Neutral Citation: 1997 ONICDRG 15

OIC A96-000509

BETWEEN:

SANDRA CLARK

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

DECISION

The Applicant, Sandra Clark, was injured in a motor vehicle accident on August 16, 1992. She applied for and received statutory accident benefits from Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 672.¹ Royal terminated weekly income benefits on August 23, 1995. The parties were unable to resolve their disputes through mediation, and Mrs. Clark applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mrs. Clark entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from August 24, 1995 and ongoing?
What is the correct amount of Mrs. Clark's weekly income benefit pursuant to section 12(7) of the Schedule?
Is Royal entitled to a repayment pursuant to section 27 of the Schedule?
Is Royal entitled to deduct post-accident income pursuant to section 15 of the Schedule?

Mrs. Clark also claims interest on any amounts owing, and her expenses incurred in the hearing.

Mrs. Clark is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from August 24, 1995, and onwards.
The correct amount of Mrs. Clark's weekly income benefit is $481.23.
Pursuant to section 15 of the Schedule, Royal is entitled to set off $5,385.99 against any weekly income benefits owing to Mrs. Clark.
Mrs. Clark is entitled to her expenses and interest on any amounts owing.
I remained seized on the issue of a special award.

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on November 18, 19, 20, and 21, 1996, before me, Joyce Miller, Arbitrator. Written submissions were received on November 29, 1996 and December 11, 1996.

Present at the Hearing:

Applicant:

Sandra Clark

Mrs. Clark's Representative:

John J. Cardill

Barrister and Solicitor

Royal's Representative:

Stanley C. Tessis

Barrister and Solicitor

Witnesses:

Sandra Clark

Dr. Martin Gillen

Dr. Darrell Menard

Richard Clark

Craig Campbell

John Galipeau

Exhibits:

22 exhibits were filed. Mrs. Clark filed a document brief.

Evidence and Findings:

Issue 1: Is Mrs. Clark entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from August 24, 1995 and ongoing?

Background

Mrs. Clark is 41 years old. She is married and has two step-children, a daughter, 18, and a son, 12. She lives with her family in Limoges, about 45 kilometres from Ottawa.

Mrs. Clark began her working career in 1974 in the military, where she trained and worked as an assistant air traffic controller. She left the military in 1981 and attended college for two years, obtaining a degree in advertising and public relations. For the next five years, she worked as an assistant manager at Avco & Household Insurance authorizing loans and mortgages.

From 1988 until 1992, Mrs. Clark worked on contract for the Department of National Defence (DND) as a Public Affairs Assistant. She was required to liaise with the media as well as draft Ministerial correspondence. She wrote, edited, and proofread material for press kits and public release.²

According to Mrs. Clark, the job was at times very fast-paced, and she was sometimes required to put in an 80-hour week. For major crises such as the Gulf War or the Oka stand-off, she might be on duty for 24 hours at a time.

In 1992, Mrs. Clark chose to take the summer off, partly as a vacation, but mostly because her two step-children were coming to live with her and her husband. Mrs. Clark testified that she felt it was very important to be there and help her step-children to integrate into their new family environment. She was planning to return to work in the fall.

In her personal and social life, Mrs. Clark was involved in a variety of activities. She water-skied and did cross-country and downhill skiing. She taught classes on budgeting, sewed, and refinished antique furniture. She helped her husband renovate their country house, which required her to chop wood and use a chain saw. She went dancing, and played darts and billiards in a league. She biked, fished and played badminton, table tennis and basketball. She also did skydiving.³

Prior to the car accident, Mrs. Clark was in excellent health. She testified that she rarely saw a doctor.⁴ No evidence to the contrary was presented.

The Accident

On August 16, 1992, Mrs. Clark was involved in a very serious car accident. She was a front-seated passenger in a car driven by a friend. They were driving on the highway when a car coming in the opposite direction, moved into their lane and crashed into them.

Mrs. Clark did not testify very much about the details of the accident, and so I quote from the report she gave to Dr. Perry Rush, who examined her on behalf of Royal:

Regarding her body in the vehicle, she saw the other car coming head-on. The windshield broke. She saw the car spinning around like it was never going to stop. The next thing, she almost went unconscious and felt unsteady but she did not lose consciousness. After the vehicle stopped, the dashboard was on top of her. It was pushed in on her. Her body was strapped in the front and her head and neck was between the two seats .... She did not hit her head on anything and did not lose consciousness and did not vomit. She felt nauseous and dizzy at the time. She knew that her neck was broken. Her left foot was broken and she felt the blood rushing to the foot. The motor came into the car. She was removed from the vehicle by the Fire Department with the Jaws of Life.⁵

Mrs. Clark suffered significant injuries. She fractured her neck in three places, fractured her left collar bone, sprained her left shoulder joint, sprained her right thumb, punctured her right knee and severed a nerve, fractured her left foot where it meets the ankle joint, suffered a concussion, injured her tailbone and received a significant abdominal haematoma which hardened into clots.

After the accident, Mrs. Clark was first taken to Montfort Hospital. She was then immediately transferred to the Ottawa General Hospital where her injuries were treated.

In order to prevent any injury to Mrs. Clark's spinal cord, she was placed in a "halo" to keep her neck from moving. Steel rods were inserted into her skull to brace her neck. The rods were attached to a vest which she always had to wear.⁶ As a result of having to wear the vest, Mrs. Clark's fractured collar bone could not be treated, and it healed with a malformation which now causes her pain.

Mrs. Clark remained in hospital for one month. When she returned home, she had a hospital bed placed in her dining room, and she spent the next five months either in bed or in a wheelchair until the "halo" was removed.

One Year after the Accident

About a year after the accident, Dr. Darrell Menard reported on her situation. Dr. Menard is a military doctor with a part-time family medical practice emphasising sports injuries and rehabilitation. He stated in September 1993:

Despite the severity of her initial injuries, Mrs. Clark is currently doing well because of her motivation to get better and the dedicated effort she has put into her rehabilitation. It is impossible to say at this time how many of her current problems will be permanent but I believe there is little doubt that she will be required to live with some permanent sequelae from the accident in question.⁷

Dr. Menard also reported that "While Mrs. Clark has made significant progress since her accident, she still has a number of areas of concern."⁸

These areas of concern included a general body stiffness, especially on waking in the morning; recurrent headaches; pain in her left shoulder joint; pain with moderate use of her shoulders; pain in her left foot when bearing a moderate amount of weight; pain and permanent numbness in her right knee as a result of nerve damage; thickening of the right abdominal quadrant where "several areas of organized hematoma" still remain from the accident; and pain and stiffness in her jaw, as a result of having to wear the halo after the accident.⁹

In November 1993, Mrs. Clark seemed to have reached a plateau in her physical rehabilitation. On November 4, 1993, Dr. Menard noted in his clinical records that Mrs. Clark was focused on her neck, back and foot pain and was looking for an explanation. She reported that she had attempted suicide and had had suicidal intentions. He noted that on that day she denied being depressed and that she felt that asking for help is a sign of weakness.

A few weeks later, however, on November 26, 1993, a report by Accu-Med, a vocational rehabilitation company hired by Royal, noted Mrs. Clark's positive attitude regarding her rehabilitation. It stated:

Mrs. Clark stated that she is ready to return to work, as her coping strategies are becoming unhealthy. The Consultant feels that while Mrs. Clark's motivation is commendable, she is not ready to return to work.¹⁰

Vocational Rehabilitation

As noted above, Mrs. Clark from the beginning was highly motivated to rehabilitate herself to return to work as soon as possible.

In 1994, Mrs. Clark began to focus on her vocational rehabilitation. With the assistance of Accu-Med, she began an adult education course to upgrade her work skills in the late winter.

Mrs. Clark testified that because of pain she was unable to attend classes full time (six hours a day, five days a week). She was only able to attend classes three times a week on average, for about two hours a day. She did her assignments at home. Despite these limitations, Mrs. Clark succeeded in passing her exams with marks in the 90's in seven out of nine subjects.¹¹

When the course was finished, Mrs. Clark participated in a work hardening program. She worked for four weeks, from May 16 to June 24, 1994, without pay, at a business called Money Concepts. Mrs. Clark's job was to answer the phone, make appointments and help the owner produce a financial newsletter. Her hours were flexible. Mrs. Clark testified that she was in a great deal of pain and was only able to work about two hours a day, twice a week.

In August 1994, with the assistance of Accu-Med, Mrs. Clark obtained a three-month contract with DND. She worked in a personnel office which arranged to send employees on courses. Mrs. Clark processed travel claims and assisted in writing and editing a small pamphlet. She received a salary of $135.00 a week for this work, which was deducted from her insurance benefits.¹²

Mrs. Clark testified that she suffered a great deal of physical difficulty and pain when doing the job. She was only able to work about three hours a day, three times a week. Often she would do the writing and editing part of her job at home.

After this work assignment, Mrs. Clark took a very proactive approach to her vocational rehabilitation, without the assistance of Accu-Med.

In 1995, Mrs. Clark studied for, wrote and passed the Public Service Commission Exam.¹³ She volunteered to sell advertising on a part-time basis for a local bi-weekly newspaper.¹⁴ As well, she volunteered to work in the library at her step-son's school. Unfortunately, she was physically unable to continue to do these two volunteer jobs and had to stop. She could not sit for very long, nor could she lift the books to shelve them. She was always in pain.

Despite her physical limitations, Mrs. Clark was very motivated to get back to meaningful work. In March, she saw an ad in the newspaper for the position of an administrative assistant to a member of parliament, Len Hopkins. She applied for the job along with 200 other candidates and was successful in obtaining the position.¹⁵ This was the high point in her rehabilitation. It was her "dream job." She had found a job that suited her experience, talents, skills and abilities.

Mrs. Clark testified that she informed Mr. Hopkins of her medical condition, and he was understanding and supportive of her desire to return to work. The job was part time, from 9:00 a.m. to 1:00 p.m. Mrs. Clark had hoped the job would turn into a full-time position.

Unfortunately, from the start, Mrs. Clark was unable to meet the basic physical demands of her employment. She had to drive 45 to 50 minutes to get to Ottawa. By the time she got to work, she was exhausted. The parking lot was about a mile away from the Parliament buildings and she had to walk uphill to get there. Although she was soon able to obtain closer parking, about a quarter of a mile away, it was still a difficult uphill walk.

For her job, Mrs. Clark had to lift files and carry briefs from the west block to the centre block of Parliament. She was unable to do the lifting, carrying and walking.

Mrs. Clark testified that because of her pain and the fact that she was exhausted even before her work day began, she was unable to make it into work every day. She averaged about three days a week.

On April 20, 1995, two weeks after she started working for Mr. Hopkins, Mrs. Clark received her termination notice. In his letter, Mr. Hopkins stated that Mrs. Clark could not at "... this time ... meet the physical and mental challenges of this fast-paced office."¹⁶ Mrs. Clark stopped working on May 4, 1995.

An Accu-Med report of May 3, 1995 showed that despite the loss of her job, Mrs. Clark was still very motivated to return to work. It stated:

Ms. Clark has expressed disappointment over her lack of success in her part time position. She remains steadfast that she is capable of some form of work, and will attend programs suggested by the Consultant as she wants to increase her tolerances.¹⁷

One month later, Accu-Med reported that Mrs. Clark was beginning to accept the reality of her situation. It stated:

Ms. Clark's frustration level appears to have increased significantly, she had lost much of her positive outlook. ... Ms. Clark has expressed that she feels she is becoming more realistic in that she has accepted that she will not be able to work on a full time basis.¹⁸

Mrs. Clark did, however, obtain some part-time work close to her home which she continues to do. She works in a special care residence which houses 25 mentally-ill residents. The residence is a few blocks down the street from where she lives.

Mrs. Clark works on weekends on an "as needed" basis. She begins work on Friday evening at 5:00 p.m. and finishes at 9:00 a.m. the next morning. Her job is not physically demanding, and Mrs. Clark is only required to be active for about one or two hours.

Mrs. Clark is required to supervise the evening meal and the distribution of medication. She has her own room, with a television, to which she retires after the evening meal. In the morning she supervises the breakfast. Although this work does not fully utilize Mrs. Clark's skills, talents, experience and abilities, she testified that she chooses to do it because it at least gives her something to do, and makes her feel useful.

Termination of Benefits

On May 10, 1995, Dr. Menard wrote to the adjuster for Royal, Mr. Eric Burgar. Dr. Menard noted that since her accident Mrs. Clark "... has undergone an extensive rehabilitation program aimed at maximizing her physical, mental and emotional recovery." He stated that:

From the start Ms Clark's objective was to return to her pre-accident level of functioning and she has certainly made every [effort] to achieve this goal. Unfortunately, despite her efforts she has been unable to recover to the point where she can handle her previous domestic and occupational workload. In fact, it is doubtful she will ever return to her normal self and she will likely have to deal with the issue of chronic pain for the remainder of her life. This has been extremely frustrating for her and in fact has likely contributed to periods of depression she has experienced during her rehabilitation program.

In my opinion it is unlikely that Ms Clark will ever be capable of full-time employment in a job which makes even moderate physical demands of her. I believe that she would be best served by securing employment which is part-time, non-physical in nature, and can be done from or very close to her home.¹⁹ [emphasis added]

On August 17, 1995, Dr. Menard expressed the same opinion regarding Mrs. Clark's ability to return to work to Mr. Martin Gervais of Accu-Med.²⁰ Mr. Gervais, both in a report dated August 30, 1995,²¹ and in "a-sign back" letter to Dr. Menard on the same day,²² confirmed Dr. Menard's opinion. In the sign-back letter Mr. Gervais notes that:

Although you indicated that it was difficult to predict how many hours a client would be capable of working, you suggested Ms. Clark, based on the results of the previous experience, could attempt returning half days, five days per week (i.e., 20 hours per week).²³ [emphasis added]

Despite these reports and the opinion of Dr. Menard, Royal terminated Mrs. Clark's benefit's on August 23, 1995 on the basis that Dr. Menard had cleared her for full-time work on August 24, 1995. It seems that in filling out a medical form on that date, Dr. Menard accidently checked off that Mrs. Clark could return to work full time. He also checked off that she could return to work part time.²⁴

In the form, Dr. Menard referred to his discussion with Mr. Gervais, and again repeated his assessment of Mrs. Clark's limited ability to return to work. Despite this clear contradiction regarding whether Mrs. Clark could return to full-time work or part-time work, Royal made no effort to contact Dr. Menard so as to clarify his comments.

On October 4, 1995, Dr. Menard wrote to Mr. Gervais noting he had made a mistake when filling out the form. He stated:

It was not my intention to approve her for full time work at this time, as I clearly do not believe she is currently capable of this and stated so in our interview on 17 August 1995.

So that there is no further confusion in this matter, I would like to clearly indicate for the insurance company that my recommendations for Mrs. Clark's attempt to return to the work force are clearly outlined in your letter of 30 August 1995.²⁵ [emphasis added]

Despite Dr. Menard's explanation, Royal never reinstated Mrs. Clark's benefits.

In October 1995, Dr. Menard's clinical records note that Mrs. Clark was suffering from depression. He stated that:

Pt has not felt well x [sic] several months now. She feels she is losing control as she finds her moods swing from anger to depression and back. She is crying daily and has given suicide a thought. She denies being suicidal at this time. She finds some days she does not want to get out of bed, sleeps poorly, is over eating, has lost interest in her appearance and is not socializing.²⁶

In December 1995, Mrs. Clark was accepted into a six-week inpatient chronic pain management program at the Ottawa General Hospital. Mrs. Clark was referred to this program by Dr. Gunnar Kragg, Chief of Rheumatology at the Ottawa Civic Hospital. Dr. Menard had referred Mrs. Clark to Dr. Kragg after she told him she thought she had fibromyalgia.

The history of how Mrs. Clark came to this pain clinic began in November 1994.

On November 16, 1994, Mrs. Clark spoke to Ms. Goodwin at Accu-Med and indicated to her that she thought she might have fibromyalgia.²⁷ Ms. Goodwin immediately contacted Dr. Menard who said that he did not agree with this diagnosis. In his view, Mrs. Clark was "... looking for an answer to her pain." Dr. Menard stated that he would refer Mrs. Clark to a rheumatologist.²⁸

Dr. Menard felt that Mrs. Clark had developed a chronic pain syndrome, and that she was looking for a label for her pain when she proposed that she might have fibromyalgia. She was hoping to find a diagnosis for her condition and a medical solution for it. Dr. Menard sent Mrs. Clark to Dr. Kragg for a second opinion.

Dr. Kragg reported to Dr. Menard on May 5, 1995:

...she has now developed all the classic features of a chronic pain syndrome with features most compatible with fibromyalgia. She sleeps poorly, awakens unrefreshed and exhausted, has diffuse pain and runs out of steam quickly with any activity.

...I doubt if she will ever be free of pain, and I think she will be permanently disabled to at least some degree and doubt whether she can return to any type of full time employment .... I also think that she would be an excellent candidate for the pain management program at the Rehab Centre since she is so well motivated and I will ask them to put her on the list for assessment.²⁹

Before being admitted to the pain management program, Mrs. Clark underwent a screening process. She was examined by a physiatrist, a clinical psychologist, a physiotherapist and a nurse practitioner. On their recommendation Mrs. Clark was admitted to the program as an inpatient. She was permitted to go home on weekends.

The program was designed to: "...provide participants with information, skills and activities to improve their ability to cope with pain and return to as full a life as possible."³⁰

The goals of the program were to: "1) increase the patient's levels of physical fitness, 2) eliminate analgesic medication and 3) encourage development of a realistic vocational or avocational plan."³¹

A multi-disciplinary staff provided services to the program. They included personnel from: Physiotherapy, Occupational Therapy, Social Work, Recreation, Psychology, Nursing, Pharmacy, Nutrition Services and Physiatry.³²

By the end of the program, Mrs. Clark had succeeded in her goal to stop taking analgesic medication. As well, she learned how to pace herself better by planning her day and breaking up her activities into smaller time periods.

Dr. Martin Gillen, a physiatrist, who had been chief of the chronic pain program for about four years, initially assessed Mrs. Clark and followed up with her progress. He made the following assessment on March 6, 1996 after her discharge.

...Overall, her productive capacity appears to be a maximum of about 2 hours. Although she has improved her life quality with the inpatient program, there has really been no change in her productive capacity.

Certainly, from my perspective, I do not expect that this lady will make significant functional gains beyond this level and I do not believe that she has the physical capacity consistent with return to work in either a part-time or full-time capacity.³³

On April 29, 1996, Dr. Menard concurred with Dr. Gillen's opinion. In addition, he noted in his report that as a result of the accident:

... [Mrs. Clark] is significantly handicapped by chronic pain, fatigue and generalized stiffness and these symptoms are exacerbated by even moderate volumes of activity, cold weather, humidity or stress. What is particularly discouraging, is that these symptoms vary in intensity on a daily basis and there is no predicting how she will feel from one day to the next.³⁴

On July 17, 1996, Dr. Kragg reported that:

It is generally my goal to try to encourage patients with fibromyalgia to remain as active as possible, and I am extremely resistant in supporting them in terms of permanent disability. I think this case is exceptional. I feel that Sandra Clark is indeed totally disabled on the basis of a chronic pain syndrome with many associated features of fibromyalgia.³⁵

Mrs. Clark testified that since the halo was taken off, she has not been able to get a good night's sleep. She is always in pain and can never find a comfortable sleeping position. She sleeps one hour and then gets up for an hour, and in this way, she manages to get three to five hours of sleep. She wakes up stiff and feels as though a train has run over her. If she sleeps too much, her bodily stiffness increases.

Moreover, sitting, standing or walking for any period of time exhausts her. Mrs. Clark stated that she must constantly pace herself. For example, if she plans to cook potatoes for dinner, she will peel them in the morning to divide up the tasks.

Mrs. Clark stated that although she very much wanted and needed to return to work and has attempted to do so a number of times, the injuries she suffered in the accident and her resulting pain prevent her from doing so.

Royal's Medical Evidence:

(a) The March of Dimes Report

As noted above, in 1995, Mrs. Clark was proactive in trying to return to work. Mrs. Clark only received assistance from Royal that year after she failed in her attempt to work for Len Hopkins. In June 1995, Royal sent Mrs. Clark to the March of Dimes to participate in a work hardening program.

On July 18, 1995, the March of Dimes prepared a report. Under the heading of "Summary/Conclusions," the report stated:

During the course of the Work Hardening - Phase I program at the March of Dimes, Sandra was cooperative and participated with interest in the program groups and work activities.

Sandra will likely need continued support in her attempt to return to work. Further involvement in pain management and in particular further development of the consistent use of pacing techniques is suggested. Due to her limited attendance in the program and the difficulty expressed with driving the distance from her home to the centre, it is not felt that she is presently a suitable candidate for the Work Hardening Phase 2 program.³⁶ [emphasis added]

The report indicates that Mrs. Clark's limited attendance (she attended 7 out of 9 days)³⁷ was not only because of the long distance she had to drive, but because of her poor pacing. It was noted, for example:

... Sandra did demonstrate difficulties with respect to incorporating pacing techniques. In group activities she tended to take on a leadership role in which she did not take regular breaks. For example during a cooking group other people in the group asked her for direction and she remained active for the full hour of cooking even though a timer was put in place to encourage positional breaks. Sandra appeared to take on the responsibility that the meal be prepared on time. She was absent on the subsequent program day which she attributed to poor pacing techniques.³⁸

The report, in my view, not only confirmed Dr. Menard's findings that Mrs. Clark was not able to work at that time, but also confirmed that Mrs. Clark was a high achiever who strove to do her best.

Dr. Menard testified that when he first met Mrs. Clark he was concerned about her over-achieving nature. At their first meeting, Mrs. Clark told him she was going to be 110 per cent better. At her first meeting with Accu-Med, Mrs. Clark stated she wanted to start working right away.³⁹ In an "Attending Physician's Statement of Disability" for Assurance Company of Canada Dr. Menard stated that:

Mrs. Clark is very motivated to return to the work force - in fact sometimes she pushes too hard for her own benefit.⁴⁰

(b) The CBI Reports

Accordingly, I give little weight to a Canadian Back Institute (CBI) report of August 10, 1995, which stated that Mrs. Clark did not put full effort into her testing and implied that she might be a malingerer. I find that the CBI report was biased against Mrs. Clark, contradictory, confusing and vague.

Mrs. Clark first underwent a Functional Capacity Evaluation (FCE) at the CBI on October 4 and 5, 1994 when she was working part time at the DND as part of a work hardening program. The report stated that "...Ms. Clark provided sub-maximal effort" ... and "[t]herefore, the test results may not represent Ms. Clark's true physical abilities."⁴¹ The report indicated that Ms. Clark was tested for her job duties which included "... photocopying, filing, and data entry and editing on a computer."⁴² The report concluded that there was "... no reason preventing Ms. Clark from returning to her part time duties as a manager in the Public Affairs Department for National Defence."⁴³

The second CBI report was based on a FCE that Mrs. Clark underwent at the CBI, for about four hours on August 10, 1995. The CBI report concluded that Mrs. Clark provided "sub-maximal" effort in the FCE tests and that the tests did not "... reflect Ms. Clark's true physical abilities." From this the CBI concluded that Mrs. Clark "... would be capable of performing at a higher functional ability."⁴⁴

However, what the CBI did not take into consideration in its conclusion were its findings that Mrs. Clark was unable to continue in a number of tests because of pain. More particularly, Mrs. Clark did not participate in the "dynamic push/pull and "work simulation" tests because of "... pain in her left shoulder, back, neck and left foot" and because "... she had no energy left and was exhausted."⁴⁵

Moreover, and most troublesome are the vague, confusing statements in its conclusion. On the one hand, the CBI report seemed to indicate Mrs. Clark could return to work, and on the other hand, it suggested she could not return to work.

For example, under the heading of "Recommendations," the report states that "Based on the objective findings of the Functional Capacity Evaluation, Ms. Clark does meet all the demands associated with her position."⁴⁶ [emphasis added] However, the next sentence states: "More specifically, Ms. Clark does not meet the sitting demands of her job." [emphasis added] What does this mean?

Two paragraphs down, the report states that "Furthermore, there are no physical findings preventing Ms. Clark from returning to full time hours in her new occupation."⁴⁷ The evidence shows that at the time Mrs. Clark was tested, she had no new job. [emphasis added]

It appears that the report was referring to its recommendation that Mrs. Clark could work full time in "fund raising" or as a "placement counsellor."⁴⁸ I note, however, that the CBI did not specifically test Mrs. Clark for these occupations. In August 1995, without explaining why, the CBI tested Mrs. Clark for the duties of her 1994 job; a part-time clerical job she had not been working at for almost a year. The report indicated that the testing was incomplete because Mrs. Clark could not continue because she was in pain. Out of a scheduled two-day test period, Mrs. Clark only completed part of one day.

If the testing on Mrs. Clark's part-time clerical job was incomplete, I find it difficult to see how the CBI report could confidently conclude that Mrs. Clark was able to work full time in fund raising or as a placement counsellor.

In a letter to Accu-med on August 14, 1995, the CBI stated "Ms. Clark does not meet all demands associated with her position as Office Manager."⁴⁹ Mrs. Clark never worked as an "office manager" during the work trial. Her position at DND during the work trial was a part-time, clerical sedentary job. [emphasis added]

There was no indication in the 1995 FCE that Mrs. Clark was tested for the position of an office manager. Under the heading "PHYSICAL ABILITIES COMPARED TO JOB DEMANDS," the August 1995 CBI- FCE report stated:

Ms. Clark's position as an Officer in the Public Affairs Department for the National Defence required her to work 3 times per week consisting of 3 hours shifts. According to Ms. Clark, her job duties included photocopying, filing, data entry and editing on a computer.

A comparison of Ms. Clark's current physical abilities and critical job demands are contained in the following chart: ...⁵⁰.

While a certain degree of the confusion in the CBI report could be attributed to typing errors and poor drafting, I, nevertheless, find it to be a contradictory, confusing and vague report.

For all of these reasons, I find it difficult to give any weight to the CBI report of August 1995.

(c) Independent Medical Report

Dr. Perry Rush was the only doctor who examined Mrs. Clark on behalf of Royal. His examination took place in the late summer of 1996. Royal insisted that Mrs. Clark go to Toronto for this examination despite her protests that the trip was physically too difficult for her, and that Royal could have chosen an IME⁵¹ doctor from any number of physicians in Ottawa.

Dr. Rush's report was prepared on September 11, 1996. According to Mrs. Clark, Dr. Rush's physical examination took about ten minutes and he questioned her over a period of two hours with several breaks.

I give little weight to Dr. Rush's opinion that Mrs. Clark does not have a "physical" injury arising from the accident, that prevents her from working.⁵²

Firstly, I agree with Dr. Gillen that Dr. Rush did not take into consideration any soft tissue injury Mrs. Clark may have sustained, but focused on her fractures, which in Dr. Rush's view, have all healed.

I note that in pronouncing that Mrs. Clark's fractures have all healed, Dr. Rush did not comment on the report of Dr. Jacques Bouchard, an orthopaedic surgeon. In his report, Dr. Bouchard stated that the fracture to Mrs. Clark's left foot "... will undoubtedly cause posttraumatic arthritis in the future with aggravation of her pain. This may in the long term require surgical treatment as well as orthotic treatments."⁵³

Secondly, it appeared to me that Dr. Rush was biased when he dismissed out of hand the March of Dimes report that concluded that Mrs. Clark was not a suitable candidate for work hardening. In one sentence Dr. Rush merely stated that the March of Dimes report's findings "cannot be scientifically supported." Yet he quoted quite extensively, with approval, two long paragraphs, of the CBI report that Mrs. Clark made sub-maximal efforts and could return to full-time work.

I note that Dr. Rush omitted any reference to the fact that Mrs. Clark could not continue with the CBI testing because of pain and exhaustion. Moreover, Dr. Rush did not refer to any of the contradictions and confusions in the report; nor did he take into consideration that Mrs. Clark was observed by the March of Dimes over a period of 7 days, whereas the CBI only observed Mrs. Clark for about four hours on one day, and that the testing was incomplete.

Thirdly, Dr. Rush had available to him all the reports and clinical records of Drs. Menard, Kragg and Gillen, who all conclude that Mrs. Clark was suffering from chronic pain syndrome. Dr. Rush dismissed this diagnosis in one paragraph, and then spent ten pages considering the diagnosis of fibromyalgia which was not the principal diagnosis in this case. Dr. Rush's view was that fibromyalgia was not a valid diagnosis. However, Dr. Gillen pointed out that Dr. Rush had only presented one side of the debate on fibromyalgia and had also misinterpreted the most recent general consensus on fibromyalgia.⁵⁴

In his report, Dr. Rush stated that "Chronic pain by definition is a perceptual, maladaptive behavioural problem. This label is a syndrome (collection of symptoms) and is not a true diagnosis."⁵⁵

Dr. Gillen, who was the head of the Pain Management Clinic at the Royal Ottawa Hospital for four years, and has a considerable amount of experience and expertise dealing with chronic pain syndrome,⁵⁶ was very critical of Dr. Rush's comments on chronic pain syndrome.

Dr. Gillen pointed out that maladaptive behaviour was not a symptom of chronic pain. It is a behavioural problem that can arise out of chronic pain. Maladaptive behaviour involves a situation where a person seeks excessive medical attention, increases chronic medication use, avoids physical activities, becomes socially isolated and suffers increased interpersonal problems.

According to Dr. Gillen, chronic pain syndrome is a constellation of symptoms. One looks for certain patterns and consistency. These patterns include generalized pain, sleep disorder, depression, memory and concentration difficulties, personality changes (e.g., one is easily frustrated), de-conditioning, and reduced muscle endurance and tolerance. Chronic pain syndrome causes a significant disruption in a person's life.

Dr. Gillen testified that people who have chronic pain (i.e., pain that goes on for three to six months), fibromyalgia, or myofacial pain disorder can go on to develop chronic pain syndrome. They are not, however, one and the same thing.

In Dr. Gillen's view, Mrs. Clark's chronic pain syndrome stemmed from a physical problem which arose out of the soft tissue injuries that she incurred in her motor vehicle accident. Dr. Gillen pointed out that Dr. Rush completely ignored the fact that Mrs. Clark had suffered any soft tissue injuries in this very serious car accident.

Accordingly, I give little weight to Dr. Rush's opinion that Mrs. Clark does not have a "physical" injury arising out of the accident that prevents her from working.⁵⁷

(d) Credibility

Royal took the position that Mrs. Clark did not suffer all of the injuries she reported as a result of the accident, namely, that she did not have a concussion, nor did she injure her tailbone. Given the other very serious injuries Mrs. Clark suffered in the accident, these concerns did not seem very significant.

Royal, however, spent a great deal of time examining on this issue and raised it both in oral and written submissions. Royal suggested that Mrs. Clark was not being honest about her injuries, and this affected her credibility. For this reason, I it find it is necessary to deal with this issue.

(i) Concussion

Royal submitted that Dr. Rush had stated in his report that a concussion "... is defined as a loss of consciousness caused by a blow to the head."⁵⁸ Therefore, since Mrs. Clark stated that she did not lose consciousness at the time of the accident, she did not suffer a concussion.

Dr. Menard and Dr. Gillen testified that, in their medical opinion, one can have a concussion without losing consciousness.

According to Dr. Gillen, a concussion is an altered state of consciousness that can come about when a person's head has been severely shaken. Some very severe blows can cause a person to lose consciousness.

In Dr. Menard and Dr. Gillen's opinion, although Mrs. Clark did not completely lose consciousness, she suffered a severe trauma to her head that resulted in a concussion.

Taking into consideration the seriousness of the accident, the fact that the force of the car crash pushed Mrs. Clark's head back between the two seats, that she broke her neck in three places, that she almost lost consciousness, and that she felt dizzy and nauseous on impact,⁵⁹ I accept the medical evidence of Dr. Menard and Dr. Gillen that Mrs. Clark suffered a trauma to her head, that resulted in a concussion.

(ii) Tailbone injury

Royal submitted that the pain in Mrs. Clark's tailbone is not a result of an injury from the accident. Royal bases its view on the fact that the medical records do not show Mrs. Clark complaining of pain in her tailbone until about a year after the accident.⁶⁰

Mrs. Clark testified that after the accident she suffered "horrific" pain all over her body. Some areas hurt much more than others. However, she stated that she could not sit in her wheelchair without a rubber sponge to cushion the pain.⁶¹

Mrs. Clark stated that as the pain of her other very serious injuries began to lessen, the pain in her tailbone area became more bothersome because she could not sit.

I have viewed the photos of Mrs. Clark, taken after the accident, sitting on a thick sponge in her wheelchair. I accept her testimony that after the accident her other serious injuries preoccupied her, and it was only when they began to heal that she became concerned about the injury to her tailbone. I therefore find that the pain in Mrs. Clark's tailbone, which makes it difficult for her to sit, results from an injury she received in the car accident.

(iii) Knee Injury

Royal also submitted that any problems that Mrs. Clark now has with her right knee did not stem from the accident. In the accident, Mrs. Clark had cut her right knee and severed a nerve which resulted in some permanent numbness in that area. In May 1994, Mrs. Clark attempted to play golf. Her left ankle "gave out" on her and this caused her to fall and tumble down an embankment. As a result she dislocated her right knee.⁶²

Dr. Menard testified that her injury from the fall has healed. He stated that any problems she now has with respect to her knee, (i.e., the numbness) result from the accident. Royal presented no objective medical evidence to contradict Dr. Menard's opinion. I accept Dr. Menard's opinion.

(e) Surveillance

I give little weight to the surveillance evidence presented by Royal. In my view, nothing in this evidence would undermine Mrs. Clark's position.

Briefly, most of the surveillance shows Mrs. Clark getting in and out of her car. It shows her driving to her appointments with the March of Dimes, something Royal had arranged for her to do. It shows her driving to a supermarket with two men. The men went inside and she waited on a bench outside.

One investigator testified that he observed Mrs. Clark washing a car. However, under cross-examination, he admitted that he only caught an eight-to-ten second glimpse of Mrs. Clark, through the hedge, with an eight-year old boy. She had a cloth in her hand. The boy, in fact, was Mrs. Clark's eleven-year old step-son. Mrs. Clark's testimony, which I found credible, was that she was supervising her children while they were washing the car. She stated that she may have leaned over to clean a spot, but she did not wash the car.

On the whole, I found the surveillance evidence innocuous and, therefore, give it very little weight.

Conclusion:

The first issue I must decide is whether Mrs. Clark is disabled within the meaning of section 12(5)(b) of the Schedule. This section provides as follows:

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.

The onus rests with Mrs. Clark to prove, on a balance of probabilities, that her injuries from the accident continuously prevent her from engaging in any occupation or employment for which she is reasonably suited by education, training or experience.

In the case of Wigle and Royal Insurance Company of Canada,⁶³ Arbitrator Seife states that in discharging the onus of proof,

... the applicant is not required to prove the impossible; i.e. that the applicant is unable to perform every employment or occupation for which he/she is reasonably suited. However, at the very least the applicant must identify some sort of "suitable" employment, describe the physical demands of the work and demonstrate with credible evidence that his/her injuries continuously prevent him/her from engaging in such employment.

In his decision, Arbitrator Seife also outlined a number of guidelines adopted from other arbitration decisions dealing with the determination of disability under section 12(5)(b). I also adopt those guidelines. They are as follows:

The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background.
Suitable work is not limited to what the applicant was doing at the time of the accident, provided that it is not unrelated to his or her previous experience. However, work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative.
In deciding suitable employment, one must consider such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant's employment experience and length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how.
The primary focus is on an applicant's functional limitations; however, job-market considerations are relevant in determining suitable employment.

For the following reasons, I am satisfied that Mrs. Clark has discharged her burden of proof.

My impression of Mrs. Clark is that she is by nature an intelligent, dynamic, fast-paced, and hard working individual. She is proud of her abilities and is highly motivated. This can be deduced from the kind of work and activities she engaged in before the accident, as well as her efforts to rehabilitate herself after the accident.

The accident devastated Mrs. Clark. She can no longer take part in the vigorous physical activities and hobbies she enjoyed before the accident. As well, she can no longer do the fast-paced, challenging work she once did.

I disagree with Royal's submissions that Mrs. Clark is capable of working based on the fact that she continues to work for the Limoges Residence. In my view, it is to Mrs. Clark's credit that she perseveres in trying to get herself back into the workforce. However, her job at the Limoges Residence is sporadic employment which is not in any way comparable to her pre-accident work or remuneration. I find the fact that Mrs. Clark is able to work at the Limoges Residence does not establish that she is able to engage in employment for which she is reasonably suited by education, training or experience.

Royal presented very little credible evidence to support its view that Mrs. Clark does not suffer from any injury that prevents her from returning to suitable work. I have already dealt with the evidence of Dr. Rush, which I do not accept.

I prefer the substantial medical evidence of Drs. Menard, Kragg and Gillen that as a result of the accident, Mrs. Clark suffers from chronic pain syndrome and is unable, at the present time, to engage in any occupation or employment for which she is reasonably suited by education, training or experience. Nevertheless, I am confident that if Royal works with Mrs. Clark in the rehabilitation process, Mrs. Clark will eventually be able to find some satisfying and challenging work that she could do within her limits.

Mrs. Clark has many talents and skills. She likes to take on responsibility. With some retraining, Mrs. Clark should find some business or occupation where her work would be mostly supervisory, and where she could either work from or near her home. In this way she could pace herself. I agree with arbitrator Manji in Pedden and Dominion of Canada General Insurance Company,⁶⁴ where she states:

... in order to reduce or eliminate the need for an insurer to pay ongoing weekly income benefits under section 12(5)(b), it is in the insurer's interest not to sit back and wait for an applicant to submit a specific proposal for rehabilitation. The insurer must be proactive and take steps to maximize the applicant's reintegration to the work force and his or her earning potential.⁶⁵

Accordingly, I find that Mrs. Clark is entitled to weekly income benefits pursuant to section 12(5)(b) of the Schedule from August 24, 1995 and onwards.

Issue 2: What is the correct amount of Mrs. Clark's weekly income benefit pursuant to section 12(7) of the Schedule?

Mrs. Clark was paid weekly income benefits of $600.00 a week. Royal disputed this amount. During the course of the hearing, the parties were able to settle this issue on their own. They agreed that the correct amount of Mrs. Clark's weekly income benefits is $481.23.

Issue 3: Is Royal entitled to a repayment pursuant to section 27 of the Schedule?

Section 27 of the Schedule provides that:

A person must repay to the insurer any benefit received under this Regulation that is paid to the person through error or fraud.

In Levenson and The General Accident Assurance Company of Canada,⁶⁶ Senior Arbitrator Naylor held that in order for an insurer to recover benefits paid to an applicant "through error," responsibility for the overpayment must be attributable in some material way to the actions of the applicant. I agree with this proposition.

In this case, Royal admitted that the overpayment of benefits to Mrs. Clark was due to a miscalculation on its part. Royal also admitted that Mrs. Clark did not contribute to this miscalculation.

It appears that at the time of the accident Mrs. Clark was not capable of giving Royal any information about her employment. She left it to Royal to investigate her employment situation and to pay her benefits according to its findings.

Royal obtained the "Employer's Confirmation of Income"⁶⁷ form which stated that Mrs. Clark earned a salary of $39,549.00. Royal, accordingly, paid Mrs. Clark her weekly income benefits of $600.00 a week.

Royal submitted that if I should find that Mrs. Clark is not entitled to any further benefits, then she need not repay the overpayment. However, if I do find that Mrs. Clark is entitled to further benefits, then pursuant to the cases of Boodhai and Allstate Insurance Company,⁶⁸ Upper and Canadian General Insurance Company,⁶⁹ and Bruno and Liberty Mutual Insurance Company,⁷⁰ the overpayment should be set off against expenses and any further benefits to which Mrs. Clark is entitled.

I do not accept this submission.

In this case the error that caused the overpayment was Royal's. In the cases of Boodhai and Upper, there were clear findings that the applicants had contributed to the overpayment by providing misleading information.

The facts in the Bruno case are distinguishable from this case in that the issue in Bruno was whether CPP benefits, received retroactively, are deductible from accident benefits received pursuant to section 13 of the Schedule.

Finally, I find Royal's submission contradictory. Having accepted responsibility for the overpayment, Royal then says that the overpayment must be set off against expenses and any future benefits awarded to Mrs. Clark.

For all of the above reasons, I find that Mrs. Clark need not repay the overpayment to Royal; nor must the overpayment be set off against expenses or any further benefits awarded to her.

Issue 4: Is Royal entitled to deduct post accident income pursuant to section 15 of the Schedule?

Section 15 of the Schedule provides that:

The insurer may deduct from any benefit payable under this Part 80 per cent of any income received or available from any occupation or employment subsequent to the accident.

Royal submitted that pursuant to section 15 of the Schedule it was entitled to deduct, not only post-accident income earned by Mrs. Clark, but that pursuant to the Van Devyvere and Axa Insurance Company⁷¹ case, it should be entitled to deduct future income to be attributed to Mrs. Clark.

(a) Post-Accident Income

(i) Employment with Len Hopkins

Mrs. Clark conceded that Royal is entitled to deduct 80 per cent of the income she earned while she was employed by Len Hopkins. Mrs. Clark earned $2,292.49. Eighty per cent of this equals $1,833.99.

Accordingly, I find that Royal is entitled to deduct $1,833.99 from any benefits owing to Mrs. Clark.

(ii) Employment at Limoges Residence

Mrs. Clark concedes that Royal is entitled to deduct 80 per cent of the income she earned working for Limoges. Although Mrs. Clark had documentation to show how much she earned in 1996, unfortunately, she did not have documentation with respect to her earnings in 1995. She also could not remember how often she had worked at the Limoges Residence in 1995.

Royal took the position that the amount earned in 1995 should be the same as in 1996.

I disagree. The evidence shows that in 1995, Mrs. Clark studied for and wrote the Public Service Commission Exam, attempted to do two voluntary jobs, worked for Len Hopkins, attended the March of Dimes program and began the chronic pain program. In 1996, the only part-time work that Mrs. Clark engaged in was at the Limoges Residence. It therefore seems likely that Mrs. Clark was available for more work in 1996 than in 1995.

Mrs. Clark's employment at the Limoges Residence is sporadic. It is only in 1996 that records were kept to document her work.⁷² I agree with Mrs. Clark's submission that Royal cannot rely on unsubstantiated assumptions respecting her income from the Limoges Residence in 1995.

Mrs. Clark proposed, however, that since no records of her earnings exist, the amount of income to be attributed for 1995 should be $1,480.00, which is one-half of the amount of $2,960.00 which she earned in 1996. Her total earnings from Limoges would then be $4,440.00.

I find that Mrs. Clark's proposal is fair in these circumstances. Accordingly, I find that Royal is entitled to deduct from any benefits owing to Mrs. Clark the amount of $3,552.00 which is 80 per cent of $4,440.00.

(iii) Income Split with Husband

Royal submitted that it is entitled to deduct income that Mrs. Clark allegedly earned by working for her husband from 1993 to 1996.

Royal presented evidence that in 1993 and 1994 Mrs. Clark's income tax returns showed that she earned $8,750.00 each year. Although there are no tax returns for this amount in 1995 and 1996, Royal submitted that a similar deduction should be made for these years.

Both Mr. and Mrs. Clark testified that Mrs. Clark did not work at her husband's business. The $8,750.00 reported in Mrs. Clark's income tax returns for 1993 and 1994 was at the advice of their accountant, for the purposes of splitting Mr. Clark's income to reduce his payable tax.

Mr. Clark testified that he owns a business called Tripple Trainers. His work requires him to be away from home for long periods of time. His business provides training on how to deal with hazardous materials for groups and organizations, such as firefighters. He also teaches first-aid. He stated that his work is very technical and that his wife does not understand it.

Mr. Clark ran his business from his home. He testified that the paperwork for his business could be done in less than an hour. Mrs. Clark testified any assistance that she gave her husband was of a very minor nature. She stated that, on occasion, she would answer the phone on her husband's behalf, and book a training. She would receive faxes and occasionally prepare a brief letter. She has not received any remuneration for this work. Her husband confirmed this in his testimony.

Royal did not present any concrete evidence that Mrs. Clark, in fact, worked in her husband's business after the accident, or that she received any money from her husband. I found both Mr. and Mrs. Clark credible witnesses. I accept their evidence that Mrs. Clark did not work for Tripple Trainers and that the income tax returns for Mrs. Clark in 1993 and 1994 were prepared for the purpose of income splitting.

(b) Attributing Future Income

Royal takes the position that I should follow the Van Devyvere⁷³ case and pursuant to section 15 find that income from employment is "available" to Mrs. Clark for permanent part-time work. It submitted that such income, whether earned or not, should be deducted from any benefits I may award to Mrs. Clark.

I find that, at the present time, Mrs. Clark can neither work full time nor part time pursuant to the test in section 12(5)(b) and, therefore, the reasoning in Van Devyvere need not be considered. Royal, however, presented both oral and written submissions on this issue. For this reason, I believe Royal's position should be addressed.

In Van Devyvere, after finding that the applicant's injuries received in the accident continuously prevented her from engaging in any occupation or employment for which she was reasonably suited by education, training or experience, Arbitrator Baltman went on to find that the applicant could, in fact, work part time. Arbitrator Baltman then concluded that pursuant to section 15, the insurer was entitled to deduct income not earned, but "available" to be earned, from the benefits that were awarded pursuant to section 12(5)(b).

With respect, I disagree with the reasoning in the Van Devyvere case. In my view, the reasoning that Arbitrator Baltman relied upon to deduct future available income is not supported by the legislation. In my opinion, if the drafters of the legislation had intended to allow for the deduction of potential income, they would have done so in a clear and straightforward manner.

The jurisdiction to award weekly income benefits after 156 weeks is set out in section 12(5)(b). This subsection states that in order for an insured to be eligible for weekly income benefits, the insured must show that the injuries from the accident "continuously prevents the insured from engaging in any occupation for which he or she is reasonably suited by education, training or experience."

In my opinion, the wording in section 12(5)(b) cannot be interpreted to mean that if an applicant is capable of working part time, then any weekly income benefit awarded pursuant to section 12(5)(b) can be reduced pursuant to section 15, when an applicant has chosen not to work part time.

Nor do I find that the wording in section 15 allows for such an interpretation. In my view, Section 15 deals with the issue of calculating quantum and preventing double recovery, and not the issue of partial entitlement.

Section 15 states:

The insurer may deduct from any benefit payable under this Part 80 per cent of any income received or available from any occupation or employment subsequent to the accident.

In my opinion, the word "available" used in section 15 provides for the situation where an applicant actually, as opposed to potentially, has money available to them. It does not lend itself to the broad interpretation that Arbitrator Baltman gives it, namely, that an applicant receiving benefits pursuant to section 12(5)(b), who is found capable of working part-time, and who chooses not to return to part-time work, can be found to have a part-time income "available" pursuant to section 15. In fairness to the applicant, such a scheme would have to be clearly specified in the legislation with the appropriate safeguards, rather than deduced from a broad interpretation of the word "available."

I am reinforced in my position by the fact that the drafters of Bill 164⁷⁴ specifically provided for the fact situation that Arbitrator Baltman was dealing with in Van Devyvere. Under the heading "Responsibility to Seek Employment," section 13 provides that a person "shall make reasonable efforts to return to employment" and that a person's income replacement benefits may be reduced where a person is capable of working part time. Bill 68 includes no such obligation. [emphasis added]

Section 13 of Bill 164 also provides that the insurer notify an applicant that his or her benefits can be reduced. As well, pursuant to subsection 13(2) the applicant is given the opportunity to respond and to show that "... (a) employment would be detrimental to the person's treatment or recovery; or (b) the insured person is participating in a vocational rehabilitation program" and therefore is not obligated to seek employment.

No such specific safeguards for an applicant exist in the interpretation put forward by Arbitrator Baltman in the Van Devyvere case. Neither, in my opinion, can such safeguards be deduced from the legislation. Following the interpretation suggested in Van Devyvere, it would appear that if an applicant is receiving post-156 weeks benefits, the insurer has no obligation to notify the applicant that his or her benefits are going to be reduced. Except for going to arbitration, the applicant has no way to dispute the insurer's position.

In effect, a reduction of benefits is a form of partial termination of the benefits. If the drafters of the legislation had intended that, in certain circumstances, the insurer has the right to partially terminate an applicant's benefits, then I believe the drafters would have clearly enunciated this in the legislation as they did in Bill 164.

Accordingly, I find that Royal cannot reduce Mrs. Clark's benefits pursuant to section 15 where she has not received any income or does not actually have income available to her.

SPECIAL AWARD

Pursuant to section 282(10) of the Insurance Act, an arbitrator has an inherent jurisdiction to grant a special award once she finds that an insurer has acted unreasonably in withholding or delaying payments, whether or not such a claim has been raised in the Application for Appointment or by an Arbitrator, Reply by Insurer, at the pre-hearing conference, or otherwise.

Section 282(10) states:

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 Statutory Accident Benefits 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.[emphasis added]

In this case, it may well be argued that by terminating Mrs. Clark's benefits, Royal might be found to have acted unreasonably. I therefore remain seized on the issue of special award. I am prepared to entertain written submissions on this issue, and the parties should exchange their submissions and forward them to the Commission within 30 days of the issue of this decision. If no submissions are received within 30 days of the issue of this decision, I shall render my decision on the issue of special award.

Expenses:

Pursuant to section 282(11) of the Insurance Act, I exercise my discretion to award Mrs. Clark her expenses incurred in respect of this arbitration.

Order:

Royal is ordered to pay Mrs. Clark weekly income benefits in the amount of $481.23 pursuant to section 12(5)(b) of the Schedule from August 24, 1995.
Royal is ordered to pay Mrs. Clark interest on any amounts owing pursuant to section 27 of the Schedule.
Pursuant to section 15 of the Schedule, Royal is entitled to set off $5,385.99 against any weekly income benefits owing to Mrs. Clark.
Royal is ordered to pay Mrs. Clark her expenses incurred in respect of the arbitration.

January 21, 1997

Joyce Miller Arbitrator

Date

Footnotes

Prior 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.
Exhibit 21, Selection Profile at p. 3
Exhibit 5, Tab 3, Initial Evaluation Report of Accu-Med Vocational Rehabilitation Inc., dated November 26, 1993 at p.6; Exhibit 2, Tab 7, Inpatient Chronic Pain Management Program Recreation Assessment at p. 60
Exhibit 4, Tab 17, DND fitness test, December 17, 1990; Exhibit 2, Tab 8, letter from Dr. G. Kragg dated April 26, 1995; Exhibit 22, OHIP summary
Exhibit 5, Insurer's Medical Brief, Tab 40, Report of Dr. P. Rush dated September 11, 1996, at p. 2
See Exhibit 10 which is a photograph of Mrs. Clark in the halo.
Exhibit 2, Tab 15, letter from Dr. D. Menard to Mr. J. Cardill dated September 5, 1993.
Ibid.
Ibid.
Exhibit 5, Tab 3, Report from Accu-Med to adjuster Mr. Eric Burgar dated November 26, 1993
Exhibit 4, Tab 14, Student Transcript, Prescott-Russell City Board of Education
Exhibit 8, Letter from the adjuster Eric Burgar to Royal dated December 8, 1994
Exhibit 5, Tab 26, Accu-Med Progress Report #12 dated February 23, 1995
Exhibit 5, Tab 25, Accu-Med Progress Report #11 dated January 18, 1995
Exhibit 4, Tab 12, Letter of Employment from Mr. Hopkins, dated April 4, 1995
Ibid. at p. 5 letter from Mr. Hopkins dated April 20, 1995
Exhibit 5, Tab 29, Accu-Med Rehabilitation Report at p. 3
Exhibit 5, Tab 31, Accu-Med OMPP Vocational Rehabilitation Report dated June 5, 1995
Exhibit 2, Tab 16, letter to Mr. Eric Burgar from Dr. D. Menard dated May 10, 1995
Exhibit 2, Tab 19 , clinical notes and records of Dr. Menard on August 17, 1995 at p. 4
Exhibit 5, Tab 38, Accu-Med Vocational Rehabilitation Report at p. 3
Exhibit 12, letter from Accu-Med to Dr. Menard dated August 30, 1995 at p. 2
Ibid.
Exhibit 5, Tab 37, Accu-Med Medical Release for Return to Work dated August 24, 1995.
Exhibit 3, Tab 14, Letter from Dr. Menard to Mr. Gervais dated October 4, 1995
Exhibit 2, Tab 19, clinical notes and records of Dr. Menard at p. 2
Exhibit 5, Tab 22, Accu-Med Progress Report #9 dated November 18, 1994 at p. 2.
Exhibit 5, Tab 23, sign-back letter to Dr. Menard from Accu-Med, dated November 18, 1994 at p. 1
Exhibit 3, Tab 9, Letter from Dr. Kraag dated May 5, 1995 at p. 2
Exhibit 2, Tab 7, Summary of Patient Involvement - Inpatient Chronic Pain Management Program -Report of Dr. M. Gillen dated March 13, 1996 at p. 1
Ibid.
Ibid
Exhibit 2, Tab 20, Report of Dr. M. Gillen dated March 13, 1996.
Exhibit 2, Tab 18, report by Dr. Menard dated April 29, 1996 at p. 2
Exhibit 2, Tab 11, letter to Mr. Cardill dated July 17, 1996
Exhibit 5, Tab 33, Report of the Ontario March of Dimes dated July 18 1995 at p 5
Ibid. at p. 2
Ibid. at p. 2
Exhibit 5, Tab 3, Initial Evaluation Report from Accu-Med to adjuster, Mr. Eric Burgar, dated November 26, 1993
Exhibit 2, Tab 19 at p. 49, attending Physician's Statement of Disability dated August 8, 1994
Exhibit 5, Tab 18, Report of the Canadian Back Institute dated October 7, 1994 at pp.5-6.
Ibid, at p.5
Ibid. at p. 6
Exhibit 5, Tab 35, Report of CBI Functional Capacity Evaluation on August 10, 1995 at pp 6-7
Ibid. at p. 6
Ibid at p. 7
Ibid
Ibid. at p. 7
Exhibit 5, Tab 36 Report of the CBI dated August 14, 1995 at p. 1
Exhibit 5, Tab 35, the CBI Functional Evaluation Capacity Test Report of August 10, 1995 at p. 6. The 1994 CBI report, under the same heading, refers to Mrs. Clark's work trial position as a "... manager in the Public Affairs Department for the National Defence" when, in fact, it was testing her for the duties of a clerk. Exhibit 5, Tab, Report of the Canadian Back Institute dated October 7, at pp. 5-6 [emphasis added]
Independent Medical Examination
Exhibit 5, Tab 40, Report of Dr. Rush dated September 11, 1996 at p. 39
Exhibit 2, Tab 6, Report of Dr. Bouchard dated September 8, 1994 at p. 1
Exhibit 13, Consensus Group: Special Report, "The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability," The Journal of Rheumatology 1996: 23:3
See footnote 52 supra at page 29
Exhibit 6, Curriculum Vitae of Dr. M. Gillen dated March 19, 1996
Exhibit 5, Tab 40, Report of Dr. Rush dated September 11, 1996 at p. 39
Exhibit 5, Insurer's Medical Brief, Tab 40, report of Dr. Rush dated September 11, 1996, at p. 28.
.... she almost went unconscious and felt unsteady but she did not lose consciousness. After the vehicle stopped, the dashboard was on top of her .... Her body was strapped in the front and her head and neck was between the two seats .... She did not hit her head on anything and did not lose consciousness and did not vomit. She felt nauseous and dizzy at the time. She knew that her neck was broken. Exhibit 5, Tab 40 Report of Dr. Rush dated September 11, 1996, at p.2
Exhibit 2, Insured's Medical Brief Vol. II at Tab 19, the clinical notes and records of Dr. Menard show that on October 18, 1993 he had recommended that x-rays be taken of Mrs.Clark's tailbone. Also Exhibit 5, at Tab 3, a report dated November 26, 1993 by Accu-Med to Royal's adjuster, Mr. Eric Burgar, notes that Mrs. Clark complains of tailbone irritation, at p. 7.
Exhibit 9, a picture of Mrs. Clark in a wheelchair dated September 1, 1992.
Exhibit 5, Tab 12, report of Accu-Med dated June 14, 1994 at p. 1
Wigle and Royal Insurance Company of Canada (January 12, 1996), OIC A-012312
Pedden and Dominion of Canada General Insurance Company (December 29, 1995), OIC A-008977.
Ibid. at p. 35
Levenson and The General Accident Assurance Company of Canada (February 18, 1992), OIC A-000260 at p.28
Exhibit 9, Employer's Confirmation of Income form
Boodhai and Allstate Insurance Company (November 21, 1995), OIC A-004002 (supplementary, decision June 14, 1995)
Upper and Canadian General Insurance Company (June 3, 1994), OIC A-002855
Bruno and Liberty Mutual Insurance Company (May 6, 1993), OIC A-002249
Van Devyvere and Axa Insurance Company (June 7, 1996), OIC A-011720
Exhibit 4, Insured's Income Brief, Tab 7 at p. 3
See footnote #71 supra
Statutory Accident Benefits Schedule - Accidents After December 31, 1993 and Before November 1, 1996, Ontario Regulation 776/93, as amended.

Sandra Clark v. Royal Insurance Company of Canada, 1997 ONICDRG 15

Case Summary