Neutral Citation: 1998 ONFSCDRS 1

OIC A95-000257

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SUKHWANT SINGH

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Sukhwant Singh, was injured in a motor vehicle accident on March 30, 1994. He applied for and received statutory accident benefits from Gore Mutual Insurance Company ("Gore Mutual"), payable under the Schedule¹ Gore Mutual terminated weekly income replacement benefits on June 12, 1995. The parties were unable to resolve their disputes through mediation, and Mr. Singh applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to income replacement benefits?

2. What is the correct amount of the benefit?

3. Is the Insurer entitled to a repayment of income replacement benefits?

4. Is the Applicant entitled to any of the following supplementary medical benefits?

i) an Obus form, a cervical pillow, and a TENS machine

ii) various medications purchased by Mr. Singh

iii) physiotherapy treatments

iv) acupuncture treatments

v) transportation expenses to and from various treatment centres and physicians' offices.

vi) swimming lessons

5. Is the Applicant entitled to an attendant benefit?

6. Is the Applicant entitled to a special award?

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

Result:

1. Mr. Singh is entitled to income replacement benefits until January 2, 1996.

2. The amount of Mr. Singh's benefit is $405 per week.

3. The Insurer is not entitled to a repayment of income replacement benefits.

4. The parties advised during the course of the hearing that the question of entitlement to the supplementary medical benefits identified in subparagraphs 4(i), (iii), (iv), and (vi) had been settled.

5. Mr. Singh is entitled to the following supplementary medical benefits:

i) payment of travel expenses to be agreed upon or assessed

ii) prescription expenses totalling $1,042.02

6. Mr. Singh is entitled to attendant care benefits for two hours per day for two months at minimum wage.

7. Mr. Singh is entitled to a special award of $750 inclusive of interest.

8. Mr. Singh is entitled to half his arbitration expenses.

9. Mr. Singh is entitled to interest on the outstanding benefits in accordance with section 68 of the Schedule.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on September 16, 17, 18, and 19, 1996, February 10, 11, 12, and 13, 1997, and on June 9, 10, 11 and 12, 1997. Written submissions were received from the Applicant's counsel on August 1, 1997.

Present at the Hearing:

Applicant:

Sukhwant Singh

Mr. Singh's

Ravinder Sawhney

Representative:

Barrister and Solicitor

Gore Mutual's

William J. McCorriston

Representative:

Barrister and Solicitor

Gore Mutual's

Joseph Ferritto

Officer:

Witnesses and Exhibits:

The witnesses at the hearing and the exhibits relied on by the parties are listed in Schedule A to these reasons. Section 64 of the Schedule is reproduced as Schedule B. The proceedings were recorded by reporters from Rosenberger Weir and interpretation services were provided by Raj Thaper, Pritjam Singh and Surjeed Parkhar.

Evidence and Findings:

Overview

Relations between Mr. Singh and the representatives of Gore Mutual Insurance Company have been marked from the outset, by mutual distrust, and lack of candor. In an initial interview with Sarah Tait, the in-house adjuster responsible for the file, Mr. Singh denied that he had sustained any significant previous injury. In fact Mr. Singh had been injured in a car accident two years previously, and had just settled an outstanding claim for accident benefits. In addition to trying to hide the fact of the earlier accident, Mr. Singh has consistently sought to deceive the physicians who have examined and treated him by exaggerating the extent of his complaints and restrictions.

Upon learning of the prior accident, the Insurer embarked upon a strategy of surveillance and delay. It appears that the Insurer's representatives tried to outwait Mr. Singh. The Insurer rebuffed Mr. Singh's requests for benefits for almost a year without adequate explanation. The Insurer did not begin to pay weekly benefits until Mr. Singh's counsel applied for mediation,

The Schedule defines the benefits available. It also sets out the rules governing the conduct of both parties. In this case the Insurer had reason to be suspicious, but by failing to follow the proper procedures relating to the assessment, payment and termination of benefits, they are now exposed to liability for further benefits, interest, and a special award.

Mr. Singh, for his part, has the onus of proving that his condition is sufficiently severe to merit ongoing benefits. By undertaking a systematic and extensive exaggeration of his complaints, he has made it impossible to discern the true state of his condition, and accordingly much of his claim fails.

During the course of the decision I will be considering a number of issues. The first is entitlement to further income replacement benefits. The Insurer paid an income replacement benefit until June 23, 1995, when they terminated the benefit on the ground that Mr. Singh failed to attend an Insurer Medical Examination (IME). Ultimately, a medical assessment was conducted by a Designated Assessment Centre (DAC) in November 1995, and a report was issued in January 1996, indicating that Mr. Singh was not disabled. For reasons I shall set out later, I do not believe that the termination based upon the non-attendance at the IME was justified, and accordingly, Mr. Singh should have been paid an income replacement benefit until the delivery of the DAC report.

Mr. Singh's entitlement to further income replacement benefits is challenged by the Insurer who alleges that Mr. Singh has grossly exaggerated his complaints and that any disability was minor and short-lived. I agree that Mr. Singh has grossly exaggerated his complaints and restrictions, and I find that he has not presented sufficiently reliable evidence to meet the onus of proving entitlement to income replacement benefits beyond the delivery of the DAC report in January 1996.

The Insurer seeks repayment of the income replacement benefits they paid previously. To succeed, the Insurer must prove that the payments were made because of fraud or an error attributable to the Applicant. Notwithstanding my finding that Mr. Singh has exaggerated his complaints, I am not satisfied that the Insurer has met this onus.

The quantum of the Applicant's claim is also in issue. Mr. Singh started driving a taxi approximately four weeks before the accident. In support of a claim for the maximum benefit of $1,000 per week, he delivered a record of his fares (commonly referred to as run sheets). The Insurer retained a forensic accountant who opined that the run sheets were not legitimate, and should not be relied upon. I agree. Based largely upon information provided by the owner of the taxi company I find that the correct rate is $405 per week.

At the commencement of the hearing, Mr. Sawhney, the Applicant's counsel, presented a long list of outstanding supplementary medical and rehabilitation benefits. It appeared that some were not outstanding and others should not have been contentious. I directed the parties to discuss these claims, and while a number were settled, others remained outstanding. As will be seen, it is unfortunate that the Insurer's representatives let their legitimate concerns about the bona fides of Mr. Singh's income replacement benefit claim, cloud their judgement with respect to these supplementary benefits, most of which should have been paid.

Mr. Singh seeks a special award. Despite the fact that I have denied further income replacement benefits beyond the issuance of the DAC report in January 1996, I find that the initial delay in paying any income replacement benefit, without adequate explanation until April of 1995, was unreasonable and that accordingly, a small special award should issue in Mr. Singh's favour. In addition, as alluded to above, the Insurer's conduct with respect to the supplementary benefits was unreasonable, and also calls for a small special award. I order payment of a special award of $750 inclusive of interest.

I turn now to a more detailed consideration of each of the issues.

Entitlement to further Income Replacement Benefits (IRBs):

(i) Were the benefits properly terminated, and if not, what are the consequences?

The Insurer first began trying to arrange a medical examination in the spring of 1995, a year after the accident. The initial attempts were unsuccessful. The location of the first appointment was too far from Mr. Singh's residence. On the second occasion, the Insurer forgot to arrange for an interpreter. At the beginning of the third appointment, Mr. Singh was asked to sign an authorization permitting Dr. Patcai to proceed with the examination. Mr. Singh refused, indicating that he was unable to understand the document, even with the aid of the interpreter and that he wanted his lawyer to review it. The Insurer responded by suspending Mr. Singh's weekly benefit.

On its face Mr. Singh's request was reasonable. Relations with the Insurer were quite strained by this point and a second language was involved. In my view the Insurer's decision to suspend benefits was inflexible, and cannot justify the suspension of benefits. As can be seen from the first two failed attempts, arranging an IME takes some co-operation. Efforts should have been made to try and contact Mr. Sawhney while Mr. Singh was still at the doctor's office. If that was not possible, the appointment should simply have been rescheduled without any interruption of benefits, as was done when the Insurer forgot to arrange for an interpreter. The release could have been delivered to Mr. Sawhney in the interim so that he could review it with his client, and secure his signature.

At the same time that benefits were "suspended," the Insurer scheduled another IME to be conducted in September. Mr. Singh did not attend. The Insurer argued in the alternative, that Mr. Singh’s failure to attend this appointment justified a suspension of benefits. Mr. Ferritto, the Insurer's dispute resolution officer, was asked on cross-examination if he would agree that Mr. Singh did not attend because the Insurer had agreed to arrange a DAC appointment in place of an IME. Mr. Ferritto indicated there was nothing in the file to confirm this suggestion.

Mr. Sawhney attempted to introduce considerable evidence that was connected to the mediation process. I was concerned about protecting the confidential nature of that process, but I did allow Mr. Sawhney to introduce a number of letters that referred to procedural agreements emanating from the mediation. One of those letters was written by Mr. Sawhney to Ms. Tait confirming a discussion with Mr. Ferritto concerning conducting a DAC assessment in place of an IME. This letter directly contradicts Mr. Ferritto's evidence, and no effort was made to respond to the evidence. In the circumstances I find that Mr. Ferritto agreed to arrange for a DAC assessment in place of the IME.

Section 64² is a lengthy section that provides a comprehensive code dealing with the termination of weekly benefits on the basis that the insured is no longer disabled. As part of the process, the section provides the statutory basis for medical examinations of the insured person. In general terms the section contemplates an initial examination at the insurer's behest [section 64(5)]. In the event that the examiner concludes the individual is no longer disabled, the insured may elect to have an examination conducted by an independent evaluator [section 64 (11) and (12)]. As a general rule, the initial examination is conducted by a health practitioner of the insurer's choice (an IME) [section 64(5)(a)]. However, section 64(5) (b) provides that this initial examination may, in the alternative, be conducted by either a health practitioner agreed to by the parties [section 64(11)] or by a DAC [section 64(12)]. If an insured fails to attend any one of these examinations, the insurer may suspend benefits. Section 64(5)(a) and (b) are written disjunctively, suggesting that the insurer must choose one route or the other. It follows that if, as I find here, the Insurer has agreed to arrange a DAC assessment, it cannot at the same time, schedule an IME and then rely upon the Applicant's failure to attend at the IME to justify a suspension of benefits.³

What are the consequences of the Insurer's improper termination of benefits? To understand the consequences of a breach of the termination provisions, the general intent of section 64 must be examined. The section is composed of 19 subsections which are designed to provide a comprehensive code that establishes the insured person's right to an uninterrupted stream of weekly benefits for as long as he or she provides evidence of ongoing disability, while simultaneously providing a mechanism for the insurer to challenge the insured person's claim, by requiring the insured person to attend for medical examinations. It is crucial to a proper understanding of the section to note that provided the insured person's own doctors continue to certify ongoing disability, the insurer's only recourse is to challenge that opinion by requiring the insured person to attend at a medical examination arranged at its behest. The insurer may not terminate benefits (on the basis that it believes the person is no longer disabled) until it obtains a medical opinion that the insured is no longer disabled.

In my view if an insurer terminates a benefit before obtaining the requisite medical opinion, the only logical and appropriate consequence is to return the parties to the position they would have been in had the insurer acted properly. That is to say that the insured person in entitled to ongoing benefits until such time as the insurer obtains the medical opinions.

As noted above, I have found that the Insurer agreed to proceed by way of a DAC assessment in place of an IME. In these circumstances, the Insurer was not justified in terminating benefits until the delivery of the DAC report on January 2, 1996.

In the appeal decision in Henry v. Allstate Insurance Company of Canada ⁴ Director's Delegate Draper commented on the suggestion that a termination that was not strictly in accord with section 64 would result in an automatic and irrefutable entitlement to ongoing benefits, regardless of the insured person's physical condition. The Director's Delegate stated:

In my view, section 64 deals with process, not entitlement. It protects the flow of benefits by controlling the insurer's right to cancel them. Benefits must be paid pending the DAC assessment even though the insurer claims the person is no longer entitled. This obligation to pay, however, does not create an entitlement that is immune from later challenge. I agree with Allstate's submission that the legislation was not intended to give insured persons an automatic right to extend their entitlement by requesting a DAC assessment, regardless of the merits of their claim.

The Director's Delegate did not directly address the question of how the "challenge" would proceed. The provision found within section 64 for accessing a civil proceeding, or arbitration, to challenge either ongoing entitlement or a termination of benefits is instructive. Subsection 64(18) states that nothing within section 64 prevents the insured person from challenging a termination. By implication, the applicant may seek the reinstatement of benefits after a termination based upon either an IME or a DAC report. The section goes on to provide that if it is finally determined that the benefit should not have been terminated, the insurer shall pay "any benefits that were not paid."

This general right to access a civil proceeding or arbitration must be contrasted to the insurer's right as found in subsection 64(17) which is not triggered unless a DAC report concludes that the insured person remains disabled. In these circumstances the insurer may institute civil proceedings to dispute its obligation to pay; provided that it continues to pay pending the resolution of the dispute.

Reference must also be made to subsection 64(10) which imposes upon an insurer the obligation to continue to pay pending a DAC and subsection 64(16) which states that if the DAC report confirms the IME opinion, that the person is not disabled, the insurer may stop paying benefits. However, no explicit mention is made of any right to recoup the monies the insurer was obliged to pay in the interim between the IME and the DAC. When this omission is read in the context of the Insurer's limited right to access a civil proceeding only after a DAC report, I conclude that in ordinary circumstances, the insurer may only seek repayment of those benefits paid after the release of the DAC report. I say in ordinary circumstances because notwithstanding the legislature's intent to provide the insured person a secure stream of benefits until a DAC assessment concludes that he or she is no longer disabled, it must always remain open to the insurer to seek a repayment pursuant to section 70 on the grounds that the payment was made on the basis of an error (attributable to the insured), wilful misrepresentation, or fraud. It is settled law that under ordinary circumstances, the onus of establishing the right to ongoing benefits lies upon the insured person, but that the onus on a section 70 application lies upon the insurer.

It would be incongrous if an insurer who improperly terminated benefits, thererby forcing the insured person to arbitration, before a DAC report was secured, could gain an advantage by arguing that the insured person not only had an obligation to prove that the termination was improper, but then in addition had to demonstrate that he remained disabled.

Where the issue is being dealt with as part of the general hearing, there might be a simplistic attraction to simply putting the insured person to the onus of proving ongoing entitlement from the date payments were terminated. In my view, this would be incorrect. Once it has been determined that benefits have been improperly terminated, the insured person is entitled to a finding that benefits are owing. The onus then shifts to the insurer to justify a repayment pursuant to section 70.

In my view the proper outcome would be to order the payment of benefits until such time as the provisions of section 64 are complied with, subject to the Insurer's right to recoup the payment pursuant to the repayment provisions of section 70.

Applying the above rationale to the circumstances of this case I find that the Insurer is responsible for the payment of the IRBs until the release of the DAC report on January 2, 1996, subject to the Insurer's request for a repayment which is discussed below.

(ii) Is the Applicant entitled to income replacement benefits for any period beyond January 2, 1996?

Mr. Singh was a taxi driver at the time of the accident. His counsel argued that his client is unable to return to that employment or any form of gainful employment as a result of a combination of physical and psychological disability. The Insurer's counsel argues that Mr. Singh is malingering.

Mr. Singh's car was struck from the rear and spun around. Mr. Singh has told a number of doctors that he believes that he was unconscious for five or six minutes. I find this very doubtful. Mr. Singh was taken home by his brother-in-law who was passing by, and he did not attend at the hospital until later that evening, at which time he was examined and discharged. No record of the emergency department was filed in support of the allegation that Mr. Singh lost consciousness. This would have been the most logical document to support Mr. Singh's allegation, and I draw a negative inference from the fact that it was not filed.

In a statement to the adjuster shortly after the accident, Mr. Singh included complaints of pain in his left shoulder, throughout his back and in his left knee. These same complaints, plus headaches are recorded in the report of Dr. Greenspan dated May 11, 1994, approximately six weeks after the accident. Mr. Singh's family physician diagnosed chronic pain in the early fall of 1994.

Mr. Singh contends that as a result of the above complaints he is unable to sit for even short periods of time. He stated that he can only walk short distances at a time, and only very slowly and with great pain. He also testified that he has very restricted range of motion in his neck and back. Mr. Singh also claims that he has trouble sleeping, is very forgetful, and has trouble thinking clearly. He testified that he continues to suffer from all of these complaints and restrictions. In the late summer of 1995, Mr. Singh began to use a cane to walk.

These complaints and restrictions have generally been recorded in the medical reports filed by the parties. The family physician's clinical notes appear to reveal a brief period of improvement in Mr. Singh's mental and physical condition in the spring and early summer of 1995, but the improvement was short lived.

(a) The Surveillance Evidence

I turn now to a review of the surveillance evidence. I find that the investigator's written reports lack objectivity, are replete with commentary that is beyond the investigator's area of expertise, and that comments are often attributed to unidentified "sources." In the circumstances, I rely on very little that is found in the narrative reports other than objective matters such as dates and times, unless the reports are accompanied by video tapes.

Surveillance was conducted in the spring of 1994, shortly after the accident was reported to the Insurer. The reports state that Mr. Singh was seen on occasion driving a white car that the investigators learned was registered in his name shortly after the accident. Generally the investigator's observations during this period were consistent with Mr. Singh's complaints.

It would appear that a concerted effort was made to observe Mr. Singh in the spring of 1995, and videotaped observations were made on a number of occasions. During this time, Mr. Singh was often located at or in the vicinity of his wife's apartment.

On May 12, 1995, he is seen walking slowly but without apparent restriction, towards a car in a small plaza near his wife's apartment building. A woman who is identified in the report as Mr. Singh's wife, vacates the driver's seat, and Mr. Singh slowly gets in and drives away.

On May 20, 1995, Mr. Singh was videotaped working on a car in the underground garage of his wife's apartment building. Despite the fact that the subject of the video was clearly Mr. Singh, he was very reluctant to identify himself. Because of the position of the car relative to the position of the photographer, it is impossible to see precisely what Mr. Singh was doing to the car, but the hood of the car was raised, and a light is seen being shone on the engine compartment. Mr. Singh is seen stooping and bending without apparent difficulty. During a portion of the video, he is seen conversing with another man. The accompanying report notes that Mr. Singh is working in and around the car for approximately two hours. It was apparent to me that Mr. Singh was doing routine maintenance on the car.

Mr. Singh is also seen visiting Punjab Motors, a garage owned by friends. Mr. Singh can be seen walking slowly but in a relaxed fashion, with his hands in his pockets. On one of the tapes he is seen backing a car down a ramp.

Surveillance was undertaken in May 1996. In the early portion of the video tape Mr. Singh can be seen to be walking very slowly, and getting in and out of cars with apparent difficulty. In the latter part of the tape Mr Singh is seen walking along a sidewalk. While he is using the cane, there seems little wrong with his gait. This contradiction is even more apparent on review of a video shot in June 1996, when it is clear to me that there is nothing wrong with Mr. Singh's gait, and little if any weight is being applied through the cane.

(b) Mr. Singh's Psychological and Mental State

(i) Mr. Singh's conduct during the course of the hearing

Mr. Singh's appearance and behaviour at the hearing were extremely unusual. Throughout the 14 days of hearing, Mr. Singh came attired in a windbreaker and cap, and wearing a ski glove on his left hand. He kept all of these clothes on throughout the hearing. Mr. Singh stood against a wall and refused any offer of a seat. When he was asked to move from one portion of the room to another, he moved in a very slow shuffle. He constantly grimaced, flickered his eyelids, and touched his face with his hands. He explained that this latter gesture was a sign of nervousness.

Mr. Singh's speech was also very unusual. He spoke so quietly that even the interpreter, who was forced to stand at his shoulder, could not always make out what he was saying.

Mr. Singh gave his evidence through an interpreter. Prior to the accident, Mr. Singh spoke English well enough to drive a taxi and carry on his daily affairs. Mr. Singh had a number of conversations with representatives of the Insurer in the months immediately after the accident that suggest that he had at least a rudimentary understanding of English at that time. Mr. Singh claims however, that by the time of the hearing he could speak virtually no English and in fact had great difficulty conversing in Punjabi, his native tongue.

During his examination-in-chief, Mr. Singh was often unable to answer even the most simple and direct questions. Following are a few of the more notable examples.

• When asked when the accident had taken place, Mr. Singh asked what an accident was.

• When asked if he had ever driven a taxi, Mr. Singh indicated that he thought he had because he had a "paper."

• When asked what other jobs he held before driving a taxi, Mr. Singh said he could not remember.

• When asked if he recalled when he was married, Mr. Singh said he did not remember.

• When asked the names of his son and daughter, Mr. Singh could only provide the name of his daughter.

• When asked the ages of his children, Mr. Singh said he could not remember.

• When asked if he had any siblings, Mr. Singh said he could not remember.

Mr. Singh's difficulties communicating are noted by a number of treating and examining physicians. A number of examples are noted below.

• Rex Samuel, a psychologist who treated Mr. Singh through the summer and fall of 1994, noted in a report dated September 9, 1994, that the Applicant complained of poor concentration, and that he showed poor comprehension and concentration.

• The family doctor's notes are replete with references. In one, Dr. Issac notes that much of their communication was in mime.

• A psychologist at the AIM clinic, who was part of a DAC team that assessed Mr. Singh in late 1995, was unable to conduct a proper examination because he was unable to communicate with Mr. Singh despite the assistance of an interpreter.

• Dr. Sood, a psychiatrist who conducted an IME in September 1996, terminated the interview after failing to elicit answers to many of the same questions relating to Mr. Singh's personal history that I have noted above. Dr. Sood expressed the belief that Mr. Singh was not co-operating. It is worth noting that Dr. Sood speaks Punjabi and the interview was conducted in Mr. Singh's native tongue.

• Dr. Kakar, a treating psychiatrist, notes that Mr. Singh talks with a lot of effort, slowly, and in an emotional voice. He further notes that he sometimes stares blankly as if he does not hear or understand the questions.

The Applicant's counsel argues that the evidence suggests that Mr. Singh's inability to speak English and general difficulty communicating, is attributable to depression arising from the injuries he sustained in the accident and the Insurer's failure to treat him in a timely fashion. More generally, Mr. Sawheny argues that the loss of communication skills is indicative of a generalized loss of cognitive powers, such that it is impossible for him to return to gainful employment.

These troubles must be contrasted with Mr. Singh’s abilities on other occasions.

One such occasion was during the hearing itself. For example, initially Mr. Singh professed to having no real memory of driving a taxi for a living, stating that he only remembered because he had a paper that told him so. However during the latter stages of his examination-in-chief he gave a detailed explanation of how his "run sheets" should be interpreted. During cross-examination on these same "run sheets," Mr. Singh responded to questions spontaneously, demonstrating an ability to understand questions and formulate answers in a fashion entirely inconsistent with his earlier limitations. In addition, while reviewing a number of financial documents, Mr. Singh demonstrated a rudimentary ability to read English.

Second, in July 1995, when Mr. Singh was seen working on his wife's car in the underground garage, he can be seen talking to a man. There is no audio component to the tape, so it is not possible to say with certainty what language was employed. Counsel for the Insurer noted that the individual was Caucasian and suggested to Mr. Singh that the conversation must have been in English. Mr. Singh replied that the teenage boy who was with him was the person speaking to the man. I reject this explanation. From the video it is clear that the main participants are Mr. Singh and the other man. In the absence of any coherent explanation, or definitive statement that the conversation was in Punjabi, I conclude it more likely than not, that the conversation was in English. Without any audio component, it is however, impossible to draw any conclusions as to Mr. Singh's proficiency at the time.

Third, Mr. Rusty Baubie was called by the Insurer to testify as to a conversation he had with Mr. Singh in July 1995. Mr. Baubie stated that while he was conducting a yard sale, Mr. Singh approached him about buying a stereo stand. The two men bartered back and forth in English before the sale was completed.

(ii) The Medical Evidence

Dr. Kakar, the Applicant's treating psychiatrist, argues that Mr. Singh finds talking about the accident and his pain, so difficult that he tries to avoid it, and that this explains in part his difficulty in answering questions relating to his injuries and symptoms. He also testified that Mr. Singh suffers from a deep seated fear of persecution at the hands of the Insurer, and that this increases his difficulties communicating, particularly with anyone associated with the Insurer, such as a doctor conducting an IME.

With respect to the difficulty in answering questions about his family members, Dr. Kakar testified that Mr. Singh is suffering from a severe depression that has diminished his cognitive powers. He went on to explain that as a result of the estrangement from his wife, and his inability to financially support his children, these family members are "lost to him" and that accordingly it was not surprising that he had forgotten details about his family such as the ages of his children.

Dr. Kakar's suggestion that Mr. Singh's immediate family was "lost to him" is not borne out by the surveillance evidence which shows Mr. Singh frequently in the vicinity of his wife's apartment, and on occasion in the company of his wife and children. Nor does it explain the inability to recall details about his siblings, or other personal information. The fear of persecution may be well founded, and certainly the conduct of the surveillance teams who amongst other things followed Mr. Singh inside a hospital must be admonished, but it does not explain the difficulties Mr. Singh apparently has communicating with his own doctors.

Dr. Sood, a psychiatrist who conducted an IME, agreed that depression can cause short term memory loss, but suggested that personal information such as the names of family members would be the easiest to retrieve.

(iii) Conclusion

In my view the contradictions in Mr. Singh's apparent cognitive abilities can only be satisfactorily explained by concluding that Mr. Singh is intentionally exaggerating his language difficulties and, by extension, his memory loss and general cognitive impairment. Dr. Sood concluded that Mr. Singh’s inability to answer routine questions was a pretense. I accept this evidence. I reject Dr. Kakar’s conclusion that Mr. Singh is suffering from a major depression sufficient to significantly impair his cognitive functions. Given Mr. Singh's deceit, it is impossible to ascertain what if any actual cognitive difficulties he has.

Before leaving this section, I make one last comment. There was evidence that in 1996, Mr. Singh was assaulted by his brother-in-law, and that the beating included kicks to the head. Mr. McCorriston argued that if I were to find cognitive impairments, they were more consistent with a direct blow to the head than to the mechanism of this car accident. Although I have rejected the notion that Mr. Singh has sustained a significant cognitive impairment, the behaviours upon which Mr. Singh relies in advancing the supposition, were displayed long before the beating. Had I found that Mr. Singh had established a cognitive disability, I would have attributed it to the motor vehicle accident.

(c) Mr. Singh's Physical Condition

(i) The Medical Evidence

A review of the medical reports reveals that when Mr. Singh was being examined, he typically moved very slowly, and his movements were often accompanied by dramatic facial grimaces and other signs of pain. The reports also record very restricted range of motion on formal testing.

Many of the doctors noted that Mr. Singh’s reactions were out of keeping with their clinical findings. I note a number of examples below.

In June 1994, Dr. Greenspan who examined Mr. Singh at the request of his first family physician noted that he moved "very gingerly" and "abnormally cautiously." In a May 1994 report, he noted that Mr. Singh was reluctant to move his left shoulder, but that he was able to resist, and did not appear to realize the intent of the test.

In a February 1995 report to the family physician by Dr. Kachooie, there is a note that Mr. Singh displayed a significant amount of guarding that did not correlate with his symptoms or clinical presentation, and that there appeared to be a significant amount of functional overlay.

One of the most explicit comments regarding contradictory findings is located in the report of Dr. Bushuk who performed the orthopaedic portion of a DAC assessment conducted at the AIM clinic in the fall of 1995. The most striking finding was of inconsistencies in Mr. Singh's ability to turn his neck. Dr. Bushuk noted that despite a limited range of motion on formal testing, and complaints of pain on rotation of the neck and back, Mr. Singh was able to turn his neck to look at the interpreter without apparent difficulty or pain, and that as Mr. Singh left the office, he twice turned his neck and trunk up to 90 degrees to say goodbye. Dr. Bushuk's concluded:

Based on my history and examination, I really do not feel this man falls in the category of a chronic pain syndrome. His responses and reactions seem so blatantly exaggerated and there seems to be inconsistencies and contradictions during his exam that raise the question of possible secondary gain component or voluntarily component to his whole symptom complex.

Dr. Bushuk was even more emphatic during his oral testimony. After referring to the incident where Mr. Singh turned to say goodbye, the doctor stated that in his opinion Mr. Singh was malingering. He went on to say "That's my opinion and I am here to defend it, that's how strongly I feel about it." Dr. Bushuk's testimony had a slightly strident air that was out of keeping with his position as a DAC assessor, but his clinical findings and the inconsistencies he documented cannot be ignored, particularly given that his findings are corroborated by others.

I was particularly impressed with the evidence of Dr. Patcai, a physiatrist who conducted an IME in the spring of 1996. After conducting a physical examination, Dr. Patcai could not find any physiological reason for Mr. Singh's limitations, however, he noted "severe cognitive decomposition." Dr. Patcai listed the possible causes as: overmedication, depression, and malingered pretense. After his examination, Dr. Patcai was sent copies of the surveillance videos. In a supplementary report he stated that Mr. Singh's clinical presentation was inconsistent with the video tape, heightening the likelihood of malingered pretense.

Dr. Patcai’s file contained a copy of a letter he had drafted to the Ministry of Transportation advising that Mr. Singh was not fit to operate a motor vehicle. For some unexplained reason, Dr. Patcai did not send the letter. After reviewing the video tape, Dr. Patcai changed his mind and decided not to send the letter. Mr. Sawhney asks that I draw a negative inference concerning Dr. Patcai’s credibility.

The issue of physicians reporting a patient to the Ministry is a difficult one, as is evidenced by Dr. Isaac’s testimony. Dr. Isaac stated that he did not report the matter to the Ministry because he did not think that Mr. Singh had ready access to a vehicle and because he thought that the odd occasion when Mr. Singh did drive was therapeutic. Despite the fact that Dr. Patcai failed to explain why he did not send out the letter initially, I do not draw the adverse finding on his credibility that Mr. Sawhney urges me to.

One of the most damning examples of inconsistent behaviour is recorded by Dr. Jimenez in a report prepared in the fall of 1996. Mr. Singh was sent to Dr. Jimenez by his family physician. As was usual during this period, Mr. Singh used his cane during the examination. He was able to get up on an exam table and to lie down but only with an "unusual pattern of movements of the trunk and extremities." After the conclusion of the examination, Dr. Jimenez observed Mr. Singh in the parking lot, carrying, rather than using his cane. Dr. Jimenez also observed Mr. Singh get into a waiting car without any unusual movement and demonstrating full flexion of his trunk, hips and knees.

Despite this and other inconsistencies noted during the examination, Dr. Jimenez concluded that there was evidence of a chronic pain syndrome. After reviewing the surveillance video tapes, Dr. Jimenez retracted the diagnosis.

The observations of the above doctors must be contrasted with the reports of Dr. Kachooie and the evidence of Dr. Isaac, Mr. Singh's family physician, both of whom supported the Applicant's claim.

In the face of the balance of the evidence, I place little weight on Dr. Kachooie’s reports. Despite an initial report suggesting that there was evidence of only minor injury, the notation that the significant guarding demonstrated by Mr. Singh did not correlate with his clinical findings, and the conclusion that there was a significant amount of functional overlay, Dr. Kachooie treated the patient quite aggressively over a number of years, without adequate explanation. In fact, I note that at one point, Dr. Isaac questioned the wisdom of some of Dr. Kachooie’s treatment. One diagnosis in particular is suspect. In his last report Dr. Kachooie diagnoses a rotator cuff injury in the left shoulder, without any clear indication of the mechanism of injury, and despite the absence of any muscle wasting, and in the face of the purported use of the cane in the left hand.

With respect to Dr. Isaac, he has seen Mr. Singh over a considerable period of time and his evidence must be carefully considered. He testified that in general his patient’s behaviour has been consistent. His clinical notes and records contain one specific reference to observing Mr. Singh on the street, and noting that his behaviour was consistent with that displayed in the doctor’s office. However, reading the doctor’s notes as a whole, and listening to his evidence, one is left with the impression that Dr. Isaac has been struggling for some time trying to find an explanation for Mr. Singh's extreme behaviour. On one occasion the doctor notes in his record that Mr. Singh appears to do more when he is not observed.

Dr. Isaac’s comments regarding the video are also noteworthy. Initially Dr. Isaac stated that he had reviewed the video tapes and saw nothing in them that was inconsistent with what Mr. Singh demonstrated in the examining room. When pressed on cross-examination, he admitted that the ability to stoop and bend demonstrated in the video shot in the garage was beyond anything Mr. Singh demonstrated while being examined. When this comment is taken in conjunction with the clinical note indicating that Mr. Singh did more when unobserved, I find that notwithstanding the general view expressed by Dr. Isaac, Mr. Singh has exaggerated his physical difficulties when being examined by Dr. Isaac.

More generally, I must also conclude that Mr. Singh is intentionally exaggerating his other physical difficulties. The better part of the medical evidence suggests that Mr. Singh's complaints and self-reported limitations are inconsistent with clinical findings, and the surveillance. As noted above, some doctors have gone so far as to conclude that Mr. Singh's presentation is likely explainable by a diagnosis of malingered pretense.

(e) Conclusion on disability

In reaching the conclusion that Mr. Singh has exaggerated his physical and psychological complaints, I do not intend to suggest that Mr. Singh has not had difficulty getting over the effects of the accident, nor that he does not continue to suffer the lingering effects of his injuries. A number of lay witnesses were called to testify to the fact that Mr. Singh is a changed man. Mr. Singh's sister spoke tearfully of the changes she has seen in her brother. A woman who shared the basement apartment with Mr. Singh testified that she had to help care for him, and that he did not seem like a well person. She testified that on a number of occasions she had seen him sitting and weeping, and that he would not feed himself if left unattended. Friends of Mr. Singh testified that since the accident he no longer participates in religious and social events as he used to. In general, the lay witnesses testified that from their observations, they believe that Mr. Singh continues to experience pain, that his usual habits are changed, that he is withdrawn and antisocial, and that he appears to have numerous physical limitations. Some of the specifics, particularly as they relate to physical limitations, must be questioned in light of the other evidence, but in general I accept that the accident has changed Mr. Singh's life.

The fact that I accept the accident has had a deleterious effect on Mr. Singh is insufficient to establish entitlement to an income replacement benefit. To establish entitlement, Mr. Singh must demonstrate that his limitations are such that he suffers a substantial inability to perform the essential tasks of a taxi driver. To meet that test, the Applicant must first present credible evidence sufficient to allow me to determine the true extent of his limitations. By consistently exaggerating his difficulties, Mr. Singh has undermined the value of his own evidence and that of the witnesses called on his behalf, to such an extent that I do not find it reliable. Without reliable evidence, Mr. Singh’s claim for an ongoing income replacement benefit cannot succeed.

Quantum:

I go on now to consider the question of the proper amount of the income replacement benefit.

As noted earlier in these reasons, Mr. Singh was disabled as a result of an accident in 1992, and had not returned to driving a taxi until March 1, 1994, approximately a month before the accident we are concerned with. Mr. Singh told Ms. Locke that he worked 7 days per week, that he paid $65 per shift to the owner of the cab and that sometimes he cleared $200 a shift. He later presented the Insurer with "run sheets" in which he recorded that over 29 days he collected $5,788.80 worth of fares.

Mr. Singh was self employed. It appears however, that both Mr. Singh and the Insurer's representatives treated him as an employed person. Mr. Singh, prepared an Employer’s Confirmation of Income form which he presented to Mr. Peter Singh, the owner of the taxi company, for his signature on July 4. Under the heading "Applicant's Income in the four weeks preceding the accident," Mr. Singh recorded a salary of $5,788.80, which coincides with the total charges recorded on the run sheets.

Mr. Singh's tax return for 1994 was prepared by a bookkeeper, and filed in the summer of 1995. It showed a net income of $3,312.90 on gross revenues of $5,960.60. The slight difference between the gross revenue on the income tax return and the run sheets provided to the Insurer is likely accounted for by the fact that Mr. Singh started driving a taxi on March 1, 1994, but for some unexplained reason the run sheets provided to the Insurer start on March 2.

A review of the tax return reveals that Mr. Singh's net income is slightly more than 50 percent of his gross revenue. It is worth noting that in 1992 when Mr. Singh also drove a taxi, his net income was again slightly more than 50 percent of his gross revenue.

Mr. Peter Singh indicated in a statement given to Ms. Locke on May 16, 1994, that the drivers keep their run sheets, so he could not say precisely what the Applicant earned, but that most of his drivers earned $90 or $100 per shift. He reiterated this information in a second statement given nine days later.

The Insurer spent considerable time attacking the validity of the run sheets. The Insurer retained Mr. Daniel Edwards, a forensic accountant with Coopers and Lybrand, to review the run sheets. Mr Daniels compared a number of trips of similar length and found what he described as significant discrepancies in the fares charged. Likewise, Mr. Edwards compared trips of comparable duration and again found significant discrepancies in the fares. In addition, Mr. Edwards identified a number of trips to destinations that he thought unusual given the late hour of the trip. Mr. Edwards recommended that the run sheets not be relied upon, as he did not believe that they were legitimate business documents.

In anticipation of the hearing, Mr. Edwards had his staff perform a further analysis of the run sheets. Mr. Edwards analysed the meter readings as recorded on the run sheets, for both the night and day shifts. (Mr. Singh drove the night shift, but because the taxi was operated 24 hours per day it was possible to analyse both shifts). Mr. Edwards found that on the day shift the run sheets recorded a fare of exactly $200 on 12 of the 28 shifts. All of the other fares ended in exact figures (no change). In addition he found that on 9 of the 28 shifts, the distance travelled was exactly 200 kilometres. Mr. Edwards opined that the chances of these coincidences occuring randomly was mathematically improbable. Mr. Edwards suggested that the "coincidences" occurred because an unsophisticated person manufacturing the run sheets found it easier to "create" the night shift figures by adding round figures to the day shift tallies, thinking that someone looking at the night shift would not be concerned with the day shift numbers.

Mr. Singh's explanations on cross-examination were not convincing. At one point he suggested that the divergence in the fares might be accounted for by the inclusion of tips. However, a review of the run sheets shows that the fares collected correlate with the metre readings, which indicates that the tips were not included in the recorded fares.

Mr. Singh also suggested that customers might have cheated him by asking him to wait while they went in to a coffee shop and then did not return. I am sure this happens more often than one would like to think, but I find it improbable as a generalized explanation for the variations. The two main attacks on the legitimacy of the run sheets deserve separate comment.

I start with the divergence in the fares for similar trips. The evidence indicates that Mr. Edwards has plenty of experience reviewing run sheets. However, I am not satisfied that he has laid the groundwork or has the expertise necessary to opine on the variation in fares. The amount of a fare is a function of a combination of both time and duration. In my view, before concluding on the basis of the variation in fares, that the run sheets were illegitimate, Mr. Edward's analysis would have to be supported by an individual able to give expert evidence concerning the computation of taxi fares. In that regard I note that Mr. Edwards was careful to limit his comment to "I would not have expected such a divergence."

I find more persuasive the coincidences with respect to the number of days that exactly the same fares were collected or the same distances were travelled. I accept Mr. Edward’s opinion that the mathematical probability of this occurring randomly is "incredible" in its literal sense.

I find that the run sheets were created after the fact and are not reliable evidence of the fares collected by Mr. Singh.

In reaching this conclusion, I also note that Mr. Singh did not deliver them to the Insurer at the time of his first interview with Ms. Tait. Mr. Singh knew of the importance of his run sheets, because he was asked to produce them to his Insurer after his first accident. In light of this, I would have expected him to deliver them to the Insurer at the first opportunity. In the absence of any explanation for the delay, I infer that the reason was that they did not exist at the time of his initial contact with the Insurer.

Being unable to rely upon the run sheets, I turn to the evidence of the owner, Mr. Peter Singh. As will be recalled, he indicated in a statement to the Insurer that he believed that most drivers earned in the order of $90 to $100 clear per shift. In light of the discrepancies in the Applicant's evidence, I choose the lower of the two figures. Mr. Peter Singh's statements infers that most drivers work 5 shifts per week, but that some work 6 or 7. Again I choose the lowest of the figures.

Prior to retaining Mr. Edwards, the Insurer assessed Mr. Singh's benefit at $97.76 per week based upon a net weekly income of $108.62. Mr. Ferritto testified that Ms. Tait relied upon the figures reported in the Employer's Statement of Income and that the calculation was based upon Mr. Singh having elected to have his benefit calculated on the basis of his income over 52 weeks.

Without the benefit of Ms. Tait's evidence it is impossible to know exactly what she did. It would appear that she took the figure of $5,788.80 reported in the Confirmation of Income form, as net income and divided it by 52 weeks. This results in a slightly different figure than what was actually paid, but I cannot discern any other method, and none was suggested by counsel.

The suggestion by Mr. Ferritto that Mr. Singh voluntarily chose a calculation based upon his income over 52 weeks is untenable. There is no documentation to support this suggestion, and it is inconceivable that anyone who had started working just four weeks before the accident, and had no income in the preceding year would elect 52 weeks, unless he has been misled.

More importantly the method employed by Ms. Tait ignores the applicable provisions of the Schedule. Section 9(3) provides that if the individual commenced self employment at any point in the 52 weeks preceding the accident, they may extrapolate the income for the period they actually worked, over the course of the year.

In the circumstances I have applied section 9(3) to Mr. Singh's situation. That being the case, Mr. Singh's benefit is $405 per week. This calculation is based upon a net salary of $90 per day multiplied by 5 days per week, for a net salary of $450 per week. Ninety percent of that salary translates to a benefit of $405 per week. The Applicant was paid $185. He is entitled to the difference.

Repayment of Income Replacement Benefits:

Section 70(1) provides that a person shall repay a benefit paid by reason of error, wilful misrepresentation, or fraud. To succeed, the Insurer must establish two things. First, that an error (attributable to the insured) wilful misrepresentation or fraud has occurred. Second, that the error, misrepresentation or fraud resulted in the insured receiving a benefit he would not otherwise have been entitled to receive. The onus of proving these matters falls upon the Insurer.

For the first year or so there is little evidence to support the Insurer’s contention. The Insurer did not seek to conduct an IME until the summer of 1995, and the surveillance prior to May of 1995 was inconclusive.

The surveillance conducted in May of 1995, is more probative. Based in part upon this surveillance, I have concluded that as of that date forward Mr. Singh has greatly exaggerated his difficulties. In this sense Mr. Singh has wilfully misrepresented his condition. However, before the Insurer is entitled to a repayment, it must be established that the misrepresentation resulted in the payment of benefits to Mr. Singh that he was not entitled to receive. In effect, the Insurer must establish that Mr. Singh was not disabled. Because the Applicant misrepresented the true state of his physical limitations, does not necessarily mean that he was not in fact disabled. I have denied benefits beyond the delivery of the DAC report on the basis that Mr. Singh had the onus at that point to prove ongoing disability, and that he failed to present credible evidence upon which such a finding could be made. But the obverse is not automatically true. The Insurer must still present sufficient evidence to discharge the onus of establishing prior to that date, that Mr. Singh was not disabled. In this case the evidence available prior to the release of the DAC assessment in January 1996, is in my view insufficient to discharge the onus cast upon the Insurer.

Supplementary Medical and Rehabilitation Benefits:

The outstanding supplementary benefits at issue in the hearing were sent to the Insurer by Mr. Sawhney on May 16, 1994, approximately four months prior to the commencement of the hearing. It was obvious from the outset of the hearing that some of these expenses had in fact been paid, but neither counsel was in a position to indicate what was in fact outstanding. During the interval between end of the first four days of hearing and its recommencement in February 1997, Mr. Ferritto arranged for the list to be cross referenced against the Insurer's payment log. Ms. Dickinson prepared a memo setting out which expenses had been paid and which had not. Her memo to Mr. Ferritto and his letter to Mr. Sawhney forwarding the memo were introduced as an exhibit. There were further discussions concerning these claims at the commencement of the third session of the hearing, but I heard no evidence to suggest either that Mr. Sawhney took issue with Ms. Dickinson's accounting, or that the Insurer had subsequently paid any of the remaining claims. I accept Ms. Dickinson's memo as an accurate account of the outstanding benefits.

Before turning to the list, a few general comments are called for. First, the Insurer ignored a number of early recommendations by Mr. Singh's family physician and specialists. Most of those treatments are not before me now. One particular treatment, however deserves attention, because it illustrates the manner in which the Insurer approached Mr. Singh's requests. A TENS machine was prescribed to deal with Mr. Singh's back pain. The Insurer indicated that they would pay for the rental for one or two months, but that they would not put up the $200 deposit. During cross-examination, Mr. Ferritto reiterated that this was indeed the Insurer's position. The Insurer's position is untenable. Without payment of the deposit, the Applicant could not obtain the machine, and hence the offer to pay the rental was meaningless.

I turn now to the list prepared by Mr. Sawhney.

(i) Acupuncture and Laser Therapy

The account submitted by Mr. Sawhney included an interest charge of $111.97. There being no evidence to contradict the statement that the account was paid within a few days of being submitted to the Insurer, the claim for interest fails.

(ii) Travel

Despite the fact that it was apparent that Mr. Singh travelled to some appointments by car, to others by bus and to some by taxi, Mr. Sawhney indicated that he was seeking payment of travel expenses to and from all appointments, based upon the cost of a taxi fare. The summary of expenses provided by Mr. Sawhney, groups travel claims by the doctor visited and by year, but there is no indication if the expense incurred are for mileage, taxis fares or bus fares. In June of 1995, the Insurer issued an Assessment of Claim form requesting details of the length of the trips. Mr. Ferritto testified that such details were never provided. Correspondence between Mr. Sawhney and Mr. Ferritto indicates that Mr. Ferritto was also requesting proof of payment for those trips taken by bus.

I received virtually no viva voce evidence supporting the travel expenses, other than an indication from Mr. Singh that it hurts his back to ride the bus, and that he has to stand throughout the trip.

The surveillance evidence shows that Mr. Singh is capable of riding a bus, in fact, in a number of cases he is seen to be dropped off by his ex-wife or friends at bus stops in rather unusual circumstances. I accept that on some occasions a taxi trip would be merited, and where receipts are available the Insurer should reimburse Mr. Singh. Mr. Singh arranged to have a car registered in his name shortly after the accident, and he may have used this vehicle to go to and from some appointments. There was also evidence that friends drove him to appointments on occasion. These claims should also be paid, but only upon presentation of the round-trip distances, as requested in June 1995.

As is noted by Mr. Sawhney, the Insurer had an OHIP summary and thereby had the means to verify the dates of the appointments. The request for proof of a bus trip is unreasonable in the circumstances.

Unfortunately, given the paucity of evidence on the travel expenses, I cannot be more specific in my comments. I remain seized of this issue if it cannot be resolved.

(iii) Prescriptions

Ms. Dickinson's memo indicates that, with a couple of small exceptions, the prescriptions submitted prior to Mr. Sawhney's letter of May 1996, were paid. Mr. Sawhney's letter contained photocopies of a number of further prescriptions. Ms. Dickinson's memo indicates the outstanding total is $1,024.02. Mr. Ferritto refused to pay the outstanding charges until such time as the original receipts were delivered. Mr. Sawhney was not prepared to deliver the originals. He did offer to meet with Mr. McCorriston in the interval between the end of the first session and the commencement of the second, at which time the Insurer could have satisfied itself that the originals existed. Relations between Mr. Sawhney and the Insurer were very strained. For example, when Mr. Sawhney was retained, the Insurer initially refused to provide him with a copy of his client's files without proper justification.⁵ In the circumstances of this case I do not blame Mr. Sawhney for his reluctance to hand over the originals, and I find Mr. Ferritto's refusal to pay the outstanding charges unreasonable. The sum of $1,042.02 is owing.

(iv) Medical Reports

Seventy dollars is claimed for charges paid by Mr. Sawhney for photocopies of Dr. Isaac's chart. These were charges which are legal in nature rather than supplementary medical expenses. They are more properly included as part of the Applicant's claim for arbitration expenses.

(v) Pool Therapy

Ms. Dickinson’s note indicates that no receipt was supplied. Until a receipt is delivered the Insurer is justified in withholding payment.

(v) Taxi expenses to IME

Mr. Sawhney's letter to Mr. McCorriston enclosed a photocopy of a taxi receipt paid by Mr. Sawhney personally for the return trip from Dr. Sood's office. This expense should have been paid at the time. If Mr. Sawhney has not been reimbursed, he should be paid immediatly.

Attendant Care Expenses:

Mr. Singh's counsel indicated that his client is seeking an order for ongoing attendant care expenses.

Mr. Singh gave some very general evidence concerning the care provided by others. He indicated that he has trouble washing and dressing and that in the past his sister had to help with both. He stated that he is unable to tie his turban, and that on the odd occasion when he has worn one, it had to be tied by friends. Mr. Singh’s sister and the woman who shares the basement with him testified that his meals were prepared by his sister and brought down to him. His sister indicated that she washed his clothes.

I received very little evidence concerning what assistance Mr. Singh received with domestic chores before the accident.

The claim for this benefit is based upon Mr. Singh’s physical limitations. As I have said before, I am unable to ascertain the true extent of Mr. Singh’s physical limitations, and believe his present difficulties to be greatly exaggerated. I am however satisfied that Mr. Singh would have needed some limited assistance for a brief period of time after the accident. I award Mr. Singh two hours per day for two months, to be paid at the minimum wage in effect at the time.

Special Award and Interest:

Section 282(10) of the Insurance Act requires the imposition of a special award in circumstances where a benefit has been unreasonably withheld. Arbitrator Palmer held in Plowright and Wellington Insurance Company,⁶ that excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour is "unreasonable" within the meaning of section 282(10). This definition has been widely followed, and I adopt it. In addition, I would add that a special award is called for where an i nsurer delays paying a benefit for a significant period of time, particularly where no addequate explanation is provided for the delay.

In this case I am convinced that Mr. Singh's conduct notwithstanding, a small special award is justified for two reasons. The first relates to the fact that the Insurer did not begin to pay a weekly benefit for almost a year, without adequate explanation. The second relates to the refusal to pay a number of supplementary medical and rehabilitation expenses.

I will deal first with the delay in paying the weekly benefit. To understand my reasoning it is important to keep in mind that income replacement benefits are designed to replace the injured person's lost wages, and consequently it is vital that the insurer responds to a request for such benefits immediately. Subsections 62(1) and (4) require payment of weekly benefits within 14 days of receipt of the Application. The only explicit exception occurs when an insurer responds to the application by insisting that the insured attend for a medical examination.

Within a couple of months of the accident, the Insurer had conducted two interviews with Mr. Singh, and two interviews with representatives of the taxi company. It also had in its possession, a medical certificate, an employer's certificate and a statement from the employer, and an authorization to permit it access to the Insurer's file pertaining to the earlier accident. During the course of the second interview with Mr. Singh, he complained that he was no longer receiving physical therapy and was in need of money. Notwithstanding this complaint, the Insurer did not start to pay a weekly benefit, nor did they provide Mr. Singh with an assessment of claim form setting out the reason for their refusal to pay benefits. In the months that followed, the Insurer refused to give Dr. Isaac a clear indication of its intentions, and showed no interest in discussing the matter with Mr. Sawhney until after he filed for mediation.

It is important to note that during cross-examination, Mr. Ferritto admitted that during the first year the Insurer was not challenging the fact that Mr. Singh was disabled. He listed the company’s concerns as follows: inconsistencies in the employment information, the potential that another insurer might be responsible for responding to the claim, and causation. However, most of the Insurer’s investigation (other than surveillance) was conducted in the first few months, and little that the Insurer did over the winter addressed the concerns ennumerated by Mr. Ferritto. Particularly important is the fact that the Insurer did not advise Mr. Singh or his counsel of the nature of their concerns or ask for further information.

I am satisfied that the truth of the matter is that the Insurer had generalized concerns about the legitimacy of Mr. Singh’s claim and was putting off the Applicant as they tried to build a case to deny benefits, through surveillance.

In hindsight, the Insurer had good reason to doubt Mr. Singh and there is a superficial attraction to excusing the Insurer's conduct on the basis of a post facto explanation. There is no doubt that a claim for a special award must be examined in the context of the Applicant’s behaviour, but the inquiry must focus on whether or not the Insurer’s refusal or delay was justified on the basis of the information available at the time.

Nothwithstanding Mr. Ferritto’s testimony that it is not unusual for insurers to wait a year before paying benefits, if they have concerns, I am satisfied that the Insurer’s delay in paying a benefit until after Mr. Sawhney applied for mediation was unreasonable, particularly in light of the Insurer’s refusal to state the reasons for not paying. An Insurer cannot respond to a claim by remaining moot. It must do one of two things; either commence paying in accordance with the provisions of section 61, or deliver a notice of assessment setting out the reason(s) why payment is not forthcoming.

In the circumstances, each of the weekly payments was overdue as of July 30, 1994 and every two weeks thereafter. Pursuant to section 68 of the Schedule, the Insurer shall pay interest on each payment at the rate of 2 percent per month, compounded monthly, from the date they became due, until the date of the first payment in the spring of 1995. In addition, the Insurer shall pay a small lump sum as set out at the end of this section.

I turn now to the second ground for the imposition of a special award, namely, the failure to pay certain supplementary medical and rehabilitation benefits.

During the first year the Insurer ignored a suggestion for a treatment programme made by Dr. Samuel who saw Mr. Singh on the recommendation of an assessemnt conducted at the behest of the Insurer. The Insurer also refused to approve funding for treatment recommended by Dr. Isaac. In a number of clinical notes in the fall and early winter of 1995, Dr. Isaac records conversations with representatives of the Insurer who indicated they were still considering the matter and would do their own assessments if they saw fit. At no time did the Insurer request an IME to challenge the validity of Mr. Singh's requests as they ought to have done.

During his examination-in-chief, Dr. Isaac indicated that throughout this period he was extremely frustrated by the refusal of the Insurer to fund what he thought was necessary treatment. During cross-examination, counsel pressed Dr. Isaac for any written requests for treatment funding, and objected to my asking the doctor to review any verbal requests. I see no merit to the position advanced by counsel. Certainly the Insurer would have been within their rights to have asked for a written certificate from Dr. Isaac, but there was no evidence to suggest that they asked for such a certificate, or that they indicated to the doctor that, in the absence of such a certificate, they would not consider any request for treatment funding. In fact, from a review of the doctor's notes it is abundantly clear that the Insurer advised the doctor in no uncertain terms that for the time being, they were not prepared to pay for treatment, and there is no evidence to suggest that if a written request had been made, it would have been treated any differently.

With respect to later claims for relatively minor supplementary medical benefits I conclude that the Insurer’s representatives allowed their conviction that Mr. Singh was trying to obtain an income replacement benefit, when he was not entitled to one, to spill over into areas that should not have been controversial. In that regard, I need only point to the position taken by the Insurer on the TENS machine, and receipts for bus fares, to establish the point.

The Insurer's conduct, to quote Arbitrator Palmer, in this regard was "stubborn, inflexible, unyielding and immoderate." In considering the special award, I also note that this conduct continued throughout the hearing, and manifested itself in a degree of contempt for Mr. Singh that was not called for.

Taking into account the conduct of the Insurer, in light of the Applicant's own conduct, I order a special award of $750 inclusive of interest.

Expenses:

Case law at both the hearing and appellate level has consistently held that a claimant advancing a legitimate claim will be awarded his expenses at first instance, notwithstanding that the claim ultimately fails. In this case, I found that the claim for an income replacement benefit beyond the date of the DAC report failed. I am also satisfied that the extent of the deceit engaged in by the Applicant was such that he should not be entitled to all of his expenses.

However, Mr. Singh was successful with respect to a number of claims, and I have suggested that some of those claims ought to have been settled well before the hearing. In all of the circumstances, Mr. Singh is entitled to all of his disbursements, and one half of his counsel’s fee at the stipulated rate, subject to assessment if that is necessary.

Order:

1. Mr. Singh is entitled to income replacement benefits until January 2, 1996.

2. The amount of Mr. Singh’s benefit is $405 per week.

3. The Insurer is not entitled to a repayment of income replacement benefits.

4. Mr. Singh is entitled to the following supplementary medical benefits.

i) payment of travel expenses to be agreed upon or assessed.

ii) prescription expenses totaling $1,042.02.

5. Mr. Singh is entitled to attendant care benefits for two hours per day for two months at minimum wage.

6. Mr. Singh is entitled to a special award of $750 inclusive of interest.

7. Mr. Singh is entitled to all of his disbursements and half of his counsel's fee at the stipulated rate and half of his counsel's fees at the stipulated rate.

8. With respect to the weekly benefits paid by lump sum in the spring of 1995, the Applicant is entitled to interest from the date each payment fell due until the date the lump sum was paid.

9. Mr. Singh is entitled to interest on all other outstanding benefits in accordance with section 68 of the Schedule.

July 03, 1998

Stewart McMahon Arbitrator

Date

Appendix A

Witnesses:

Mr. Singh

Mrs. Meeran Boyal

Mrs. Kewal Jit Gill

Mr. Iqbal Chahel

Mr. G. Isaac

Dr. Gobinder Ramdhava

Mr. H. Badhan

Mr. Rusty Baubie

Mr. Peter Randkes

Mr. Jack Logiacco

Mr. Robert Gray

Dr. M. Bushuk

Dr. Patcai

Marguerite Locke

Dr. B. Sood

Dr. R. Kakar

Mr. Joseph Ferritto

Exhibits:

Exhibit 1

Insurer's Document Brief

Exhibit 2

Copies of tax returns for 1992, 1993 & 1994

Exhibit 3

Insurer's Medical Brief

Exhibit 4

By-law 20-25, Schedule 8

Exhibit 5

Surveillance video tapes

Exhibit 6

OHIP summary

Exhibit 7

Letters from the Accident Injury Management Clinic to Insurer's counsel dated September 10, 11, 12, 1996

Exhibit 8

Curriculum vitae of Dr. Michael Brian Bushuk

Exhibit 9

Report of Dr. Sood dated either Sept. 13 or 18, 1996

Exhibit 10

Reports of Rapid Investigation Services Inc. dated September 11, November 19 and December 31, 1996

Exhibit 11

Disability interview forms - general, income, employment signed by Applicant dated May 9, 1994

Exhibit 12

Clinical notes and records of Dr. G. Isaac

Exhibit 13

Clinical notes and records of Dr. Kachooie

Exhibit 14

Notices of Assessment for taxation years 1992, 1993 and 1994

Exhibit 15

Report of Dr. R. Kakar dated September 12, 1996

Exhibit 16

Report of Dr. Jimenez dated September 10, 1996

Exhibit 17

32 pages of receipts for medication

Exhibit 18

Invoices of Dr. Isaac dated February 28 and May 24, 1995

Exhibit 19

City-Peel Intercab invoice dated September 5, 1996

Exhibit 20

a) bound Brief of Correspondence

b) bundle of correspondence from Dec. 23, 1994 up to Sept 27, 1995

Exhibit 21

Note of Dr. Langdon of November 22, 1996 and Scarborough Gen. Hospital, Discharge record

Exhibit 22

Summary prepared by Mr. Randles of videos

Exhibit 23

Map of Metro Toronto 1995/96 CAA edition

Exhibit 24

Report of Dr. Jose Jimenez dated May 28, 1997

Exhibit 25

Report of Dr. M. Bushuk dated November 4, 1995 and accompanying clinical note

Exhibit 26

Scarborough General Hospital record for attendance on November 20, 1996

Exhibit 27

Letter from M. Locke to the Applicant dated May 10, 1994

Exhibit 28

Letter from IMS to M. Locke dated November 3, 1994 and fax by M. Locke to S. Tait dated November 4, 1994 attaching letter from IMS.

Exhibit 29

Letter from M. Locke to IMS Ltd. dated November 10, 1994

Exhibit 30

Letter from IMS to Applicant dated November 15, 1994 cc: M. Locke, Dr. Isaacs, and Diamond & Diamond

Exhibit 31

Series of letters from M. Locke’s file

Exhibit 32

Notices of Assessment (see exhibit 20b) - these complete the Application.

Exhibit 33

Letter from Mr. Ferritto to Applicant's counsel with appended memo and list of expenses

Exhibit 34

Letter from D. Fisher to Insurer's counsel with appended adjuster’s notes

Appendix B

Section 64 of Ontario Regulation 776/3 and amended by Ontario Regulation 635/94 Applicable to accidents occurring on or after January 1, 1994

Stoppage in Weekly Benefits

64.-(1) An insurer shall not stop payment of weekly benefits under Part II, section 15, Part IV or Part V on the ground that the insured person no longer suffers from the disability in respect of which the benefits are paid, except in accordance with this section.

(2) An insurer may, as often as reasonably necessary, give an insured person a notice requiring the person to provide the insurer with a certificate from a health practitioner of the insured person's choice stating that the insured person continues to suffer from the disability in respect of which weekly benefits are paid under Part II, section 15, Part IV or Part V.

(3) The insurer may stop payment of the weekly benefits thirty days after the insured person receives the notice unless, before that date, the insured person provides the insurer with a certificate from a health practitioner of the insured person's choice stating that the insured person continues to suffer from the disability in respect of which the benefits are paid and the notice referred to in subsection (2) shall inform the insured of this information.

(4) If an insurer stops payment under subsection (3) and the insured person subsequently provides the insurer with a certificate from a health practitioner stating that the insured person continues to suffer from the disability in respect of which the benefits were paid, the insurer shall,

(a) resume payment of the benefits; and

(b) pay any benefits that were not paid.

(5) If the insured person provides the insurer with a certificate under subsection (3) or (4), the insurer may, on notice to the insured person, require the insured person to be examined by,

(a) a health practitioner of the insurer's choice; or

(b) a person selected in accordance with subsections (11) and (12).

(6) An examination under clause (5)(a) by a health practitioner of the insurer's choice shall be scheduled by the insurer and, for that purpose, the insurer shall make reasonable efforts to schedule the examination for a time that is convenient for the insured person and shall provide the insured person with reasonable notice of the examination.

(7) The health practitioner who conducts an examination under clause (5)(a) shall prepare a report and provide a copy of the report to the insurer and to the insured person.

(8) If a report under subsection (7) states that the insured person is no longer suffering from the disability in respect of which the benefits are paid, the insurer may give the insured person notice that the insurer will stop paying the benefits on a date specified in the notice and the notice shall provide the information contained in subsections (9) to (12).

(9) The insurer may stop payment of the weekly benefits on or after the date specified in the notice unless the insured person gives the insurer written notice that he or she wishes to be examined by a person selected in accordance with subsections (11) and (12).

(10) Despite subsection (9), the insurer shall not stop payment earlier than fourteen days after the insured person received the notice under subsection (8).

(11) If the insurer gives a notice under clause (5)(b) or the insured person gives a notice under subsection (9), the insurer and the insured person shall endeavour to agree on a health practitioner to conduct the examination.

(12) If the insurer and the insured person cannot agree on a health practitioner to conduct the examination within fourteen days after the insured person received notice from the insurer under clause (5)(b) or within fourteen days after the insurer received notice from the insured person under subsection (9), the examination shall be conducted by the designated assessment centre nearest to the insured person that is authorized to assess impairments of the type sustained by the insured person.

(13) If the examination is required to be conducted by a designated assessment centre,

(a) the insurer shall, within fifteen days, notify the designated assessment centre; and

(b) the centre shall promptly notify the insured person and arrange for the examination.

(14) For the purpose of the examination,

(a) the insured person and the insurer shall provide the person or persons who conduct the examination with such information as is reasonably necessary; and

(b) the insured person shall submit to such reasonable physical, psychological and mental examinations as are requested by the person or persons who conduct the examination.

(15) After conducting the examination, the person or persons who conducted the examination shall prepare a report and provide a copy of the report to the insurer and to the insured person.

(16) If the report states that the insured person is no longer suffering from the disability in respect of which the weekly benefits are paid, the insurer may stop paying the benefits.

(17) If the report states that the insured person continues to suffer from the disability in respect of which the weekly benefits are paid, the insurer may dispute the obligation to pay the benefits in accordance with sections 279 to 283 of the Insurance Act and, pending resolution of the dispute, the insurer shall pay the benefits.

(18) Nothing in this section prevents an insured person from disputing a stoppage in the payment of weekly benefits in accordance with sections 279 to 283 of the Insurance Act and, if it is finally determined that payment of the benefits should not have been stopped, the insurer shall,

(a) resume payment of the benefits; and

(b) pay any benefits that were not paid.

(19) If the insured person fails or refuses to submit to an examination under subsection (5) or (9), the insurer may withhold payment of the weekly benefits until the person submits to the examination and, when the person submits to the examination, the insurer shall,

(a) resume payment of the benefits; and

(b) pay any benefits that were not paid.

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.
2. 2The entire text of section 64 is set out in Appendix B to this Decision.
3. 3The Insurer's representative referred in her correspondence to section 65. When the Schedule was promulgated, section 64 dealt exclusively with exams related to weekly benefits. Section 65 dealt with all other exams. The Schedule was amended in December 1995, in such a way that all exams were dealt with in section 65. This accident occurred prior to the amendments. Accordingly section 64 is the relevant section.
4. 4(July 23, 1997), OIC P-00064
5. 5The Insurer wrote to Mr. Sawhney stating that the authorization from his client was inadequate. I have reviewed the authorization and find it to be sufficient.
6. 6(October 29, 1993), OIC A-003985