Neutral Citation: 1999 ONFSCDRS 256

FSCO A97-002196

BETWEEN:

PANOS MOSCHONISSIOS

Applicant

and

YORK FIRE & CASUALTY INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Nancy Makepeace

Heard:

April 6, 7, 8, and 30, 1999, June 28, 29 and 30, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

The Applicant filed further written submissions on August 4, 1999.

Appearances:

Michael Henry for Mr. Moschonissios

Guy Farrell for York Fire & Casualty Insurance Company

The Applicant, Panos Moschonissios, was injured in a motor vehicle accident on September 18, 1995. He applied for and received statutory accident benefits from York Fire & Casualty Insurance Company ("York"), payable under the Schedule.¹ York terminated weekly income replacement benefits on March 10, 1997. The parties were unable to resolve their disputes through mediation, and Mr. Moschonissios applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Moschonissios entitled to weekly income replacement benefits from March 10, 1997 and ongoing?
Is Mr. Moschonissios entitled to supplementary medical benefits including physiotherapy and massage treatment, a fitness membership, a TENS unit, a heat chair, medications, mileage and parking expenses?
Is Mr. Moschonissios entitled to snow removal and lawn care expenses?
Is Mr. Moschonissios entitled to interest on overdue benefits?
Is Mr. Moschonissios entitled to a special award?
Is Mr. Moschonissios entitled to his expenses incurred in this arbitration proceeding?

Mr. Moschonissios is not entitled to further weekly income replacement benefits after March 10, 1997.
Mr. Moschonissios is entitled to parking expenses of $229.95, outstanding medical benefits to March 10, 1997 for medication expenses not paid by his disability insurer, and outstanding fees for physiotherapy treatment to March 10, 1997.
Mr. Moschonissios is entitled to interest on benefits owing pursuant to subsection 68 of the Schedule.
Mr. Moschonissios is entitled to a special award of $5,000, inclusive of interest.
The issue of expenses may now be spoken to.

Background

On September 18, 1995, when the accident occurred, Mr. Moschonissios was 49 years old. He is married and the father of three grown daughters, all of whom reside in the family home. After emigrating from Greece in 1972 with his wife and eldest daughter (then an infant), the Applicant earned a living by house-painting and teaching Greek. In 1981, he completed a four-year degree programme at Ryerson Polytechnical University, graduating as a mechanical engineer. At the time of the accident, he was on disability leave from his job at the Canadian Standards Association ("CSA"), where he had worked since March 1986. He also taught Greek one day a week as part of a heritage language programme.

The Applicant has not worked at either job since April 7, 1994, some 17 months before the accident. At the time of the hearing, he had not returned to work at any job, and appeared unlikely to do so. The Insurer did not seriously challenge the Applicant's claim that he remains disabled. The main issue in this case is whether the Applicant's ongoing disability results from the accident of September 18, 1995 or from unrelated problems. The Applicant was involved in a subsequent accident in April 1998, and had been involved in two prior accidents in 1988 and 1989. I find that none of these three accidents contributed significantly to his disability after September 18, 1995. More significant are the Applicant's non-accident related health problems, especially the serious physical and psychological problems that precipitated his taking disability leave from the CSA in April 1994.

The Applicant concedes that he was still disabled at the time of the 1995 accident but claims that his condition improved through the summer of 1995. Although he still had some physical problems at that time, he claims they were no longer disabling. He claims that the accident aggravated his pre-existing depression and resulted in new physical problems, which gradually took on greater significance than his psychological problems. He submits that he is entitled to ongoing income replacement benefits ("IRBs") until the Insurer delivers an offer of Loss of Earning Capacity Benefits ("LECBs") under Part VI of the Schedule.

The Insurer paid IRBs until March 10, 1997, when benefits were terminated on the basis that the Applicant failed to complete an Insurer Examination ("IE") with Dr. Joe Garber, a psychologist. The Insurer also relied on the April 28, 1997 report of Dr. Donald Henderson, a disability Designated Assessment Centre ("DAC") assessor, who opined that the Applicant was not disabled as a result of the moderate soft tissue injuries of the neck and back he suffered in the accident.

The parties also disagree about the Applicant's entitlement to certain medical benefits (physiotherapy and massage therapy, a TENS machine, a heat chair, a fitness membership, medication expenses, mileage allowance at $.30 per km, and parking) and home maintenance expenses for yard work and snow removal. Finally, the Applicant submits that the Insurer's conduct of his claim merits a special award on the basis that the Insurer unreasonably delayed and terminated his benefits.

The Applicant agrees that the Insurer's payment of $15,545.46 on the morning of the first day of the hearing resolves the parties' dispute about the Applicant's weekly benefit rate.

The Applicant's pre-accident employment

The essential tasks of the Applicant's CSA job were not disputed. In May 1990, the Applicant was appointed Team Co-ordinator of CSA's Wiring Devices Group, which tests prototypes of household and industrial products for electrical safety. It includes between 18 and 24 engineers, technicians, inspectors and support staff. The Applicant described his job as "mostly a mental job, an office job." He was responsible for budgeting, co-ordinating testing activities, writing test reports, and managing the day-to-day operations of the group. As a certified auditor, he would travel to various sites to conduct audits and inspections. The Applicant testified that he spent 80 to 85 percent of each week in his office, and the rest of his time travelling, usually by car, to sites in Ontario and the eastern United States. He estimated that 90 to 95 percent of his time was spent sitting, either at his desk or in his car.

Physical demands of the job included prolonged sitting, driving, walking, using a computer, and carrying light loads of documents. Aside from its obvious cognitive demands, the job also required social and communication skills in order to work with team members, other people in the CSA, and customers.

The Applicant's weekly language classes included 20 students on average, and lasted about five hours with one break. Physical demands included standing, bending to help seated students, and perhaps bending to pick up a younger child. This job, too, required cognitive, communication and social skills.

The Applicant testified that as a result of the accident, he has a deep, sharp pain across his upper back and shoulders that makes breathing difficult. He has low back pain described as a very hot spot in the centre of his back, spreading towards the sides and radiating to his left leg. Left knee pain forces him to use a cane. He described constant throbbing headaches, usually starting from the back of his head and neck, that are only relieved by Tylenol 3. He complains of pain and tenderness in both thumbs extending into his forearm. Emotionally, he still feels angry and "very down." The Applicant feels he cannot return to work because he becomes exhausted quickly, cannot concentrate or make decisions, and cannot sit for a long time, walk or carry documents.

The Applicant's pre-accident condition

On April 7, 1994, about 17 months before the accident, the Applicant collapsed at work with chest pain, left leg numbness and fatigue. He was taken to Queensway Hospital and released the same day without a diagnosis. He saw his family doctor, Dr. Sheldon Turner, the next day, complaining of chest pain, shortness of breath, headaches, weakness, sleeplessness and depression. Dr. Turner prescribed an antidepressant; a month later, he added an anti-anxiety mediation.

The Applicant's problems continued, especially right-sided thoracic pain, and he was readmitted to Queensway Hospital on May 15, 1994. Five days later, he was discharged with a diagnosis of kidney stone and advised to return when he was ready for surgery. Later the same day, he went to York Central Hospital, where a more serious condition was diagnosed: deep vein thrombosis resulting in pulmonary embolism. He was admitted from May 20 to May 27, 1994. The embolism was treated with anti-coagulant medication until August of 1994. The kidney stone was ultimately treated with lithotripsy on June 30, 1994, at St. Joseph's Health Centre in London, Ontario.

The doctors appear to agree, and the Applicant concedes, that his thrombosis and embolism resulted from being immobilized by depression after going on disability leave. In July 1994, Dr. Turner referred the Applicant to Dr. John Babatzanis, a psychiatrist, who began treating him on September 16, 1994. Dr. Babatzanis diagnosed major depression and post-traumatic stress disorder. He reported that the Applicant was "severely depressed, subject to anxiety and panic attacks, continually preoccupied with morbid self-depreciating thoughts, and suffers from persisting insomnia."

In a report dated November 9, 1994, Dr. Babatzanis described the events at the CSA that precipitated the Applicant's lay-off. The Applicant also described these events in his testimony. In his role as Team Co-ordinator, the Applicant reported certain staff irregularities to senior management. Their response was to remove him from his position as Team Co-ordinator and assign him to a special project. The Applicant explained his concerns in a June 3, 1994 letter to the CSA's Vice-President of Operations. He complained frequently to Dr. Babatzanis that CSA management had isolated him rather than dealing with the problems he identified. The conflict at CSA was undoubtedly very stressful for the Applicant. He admitted in cross-examination that these stresses had accumulated for some time before he collapsed on April 7, 1994.

The evidence clearly shows that the Applicant's depression relating to the events at the CSA continued unabated to the time of the accident. Physically, in addition to ongoing problems and concerns relating to the pulmonary embolism and renal colic, the Applicant complained about pain in his low back and left knee.

In August 1994, the Applicant applied for long-term disability ("LTD") benefits from the CSA's disability carrier, Confederation Life, and Canada Pension Plan ("CPP") disability benefits. The CPP application was granted effective August 1994, and the LTD application was granted effective October 7, 1994. The applications and the medical reports filed in support of them indicate that the Applicant was disabled by ongoing physical and psychological problems and had no reasonable prospect of returning to work in the foreseeable future.

In his CPP application, the Applicant reported that his left knee pain was aggravated by sitting for more than a few minutes or standing for more than "a very short time," that he walked very slowly because of left knee pain and that his knee did not allow him to lift, carry or bend. He also reported weakness, breathing heavily with little effort, sleep difficulties, concentration problems, weakness and limited ability to drive. The supporting medical report signed by Dr. Turner on August 23, 1994 summarized the Applicant's condition as follows:

This previously well patient suffered the sudden onset of numerous illness[es] on [sic] April of 1994. His initial depression has been complicated by a deep vein thrombosis and pulmonary embolism, renal colic and onset of pain in his knee which has turned out to be due to osteoarthritis. These problems are ongoing.

Dr. Turner reported that the Applicant was disabled by depression and left knee osteoarthritis. He referred the Applicant to Dr. D. Garbuz, an orthopaedic specialist, who felt the knee might later require surgery.

The Applicant's knee problem was evidently quite serious at this time. Dr. Turner described it as "severe" in his form report to Confederation Life.² He sent the Applicant to two other orthopaedic surgeons as well as Dr. Garbuz. In September, Dr. Rick Zarnett said the best treatment for the knee would be arthroscopy, but that might lead to further thrombosis complications. Dr. Carol R. Hutchison also discussed a possible arthroscopy when she saw the Applicant two months later. She noted his antalgic gait and heavy reliance on his cane. However, she commented that "it is difficult to assess the degree to which his symptoms are affected by his depression."

The Applicant's depression was also independently disabling at this time. Dr. Babatzanis, in his report of November 9, 1994 filed with the CPP application, said that the Applicant was suffering from post-traumatic stress disorder and major depression, and is "unemployable and incapacitated."

The Applicant's problems continued through early 1995. In a January 19, 1995 form report to Confederation Life, Dr. Babatzanis stated that the Applicant was "incapacitated and unemployable," and could not work in any occupation, on either a full-time or part-time basis, because of severe depression and shortness of breath. The shortness of breath was investigated in the spring and summer of 1995, and turned out to be related to stress rather than the pulmonary embolism or any cardiac problems. The Applicant continued to complain about this symptom, as well as poor sleep, fatigue, headaches, left knee pain and back pain. He was unable to do a cardiac stress test because of low back pain radiating to his left leg.

In April 1995, about six months before the accident, the Applicant saw Dr. J.A. Mayer, a neurosurgeon, about pain and weakness in his low back referred into his left leg. On examination, Dr. Mayer noted "marked restriction" of low back mobility. He ordered a CT scan, which showed degenerative changes at L3-4 and L4-5, with mild disc bulging at L3-4. Dr. Mayer did not recommend surgery, but prescribed daily exercise.

The Applicant claims he felt much better in the three or four months before the accident, during the summer of 1995. In his examination-in-chief, he said he had no physical problems during that period. He did not remember having pain in his low back or left knee. According to the Applicant, he was able to resume some of his activities of daily living: for example, family picnics. His family encouraged him to become more active. He was taking medication and seeing Dr. Babatzanis for his depression, and was "coping day to day." He testified that he knew his job was waiting for him and he hoped to return to work.

In cross-examination, the Applicant said he could not remember whether he had a cane before the accident, but if he did, he did not use it. This is not consistent with the medical reports. Dr. Babatzanis' intake note of September 16, 1994 indicates that the Applicant "walks with a limp — cane." Dr. Hutchison also noted his reliance on a cane. Confronted with the medical reports about his left knee and low back complaints, the Applicant claimed he had forgotten them in his initial testimony. He now admitted that he had these problems before the accident, but insisted they had improved and were not chronic. He had previously testified that he felt "very good" in the summer of 1995. However, pressed on his plans to return to work, he could say only that when he got relief from his pain, he was able to hope to return to work. In my view, a more reliable indicator of the Applicant's condition in August 1995 was his report to Confederation Life in which he stated that his condition had not improved and he remained totally disabled. In response to the question "when do you expect to be able to resume work even in a limited way?," he wrote "unknown." The Applicant conceded that he did not contact the CSA or managers of the heritage language programme about returning to work.

I do not believe that the Applicant has forgotten his numerous complaints and medical investigations in 1994 and 1995 because I find him a careful historian. I find that his testimony about his condition in the summer of 1995 is heavily influenced by his sincere conviction that the Insurer has treated him unjustly. The Applicant's wife, Vasos, and daughters, Markella and Maritsa, corroborated his claim that his physical condition improved by the summer of 1995, and his main ongoing problem was depression. But their testimony was coloured by the same conviction, and was, in any event, not compelling.

On the Labour Day weekend just before the accident, the Applicant, his wife, and two of their daughters took a road trip through the eastern United States. The family hoped that the vacation would lift the Applicant's spirits. Markella Moschonissios testified that while on vacation, her father "ran a race" with her at the Washington Monument, and won. I heard no details about this race and I do not accept that the Applicant was able to run at this time.

The Applicant's wife and daughters support him in his disputes with the CSA, the hospital and the Insurer. Markella Moschonissios testified that she and her sister, Stephanie, have written letters for the Applicant and appeared in court with him. She admitted that the whole family has put a lot of time and effort in assisting the Applicant. I did not find Markella Moschonissios an impartial observer. Her evidence was influenced by her feeling that her father has been treated unfairly. Moreover, she did not have a full understanding of the Applicant's pre-accident problems. She was unaware that her father had been treated for his low back and left knee before the accident. In examination-in-chief, she testified that she could not remember her father using a cane before the accident. In cross-examination, she admitted that there had always been a cane in the house, and she saw her father use it when his knee bothered him, but not on a daily basis. Markella's loyalty is understandable, but it prevents me from relying on her evidence.

Maritsa Moschonissios admitted that she could not compare her father's physical condition before and after the September 1995 accident because she was very busy with school and work at the time. However, she was able to testify that her father was "down emotionally," and she did not see him do much physically. Asked if the accident changed things, she testified that beforehand, he could go to a picnic, with encouragement. She was unaware of any discussion about her father returning to work. She hoped he would get better and still does.

Vasos Moschonissios, the Applicant's wife, admitted frankly that her husband was not able to return to work in September 1995 before the accident. She agreed that his old job was not available to him at that time, and he did not want to take on a different job. In cross-examination, when asked to confirm Insurer's counsel's suggestion that the Applicant was severely depressed at that time, and not able even to anticipate a return to work, she answered "it happens," confirming the suggestion. She explained that he pushed himself too hard and "he cracked."

I find that the evidence of the Applicant, his wife and daughters, establishes at best that by the summer of 1995, the Applicant's family could persuade him to embark on occasional family outings and a long weekend road trip. It falls far short of establishing that the Applicant could contemplate a return to work in the foreseeable future.

The medical evidence indicates that the Applicant remained disabled through August and September 1995. Dr. Turner's last pre-accident note, on August 21, 1995, says simply, "unable to work." The Applicant saw Dr. Babatzanis on September 11, 1995, a week before the accident. Dr. Babatzanis' note indicates that the Applicant had been able to distract himself from his frustration about work while he was on holiday during the summer, but now contemplated commencing a grievance to deal with the situation at work. This note supports the Applicant's testimony that he felt better while on vacation. However, on August 2, when Dr. Babatzanis had last seen the Applicant, he noted "frequent nightmares," "withdrawn," "has no energy and drive," "he has a sense of desperation and cries loudly especially if no one is around." On August 16, 1995, about a month before the accident, Dr. Babatzanis reported to Confederation Life that the Applicant was "very depressed" and had "suicidal ideation" and "frequent anxiety attacks with social phobia." He checked off "no" to the question, "Do you think patient will be able to return to work?" Except for the note of August 2, Dr. Babatzanis' notes throughout 1995 do not reflect any improvement in the Applicant's psychological condition. On the contrary, Dr. Babatzanis reports the Applicant's continuing anger and depression about the events at the CSA that precipitated his departure. I heard no evidence that the situation at the CSA had changed or was likely to change to accommodate the Applicant's concerns. Indeed, Dr. Babatzanis' notes reflect the Applicant's worry that he might not be welcome if he returned to the CSA. Given the depth and duration of the Applicant's pre-accident depression, I do not accept that any psychological improvement during the family vacation in September 1995 was significant or long-lasting.

In summary, the medical evidence, the evidence of the Applicant's own statements in CPP and disability benefit reports, and the testimony of the Applicant and his family at the hearing overwhelmingly indicate that the Applicant remained physically and psychologically disabled as a result of pre-existing problems at the time of the car accident on September 18, 1995.

This does not dispose of the matter, if the accident contributed significantly or materially to the Applicant's ongoing disability after March 10, 1997, when the Insurer terminated benefits. However, the nature, severity and duration of the Applicant's pre-accident condition presents a serious barrier to his proving that the car accident had more than minimal effect.

The accident and its effect on the Applicant

On September 18, 1995, the Applicant was driving through an intersection on an arterial road in Toronto when another car making a left-hand turn struck his car on the driver's side. The police report indicates that both vehicles were travelling at about 50-60 km per hour. Both vehicles had to be towed and required repairs costing several thousand dollars. The Applicant's wife, who was in the front passenger seat, was taken to hospital by ambulance and released after a few hours. The Applicant did not require immediate treatment, but began to feel discomfort in his neck, upper back and lower back after a few hours. He slept badly that night, and woke up feeling stiff.

Two days later, the Applicant saw Dr. Turner, complaining of pain and stiffness in his neck and low back. On examination, Dr. Turner found tenderness, spasm and reduced mobility. He diagnosed whiplash and low back strain, and referred the Applicant to Dr. S. Abbruzzino, a chiropractor. After a month, when the Applicant failed to improve, Dr. Abbruzzino referred him to Dr. A.M. Anis, a sports medicine specialist who treated him at his clinic, Canadian Rehab. & Sports Medicine Centres Inc. ("Dundas West Rehab"). The Applicant continued with physiotherapy at Dundas West Rehab until October 1996, when benefits were terminated following the medical/rehabilitation DAC report.

In November 1995, about two months after the accident, the Insurer sent the Applicant for an Insurer Examination ("IE") by Dr. F.K. Deegan, a general surgeon, and Dr. K.B. Walsh, a psychiatrist. Dr. Deegan diagnosed "significant (but not serious) soft tissue injuries" in the neck, back and left shoulder. Dr. Walsh reported that the Applicant "is certainly clinically depressed" and "definitely unfit for work." He acknowledged the role of the accident in the Applicant's emotional problems but concluded that it did not play "any significant part in his emotional illness," which he felt "appears clearly to be caused by the life threatening illness [the Applicant] suffered in 1994."

Dr. Babatzanis continued to treat the Applicant after the accident. In April 1996, he reported that the Applicant:

is agitated, depressed, has morbid thoughts, feels hopeless, and entertains suicidal ideas. He feels that he is treated unjustly and protests, but soon after feels exhausted and resigns, feeling like "giving up."

Dr. Babatzanis opined that the Applicant's depression had "deteriorated" since the accident, and that the accident "further contributed in intensifying his depression." However, Dr. Babatzanis' records, considered as a whole, do not suggest that the accident had a significant role. In a two-page narrative report he wrote for Dr. Turner in May 1996, he did not mention the accident, but explained in detail the Applicant's difficulties at the CSA. He reported that the Applicant's work problems "seem to preoccupy him and there has been no resolution." He concluded that "[O]nly an objective resolution of the difficulties he encountered at work will facilitate his recovery and will assist him to eventually resume his professional activities." Again in December 1996, Dr. Babatzanis attributed the Applicant's depression to his problems at work, without mentioning the accident.

In September 1996, Dr. Turner referred the Applicant to Dr. Christos Soulios, another psychiatrist, for consultation. Dr. Soulios agreed with the diagnosis of major depression. Dr. Soulios' only comment about the psychiatric impact of the accident was that the Applicant "suffered injuries to his neck and back," and "his symptoms of depression and anxiety worsened since then." Since Dr. Soulios did not see the Applicant before the accident, and had no way to assess the severity of his neck and back injuries or his pre-accident depression, this report provides little assistance with respect to causation.

The Insurer sent the Applicant for another IE in July 1996, this time at the Orthopaedic and Arthritic Hospital, where the Applicant was assessed by Mr. B. Lee, a physiotherapist, and Dr. Richard M. Holtby, an orthopaedic surgeon. X-rays were ordered, which showed degenerative changes in the cervical spine, lumbosacral spine and left knee, with the latter changes being consistent with the history of medial meniscectomy in 1968 or so. The assessors concluded that the Applicant had sustained soft tissue strain injuries to his neck and lower back in the accident. They did not accept that the Applicant's knee pain had any relation to the accident, given the pre-existing history, lack of evidence of recent change, and absence of complaint of left knee pain immediately following the accident. They concluded, "[I]n the absence of any physical reason for his prolonged symptoms and perception of disability, we feel that his underlying and pre-existing psychiatric condition is the principal cause."

In October 1996, the Insurer required the Applicant to be assessed by Dr. Philip A. Decina, a chiropractor, for purposes of a medical/rehabilitation DAC. Dr. Decina diagnosed residual soft tissue injuries to the neck and back as well as tension headaches. However, he felt that these injuries were complicated by the Applicant's depression, which "has made a significant impact on his perceived level of pain, physical impairment and disability."

The Insurer sent the Applicant for a disability DAC assessment with Dr. Donald Henderson, a chiropractor, in April 1997. He reported that the Applicant had sustained moderate soft tissue injuries of the neck and back in the accident, without orthopaedic or neurological injury. In his opinion, the Applicant's pre-existing depression was "the most significant complicating factor for the ongoing symptoms." He found the Applicant to be "quite pain-focused" and noted "definite signs of symptom magnification exhibited as inconsistent or discrepant examination findings." He concluded that the Applicant "is not substantially physically disabled as a result of injuries sustained in the September 18th 1995 motor vehicle accident. The more significant limiting factors appear to be the clinical depression and self-limiting behaviours."

The Applicant had several physical problems unrelated to the accident in 1997. He had surgery in February, was investigated about another unrelated problem in early summer, and was admitted overnight for chest pain in October. He remained seriously depressed. In November, he had a psychiatric assessment at Humber Memorial Hospital, on Dr. Babatzanis' referral. The assessors noted that the Applicant's depression was unrelieved by antidepressant medication. The Applicant began the hospital's out-patient psychiatric programme in December.

Also in December 1997, Dr. J.D. Graham, an orthopaedic surgeon to whom Dr. Turner referred the Applicant, reported that x-rays of the Applicant's lumbar spine showed only mild degenerative changes at L5-S1 and that the Applicant's "underlying psychiatric condition magnifies and augments his fairly minor physical problems." He recommended light exercise for the Applicant's low back, as well as psychiatric treatment.

Dr. Hutchison saw the Applicant again in January. She found him "very depressed," and this was his major problem. Her opinion about his knee was unchanged.

On April 12, 1998, the Applicant was involved in another motor vehicle accident. He testified that this accident resulted in about $400 damage to the front fender of his car, and aggravated his symptoms in his back, right shoulder and thumb. He saw Dr. Turner, who noted that the Applicant's major problem was his sore back. X-rays of his neck and right shoulder were negative. Dr. Turner testified that he was unable to say whether the second accident set the Applicant back, but it "didn't help." He described the Applicant as having a "black cloud over him."

Dr. Turner prescribed more chiropractic treatment for the Applicant's neck and low back. Dr. Jasminka A. Tomac, a chiropractor, treated the Applicant two or three times a week until mid-August 1998. She described the Applicant's impairments as upper back strain and aggravation of right shoulder, left knee and low back pain. She also noted that the accident didn't help his depression. The Applicant testified that Dr. Tomac's chiropractic fees were the only benefits he claimed from the responsible insurer as a result of the second accident.

Dr. Turner also referred the Applicant to Dr. Arthur E. Karasik, a rheumatologist, who diagnosed fibromyalgia syndrome. He suggested that the Applicant continue using heat and TENS, and referred him to the fibromyalgia programme at the Dorothy Madgett Physiotherapy Clinic. The diagnosis of fibromyalgia was also accepted by Dr. Frances Leung, another rheumatologist who saw the Applicant in consultation in October 1998, and by Dr. J. Digby, a rheumatologist who assessed the Applicant for Manulife in June 1998. Dr. D.J. Ogilvie-Harris, who performed a medical legal assessment of the Applicant in July 1998, diagnosed chronic pain syndrome.

A useful recent summary of the Applicant's current condition is found in the June 9, 1998 report of MRS Health Services ("MRS") to Manulife. In late 1997 and early 1998, the Applicant was assessed at MRS by Dr. Michael Achong, a general internist, Dr. Harvey Anchel, a psychologist, Dr. Emil Zamora, a psychiatrist, Dr. E.P. Urovitz, an orthopaedic surgeon, Dr. Digby, a rheumatologist, and a field assessment team that conducted a functional assessment. The MRS assessors concluded that the Applicant "remains markedly disabled and at his present level of function would not be capable of returning to the competitive labour market." In their opinion, his disability resulted from "a complex interaction of organic, psychiatric, behavioural, cognitive and psychosocial factors." No further medical treatment was recommended, and it was felt that the Applicant would be a poor candidate for a psychiatric/behavioural/cognitive approach because of the very behavioural factors that are making such a major contribution to his ongoing difficulties.

Whether the Applicant's condition is described as fibromyalgia or chronic pain syndrome, I accept that the Applicant remains totally disabled by a combination of organic and psychological factors. I place little significance on the fact these diagnoses were made following the accident of April 1998 because I received no lay or expert evidence to suggest that the April 1998 accident made more than a minimal contribution to the Applicant's ongoing disability for more than a very short time. Dr. Decina felt the Applicant had chronic pain syndrome in October 1996, and it has been clear from very shortly after the accident of September 1995 that the Applicant's pre-existing condition, especially his underlying depression, would complicate his recovery from the moderate soft tissue injuries he suffered in that accident. Assessments of the Applicant in the fall of 1998 by Dr. Hans J. Arndt, a psychiatrist, and Dr. Ron Langevin, a psychologist, confirm the Applicant's ongoing serious depression. At the hearing, Dr. Turner confirmed that the Applicant's condition had shown "no appreciable change" since the September 1995 accident.

Conclusion on causation

Section 7 of the Schedule says that "an insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit" for the period when he is substantially unable to perform the essential tasks of his employment "as a result of the accident. Arbitrators have followed the approach of the courts in holding that the accident need not be the sole cause of disability, but it must make a "significant" or "material" contribution. The significant contributing factor test incorporates the "thin skull" rule — the recognition that an insured person is not precluded from receiving benefits because a pre-existing condition rendered him vulnerable to more severe and more prolonged disability than someone else might have suffered following the same injury. However, where the insured person's pre-accident condition was so serious that the accident could only have had a minimal effect on his disability, he is not entitled to benefits. In deciding whether there is a sufficient causal connection between the accident and the disability claimed for any given period, arbitrators have considered a number of factors, including: the insured person's symptoms and functional level before the accident, the severity of the accident, the mechanism of injury, any delay in the onset of symptoms, the nature of the injuries claimed, and any unrelated causes of injury before or after the accident. The applicant bears the onus of proving that the accident contributed significantly to his ongoing disability.

In this case, there is agreement amongst the medical experts that as a result of the accident of September 1995, the Applicant sustained moderate soft tissue injuries of the neck and back without orthopaedic or neurological complications. As there is no evidence that the Applicant complained of neck pain before the accident, I accept that this was a new injury resulting from the September 1995 accident. However, I find that by March of 1997, when the Insurer terminated benefits, the medical reports indicate that the Applicant's neck injury was not a significant concern and was not independently disabling. I also accept that the accident aggravated the Applicant's pre-existing low back symptoms for some time. However, he had serious and chronic low back pain radiating to his left leg before the accident. The medical reports do not support any sustained significant worsening in the Applicant's ongoing low back symptoms after the accident

I find that the accident of September 1995 played a minimal role, if any, in the Applicant's ongoing left knee complaints. The medical evidence is clear that the Applicant had pre-existing symptomatic osteoarthritis in his knee, probably as a result of a medial meniscectomy in the late Sixties. His knee problems were severe enough in 1995 that Dr. Turner referred him to three orthopaedic surgeons for consultation. Despite the Applicant's testimony that he injured his knee by banging his foot on the floor at the time of impact, there is no persuasive evidence of any traumatic injury to the knee in the accident. There is no evidence that the Applicant complained about knee pain immediately following the accident. I do not accept any causal connection.

The Applicant also complains of pain in his hands and wrists after the accident, especially in his right thumb. His OHIP records indicate that he attended hospital on October 18, 1993 with a hand, wrist or finger injury. X-rays were taken of his thumb and a cast was applied. The Applicant recalled this injury only on cross-examination. He testified that he slipped on a sidewalk and landed on his hands. I find that his right shoulder, wrist and hand problems probably started with his slip and fall in October 1993. There is absolutely no medical evidence to connect them with the 1995 accident. Dr. Tomac's notes suggest they may have been somewhat aggravated by the April 1998 accident, but I need not decide that issue because of my ultimate disposition of the case.

The overwhelming weight of the medical evidence indicates that the Applicant's ongoing disability results from the interaction of his very serious pre-accident health problems — especially severe depression, severe left knee pain caused by osteoarthritis, and low back pain probably related to age-related degenerative changes — and the moderate soft tissue injury to his neck and back sustained in the accident. Accordingly, I considered whether, setting aside the pre-existing factors, the accident played a significant role in the development of chronic pain and/or fibromyalgia. Ultimately, I am not persuaded that it did.

It is well established that the Schedule compensates for disability, not pain and suffering. The key factor in this case is the nature, severity and duration of the Applicant's disability before the accident. This is not the case of someone who had ordinary life problems but managed to function until the accident pushed him over the brink. Nor is it a case of someone who suffered a temporary disability immediately before the accident, with reasonable prospect of recovery in the foreseeable future. Because of the unfortunate series of events that began in April 1994, I find that on the day before the accident, there was almost no possibility that the Applicant would ever return to work. I accept that the accident contributed to the Applicant's disability for a short time, but I am not satisfied that the accident significantly materially prolonged the Applicant's disability after March 1997, when benefits were terminated.

Medical Benefits

Given my finding that the accident did not significantly contribute to the Applicant's disability after March 1997, I need not consider his claim for medical benefits after that date.³ However, the Insurer terminated the Applicant's medical benefits in the fall of 1996, based on Dr. Decina's medical/rehabilitation DAC report dated September 5, 1996. As stated above, Dr. Decina diagnosed moderate soft tissue injury to the neck and back. It was his opinion that further passive therapy was "no longer reasonable and necessary almost twelve months after" the accident, particularly given the Applicant's admission that it had not improved his symptoms. Dr. Decina would not recommend massage therapy or a heat chair, both of which are passive therapies, but recommended that the Applicant embark on an active exercise programme. Accordingly, he recommended that the Insurer pay for a one-year fitness membership and a portable TENS unit, which would afford pain relief while the Applicant worked on increasing his activity level. According to Dr. Decina, there were no musculoskeletal barriers to the Applicant's ability to shovel snow.

Based on this report, the Insurer terminated all medical benefits. It did not provide the fitness membership or TENS unit, and refused to pay for active physiotherapy.

After receiving Dr. Decina's report, the Applicant wrote Clive Wayne, the independent adjuster retained by the Insurer, on December 12, 1996, requesting payment for a TENS machine and fitness membership. Mr. Wayne responded a week later, stating that he was awaiting instruction from the Insurer. That same day, the Insurer wrote Dundas West Rehab directly, terminating all further treatment expenses. The letter does not appear to have been copied to the Applicant. In February 1997, the Applicant sent Mr. Wayne the physiotherapy invoices for September, October and November 1996 and asked that they be paid. He repeated the request in March. In April, raising the matter again, he advised Mr. Wayne that he had returned to Dr. Anis' clinic on Dr. Turner's recommendation on January 30, 1997 because his condition had worsened in the two months since treatment ended. He stated he was now receiving active treatment, a point Dr. Anis also made in his brief letter to Mr. Wayne dated April 7, 1997.

Finally, on May 2, 1997, Mr. Wayne advised the Applicant that the Insurer would pay for the TENS machine and the fitness programme if "two competitive estimates" were obtained. However, the Insurer would not pay for active physiotherapy because on its reading of Dr. Decina's report, no further therapy was required.

The Applicant sent in the two estimates for the TENS unit on July 9, 1997. The benefit was never paid. Mr. Wayne was unable to give an explanation. The Applicant did not purchase a TENS unit. The Applicant did not follow up on the request for an estimate with regard to the fitness membership and did not embark on the fitness programme.

I find that the Insurer should have provided the Applicant with a TENS unit based on the recommendations of Dr. Turner and Dr. Decina. Both doctors also recommended a fitness membership; so had Dr. Deegan and Dr. Holtby, who performed IE assessments of the Applicant. The Insurer's failure to follow up on Dr. Decina's report was in contravention of paragraph 39(11)(a) of the Schedule.⁴ However, given my finding that the accident ceased to play a significant role in the Applicant's disability by March 1997, I am not satisfied there is any basis for my ordering the Insurer to provide these benefits now, more than three years after they were claimed by the Applicant and recommended by Dr. Decina.

The parties disagree as to whether Dr. Decina recommended further active physiotherapy. The report includes the following:

Mr. Moschonissios has had an extensive course of passive therapy over the last year. It is my opinion that this has certainly been more than adequate and sufficient to deal with any soft tissue injury which he may have incurred as a result of the above-mentioned accident. He has had very little active therapy to date.

Dr. Decina is clear that further passive therapy is not recommended, and "a more active component to [the Applicant s] daily activities"is recommended. Unfortunately, the report is not clear as to whether active physiotherapy is recommended. Dr. Turner recommended the Applicant's further therapy between January and March 1997. Given the lack of clarity in the DAC report, the importance of early rehabilitation and the Applicant's testimony that his therapy at Dundas West Rehab had an active component and benefited him, I am prepared to allow the claim for physiotherapy fees between December 1995 and March 10, 1997. Any outstanding fees for this period should be paid.

Dr. Decina's opinion was that the Applicant does not require a heat chair, which would "only promote increased passivity." Although the report does not deal with the claim for massage therapy directly, it rejects it by implication. Based on the evidence before me, I am not satisfied that either massage or a heat chair were reasonable and necessary for the Applicant's treatment.

The Applicant claims the cost of paying his daughters for lawn work and snow removal since the accident. Contrary to Dr. Decina, I accept that the Applicant is unable to look after these tasks himself. However, in cross examination, the Applicant admitted that he could not remove snow or do heavy yard work in the year before the accident, though he insisted that he was able to cut the lawn in the summer of 1995. I do not accept this evidence because of the medical evidence about the Applicant's low back and left knee problems at that time. Section 55 of the Schedule provides for payment of "additional expenses reasonably incurred by or on behalf of the insured person as a result of the accident for housekeeping and home maintenance services" [emphasis added]. I am not satisfied that the Applicant incurred additional expenses for snow removal and yard work as a result of the accident.

The Applicant is entitled to be reimbursed for that part of his medication expenses not paid by Manulife to March 10, 1997, but not afterwards.

Parking and a mileage allowance are also payable until March 10, 1997. The Applicant claims $.30 per km on the basis that his car has higher than average operating costs. The Insurer paid $.13 per km. Subsection 36(3) of the SABS-1994 provides that transportation expenses "in respect of an insured person's automobile are limited to expenses for fuel, oil, maintenance, tires and parking." The Applicant provided no evidence or authority justifying a rate higher than the $.13 per km paid by the Insurer, and accordingly, that claim is denied. The Applicant was unable to produce receipts to support his claim for parking expenses. However, I am prepared to accept his claim in the amount of $229.95 given the numerous medical appointments he attended during the benefit period and because I found him to be generally credible and punctilious with respect to financial matters.

The conduct of the parties

The Applicant claims that the Insurer's conduct of his claim was improper and aggravated his symptoms. He claims a special award under subsection 282(10) of the Act, on the basis that the Insurer "unreasonably withheld or delayed benefits."

The Insurer conceded that there were several delays in the payment of the Applicant's IRBs prior to the termination of benefits in March 1997. The first payment, for the period September 25, 1995 to December 11, 1995, was made on December 13, 1995. The next payment was made on May 27, 1996, when benefits were brought up to date and paid for the next two weeks, up to June 10, 1996. The next two payments were timely. On June 20, 1996, benefits were paid for the period June 11 to July 1, 1996. On July 23, 1996, benefits were paid through August 5, 1996. There followed another delay.

On October 21, 1996, the Insurer brought benefits up to date and terminated them based on Dr. Holtby's IE report. In December, the Applicant wrote to Mr. Wayne asking why he had received no further benefits. When Mr. Wayne explained that the Insurer had issued a stoppage notice to which the Applicant had not responded, the Applicant claimed he had not received the stoppage notice, and requested a disability DAC under section 64 of the SABS-1994. On January 13, 1997, the Insurer reinstated IRBs "pending the outcome of the Disability Assessment." In fact, though the DAC report was dated April 28, 1997, benefits were finally terminated on March 10, 1997, based on the Applicant's failure to complete an IE assessment with Dr. Joseph Garber, a psychologist.

Subsections 62(1) and 62(2) of the SABS-1994 require an insurer to deliver weekly benefits within fourteen days of receiving an application for the benefit, and at least every two weeks thereafter while the insured person remains entitled. If benefits are not paid in accordance with these provisions, the insurer must give timely written notice of the reasons for the refusal.⁵Clearly the Insurer did not comply with these provisions in adjusting the Applicant's claim. The overdue benefits attract interest of 2 percent per month, compounded monthly, under section 68 of the SABS-1994. The question is whether the delays were "unreasonable" and therefore merit a special award as well.

The procedural provisions of section 62 and the high interest rate provided in section 68 reflect the legislative view that delay in payment of benefits is a serious matter. Income replacement benefits are intended to replace the employment income the insured person is unable to earn as a result of the accident. Timely regular payments are essential if insureds are to maintain financial commitments and obtain the necessaries of life. However, not every delay is "unreasonable."

In this case, there were three delays of between two and five months. Mr. Wayne testified that the Insurer had some administrative problems in adjusting the file. There was no evidence of bad faith on the part of the Insurer. On the other hand, the delays were repeated and substantial, despite the Applicant's persistent requests for prompt payment. I find that these delays were unreasonable and merit a special award.

The parties had a number of disputes about the amount of the Applicant's benefits. These were not resolved until the first day of the hearing, when the Insurer paid outstanding benefits in the amount of $15,545.46.

The first issue arose with the first benefit payment on December 13, 1995. The Insurer calculated the Applicant's gross weekly income ($891.47), then used its tax tables to arrive at a net weekly income figure of $607.73 — 90 percent of which is $546.96. The Insurer then deducted the Applicant's disability benefits from that amount, leaving a benefit of only $54.89. The Applicant argued that the Insurer should have included his disability benefits in his gross income. The Insurer insisted on its position, apparently relying on advice from the Insurance Bureau of Canada.⁶ However, subsection 9(6) of the Schedule requires temporary disability benefits, defined in section 1, to be included. The Insurer conceded the point at mediation in April 1996 and brought the Applicant's benefits up to date at $119.41 per week in late May. Interest is payable on these overdue benefits under section 68 of the Schedule. However, I am not persuaded the delay was unreasonable so as to merit a special award, given the Insurer's relatively prompt correction of its error.

The Applicant was also proved right on two other issues. The Insurer deducted the gross amount of the Applicant's disability benefits from his accident benefits. The Applicant argued the net amount should be deducted. The Insurer's position was that the matter was clarified in December 1997, when the Ontario Court of Appeal decided, in a case under the 1990 Schedule,⁷that only the net amount of collateral disability benefits may be deducted.⁸ This does not explain why the shortfall was not corrected between December 1997 and the arbitration hearing in June 1999.

The Applicant also challenged the Insurer's deduction of his CPP benefits from his weekly benefits. The Insurer took the position that this matter was not resolved until the Supreme Court of Canada refused leave to appeal in Cugliari and White et al. on December 10, 1998. This was six months before the start of the arbitration hearing; the Ontario Court of Appeal rendered its decision in April 1998.⁹

That an insurer errs in calculating benefits does not, by itself, amount to unreasonable withholding or delay. However, I am troubled that the Insurer did not pay the outstanding benefits until the outset of the hearing, six months after the Supreme Court of Canada refused leave in Cugliari, a year after the Court of Appeal decision in that case, and a year and a half after the Bapoo decision. Insurers have a responsibility to take reasonable care in ascertaining the current state of the law. Where the law is changed or clarified to the benefit of insureds, insurers must make the appropriate adjustments with reasonable promptness. It is not sufficient to leave any adjustments to be made on the eve of the hearing. I find that the Insurer's delay in doing so was unreasonable and merits a special award.

In fixing the amount of the award, I consider the amount of benefits withheld in respect of the calculation issues as well as the earlier delays in paying the lower amount. Given the relative complexity of the calculation issues and the absence of any evidence of bad faith, I find that a moderate special award is warranted. I assess the special award at $5,000, inclusive of interest.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided. Therefore, the issue of Mr. Moschonissios' expenses of this arbitration proceeding may now be addressed.

December 23, 1999

Nancy Makepeace Arbitrator

Date