Neutral Citation: 1998 ONICDRG 56, 1998 ONFSCDRS 56

FSCO A96-001499

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DESMOND MCLENNON

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Desmond McLennon, was injured in three motor vehicle accidents on May 8, 1995, July 14, 1995 and November 10, 1995. He applied for and received statutory accident benefits from Pilot Insurance Company ("Pilot"), payable under the Schedule.¹ Pilot terminated weekly income replacement benefits on August 21, 1995. The parties were unable to resolve their disputes through mediation, and Mr. McLennon applied for arbitration at the Financial Services Commission of Ontario² 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 at the rate of $185 a week beyond August 21, 1995 and continuing?

2. In the alternative, is the Applicant entitled to caregiver benefits in respect of the accident of November 10, 1995?

3. Is the Applicant entitled to supplementary medical benefits for chiropractic services in the amount of $10,295.98?

4. Is the Applicant entitled to supplementary medical benefits for prescription medication in the amount of $1,605.15?

5. Is the Applicant entitled to transportation expenses?

6. Was the Insurer obliged to make the Applicant a written offer of loss of earning capacity benefits?

7. Is the Insurer entitled to repayment of the $15,000 in settlement funds paid to the Applicant?

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

Result:

1. The Applicant is entitled to income replacement benefits at the rate of $185 a week from August 21, 1995 until January 8, 1996, for a total of $3,700, plus interest. In addition, the Applicant is entitled to a special award in the amount of $1,800, plus interest.

2. The Applicant is not entitled to caregiver benefits.

3. The Applicant is not entitled to reimbursement for outstanding chiropractic expenses.

4. The Applicant is not entitled to reimbursement for prescription medication.

5. The Applicant is not entitled to reimbursement for travel expenses.

6. The Insurer was not obliged to make the Applicant an offer with respect to loss of earning capacity benefits.

7. The income replacement benefits, and the special award, plus interest, are set off against the $15,000 settlement funds already paid by the Insurer. The Insurer is entitled to repayment of the remaining amount.

The Applicant is not entitled to his expenses. The Insurer is entitled to its expenses.

Preliminary Matters:

At the commencement of the hearing, the Applicant raised several issues which were disputed by the Insurer. I ruled that the following issues were not properly before me: quantum of loss of earning capacity benefits, if any, future benefits in the amount of $1,300,000, future medical rehabilitation benefits in the amount of $500,000, out-of-pocket expenses in the amount of $5,000, childcare expenses in the amount of $11,450, lost contracts in the amount of $39,044.80, and the cost of a replacement vehicle in the amount of $43,000. I advised the parties that I would determine whether the Applicant was entitled to income replacement benefits at the 104- week mark, but that I would not determine the quantum of such benefits until sections 20 to 23 of the Schedule have been complied with, if necessary. I declined to rule on future income replacement or medical rehabilitation benefits. I ruled that out-of-pocket expenses, lost contracts and replacement costs of a vehicle, did not appear to be payable under the Schedule and have not been mediated. The Applicant had previously agreed in mediation that childcare expenses would not be pursued.

Evidence and Findings:

Mr. McLennon was a 51-year-old married father of three at the time of the motor vehicle accidents. He had recently started a paralegal business after several years of unemployment. On May 8, 1995 Mr. McLennon's car was rear-ended. He was able to drive himself home, but he experienced pain in his low back and neck, as well as headaches. He sought treatment from his family doctor and began seeing a chiropractor. While still recovering from this accident, his car was again struck from behind, exacerbating his neck and back pain, as well as the headaches. He drove himself home, sought treatment with his family physician, and continued chiropractic treatment. On November 10, 1995, his car was struck on the driver's side at the front. Following this accident, he felt an exacerbation of the pain in his neck and back and experienced the onset of pain in the chest and shoulders. Several hours later he attended at the hospital and was discharged with a cervical collar. Mr. McLennon continued to see his chiropractor and continued to complain of pain in the neck, the low back and shoulders. He also experienced headaches, confusion, difficulties concentrating and had memory problems. He asserted that his pain prevented him from returning to his pre-accident employment as a paralegal. Mr. McLennon received income replacement benefits at the rate of $185 per week for the period May 15, 1995 to August 21, 1995. In addition, chiropractic treatments were paid until September 30, 1996.³

1. Income Replacement Benefits Beyond August 21, 1995

In order to establish entitlement to income replacement benefits under section 7 of the Schedule, Mr. McLennon must establish that he suffered a substantial inability to perform the essential tasks of his pre-accident employment as a result of an impairment sustained in the motor vehicle accidents.⁴

A. Pre-Accident Medical and Vocational Situation

Mr. McLennon had serious longstanding pre-existing medical problems prior to the first motor vehicle accident.⁵ My task is to determine, on a balance of probabilities, what Mr. McLennon's functional capabilities were prior to the accident, and whether and to what degree the motor vehicle accidents affected those functional abilities.

In 1980, Mr. McLennon suffered a serious injury when he was struck in the eye by a hockey puck. He continued to suffer from tiredness, weakness, headaches and anxiety as a result of that accident until at least June 1994.⁶ In July 1988, Mr. McLennon was involved in a motor vehicle accident and complained of low back and neck pain until late 1993. His complaints became chronic and his treating physician predicted a permanent problem.⁷ After his lawsuit settled in mid-1992, his complaints began to subside. In 1994, although he continued to have some discomfort, his physical condition improved to the point where he was regularly playing tennis and occasionally working out with a punching bag.⁸ In January 1994, Mr. McLennon presented at the hospital complaining of chest wall pain. It was believed that he had suffered a heart attack and was hospitalized and treated accordingly. Throughout 1994 Mr. McLennon experienced severe anxiety related to his hospitalization and what he perceived as the misdiagnosis and mistreatment of his condition. He was taking Lectopam, an anxiety medication, up to the date of the motor vehicle accident and continued to rely on this medication after the accident.⁹ He continued to suffer from severe anxiety throughout 1995, 1996 and 1997, and this anxiety affected his ability to work.¹⁰

Following the July 1988 accident, Mr. McLennon stopped working as a taxi driver and applied for social assistance benefits on the basis that he was permanently unemployable because of ill health. Based on the medical information provided at that time, his application was accepted and he received benefits until August 1996. At that time, he was found to be no longer eligible because of his wife's income. His medical condition and status as permanently unemployable was never reassessed by the Ministry of Community and Social Services. Nonetheless, in late 1994, Mr. McLennon apparently began feeling well enough to register a paralegal business, Pinnacle Networking and Resources Agency. He obtained the first contract to assist a client with immigration matters in October 1994.

I find that Mr. McLennon had a significant history of neck and low back pain from 1988 until late 1993. Mr. McLennon also had a serious ongoing problem with headaches from 1980 until mid-1994. From 1994, the severity of those symptoms began to subside, leaving him functionally capable of playing tennis, working out, and performing the tasks associated with his paralegal business. Most significantly, I find that Mr. McLennon was suffering from severe anxiety related to his 1994 hospitalization and that anxiety (unrelated to the motor vehicle accidents) continued to trouble him from 1995 to 1997.

B. Essential tasks of a Paralegal

Mr. McLennon gave no evidence in-chief of his duties as a paralegal. In cross-examination, he elaborated slightly that his work involved writing letters on behalf of clients to appropriate authorities (for example, to Immigration Canada on immigration matters), and communicating with clients. He did not testify as to how many hours he worked.¹¹ At best, Mr. McLennon has established that prior to the accident, his duties as a self-employed paralegal involved very light physical tasks, such as walking and typing and talking on the telephone. I accept that representing clients as a paralegal requires the ability to concentrate, remember, and organize arguments.

C. Ability to Perform the Essential Tasks of a Paralegal

Mr. McLennon asserted that he was unable to resume his paralegal business after the various accidents because of pain in his neck, low back, and shoulders as well as because of his headaches, difficulties concentrating, and memory problems.

i) Back, Neck and Shoulder Complaints

Mr. McLennon's physical injuries were solely soft-tissue in nature. Repeated examinations by Mr. McLennon's family doctor and specialists failed to reveal any structural abnormalities in his neck and back. X-rays of the neck and back shortly after the accident in May 1995¹² and November 1995¹³ showed no abnormalities apart from degenerative disc disease, which pre-existed the accident.¹⁴ Subsequent x-rays did show a bulging at the L5-S1 level of the lumbar spine,¹⁵ but this was not considered a significant finding by any of the orthopaedic surgeons.

Although Mr. McLennon made consistent, frequent complaints of low back and neck pain after the first two accidents as well as shoulder complaints commencing after the third accident, there is no organic basis for any limitation of movement in Mr. McLennon's neck, back and shoulders. In cases such as these, where the Applicant's subjective complaints of pain are the sole basis for any finding of functional limitation, credibility is very important.

ii) Credibility

While I accept that Mr. McLennon did experience some pain in his back, neck and shoulders, I do not accept his subjective assertion that his pain levels prevented him from carrying out his duties as a paralegal. I found Mr. McLennon to be an unreliable witness for several reasons.

First, Mr. McLennon tailored his complaints of disability to suit the particular circumstances of his claim. While pursuing a lawsuit against the York Finch Hospital in respect of his 1994 hospitalization and treatment, he portrayed his ongoing inability to work after 1994 and well into 1997 as attributable to the 1994 incident.¹⁶ At the same time, he argued that Pilot should pay for continuing income replacement benefits during the same period, on the basis that his continuing inability to work from May 1995 to the present was due primarily to the motor vehicle accidents.

Second, Mr. McLennon falsely tailored his evidence in proceedings before the Financial Services Commission. Before me, Mr. McLennon persisted in his assertion that settlement funds he received from Pilot in September 1996 were an "advance" and not a settlement. This is contrary to the findings of Arbitrator Friendly in his preliminary decision.¹⁷ A review of that decision demonstrates that Mr. McLennon gave false evidence as to the nature of the settlement discussions.

Third, Mr. McLennon submitted an Employer Confirmation of Income to the Insurer in which he falsely asserted having earned $6,800 in the four weeks before the May 8, 1995 accident.¹⁸ Mr. McLennon has since admitted that his company only earned $3,000, and that he himself only earned $1,700 since the start of the business in October 1994. In my view, the claim of $6,800 in a four-week period goes far beyond mistake or exaggeration and amounts to a deliberate attempt to obtain greater income replacement benefits than he was entitled to.

Fourth, Mr. McLennon continued to assert grandiose claims of loss-of-earning capacity at this hearing. He asserted that he had a loss-of-earning capacity of $,1000 per week and estimated his future lost earnings at over $1,300,000. Mr. McLennon admitted at the hearing that he had no evidence to support the alleged verbal contracts he had entered into with clients totalling approximately $34,000.¹⁹ I find such unsupported assertions indicative of Mr. McLennon's tendency to grossly exaggerate.

Fifth, while asserting to Pilot that he was working full time, 40 hours per week as a paralegal, having earned $6,800, with contracts of $34,000 still to come, Mr. McLennon failed to advise the Ministry of Community and Social Services that he was employed at all. It was only during a periodic review of his entitlement, held in September 1995, that Mr. McLennon advised his caseworker that he had earned $1,700, while working for 4 or 5 days around May 1, 1995! The contrast between these two positions illustrates graphically how Mr. McLennon tailors his evidence to obtain the maximum benefits from different statutory schemes. I am unable to rely on Mr. McLennon's subjective assertion that the pain in his neck, back and shoulders continuously prevented him from carrying out the physically-light duties associated with his paralegal business from August 1995 to the present. Similarly, I am unable to rely on the medical opinions of Mr. McLennon's treating physicians and specialists, whose opinions are based entirely on his subjective reports to them.

Nonetheless, I am prepared to accept that Mr. McLennon continued to be physically disabled beyond August 16, 1995, the date the Insurer terminated benefits. It is reasonable to infer that after each of the three motor vehicle accidents, Mr. McLennon would have suffered an exacerbation of pain sufficient to disable him from working for a short period of time. As the accidents occurred in relatively quick succession, there was scarcely time for Mr. McLennon to recover enough to return to work in between. Following the third accident on November 10, 1995, I accept that Mr. McLennon would have continued to be unable to return to work for some period of time. While it is difficult to estimate a reasonable period of recovery, in light of the three accidents, I would put the recovery time at slightly over eight weeks, or January 8, 1996.²⁰This is consistent with the opinion of Dr. Langer, the orthopaedic surgeon selected by the Insurer to examine Mr. McLennon on November 23, 1995. At that time, Dr. Langer predicted that Mr. McLennon should be able to return to work after another three weeks, approximately by mid-December 1995.²¹ After subsequently reviewing the file in August 1997, Dr. Langer was of the view that Mr. McLennon should have been able to return to work by early 1996.²²

iii) Cognitive Difficulties

Unlike the complaints of his physical limitations, Mr. McLennon's complaints to his family doctor of cognitive difficulties were sporadic. I find Mr. McLennon's subjectively reported complaints of headaches, difficulties concentrating and forgetfulness as unreliable as his assertions of physical disability. The only medical opinion on Mr. McLennon's cognitive ability was Dr. Shah's neuropsychological testing in May 1998, which noted no attention or memory problems. In Dr. Shah's opinion, Mr. McLennon was not cognitively disabled from returning to work.²³

Not only does the medical evidence not support a finding of cognitive inability to perform the duties of a paralegal but also Mr. McLennon's own actions since the 1995 accidents belie his claim of disability. Mr. McLennon has represented himself at various times since his first accident in May 1995. As early as August 1995 he began writing letters to the Insurer. In November 1995, he met with Coopers & Lybrand to provide information about his business. In January 1996, he discussed settlement with Pilot. From that point Mr. McLennon has been actively involved in the management of his claim. He has conducted several telephone conversations, has drafted numerous letters and has communicated with counsel and the Financial Services Commission, performing functions similar to a paralegal. He has also been representing his wife and children in connection with their accident benefit claims against Pilot, arising from the November 1995 motor vehicle accident.

I conclude that at no time was Mr. McLennon cognitively disabled from carrying out his duties as a paralegal, although he was physically unable to return to those duties until January 8, 1996. Accordingly, Mr. McLennon is entitled to income replacement benefits of $185 per week, from August 21, 1995 until January 8, 1996, a period of 20 weeks, for a total of $3,700. In addition, Mr. McLennon is entitled to interest at the rate of 2 percent per month compounded monthly.²⁴

Special Award:

Mr. McLennon requested a special award²⁵ on the basis that the Insurer unreasonably delayed payment of his benefits until July 28, 1995 and unreasonably terminated his benefits on August 21, 1995.

Following the first accident, Mr. McLennon made a claim for accident benefits asserting that he was full-time paralegal who had earned $6,800 in the last four weeks prior to the accident.²⁶Although the application was received by Pilot by May 24, 1995, no payments were made until late July 1995. On July 28, 1995, Mr. McLennon received a check for $2,590, representing 14 weeks of benefits at $185 per week, covering the period from May 15 to August 21, 1995. No explanation of benefits was sent with this check. In keeping with the Insurer's usual policy to verify self-employment income, the Insurer retained Coopers & Lybrand ("Coopers") to verify Mr. McLennon's reported income. By letter dated August 4, 1995, Coopers wrote to Mr. McLennon requesting information and documents to support his reported income from his business. On August 10, 1995, Mr. McLennon wrote to Pilot advising that he would not provide any financial information, that Pilot could do its own search, and that he had no intention of communicating with Coopers.

On August 16, 1995, Pilot sent out an explanation of assessment advising Mr. McLennon that his benefits were terminated immediately,²⁷ because his application did not provide the necessary information to Coopers.²⁸ Mr. McLennon retained legal counsel when he met with an agent of Coopers on November 1, 1995, and provided all the documents he had to support his fledgling business. He explained that the business had been operating less than a year, and that there were no financial statements or business accounts. Although he asserted that he had several verbal contracts with clients, he did not provide any names or telephone numbers of those clients. He did provide one written contract. The only income earned from the business was $3,000 in cash received from two clients in May 1995. Of that amount, $1,700 was paid to Mr. McLennon. Based on the information and documents provided, Coopers, Mr. McLennon, and Mr. McLennon's legal counsel at that time agreed that his documents did not support a claim for weekly income benefits in excess of $185 per week.²⁹ Coopers did not raise any concerns about the possibility of Mr. McLennon continuing to draw income from his business.

At the same time that Pilot was investigating Mr. McLennon's financial claim, it was arranging for him to attend an Insurer's medical examination. On November 23, 1995, Mr. McLennon was examined by Dr. Langer, an orthopaedic surgeon. Dr. Langer found no structural abnormalities and opined that Mr. McLennon had suffered soft-tissue injuries as a result of each of the accidents. He predicted that Mr. McLennon should return to full functioning, and should be able to return to his paralegal work within three weeks (by December 14, 1995).

Notwithstanding this opinion on disability, Pilot declined to pay benefits beyond the August, 1995 termination date on the basis that Mr. McLennon, as a self-employed individual, had failed to satisfy the Insurer that he had suffered a financial loss. Pilot asserted that Mr. McLennon had the onus of establishing that he was not collecting collateral benefits or earning any income from his business, and that he had failed to provide sufficient information to establish that.³⁰

A. Delay in Payment

Section 62 of the Schedule provides that the insurer is required to mail or deliver a weekly benefit that is payable within 14 days after it receives an application for the benefit. Pilot acknowledged receiving Mr. McLennon's application for benefits on May 24, 1995. While I recognize Pilot's need to confirm income, Pilot offered no explanation why it delayed payment of $185 per week until July 28, 1995. Nonetheless, I conclude the delay was not so excessive as to be unreasonable and therefore no special award is payable for the delay in payment.

B. Termination of Benefits

I find that Pilot's decision to withhold benefits beyond August 21, 1995 was unreasonable. How could Mr. McLennon prove that he was not receiving collateral benefits or not receiving income from employment after his motor vehicle accident? He asserted that he was not receiving any income or benefits. He advised Coopers that he had no business bank accounts or other documents pertaining to his business. There were no documents in existence which could have proved that Mr. McLennon was not receiving income, and Pilot has not attempted to prove that he did receive any. Pilot argued that Mr. McLennon's exaggerated claims of income and his initial refusal to provide any financial documents made the Insurer's suspicions of post-accident earnings reasonable. While Mr. McLennon's actions may have contributed to Pilot's well-founded suspicions about the veracity of pre-accident earnings, it does not excuse the Insurer's insistence that Mr. McLennon prove the impossible, that he was not receiving any post-accident income.

I am satisfied that in all the circumstances, a special award of $1,800, plus interest, is appropriate.

2. Caregiver Benefits

I heard no evidence from Mr. McLennon about any responsibility for caregiving activities prior to any of the accidents. Mr. McLennon is not entitled to any caregiver benefits.

3. Chiropractic Benefits

Mr. McLennon sought chiropractic treatment from Dr. T. Kobrossi after the first motor vehicle accident in May 1995 and was treated with a combination of electrotherapy and soft-tissue techniques with some mild exercises. He continued on with these treatments after the second accident from July 1995 until September 25, 1995. He returned to see Dr. Kobrossi after the November 1995 accident and received electrotherapy, mobilization, therapeutic massage and gentle active exercises until March 1996. Following an active rehabilitation program at the Toronto Rehabilitation Centre, he returned to Dr. Kobrossi for further therapeutic massage and active exercises. He continued this treatment regime on a regular basis, two to three times per week until the date of the hearing. Mr. McLennon claimed payment for chiropractic treatments in the amount of $10,295.98.³¹

Mr. McLennon asserted at the hearing that the chiropractic treatments afforded him temporary relief, and therefore the expenses were reasonable. However, his own family doctor noted that the chiropractic treatments had no appreciable results.³² When referred by his family doctor to Dr. Maser, a specialist in internal medicine in March 1996, Mr. McLennon advised Dr. Maser that the chiropractic treatment were providing no real help.³³ Dr. Maser therefore recommended an active exercise program. Dr. Conn, an orthopaedic surgeon recommended by Mr. McLennon's family doctor, stated in April 1996 that chiropractic treatment is no longer going to serve a useful function, and could worsen Mr. McLennon's condition by reinforcing his concerns.³⁴ Dr. Conn also endorsed an active rehabilitation program, which was carried out at the Toronto Rehabilitation Centre. When discharged from the Toronto Rehabilitation Centre in July 1996, the Centre noted that Mr. McLennon had obtained optimal benefit and was intending to continue the exercise program he had learned.³⁵

In my view, the evidence establishes that passive chiropractic treatment was no longer necessary after April 1996. Accordingly, chiropractic treatments beyond April 1996 were not reasonable expenses. As the Applicant concedes that chiropractic treatments were paid until at least April 12, 1996, no further expenses are payable.

4. Prescription Medication

I heard no evidence about the prescription medication taken or the expenses incurred in respect of Mr. McLennon's impairments resulting from the accidents and therefore this expense is denied.

5. Transportation Expenses

I heard no evidence of transportation expenses incurred by Mr. McLennon. These expenses are denied.

6. Loss of Earning Capacity Benefits

Since Mr. McLennon was not entitled to weekly income benefits beyond January 8, 1996, well before the 104-week mark, the Insurer was not obliged to make an offer of loss of earning capacity benefits.

7. Repayment of Funds

In a preliminary decision between these parties, Arbitrator Friendly determined that Mr. McLennon had entered into a settlement with Pilot, accepted settlement funds of $15,000, signed a waiver of his statutory right to rescind, and then rescinded the settlement. Arbitrator Friendly concluded that an applicant cannot waive statutory rights to rescind, and that there was no binding settlement between the parties. Accordingly, the Applicant was not precluded from proceeding to arbitration on the merits of his claims. Arbitrator Friendly held that he did not have the jurisdiction to order repayment of the settlement funds under section 70 of the Schedule, but stated that any amount awarded by the hearing arbitrator should be set off against the $15,000 already paid to Mr. McLennon. I agree. The Insurer is entitled to set off the amount of $3,700, plus interest and the special award of $1,800, against the $15,000 it has already paid to Mr. McLennon. The Insurer sought repayment of the remaining amount.

Arbitrator Friendly determined that he had the jurisdiction to order repayment of the settlement funds as a condition of continuing to arbitration, but he declined to do so because he found that ordering repayment of the full amount would effectively bar Mr. McLennon from continuing with the arbitration on the merits of his case. Instead, he ordered Mr. McLennon to pay the Insurer's assessment fee of $2,000 as a condition of continuing the hearing.

Similarly, I find that I have the jurisdiction to make such orders as are just to prevent an abuse of process.³⁶ As the application has now been heard, and the amount owing to Mr. McLennon is less than the $15,000 already paid, I find it would be an abuse of process to allow Mr. McLennon to keep the excess amount. Accordingly, I order the Applicant to repay the remaining settlement funds, less the $2,000 he has already contributed towards the Insurer's assessment fee.

Expenses:

In a pre-hearing letter dated November 17, 1997, the pre-hearing arbitrator denied the Applicant his expenses of the arbitration proceeding on October 6, 1997, as well as his expenses for the period between the pre-hearing discussion and October 6, 1997. The issue of the Insurer's expenses was left to the hearing arbitrator.

Apart from the income replacement benefits from August 1995 to January 1996, I find that the remainder of the Applicant's claim was grossly exaggerated, and manifestly unfounded. His actions throughout the arbitration process, including the events surrounding his rescission from the settlement, the position he took at this proceeding that he should not be required to repay excess settlement funds, and his refusal to comply with an order to attend medical examinations,³⁷ are indicative of his bad faith. In addition, there was a settlement offer of $15,000, which I have determined is significantly greater than the amount he has ultimately been found to be entitled to. Having regard to all the circumstances, I exercise my discretion to deny Mr. McLennon his expenses and to award the Insurer its expenses. The Insurer is entitled to its expenses of October 6, 1997, August 31, and September 1, 2 and 3, 1998.

Order:

1. The Applicant is entitled to income replacement benefits in the amount of $3,700, plus interest.

2. The Applicant is entitled to a special award of $1,800, plus interest.

3. The income replacement benefits and the special award, plus interest to which the Applicant is entitled must be set off against the $15,000 settlement funds already paid by the Insurer. The Insurer is entitled to repayment of the remaining amount.

4. The Insurer is entitled to its expenses of the hearing.

October 20, 1998

M. Kaye Joachim

Arbitrator

Date

APPENDIX

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on August 31 and September 1, 2, and 3, 1998, before me, M. Kaye Joachim, Arbitrator.

Present at the Hearing:

Applicant:

Desmond McLennon

Mr. McLennon's Representative:

Regina Senjule

Barrister and Solicitor

Pilot's Representative:

Grace Pang

Barrister and Solicitor

Witnesses:

Mr. Norman McGlashan, adjuster

Dr. J. L. Felix

Mr. Desmond McLennon, Applicant

Ms. Heather Lindo, Community and Social Services

Mr. Tony DaSilva, investigator

Mr. Luciano Villella, investigator

Exhibits:

53 exhibits were filed at the hearing.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3The Insurer asserted that it had paid for all chiropractic treatments until September 30, 1996. The Applicant did not dispute that chiropractic treatments were initially paid for, but was unable to confirm the actual date of termination of payments. It was agreed that I would consider the Applicant's entitlement to chiropractic treatment beyond September 30, 1996.
4. 47(1)1. The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment.
5. 5I cannot review the many accidents and incidents which have befallen Mr. McLennon over the years. I will only touch on the most relevant ones, whose effects lingered until shortly before the 1995 motor vehicle accidents.
6. 6Exhibit 1B, Tab 3, Dr. O. F. Veidlinger's Report dated June 7, 1994.
7. 7Exhibit 1A at pages 194 to 196, Report of Dr. J. L. Felix, June 4, 1991.
8. 8Exhibit 1A, Clinical Notes and Records of Dr. J. L. Felix. On October 26, 1993, Dr. Felix noted that Mr. McLennon was still receiving back treatment from a chiropractor once a week. The last complaint of neck pain was in August 1993. However, in a report dated November 13, 1997 (Exhibit 22), Dr. Felix stated that Mr. McLennon continued to experience occasional low back pain until the May 1995 accident. Also, Dr. O. F. Veidlinger noted complaints of tenderness in the neck and tender lumps in various areas in June 1994 (Exhibit 1B, Tab 3).
9. 9Exhibit 1A, Clinical Notes and Records of Dr. J. L. Felix.
10. 10Exhibit 1A, page 126, Report of Dr. S. M. MacLeod, March 3, 1997. In a report apparently prepared for Mr. McLennon's lawsuit against York-Finch Hospital in connection with the 1994 hospitalization, Dr. MacLeod opined that Mr. McLennon's present (March 1997) inability to engage in full-time employment was due to his severe anxiety.
11. 11To the Insurer, Mr. McLennon asserted that he worked full time. On several occasions he stated to medical personnel that he operated a part-time paralegal business. To the Ministry of Community and Social Services he stated that he had only worked for a few days in May 1995.
12. 12Exhibit 1A, page 159, X-ray, May 29, 1995.
13. 13Exhibit 9, X-ray, November 11, 1995.
14. 14Exhibit 1A, pages 197 and 189, X-rays, June 1991, showed mild degenerative changes in the lumbar spine. Exhibit 1A, page 173, X-rays taken in December 1992 showed compression of the third lumbar vertebra.
15. 15Exhibit 24, X-ray, May 26, 1996.
16. 16In Exhibit 1A, page 126, Report of Dr. S. M. MacLeod dated March 3, 1997. Dr. MacLeod, after speaking with Mr. McLennon and reviewing his complaints since the hospitalization, attributes Mr. McLennon's current (i.e. 1997) inability to work to the 1994 hospitalization.
17. 17McLennon and Pilot Insurance Company, (OIC A96-001499, May 2, 1997).
18. 18Exhibit 18
19. 19Exhibit 29.
20. 20Eight weeks after the November 10, 1995 accident is January 5, 1998. I extended the date to Monday, January 8, 1996 for ease in calculating weekly benefits, which commenced on a Monday.
21. 21Exhibit 1B, Tab 5A, Report of Dr. F. Langer, November 23, 1995.
22. 22Exhibit 1B, Tab 5B, Report of Dr. F. Langer, August 20, 1997.
23. 23Exhibit 11A, Report of Dr. H. Shah, May 12, 1998.
24. 24Schedule, Section 68.
25. 25Section 282 (10) of the Insurance Act provides: If an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the statutory accident benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
26. 26Exhibit 18, Employer's Confirmation of Income.
27. 27As stated previously, the cheque for $2,590 actually represented 14 weeks worth of benefits, covering the period May 15 to August 21, 1995.
28. 28The Notice of Assessment dated August 16, 1995 was not introduced into evidence as neither party retained a copy. However, Mr. McLennon acknowledged receiving such an assessment in his letter dated August 18, 1995, Exhibit 21, and acknowledged being advised that his benefits were terminated immediately because of his failure to provide information to Coopers.
29. 29This agreement was recorded in Coopers' reporting letter to Pilot dated November 14, 1995.
30. 30Exhibit 19, Letter from Pilot to Mr. McLennon's Counsel dated December 27, 1995. In that letter, Pilot acknowledged Mr. McLennon's continuing entitlement to income replacement benefits during any period of disability, making it clear that it was withholding benefits at that time solely on the basis of his failure to provide the required financial information.
31. 31The Insurer asserted that it paid for Mr. McLennon's chiropractic treatments until September 30, 1996, notwithstanding its position that such treatments were no longer reasonable or necessary after January 1996. The Applicant asserted that Dr. Kobrossi's account had only been paid until April 12, 1996. I advised the parties that I would determine the duration for which chiropractic expenses were reasonable and leave it to the parties to comply with that decision.
32. 32Exhibit 1A, page 107, Letter from Dr. J. L. Felix dated September 26, 1997.
33. 33Exhibit 1B, Tab 6A, Report of Dr. J. E. Maser, March 26, 1996
34. 34Exhibit 8A, Report of Dr. G. S. Conn, April 29, 1996.
35. 35Exhibit 7B, Discharge Report, Toronto Rehabilitation Centre.
36. 36Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides: A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
37. 37By order dated April 15, 1998, Arbitrator Jones ordered Mr. McLennon to attend three medical examinations. Mr. McLennon attended the medical appointment with the neuropsychologist, Dr. H. Shah on May 12, 1998. He arrived one hour late for the psychiatric assessment with Dr. Furlong on June 11, 1998, and effectively refused to participate in the examination. He failed to attend a scheduled appointment with a neurologist on June 16, 1998. I did not accept Mr. McLennon's excuse for his failure to attend. Exhibits 42, 43, 44, 45 and 12A.