui, also cited by the arbitrator, suggests a much broader inquiry. The relevant passage states that “essential tasks ....refer to those activities connected to the ongoing business of living”. Like the arbitrator, I do find any incompatibility between these two statements: the context of the latter indicates that the arbitrator was not talking about every single activity the person engaged in, but “the routine tasks a person performs to maintain themselves, their dependents and their home”, (Decision, page 10).

Mr. Opatowski also claimed that he was working intermittently at his own photocopy repair business before the accident and actively seeking jobs. Mr. Opatowski had been in the business of maintaining photocopiers before his first accident. His initial position at arbitration was that he was self-employed at the time of the accident and so qualified for employment-related weekly income benefits under section 12. The arbitrator rejected this claim. Mr. Opatowski did not appeal this ruling but argued that the arbitrator should have taken these activities into account too as part of his normal, essential tasks under section 13.

The arbitrator found that apart from a business card, Mr. Opatowski did not present any evidence that he was working. Also, he was supporting himself on social assistance. Other evidence, in particular his family doctor’s records, indicated he was not working. Likewise, there were no details of any efforts to find work.

Mr. Opatowski tried to remedy this deficiency on appeal by providing me with a copy of a certificate showing the registration of a sole proprietorship under the name of Gilmour Copier Services, which he identified as the name of his new business. The registration date was January 4, 1993, some eight months before the 1993 accident. He also filed a Ministry of Consumer and Commercial Relations service requisition form dated May 4, 1995 confirming the registration of the business.

I find that the registration certificate does not advance Mr. Opatowski’s position. I was still left with the same difficulty the arbitrator faced: even assuming that Mr. Opatowski had taken steps to register a business, there was no evidence that he went beyond this. No details were provided about the jobs he carried out, his efforts to attract business or what he did to look for work and over what period of time. Other than a business card and the registration details, there was no documentation. Mr. Opatowski provided virtually no details in testimony nor did he satisfactorily explain his doctor’s understanding that he was not working. That being the case, I agree with the arbitrator that activities associated with his photocopier maintenance business or with seeking work were not shown to be part of the tasks in which Mr. Opatowski was normally engaged in before the accident.

Overall, Mr. Opatowski’s view of his condition in the months before the August 1993 accident, while it may be sincerely held, does not square with the evidence. According to his family doctor’s notes, during this period he complained of constant back pain and was depressed. He was placed on Toradol, described by his doctor as a “potent” anti-inflammatory, and on Prozac, an anti-depressant. He was angry and frustrated by what he felt was an inadequate settlement of his claims. He wanted psychological help but could not afford the services of a psychologist because he had no further insurance coverage. It is clear from the evidence that his view about his own condition deviated substantially from that suggested by the other evidence.

2. Disability

The arbitrator found that Mr. Opatowski’s injuries from the first accident in 1990 were exacerbated by the 1993 accident. However, she concluded that, by the time weekly benefits were terminated in early February 1994 - indeed, well before then - Mr. Opatowski no longer met the conditions for receipt of section 13 benefits in respect of the 1993 accident.

In reaching this conclusion, the arbitrator specifically took into account the following:

a. Mr. Opatowski’s own account of his level of functioning as set out in a transcript of the answers he gave on an examination for discovery in connection with a tort action related to this first accident.¹⁰ The examination took place on October 18, 1993, some 6 weeks after the August 1993 accident;

b. The testimony of his family doctor, Dr. Weinstock, who saw him regularly at the relevant time;

c. Evidence (through Dr. Weinstock) that Mr. Opatowski had fallen on ice on January 28, 1994, injuring his back and shoulder and disabling him.

Mr. Opatowski appeals the arbitrator’s finding that the effects of the August 1993 accident did not render him substantially unable to perform his normal, essential tasks beyond February 7, 1993. He objects to the fact that the arbitrator placed weight on the three items listed above and raises other objections.

As I stated, the weight to be attributed to the evidence is a matter for the arbitrator’s judgment and not for me to second-guess. Mr. Opatowski’s complaints of pain and limitations were largely subjective. He was not functioning at a high level before the 1993 accident. His family doctor’s testimony does not support his claim. The other medical evidence on which he relies is, for the most part, equivocal. Having reviewed the arbitration record and the transcript, I find that they disclose sufficient evidence to support the arbitrator’s findings. There is no basis to conclude that a material error was made or miscarriage of justice occurred. While this essentially disposes of Mr. Opatowski’s appeal, I will address his specific objections below.

a. Mr. Opatowski’s answers on his examination for discovery

The arbitrator found that by mid-October 1993 Mr. Opatowski was basically able to engage in the same tasks as before the accident. If there was some reduction in his level of functioning, it did not equate to a substantial inability to perform his essential pre-accident tasks. In assessing Mr. Opatowski’s testimony about his capacities in the months after the August 1993 accident, the arbitrator took into account certain answers he gave on an examination for discovery on October 18, 1993. Mr. Opatowski was examined in connection with a law suit over his injuries from the first accident. The case did not involve General Accident but it had obtained a copy of the transcript. At the arbitration, General Accident’s lawyer read into the record a number of questions and answers Mr. Opatowski gave, including questions pertaining specifically to Mr. Opatowski’s condition as of that time: mid-October, 1993. This was a matter of months after the 1993 accident. According to Mr. Opatowski’s answers, at that time he went to the gym to lift light weights twice a week, swam two or three times a week, and did light housework - similar to what he did before the 1993 accident.

Mr. Opatowski explained that the answers he gave on examination were wrong. He blamed this on the effects of the strong pain medication (Leritine) he was taking. He also attributed any ability he had to engage in the activities in question to taking the steroid medication, Prednisone. The arbitrator was unconvinced by these explanations. She found:

Mr. Opatowski was trying to cover up the fact that he had admitted to being able to do these activities by saying he was drugged. (Decision, p. 11).

In reaching this conclusion, the arbitrator accepted the testimony of Dr. Weinstock, Mr. Opatowski’s family doctor, who said that he had not prescribed any steroids for Mr. Opatowski until Spring 1994.

Mr. Opatowski argued on appeal that the arbitrator should not have paid any attention to the transcript of his examination. He pointed to a discussion between the arbitrator and General Accident’s lawyer in which they agreed that the transcript was not an “appropriate” document to mark as an exhibit.¹¹

The context shows that the discussion related to evidentiary rules governing the use of prior inconsistent statements, and was directed to the form and manner by which Mr. Opatowski’s answers should be placed before the arbitrator, not to the appropriateness of doing so. Considerations of fairness, which underpin the rules, require that the questions asked and the answers given must be put directly to Mr. Opatowski to allow him to respond. This happened here. Mr. Opatowski provided no legal basis to support his position that the use of the transcript in this way was wrong in law, unfair or a violation of his rights under the Charter.

Mr. Opatowski also challenged the factual basis for the arbitrator’s findings, particularly on credibility. I accept Mr. Opatowski’s point that Dr. Weinstock was mistaken when he testified that he did not prescribe Prednisone until the Spring of 1994, rather than earlier. Mr. Opatowski drew my attention to a prescription note dated October 1, 1993 for Prednisone on Dr. Weinstock’s letterhead. This indicates that some steroids were prescribed at that time. However, it does not follow that Mr. Opatowski’s testimony should be preferred in its entirety to that of Dr. Weinstock or that the arbitrator was wrong in dismissing his explanations.

The effect of steroids was only one of several alternative explanations advanced by Mr. Opatowski to excuse the deficiencies and inconsistencies in his evidence. Despite answering questions on his examination for discovery about his condition up to and in October 1993, the medication he took and the doctors he saw, Mr. Opatowski never mentioned the intervention of a second accident. He blamed this omission squarely on his lawyers. He said they told him not to say anything about it. Mr. Opatowski also testified that none of the information he provided in the six months between the date of the accident and the end of February/March, 1994 could be relied on because he was ”completely out of his mind” as a result of his taking medication. He advanced this reason for a number of other problems with his evidence, including completing an application form that listed him as unemployed rather than self-employed and misplacing business records that would prove his business dealings.

I accept that Leritine, a brand name of the generic drug Anileridine, is a synthetic narcotic and very strong analgesic. However, there is a self-serving element to Mr. Opatowski’s explanations that makes them cumulatively difficult to accept. There was no suggestion at his examination that his ability to respond appropriately to the questions put to him was compromised by the medication he was taking. There is also no medical evidence before me to support Mr. Opatowski’s claim about the effect of taking such medication in the dosage prescribed over the six month period in issue.

Mr. Opatowski suggested that any uncertainty about the drug’s effects could be resolved by asking for an independent opinion from the Medical and Rehabilitation Advisory Panel. However, I see little benefit in a referral, more than four years after the event. It would have been helpful to have Dr. Weinstock’s comments on the matter. He was the prescribing physician, saw Mr. Opatowski regularly during that time and testified at the hearing. However, he was not asked about the effects of either the steroids or pain medication.

The answers Mr. Opatowski gave on discovery were only a factor in the arbitrator’s conclusion. Although she felt that he probably was substantially able to perform his essential tasks by mid-October, 1993, she did not revisit his entitlement to benefits for that period. She also considered the opinion of Dr. Weinstock. She summarised his testimony as: “by January, 1994, Mr. Opatowski was no longer substantially disabled as a result of the August 1993 accident”. Mr. Opatowski argues that this statement was not an accurate representation of Dr. Weinstock’s testimony. In the alternative, he argues that Dr. Weinstock’s testimony is wrong, inconsistent with his written reports and motivated by malice.

According to the evidence, Dr. Weinstock was Mr. Opatowski’s primary treating doctor and saw him on a regular basis. He started treating Mr. Opatowski in the Spring of 1993, some months before the August 1993 accident. He therefore had the benefit of being able to compare his condition before and after.

A review of Dr. Weinstock’s testimony and records indicates that Mr. Opatowski was in “reasonably bad shape comparatively” after the August 1993 accident but that his condition improved over the the following six months. Within days of the accident, at Mr. Opatowski’s request, Dr. Weinstock prescribed narcotic analgesics - the Leritine - but reluctantly so given Mr. Opatowski’s previous history with narcotic medication. This continued until Dr. Weinstock refused to prescribe any more in February, 1994.

According to Dr. Weinstock’s testimony, by October - the same month as the examination for discovery - Mr. Opatowski was able to resume his swimming exercises, although he was not doing as much as before and was not lifting weights. The next month, he raised returning to work as a goal to look forward to.

Unfortunately, on January 28, 1994, Mr. Opatowksi had a set-back when he fell on some ice and injured his back and shoulder. He was, according to Dr. Weinstock, “in brutal shape” at this time. Dr. Weinstock expressed the opinion that the fall substantially aggravated his condition for at least a few months.

Dr. Weinstock estimated that, not taking the slip and fall accident into consideration, Mr. Opatowski would have been substantially able to perform his essential tasks “six months, eight months. I don’t know, something like that”.¹² Asked if that meant the Spring of 1994 he stated that he was “comfortable with that”. He put the length of time eight or nine months post-accident at the outside.

Describing Dr. Weinstock as testifying that Mr. Opatowski was no longer substantially disabled as a result of the accident by January 1994 is certainly on the very short end of Dr. Weinstock’s projections, but it is not “outside the ball-park”. In his Form 4 report dated January 15, 1994, Dr. Weinstock still considered Mr. Opatowski disabled for an indefinite period. However, when asked to elaborate in his testimony, he provided a tentative range of projections. The fact that he was uncertain as to the precise number of months is not, as Mr. Opatowski suggests, fatal to the value of his testimony.

Dr. Weinstock’s testimony indicates that Mr. Opatowski’s condition was improving up to the time of the slip-and-fall, contrary to Mr. Opatowski’s perception. Mr. Opatowski places great importance on a note by Dr. Weinstock dated November 24, 1993, which discusses his condition and access to chiropractic treatment. It reads:

he [Mr. Opatowksi] says that he can’t cope with all of his pains. he says that he was able to cope after his first accident when he was given chiropractic treatment. He is waiting for clearance with respect to (?) this accident from insurance company that he is being covered. I agreed to give him Avg (?) Of 2-3 Leritine /dy (25 mg.) until he starts chirocare.

Mr. Opatowski blames General Accident for holding up chiropractic treatment. He suggests that there is a direct link between the delay in authorising payment for chiropractic treatment and his disability. He argues that his inability to access chiropractic treatment caused or materially contributed to his dependency on narcotic medication during that period, leading to further disability.

Dr. Weinstock’s testimony did not offer support for this proposition and there was no other medical evidence to that effect. Mr. Opatowski has a history of narcotic abuse and dependency and was prescribed narcotic medication within days of the accident, largely at his own insistence. He offered no proof of a relationship between his ingestion of narcotics and any alleged failure on General Accident’s part to pay for timely rehabilitation treatment.

In his testimony, Dr. Weinstock was specifically asked to comment on his November notation about being told that Mr. Opatowski “cannot cope with all of his pains”. His recollection was that this was more in the nature of an expression of frustration on Mr. Opatowski’s part than a comment of the seriousness of his condition at the time.

Mr. Opatowski argues that his need for narcotic analgesics and other medication is probative of the seriousness of his condition and suggests that an opinion be obtained from the Medical and Rehabilitation Advisory Panel. However, the probative value of medication use is affected by several factors. Mr. Opatowski has a history of prescription medication dependency and his Leritine was terminated in February 1994 due to the same concern. This makes the medication taken a less useful guide to his accident-related condition. In addition, he was prescribed narcotics on the basis of his self-described need. The arbitrator is entitled to assess the extent to which those subjective reports are probative of disability, based on her review of the evidence as a whole, including the testimony of Mr. Opatowski’s own family physician.

Mr. Opatowski seeks to impugn the validity of Dr. Weinstock’s testimony. He introduced a letter from the doctor to the College of Physicians & Surgeons, which in his view, shows that he was severely disabled during this time. The May 8, 1995 letter was written in response to a complaint lodged by Mr. Opatowski against Dr. Weinstock. Mr. Opatowski submits that the letter contradicts Dr. Weinstock’s testimony at the hearing. He suggests Dr. Weinstock’s testimony was motivated by vindictiveness because of his complaint to the College.

In his letter, Dr. Wienstock stated:

After his accident of August 1993, Mr. Opatowski complained of severe, burning pain and that he could not cope with his severe pains and depended on his girlfriend to do everything for him.(page 5)

He explained what considerations went into the prescription of the Leritine, stating:

Mr. Opatowski was in extreme pain and the dilemma that faces all physicians in treating severe pain faced me at the time. But with Mr. Opatowski’s co-operation, I was able to keep his medication under control....(page 5)

It would have been easy for me to refuse all analgesic medication to him. But Mr. Opatowski was genuine in his need for help from me.(page 6)

As mentioned earlier, it would have been easy for me to refuse any analgesic medication to Mr. Opatowski. But I feel that this approach would have been unfair and would have limited Mr. Opatowski to a totally-dependent lifestyle after his August, 1993 accident. (Page 7)

This letter was not provided to the arbitrator and put to Dr. Weinstock for comment, although it pre-dated the hearing by a number of months. By way of explanation, Mr. Opatowski stated that he did not introduce it at the hearing because he was essentially unprepared, having dismissed his counsel and requested an adjournment. He submits that to exclude it would violate his rights under the Charter, although he does not say why.

In my view, these reasons do not excuse Mr. Opatowski’s failure to provide the letter at the hearing, if he wished to rely on it. He was given the opportunity to adjourn the hearing, but chose to proceed. Dr. Weinstock should have been given a chance to address the letter in cross-examination. The fact that he now cannot do so significantly weakens its effect. These concerns aside, however, I do not regard the lettter’s contents as particularly helpful. They are based predominantly on Mr. Opatowski’s own view of his condition. They do not address his condition at the time benefits were terminated nor are they necessarily inconsistent with Dr. Weinstock’s overall testimony.

Mr. Opatowski argues that it was wrong and unfair to have asked Dr. Weinstock to give an opinion on disability, leaving aside his injuries from his slip and fall in January 1994. He claims that the effects of the automobile accident and the slip and fall cannot be separated. The evidence indicates that Mr. Opatowski substantially exacerbated his soft-tissue injuries to his neck and back in the fall and also suffered a sprain to his shoulder.

The arbitrator’s reference to the slip and fall accident must be seen in the context in which it was made. As Mr. Opatowski’s treating doctor, Dr. Weinstock was properly asked his opinion in relation to it. In considering the effects of the fall, the arbitrator was trying to take into account the extent to which it may have masked the continued improvement in Mr. Opatowski’s accident-related condition. In my view, this was a legitimate line of inquiry for her to consider.

Mr. Opatowski also raises a number of appeal grounds related to Dr. Mascarenhas, the physiatrist who examined him at General Accident’s request. Dr. Mascarenhas examined Mr. Opatowski on February 8, 1994, and issued a report dated the same date, along with a covering letter. The doctor also wrote a second letter dated April 1, 1994 in connection with a videotape, but did not re-examine him.

The arbitrator did not refer to either report and there is no indication that she relied on Dr. Mascarenhas’ opinion. Mr. Opatowski argues that the doctor’s first report supports his claim.

Dr. Mascarenhas’s key findings are set out at page 6 of that report:

On initial inspection he [Mr. Opatowksi] had a scar present over the anterior aspect of his right glenohumeral area from previous surgery. His movements were extremely slow and restricted. On assessment of his cervical spine he had a normal cervical curvature. He had virtually no range of motion in all directions. Any attempt on my part to passively increase the range was met with resistance. He had a “humped over posture” and no paraspinal muscle spasm was evident in his cervical, dorsal thoracic or lumbosacral areas, however, he did complain of diffuse paraspinal tenderness extending inferiorly to his lumbosacral region. The slightest pressure applied to his back resulted in complaints of extreme discomfort. This was more marked near the right paralumber region.

He had virtually no range of motion of his lumbosacral spine in all directions. He was unable to lie in the supine position, as this caused him a great deal of discomfort.

He concluded at page 7:

In summary it was my impression that Mr. Opatowski sustained what I would describe as a hyperextension/flexion injury of his cervical spine following the motor vehicle accident of August 30, 1993. It is now over five months post-accident and I have grave concerns about Mr. Opatowski’s presentation today.

After summarising the usual course of treatment for “whiplash” injuries, “with the focus on function not pain”, Dr. Mascarenhas concluded:

With respect to Mr. Opatowski I have many concerns which include:

I do not have a clear cut understanding of what his true functional capabilities were prior to the accident as compared to following the injuries of August 30, 1993.....
This gentleman appears to have a prior psychiatric history......it is imperative that a full psychiatric report be obtained as one certainly needs to adopt a holistic attitude, taking into consideration a patient’s physical as well as psychological state.
I am concerned about the possibility of drug addiction ....
I see no evidence of ongoing physiotherapy or any sort of physical reconditioning program.....Here again no evidence was available for me to review.

In the covering letter, Dr. Mascarenhas reported that:

As outlined in my report, I had some concerns about this gentleman’s presentation.

I did not feel that I had a sufficient understanding of his true physical and psychological level of functioning to comment on his current disability.

Mr. Opatowski points to Dr. Mascarenhas’ comments about his lack of range of motion and discomfort and his need for treatment as proof of disability. I do not draw this conclusion from the report. Dr. Mascarenhas’ physical findings are almost entirely based on Mr. Opatowski’s subjective responses and his caution about Mr. Opatowski’s presentation denotes a concern that the symptoms being reported are inconsistent with expected findings. The arbitrator did not rely on the report, either as a factor in support of Mr. Opatowski’s claim or against it. In my view, she had good reason to adopt this course. The report indicates that Dr. Mascarenhas was unable to provide an opinion as to Mr. Opatowski’s level of disability because of the inadequacy of the information available to him. Therefore, the report is of very limited use in determining Mr. Opatowski’s claim to benefits.

Dr. Mascarenhas followed-up his report with a letter dated April 1, 1994, addressed to the adjuster on the file. The important part of the letter stated:

You have forwarded to me videotape information, and as per this information it appears that Mr. Opatowski is in absolutely no distress. His movements are fluid. There appears to be a significant discrepancy between my observation and examination, compared to the videotape surveillance information.

The doctor concluded that “given this new evidence” Mr. Opatowski could not be classified as substantially disabled under the Schedule.

This letter has become the subject of controversy because the videotape referred to apparently cannot be located. The only videotape introduced in evidence related to surveillance carried out in July, 1995, more than a year after Dr. Mascarenhas’ involvement. The letter confirming the pre-hearing in this case which took place on June 1, 1995 required General Accident to provide particulars of surveillance but does not otherwise shed any light on the situation.¹³ No one raised an issue regarding the videotape referred to in Dr. Mascarenhas’ letter and Dr. Mascarenhas was not called to testify.

After the hearing, Mr. Opatowski contacted General Accident’s lawyer and demanded production of the videotape. In a letter to the Commission dated November 15, 1995, - after the hearing had concluded but before the arbitrator released her decision - General Accident’s lawyer stated that he had not been able to locate the tape to date but wished to advise the arbitrator about Mr. Opatowski’s concern. He wrote:

I do not believe that there was any emphasis on Dr. Mascarenhas’ reports at the arbitration, however, at this stage it would appear preferable if you ignore the letter of Dr. Mascarenhas’ dated April 1, 1994 when rendering your decision.

In the event, the arbitrator did not rely upon either of Dr. Mascarenhas’ reports or any part of the later surveillance evidence in her decision.

Mr. Opatowski alleges that the videotape in issue never existed and its existence was fabricated by General Accident’s agent and by Dr. Mascarenhas. He complained about the doctor to the College of Physicians and Surgeons and filed Dr. Mascarenhas’ response, dated February 5, 1996 and the College’s acknowledgement as new evidence. In my view, this correspondence is irrelevant. The appropriate time to have raised any concern about the report or the parties’ productions was at the hearing, not after the event. It was open to either party to call Dr. Mascarenhas to testify as to the basis of his opinion. It was Mr. Opatowski’s own choice to proceed with the hearing. Absent a finding that a miscarriage of justice occurred, he is not entitled on appeal to dispute evidence which was not challenged at the arbitration hearing. There is no indication that a miscarriage of justice occurred here.

Mr. Opatowski points to an assessment report of the Accident Rehabilitation Centre, dated November 2, 1994 in support of his disability. The report indicates that Mr. Opatowski required intensive therapy for his muscular and psychological problems, but his anger and emotionality ruled out his participation in their multidisciplinary program at the time. In my view the report, which leaves the contribution of the second accident open and is largely based on Mr. Opatowski’s subjective reports of disability, does not materially advance his case. However, even if it was helpful, Mr. Opatowski’s objection goes to the weight of the evidence, which is a matter for the arbitrator’s judgement.

Mr. Opatowski relies upon several reports from Dr. Kachooie, a physical medicine and rehabilitation specialist who started to treat Mr. Opatowski in early 1995. Dr. Kachooie recommended a variety of treatments and therapies. These included the provision of a TENS machine, acupuncture, massage, a physical rehabilitation program and a psychological assessment. In Dr. Kachooie’s view, Mr. Opatowski suffered from chronic myofascial pain syndrome, with features of post-traumatic fibromyalgia and post traumatic stress disorder, which were attributable to both accidents.

Mr. Opatowski relies heavily on Dr. Kachooie’s September 30, 1995 report, addressed to his lawyer. I was given no reason why this report was not provided to the arbitrator, it being dated more than two weeks before the commencement of the hearing. This may have been related to Mr. Opatowski’s discharge of his lawyer, although I do not know this. It is another example of Mr. Opatowski’s attempt to re-litigate his entire case on appeal.

Leaving this aside, Dr. Kachooie’s findings and opinion are of limited value in addressing Mr. Opatowski’s entitlement to weekly benefits. He focuses on Mr. Opatowski’s functional history before the 1990 accident and seems to be of the view that he was functioning at a higher level before the 1993 accident than the evidence warrants - for example, lifting 180 lbs weights by that time. He does not provide an opinion as to Mr. Opatowski’s current ability to perform his normal tasks or the contribution of the second accident and addresses himself to the probability of a return to work. In my view, the report would not have affected the result at arbitration and does not warrant either the reinstatement of benefits or a new hearing.

I am not persuaded that the arbitrator made any errors in dealing with Mr. Opatowski’s claim for continued benefits or misconstrued the evidence in any way. Mr. Opatowski’s objections ultimately go to the weight the arbitrator attributed to the evidence. Having reviewed the arbitration record and the material filed on appeal, I am satisfied that there was a sufficient basis in the evidence to support her findings and conclusion. Therefore, there is no basis to interfere with them. Mr. Opatowski’s appeal on this ground therefore fails.

IV. TERMINATION OF WEEKLY BENEFITS

Mr. Opatowski alleges that General Accident improperly terminated his weekly benefits. Firstly, he argues that the Insurer’s Assessment of Claim form denying him benefits was not signed by a representative of the company and is therefore invalid. The Assessment of Claim form gave reasons for the denial of benefits after February 7, 1994 and indicated the person signing the form was James T. Giffen, Adjuster. It was not, however, signed. In my view, nothing turns on this technicality.

There is no legal obligation on an insurer to provide an Assessment of Claim form at all. I discussed the nature of the form in Zeppieri and Royal Insurance Company of Canada, (February 17, 1994, A-005237) aff’d (December 22, 1994, P-005237), in which I stated:

The Assessment of Claim form is a standard form, approved by the Ontario Insurance Commission. Its use by the insurance industry facilitates a uniform and structured means of communicating decisions about benefits. It is not, however, a prescribed form under the regulations, nor is it a required method for communicating the refusal of benefits.

Mr. Opatowski was given reasons for the denial of benefits and the name of the insurer’s representative involved. The absence of a signature did not prejudice him in the slightest. In my view, the insurer has fulfilled any obligation to notify him of its decision

Mr. Opatowski’s second objection relates to the reasons given for the denial. The Assessment of Claim form, dated February 22, 1994, stated:

Independent Medical Examination indicates claimant not suffering a substantial inability to perform the essential tasks in which he would normally engage.

General Accident elaborated on this explanation in a letter dated the same day and sent to Mr. Opatowski’s then lawyers. It indicated that Mr. Opatowski had been examined by Dr. Mascarenhas on February 8, 1994 and went on to say:

Although we have not received Dr. Mascarenhas’ full report, we have discussed this matter with him verbally. We are awaiting his report and upon receipt of the same, we shall forward a copy to your office for your review.

Dr. Mascarenhas indicates that he does not believe your client is currently suffering from a substantial inability to perform the essential tasks to which he would normally engage. On that basis, and as your client has been paid up to and including the date of the examination, no further Benefit, No Income payments will be made.

It is Mr. Opatowski’s position that General Accident misrepresented Dr. Mascarenhas’ conclusion and therefore terminated benefits illegally.

In my view, Dr. Mascarenhas’ report is open to interpretation. However, even if its conclusions are not as clear-cut as indicated above, this alone does not qualify Mr. Opatowski for continued benefits. In adjudicating entitlement, an arbitrator’s role is not limited to the information relied on by the insurer at the time of the termination, but includes consideration of all relevant and admissible evidence presented by the parties.

Section 282(10) of the Insurance Act provides a remedy for an improper termination of benefits:

If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the ...Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

I am not convinced that General Accident acted unreasonably at the time in denying Mr. Opatowski further benefits based on Dr. Mascarenhas’ report. Even if it did, no award is payable. An arbitrator has the authority to make an award under this subsection if he or she finds not only that the applicant entitled to benefits, but the insurer acted unreasonably in failing to pay them. The award is paid in addition to benefits found to be owing and is calculated by reference to the amount of such benefits. Since Mr. Opatowski is not entitled to further benefits, no award is payable in respect to them.

V. CARE BENEFITS

Mr. Opatowksi appealed the arbitrator’s denial of care benefits under section 7 of the Schedule. He claimed that Ms. Edwards and his mother have cared for him since the accident and that $80 a week should be paid for their services. As the arbitrator found, Mr. Opatowski provided minimal evidence about the nature of these services, his need for them, the time spent performing them, arrangements as to payment and the basis for the hourly figure claimed. The arbitrator also pointed out that during the period Ms. Edwards was supposed to be providing these services, she herself received accident benefits related to disabilities arising from the same accident.

Mr. Opatowski argued he did not need to provide the evidence referred to in order to receive benefits under section 7 and that he had furnished sufficent evidence. I disagree. The arbitrator’s order is upheld.

VI. SUPPLEMENTARY MEDICAL AND REHABILITATION BENEFITS

The arbitrator ruled that Mr. Opatowski withdrew his claim for supplementary medical and rehabilitation benefits at the commencement of the hearing. She therefore did not deal further with these claims.

At mediation and in his application for arbitration, Mr. Opatowski made a number of claims under section 6 of the Schedule. At the arbitration pre-hearing held on June 1, 1995, he wanted to add the cost of treatment recommended by Dr. Kachooie, including psychological counselling, acupuncture, chiropractic hydrotherapy, massage, physiotherapy, the cost of a TENS machine and certain prescription costs. The arbitrator ruled that he could advance these claims at the arbitration, provided he gave General Accident all supporting information and documentation 45 days prior to the hearing.

Mr. Opatowski’s method of claiming benefits was, at best, haphazard. Some invoices and documentation found its way to General Accident either directly from the service provider or Mr. Opatowski’s then lawyer. Mr. Opatowski provided some additional documentation at the start of the hearing. There was no or minimal information in relation to the cost of or need for certain items.

A week before the hearing was scheduled to start, Mr. Opatowski asked for an adjournment so that he could retain another, more experienced lawyer. He was told to make his request to the hearing arbitrator. At the start of the hearing he advised the arbitrator that he intended to represent himself and no longer wanted the adjournment. The arbitrator suggested that he delay the hearing to get another lawyer. She told Mr. Opatowski that he would not be able to go ahead with his section 6 claim because he had not complied with the order to provide particulars but that an adjournment would allow him to organise his section 6 claims, properly.

Mr. Opatowski insisted on proceeding. Faced with a clear choice between delaying the hearing and dealing with all his claims later on, or going ahead without proceeding on the section 6 issue, he told the arbitrator that he “waived” his section 6 rights.

Mr. Opatowski now wants me to hear his section 6 claims and adjudicate in his favour. He also requests a special award under section 282(10) of the Act on the basis that General Accident unreasonably and illegally delayed or denied his access to treatment and therapy. He seeks a variety of orders in relation to them.

General Accident takes the position that Mr. Opatowski waived his claim to medical and rehabilitation benefits at the arbitration hearing. It seeks an order that he is not entitled to claim any benefits that were or could have been claimed up to then. Mr. Opatowski’s position is that he did not abandon these claims, merely the privilege of having them dealt with at that time. He accuses General Accident of misleading the arbitrator about his knowledge of these claims and of “burying” relevant evidence.

Addressing this last point, it was up to Mr. Opatowski to comply with the arbitrator’s order in full and to advance his claims in a coherent and sensible fashion. He failed to do so. General Accident cannot reasonably be expected to sort out his claims, given the way they were presented.

I am not prepared to hear Mr. Opatowski’s section 6 claim. He withdrew his claim at the hearing. That ends the matter for the purposes of the appeal.

Given the importance of the benefits involved, I would only conclude that an applicant had abandoned his entitlement to them in the clearest case. I am not convinced that in using the term “waive”, Mr. Opatowski signalled his intention to do this. I am not therefore prepared to make the definitive order General Accident seeks. However, Mr. Opatowski could have dealt with all of the claims in one proceeding had he agreed to an adjournment.

In Chapman and Allstate Insurance Company of Canada, Chapman and Wellington Insurance Company, (June 10, 1994, P-001897 & P-001898) the Director of Arbitrations confirmed that Commission adjudicators have the power to control their own processes. This includes the power to deny permission to a party to withdraw all or part of their claim or to impose conditions or consequences on a withdrawal. In Bilusack and Co-operators General Insurance Company, (February 13, 1996, File No. A-006369) the arbitrator took this one step further and imposed the condition that an applicant pay the insurer’s assessment under section 282(11.2) of the Insurance Act before being allowed to proceed with another arbitration.

Although the arbitrator did not impose any conditions on the withdrawal of Mr. Opatowski’s section 6 claims, I may vary her order or substitute my own order.¹⁴ I may also make orders subject to conditions¹⁵ and such orders as are appropriate to prevent abuse of the Commission’s process.¹⁶ I am doing so here.

A further application for arbitration in respect of benefits under section 6 of the Schedule cannot be filed until such time as Mr. Opatowski has

paid General Accident the amount of its assessment ordered below;
completed a claim for the benefits sought, using the prescribed form;
provided General Accident with all supporting documentation he intends to rely on in support of his claim or claims.

For clarity, the above conditions are in addition to any orders which may be made by the arbitrator in respect of the proceeding in the event he or she determines that the application is frivolous, vexatious or an abuse of process.

VII. ORDER UNDER SECTION 282(11.2) OF THE INSURANCE ACT

General Accident requested an order that Mr. Opatowski be required to pay an amount equivalent to its assessment under section 282(11.2) of the Act (applicable to appeals, with necessary modifications by section 283(7)):

If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.

General Accident paid an assessment fee of $500 in the appeal.

Much of the appeal was taken up with Mr. Opatowski’s allegations of fraud or illegal conduct by General Accident’s agents and representatives. These allegations were without any foundation and, in my view, vexatious within the meaning of section 282(11.2). Mr. Opatowski also focused on claims to supplementary medical and rehabilitation benefits previously withdrawn. I consider this to be an abuse of the Commission’s process. The fact that his views may be sincerely held does not justify the use of the Commission’s resources to deal with such matters or the time and expense that General Accident had to incur responding to them.

Mr. Opatowski must pay General Accident $500 under section 282(11.2), payable prior to any application for further arbitration proceedings at the Commission, in respect of General Accident.

VIII. EXPENSES

The arbitrator awarded Mr. Opatowski his arbitration expenses. He submits that the arbitrator should have awarded him an agent’s fee. An agent’s fee is payable only where a person is engaged to represent an applicant, not where an applicant represents himself. His appeal on this ground is denied.

In view of the reasons for, and his conduct of this appeal, Mr. Opatowksi is not entitled to his appeal expenses. He specifically asked for payment of Dr. Kachooie’s $800 account in respect of his September 1995 report. As I noted, I was given no reason why this report was not provided to be arbitrator. Therefore, I am not prepared to order it paid as an expense of either the arbitration or the appeal. General Accident takes no issue with payment for Dr. Edwards’ report, dated October 7, 1994, and have agreed to pay it.