minicounsel

Neutral Citation: 1999 ONFSCDRS 54

FSCO A97-001410

BETWEEN:

VASKEN MINASSIAN

Applicant

and

HALIFAX INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Asfaw Seife

Heard: September 8, 9 and 10, 1998, in Kitchener, Ontario

Appearances:

David Grossman for Mr. Minassian

Mark Wilson for Halifax Insurance Company

Issues:

The Applicant, Vasken Minassian, was injured in a motor vehicle accident on February 9, 1996. He applied for and received statutory accident benefits from Halifax Insurance Company ("Halifax"), payable under the Schedule¹ Halifax paid Mr. Minassian weekly income replacement benefits (IRBs) at the rate of $471.55 until April 17, 1997, when they were terminated. Mr. Minassian claimed ongoing entitlement to IRBs, at a higher rate, as well as the payment of certain supplementary medical and housekeeping expenses. The parties were unable to resolve their disputes through mediation, and Mr. Minassian 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. Minassian entitled to weekly income replacement benefits from April 17, 1997 forward pursuant to section 7 of the Schedule?
What is the correct amount of Mr. Minassian's weekly income replacement benefits, pursuant to section 10 of the Schedule?
Is Mr. Minassian entitled to the payment of physiotherapy expenses claimed under paragraph 36(1)(b) of the Schedule?
Is Mr. Minassian entitled to the payment of housekeeping and home maintenance services claimed under section 55 of the Schedule?
Is Mr. Minassian entitled to the payment of the cost of Dr. Daniel Andrew's report dated May 12, 1997, pursuant to paragraph 57(1)(a) of the Schedule?
Is Halifax entitled to a repayment of any benefits paid to Mr. Minassian, pursuant to section 70 of the Schedule?

Mr. Minassian also claims interest on any amounts owing.

Result:

Mr. Minassian is not entitled to weekly income replacement benefits beyond April 17, 1997.
The correct amount of Mr. Minassian's weekly income replacement benefits is $471.55 per week.
Mr. Minassian is not entitled to the payment of physiotherapy expenses claimed under paragraph 36(1)(b) of the Schedule?
Mr. Minassian is not entitled to the payment of housekeeping and home maintenance services claimed under section 55 of the Schedule?
Mr. Minassian is not entitled to the payment of the cost of Dr. Daniel Andrew's report dated May 12, 1997, pursuant to paragraph 57(1)(a) of the Schedule?
Halifax is not entitled to a repayment of any benefits paid to Mr. Minassian, pursuant to section 70 of the Schedule?

EVIDENCE AND FINDINGS:

Background:

At the time of the accident of February 9, 1996, Mr. Minassian was 21 years old, single with no dependants. He lived with his parents, two brothers (Raffi and Shant), and a younger sister in a house that he and Raffi co-owned. Mr. Minassian's parents occupied the upper level of the house as tenants. In June 1996 Raffi transferred his ownership interest in the house to them.

Mr. Minassian was trained as an auto mechanic in Lebanon before his family immigrated to Canada around 1991. From March 1993 until October 1995, he worked as an apprentice auto mechanic at Adriatic Auto Service in Kitchener. In November 1995, he interrupted his employment at Adriatic for eight weeks to attend classes at Conestoga College as part of the apprenticeship programme. On January 2, 1996, when he finished his classes, he wanted to return to work at Adriatic, however, he was laid off due to lack of work.

On January 29, 1996, Mr. Minassian started working for Deluxe Automobile Services (Deluxe Auto), a business that bought damaged cars at auctions, rebuilt and sold them to the public. He was employed as a mechanic and salesperson. Deluxe Auto was incorporated on February 15, 1996 as Deluxe Automobiles Ltd., with Mr. Minassian, his parents, and Shant, as Directors.

The accident of February 9, 1996 occurred 12 days after Mr. Minassian started working at Deluxe Auto. Mr. Minassian was driving his car on Weber Street in Waterloo when he collided with another car at an intersection. He was the sole occupant of his car and was wearing his seat belt. Mr. Minassian testified that he felt severe back and neck pain immediately after the impact. He was taken by ambulance to the emergency department of St. Mary's General Hospital in Kitchener, where he was examined and x-rays of his chest, cervical and lumbar spine were taken. The x-rays showed no abnormalities. He was given a prescription for pain medication and released to the care of his family physician, Dr. P. Landy.

Since the accident, Mr. Minassian has complained of increasing pain in his neck, low back and left shoulder, numbness in his left arm, headaches, memory difficulties and temporomandibular joint (TMJ) problems. In addition to seeing Dr. Landy and, in his absence, his locum Dr. Mimi Ghosh, Mr. Minassian has been treated and seen in consultation by a number of health care practitioners, including Mr. Dave Wilkinson, physiotherapist; Dr. Frank Wong, his family physician since July 9, 1996; Drs. Daniel Andrew and Jan Carstoniu, headache and pain management specialists; Drs. Claire Tjan, M. Zaharie and David Mock, dental specialists; Dr. J. Goldsworthy, chiropractor; Dr. E. Needs, Director of Diagnostic Nerve Block and Pain Control Centre at Sunnybrook Health Science Centre; and Dr. Elfeky, neurosurgeon. He has also received massage therapy, hydrotherapy and acupuncture treatments.

Mr. Minassian has undergone various investigative procedures, including x-rays, CT scan, cerebral perfusion study, facet nerve block injections, and neurological assessments, none of which revealed any objective physiological pathology to explain his complaints of pain.

Mr. Minassian claims that the treatments did not result in any improvement of his symptoms. He testified that he has not returned to his former job at Deluxe Auto or to any other employment since the accident. He claims he is still unable to engage in the essential tasks of his pre-accident employment, or to perform the household activities in which he engaged before the accident. He attributes his disability to severe and constant pain in his low back, neck and right shoulder, and to headaches as well as memory problems.

In February 1997, Mr. Minassian underwent a disability DAC (Designated Assessment Centre) assessment at Link With Work Centre. The DAC report stated that Mr. Minassian was no longer suffering from a disability resulting from the accident. Halifax terminated Mr. Minassian's IRBs on April 17, 1997, after receiving the report.

In November 1997, Mr. Minassian underwent a medical/rehabilitation DAC assessment at The Wellness Rehabilitation Centre which concluded that he did not require any further treatment. Halifax stopped paying for medical and rehabilitation expenses claimed by Mr. Minassian after the assessment.

1. Weekly Income Replacement Benefits:

In order to be entitled to further weekly income replacement benefits, Mr. Minassian must prove, on a balance of probabilities, that because of an impairment² he sustained as a result of the accident, he suffers a substantial inability³ to perform the essential tasks of his pre-accident occupation or employment.

Essential Tasks:

There is no dispute regarding Mr. Minassian's pre-accident essential tasks. I find that as an auto mechanic, his essential tasks consisted of repairing car engines and mechanical parts. The physical demands of this job involved lifting and carrying up to ten pounds constantly, and up to 30 pounds occasionally, frequent kneeling, bending, standing, walking, pushing, pulling, and constant overhead and forward reaching. The job requires concentration and the ability to recall and apply skills acquired through training and experience. Although Mr. Minassian testified that he sold one car during his employment with Deluxe Auto, I heard no evidence regarding the essential tasks of sales work.

Mr. Minassian’s Evidence:

Mr. Minassian testified that he had no health problems before the accident, except a minor neck injury he sustained in a car accident in 1992. He testified that the neck injury healed quickly and he returned to work without any problems shortly after that accident.

Mr. Minassian testified that the February 1996 accident has changed his life drastically. He described himself as totally disabled. He stated that for the most part, he is confined to his house where he spends his time watching television or surfing the Internet. He testified that on a typical day now, he hardly wakes up in the morning or takes a shower unless he has to attend a medical appointment. He does not socialize. Sometimes, when he is bored, he goes to Deluxe Auto just to spend time. He stated that while visiting at Deluxe he sometimes moved cars in the parking lot and answered the telephone. He was never paid for any work he did at Deluxe Auto after the accident.

He testified that other than some light vacuuming, he is unable to do anything around the house. He can no longer cook for himself, clean his part of the house, take care of the garden, cut the lawn or shovel snow, as he did before the accident. His mother does most of the housekeeping and cooking for him and his brother Shant helps with the outdoor chores. He can drive short distances when he is not on medication.

Mr. Minassian testified that the only time he gets any relief from his pain is when he takes MS Contin, a morphine-based medication prescribed for him by Dr. Andrew. He stated that this medication makes him dizzy, weak, sleepy and forgetful. Many doctors have warned him of the potential for addiction and told him to reduce his intake of MS Contin; however, he said that he continues to use it regularly because all other treatments have failed to help him.

Mr. Minassian testified that he attempted to return to work in April 1996, unsuccessfully. He stated that he went back to Deluxe Auto for two weeks, two hours a day; however, he was unable to tighten bolts because of his left hand problem.

Despite his problems, Mr. Minassian testified that in the Summer of 1997 he was able to attend classes at Conestoga College for eight weeks and completed the final phase of his apprenticeship programme. He became a licensed mechanic on September 13, 1997, after passing a three-hour written examination.

Lay Witnesses:

Mr. Minassian's parents, his younger brother Shant, and Mr. Peter Simac, his former employer at Adriatic Auto, testified on his behalf. Mr. Simac testified that Mr. Minassian was a good worker who performed his job as a mechanic without any problems. Mr. Simac, who operates a garage near Deluxe Auto, stated that after the accident, he has seen Mr. Minassian at Deluxe Auto or when he came to visit him at his garage. He testified that he did not see Mr. Minassian working at Deluxe Auto. He stated that he did not think Mr. Minassian was "mentally as good as he was before."

Mr. Minassian's parents, Avo and Mary Minassian and his brother Shant have been Deluxe Auto's only employees since February 1996. Their evidence was virtually the same, and generally corroborative of Mr. Minassian's testimony. Before the accident Mr. Minassian was in good health, and was a happy man who worked and enjoyed an active social life. He lived on his own in the lower level of the house. He cooked his own meals, cleaned his part of the house and performed all of his household chores. Occasionally, Mrs. Minassian cleaned his room and made him a sandwich. Sometimes, he ate supper with the family.

They testified that after the accident he has been unable to work or to perform any household activities. His mother cooks for him and until recently, has been responsible for all his housekeeping needs. Shant has taken over the yard work.

Mr. Avo Minassian testified that he has encouraged Mr. Minassian to work by giving him work at the garage. Once, he gave him a brake job; but he could not do it right because he forgot to put the parts together properly and "he did not have enough strength in his hands". He stated that Mr. Minassian has attended at Deluxe Auto after the accident frequently, usually before or after his medical appointments. The visits lasted ten minutes, but sometimes, when he felt better, he stayed up to three hours. While at Deluxe Auto, he did not do any mechanical work; however, sometimes he washed cars, prepared cheques and answered the telephone. He testified Mr. Minassian was never paid for any services he provided to Deluxe Auto after the accident.

Summary of the Medical Evidence:

The clinical notes and records of Dr. Landy and his locum Dr. Mimi Ghosh show that Mr. Minassian's initial complaints were low back and neck pain. Dr. Landy treated him with pain medication and referred him to Back Works for physiotherapy. By the end of March 1996, Dr. Landy found that his neck pain had much improved, however, he continued to complain of back pain. Dr. Landy recommended that Mr. Minassian return to work immediately, on light duties. On March 20, 1996, Dave Wilkinson, the physiotherapist at Back Works stated that, based on a functional evaluation assessment he performed:

[Mr. Minassian's] present ability includes pushing or pulling with the left arm exerting a 9 kilogram force which represents a 35 kilogram cart with a load of 22 kilos in it being pulled with one arm, while seated. He is also able to stand and push the cart walking over a distance of ten meters with a 22 kilo load. As well his present ability for lifting includes 15 pounds either unilaterally on the left arm or bilaterally of 15 pounds from floor to waist level. He is able to carry 10 pounds unilaterally and bilaterally for a distance of 15 meters. All these activities produce his left shoulder pain.

....At the present time he has fairly good functional ability to lift and carry an object such as the vacuum cleaner or to push it across the floor...

Mr. Minassian was discharged from Back Works after twelve sessions of treatment.

On his visit of April 15, 1996 with Dr. Landy, Mr. Minassian reported lumbar pain, pain in his left shoulder, and intermittent numbness in his left arm. On April 29, 1996, after his failed return to work, Dr. Landy heard from Mr. Minassian complains of difficulty sleeping, and headaches. Dr. Landy found that Mr. Minassian had normal range of movement in his back and neck and thought that his headaches might have been due to Codeine withdrawal (Dr. Landy had initially prescribed for Mr. Minassian Tylenol #3 and reduced it to Tylenol #2). Dr. Landy decided to discontinue the Tylenol #2 and commenced him on extra strength Tylenol.

In June 1996, Halifax sent Mr. Minassian to be assessed by Dr. R. Stewart, orthopaedic specialist. Dr. Stewart concluded that Mr. Minassian did not have any musculoskeletal problems that would prevent him from performing his essential tasks. Dr. Stewart recommended that Mr. Minassian enrol in a pain management programme if his gradual return to work proved unsuccessful. Mr. Minassian did not attempt a return to work after Dr. Stewart's assessment.

In July 1996, Dr. Ghosh examined Mr. Minassian in connection with his request for a note supporting his claim for housekeeping services. Dr. Ghosh declined his request and sent a letter to Halifax that stated as follows:

I have seen the above mentioned patient in my office and I have had a chance to review his previous visits with other doctors and physiotherapists. It appears to me that Mr. Minassian is living at home with his family, but is unable to do any housework such as cooking or cleaning, and his family is not very supportive in helping him. However, it is my medical opinion that this patient really does not have any physical limitations that would not allow him to do this work on his own. Currently, he has normal range of motion of his neck, back, knees, hips, arms and legs. There does appear to be some decrease in strength in his left arm, but otherwise his neurological exam is normal. He continues to do physical therapy by himself at his home.

I hope this information will be of some help. Mr. Minassian is aware of the contents of this report as I informed him of it at our last visit.

Mr. Minassian stopped seeing Dr. Ghosh in mid July 1996. He testified that because Dr. Landy was no longer available, he decided to get a new family doctor. He searched in the Yellow Pages and found Dr. Wong, who gave him a note supporting his need for housekeeping services.

Dr. Wong referred Mr. Minassian to Dr. Daniel Andrew's Pain and Headache Management Clinic. Dr. Andrew has been treating him since December 3, 1996. Mr. Minassian complained to Dr. Andrew of constant severe pain in his lower back area that caused him to fall on occasions, neck pain and numbness and loss of sensation in his two small fingers of his left hand, burning pain behind his eyes, and pain in his right TMJ.

In his report dated May 12, 1997, Dr. Andrew stated that Mr. Minassian has had "all known treatments" for his injuries with no significant benefit from them. He concluded that Mr. Minassian "is now into the stage of Chronic Pain Syndrome." Dr. Andrew stated that Mr. Minassian "will never be able to do physical work again" and that "he will require someone to do his cooking, laundry and his cleaning." Dr. Andrew opined that Mr. Minassian "will require strong narcotic analgesia for the rest of his life" with the risk that he could develop an addiction for analgesia. He prescribed for him MS Contin, a morphine-based medication.

Dr. Andrew felt that Mr. Minassian could control his pain by taking MS Contin. However, he noted that "pain control with Morphine is a two-edged sword, because Morphine in itself can become addictive over long term use." He stated that Mr. Minassian is still at some risk for this addiction but that there "is no other choice if his pain is to be treated." I heard no medical evidence that Mr. Minassian has developed an addiction for MS Contin or to what extent, if any, the side-effects of the medication contribute to his disability.

In early February 1997, Mr. Minassian underwent a multidisciplinary disability DAC assessment at Link With Work. The DAC concluded that Mr. Minassian did not have a physical or psychological impairment that prevented him from performing his essential tasks. The DAC psychologist, Dr. Stephen Menich, and the occupational therapist, Ms. Bernadine Ayres, testified at the hearing, reiterating the contents of their reports.

In July 1998, two and half years after the accident, Mr. Minassian related to Dr. Ennis the same complaints of pain and disability that he reported to Dr. Andrew and the DAC assessors.

Dr. Ennis concluded:

[Mr. Minassian] is suffering from a pain disorder associated primarily with psychological factors and this describes his symptom amplification. This is one of Mr. Minassian's primary disabling conditions. He also is demonstrating elements of conversion disorder...He shows evidence of a major depression that appears to have been untreated. This is a significantly disabling condition. Finally, the situation is complicated and his functional impairment exacerbated by his current use of prescribed opioids...The current standards for the use of opioids for the treatment of chronic non-malignant pain include the fact that they should lead to functional improvement. This does not appear to be the case in Mr. Minassian's situation.

Dr. Ennis concluded that Mr. Minassian is unable to engage in the essential tasks of his pre-accident occupation. He recommended that Mr. Minassian undergo an aggressive treatment for his mood disorder, and reduction of his intake of opioids. Mr. Minassian has not taken such treatment.

Mr. Minassian’s Credibility:

It is not disputed that Mr. Minassian sustained soft tissue injuries to his neck and back as a result of the accident. The medical evidence indicates that there is no objective physiological pathology that could account for his continued complaints of severe pain. There is consensus in the medical opinion that strictly from the physiological point of view, there would be no reason why Mr. Minassian could not return to his pre-accident employment or occupation as an auto mechanic. However, there is a difference of opinion as to whether he is disabled by pain.

Under the Schedule, pain that is disabling is compensable, despite the absence of an objectively identifiable physiological impairment. In the absence of objective evidence that would explain the degree of pain and disability reported by Mr. Minassian, and the divergent medical opinion, the reliability of Mr. Minassian's testimony is vital in assessing his claim. For the following reasons, I did not find Mr. Minassian to be a credible witness.

Most of the doctors that have treated or assessed Mr. Minassian have found that he exhibited pain behaviour that is inconsistent with his physical condition. Dr. Landy noted in February and March 1996 that Mr. Minassian was "hysterical" in his description of back pain and that he was unwilling to return to work until he was completely free of pain.

In his final physiotherapy report dated May 21, 1996, Mr. Wilkinson stated that Mr. Minassian's functional limitations in most cases did not appear to be on the basis of physical inability, but on reports of pain "which were in many cases inconsistent with the physiological expectations of the task tested."

Dr. Stewart commented similarly in June 1996. He found Mr. Minassian's responses during his physical examination inappropriate and inconsistent with his physical condition. He suspected "psychogenic magnification of pain."

In the Summer of 1997, Dr. Needs saw Mr. Minassian, at the request of Dr. Andrew. He determined that Mr. Minassian was not a good candidate for facet rhizolysis because of his "marked hyper-reactive behaviour" and inconsistent responses. In his report dated August 27, 1997, Dr. Needs stated that Mr. Minassian complained that "almost all activities are painful, but particularly sitting and standing in one position for any length of time, twisting and bending movement and particularly on straightening up from a bent position." However, on clinical examination, Dr. Needs found that Mr. Minassian "could walk heel and toe, had a normal stance, but could barely bend to fingertips to the knees." In the sitting position, Mr. Minassian performed straight leg raising "almost to 90 degrees without protest, whereas in the supine position, straight leg raising particularly on the left side to 45 degrees was resisted with complaints of posterior thigh and back pain."

The disability DAC assessment also noted that throughout Mr. Minassian's assessment there was evidence of marked pain-focussed behaviour and that in many instances Mr. Minassian voluntarily limited the range of motion in the area of complaint. Ms. Ayres conducted the DAC Functional Abilities Evaluation (FAE). She stated in her report dated April 14, 1997:

The claimant was poorly motivated and required encouragement to continue with tasks and completed all tasks in a very slow manner. The claimant demonstrated excessive pain behaviours during most activities. For example, facial grimacing, rubbing his lower back and left and right shoulders and huffing and puffing and complaining about pain during an activity, however, between trials and activities he was laughing at other claimants'/participants' jokes. The claimant stopped activities himself due to pain or fear of pain during the following activities: lifting, carrying, pushing, pulling, climbing, crouching, crawling, reaching overhead, stooping, handling, fingering, walking and standing.

Ms. Ayres testified that the test results were not a valid measure of Mr. Minassian's abilities because of inconsistencies in his performance.

The physiotherapist who conducted the medical/rehabilitation DAC at the Wellness Centre in November 1997, also noted inconsistencies in Mr. Minassian's behaviour, stating that on examination he exhibited decreased range of motion in the lumbar spine but that he had better range when distracted.

In addition to inconsistent pain behaviour, the evidence reveals numerous discrepancies in Mr. Minassian's testimony and conflicts between his testimony and the information contained in the medical records.

In his testimony, Mr. Minassian was adamant that he saw no improvement in his neck pain in the 12 month period after the accident. He testified that his neck pain has continued to be a problem for him ongoing from the time of the accident. He was sure that he always complained of pain and restrictions of motion in his neck to all the doctors that have examined him since the accident.

However, the clinical notes of Dr. Landy, Dr. Ghosh, Dr. Stewart and Dr. Wong tell a different story. Mr. Minassian saw Dr. Landy and Dr. Ghosh, on several occasions between February 12, 1996 and July 15, 1996. In his note of February 27, 1996, Dr. Landy stated that Mr. Minassian had normal range of movement in his neck and that his "neck pain had much improved." Neither Dr. Landy nor Dr. Ghosh have recorded any complaints of neck pain by Mr. Minassian after February 27, 1996. Dr. Stewart's report of June 7, 1997 indicates that Mr. Minassian told him that "his neck pain was almost gone." Dr. Wong, who saw Mr. Minassian on more than ten occasions between July 9, 1996 and March 15, 1997, has recorded no neck complaints by him. His reports indicate that Mr. Minassian complained to him about back pain and TMJ problems.

In contrast to the reports of Dr. Landy, Dr. Ghosh, Dr. Stewart and Dr. Wong, the records of Dr. Andrew and those physicians who saw Mr. Minassian after the termination of his weekly income replacement benefits reflect significant complaints of neck pain. On December 3, 1996, when he first saw Dr. Andrew, he complained of burning neck pain with reduced range of motion.

In March 1997, Mr. Minassian was seen by Dr. Carstoniu at his Headache and Pain Management Clinic in Toronto, at the request of Dr. Andrew. Mr. Minassian attended Dr. Carstoniu's office wearing a neck collar and a back brace. He reported to Dr. Carstoniu that he was unable to sit, stand or walk for more than 15 minutes; he could not drive for more than 20 minutes and that he had ceased sexual activity due to back pain.

When asked to explain these discrepancies, Mr. Minassian suggested that his family doctors have failed to record his complaints properly. He disagreed with their assessment of his functional level. Mr. Minassian did not call any of the medical professionals to give evidence at the hearing.

There is no dispute that the clinical notes were created by the doctors contemporaneously in the normal course of performing their duties. I do not find Mr. Minassian's suggestion that the physicians failed to correctly record supported by any other evidence. I do not find the suggestion plausible. Accordingly, I accept the clinical notes as accurate records of Mr. Minassian's complaints and the doctors' findings. Therefore, in the absence of any objective medical evidence suggesting a relapse of Mr. Minassian's neck problem, I find that his neck pain resolved by mid July 1996 at the latest.

Mr. Minassian testified that he has experienced memory and concentration problems since the accident. He stated that he cannot repair brakes properly because he cannot remember how to reassemble the parts correctly. He answered several questions during his testimony with the words "I don't remember." However, he also showed remarkable ability to recall details when he was testifying about his pre-accident income. He was able to recall the details of car repair work he performed over two and half years ago, including the year and make of the cars, the names of the customers, the details of repairs he performed and the amounts of money he received for each job. I also find it significant that in September 1997 he attended classes for eight weeks and despite his memory problems, he passed a three-hour examination.

There is no medical evidence, other than Dr. Andrew's opinion, to suggest a pathological basis for Mr. Minassian's claim of memory problems. Mr. Minassian told Dr. Andrew and Dr. Carstoniu that he had been suffering persistent headaches since he struck his head in the interior of the car during the accident. Dr. Andrew stated in his report that Mr. Minassian experienced short and long-term memory loss as a result of "an intra-cranial injury" he sustained in the accident. No other physician has reached a similar conclusion. Mr. Minassian has told Dr. Stewart and the physicians he saw after him that he struck his head on the steering wheel of the car during the accident. However, there is no indication in the clinical notes of Mr. Minassian's family doctors or the hospital and ambulance records that he reported sustaining a trauma to his head during the accident. The records of St. Mary's General Hospital state that Mr. Minassian denied injuring his head in the collision. The ambulance records show that he did not suffer a loss of consciousness.

Dr. Carstoniu did not agree with Dr. Andrew's conclusion of an intra-cranial injury. In his view, what Mr. Minassian required was psychological intervention "to assess his complaints of memory and concentration difficulties and determine whether these are the result of mild traumatic brain injury versus medication side effects and psychological disturbances including depression and anxiety." A cerebral profusion study conducted at St. Mary's General Hospital on May 30, 1997 confirmed that Mr. Minassian had no cerebral perfusion deficits.

It should also be noted that, contrary to what he related to Dr. Andrew and Dr. Carstoniu, Mr. Minassian did not complain of headache to his family physician Dr. Landy until the end of April 1996. At that time Dr. Landy attributed the headaches to Codeine withdrawal. At the hearing, Mr. Minassian testified that his headaches started after his failed return to work in April 1996.

Investigation reports and videotape footage taken between November 24, 1997 and August 20, 1998 contradict Mr. Minassian's claim of total disability. The videotapes show him attending at the premises of Deluxe Auto on numerous occasions, spending up to nine hours a day on three consecutive days. On one occasion, he is shown arriving as early as 9:00 a.m. and departing after 7:30 p.m., activating the alarm before closing the shop. Initially, Mr. Minassian denied doing any work while he was at Deluxe Auto, claiming that he went there just to "pass the time". However, on pointed cross-examination while viewing the videotapes, he conceded that he cleaned cars, took clients for test drives, parked cars and answered telephone calls. At one point, the videotape showed him standing in the garage, between cars and suddenly disappearing from view for a considerable length of time. Initially, he explained that he had fallen and was lying on the floor; however, on further questioning he admitted that he was squatting beside the car, but denied working on the car. Another film footage depicted him working on the rear wheel of a car, repairing the brakes. He testified that he did not complete the job because of pain.

Although Mr. Minassian denied receiving any payment for work from Deluxe Auto after the accident, the evidence shows that he received several cheques and money transfers from a Deluxe Auto account.⁴ Mr. Minassian explained that these amounts were loans from his father. During cross-examination, Mr. Minassian testified that after the termination of his benefits he has been receiving $520 from Welfare, however, his living expenses were over $1,000 per month. He stated that he borrowed the difference from his parents. However, neither Mr. Minassian nor his parents could say how much money he borrowed from them and when. Mr. Minassian's bank account shows several transfers from his father's account which they testified represented payments of their share of the mortgage and utilities. They provided no explanation why Mr. Minassian received payments from Deluxe Auto's account. Having regard to all of the circumstances, I find that Mr. Minassian worked at Deluxe Auto after the accident and received payments from the company for the services he rendered.

As indicated above, in the absence of objective evidence of impairment that corroborates Mr. Minassian's claim, the assessment of his claim rests to a great extent on his credibility. However, due to the significant inconsistencies in his testimony and the conflict between his testimony and the documentary evidence, I did not find him to be a credible witness. Consequently, I am unable to rely on his testimony.

The only medical opinion that supports Mr. Minassian's claim comes from Dr. Andrew and Dr. Ennis. However, these doctors relied on history provided by Mr. Minassian regarding his pain and disability. Because of the problems in his testimony, I do not find the doctors' reports any more reliable that his.

I find the evidence of the lay witnesses equally unreliable. For the most part, their testimony mirrored that of Mr. Minassian's own claim of pain and disability. Their testimony about his post-accident activities was vague and in many instances inconsistent with the medical evidence. I do not find their evidence sufficient to independently substantiate his claim.

Having considered the evidence as a whole, I find that Mr. Minassian has failed to prove that he suffers a substantial inability to perform his essential tasks beyond April 17, 1997. In the result, he is not entitled to further weekly income benefits.

2. Amount of IRBs:

Halifax paid Mr. Minassian IRBs from one week after the accident until April 17, 1997, at the rate of $471.55 per week. Halifax calculated this amount on the basis of information provided to it in the Employer's Confirmation of Income form filed by Mr. Minassian. This form, which was signed by Raffi Minassian, indicated that Mr. Minassian was paid $1,500 ($1,200 salary and $300 in commission sales) during the two weeks he worked at Deluxe Auto. Halifax based Mr. Minassian's IRB on a weekly gross income of $750.

Mr. Minassian does not disagree that his IRBs would be the amount calculated by Halifax if they were based on a weekly gross income of $750. His claim of higher IRB is based on additional self-employment income earned during the two weeks in question. He testified that between January 29 and February 8, 1996, in addition to the $1,500 he earned as an employee of Deluxe Auto, he earned $820 from self-employment. He stated that he earned this amount by repairing cars for friends and acquaintances.

Mr. Minassian did not include this income in his Application for Accident Benefits. The documentary evidence Mr. Minassian produced to support his pre-accident employment income consists of six letters purporting to be confirmation by individuals who paid him for the services he provided. Each letter sets out the name of the customer, the make and year of the car repaired and the cost of the repair. The letters do not provide information about the nature of the repairs or the specific dates when the work was performed. All of the letters say that the jobs were completed "January 29, 1996 through February 8, 1996". Four of these letters appear to be signed by the customers; however, they do not contain the addresses or telephone numbers of the individuals. Two are unsigned. Mr. Minassian testified that one of the individuals had died since the accident, and that he was unable to find the other.

Mr. Minassian testified in detail about each job, including the specific nature of the repair, where the parts came from, and when he performed the work. In one case, he remembered that the amount included the value of help he received from his brother in fixing the car.

Mr. Minassian testified that he incurred no expenses to generate his self-employment income as he did all the repairs at a friend's garage free of charge.

In the absence of any other documentary or oral evidence corroborating the claim, I do not consider the six letters to be independent proof of the income in question. It has been stated in numerous arbitration decisions that an applicant seeking to prove income from employment must produce independent documentary evidence to support his claim. I do not find the letters Mr. Minassian filed to be sufficient proof of his income from self-employment.

In addition, if, as he claims, Mr. Minassian suffers from memory problems, I find it difficult to understand how he is able to remember the details of work he performed and payments he received during a short period more than two years after the occurrence, and yet he cannot remember any details about the money he received from Deluxe Auto several months after the accident.

In the circumstances, I am not satisfied that there is sufficient evidence to prove that Mr. Minassian earned the self-employment income he claimed and, accordingly, it should not be included in the calculation of his IRBs. I find that his IRBs are correctly calculated by Halifax.

3. Physiotherapy Expenses:

Mr. Minassian claims the payment of $121 incurred for physiotherapy treatment related to his TMJ problems. I heard no evidence about the particulars of this claim. It is not clear to me what this expense relates to, who provided the service, or when. The medical records indicate that Mr. Minassian started complaining of TMJ problems several months after the accident and was seen by Dr. Claire Tjan, orthodontist, in May 1996. Dr. Tjan referred him to Dr. David Mock, oral pathologist at Mount Sinai Hospital, who found that his problems were related to the muscles of the TMJ. He recommended physiotherapy. It is not clear from the materials filed whether Mr. Minassian took the treatment in January 1997, as anticipated by Dr. Mock in his report of December 13, 1996. Halifax has taken the position that all of Mr. Minassian's medical and rehabilitation expenses incurred to the date of the medical/rehabilitation DAC in November 1997 have been paid. Mr. Minassian did not adduce sufficient evidence to prove the expense is reasonable and necessary. Accordingly, I find that he is not entitled to it.

4. Housekeeping and Home Maintenance Expenses:

Mr. Minassian claims approximately $8,000 for housekeeping and home maintenance services performed by his mother and a cleaning service after the termination of his benefits. I have found that Mr. Minassian was capable of performing the essential tasks of his pre-accident employment. I heard no evidence that his housekeeping and home maintenance tasks are more demanding, physically or mentally, than his essential tasks. Therefore, I am not satisfied that any amounts Mr. Minassian claimed as housekeeping expenses are additional expenses that he reasonably incurred as a result of the accident.

5. The Claim for the Cost of Dr. Andrew's Report

Mr. Minassian claims payment of $950, being the cost of Dr. Andrew's report of May 12, 1997. Having reviewed the report and the circumstances of its creation, I am not satisfied that the expense is recoverable under paragraph 57(1)(a) of the Schedule. As I stated in Carlo Mercuri and General Accident Assurance Company (OIC A96-001245, December 19, 1997), the purpose of section 57 is to facilitate the insured person's access to medical examinations or assessments and to obtain certificates or reports for the purpose of his rehabilitation or for adjusting his claim under the Schedule. It does not cover the cost of medical reports, which are essentially obtained in confidence, in anticipation of litigation, commenced under the Insurance Act.

Counsel for Mr. Minassian has conceded that this report is a medical-legal opinion partially obtained for the purpose of litigation. Mr. Minassian may be entitled to this expense as part of his arbitration expense, however, he is not entitled to it under the provisions of the Schedule.

6. Repayment of Benefits:

Halifax alleged, and Mr. Minassian admitted that a cheque for $600 issued on June 27, 1997 in respect of massage treatment should have been only for $60. Halifax sought an order for repayment of the difference under subsection 70(1) of the Schedule on the basis that it was paid through a clerical error. Fraud was not alleged. It is not clear to me whether the error in this case is attributable to Mr. Minassian. However, Halifax has conceded that it has not complied with the requirements of notice under subsection 70(2) of the Schedule which states that an obligation to pay a benefit that was paid to a person through error does not apply unless notice is given within 12 months after the payment was made to the person.

Accordingly, the claim for repayment is dismissed.

EXPENSES:

I remain seized with respect to the issue of expenses, if the parties are unable to reach an agreement.

March 31, 1999

Asfaw Seife Arbitrator

Date