Neutral Citation: 1997 ONICDRG 166

OIC A96-000314

ONTARIO INSURANCE COMMISSION

BETWEEN:

KHAM FONG PANASY

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Kham Fong Panasy, was injured in a motor vehicle accident on September 28, 1992. He applied for and received statutory accident benefits from Commercial Union Assurance Company ("Commercial Union"), payable under Ontario Regulation 672.¹ Commercial Union paid weekly income benefits until November 27, 1994, plus various supplementary medical and rehabilitation benefits, including payments for chiropractic treatments, paid in part pursuant to the 'pay now dispute later' provisions of section 6(7) of the Schedule. The parties were unable to resolve their disputes through mediation and Mr. Panasy applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The pre-hearing letter lists the disputes as entitlement to: weekly benefits, chiropractic treatments, and injections for headaches. I was advised at the commencement of the hearing that the Applicant was no longer receiving injections and this matter was no longer in issue.

The issues in this hearing are:

1. Is the Applicant entitled to receive a weekly income benefit for any period between November 27, 1994, and September 28, 1995, on the basis that he has, as a result of the accident, suffered a substantial inability to perform the essential tasks of his occupation or employment?

2. In the event that the Applicant is entitled to receive a weekly income benefit to September 28, 1995, is he entitled to receive an ongoing benefit on the basis that he is continuously prevented form engaging in any occupation or employment for which he is reasonably suited by education, training or experience?

3. Are the chiropractic expenses incurred by Mr. Panasy, a reasonable expense within the meaning of section 6(1) of the Schedule, and if not, is the Insurer entitled to a repayment of the expenses it has paid pursuant to the provisions of section 6(7) of the Schedule?

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

Result:

1. The Applicant is entitled to weekly income benefits from November 27, 1994 onward, together with interest thereon in accordance with section 24(4) of the Schedule.

2. The Applicant is entitled to his expenses.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on November 12, 13 and 14, 1996.

Present at the Hearing:

Applicant:

Kham Fong Panasy

Mr. Panasy's

Ralf R. Jarchow

Representative:

Barrister and Solicitor

Commercial Union's

Brian Atherton

Representative:

Barrister and Solicitor

Arbitrator:

Stewart M. McMahon

The proceedings were recorded by Rosenberger and Weir

Witnesses:

Ms. Carole Cameron

Mr. Kham Fong Panasy

Mr. Kham Phay Vanh Mengbohpha

Mr. Lennox Lewis

Mr. Robert Hryniak

Dr. Geza Molnar

Ms. Angelica Relic

Exhibits:

Exhibit 1

Production Brief prepared by the Insurer's Counsel

Exhibit 2

Medical Brief prepared by the Applicant's counsel

Preliminary Issue:

On November 15, 1996, being the day after the hearing ended, Mr. Atherton, the Insurer's counsel, wrote to Mr. Jarchow, the Applicant's counsel, seeking his consent to the filing of an additional piece of evidence. Mr. Jarchow did not consent to the introduction of new evidence, prompting Mr. Atherton to apply to have the hearing reopened. After the filing of written submissions and telephone conference calls, the proposed evidence, being a letter from the Applicant's previous counsel, was, on the agreement of both parties, submitted to me for my review, in the context of my deliberations on Mr. Atherton's request to reopen the hearing. For reasons that I shall set out at the end of this decision I have concluded that it would not be appropriate to reopen the hearing and the letter of Mr. Peter Verbeek dated November 4, 1994 does not form a part of the record of these proceedings.²

Evidence and Findings:

Background

Mr. Panasy was born in Laos in 1969. In 1984 he fled Laos and entered a refugee camp in Thailand where he remained until 1991, when he entered Canada as a Convention Refugee. Prior to leaving Laos, Mr. Panasy was studying mathematics with a view to becoming a math teacher. Upon his arrival in Canada, Mr. Panasy began studying English as a second language. Ms. Carole Cameron, a settlement counsellor with Immigration Canada, assisted Mr. Panasy with such things as accommodation, schooling and finding work. Ms. Cameron testified that Mr. Panasy was a model immigrant who strived hard at his studies and demonstrated a keen interest at succeeding in his new home. This evidence regarding Mr. Panasy's demeanor and attitude is consistent with the viva voce evidence of two of his past employers. I accept this evidence.

In early 1992, while still studying English, he started working at All Can Recycling six weeks where he packed, sorted and moved beer bottles and cardboard boxes. He was laid off after six weeks due to lack of work.

In July 1992 he began to work part-time at Sears, in the shipping and receiving department. The evidence concerning this job was uncontroverted. Mr. Panasy's job entailed unloading merchandise from trucks and transporting it throughout the store. He was also responsible for assisting customers with the loading of larger and heavier purchases into their vehicles. The weights involved would range from boxes of clothing weighing approximately 25 lbs. to large pieces of furniture and appliances. Mr. Panasy had dollies and other assistive devises at his disposal for the movement of the larger items. There was some variation in the evidence concerning the number of hours worked. I accept the evidence of Mr. Panasy that he averaged four to five hours per shift, and four to five shifts per week.

In mid-September, while still studying English and working at Sears, Mr. Panasy secured a job at Greenfield Plastics. There were three sources of evidence concerning the nature of this job: the viva voce evidence of the Applicant; a report by Jenni Gordon of Crawford and Company dated October 29, 1993, which included a job description (as signed Mr. Panasy), and a 'sign back letter' from Jenni Gordon to Mr. John Hughes, a plant manager at Greenfield; and the viva voce evidence of Mr. Robert Hryniak, the president of Greenfield. The Applicant's and Mr. Hryniak's evidence were largely consistent, but there were a number of significant differences between their evidence and the job description attributed to Mr. Hughes. For the following reasons I prefer the evidence of Messrs. Panasy and Hryniak. First, their evidence was subject to cross-examination and was largely unshaken. Two, Mr. Hryniak, as the president of the company, impressed me as having an expansive and detailed knowledge of the workings of the plant and the duties of his employees. Three, Mr. Hughes was responsible for the day shift whereas Mr. Panasy was assigned to the night shift.

I attach little weight to the fact that Mr. Panasy signed the report prepared by Jenni Gordon. It is a lengthy report prepared at a time when Mr. Panasy was still studying English as a second language.

Based upon Messrs. Panasy's and Herniak's evidence, I find that Mr. Panasy started training for his position approximately a week before the automobile accident. He was to be employed as a machine operator and packer. The plant produced plastic tote boxes by means of a plastic injection mould machine. The machine operated on a 35 to 40 second cycle. The operator would reach into the machine to extract the tote box and then hit a button to re-start the cycle. He would then visually inspect the box for flaws, label it and place it in a cardboard box. When the cardboard box was full it would be carried a short distance and placed on a skid. A full cardboard box would weigh approximately 45 to 50 lbs. In addition, once every couple of hours, the operator would have to replenish the pigment unit. This involved being lifted in a cage to the top of the machine approximately 11 to 12 feet above the ground, and then removing a pigment pot weighing about 20 lbs, cleaning it and refilling it from a 25-pound pail of pigment.

Despite Mr. Hryniak's emphasizing some of the more intricate aspects of the operation, I find that it was a largely unskilled job with only medium physical demands. However, like many factory jobs, it was fast-paced and demanded endurance throughout a 12-hour shift, during which there would be considerable pressure to keep up with the pace of the machine. The night shift was expected to produce approximately 1000 units per machine, per shift.

The Accident

On the evening of September 28, 1992, Mr. Panasy was on his way to his first regularly scheduled shift at Greenfield, when he was struck by a car which mounted the sidewalk he was walking along. Mr. Panasy was knocked to the ground and struck his head on the pavement. He was driven to work by the police, but his employer sent him home. He attended at a local hospital the next morning with various physical aches and pains, and most importantly, a severe headache. Mr. Panasy had in fact sustained a significant head injury. The consultation report of Dr. Best, the attending neurologist states that x-rays "revealed a large fracture involving the left and right parietal bones." A CT scan revealed a small haematoma in the left temporal lobe. Mr. Atherton conceded that Mr. Panasy sustained a head injury but disputed the extent of any lasting sequelae. In that regard, Mr. Atherton noted that within a few months the haematoma had been absorbed by the surrounding brain tissue, and that there was no longer any neurological basis upon which to explain Mr. Panasy's ongoing complaints.

Present Complaints

At present Mr. Panasy's principal complaint is of severe headaches which occur two or three times per week, and are often accompanied by nausea and dizziness. He also suffers regularly from a sore stomach. These complaints interfere with his sleep and he testified that he is irritable, shuns contact with others and has no energy. In addition, he complains of an intolerance of any loud noise.

Ms. Cameron, Mr. Panasy's settlement counsellor, testified that prior to the accident he was a vital and energetic individual, but that since the accident he has become a "shell of the person he was." She testified that he appears to have lost his drive and ambition, and that he seems to have trouble concentrating on conversations and has no physical energy.

Mr. Kham Phay Vanh Mengbohpha, a friend and fellow churchgoer, testified that since the accident, Mr. Panasy has become antisocial, and that when he can be persuaded to come out with friends, he complains of headaches and indicates that he wants to be left alone.

Mr. Lennox Lewis, the manager at the Sears store, testified that when he saw Mr. Panasy a month or so before the hearing, he did not appear to be as strong or well-built, and that his speech was a little slower.

Many of the medical experts who have examined the Applicant, including those retained by the Insurer, have commented on the fact that Mr. Panasy co-operated during the course of their exams, appeared to put forth good effort during testing and made no attempt to exaggerate his symptoms. On the whole, the medical experts found him to be credible and accepted the veracity of his complaints, despite the fact that many of the complaints, and in particular the headaches, dizziness and stomach aches, could not be explained on physical examination. Dr. Ameis' report, which I refer to in more detail later, is particularly noteworthy in this regard. I accept the veracity of Mr. Panasy's evidence concerning his present complaints and in particular accept that at least a couple of times per week Mr. Panasy suffers from severe headaches which cause him to retreat to his room to lie down in the dark.

Despite the fact that Mr. Panasy put forth good effort when tested by medical practitioners, he has shown signs of illness behaviour that appears to be limiting his usual activities. A striking example was his refusal to carry a Christmas tree into Mrs Cameron's house despite the fact that testing done around the same time clearly demonstrated that he was capable of carrying heavier weights.

Medical Investigation and Treatment

Family Doctor

Mr. Panasy's family physician, Dr. Molnar has followed him regularly since the accident, and has referred him to a number of specialists and treatment centres. Dr. Molnar testified that Mr. Panasy's complaints of headaches have been consistent both in terms of location and quality. In an August 1995 report, Dr. Molnar indicated that because Mr. Panasy suffered from severe headaches at least twice a week, he was not fit to return to gainful employment. This opinion was reiterated during Dr. Molnar's viva voce evidence. During his testimony Dr. Molnar also indicated that dizziness contributed to Mr. Panasy's disability.

In contrast I note that in August of 1994, Dr. Molnar reported to the Insurer that Mr. Panasy was ready to try returning to work as a "Packer" (presumably the factory job) and that thereafter he might be ready to return to work full time. No explanation for the change in his opinion was provided.

Neurological

Mr. Panasy was seen on a number of occasions throughout 1992 and 1993, by Dr. Best, the neurologist who first treated him at the time of accident. As noted earlier, by the spring of 1993, the haematoma had been re-absorbed and Dr. Best could not find any neurological explanation for the persistence of the headaches.

Dr. Best referred Mr. Panasy to Dr. Chow, an Ears Nose and Throat specialist, for investigation of his ongoing dizziness. Dr. Chow's initial diagnosis was dizziness and tinnitus(now resolved) due to trauma to the head. Testing in May 1993 revealed a slight disturbance in the inner ear that could have caused the dizziness, but there was no evidence that this was ever followed up.

Dr. Moddel conducted an examination on behalf of the Insurer in February 1994. He concluded that the ongoing headaches and dizziness were not due to any neurological cause. He recorded Mr. Panasy's subjective complaints of dizziness, but concluded that it was not a true vertigo.

Neuro-psychological

Dr. McCarthy-Fieldgate conducted neuro-psychological testing in October 1993. She found evidence of mild residual cerebral dysfunction, but noted that linguistic and cultural factors made it difficult to be definitive. Dr. McCarthy-Fieldgate speculated that the headaches had a psychological component, but believed that they also had a neurological origin. She expressed concern about Mr. Panasy working around dangerous machinery, and indicated that she would expect that he would have problems with any job that required attention and concentration or learning new tasks. However, I note that by the time of the hearing Mr. Panasy had successfully completed grade 12 English, and a computing course. While Mr. Panasy complained that he would like to have done better, I am satisfied that any cognitive deficit is not sufficiently severe as to prevent Mr. Panasy returning to active employment.

Dr. McCartney-Fieldgate noted during the course of her interview with Mr. Panasy, he was unconsciously rubbing his stomach, flexing his neck and that he appeared to be in some discomfort, but that he did not complain about his condition unless specifically asked. She noted a good effort throughout the testing. Others have also noted that Mr. Panasy did not voice his complaints unless asked. My reading of the reports suggests to me that the authors saw this as a sign of stoicism or resignation rather than an attempt to manufacture complaints when prompted.

Dr. McCartney-Fieldgate concluded that it was too early for Mr. Panasy to return to work. Unfortunately it does not appear that any follow-up testing has been undertaken, despite the fact that this report was three years old by the time of the hearing.

Orthopaedic and Physiatry

Dr. Urovitz, a orthopaedic surgeon, conducted a physical exam on behalf of the Insurer in September 1993. He found no basis for explaining the Applicant's complaints on an orthopaedic exam.

Dr. Amies, a physiatrist, conducted an exam on behalf of the Insurer, a year later in October 1994. Like Dr. Urovitz, his physical exam was unremarkable. It is notable that he could not find any objective evidence of a balance problem and concluded that the dizziness being experienced by the Applicant was benign and did not pose a danger to him. In this regard I note that in 1996, Mr. Panasy underwent an extensive work assessment that included working around large machinery. There was no suggestion in the report of the assessment that balance posed any problem for Mr. Panasy. I am satisfied that while Mr. Panasy may suffer form subjective feelings of dizziness, that it does not pose a risk to him and is not a barrier to his return to work.

Dr. Ameis concluded that from a physical standpoint he was fit to return to work. Significantly, Dr. Ameis then went on to make three further notations. One, that he found Mr. Panasy to be a motivated individual who was not prone to unreasonable complaints, and that his present complaints merited continued investigation. Two, that given his history of headaches he might find it difficult to return to a factory setting or to time and performance type of work. I note that his work at Greenfield, which the Insurer's counsel acknowledged was the employment I should consider with relation to the section 12(1) application, was both in a factory setting and had a significant time and performance component.

On the other hand Dr. Ameis suggested that the stability afforded by a regular job might assist with the headaches.

Headache Clinics

Mr. Panasy was referred to Dr. Millar at the Whiplash and Headache Clinic in February 1994. His headaches were treated primarily with psychotherapy. Dr. Millar believed that his sessions were of some help and noted that by the spring, Mr. Panasy was more physically active. At that time Dr. Millar suggested a functional restoration program.

In October 1995, Mr. Panasy was referred to Mark Greenspoon at the Headache and Neck Pain Medical Centre where he received a number of nerve block injections for approximately six weeks. Mr. Panasy testified that they helped for a short while because of a generalized numbing effect, but that there was no lasting benefit.

More recently, Mr. Panasy has been receiving regular chiropractic treatments approximately three time per week. He testified that he feels light and pain-free when he leaves the chiropractor's office, but that the pain soon returns.

Rehabilitation Programs and Functional Abilities Evaluations (FAEs):

In May 1994, Mr. Panasy was referred to the Canadian Back Institute (CBI), for a Rehabilitation Assessment. In contrast to Drs. Urovitz and Ameis, the CBI staff noted a number of mild physical deficits and general deconditioning. Mr. Panasy was enrolled in the "Comprehensive Rehabilitation Program." Within a couple of months his flexibility was back to normal and he was started on a conditioning program. In July 1994, the staff concluded that he had the physical capacity to return to the factory job, but he was re-enrolled in the program to build up his strength for the more physically demanding job at the Sears loading dock. In August the staff reported that he had the strength to return to the job at Sears, but that this job was not a viable option because of his relatively light weight, which put him at risk of physical injury.

In June 1994, in the midst of the CBI program, a FAE was conducted by Columbia Health Care. The staff reported that although he had the physical ability to complete the isolated tasks required at the factory, his performance was effected by; limited endurance and a reduced tolerance for work activity. The report notes that he did not complain on an unsolicited basis, but when questioned, he complained of severe headaches.

In the fall of 1994, the Insurer retained Angelica Relic of Crawford and Company to assist Mr. Panasy with a job search. Ms. Relic's directive from the Insurer, was to assist with a return to employment as a general machine operator. Ms. Relic testified that during her conversation with Mr. Panasy, he indicated he had no interest in returning to a factory setting and that he wanted to be retained for a job working with computers. Mr. Panasy was recalled to give reply evidence, during which he denied that this conversation took place. It was clear to me that Mr. Panasy and Ms. Relic did not "hit it off" and that the lines of communication were less than ideal. For example, Mr. Panasy felt that Ms. Relic was pressuring him to lie to prospective employers about his physical complaints.

Notwithstanding Mr. Panasy's evidence, I accept Ms. Relic's testimony that the Applicant indicated he did not intend to return to a factory, but wanted to work in the computer field. Her evidence is consistent with the fact that rather than proceeding with any form of job search, she closed her file. It is also consistent with Mr. Panasy's enrollment in a computer course, and his earlier goal of becoming a math teacher. As Dr. Ameis noted, circumstances forced Mr. Panasy to work in a manual job while he upgraded his skills. Factory work was by no means his preferred vocation.

The Insurer terminated benefits at this point. The mere fact that Mr. Panasy indicated he was not interested in returning to factory work does not automatically disentitle him to weekly benefits, but in light of his family doctors releasing him to a work trial, together with the CBI release to the factory job, and the FAE's conclusion, it brings into question whether Mr. Panasy is incapable of returning to a factory, or has simply chosen not to return.

After being cut off by the Insurer, Mr. Panasy applied for and received social assistance. In February 1996, the Region of Peel Social Services referred Mr. Panasy to the Peel Assessment Centre for a work assessment. The report of Peel Career Assessment Services Inc. dated February 16, 1996 was filed, and Mr. Panasy testified about the experience. The report and Mr. Panasy's evidence about the assessment are one of the most significant pieces of evidence, and bear careful scrutiny.

Mr. Panasy testified that the Centre is in a large factory-like building with various machines and work stations set-up throughout. Mr. Panasy stated that it was a very noisy environment. The initial program lasted for six weeks and had two components. One was a work-hardening component, the other was an assessment of Mr. Panasy's aptitudes and capabilities. Mr. Panasy's ability to participate in various types of semi-skilled work was evaluated by means of having him undertake the activity and then comparing his performance to entry level norms. The report notes in a couple of places, that Mr. Panasy appeared to make a genuine attempt to complete the tasks to the best of his ability. The results were mixed. Not surprisingly, in a test on a plastic injection machine Mr. Panasy did extremely well. On tests working with hand tools and assembly work he was average and below the competitive rate, respectively. I note that he did well on a test dealing with money changing and cashier's duties.

While these tests demonstrate that Mr. Panasy has the aptitude and ability to engage in a number of occupations, in my view the most significant evidence concerns his ability to participate on a sustained basis. Mr. Panasy testified that he went home sick each night, but that he continued with the program because he had been told that his welfare benefits would be terminated if he did not participate. Despite this fact, out of 30 working days, Mr. Panasy missed five full days and seven half days. Three of the half days were for medical appointments, the balance according to Mr. Panasy were due to headaches and nausea. The report also notes that he was late on a few occasions because he woke up with headaches and dizziness. The report suggests that on the days that Mr. Panasy participated, he put forth a good effort and developed strategies to cope with his physical complaints. I accept his evidence that on these occasions he persevered despite his symptoms, but that on other days, principally because of the severity of his headaches, he simply could not manage. In my view this is the best evidence that Mr. Panasy is not capable of engaging in the essential tasks of his prior employment. While he may be capable of completing the necessary tasks, on an isolated basis, his experience suggests that despite a real incentive to participate fully (the fear of losing his welfare benefit) and undertaking various strategies to cope with his symptoms, he was not able to participate on a regular basis. The number of absences indicates to me that at the time of the assessment in February 1996, he was not ready for full-time remunerative work. In my view this holds true not just for the type of jobs he was engaged in at the time of the accident, but also for any other work he would be suited for. His symptoms did not change significantly in the interval before the hearing, and I find that he was continuously prevented from engaging in any occupation or employment for which he is reasonably suited by education training or experience, and as such is entitled to ongoing weekly income benefits.

Having said that, I do believe that he is fit to start some form of part-time work, and that he ought to do so. On a number of occasions, Mr. Panasy expressed an interest in getting on with his life and being more active. He testified that participating in the computer course made him feel better in his heart. He told the staff at the Peel Assessment Centre that he was pleased to be participating in a rehabilitation program, because he wanted to develop a daily routine, and that he felt quite isolated staying at home. In addition, his ability after the accident to continue with his English studies and the computer course, and his participation at the Peel Centre, satisfy me that he is capable of some form of regular but limited work.

The goal of any rehabilitation program is to restore the individual to the fullest extent possible, to his pre-accident capabilities, including employment. In some cases, work itself has a therapeutic value, in that it provides a sense of stability, purpose and achievement. Dr. Ameis stated that he hoped a return to work would help with Mr. Panasy's headaches.

Despite Mr. Panasy's stated desire to return to work, his attempts have been less than concerted. At the end of the six week assessment program at the Peel Centre, he was invited to attend for a further six week program. He declined the invitation, stating that he wished to look for work on his own. In 1995, his previous solicitor contacted the Insurer to ask for assistance with a job search. Ms. Relic who had previously been retained to assist the Applicant to find a factory job, was again retained and she met with the Applicant, and assisted him with the preparation of a resume. However, I note that in her report of February 7, 1995, she stated that when she met with Panasy, he told her that he was still unable to return to work. She again closed her file reporting to the Insurer that in her opinion she was not able to offer any assistance to the Applicant at that time.

Mr. Panasy's difficulties with getting down to the task of locating and undertaking some form of employment is likely related to the chronic nature of his headaches and he may need counselling in that regard. However, Mr. Panasy's entitlement to a weekly benefit is contingent upon his participation in appropriate rehabilitation programs, and it is essential that he co-operates with the Insurer in locating and attempting suitable part-time work. In that regard I note that even part-time work in a factory setting is not likely to be fruitful because of the noise and time pressures. Without defining the type of work that Mr. Panasy and the Insurer need consider, I note the Peel Centre report suggests that Mr. Panasy had the skills necessary to engage in jobs involving cashier-type work. I also note that while at the Peel Centre, he completed a vocational interest inventory which identified a number of other jobs that may bear consideration.

Chiropractic Expenses:

Mr. Panasy testified that at the time of the hearing he was receiving chiropractic treatments two to three times per week. As noted earlier, he stated that they made him feel light and pain free, but that the feeling wore off and the headaches returned.

The Applicant relied upon a letter from his family doctor stating that the treatment was reasonable. His counsel argued that the treatment gave him relief where nothing else had and that accordingly it was reasonable.

The Insurer relied upon references in two rehabilitation reports that indicated no further treatment was necessary. I note that these reports were not directly addressing pain relief. Mr. Atherton suggested that the exorbitant cost associated with regular chiropractic treatments could not be justified because if offered only temporary relief and there was no prospect of a cure. Based on his argument, Mr. Atherton was seeking a repayment of the chiropractic expenses paid pursuant to the "pay now dispute later" provision of section 6 (7) of the Schedule.

Both arguments have merit. The Applicant is entitled to a program that affords him some relief from his complaints, but not at any cost. Unfortunately, on the limited information I was given, I am not able to weigh the benefit against the cost so as to determine if the program is reasonable. Amongst other things I need to know with precision when the program started, what the projection is for the future course of the program, how often Mr. Panasy has attended, and at what cost, and when the Insurer advised that it was paying the expenses under protest. I will remained seized of this issue, and the parties may speak to the Registrar's office to arrange a half day.

Request to Reopen the Proceeding:

As noted at the start of these reasons, on the day following the conclusion of the hearing, Mr. Atherton sought to introduce a new piece of evidence, namely a letter written by the Applicant's former counsel to the Insurer. In general terms the letter dealt with Mr. Panasy's desire to pursue a career in computers and his desire to enroll in a computer course. Mr. Panasy's then counsel was seeking a commitment from the Insurer to pay for the course.

Mr. Atherton candidly admitted that the letter was in his file and that he had reviewed it prior to the hearing. During argument he stated that he had not expected to hear evidence contrary to the letter and had therefore not planned in advance to enter the letter as an exhibit. He indicated that he had not thought to use the letter to cross-examine the Applicant during the course of the hearing. He also stated that at the conclusion of the hearing he had a sense that there was something about the Applicant's case that did not seem right, but that he was not able to pinpoint it until the next day, when he re-read Mr. Verbeek's letter.

In written argument and during the course of conferences calls, counsel provided me with a number of OIC and court cases dealing with the discretion of a trier of fact to reopen proceedings.

In all but one of the court cases, the judge had released reasons, but had not yet signed judgement. Mr. Justice Gravely set out the modern principals governing a judge's discretion to reopen proceedings, in Qit Fer et Titane Inc. v. Upper Lakes Ltd. And Hopkins Steel Works. Ltd. (1991), 3 O.R. (3d) 166 aff'd. on this point (1994), 21 C.L.R. (2d) 122 (Ont C.A.). The principals are as follows

1. Until judgment has been entered, a trial judge has a discretion to reopen the trial and hear fresh evidence.

2. In exercising such discretion the judge should be guided by the twofold test: that the evidence would probably have changed the result at trial and it could not have been discovered by reasonable diligence.

3. Where justice demands it and particularly where fraud is involved or the court may have deliberately misled, a judge is justified in departing from the diligence requirement in order to prevent a miscarriage of justice.

4. The power should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof.

5. Once a litigant has obtained a judgment, he is entitled not to be deprived of it without very solid grounds.

One of the key areas of debate in the recent cases has been the need for counsel to show that the proposed evidence could not have been produced with due diligence. There is obviously a need for finality to any process, and justice demands that at some point the parties can reasonably expect that the matter is in the hands of the trier of fact. This point was central to the reasoning of Arbitrator Manji when she stated in Tran v. Pilot (February 23, 1994), OIC A-005207 that "if the evidence was available to or within the control of the party before the case is closed, it should not be admitted."

For my part, I believe that finality is extremely important, but that it would be unjust if a trier of fact who had not yet released reasons was deprived of a key piece of evidence that would be pivotal to a correct finding, because of the failings of counsel. It was for this reason that I advised the parties that despite the fact the due diligence test could not be met, I would not automatically decline to reopen the proceeding. In my view where a trier of fact has not yet released his or her reasons it is incumbent upon him or her to balance all of the criteria mentioned in the Qit Fer Titane Inc. case.

In the circumstances of this case, balancing the fact that the evidence could easily have been produced at the hearing, against its probative weight, I have concluded that it would be inappropriate to reopen the proceedings. In reaching this conclusion I took account of the fact that Mr. Atherton was not totally taken aback by Mr. Panasy's denial that he had told Ms. Relic he did not want to return to a factory, and that instead he wanted to pursue a career in computers. Mr. Atherton cross-examined Mr. Panasy on the point and called Ms. Relic to confirm the conversation. More importantly, I note that the evidence would not likely change the decision, inasmuch as I accepted that Mr. Panasy had no desire to return to a factory setting.

Order:

1. The Applicant is entitled to weekly income benefits from November 28, 1994 and ongoing, together with interest on all outstanding amounts in accordance with section 24(4) of the Schedule.

2. Mr. Panasy is entitled to his expenses incurred in respect of the arbitration.

September 5, 1997

Stewart McMahon

Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2In the event that any Appeal includes a review of my decision not to reopen the hearing, Mr. Verbeek's letter will of necessity be included in the record for that discreet purpose.