Neutral Citation: 2000 ONFSCDRS 179

FSCO A98-000707

BETWEEN:

HARBANS K. RANDHAWA

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

K. Julaine Palmer

Heard:

May 8 to 12, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ted Charney for Mrs. Randhawa

J. Lynne Frank for Liberty Mutual Insurance Company

Mrs. Harbans K. Randhawa was injured in a motor vehicle accident on November 30, 1996. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual terminated Mrs. Randhawa's income replacement benefits on September 22, 1997. The parties were unable to resolve their disputes through mediation and Mrs. Randhawa 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 Mrs. Randhawa entitled to income replacement benefits after September 22, 1997?
What is the correct amount of Mrs. Randhawa's income replacement benefit? Has Mrs. Randhawa complied with the provisions of section 33 of the Schedule?
Is Liberty Mutual entitled to a repayment of any benefits paid to Mrs. Randhawa as a result of wilful misrepresentation, as provided in paragraph 47(1)(a) of the Schedule?
Is Mrs. Randhawa entitled to a special award?

Mrs. Randhawa also claims interest on any amount owing to her and her expenses of the arbitration.

Mrs. Randhawa is not entitled to income replacement benefits after September 22, 1997.
The correct amount of Mrs. Randhawa's income replacement benefit is $346.45 per week. Liberty Mutual should pay her the difference of $93.73 per week from December 7, 1996 to September 22, 1997, with interest running from March 22, 1999. Mrs. Randhawa has complied with the provisions of section 33 of the Schedule.
Liberty Mutual is not entitled to a repayment of any benefits paid to Mrs. Randhawa.
Mrs. Randhawa is not entitled to a special award.
The issue of expenses has not yet been determined.

Background:

At the time Mrs. Randhawa was injured in a motor vehicle accident on November 30, 1996. She was 47 years old and held two jobs, packing plastic bottles into cartons for two different manufacturers. She generally worked eight hours per day, seven days per week. She had been doing this for three years by the time of the accident. She also did the housekeeping and cooking for her family of five living in a large home. She testified that she has not worked since the accident and could not perform her former jobs. She testified she cannot perform many activities around the home and spends most of her time resting and praying.

Mrs. Randhawa was also involved in two further motor vehicle accidents after this accident, in January 1998 and October 1999. The third accident resulted in the postponement of the arbitration hearing. At the outset of the hearing, Liberty Mutual took the position that Mrs. Randhawa was not disabled as of September 24, 1997 (the date to which it paid her income replacement benefits) and was ready to return to work then. Neither party submitted that Mrs. Randhawa's alleged ongoing disability results from the post-1996 accidents.

Throughout the arbitration process, Liberty Mutual had claimed repayment of the entire amount paid to Mrs. Randhawa as income replacement benefits after the accident. However, in final submissions at the hearing, Liberty Mutual admitted that Mrs. Randhawa injured her neck in the accident of November 30, 1996 and that she was unable to perform her essential employment tasks until August 20, 1997 as a result of those injuries. Still, Liberty Mutual alleged that after August 20, 1997 if Mrs. Randhawa remained unable to work, it was as a result of her longstanding back condition that pre-dated the accident. Liberty Mutual submitted that after August 20, 1997 the injuries from the accident were no longer a significant or material factor contributing to Mrs. Randhawa's health condition.

Liberty Mutual's new theory of its case was based largely on the pattern of Mrs. Randhawa's complaints, as recorded in the clinical notes of Dr. Kular, her family doctor. (Dr. Kular's clinical notes from prior to 1996 had been delivered only on the first day of the arbitration hearing.) Liberty Mutual submitted that from the time of the resolution of Mrs. Randhawa's complaints arising from a 1991 motor vehicle accident (i.e. from May 11, 1992 onward), she complained of back pain to Dr. Kular, intermittently until December 1996. Liberty Mutual admitted that until August 20, 1997, Mrs. Randhawa suffered from neck pain as a result of the injuries she received in the accident.

Thereafter, Liberty Mutual submitted, Mrs. Randhawa's complaints for the remainder of 1997 until January 16, 1998, the day after the motor vehicle accident of January 15, 1998, were of back pain. Liberty Mutual submitted this is consistent with Mrs. Randhawa's pre-accident history.

Liberty Mutual submitted that after August 20, 1997 it is more likely that Mrs. Randhawa's back pain was causally related to her pre-accident condition, than to any injury she received in the 1996 accident. Liberty Mutual submitted that Mrs. Randhawa has not proven that the residual effects of the 1996 accident have prevented her return to work. Liberty Mutual submitted that considering her pre-accident complaints to Dr. Kular, it is unlikely that the accident played a significant role in her complaints after August 20, 1997.

I find Mrs. Randhawa had a significant history of ongoing, intermittent back and neck pain dating back more than a dozen years prior to the accident of November 30, 1996. Unfortunately, she disclosed none of this history after the accident. She testified at the hearing that she concealed her pre-accident history because she did not want to have a problem with her accident claim. She testified that she was a poorly-educated person who did not understand that it was "against the law" for her to keep silent about her medical history. She apologized for her actions.

For this reason, no health practitioner had any idea of Mrs. Randhawa's full pre-accident health history. Even Dr. S.W. Joseph Wong, the physiatrist to whom Mrs. Randhawa's counsel sent additional medical records, and Dr. J. Zeldin, to whom the Insurer's counsel sent additional documents, had her family doctor's chart only back to January 2, 1996.

Partial Chronology of Worker's Compensation, Medical and Work History 1984-96

Records from the Worker's Compensation Board (WCB) were produced at the hearing. The earliest records show that Mrs. Randhawa was referred by her then family doctor, Dr. Evelyn Singh, to a neurosurgeon, Dr. J.A. Mayer, in June 1983. She was then 33 years old and working as a packer, according to Dr. Mayer's report. He took a history of three years' of itching in her left leg and one year of constant pain down her left leg. Dr. Mayer felt clinically Mrs. Randhawa had a protruded disc, probably at L4-5, and wanted to perform a lumbar myelogram.This procedure was never carried out, for reasons unknown to Dr. S. Mcintosh, who took over Dr. Singh's practice for the summer of 1984.

On March 22, 1984 Mrs. Randhawa complained that she injured her left arm, low back and right knee after falling the day before at her workplace, Imperial Feather Corporation. Her job was to seal comforters inside plastic bags. She was off work for many months as a result of those injuries. She was seen by orthopaedic surgeon, Dr. J. W. Fraser, on June 5, 1984. Dr. Fraser noted that Mrs. Randhawa denied any prior problems. Dr. Fraser felt she "might have had some degree of injury to a disc." He thought she should continue her exercises and medication and be re-evaluated in six weeks. She did try to return to the job in July 1984, but stopped working after a few days, complaining of unbearable pain.

A report from December 1984 suggests that Mrs. Randhawa attempted a second return to work, and managed only two weeks, working three or four hours daily. She had several courses of physiotherapy and was assessed as an inpatient at the Workers' Compensation Board hospital. She was discharged to return to her regular work in April 1985 and managed to work about seven days. Mrs. Randhawa was denied further workers' compensation benefits after April 22, 1985. She appealed the denial and her objection was denied in November 1986.

Mrs. Randhawa testified that she returned to work in 1986 cutting thread in a factory where they made track suits. After six weeks she found another job, filling in as a maternity leave replacement, in a factory where printing was placed on glasses and cups. In October 1987 Mrs. Randhawa began to work at Kirsch Cooper Industries (Canada) Inc., assembling window blinds. On July 25, 1988 a blind weighing about seven pounds fell on her head and neck. She was off work as a result of that incident until October 30, 1988. She returned to work on October 31, 1988 at modified duties. The WCB awarded her temporary partial disability benefits from her return to work until February 24, 1989. On that date she was laid off until April 3, 1989, when she returned to work. She worked through the summer and fall of 1989. On December 22, 1989 Mrs. Randhawa stopped working and claimed further WCB benefits. Other co-workers were laid off from Kirsch about this time. Mrs. Randhawa was called back to work from the lay-off on February 22, 1990, but she did not return at that time. Mrs. Randhawa's claim for temporary total disability WCB benefits from December 22, 1989 was partly denied—only health care benefits were paid. Mrs. Randhawa's appeal of that denial continued until January 28, 1991.

In June 1990, Mrs. Randhawa's mother died in India and she returned there for a visit, likely during July and August, according to the clinical notes of Dr. K. Kular, Mrs. Randhawa's family doctor. Dr. Kular's clinical notes and records dating back to December 29, 1989 were filed. OHIP records after November 3, 1995 were also filed at the arbitration.

Mrs. Randhawa was examined on January 28, 1991 by Dr. R. Whitty of the WCB for a permanent disability evaluation, and a permanent pension of 10 percent was subsequently awarded to her, with arrears from October 18, 1988.

In his report following that examination, Dr. R. Whitty concluded as follows:

The claimant presents a pain amplification syndrome, associated with features of anxiety and conversion disorders. There may be some minor organic problems in the cervical spine underlying this, and she has no entitlement for the rest of her spine and lower extremities. An organic award for the neck and left shoulder will be recommended, where she may have some rotator cuff tendonitis, and cervical degenerative problems, aggravated by her strain.

According to Dr. Whitty's report of January 28, 1991, Mrs. Randhawa had last worked in November 1990.

Sometime shortly before February 27, 1991 Mrs. Randhawa was involved in a motor vehicle accident, according to the clinical notes of Dr. Kular.² Her vehicle was stopped at a red light when another vehicle hit it from behind. Dr. Kular wrote that there was no history of loss of consciousness, no vomiting and that Mrs. Randhawa complained of feeling dizzy and having a sore neck. He felt she showed some paraspinal muscle tenderness over the cervical spine, especially the right side of the neck. He noted cervical flexion and extension was decreased. He arranged for x-rays of her cervical spine and skull and prescribed Tylenol No. 3.

The x-ray report dated February 27, 1991 showed "Moderately severe chronic degenerative disc change C5-6. Slight posterolateral spurring C4-5 and C6-7 bodies. Suspect cervical muscle spasm."

On July 10, 1991 Mrs. Randhawa began work at Silgan Plastics Canada Inc. (formerly Express Plastics). She worked Saturday and Sunday shifts of seven or eight hours, packing plastic bottles into cardboard cartons.

On or just prior to November 22, 1991 Mrs. Randhawa appears to have been involved in another motor vehicle accident. Once again, Dr. Kular's clinical notes record that her vehicle was hit from behind. The driver who hit her car left the scene. Dr. Kular noted Mrs. Randhawa was complaining of a sore neck, painful left side around the lumbar spine, no loss of consciousness, no history of hematuria, no vomiting and no dizziness. He noted paraspinal muscle tenderness over her cervical spine, and diminished cervical flexion and extension. He felt there was tenderness over the left side and lumbar spine. He prescribed Toradol and sent Mrs. Randhawa for x-rays of her cervical and lumbar spine to the same radiologist who performed the February 1991 x-rays. The radiologist's opinion on November 25, 1991 was "Moderate chronic degenerative disc change C5-6. Slight posterolateral lipping C4-5 bodies. Marked limitation of cervical flexion and extension. Incomplete sacralization of L5."

On cross-examination at the arbitration hearing, Mrs. Randhawa denied being injured in any motor vehicle accident in February 1991. She remembered being in an accident in November 1991 and testified that it was her first motor vehicle accident.

Mrs. Randhawa continued to see Dr. Kular throughout the winter of 1991-92. She saw him about every two weeks and, according to his records, continued to complain of a painful neck and, occasionally, of pain in her low back.

On February 15 and June 21, 1991 and February 28, 1992, Mrs. Randhawa was examined by Dr. R.C. Bull, an orthopaedic specialist at Humber Memorial hospital, for pain in her neck and shoulder and numbness in her left arm. In 1991, Mrs. Randhawa was also complaining of pain and numbness in her left leg. Dr. Bull did not note any report by Mrs. Randhawa of injury in a motor vehicle accident in February 1991 or November 1991. Mrs. Randhawa does not appear to have been referred to Dr. Bull by Dr. Kular, her family doctor, since I find no record of a referral in his clinical notes. Dr. Bull's reports were part of the file material from the Worker's Compensation Board.

Dr. Bull wrote as follows on February 28, 1992:

This is a 42-year old who has injured her back, neck and shoulder. She said it is getting worse. She did it at work and is not getting Compensation Board money.

The pain goes from her neck down the left arm to her hand and thumb. She said that she can't even push a broom at home. Her daughter helps her as much as she can and her husband does the groceries. She said that she can't even carry a bag of milk herself with the left arm. She used to do a factory job but these are all too heavy and basically she should probably be off work now as she certainly has a lot of localized discomfort in her back and also in her neck and shoulder. Although her reflexes are normal, her grip strength is now [sic, down?]. Her power is down. She has legitimate lack of mobility.

I told her that I would talk to her WCB worker and I gave her a note to have the worker call me.

During 1992 and 1993, until November, Mrs. Randhawa visited her family doctor, Dr. Kular, on 25 occasions. At six of those visits, her principal complaint was neck pain. At 12 other visits, her principal complaint was back pain. On seven of those visits, Dr. Kular prescribed physiotherapy treatment. She did not have pain radiating into her legs, according to Dr. Kular's note in April 1993.

On November 26, 1993, Mrs. Randhawa began working at Easy Enterprises Inc. where, like her weekend job, she packed plastic bottles into cartons. She worked Monday to Friday on the midnight to 8:00 a.m. shift at Easy Enterprises. She continued to work the afternoon shift at Silgan Plastics on Saturday and Sunday.

During 1994 and 1995, Mrs. Randhawa complained principally of back pain on nine visits to Dr. Kular out of 17 visits in total. He prescribed a variety of medications for these complaints and prescribed physiotherapy on four occasions. On May 29, 1995 Mrs. Randhawa complained of low back ache with pain radiating into her left leg and left ankle. Dr. Kular prescribed bed rest on a firm surface, physiotherapy, and Naprosyn. Mrs. Randhawa also complained of low back ache with pain radiating into her left leg in July 1995. She continued to complain of backache in October 1995, and Dr. Kular planned to arrange a CT scan of her lumbar spine. Mrs. Randhawa attended at Dr. Kular's office 11 times in 1996 before the accident. Dr. Kular recorded four visits at which her chief complaint or his diagnosis was backache or lumbar strain. One occasion followed a fall on a slippery floor, after which she was unable to get up. On another occasion, a month before the accident (October 24, 1996), Dr. Kular again recorded that Mrs. Randhawa's lower back pain at times radiated into her legs. In early January 1996, Dr. Kular sent her for a CT scan of her back. The CT scan revealed no evidence of disc herniation or spinal stenosis. The radiologist found a moderate amount of facet osteoarthropathy at the L4-5 level. X-rays taken on the same date showed signs of degenerative and sclerotic changes in the sacrum.

In 1996, before the accident, Mrs. Randhawa also visited Dr. Kular four times with upper respiratory infections, once with a bad cold, once for a sprained ankle, and once when he diagnosed an anxiety reaction.

In the year preceding the accident of November 30, 1996 Mrs. Randhawa attended on three different family practitioners other than Dr. Kular, complaining of back pain. In January 1996, four days after Dr. Kular discussed the results of her CT scan with her, she consulted Dr. A. Damji, who was recommended by a friend, Mrs. Randhawa testified. Dr. Damji recorded that Mrs. Randhawa reported low back pain for six months with no history of injury. He suggested exercises, changing her bed as a trial, and prescribed Toradol 10 mg three times daily.

On cross-examination, Mrs. Randhawa admitted going to Dr. Damji and stated that even now, if someone recommended any doctor to her, she would go. She said the prescriptions he gave her made no difference. She admitted that whatever he wrote of her history in his records would be what she told him. However, Mrs. Randhawa did not recall telling him she had been shovelling snow. She testified she never has shovelled snow since she came to Canada.

Mrs. Randhawa visited a female family physician in the summer of 1996. Dr. S. Syed recorded that she complained of backache for 15 years following a miscarriage and a fall down stairs 15 or 16 years previously. She recorded that Mrs. Randhawa did not complain of radiation of pain to her legs. Mrs. Randhawa returned to the office seven weeks later and saw another doctor in that office. That physician recorded complaints of insomnia and of left leg pain and backache, secondary to a fall 14 to 16 years ago. He performed tests of straight leg raising and tested her reflexes, both of which he concluded were within normal limits. He prescribed Arthrotec tablets.

Ten days later Mrs. Randhawa was seen by Dr. Syed again, who recorded complaints of persistent backache and headaches off and on. She found Mrs. Randhawa's musculoskeletal system unchanged and suggested that the Arthrotec be continued. Two weeks later, on October 11, 1996 (seven weeks before the accident), when Dr. Syed diagnosed a viral illness, she found Mrs. Randhawa's musculoskeletal system to be functioning within normal limits.

Mrs. Randhawa testified that her children are now aged 24, 21, and 17. This would mean they were born in 1976, 1979 and 1983. Mrs. Randhawa testified that she gave birth by caesarian section to all three children. On cross-examination, Mrs. Randhawa admitted it was possible that she told Dr. Syed about a miscarriage about 1981, but she could recall no stairs that she had fallen on. She reiterated several times that their apartment at that time had no stairs. She recalled back pain in 1982 with her pregnancy. Mrs. Randhawa stated that Dr. Syed had not made a mistake recording that she had suffered back pain for 15 years. She testified that the pain used to come and go. She testified that she did not tell Dr. Syed about the accident in 1984 at Imperial Feather. She stated she only told her about the slowly increasing back pain.

Mrs. Randhawa testified that she knew she fell at work and had a problem with her leg. When she had the next accident, she also had a problem with her leg. Now this accident has ruined her completely.

Mrs. Randhawa testified in chief that she used to see Dr. P. Mand on weekends or whenever Dr. Kular was not available, if she had an emergency. According to his records, and the OHIP records, Dr. Mand treated Mrs. Randhawa 28 times between February 28, 1996 and December 13, 1999. Within two weeks of the accident, on December 12, 1996, Mrs. Randhawa visited Dr. Mand complaining of fever and cough. Dr. Mand's notes do not record Mrs. Randhawa mentioning her recent motor vehicle accident, which she testified left her almost completely incapacitated for about three months.

In the year preceding the accident, the records of Easy Enterprises Inc. show that Mrs. Randhawa appears to have been absent due to illness from her weekday employment about nine days: February 28, March 6 and 7, May 31, June 6, September 5 and 7, October 25, and November 25, 1996. No attendance records from Mrs. Randhawa's weekend job were produced, but a letter from that employer indicated that she did not miss many days of work and her attendance record was very good. From my comparison of Mrs. Randhawa's attendance records at Easy Enterprises, her OHIP records and doctors' notes, it would appear that only one day of absence from her main job, reportedly on account of illness, closely coincides in time with an attendance at a doctor's office for musculoskeletal complaints. On October 24, 1996 Mrs. Randhawa was seen by Dr. Kular, her family doctor, with complaints of "painful lower back" with pain radiating to legs at times. Dr. Kular prescribed Relafen, a non-steroidal anti-inflammatory medication, and more fluids. She was off work on October 25, 1996. Mrs. Randhawa's attendance at Dr. Kular's office five days before the accident, on November 25, 1996, related to a bad cold and she was off work one day.

I conclude that Mrs. Randhawa suffered from chronic recurring backache, at times with pain radiating into her legs, prior to the accident. In early 1996, a CT scan of her lower back revealed osteoarthritis, degenerative and sclerotic disease. She tried many different medications for pain and inflammation and was prescribed physiotherapy treatment. She also sought out the opinion of other family practitioners about her back pain, but she continued to work, seven shifts a week. One month before the accident, however, she was off work because of low back pain.

Test for eligibility.

In order to qualify for further income replacement benefits, after September 24, 1997, until 104 weeks after the accident, Mrs. Randhawa must prove that she sustained an impairment caused directly by the 1996 accident and continued to suffer a substantial inability to perform the essential tasks of her employment. "Impairment" is defined in the Schedule to mean a "loss or abnormality of a psychological, physiological or anatomical structure or function."

First, I will consider Mrs. Randhawa's job and its essential tasks. Next, Mrs. Randhawa's evidence about her ability to perform her essential tasks. Then the evidence about the cause of Mrs. Randhawa's condition and the question of credibility.

Essential tasks:

Mrs. Randhawa presented a good amount of evidence about her essential tasks as a packer of plastic bottles. Both Mrs. Randhawa and a quality control manager/supervisor at her weekday employer testified about the job and several photographs of the machines and work stations were filed. In addition, her physiotherapist and an occupational therapist hired by Liberty attempted to analyse the physical demands of her job, although neither visited the workplace. Their written reports were also filed as evidence.

I find that Mrs. Randhawa was employed as a packer of newly manufactured plastic bottles. She was required to pack bottles into cartons, after inspecting and breaking off superfluous neck and tail pieces on some products. Once the cartons were full, she had to seal the boxes with tape. The supervisor testified that the most productive machine manufactured more than 10,000 bottles during an eight-hour shift, that would be packed into 45 cartons. The workers rotated daily among 12 different machines. The machines ran constantly. No worker was permitted to sit to perform her duties.

I find Mrs. Randhawa needed some strength in this job to lift, carry, push and pull up to approximately 15 pounds in weight, infrequently. She was required to reach at and below shoulder level and constantly handled bottles with both hands. She needed the stamina and endurance to stand for almost eight hours and to walk as she performed her duties. She needed to bend, to assemble and tape boxes together and seal them. She occasionally had to kneel or crouch to collect pans of rejected plastic that would be remelted. She needed to work fast, with only two or three short breaks during a shift, totalling 40 to 45 minutes.

Ability to perform essential tasks:

With this background, the question becomes, after September 22, 1997, is it more likely than not that Mrs. Randhawa's injuries from the motor vehicle accident of November 30, 1996 significantly or materially contributed to her inability to perform the essential tasks of her employment?

Mrs. Randhawa testified that the residual pain from the accident is constant, unlike the back pain she experienced before November 30, 1996. She experiences the back pain all across her back from the bottom to the top. Previously, she testified, her back pain occurred every two to three months, or was aggravated by the weather, by too much walking or by her job, but now it is constant. She testified that she can stand for 10 to 15 minutes, or at most, 30 minutes if she really pushes herself. After that, she experiences a great deal of back pain and both legs go numb. She has very little energy. Mrs. Randhawa also described a feeling of numbness or heaviness in her left shoulder and arm, which varies from a sharp pain to sometimes just a small amount of pain.

Mrs. Randhawa also testified that she is always thinking and worrying and crying about her loss of two jobs. She is worried about not earning money and feels if she had more education, she could work at a light job where she could sit. She believes the only work she can do without education is factory work, but because of pain in her head, back, neck and arm she cannot do this.

Mrs. Randhawa first visited Dr. Kular after the accident on December 2, 1996—the Monday after the Saturday accident. According to his notes, Mrs. Randhawa appeared "anxious and scared" to Dr. Kular and complained of not being able to sleep for two days. She had complaints of neck pain, restricted motion of her neck and tenderness over her cervical spine. Dr. Kular sent her for a cervical spine x-ray and prescribed analgesic and anti-inflammatory medication. On a Disability Certificate (OCF 3/59) dated December 17, 1996 he recorded a diagnosis of whiplash-associated disorder, grade II, and post-traumatic stress disorder and coded the body parts involved as spine and lower back. However, not until her sixth visit after the accident, on February 17, 1997, did Dr. Kular make note of diminished lumbosacral flexion and extension. He recorded the following on the Health Practitioner's Certificate dated February 21, 1997:

Looks depressed. I appetite. I sleep. theadache. Feels dizzy. Marked paraspinal muscle tenderness over cervical spine. I flexion 45° & extension cervical spine. Marked paraspinal muscle tenderness over both shoulders. Tingling sensation with sensory loss both arms. Moderate degree of paraspinal muscle tenderness over L.S. spine. SLR - 80° both legs.

After the accident, Mrs. Randhawa attended physiotherapy treatment from January to late July 1997. In her first note to Dr. Kular, physiotherapist Wendy Scott noted that she would be applying interferential current and hot packs to Mrs. Randhawa's cervical and lumbar spine.

Mrs. Randhawa was assessed by an occupational therapist at her home on February 3, 1997. At that time she complained of "constant headaches, pain in her neck and lower back, pain in her left shoulder radiating down to her fingers, and pain in her hips radiating down her left and right legs. She experiences numbness in her legs after walking or standing 20-30 minutes." Mrs. Randhawa stated that she was in too much pain to attempt some movements, for example trunk and ankle movements, and could not complete 10 trials of grip strength on a hand dynamometer.

Dr. Kular completed additional disability certificates for Mrs. Randhawa dated March 21, April 29 and July 3, 1997. Mrs. Randhawa's headaches and depression seemed to increase as time passed. No progress notes from the physiotherapy clinic were filed at the hearing, although the complete record from the clinic was purportedly obtained. Mrs. Randhawa continued treatment at the clinic five days per week until late July 1997. In March 1997, Mrs. Randhawa complained to Dr. Kular of being under a lot of stress. He recorded that she did not get along with her mother-in-law. He felt she looked depressed and was emotionally labile. He prescribed Luvox, an anti-depressant medication.

After his examination of Mrs. Randhawa on May 27, 1997 (six months after the accident), Dr. Kular decided to refer her to Dr. John R. Corless, an orthopaedic specialist. Dr. Corless first examined Mrs. Randhawa on July 18, 1997.

On June 12, 1997 at the Insurer's request, Mrs. Randhawa was evaluated by a kinesiologist performing a functional capacity evaluation using the ERGOS work simulator. By that time, Mrs. Randhawa reported to the kinesiologist that she was capable of preparing tea for herself, dusting using her right hand, and doing dishes. However, she reported her sister-in-law was still performing all the cooking and cleaning tasks in the household. The kinesiologist found that "when formally asked to perform tasks, Ms. Randhawa stated an inability, however, when cognitively distracted, she demonstrated greater capabilities." Mrs. Randhawa would not complete even 50% of the evaluation. Based on the inconsistencies she demonstrated, the kinesiologist concluded that she was capable of performing at a greater functional level than she chose to demonstrate.

The same day, also at Liberty Mutual's request, Mrs. Randhawa was examined by Dr. J. Zeldin, an orthopaedic specialist. Mrs. Randhawa was assisted by an interpreter at this examination. According to Dr. Zeldin's report, she told him she had "always been in good active health prior to this injury. She has had no previous injuries." Dr. Zeldin felt she was "pain focussed with overreaction and exaggeration of response." He found no gross neurologic deficits in her arms or legs. Dr. Zeldin did not have any x-rays or x-ray reports. He could not define "a physical basis to account for her ongoing complaints of substantial impairment and disability. He felt she had suffered a mild to moderate myofascial strain and contusions. He did not feel she was able to perform her essential duties as a packer at that time. He wrote, "This disability in my opinion is not necessarily on a significant physical basis." He thought Mrs. Randhawa should be psychiatrically assessed, which she was, about two weeks later on June 25, 1997 by Dr. M. Bail.

Later, in September 1999, Dr. Zeldin was asked to review other documents which were produced relating to Mrs. Randhawa's pre-accident health. Although he did not have all Dr. Kular's clinical notes dating back to 1989, which were delivered just before the hearing began, Dr. Zeldin did have Dr. Kular's 1996 clinical notes, the worker's compensation file, diagnostic imaging reports both from before the accident and from 1997, and Dr. Syed's and Dr. Damji's notes from before the accident. Dr. Zeldin came to the following conclusion:

At the time of the November 30, 1996 collision, the patient sustained a myofascial strain to her neck and back. This was a mild to moderate strain that is consistent with pain and discomfort measured in the time frame of a few weeks or a few months. Following this time frame, the patient continued to have ongoing complaints that were far greater in duration and severity than one could explain on a physical basis. Having reviewed the patient's previous records, the explanation becomes less mysterious, that is to say her ongoing complaints are similar to those that were present and recorded prior to the accident. My opinion remains that while one has no desire to deny the patient any ongoing complaints, there are no findings to suggest any significant physical residual as a consequence of her motor vehicle accident of November 30, 1996.

On June 25, 1997, at Liberty Mutual's request, Mrs. Randhawa was examined by Dr. M. Bail, a psychiatrist. He noted many inconsistencies in his interview with Mrs. Randhawa. He felt the clinical examination did not bear out any problems with memory or concentration and that her symptoms did not support a diagnosis of depression, let alone post-traumatic stress disorder. He felt she was not psychiatrically disabled and suspected that she was exhibiting "Malingering Behaviour." He recommended her antidepressant medication be discontinued, as well as her analgesic medication.

Liberty Mutual terminated Mrs. Randhawa's income replacement benefits, effective September 22, 1997 by notice dated August 28, 1997 based on the conclusions of Dr. Zeldin's and Dr. Bail's insurer's examinations.

Dr. Corless, the orthopaedic specialist to whom Dr. Kular had referred Mrs. Randhawa first examined her on July 18, 1997. Dr. Corless wrote a short report to Dr. Kular. He did not appear to have any information about her pre-accident history. Dr. Corless wrote:

This 47 year old woman was in today concerning her low back problem. She was involved in a motor vehicle accident at the end of November last year. In the accident she hurt her low back along with other injuries but apparently there was no fractures. (sic) The back pain now travels down the back of her left thigh and into her foot but it is still the back which has the predominant symptoms. She has been attending physiotherapy since the accident but told me today she felt no better.

Clinically she could hardly move her back at all with spasm but on neurologic examination, while her reflexes were equal and active and there was no muscle wasting, she gave way with a cogwheel type movement on testing dorsi and plantar flexion of her feet.

I had radiographs done today and they are normal.

I think this is probably a functional problem, i.e. a reaction to pain, but because of her leg pain I am going to get a CT scan. If it is normal, then I think it will be a matter of pain control at a clinic.

The CT scan was carried out on August 29, 1997. Dr. Corless felt the scan results were negative and suggested Dr. Kular arrange for Mrs. Randhawa to be seen in a pain clinic "as she does not require any orthopaedic treatment."

Dr. T. K. Banik, a psychiatrist, saw Mrs. Randhawa on June 23, 1998 after a referral from Dr.Kular. Dr. Banik's introductory paragraph of his consultation note to Dr. Kular reveals that Mrs. Randhawa to continue to see him on a regular basis. He diagnosed her condition as "adjustment disorder related to chronic pain condition contributed by a motor vehicle accident." He felt treatment for her chronic pain would be the most important aspect of her treatment at that time.

Despite this recommendation and Dr. Corless' earlier recommendation, Dr. Kular never referred Mrs. Randhawa to a pain clinic. He testified at the hearing that he tried to find a Punjabi-speaking pain clinic and could not find one. He also testified that he thought since Liberty Mutual had refused to pay for continuing physiotherapy, they would never pay for treatment in a pain clinic. In any event, no referral was ever made, except Mrs. Randhawa did return to a Punjabi-speaking psychologist for more sessions.

Mrs. Randhawa received four sessions of treatment with a psychologist, Dr. G. Malik, "for post-traumatic stress disorder therapy with special focus on depression reduction" at the end of 1997 and in early January 1998. Dr. Malik recommended 16 to 18 further sessions, attending every 2 to 3 weeks. I received no evidence at the hearing whether this treatment plan was approved or not. In any event Mrs. Randhawa did not receive further psychological treatment from Dr. Malik until January and February 1999 (four more sessions). Dr. Malik was able to communicate with Mrs. Randhawa in Punjabi.

Mrs. Randhawa was also seen by psychiatrist Dr. Lal Takrani on February 15, 1999. He diagnosed Mrs. Randhawa as showing "Adjustment Disorder with depressed mood as well as Chronic Pain Problem." He indicated that he would see Mrs. Randhawa again in two weeks' time to assess her progress and offer her supportive therapy, but it appears that Mrs. Randhawa never returned to him as scheduled. No further reports from Dr. Takrani were filed, although it would appear he saw Mrs. Randhawa once more on July 26, 1999, according to the OHIP records.

Credibility:

Mrs. Randhawa saw many health practitioners after the accident of November 30, 1996 and told none of them about her long history of neck, back and leg pain, her workplace accidents in 1984 and 1988 and two motor vehicle accidents in 1991, although, according to at least some of the reports, she was asked directly and specifically about such incidents and symptoms. At the arbitration, she still denied being involved in more than one motor vehicle accident in 1991. Although my only source of information with respect to two accidents in 1991 is the clinical notes of Dr. Kular and the x-ray reports, I find these documents credible sources of contemporaneous information. I find Mrs. Randhawa was involved in two motor vehicle accidents in 1991 for which she sought medical treatment from Dr. Kular. I accept that over the past nine years Mrs. Randhawa may have legitimately forgotten the first accident and was not being deliberately untruthful at the hearing.

Mrs. Randhawa testified several times at the hearing that she did not tell any health practitioner about her medical history because she did not want to have any problems with this claim. Mrs. Randhawa knew about having problems with claims from her involvement with the WCB over several years and different levels of appeal. She had also been involved in prior motor vehicle accidents in which she was injured. The similarities in Mrs. Randhawa's recorded complaints of her health condition following the 1996 motor vehicle accident and her condition in 1980s following workplace accidents are startling. However, despite her complaints in the late 1980s, Mrs. Randhawa returned to work, two shifts per week, as a packer of plastic bottles in July 1991 and began a second, similar full-time job in November 1993. She continued to complain of neck, back, and leg pain to Dr. Kular and others through the early 1990s. Her chronic complaints prompted Dr. Kular to refer her for a CT scan, carried out in January 1996. A month before the accident, she was off work for a day because of back pain.

Mrs. Randhawa's case rests on her alleged experience of pain. No one can prove or disprove that she suffers debilitating pain. However, no health practitioner has indicated a significant source of objective evidence of injury. When Mrs. Randhawa was examined and tested in June 1997, three examiners uniformly noted significant inconsistencies in her presentation. Dr. John Corless, the orthopaedic specialist to whom Dr. Kular referred her, thought her problem was "a functional one, i.e. reaction to pain." He never expressed any opinion about the cause of Mrs. Randhawa's problems, and, indeed, he knew nothing of her pre-accident history. Credibility is key when little objective evidence of impairment is found. Mrs. Randhawa has been shown to be untruthful when it suits her purposes. After this accident, she gave false answers, on multiple occasions, to direct questions that could have impacted on the opinions of health practitioners about the effect of the 1996 accident on her condition. Even before the accident, she attended on other family practitioners and specialists and gave them incomplete information about her past history of back, leg and neck pain. This is important evidence. Once a person has shown herself willing to lie, it is most difficult to accept her uncorroborated testimony at face value in an arbitration proceeding where she stands to gain financially. Even at the hearing, Mrs. Randhawa testified that she suffered from back pain prior to the 1996 accident "every two or three months" and that it was aggravated by poor weather, or too much walking, or by her job. According to Dr. Kular's notes and the other medical practitioners' records that were filed, she complained of back pain and sought treatment for it much more frequently.

Conclusion:

Back pain is Mrs. Randhawa's main complaint at this time. Even if I accept her testimony of the intensity of her symptoms, which I do not entirely, in my view, she has not presented sufficient credible evidence to substantially link these ongoing complaints to any injury she suffered in the motor vehicle accident of November 30, 1996. Her family doctor's notes for the first five visits after the accident, representing nearly nine weeks of post-accident recovery fail to mention any symptoms or observations of lumbar sacral spine tenderness, restriction, or pain. In mid-February 1997, diminished flexion and extension of her lumbar spine becomes noteworthy, for two visits on February 17 and 21, 1997 although, thereafter in his clinical notes, no note of lumbosacral tenderness is made again until May 27, 1997, when Dr. Kular decided to refer Mrs. Randhawa to Dr. Corless.

In Dr. Kular's initial Disability Certificate in mid-December 1996, no reference to lower back strain, sprain or inflammation is made except in the injury coding. The Disability Certificates sent to Liberty Mutual following visits on March 21, 1997³ and April 29, 1997 also differ from Dr. Kular's clinical notes and report of paraspinal muscle tenderness over the lumbosacral spine and moderate muscle spasm over the lumbosacral spine in March 1997 and diminished straight leg raising to 70 degrees for both legs in April 1997. Dr. Kular also noted diminished flexion and extension in the lumbar spine in the April visit. At the hearing, Dr. Kular was not questioned about the differences between his clinical notes and the information on the disability certificates.

The physiotherapist's initial report of January 9, 1997 noted subjective reports of pain in both the cervical and lumbar spine, the left shoulder and arm, and the left thigh. She notes some "objective findings" in the lumbar spine, some of which include findings of tenderness as Mrs. Randhawa's response to palpation. However, the physiotherapist was under the impression that Mrs. Randhawa had "no previous history"and had not treated her in the past.

Mrs. Randhawa's pre-1996 accident history of back and leg pain is significant and long-standing. I do not accept the explanation Dr. Kular gave in testimony at the hearing for his failure to note on the disability certificates and health practitioner's certificate that he had treated Mrs. Randhawa for "similar conditions" prior to the accident. His vague and confusing explanation concerned whether or not he mentioned degrees of flexion in prior notes. In my view, Dr. Kular's advocacy on Mrs. Randhawa's behalf undermines his opinion.

In addition, Dr. Kular's narrative report of December 2, 1997 does not accurately set out the history of Mrs. Randhawa's complaints following the accident, as recorded in his clinical notes, since it lumps together complaints of lumbar spine tenderness with complaints of cervical tenderness, of which she is reported to have complained at the outset. It is especially significant that Dr. Kular's report also fails to mention Mrs. Randhawa's pre-accident history of neck and back pain and any role this might have played in her symptoms in the year following the accident. In my view, the failure to address this issue puts into question any opinion Dr. Kular has voiced about the cause of Mrs. Randhawa's ongoing complaints. I find Dr. Kular's report also exaggerates the lifting involved in Mrs. Randhawa's job, suggesting that she has to "do heavy lifting, bending, squatting and carry heavy materials." Since I do not know the source of his job description information, Dr. Kular may be repeating inaccurate information obtained from an unreliable source. In any event, I do not find his opinion about Mrs. Randhawa's ability to work of any value, since I find his description of her job to be significantly distorted.

The Schedule requires Mrs. Randhawa to prove, on a balance of probabilities, that she sustained a disabling impairment "as a result of" the motor vehicle accident. A mere possible causal connection is not enough to satisfy the civil standard of proof on a balance of probabilities. No health practitioner has testified or written a report that squarely addresses Mrs. Randhawa's pre-accident health condition and opines that any injury she received in the accident "probably" (or "more likely than not") contributes significantly to Mrs. Randhawa's alleged ongoing back pain. I am prepared to accept that Mrs. Randhawa's recurrent neck and back complaints were exacerbated for a time by the soft tissue injuries she sustained in the accident. However, in my view, the contemporaneous records from Mrs. Randhawa's early treatment after the accident show that the 1996 accident primarily affected her neck. I am not persuaded that the accident remained a significant factor in any symptoms she continued to have after September 22, 1997.

In reaching this conclusion, I have considered Mrs. Randhawa's age, her work history, her work accident history, the nature of degenerative disc disease, her long history of recurrent low back and leg complaints since the early 1980s, the nature of the accident, her general lack of credibility and the significant length of time which passed following the accident before Dr. Kular recorded any significant complaints of low back pain.

For the reasons given above, I do not accept that after September 22, 1997, Mrs. Randhawa was disabled from work as a result of physical injuries resulting from the accident. Nor am I persuaded that she sustained any direct psychological impairment as a result of the accident that disabled her from performing the essential tasks of her job after September 22, 1997. I accept that Mrs. Randhawa has psychological difficulties or is "depressed," in layman's terms, because of her perceived physical disability. However, I have found that if she remains disabled, it is mainly because of her pre-existing back problems and not significantly or materially as a result of injuries from the 1996 accident. Since Mrs. Randhawa's psychological symptoms are secondary to her physical injuries, it follows that they too do not directly result from the accident after September 22, 1997.

Entitlement after 104 weeks:

Subsection 5(2)(b) of the Schedule sets out the test for entitlement after 104 weeks of disability:

(2) The insurer is not required to pay an income replacement benefit, (...)

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training, or experience.

Mrs. Randhawa submitted that given her age, lack of education, and work history there is no job that she could presently engage in, competitively, with regular attendance. Liberty Mutual submitted that Mrs. Randhawa must submit probative evidence about her inability to do any job.

Given my finding that, after September 22, 1997, Mrs. Randhawa was not substantially disabled from performing the essential tasks of her regular employment as a result of any injury she received in the accident, it follows that she has not met her burden of proof with respect to this issue.

Amount of Benefit:

Mrs. Randhawa forwarded a completed Application for Accident Benefits, dated January 12, 1997, to Liberty Mutual. On that form she disclosed only her employment with Easy Enterprises Inc., not her weekend employment with Silgan Plastics Canada Inc., or Express Plastics, as it was called at the time she worked there. Easy Enterprises Inc. provided an Employer's Confirmation of Income form dated December 23, 1996. Liberty Mutual paid Mrs. Randhawa income replacement benefits of $252.74 per week until September 22, 1997, based on the Easy Enterprises income. No one notified Liberty Mutual that Mrs. Randhawa also had a second job until March 8, 1999. Mrs. Randhawa submitted that Liberty Mutual has not been prejudiced by her failure to disclose the second job before March 1999. She is not claiming interest on the difference in weekly income benefits until that time.

Mrs. Randhawa explained that her daughter helped her complete the Application for Accident Benefits. Mrs. Randhawa testified that she only reads English "a little bit." At the arbitration hearing, she gave her evidence in the Punjabi language. Mrs. Randhawa did not know that she could claim income lost from more than one job. Mrs. Randhawa's daughter, Varinder Randhawa, testified that she wrote what her mother told her on the form. She read the form to her and Mrs. Randhawa told her the answers.

Subsection 32(3) of the Schedule provides that a person who wants to apply for a benefit under the Schedule must submit her application to the insurer within 30 days after receiving the forms. I find that Mrs. Randhawa's failure to comply with the 30-day time limit of subsection 32(3) as far as the information from Silgan is concerned should not disentitle her from receiving income replacement benefits based on this employment. I find that Mrs. Randhawa has offered a "reasonable explanation," as section 31(1) provides:

(1) A person's failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.

Mrs. Randhawa is barely literate in English. She relied on her daughter to help her complete the application for benefits. She omitted a source of employment income which would have enhanced her income replacement benefits. Mrs. Randhawa did not know she could include both her jobs. Liberty Mutual provided no evidence that Mrs. Randhawa was interviewed by the insurer or asked to give any statement about the accident, her injuries, or her employment which might have led to the discovery of her second job earlier in the process. Neither did Liberty Mutual provide any evidence what, if any, information it provided Mrs. Randhawa to assist her in applying for benefits, or whether it provided a "written explanation of the benefits available under this Regulation" as section 32(2) requires. I also have no evidence how Liberty Mutual determined it had provided Mrs. Randhawa with "the appropriate application forms," as subparagraph 32(2)(a) requires, since it would appear she required two Employer's forms and received just one.

In addition, the form of application for benefits, which is approved by the Commission, does not lead one to believe that one might list more than one concurrent employer, for example it instructs:

Give details of your employment for the past 52 weeks. Start with your current or most recent employer.

Employer is singular:

The Employer's Report form notifies an applicant that she should:

...fill in parts 1 through 3 and give the form to your employer or former employer(s) to complete the rest. Please have each employer you listed on your Application ... fill out a separate form. Extra forms are available from your insurance company. Your employer(s) will return the form(s) directly to the insurance company.

These instructions do not alert an applicant to the fact that two concurrent employers should both give information Liberty Mutual submitted that Mrs. Randhawa failed in her duty to provide it with the information it reasonably required to determine her entitlement to a benefit, contrary to subsection 33(1)1. of the Schedule. Section 33 (2) provides that a benefit is not payable for any period before the person provides any information reasonably required to assist the Insurer in determining the person's entitlement to a benefit. I do not find this subsection applicable to this issue. The operation of section 33 is triggered by a request for information from an insurer. Liberty Mutual has provided no evidence it requested Mrs. Randhawa to provide it with any information, which she then failed to provide.

In these circumstances, I find that fairness dictates that Liberty Mutual should pay Mrs. Randhawa the outstanding income replacement benefits it owes her to September 22, 1997, based on her income from Silgan Plastics. Liberty Mutual paid $252.72 per week, but should have paid $346.45 per week. Liberty Mutual should pay the difference of $93.73 per week. Mrs. Randhawa is not claiming interest until March 8, 1999, when she notified Liberty Mutual about the second job. Interest should run from March 22, 1999 according to subsection 35(4) and section 46 of the Schedule.

Repayment of any benefits paid/ wilful misrepresentation:

Section 47 of the Schedule deals with repayments to an insurer. Paragraph 47(1)(a) provides that a person must repay any benefits paid to them as a result of an error, wilful misrepresentation or fraud. If the payment results from an error "on the part of the insurer, the insured person or any other person" then the insurer must give a notice within 12 months after the payment was made to reclaim the money. The notice provision does not apply to cases of wilful misrepresentation or fraud.

In this case, Liberty Mutual alleges that Mrs. Randhawa wilfully misrepresented her pre-accident medical condition. Counsel for Liberty Mutual set out the basis of its allegation in a letter dated May 26, 1999:

The claim for repayment is being pursued under Section 47(1) of the SABS. It is based on the fact that the payment was made as a result of wilful misrepresentation or fraud. In the Disability Certificates of March, April and July, 1997, Dr. Kular made no mention of any similar conditions of which Ms. Randhawa had prior to the accident in question. (sic) In fact, he treated Ms. Randhawa for some similar conditions prior to the accident.

In cross-examination, Dr. Kular responded to this allegation of misleading reporting by stating that, in his judgment, it was not a similar pain on his clinical examination. He felt it was significant that he did not mention the degrees of flexion or extension impairment in his December 1991 and January 1992 examinations of Mrs. Randhawa. Dr. Kular testified that he usually returned medical forms to his patients for forwarding, but sometimes he forwarded the forms directly to insurers.

At the hearing, in final submissions, counsel for Liberty Mutual also submitted that if Mrs. Randhawa had disclosed her receipt of a partial permanent pension from the WCB under the heading on page 7, part 9 of the Application for Benefits "Income from a Disability Benefit Plan," then Liberty Mutual might have sent her for an insurer's examination earlier and, possibly, the insurer's examiners would have found Mrs. Randhawa able to return to work earlier.

Liberty Mutual submitted that Mrs. Randhawa denied any previous problems with her back or previous accidents deliberately, because she was afraid her previous history of problems would affect her entitlement to benefits from the 1996 accident. Liberty Mutual submitted that Mrs. Randhawa's statement, when asked about previous neck pain, that if she had known this would happen, she would have told about it, should be interpreted to mean that if she had known she would be found out to have lied later, she would have told about her earlier problems.

In reply, Mrs. Randhawa submitted that her ten percent permanent pension from the former WCB is not an "income disability plan." It would be unfair to penalize Mrs. Randhawa for failing to disclose a payment to her that is not deductible from her statutory accident benefits. Mrs. Randhawa submitted that as a result of the insurer's examinations, she was found capable of a return to work, so revealing her pre-accident history could have had no possible effect on her receipt of benefits. She submitted that Liberty Mutual had not proved it relied on her failure to reveal her past medical history.

Mrs. Randhawa admitted she was not truthful about her past medical history when she was examined by various health practitioners after the 1996 accident. In this respect, she did not discriminate between health practitioners to whom she was sent by the Insurer, or those to whom she was sent by her own doctor. No health care practitioners testified at this arbitration. I have only their reports from which to understand what Mrs. Randhawa told them about her past medical history. I do not know the exact questions they asked. I do not know the precise effect her denial of past neck or back pain, for example, had on their diagnosis or reporting.

No representative of Liberty Mutual testified in this arbitration. I do not know the exact basis upon which Liberty Mutual decided to pay Mrs. Randhawa IRBs. Liberty Mutual submitted in its closing submissions, and I accept, that Mrs. Randhawa did suffer a whiplash-type injury to her neck in the accident of November 30, 1996. What Liberty Mutual complains about is Mrs. Randhawa's lack of truthfulness about her prior medical history and Dr. Kular's lack of complete candour in completing the Disability Certificates. In her letter of May 26, 1999 Liberty Mutual's counsel put forward the basis of its claim that Mrs. Randhawa had wilfully misrepresented or defrauded Liberty Mutual. This written notice is important, both so as to notify Mrs. Randhawa of this claim, in fairness to her and to comply with the provisions of section 8 of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22, as amended.⁴ Although Mrs. Randhawa's counsel did respond to Liberty Mutual's submission about Mrs. Randhawa's response to a question on the Application for Benefits in his reply submissions, in my view this allegation was raised far too late in the arbitration process to be fairly entertained.

With regard to Liberty Mutual's allegations that Dr. Kular failed to disclose his treatment of Mrs. Randhawa for similar conditions, Liberty Mutual has been entirely unsuccessful in providing any evidence that Mrs. Randhawa even knew what Dr. Kular had written in these documents, let alone providing a basis for me to find that thereby she wilfully misrepresented or fraudulently claimed against Liberty Mutual in this manner.

Accordingly, I find that Liberty Mutual has not met its burden of proof with respect to the allegation of wilful misrepresentation or fraud by Mrs. Randhawa.

Special Award:

Section 282(10) of the Act provides that an arbitrator shall award a lump sum special award to an insured person if an insurer has unreasonably withheld or delayed payments. The determination of a special award is predicated on a finding of benefit entitlement. Since I have found Mrs. Randhawa is not entitled to more weeks of income replacement benefits, I need not decide the special award issue.

With respect to the entitlement to increased IRBs from Mrs. Randhawa's weekend job, of which Liberty Mutual was not notified until March 1999, I do not find it unreasonable that Liberty Mutual withheld payment based on that employment. Although I disagree with the basis for its refusal to pay, in the context of the entire deteriorated relationship between the parties and the delay of more than two years in notifying the Insurer about the second job, I do not find its refusal to pay to be an unreasonable withholding of benefits.

EXPENSES:

In compliance with Rule 75 of the Code, the parties advised me at the close of the hearing that they wish to have an Offer to Settle or a Response to an Offer to Settle considered by me in connection with an award of expenses. If the parties cannot settle the issue of expenses between themselves, a party may apply to the case administrator for the hearing to be resumed for submissions on this issue.

September 27, 2000

K. Julaine Palmer Arbitrator

Date