Neutral Citation: 1997 ONICDRG 71

OIC A95-000689

ONTARIO INSURANCE COMMISSION

BETWEEN:

VALI NAVID

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Vali Navid, was injured in a motor vehicle accident on September 14, 1994. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule¹ Allstate terminated Mr. Navid's weekly income replacement benefits on September 19, 1995. The Applicant claims entitlement to these benefits ongoing from the date of termination. He also claims rehabilitation expenses for an orthopaedic mattress. The parties were unable to resolve their disputes through mediation and Mr. Navid applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, (the Act"), as amended.

The issues in this hearing are:

1. Is Mr. Navid entitled to weekly income replacement benefits after September 19, 1995, under section 7 of the Schedule?

2. Is Mr. Navid entitled to an orthopaedic mattress under section 36 of the Schedule?

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

Result:

1. Mr. Navid is not entitled to further weekly income replacement benefits.

2. Mr. Navid is not entitled to an orthopaedic mattress.

3. Mr. Navid is not entitled to expense he incurred in respect of this arbitration.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on April 9, 10, 11 and May 10, 1996, before me, Asfaw Seife, Arbitrator.

Present at the Hearing:

Applicant:

Vali Navid

Mr. Navid's

Michael S. Brown

Representative:

Barrister and Solicitor

Allstate's

Ian D. Kirby

Representative:

Barrister and Solicitor

Allstate's

Philip Langford

Officer:

Claims Manager

Exhibits:

Listed in Appendix A to this decision.

Applicant:

Listed in Appendix A to this decision.

Evidence and Findings:

Background

Mr. Navid is a chef by training and experience. At the time of the accident of September 14, 1994, he was employed as a pastry chef at La Rea Bakery ("La Rea"); and as a chef at Marconi's Steak and Pasta House ("Marconi's"). He had been working at both restaurants since March 1994. At the time of the accident, Mr. Navid was 36 years old and married. He and his wife were living in an apartment; however, within two weeks of the accident, they moved in to a new house. They have no children.

The accident in question occurred while Mr. Navid was on his way to his job at Marconi's. He was driving on Highway 400, at approximately 40 kilometres per hour when his car was rear-ended. Mr. Navid was the sole occupant of his automobile. As a result of the collision, the rear side of Mr. Navid's vehicle was pushed to the rail guard where it came to a rest. Mr. Navid testified that at the time of impact, his body moved forward and his forehead hit the steering wheel of the car. He felt pain in his back immediately after the impact, as he was getting out of his car. Mr. Navid was taken to Etobicoke General Hospital by ambulance.

At the hospital, he complained of pain in his neck and his entire back. X-rays of his spine were taken. Mr. Navid testified that the doctor told him that his back muscles were swollen. He was given a prescription for pain killer medication. He was released with the advice that he see his family doctor as soon as possible.

Mr. Navid saw his family doctor, Dr. Elliot Strashin, two days after the accident. Dr. Strashin had been Mr. Navid's family doctor since 1986. Mr. Navid complained of continuing neck pain, lower and upper back pain, radiating to his hips. Dr. Strashin diagnosed him with "myofascial strain (whiplash) involving the neck and mid-back." Dr. Strashin noted that Mr. Navid had previous neck injuries from a work accident in 1990 and had been off work for a period of time; however, he had returned to work in April 1991, his injuries having resolved completely. Dr. Strashin recommended physiotherapy treatment, and estimated the duration of Mr. Navid's disability to be six months.

In October 1994, Allstate retained Rehabilitation Services of Canada ("R.S.C.") to manage and co-ordinate Mr. Navid's rehabilitation and return to work. In the months that followed, in addition to being treated with pain medication by his family doctor, Mr. Navid has been seen by several medical practitioners and health care professionals.

Mr. Navid received physiotherapy treatment, chiropractic and other forms of rehabilitation therapy at various facilities, including Melrose Physiofitness Clinic ("Melrose Clinic"), Target Rehabilitation Centre ("Target Rehab"), Sheppard-Leslie Chiropractic Clinic, and Sports Medicine and Rehabilitation Centre ("S.M.R.C.").

In March 1995, Mr. Navid underwent various assessments at the Working Condition Program at the Regional Evaluation Centre of the Orthopaedic and Arthritic Hospital ("Orthopaedic and Arthritic Hospital"). These assessments included a Functional Abilities Evaluation, Physiotherapy Assessment, and Occupational Therapy Assessment. At the request of Allstate,

Mr. Navid was assessed by Dr. Patcai, a physiatrist at Multi-Disciplinary Assessment Centre. Mr. Navid also underwent a work hardening assessment and a functional abilities evaluation at Workable.

In September 1995, at the request of Allstate, Mr. Navid underwent a disability assessment at a Designated Assessment Centre ("DAC"). Dr. Joseph Kwok, an orthopaedic surgeon, conducted the assessment.

Since filing his application for accident benefits, Mr. Navid has been the subject of covert investigation by private investigators retained by Allstate.

On September 19, 1995, Allstate terminated Mr. Navid's benefits on grounds that medical evidence and investigation reports showed that he was no longer disabled from his pre-accident duties.

Mr. Navid testified that since the accident, he has made several unsuccessful attempts to return to full-time employment. As of March 14, 1996, Mr. Navid stated that he has been employed as a cook, working 30 to 35 hours per week. He claims that despite all the treatments he has received, he has not been able to attain his pre-accident level of employment of 75 to 80 hours per week. At present, he is able to work a maximum of 35 hours per week. He claims that he continues to suffer from low back pain, neck pain, and pain in the shoulder blades; however, currently, the main cause for his disability is his low back pain.

The medical reports, clinical notes and records of the health care practitioners who have treated or assessed Mr. Navid were filed in evidence. Other documents filed in evidence include the monthly Progress Reports of R.S.C. from November 16, 1994, to October 25, 1995; investigation reports and surveillance videotapes, and accident benefit forms completed by Mr. Navid, his employers, health practitioners and the insurance company.

In addition, Dr. Strashin, Dr. Kwok, Dr. Marciniak, owner and director of S.M.R.C., Dr. Patcai, and Dr. James McIntyre, radiologist, testified at the hearing.

I also heard testimony from five private investigators from Stuart-Andrew International Inc., who conducted investigations of Mr. Navid's post-accident activities.

Lay witnesses who gave testimony at the hearing were Mrs. Edwine Navid, Mr. Navid's wife; Ms. Louise Lamonte, a hotel manager/consultant; Mr. David Ribeiro, Mr. Navid's friend and owner of a restaurant where Mr. Navid worked after the accident; and Mr. Philip Langford, Claims Manager at Allstate.

Entitlement to Weekly Income Replacement Benefits:

In order to be entitled to further weekly income replacement benefits Mr. Navid must prove, on a balance of probabilities, that because of an impairment he sustained as a result of the accident, he suffered a substantial inability to perform the essential tasks of his pre-accident occupation or employment. The Schedule defines impairment as a loss or abnormality of psychological, physiological or anatomical structure or function. It has been stated in numerous arbitration decisions that substantial inability means not some disability, and not total disability, but a significant inability which prevents an applicant from carrying out essential tasks to a significant extent.

Essential Tasks

Mr. Navid's duties as a pastry chef at La Rea included making cakes, pastries, and cookies. He was responsible for organizing the work, putting away supplies and cleaning up the work area. The job did not require any sitting; however, it required prolonged standing, a lot of bending, walking, and overhead reaching. It involved some pushing and pulling. Mr. Navid testified that his hours at La Rea were from "7:00 or 8:00 a.m. to 4:00 p.m., eight to nine hours a day, six days a week."

Mr. Navid's second job as a cook at Marconi's involved organizing the menu and preparing and cooking food. He organized the supplies in the cooler, freezer and shelves and cleaned up the work area. Like his job at La Rea, the job at Marconi's was done mostly standing. A lot of walking and bending is involved. Mr. Navid testified his hours at Marconi's were from "5:00 p.m or 6:00 p.m until 1:00 a.m, seven to eight hours a day, five days a week."

On the basis of Mr. Navid's testimony and Functional Abilities Evaluations conducted by the Orthopaedic and Arthritic Hospital and by Workable Centres Inc ("Workable") in March 1995 and October 1995, respectively, I find that the physical demands of a pastry chef and cook are similar: both require constant standing, constant forward reaching, occasional walking, occasional overhead reaching, and occasional crouching. They also require light to medium lifting and carrying (4.5 to 23 kilograms) on a frequent basis and frequent bending and stooping. Sitting is not required.

The Employer's Confirmation of Income forms filed with Mr. Navid's application for benefits confirm that Mr. Navid had been employed at Marconi's since December 1993 and at La Rea since March 1994, on a full-time basis at both places. I have heard no evidence contradicting this. Accordingly, I find that at the time of the accident, Mr. Navid was working from 75-80 hours per week.

Medical Evidence

Mr. Navid's pre-accident medical history is not contentious. In 1990, while working at the Holiday Inn, he fell and injured his neck. He was off work for six months after that injury. The evidence is that when he returned to work, his neck problem had resolved completely. The medical evidence also indicates that Mr. Navid suffers from a degenerative disc disease in the cervical spine which pre-existed the accident. There is no evidence that Mr. Navid's pre-accident conditions adversely affected his functional abilities.

The medical professionals and health care providers who have treated or assessed Mr. Navid agree that, as a result of the accident, he sustained soft tissue injuries to his neck and back, as well as a minor fracture of the body of the T-12 of the thoracic spine, with mild compression of the spinal cord. Initially, x-rays of Mr. Navid's spine taken at Etobicoke General Hospital confirmed a degenerative disc disease at C5-6, and showed a minor wedging of the body of T-12. The radiologist thought this was an old mild compression fracture and did not represent a significant abnormality. The conclusion that the fracture was caused by the accident was not confirmed until March 1996, when follow-up x-rays and MRI examinations were performed.

The consensus of medical opinion is that the fracture injury would have healed long before the termination of Mr. Navid's benefits, and that it had in fact healed by March 1996, when the MRI was performed.

The evidence is clear that all of Mr. Navid's treating physicians have recommended that he return to part-time employment as early as four months after the accident. In January 1995. Mr. Navid's own physiotherapist at Melrose Clinic felt that he was ready for work, gradually increasing his hours from four hours, three times a week, to full time. In March 1995, after assessing Mr. Navid's functional abilities, the Occupational Therapist and Physical Therapist at Orthopaedic and Arthritic Hospital recommended that Mr. Navid should be able to perform his pre-accident duties for eight hours per day, 40 hours per week. They suggested that these hours should be gradually increased until Mr. Navid is capable of resuming to his pre-accident level.

In May 1995, Dr. Starshin felt that Mr. Navid's "neck and shoulders have improved remarkably although the lower back and his hips seemed to be still bothering him." Dr. Strashin released him to work on a part-time basis (35-40 hours per week), and encouraged him to gradually build up to his pre-accident level of up to 80 hours per week. Dr. Strashin's recommendations were consistent with those of Dr. R.K. Chow, physical medicine and rehabilitation consultant at Target Rehab, who also felt, in May 1995 that "over the next month or two Mr. Navid should have been able to return to his maximum pre-morbid level." In April and May, Mr. Navid was working at least 25 hours a week, by his own admission.

Physicians who assessed Mr. Navid at Allstate's request felt that he was capable of returning to his pre-accident full-time employment as early as March 1995. Dr. John Patcai, the physiatrist who examined Mr. Navid on March 3, 1995, found that Mr. Navid had some limitation of movement in his neck and back, with some discomfort. However, he felt that he had the ability to perform the essential tasks of his occupation. Dr. Patcai recommended that Mr. Navid should start working part-time, initially four hours per day, and increasing his hours by one hour a day each week, until he was back to his regular hours.

Mr. Navid was examined by Dr. Joseph Kwok on September 22, 1995, in an independent DAC assessment for musculoskeletal disability. Dr. Kwok concluded: "at this point, [Mr. Navid] had the ability to return to activities of daily living, household activities, activities relating to hobbies and recreation and work (two jobs, as chef and pastry chef)." After reviewing the evidence confirming the fracture at T-12, Dr. Kwok maintained his position that Mr. Navid had no physical impairment that would prevent him from working full-time, after September 1995.

Dr. Kwok was of the view that the type of fracture injury Mr. Navid sustained normally heals within 8-12 weeks of the trauma and does not cause long-term disability. He felt in this case, radiographic information indicated that the fracture was minor, stable compression fracture which actually healed prior to the MRI.This view is substantially supported by the radiologist Dr. McIntyre and by Dr. Strashin and Dr. Patcai. In his testimony, Dr. Kwok stated that if Mr. Navid could work 35 hours per week, he could see no medical reason why he could not work full-time.

Dr. Marciniak, Mr. Navid's treating physician since June 1995, does not agree with Dr. Kwok's opinion. Dr. Marciniak feels that Mr. Navid will have difficulty increasing his ability to work beyond his current 35 hours. He believes that Mr. Navid will continue to have problems, especially with prolonged lifting and bending as well as rotation. He states that "he will also have pain in is thoracolumbar spine due to the compression fracture and may be affected with low back stabilizing and probably sleeping," Dr. Marciniak does not comment on the severity of the fracture, nor does he indicate the time required for Mr. Navid to achieve this level of functioning.

Dr. Marciniak disagrees with Dr. Kwok's assessment of Mr. Navid's physiological problems. I prefer to accept Dr. Kwok's evidence over that of Dr. Marciniak. Dr. Kwok is an orthopaedic surgeon and a specialist in musculoskeletal problems while Dr. Marciniak is a general practitioner. In addition, unlike Dr. Marciniak, Dr. Kwok has demonstrated, both in his reports and his oral evidence, a detailed knowledge of Mr. Navid's medical history, and his essential tasks. In his testimony; Dr. Marciniak was unable to tell me what Mr. Navid's essential tasks were, nor had he reviewed Mr. Navid's functional abilities evaluations.

Dr. Marciniak's reports indicate that when he first saw Mr. Navid on June 15, 1995, nine months after the accident, he was suffering from significant injuries to the cervical and lumbar spine with severe restrictions of movement. Dr. Marciniak was aware that before coming to see him, Mr. Navid had received considerable physiotherapy treatment which did not help him. Yet Dr. Marciniak continued to treat Mr. Navid with the same type of physiotherapy modalities. Within four months of his enrollment at Dr. Marciniak's clinic, Mr. Navid took over 152 physiotherapy and chiropractic sessions, with no appreciable degree of improvement. When questioned by Allstate's counsel why he did not seek consultation with orthopaedic and other specialists at S.M.R.C., Dr. Marciniak replied that he felt Mr. Navid's condition was "not bad enough to seek consultation with a specialist."

When Dr. Marciniak was questioned in cross-examination about his opinion on the videotape evidence, his response was: "you can't rely on videotape because you can clip what you want." He did not suggest this was done in this case; however, it was clear to me that he was unwilling to comment or give opinion on evidence that appeared to contradict Mr. Navid's contentions and his own conclusions. In my view, Dr. Marciniak was playing the role of an advocate rather than that of an independent witness. I find that Dr. Marciniak's conclusions are based on his unquestioned acceptance of Mr. Navid's complaints of pain and disability. Accordingly, I do not find his opinion stronger evidence than that of Mr. Navid himself.

Post-accident Activities and Credibility

I did not find Mr. Navid a credible witness. Because of the numerous inconsistencies in his testimony and the documentary and oral evidence, I cannot rely on his testimony to support his claim of disability.

Mr. Navid claims constant neck and back pain, which he states continued without significant improvement. On December 14, 1994, Mr. Navid told his family doctor that he was "totally disabled, physically." A videotape recorded by Scott Lindsey, Private Investigator, only 18 days after the accident, shows Mr. Navid working in his yard quite vigorously, clipping hedges with a pruner, bending, squatting, stooping, reaching forward, getting up and down, and using a saw to cut branches. He performed these activities continuously for at least 20 minutes, exhibiting no apparent signs of pain or discomfort. He appeared to move his neck, shoulders, and back normally, with no apparent restrictions. In cross-examination, Mr. Navid stated that he was told by his doctors to exercise and that he felt pain afterwards.

After viewing the videotape, Dr. Strashin agreed that Mr. Navid's actions were not consistent with his complaints and what he told him in December 1994. Dr. Strashin refrained from expressing an opinion regarding Mr. Navid's claim of disability after he started treatment at S.M.R.C.

The doctors agreed that Mr. Navid's symptoms would have been at their worst during the few weeks following the accident, and that there is nothing to suggest that he experienced a flare up of his symptoms subsequently. Given the level of activity depicted in the videotape, at a time when, by all accounts, he should be at his worst, I find Mr. Navid's claims of total disability in December 1994, and his continued complaints of restriction of movement to be untrustworthy.

In November, 1995, Mr. Navid was still complaining of continued, significant neck, shoulder and back pain, with considerable restriction of movement. He told Dr. Marciniak that he had difficulties getting up from lying and sitting positions.

However; in September 1995, when Dr. Kwok assessed Mr. Navid, he noted inconsistencies in his complaints and his behaviour on examination. Dr. Kwok found that he had full range of motion of both the cervical and thoracic spine, with no evidence of any neurological deficit.. For example: "when he is in a recumbent position, straight leg raising produces a lot of back pain, at 30 degrees, bilaterally. However, when he is in a sitting position straight leg raising is completely painless at 90 degrees bilaterally. When he is in a supine position rotation of the right hip produces pain in the right buttock. However, when he is in a sitting position rotation of the hip is not painful at all."

In his testimony, Mr. Navid stated that he left Melrose Clinic and went to Target Rehab because the people at Melrose told him he had no pain. However; the evidence indicates that he left the clinic because he was told he should return to work.

On May 17, 1995, the treating team at Target Rehab indicated that although Mr. Navid was still experiencing residual mild neck and back pain, he was capable of returning to modified duties and should be able to return to maximum pre-accident levels within the following four to eight weeks. By this time, Mr. Navid had also completed a functional evaluation assessment and an insurer's medical examination which supported Target's conclusion. His own family doctor was in agreement with these assessments. It was now evident that Allstate was proceeding to take steps to terminate his weekly benefit.

The evidence suggests that at this time, Mr. Navid decided to consult a lawyer, who subsequently referred him to Dr. Marciniak's clinic. It appears that each time Mr. Navid was told he should return to work, he went "doctor shopping", until he finally found Dr. Marciniak, a physician who was willing to accept and support his claim of disability without question.

Mr. Navid testified that he did make several attempts to return to work on the advice of his treating physicians; however, he worked with pain, and suffered a great deal afterwards. Mrs. Navid testified that she observed her husband was in pain after he returned home from work, and did not sleep well at night. She said he could not do any work around the house because of pain.

Film footage obtained on December 17, 1994, January 28, February 16, May 26 and 27, September 10 and 12, 1995, and January 10 and 11, 1996, show that during periods when he claimed severe restrictions of movement in his neck and back, Mr. Navid was engaging in various activities, including driving, shopping and working in the kitchen area of various restaurants. He appeared to be conducting the particular activity normally, without any apparent pain or discomfort or restriction of movement of the affected parts of his body.

The evidence also shows that, for the most part, Mr. Navid did not inform his health care providers where he was working or the nature and duration of the work. He did not report his income from employment to the insurer.I find it significant that Mr. Navid did not tell his family doctor or R.S.C. of his work, if his intention was to attempt to return to work.

Mr. Navid testified that his first attempt to return to work was in November 1994, approximately two months after the accident, when he started working at Sue's Chicken. Mr. Navid testified that he was hired by a friend to assist in menu consulting. He worked there for two months, two to four days a week, up to 16 hours a week. He said he was not paid for his services. Mr. Navid denied working as a cook; although, he admitted, he might have cooked sample meals for demonstration purposes.

The testimony of Allstate's investigators and the videotape evidence contradicts Mr. Navid's testimony. Allstate's investigators testified that they observed him preparing, and cooking regular meals. Mr. Navid said it was a mere coincidence that the investigators happened to be there when he was cooking.

Mr. Navid testified that he sstopped working at Sue's Chicken because his friend's consulting contract expired. Other than a "To whom It May Concern Letter" purporting to confirm that Mr. Navid was assisting "on concept and other matters," free of charge, Mr. Navid has produced no other evidence to support his claim.

Mr. Navid testified that at the end of April 1995, he made another attempt to return to work. He started working at the Boemia Cafe Bistretto Bar ("Boemia"), a restaurant owned by his friend, David Ribeiro. Both Mr. Ribeiro and Mr. Navid testified that Mr. Navid was hired as a menu consultant, and not as a cook. Mr. Navid worked at Boemia for four weeks only, averaging 10 hours per week. He was paid $50.00 per hour, and earned a total of $2,000.00. He did not report this income to Allstate, though at the time he was still receiving weekly income benefits. (Mr. Navid has repaid this amount after the facts became known to Allstate.)

Both Mr. Ribeiro and Mr. Navid were adamant that Mr. Navid was a consultant and did not work as cook, although, according to Mr. Ribeiro, "now and then he had to peel an onion." Mr. Navid insisted that he did not cook for customers, and any cooking he might have done was for the purposes of testing and experimenting.

Investigation reports and videotape footage of two consecutive days at the end of May, 1995 show Mr. Navid working in the kitchen at Boemia restaurant, cooking meals for customers. Mr. Navid is depicted working normally with no visible indications of pain or discomfort. Mr. Navid explained that this was yet another case of surveillance investigations coinciding with days when he cooked for demonstration.

Mr. Navid was also observed to have been at the premises of Boemia for over seven hours on each occasion the investigations were conducted. Mr. Navid admitted he was at the restaurant from six to eight hours a day, but that he actually only worked two to five hours a day. He said he spent the rest of the time resting in a sitting room in the basement of the restaurant.

Both Mr. Ribeiro and Mr. Navid testified that Mr. Navid left Boemia on May 26, 1995, because he could no longer stand the pain. However, under cross-examination, Mr. Navid admitted that on the same day he decided to leave Boemia, he had told Dr. Shahidi, his chiropractor, that he was ready to return to work and Dr. Shahidi had given him a note to return to work. May 26 was also the day Target Rehab released him to work. Mr. Navid's family doctor testified that when Mr. Navid was not complaining of increasing pain at this time.

I find it difficult to believe that on the day Mr. Navid was given medical clearance to work, that he would quit his well paying, less physically demanding job because of increasing pain. Why did he tell his doctors he was ready to return to work if, as he says, his pain was increasing and was intending to quit? This does not make any sense.

The evidence shows that May 26 and 27, 1995, were the dates the Boemia investigations were conducted. In my view, Mr. Navid's conduct is more consistent with his leaving Boemia because he was alerted to the fact that Allstate's investigators were following him. I find that he left Boemia not because of increasing pain but because of his concern that if Allstate discovered he was working "under-the-table", his weekly income benefits could be terminated.

After the termination of his benefits, in December 1995 and January 1996, Mr. Navid worked at Lakeview Lunch Restaurant ("Lakeview") for one month. Mr. Navid testified that he started working at Lakeview because he owed the chef of the restaurant $1,000.00, and he wanted to discharge his debt to the chef by working in the kitchen. Mr. Navid testified that he worked approximately six hours a day, four days a week, and stopped working as soon as he had worked long enough to repay his debt. Mr. Navid testified that he worked in the lightest section of the restaurant, preparing salads, desert and other light food.

I have heard evidence from investigators who testified they were informed by the manager of Lakeview Restaurant, Louisa Lamonte, that Mr. Navid was working there as a cook 40-45 hours a week. In her testimony, Ms. Lamonte denied providing such information to anyone. She said Mr. Navid was not on the restaurant's payroll, but that he had seen him working in the kitchen.

There is no reliable evidence of Mr. Navid' hours of work at Lakeview. I was not provided with any explanation how the arrangement to pay back the $1000.00 was devised. The chef in question did not testify. I have not heard any evidence that he was the owner of the restaurant.

Was the chef paid for work that Mr. Navid did? If Mr.Navid was not paid by the restaurant, it is not clear to me how he was able to repay his debt to the chef?

Since March 14, 1996, Mr. Navid has been working as a cook at Chiado Restaurant ("Chiado"). He testified that the owner of the restaurant, who is also his friend, gave him this job to help him pay his mortgage. He described the work at Chiado as light. At the time of the hearing, he was still employed at this restaurant, working six hours a day, five days a week. He is paid $300.00 a week. He testified that he has not missed work, except to attend at legal appointments and this hearing. Mr. Navid said he has not tried to work more than 30 hours per week, because 30 hours is "killing" him already.

Mr. Navid has filed into evidence a "To Whom It May Concern" letter purportedly prepared by Mr. Albino Silva, the owner of the restaurant. This letter states that Mr. Navid works at the restaurant five days a week, lunch and dinner shifts, helping the chef. It does not state how many hours Mr. Navid works or how much he is paid. Mr. Navid has filed no evidence such as pay stubs, contract of employment, to confirm the actual number of hours worked or the nature of the work at Chiado. No one from the restaurant was called to corroborate Mr. Navid's evidence.

Conclusion

By his own admission, Mr. Navid has been able to work up to 35 hours per week, the equivalent of one full-time job, since the time of the termination of his benefits in September 1995. He claims he remains substantially disabled from performing his essential duties because he is unable to work 75 to 80 hours per week, and that his ongoing limitations arise mainly from back pain which restricts his ability for prolonged standing, bending, and twisting.

As discussed above, the preponderant medical evidence suggests that Mr. Navid should have been able to return to his pre-accident duties of 75 to 80 hours a week, prior to the termination of his benefits. Having considered the entire evidence, I do not find Mr. Navid a credible witness, and I am unable to rely on his evidence. There is no independent credible medical opinion or other evidence that supports his claim of disability.

In my view, the evidence suggests that it is more likely than not that Mr. Navid does not suffer a substantial inability to perform the essential tasks of his employment or occupation.

Accordingly, I find that Mr. Navid is not entitled to weekly income replacement benefits after September 19, 1995.

Entitlement to Orthopaedic Mattress:

Mr. Navid claims that he is entitled to the cost of an orthopaedic mattress, as prescribed for him by his family doctor. A note given to him by Dr. Strashin on December 1, 1994, states "it would be reasonable to supply this patient with a proper mattress." Mr. Navid produced a price quote dated December 5, 1994 from Mattresses Unlimited for a Simmons Beautyrest queen size mattress, valued at $918.25.

In his testimony, Dr. Strashin stated that he gave Mr. Navid the note for a mattress because Mr. Navid told him he was having discomfort sleeping at night. Dr. Strashin gave no explanation of the requirement based on medical reasons. Dr. Patcai saw no medical grounds that the mattress would be of any benefit to Mr. Navid.

Mr. Philip Langford, Allstate's claims representative, testified that in a spirit of compromise, Allstate has paid Mr. Navid $450.00 towards the cost of the mattress. Mr. Navid has never purchased the mattress in question.

Section 36 of the Schedule states that the insurer is liable to pay all reasonable expenses incurred by or on behalf of an insured person as a result of the accident for goods and services of a medical nature that the insured person requires. I have heard no evidence that the particular mattress Mr. Navid wished to buy is an "orthopaedic mattress" that meets Dr. Strashin's prescription of "a proper mattress." In any event, Mr. Navid has not purchased the mattress, and I have heard no evidence that suggests he requires one at the present.

Accordingly, I find that Mr. Navid is not entitled to the cost of the mattress at issue.

Expenses:

As an arbitrator, I have the discretionary authority under section 282(11) of the Insurance Act to award an insured person such arbitration expenses as are prescribed in the regulations. I may also order the insured person to pay the insurer the assessment fee of $2,000.00 it is required to pay under section 282(11.2) of the Act if I find the insured person commenced an arbitration that is frivolous, vexatious or an abuse of process.

On behalf of the Allstate, Mr. Kirby urged me to deny Mr. Navid his expenses, and to award the insurer its assessment fee.

Having considered the circumstances of this case, I do not find this to be an appropriate case for an award under section 282(11.2). I do not find that Mr. Navid's commencement of this arbitration is frivolous, vexatious or an abuse of process.

However, I find it appropriate to deny Mr. Navid his expenses. Mr. Navid has advanced a claim without merit, and I have not found him to be a credible witness.

Order:

1. Allstate is not required to pay Mr. Navid further weekly income replacement benefits

2. Mr. Navid is not entitled to his expenses incurred in respect of the arbitration.

April 28, 1997

Asfaw Seife

Arbitrator

Date

APPENDIX "A"

WITNESSES:

Mr.Vali Navid

The Applicant

Louise Lamonte

Hotel Manager/Consultant

Dr. Z. Marciniak

General Practitioner

Ms. Edwine Navid

Applicant's wife

Dr. E. Strashin

Family Physician

Dr. Joseph Kwok

Orthopaedic Surgeon

Mr. David Ribeiro

Restaurant Owner

Mr. Scott Lindsey

Private Investigator

Mr. Dino Zollino

Private Investigator

Danny Russo

Private Investigator

Dr. J. McIntyre

Radiologist

Dr. J. Patcai

Physiatrist

Mr. W. Davidson

Private Investigator

Mr. D. White

Private Investigator

Mr. P. Langford

Insurance Claims Manager

EXHIBITS:

Exhibit 1

Vali Navid's Resume

Exhibit 2

The Etobicoke General Hospital, Radiology Report and Ambulance Report, dated September 15, 1994

Exhibit 3

Application for Accident Benefits, dated September 20, 1994

Exhibit 4

Employer's Confirmation of Income, dated September 24, 1994

Exhibit 5

Letter from Shaun Navazesh, Chef at Happelizers Ltd., (not dated)

Exhibit 6

Note from Dr. F. Shahidi from Sheppard-Leslie Chiropractic Clinic, dated May 26, 1995

Exhibit 7

Letter from David Ribeiro, owner of Boemia Cafe Bistrettro Bar, dated July 17, 1995

Exhibit 8

Letter from Albino Silva, owner of Chiado Portuguese Fine Dining Restaurant, dated, March 28, 1996

Exhibit 9

Notice of Assessment from Revenue Canada, dated April 24, 1995

Exhibit 10

Mattresses Unlimited Inc., receipt, dated December 5, 1996 and note from Dr. Elliot Strashin, dated January 1, 1995

Exhibit 11

Insurer's Medical Brief (Tabs 1 to 31)

Exhibit 12

Insurer's Document Brief (Tabs 1 to 20)

Exhibit 13

Dr. Z. Marciniak's Curriculum Vitae

Exhibit 14

Dr. Marciniak's R, dated March 13, 1996

Exhibit 15

Medical Report from Dr. Z. Marciniak, dated February 6, 1996

Exhibit 16

Clinical Notes of Dr. E. Strashin

Exhibit 17

Report of Dr. E. Strashin, dated May 3, 1995

Exhibit 18

Dr. M.K. Joseph Kwok's Curriculum Vitae

Exhibit 19

Medical Report of Dr. M.K. J. Kwok, dated April 4, 1996

Exhibit 20

Record of Employment of John Douglas Brown, Kitchen Staff at Boemia Restaurant.

Exhibit 21

Surveillance Videotape, October 2, 1994.

Exhibit 22

Surveillance Videotape, January 28, 1995

Exhibit 23

Surveillance Videotape, May 26 and 27, 1995

Exhibit 24

Surveillance Videotape, September 8, 9, 10, 12, and December 17, 1995

Exhibit 25

Field Notes of Dino Zollino - Private Investigator

Exhibit 26

Field Notes of John Dano - Private Investigator

Exhibit 27

Dr. Patcai's Curriculum Vitae

Exhibit 28

Surveillance Videotape, January 6, 10 and 11, 1996

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.