Neutral Citation: 2000 ONFSCDRS 189

FSCO A-954390

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DONALD WINDSOR

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

May 29, 30, 31 and June 1, 2000, in Kitchener, Ontario.

Appearances:

Mark S. Grossman for Mr. Windsor

William, J. McCorriston for Zurich Insurance Company

Issues:

The Applicant, Donald Windsor, was injured in a motor vehicle accident on June 29, 1993. He applied for statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich did not pay any weekly benefits. The parties were unable to resolve their disputes through mediation, and Mr. Windsor 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:

1. Is Mr. Windsor entitled to weekly benefits under section 13 of the Schedule until June 29, 1996?

2. Is Zurich entitled to deduct vocational rehabilitation benefits from the section 13 weekly benefits?

3. Is Mr. Windsor entitled to interest on the weekly benefits under section 24(4) of the Schedule?

Result:

1. Mr. Windsor is entitled to weekly benefits under section 13 until May 1, 1995.

2. Vocational Rehabilitation benefits are not deductible.

3. Mr. Windsor is entitled to interest from July 24, 1993 and ongoing.

EVIDENCE AND ANALYSIS:

Mr. Windsor withdrew his claims for supplementary medical and rehabilitation expenses, transportation expenses and the cost of replacement eyeglasses and bridgework, without prejudice to his right to submit (or resubmit) these expenses to Zurich. Procedural rulings made during the course of these proceedings are set out in Appendix A.

In order to establish entitlement to weekly benefits under section 13 of the Schedule in the first 156 weeks of disability, Mr. Windsor must demonstrate that he suffered a substantial inability to perform the essential tasks in which he would normally engage, as a result of physical, psychological or mental injuries sustained in the accident.

Gary Windsor was not a reliable witness. His evidence was vague and sometimes contradictory. His memory of events and times was impaired by the passage of time. He was defensive on cross-examination. Accordingly, I have not attributed significant weight to his oral evidence. This is not fatal to his claim for weekly benefits, as there are contemporaneous medical records and other documents which record his physical and emotional condition during the claim period. Additionally, the evidence of Janice Windsor, Gary Windsor's wife at the time of the events, corroborated some of his evidence.

Pre-Accident History:

Gary Windsor had been employed at Labatt's Breweries in Waterloo from 1980 until November 1992, when the plant closed. He injured his left knee in a work-related accident in 1986, and suffered various periods of injury-related absences. He was awarded a permanent pension in respect of this injury.

Prior to the plant closure, Mr. Windsor was working on modified duties, with restrictions against heavy lifting. From September 21 to November 30, 1992, Mr. Windsor participated in a Physical Conditioning Program in conjunction with the Worplace Safety and Insurance Board² ("WSIB"). At the time of his discharge, the physiotherapist recommended that Mr. Windsor return to his regular duties and encouraged him to continue with an active lifestyle.

After the plant closed in November 1992, Mr. Windsor was eligible for vocational rehabilitation retraining with the Worker's Compensation Board, in light of his work-related knee injury. He took some high school upgrading courses from January to May 1993 and then began researching potential retraining opportunities. Mr. Windsor testified that he had researched a three-year computer training program at DeVry in Toronto, to commence in September 1993. However, this had not yet been approved by the Worker's Compensation Board. Mr. Windsor was paid a temporary monthly vocational rehabilitation supplement from January 6, 1993. Janice Windsor testified that since Mr. Windsor was not working at that time, he took on more of the household chores. He did the grocery shopping, some cooking and cleaning, and most of the heavy gardening. The Windsors were avid antique collectors. They attended garage sales and auctions and their house was crowded with antiques which needed to be cleaned and dusted. Socially, they went to the movies regularly and attended parties infrequently. I accept Janice Windsor's evidence as accurately depicting the primary activities that Gary Windsor engaged in prior to the accident.

Gary Windsor testified that prior to the accident he also engaged in hiking, cross-country skiing and a host of other activities. However, he did not specify that he engaged in these activities shortly before the accident, but rather gave the impression that he was describing activities that he may have engaged in years prior to the accident. For example, he testified that he attended open houses regularly. Later he clarified that he engaged in this activity less frequently after he bought a house in 1986. His evidence was not sufficiently focussed to permit me to conclude that he engaged in those activities regularly, prior to the accident. Further, Janice Windsor did not corroborate his evidence with respect to these other activities. Janice Windsor would be aware of his activities prior to the accident, and I accept her evidence on that point.

Mr. Windsor testified that he was generally in good health prior to the motor vehicle accident. The clinical notes and records of Mr. Windsor's family physician, Dr. Stewart confirm that, as of May 1993, his left knee was not "as problematic as it has been," although he experienced occasional aching. Dr. Stewart also noted that Mr. Windsor was "under a bit of stress as far as being laid off by Labatt's."

Just prior to the motor vehicle accident, Mr. Windsor complained of numbness in his left thigh and double vision. Dr. Stewart noted that he was "terribly anxious about everything." Dr. Stewart sent him for various tests to investigate these symptoms, but they all came back negative.

The Accident and its Aftermath:

On June 29, 1993 Mr. Windsor was involved in a motor vehicle accident. His car was struck on the driver's side. Although he was noted to be somewhat dazed at the time, he managed to drive his car home. The car was subsequently towed away and not repaired. That evening, Mr. Windsor attended at Urgent Care, a walk-in medical facility, complaining of pain in the low back and neck. X-rays of the cervical spine, thoracic, and lumbar spine did not reveal any objective abnormalities. By July 13, Mr. Windsor began using a cane.

From August to November 1993 Mr. Windsor attended physiotherapy and did pool exercises, upon the recommendation of Dr. Stewart. He attended at Dr. Stewart's office regularly, complaining of neck and low back pain. Dr. Stewart prescribed pain medication and muscle relaxants.

In September 1993, Zurich initiated some surveillance of Mr. Windsor. The surveillance depicted Mr. Windsor walking with an irregular gait and carrying a cane. He was observed to bend over on a few occasions without displaying any noticeable signs of distress. He drove on a couple of occasions and was observed shopping with his mother.

In November 1993, Dr. R. McCon, a physiatrist, examined Mr. Windsor at Dr. Stewart's request. Dr. McCon noted that Mr. Windsor voluntarily guarded his neck, but was able to obtain a full range of motion in the cervical spine, with encouragement. He noted a limited range of motion in the lumbar spine, due to voluntary guarding. Dr. McCon concluded that there were no neurological or structural problems, and that Mr. Windsor's complaints were out of keeping with the objective findings.

Also in November 1993, Dr. Stewart became concerned with the limited range of motion Mr. Windsor displayed, and recommended that he stop driving until his condition improved.

Dr. Stewart wrote to the Ministry of Transportation recommending that Mr. Windsor's license be suspended, due to his difficulties in moving his neck and back.

In December 1993, both Dr. Stewart and the physiotherapist noted that Mr. Windsor was slowly improving. He was discharged from further physiotherapy but advised to continue to use the pool on his own.

On December 20, 1993, Mr. Windsor was examined by Dr. C. I. Arciszewski, an orthopaedic surgeon, at the request of Zurich. Dr. Arciszewski noted that Mr. Windsor's voluntary guarding of his neck and back made it impossible to ascertain a true range of motion. He concluded:

It is, unfortunately, fairly evident that Mr. Windsor has developed what I feel is a chronic pain syndrome, admittedly it has happened rather soon after the accident, but I suspect that other factors were at play due to his previous involvement with WCB and, as such, through no real fault of his own, he, at the present time, finds it difficult to function in any normal way.

From January 1994 to June 1996, Mr. Windsor attended massage therapy with Ms. D. M. Brenneman.

In March 1994, he resumed further physiotherapy and pool exercises. The initial physiotherapy report noted that cervical and lumbar range were limited to approximately 1/2 the normal range.

In May 1994, Mr. Windsor was videotaped driving a car on one occasion, despite Dr. Stewart's recommendation that he abstain from driving. While he was seen carrying the cane, he did not appear to be relying on it.

In July 1994, Dr. Stewart watched Mr. Windsor arrive for a visit, and noted that "he did not seem to use his cane for any assistance." Dr. Stewart recommended minimizing the use of the cane.

In August 1994, Dr. Stewart advised Mr. Windsor that he could return to driving, and also wrote a letter to the Ministry of Transportation to that effect.

In October 1994, Dr. Stewart noted an element of depression, due to the length of time Mr. Windsor had been off work.

Around this time, Mr. Windsor campaigned for a part-time position of local alderman. He posted approximately 100 signs on telephone poles, and participated in a television interview and a community meeting.

By January 1995, Dr. Stewart's clinical notes indicate that Mr. Windsor was still complaining of low back pain, and reporting difficulty with prolonged sitting for more than one hour. However, his neck seemed improved.

By January 1995, Ms. Brenneman, the massage therapist also noted that Mr. Windsor's range of motion in his neck, shoulder, waist, hip and pelvis, were pretty close to normal and remained so throughout her treatment. She also noted that his neck and back muscles were tight and that he remained pain focussed throughout her treatment.

Despite Dr. Stewart's recommendation to get rid of the cane, Mr. Windsor continued to keep the cane as a "psychological crutch."

In July 1996, video surveillance showed Mr. Windsor gardening for approximately half an hour. He was seen using an edger to widen a flower bed. After half an hour of activity, he lay down on the grass to rest and was seen walking gingerly, using the gardening tools as canes.

In December 1996, Dr. Stewart recommended that Mr. Windsor find another family physician.

In late December 1996, Mr. Windsor contacted the Worker's Compensation Board, which sent him to a work-hardening program. His WCB benefits were reinstated, and he began retraining.

In early June 1997, the Windsor's house was destroyed by fire. Soon afterwards, Mr. Windsor began working with Budd Automotive, initially running the press, and eventually moving into a welding position.

However, by May 1998, he was experiencing considerable stress, and began seeing Dr. C. Pierce, a clinical psychologist. Dr. Pierce described Mr. Windsor as "clinically paranoid." In January 1999, following a neurocognitive examination by Dr. J. McLachlan, Mr. Windsor was diagnosed with an adjustment disorder with mixed anxiety and depressed mood. He began therapy with

Dr. Pierce & Associates for the numerous stresses in his life. Dr. Pierce did not specifically attribute Mr. Windsor's emotional condition to the motor vehicle accident.

The Claim Period:

Mr. Windsor claims entitlement to weekly benefits under section 13 of the Schedule for three years following the motor vehicle accident. He alleges that during that time he suffered a substantial inability to perform the essential tasks in which he would normally engage. Although he maintains that he continued to suffer pain beyond July 1996, he is not claiming benefits beyond that date.

Essential tasks are those which are engaged in on a regular or usual basis prior to the accident. They involve an element of commitment to oneself, one's family or one's community. Several arbitration cases dealing with section 13 have held that essential tasks relate to matters of personal care, familial duties, general household chores, and searching for employment. I find that prior to the accident, Mr. Windsor's essential tasks included self-care, grocery shopping, household chores, gardening, attending auctions and garage sales, and participating in vocational rehabilitation training. Although Mr. Windsor continued to suffer some residual left knee injury prior to the accident, this did not disable him from these activities. Although Mr Windsor displayed some anxiety about his job status and his health prior to the accident, he was not functionally disabled by these concerns.

As a result of the accident, Mr. Windsor experienced neck and low back pain, which is consistent with the whiplash injury he sustained in the motor vehicle accident. Pain medication, physiotherapy, and pool exercises failed to resolve his pain complaints in the usual manner. By November 1993, although Dr. McCon was able to obtain a normal range of motion in his neck, with encouragement, Mr. Windsor voluntarily restricted his neck movements due to pain. He also voluntarily guarded his back movements. In December 1993, Dr. Arciszewski also found that Mr. Windsor voluntarily guarded his movements and that there were no neurological or structural reasons preventing movement. I conclude that although he was likely physically capable of moving his neck and back in a normal fashion, Mr. Windsor voluntarily restricted himself, due to pain.

It is well accepted in the arbitral jurisprudence that an insured may be entitled to weekly benefits if he is genuinely functionally restricted by pain, even in the absence of objective physical injury. Mr. Windsor must establish that he genuinely experienced pain, that the pain functionally restricted him from engaging in the essential tasks that he would normally engage, and that the pain was the result of the motor vehicle accident.

I accept that Mr. Windsor genuinely experienced pain for some time after the accident. The evidence does not demonstrate that Mr. Windsor was motivated by a desire for financial gain. On the contrary, as will be discussed later, Mr. Windsor did not actively pursue a claim for weekly benefits or medical expenses. His WSIB vocational rehabilitation benefits were terminated in July 1993 because he ceased participating in vocational rehabilitation activities due to his motor vehicle injuries. From a financial perspective, Mr. Windsor had the potential to claim over $2,000 per month in vocational rehabilitation benefits, simply by pursuing and participating in retraining which did not appear to be physically demanding.

The clinical notes and records of Dr. Stewart document consistent and frequent complaints of pain in the neck and low back after the accident. Mr. Windsor testified (and his evidence on this point is corroborated by Janice Windsor) that after the accident, he ceased doing his pre-accident activities, due to his pain. He no longer did his share of the household chores or grocery shopping. He ceased gardening, and attending auctions. He moved out of the second floor bedroom and slept on a couch downstairs. He did not pursue a potentially promising rehabilitation program. He attended physiotherapy, pool therapy, and massage therapy. He took prescribed pain medication and anti-inflammatory medication.

I conclude that for some period of time after the accident, Mr. Windsor genuinely experienced pain in his neck and back and that his pain restricted him from engaging in the essential tasks in which he would normally engage.

There was some suggestion in Dr. Arciszewski's report that Mr. Windsor's prior WCB knee injury was responsible for his chronic pain condition. Mr. Windsor need not establish that the motor vehicle accident was the sole cause of his chronic pain. While his pre-accident injury may have made him more sensitive to pain, and thus more prone to develop a chronic pain condition, this does not mean that his chronic pain is not the result of the accident. I have already found that Mr. Windsor, although anxious and experiencing residual pain from his left knee, was functioning at all his essential tasks prior to the accident. Immediately after the accident, Mr. Windsor experienced neck and low back pain which never completely resolved. I am satisfied that the accident made a material contribution to the development of Mr. Windsor's chronic neck and low back pain.

The more difficult issue is determining the length of time Mr. Windsor continued to be genuinely restricted by pain.

Zurich relied on the surveillance taken in September 1993 to demonstrate that Mr. Windsor could move his neck and back with some fluidity. The surveillance does demonstrate some discrepancy between Mr. Windsor' ability to move his neck and back, and his quite restricted range of motion during medical visits. I conclude that Mr. Windsor's perception of his ability to move his neck and back was at odds with his actual ability. I find that Mr. Windsor had a greater range of motion than he believed or demonstrated in a medical setting. Nonetheless, for the reasons discussed above, I still find that Mr. Windsor was genuinely feeling pain and restricted himself functionally due to that pain.

Dr. Stewart wrote a report in May 2000 reviewing his clinical notes and records and concluding that by April 1994, Mr. Windsor was suffering more from the psychological impact of his disability and/or ongoing litigation against Labatt's and his marital difficulties.

In my opinion, it was quite clear after this date, that there was an inconsistency between his subjective complaints and his objective findings and that we were dealing more with a problem of lack of motivation. By April 1994, this patient should have physically been able to do his activities of daily living and return to work.

As Dr. Stewart was Mr. Windsor's treating physician, his opinion would generally be given considerable weight. However, I note that Dr. Stewart's opinion in May 2000 contradicts his own treatment at the time. In April 1994, Dr. Stewart continued to recommend that Mr. Windsor refrain from driving. He apparently believed that Mr. Windsor's complaints of pain were genuine, as he continued to prescribe medication and support massage therapy. Dr. Stewart suggests that after April 1994, there was an inconsistency between Mr. Windsor's subjective complaints and the objective findings. It is not clear what Dr. Stewart means by "objective findings." X-rays taken as early as July 1993 were negative. The examinations by Drs. McCon and Arciszewski demonstrated no neurological or structural abnormalities by December 1993. Thus, there was a discrepancy between Mr. Windsor's complaints and the objective findings much earlier than April 1994. However, I have already stated that pain, even in the absence of objective abnormalities, may attract weekly benefits. If by "objective findings," Dr. Stewart was referring to range of motion, then his own clinical notes continued to document limited range of motion in the neck and back well beyond April 1994. I am unable to give Dr. Stewart's opinion on this point significant weight, as he does not satisfactorily explain the basis for choosing the date of April 1994 as the point beyond which Mr. Windsor was no longer restricted by pain.

Janice Windsor did not specify how long Mr. Windsor was restricted from his pre-accident activities. She stated that Gary gradually began doing light housework, meals and gardening. She also testified that he did not really start to improve until 1999.Given the passage of time, and the vagueness of her evidence on this point, I do not find her evidence of how long Mr. Windsor was functionally restricted persuasive.

Although Mr. Windsor continued to voluntarily restrict his activities throughout the three-year claim period, I am not satisfied that he continued to meet the disability test throughout that period.

I find that by May 1995, Mr. Windsor was capable of resuming most of the essential tasks in which he would normally engage. Mr. Windsor testified that he was capable of resuming many of his household and self-care activities within a year of the accident. By August 1994, Dr. Stewart recommended that Mr. Windsor could return to driving. By October 1994, Mr. Windsor felt well enough to contemplate part-time employment as an alderman, and was sufficiently functional to post flyers, participate in a television interview, and speak at a community meeting.

By January 1995, the physiotherapist noted almost normal range of motion in his neck and back. On May 25, Mr. Windsor reported that he was applying for jobs. I find that these were substantially the essential tasks that Mr. Windsor engaged in prior to the accident. It is difficult to define the precise day upon which Mr. Windsor no longer met the eligibility test for weekly benefits, but having regard to the above, I would place the point at May 1, 1995, shortly before he reported that he was applying for work.

I recognize that the test for eligibility is whether Mr. Windsor was capable of those pre-accident tasks, and not when he actually resumed them. However, in this case, I am satisfied that what Mr. Windsor actually did is the best evidence of what he was capable of doing.

Although I accept that Mr. Windsor continued to experience neck and back pain after that point, the evidence does not convincingly demonstrate that he was functionally prevented from engaging in his pre-accident essential activities after May 1995. His visits to Dr. Stewart became infrequent. The only therapy he was receiving was massage. Although he did not contact the WSIB to resume formal vocational retraining, he was, in effect, pursuing his own retraining by looking for work. It is certainly puzzling that Mr. Windsor did not attempt to claim vocational rehabilitation benefits earlier. There may be unexplained psychological factors at play. However, there is no medical evidence before me linking these undefined psychological factors to the motor vehicle accident.

I find that Mr. Windsor is entitled to weekly benefits under section 13 until May 1, 1995.

Deductibility of Collateral Benefits:

From January 1, 1993, Mr. Windsor's monthly WSIB pension amounted to $223.63 per month. From January 6, 1993 to July 31, 1993 Mr. Windsor was also in receipt of a vocational rehabilitation supplement under section 47(2) of the Workplace Safety and Insurance Act of $2,012.71 per month.³

Zurich asserts that the vocational rehabilitation benefits are deductible from the section 13 weekly benefits.

13(3) The weekly benefit under subsection (1) will be $185 less any payments for loss of income, except Unemployment insurance benefits,

(A) received by or available to the insured person under the laws of any jurisdiction or under any income continuation benefit plan;

(B) received under any sick leave plan.

In Jarvis and Jevco Insurance Company (OIC A-006063, April 26, 1996), Arbitrator Mackintosh considered the issue of the deductibility of a vocational rehabilitation supplement from weekly benefits under section 12. She reviewed the case law and the purpose of the vocational rehabilitation supplement. She concluded that the fact that the vocational rehabilitation supplement was calculated with reference to the worker's pre-injury employment earnings was not definitive. I agree with her conclusions, set out below:

....I conclude here that the temporary supplement to the permanent partial disability paid to Mr. Jarvis under section 147(2) of the Workers' Compensation Act is not a "payment for loss of income." I find that the W.C.B. supplement paid to Mr. Jarvis was not predicated upon there being a loss of income and paid for that loss. Instead, the payment was more in the nature of a living allowance or incentive to ensure Mr. Jarvis' co-operation in the rehabilitation goal of the Workers' Compensation Act and was terminated when the W.C.B. rehabilitation goals could no longer be met. Thus, I conclude that the supplement is not "income from his...occupation or employment" and should not be included in the calculation of gross weekly income under section 12(7), nor should it be deducted from the calculation of gross weekly income under section 12(4)(b) of the Schedule.

I conclude that the vocational rehabilitation supplement is not deductible from the section 13 weekly benefits.

Interest:

Zurich submits that interest should not be payable because of Mr. Zurich's lack of co-operation in providing sufficient information to Zurich to permit it to properly determine his entitlement to section 13 benefits.

Section 24(4) provides that the insurer will pay interest on overdue payments from the date they become overdue at the rate of 2 percent per month.

Section 24(2) provides:

Amounts payable under Part IV [weekly benefits] are overdue if not mailed or otherwise delivered by the insurer within ten days after it has received a completed application for no-fault benefits or if the insurer fails to make a payment required by subsection (3)

Section 24(3) provides:

Payments under Parts IV and V shall be mailed or otherwise delivered at least once every second week while the insurer remains liable to the insured person.

Thus, the first payment of weekly benefits is due 10 days after the insurer received a completed application for no-fault benefits and ongoing weekly benefits must be paid every second week thereafter. Interest in accordance with section 24(2) is payable on overdue benefits.

In Sebastian and Canadian Surety Company (FSCO appeal P96-00032, July 28, 1998) Director Delegate Naylor stated:

The scope of the authority to award interest in set out in section 24. There is no residual authority or discretion. The language of section 24 is mandatory. Subsection 24(4) provides that the insurer "will pay interest on overdue payments" at the 2 per cent per month rate. The language leaves no room for discretion. If payments are overdue, interest is payable under subsection 24(4) from the date they became overdue.

When are payments overdue? Subsections 24(2) and (3), combined, state that weekly income benefits "are overdue" if they are not mailed or delivered within 10 days after the insurer received a "completed application for statutory accident benefits" or if the insurer fails to mail or deliver payment at least once every second week.

There is no definition of a "completed" application. However, the plain and ordinary meaning of the words means an application in the proper, prescribed form, that has been filled in. Mr. Sebastian complied fully with this.

In my view, giving the provision its straightforward meaning makes sense viewed in the context of the Schedule as a whole, and is consistent with the goals and objectives of the scheme. If the insurer's submission that the concept of a "completed" application incorporates the provision of documentation sufficient to determine the claim, then what does one make of subsection 24(6) which contemplates that a subsection 23(1) medical certificate is distinct from a "completed application?" I also note the term "a completed application for statutory accident benefits" appears elsewhere in the Schedule, notably in subsection 22(1) which requires that an insured person must provide one within 90 days of giving notice of the claim. Canadian Surety did not suggest that its proposed interpretation would apply here.

When did Mr. Windsor submit a completed application for benefits within the meaning of section 24?

The record contains an application for benefits dated July 14, 1993, signed by Janice Windsor, acting as Gary Windsor's representative. I heard no evidence that this document was not delivered around that time. Indeed, the first piece of correspondence filed by Zurich is a letter dated November 5, 1993 which states, in part:

The Automobile Policy indicates that weekly benefits are not overdue unless we receive the completed application for No-Fault Benefits. As there is no mention in the Auto Policy of a faxed application, we do require the original application and the original medical for the file.

I infer from this correspondence that Zurich was in possession of a faxed application for benefits. In the absence of evidence to the contrary, I am prepared to infer that the application for benefits was faxed around the date that it was signed, July 14, 1993.

The Schedule does not specifically require an original application, and I find that Zurich had received an application for no-fault benefits within the meaning of section 24(2) from Mr. Windsor on or around July 14, 1993.

Zurich objected that the application was signed by Janice Windsor. Under Part 7, Declaration, the form states: "An application for accident benefits must be signed by the claimant or the claimant's representative where the claimant is a minor or is unable to sign." Janice Windsor was Mr. Windsor's representative at that time. Although Mr. Windsor was not physically incapable of signing his name, he testified that he did not feel well enough to complete the application and delegated the task of completing the application (including the declaration portion) to his representative. I am satisfied that the application signed by Janice Windsor on July 14, 1993 was sufficient to trigger the payment obligations under the Schedule.

Was the application "completed"?

The application contains seven parts. Part 1, Identity of Claimant, is fully complete. Part 2, Claimant's Representative, identifies Janice Windsor, as the representative. Part 3, Details of Accident, is fully completed, including the date, time, and a description of the accident and also including the name and badge number of the investigating police officer. Part 4, requests insurance details and Alpine Insurance (now Zurich) and the policy number are properly identified.

Part 5, Claimant's Medical Condition as a Result of Accident, is completed identifying where Mr. Windsor first obtained medical treatment and the name and address of his family physician. In response to the question "Nature and Extent of Injuries Sustained as a Result of Accident," Mr. Windsor states "neck, back, chest, arms, legs, teeth, jaw - total body pain, soreness, stiffness - dizzy, disorientated, headaches, etc."

In response to the question "If you were Not Employed at Time of Accident - Do you suffer a substantial inability to perform the essential tasks in which you would normally engage? Explain. Mr. Windsor states: "Yes. Little or no mobility, flexibility & duration - bending, turning, pushing, pulling, lifting, lying, standing, climbing, etc - not able to sleep."

In response to the question "Were you unable to continue your work/studies/normal activities as a result of the accident?" the "yes" box is ticked. In response to the question "If yes, from what date?" the application states "93/06/29." In response to the question: "Have you returned to work/studies/normal activities?" the "no" box is ticked.

Part 6, Claimant's Employment, indicates that Mr. Windsor was currently unemployed but had worked 180 days out of the last 12 months. The application sets out his duties at Labatt's Breweries. It also lists the Worker's Compensation Board as an employer and indicates that Mr. Windsor is an injured worker and that he had received $2,236.34 per month for the last 25 weeks, for a total of $13,418.04.

Part 7 is the Declaration and signature, which was completed.

Having regard to the information requested on the Application, it is difficult to understand what further information Mr. Windsor ought reasonably to have provided. Mr. Windsor has clearly stated that he could not engage in the essential tasks he engaged in prior to the accident, due to difficulties in bending, turning, lifting, and so on.

Subsection 24(6) provides that weekly benefits are not overdue if a certificate required under section 23(1) is not provided by six weeks after submission of the application for benefits. Section 23(1) provides that, unless waived by the insurer, the insured person shall furnish a certificate from a qualified medical practitioner as to the cause and nature of the injury for which the claim is made, an estimate of the duration of the disability caused by the accident and a treatment plan. Section 29(3) provides that the certificate required by subsection 23(1) shall be in Form 4 which is the Ontario Automobile Insurance Medical or Psychological Report. This form was completed by Dr. Stewart on August 20, 1993 and complies with the requirements of section 23(1). Dr. Stewart identifies the injury as hyperextension/hyperflexion injury of neck and low back and estimates the duration of disability as 2 to 3 months. The treatment plan recommended is "1. Rest 2. physiotherapy 3. Tylenol #2, flexuril 4. Voltonen."

Thus, section 24(6) had been complied with, and therefore, the benefits became overdue 10 days after Zurich received the completed application for benefits, that is, by July 24, 1993.

In Economical Mutual Insurance Company and Trendle (OIC appeal P96-000009, July 11, 1996), the arbitrator concluded that it was impossible for the insurer to determine the correct amount of weekly benefits payable until the completion of the arbitration hearing. Accordingly, Director Delegate Draper stated:

In the circumstances I am not prepared to treat the payments as overdue until finally determined through the dispute resolution process, including this appeal.

Zurich relies on the Trendle approach to argue that it was not possible for the insurer to assess Mr. Windsor's entitlement to weekly benefits until he submitted a detailed list of his pre-accident essential tasks in October 1996, provided further medical information, and confirmed the details of his WCB payments.

I am satisfied that Zurich had sufficient information to initially adjust the claim. It had an assertion that Mr. Windsor could not return to his pre-accident essentials tasks because he could not bend, turn, push, pull, lift, lie, stand, climb, or sleep. By August 20, 1993, it had medical confirmation that Mr. Windsor had suffered a hyperextension/hyperflexion injury and that he was disabled. The treatment plan included rest and physiotherapy. The Schedule contemplates that this is sufficient information for the insurer to initially adjust the claim.

By September 8, 1993 Zurich had hired Barlow & Associates to assist in Mr. Windsor's rehabilitation and Barlow had already interviewed Mr. Windsor. Barlow's first report indicates that Zurich was aware that Mr. Windsor was job searching prior to the accident and that his hobbies included gardening, walking, attending auction, camping and swimming. Although Mr. Windsor initially declined to attend an insurer medical examination on the grounds that he could not travel to Hamilton, he did subsequently attend an insurer examination with Dr. Arciszewski.

I find that, initially, Mr. Windsor co-operated and provided sufficient information to permit Zurich to adjust his claim for weekly benefits.

Despite the initial provision of information, Mr. Windsor was an extremely difficult individual to deal with. Although Zurich wrote to Dr. Stewart asking him to specify the essential tasks that Mr. Windsor was not capable of doing, Dr. Stewart did not provide this information. While Dr. Stewart did submit a subsequent Form 4 Medical Report in March 1994 confirming ongoing disability to May 1, 1994, the form does not specifically address the essential tasks test. Zurich was unable to contact Dr. Stewart directly, as Mr. Windsor failed to provide original signed medical releases.⁴ Thus, the most recent medical information available to Zurich was equivocal with respect to entitlement to ongoing weekly benefits or medical treatment.

Mr. Windsor also declined to sign the necessary releases to authorize Barlow & Associates to assist in his rehabilitation and did not provide requested information about the nature of the WSIB benefits he was receiving.

In May 1994 Zurich applied for mediation to dispute Mr. Windsor' entitlement to weekly benefits based on his failure to supply the requested medical release, WSIB information, and information with respect to essential tasks. Mediation was unsuccessful and Zurich ceased its efforts to obtain further information from Mr. Windsor.

Mr. Windsor did not pursue his claim until June 1995 when he filed for mediation disputing the Insurer's refusal to pay weekly benefits and supplementary medical and rehabilitation. A mediator's report was issued in September 1995 and a completed application for arbitration was filed in December 1995. A preliminary hearing was held in October 1996 and a preliminary decision issued in March 1997. Since then, the arbitration hearing has been adjourned several times, at the request of Mr. Windsor.

A great deal of the delay in processing Mr. Windsor's claim can be laid at Mr. Windsor's door. However, Zurich should have been able to initially adjust Mr. Windsor's claim.

In any event, the Schedule does not permit me to take into account the parties' respective contributions to the delay in payment of the weekly benefits and exercise my discretion to withhold interest. Having found that a completed application for no-fault benefits was received by Zurich on July 14, 1993, benefits became overdue by July 24, 1993 and every two weeks thereafter and interest is payable accordingly.

Mr. Windsor is entitled to interest on the weekly benefits from July 24, 1993 and ongoing.

EXPENSES:

If the parties are unable to resolve the issue of expenses, they may raise this issue before me.

October 12, 2000

M. Kaye Joachim

Date

Appendix A Procedural Rulings

Production of Pre-accident Clinical Notes and Records:

Zurich sought production of all clinical notes and records of Dr. Stewart prior to the accident.

At the pre-hearing, Mr. Windsor was ordered to produce Dr. Stewart's clinical notes and records for one year pre-accident and the medical records from his WCB file for three years prior to the accident. These were produced and Zurich did not pursue further production prior to the hearing. Rather, Zurich issued a summons directly to Dr. Stewart requiring him to attend and bring his entire file. Zurich subsequently withdrew its request to Dr. Stewart to attend, but required Dr. Stewart to deliver his clinical notes to the hearing. Dr. Stewart declined to comply, without a consent from Mr. Windsor, or an "order of the Court." To facilitate matters, Mr. Windsor signed a consent to arrange for the delivery of the clinical notes and records to the hearing room, but objected to the disclosure of the complete file.

Mr. Windsor subsequently consented to disclose his pre-accident records up to three years prior to the accident and Zurich was permitted to review those documents. The next day, Zurich sought further disclosure of the entire pre-accident records. When asked if there was anything in the medical file in the three years prior to the accident which justified further disclosure, Zurich insisted that it was entitled to explore the entire record.

I ruled that Zurich would not be permitted to review Dr. Stewart's clinical notes and records, prior to June 29, 1990 and quashed the summons accordingly.

In Al-Obaidi and Allstate Insurance ( FSCO appeal P00-00009, May 2, 2000), Director Delegate Naylor dealt with the issue of pre-hearing requests for production. Her comments are equally apt with respect to productions requests made during the course of the hearing:

Relevance is a necessary, but not necessarily sufficient, requirement. In exercising the discretion to make an order, relevance and reasonableness are the guiding principles. The degree of relevance is weighed against other factors, such as the sensitivity of the information, the practicalities of compliance and the timing of the request.

Relevance is framed by reference to the issues being arbitrated. Rule 32.4 makes this explicit. There must be a reasonable relationship between the records sought and the dispute being arbitrated.

The Commission's Practice Note No. 4, "Exchange of Documents," provides some guidance on the ambit of production in typical cases. It signals, for example, that in disability benefit cases, health records for the year before the accident generally are viewed as relevant. In effect, the guidelines suggest a presumption of relevance, reflecting the central importance of medical records relating to recent history in a determination of the nature of the person's injuries and extent of the disability, while giving primacy in regards to less immediate history to the insured person's interests in privacy. If an insurer seeks disclosure of records over a longer period, or if an insured person wants a more limited order, they will be expected to provide some basis for the request. [emphasis added]

Zurich was provided with access to Mr. Windsor's medical records for three years prior to the accident. This medical information provided a sufficient window into Mr. Windsor's pre-accident health to enable Zurich to respond to the claim for weekly benefits after the accident. Zurich did not point to anything in the medical records which justified going further back in time. Zurich did not seek to introduce the medical records from June 1990 to June 1992. The only clinical notes and records which were before me were from June 1992. I found nothing in those records to demonstrate that Mr. Windsor's post-accident complaints were related to his pre-accident health. There was no similarity between his pre-accident and his post-accident complaints.

I was satisfied that Dr. Stewart's clinical notes and records prior to June 1990 were not sufficiently probative to justify an order for disclosure.

Cross Examination on Clinical Notes:

Despite my order, Zurich was inadvertently provided with some clinical notes relating to 1989. Counsel questioned Mr. Windsor whether he had ever experienced back pain prior to the accident Mr. Windsor testified that he could not recall. Counsel sought to cross examine Mr. Windsor based on a 1989 clinical note. Mr. Windsor objected. I ruled that alleged back pain in 1989 was not relevant to the claim for ongoing weekly benefits. I emphasize there are no notations of back pain in the year before the accident. Zurich did not seek to introduce the 1990 and 1991 clinical records and I must therefore infer that there were no complaints of back pain found in those years. Nor was cross examination justified for the purpose of challenging Mr. Windsor's credibility, as his evidence was that he could not recall having back pain prior to the accident, not that he definitely denied having back pain.

Neutral Citation: 2000 ONFSCDRS 189

FSCO A-954390

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DONALD WINDSOR

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Windsor is entitled to weekly benefits under section 13 until May 1, 1995.

2. Mr. Windsor is entitled to interest from July 24, 1993.

October 12, 2000

M. Kaye Joachim Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Formerly, the Worker's Compensation Board. Throughout this decision I have referred to the Workplace Safety and Insurance Board, although at the time of the earlier events, this organization was known as the Workers' Compensation Board.
3. 3Exhibit 4 indicates that Mr. Windsor received $2,236.34 from January 3, 1993 to July 31, 1993, which includes the pension of $223.63 per month. Accordingly, the vocational rehabilitation supplement amounts to $2,012.71 per month.
4. 4It was not until September 1994 that Mr. Windsor signed a modified release, permitting Dr. Stewart to provide "verbal" information and requiring Dr. Stewart to provide a copy of the information to himself.