minicounsel

Neutral Citation: 2000 ONFSCDRS 199

FSCO A99-001074

BETWEEN:

FRANZ J. ROSENBAUM

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: William J. Renahan

Heard: August 28, 29 and 30, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Rosenbaum represented himself William J. McCorriston for Zurich Insurance Company

Issues:

The Applicant, Franz J. Rosenbaum, was injured in a motor vehicle accident on December 13, 1993. He applied for and received statutory accident benefits from Zurich Insurance Company ("Zurich"), payable under the Schedule.¹ Zurich terminated weekly income benefits on November 22, 1997. The parties were unable to resolve their disputes through mediation, and Mr. Rosenbaum applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

At the opening of the hearing, Mr. McCorriston asked that I add to the issues of the hearing the issue of whether Mr. Rosenbaum had to repay Zurich weekly income benefits because Mr. Rosenbaum failed to report to Zurich income from employment he received after the accident. In this case, the issue of repayment involves a determination of post-accident income and a calculation of any deduction. This issue was not identified in the report of the pre-hearing arbitrator. Neither was it mediated. A determination of the amount of a benefit is a different enquiry from a determination of entitlement to a benefit and the evidence with respect to each enquiry is different. Sub-section 281(1) of the Insurance Act provides that no person may refer a matter to arbitration unless mediation has first been sought and has failed. Since the separate issues of repayment and the amount of benefit were not mediated, I do not have jurisdiction to hear the matter of repayment. I advised the parties that although I would not hear evidence of post-accident income with respect to the issue of repayment, evidence of post-accident employment was relevant to the issue of entitlement to weekly income benefits.

Mr. Rosenbaum claimed an unspecified amount for massage treatment. This issue was not mediated or raised at the pre-hearing and I ruled that I did not have jurisdiction to hear it.

The issues in this hearing are:

Is Mr. Rosenbaum entitled to weekly income benefits pursuant to paragraph 12(5)(b) of the Schedule after November 22, 1997?
Is Mr. Rosenbaum entitled to $1,334.64 pursuant to paragraph 6(1)(a) of the Schedule for medication expenses?
Is Mr. Rosenbaum entitled to $1,026.20 pursuant to paragraph 6(1)(d) of the Schedule for transportation expenses?
Is Mr. Rosenbaum entitled to $1,691 for housekeeping expenses and $350 for window washing expenses pursuant to paragraph 6(1)(f) of the Schedule?

Result:

Mr. Rosenbaum is not entitled to weekly income benefits after November 22, 1997.
Mr. Rosenbaum is entitled to $1,334.64 for medication expenses.
Mr. Rosenbaum is entitled to transportation expenses of $984.20.
Mr. Rosenbaum is not entitled to expenses for housekeeping and window washing.

EVIDENCE AND ANALYSIS:

Mr. Rosenbaum claimed that he continues to suffer from neck and back pain and visual disturbances as a result of injuries he sustained in a motor vehicle accident on December 13, 1993 when his vehicle was struck from the rear. He did not strike his head in the collision, but his stationery vehicle was struck with sufficient force to push it ahead four or five feet. At the time of the accident Mr. Rosenbaum was 64 years old. Zurich paid weekly income benefits at the minimum rate of $185.60 for nearly four years and then terminated them on the grounds that Mr. Rosenbaum could engage in suitable employment. Mr. Rosenbaum is now 71 years old. He claims that his injuries have prevented him from engaging in the active and adventurous work he did before the accident. He also claims supplementary medical expenses.

Test for entitlement to weekly income benefits after 156 weeks:

The test for entitlement to weekly income benefits after 156 weeks is set out in paragraph 12(5)(b) of the Schedule as follows:

(5) The insurer is not required to pay a weekly benefit under subsection (1),

(a) . . . .

(b) for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training or experience.

Education, training and experience:

Mr. Rosenbaum graduated from the University of Bonn with a degree in economics. For the next 20 years he was a member of the German diplomatic corps. Besides English, he is fluent in German and speaks some Spanish and French. Following postings in Singapore and Cyprus, Mr. Rosenbaum was transferred to Toronto where he worked as Trade Commissioner. Some time in the mid-1970s, Mr. Rosenbaum gave up his career in diplomacy to combine his two hobbies of sailing and photography into an occupation.

He specialized in photographing yacht racing, wind surfing and surfing. In 1998, Mr. Rosenbaum published a book "SAILS" which contains 158 colour pictures he took of sailing craft and text he wrote. The vessels include full-size replicas of historical sailing ships, windsurfers and racing vessels from yachts to dinghies.

Over his photography career, Mr. Rosenbaum travelled to sailing and racing events on Lake Ontario during the summer, and throughout the rest of the world after the end of the Ontario sailing season. He took photographs from the shore, from his own 24-foot sailing boat, from rented power boats and airplanes and from the water. He described strenuous swimming in the surf in Hawaii with a deflated vest and waterproof camera to photograph surfers. Once he arrived at the place he wanted to take pictures from, he inflated his vest and took the pictures as he floated. He then swam back to shore with the surf throwing him about as it carried and pushed him.

In order to maintain a high level of physical fitness, Mr. Rosenbaum exercised 30 minutes every day until the day following the accident. Among other things, he did 50 push-ups, 100 sit-ups and 100 knee bends. In 1973 and 1974, he was hospitalized with low back pain but overcame the pain through positive thinking and exercise. He claimed that he never had a recurrence of low back pain until the accident. In 1979, he overcame angina pain by starting a strict diet and exercise regimen. In 1987, he overcame painful rotator cuff syndrome in both shoulders with exercise and positive thinking.

Mr. Rosenbaum stayed on his sail boat when he photographed races in Lake Ontario during the summer season. When he travelled away from Ontario, he either had sponsors or he looked for travel bargains. He described sharing accommodations with windsurfers from around the world and sleeping in a rented vehicle near the beach.

He sold his photographs to yachting magazines, owners of yachts and advertising agencies. From 1987 to 1991 he published a sailing calendar which he sold to corporations which in turn put their corporate logos on them and used them for promotional purposes. In 1980, he published a set of seven lithographs of yachts competing that year in the America's Cup yacht race. The photographs were signed by the seven skippers. Through a small advertisement in the New York Times newspaper which cost $4,000, he achieved gross sales of $150,000. In 1998, Mr. Rosenbaum entered an agreement with a leading German stock photo agency. Mr. Rosenbaum submitted his photographs to the agency and the agency paid Mr. Rosenbaum a commission of 50 per cent on any sales. Mr. Rosenbaum retained his right to sell his photographs in Canada and the United States. In 1989, he received $14,870 from the agency. Royalties from the agency have steadily declined.

Suitable employment:

Mr. Rosenbaum was self-employed for 20 years prior to the accident and enjoyed a career which he described in his written submissions as "a very active life that offered personal satisfaction, lots of fresh air, sunshine and a fair share of excitement. After the close of the sailing season on the Great Lakes in the fall I would escape most of the dreaded Toronto winter by photographing sailing regattas, windsurfing and surfing championships in tropical latitudes."

The question of what is suitable employment for Mr. Rosenbaum is difficult because most of the evidence on Mr. Rosenbaum's background dealt with the 1980s when both Mr. Rosenbaum's health and his business were strong. Mr. Rosenbaum admitted that his business declined in the 1990s. He claimed it was due to the economic recession. However, the evidence on Mr. Rosenbaum's health in the 1990s is not clear.

To determine what is suitable employment, one question is how much weight I should attach to Mr. Rosenbaum's activities before 1990 as compared to his activities from 1990 to the date of the accident in 1993, when he was clearly less active.

Another question is what, if any, inference I should draw from Mr. Rosenbaum's failure to provide certain documents he agreed to provide at the pre-hearing. I consider the issue of what is suitable employment under the following headings: adverse inference; pre-accident business activity; and, pre-accident health.

Adverse inference:

The pre-hearing arbitrator noted that Mr. Rosenbaum agreed to provide the documents requested in Zurich's Response to the Application for Arbitration. The most relevant requests were "the clinical notes and records" of Mr. Rosenbaum's family doctor, Charles Baxter, "complete production of self-employment records," and "income tax returns." Mr. McCorriston said that he verbally advised Mr. Rosenbaum that he need only produce income tax returns starting with the year before the accident. The pre-hearing arbitrator invited the parties to contact her if any issues arose out of the productions. Mr. Rosenbaum did not produce these documents and neither party contacted the pre-hearing arbitrator.

Mr. McCorriston asks that I draw an adverse inference from Mr. Rosenbaum's failure to provide the documents.

The production agreement does not contain any time limits for the documents. Normally, medical records going back one year before the accident are sufficient to show whether an insured suffers from a pre-existing condition which he attributes to the accident. As well, where one of the issues is what is a suitable income for a self-employed individual, business records going back two or three years before the accident might be relevant. If the insured does not believe that those records accurately reflect what is suitable income for him, he can introduce financial records going back further.

On the one hand, Mr. McCorriston did not forward a follow-up letter to Mr. Rosenbaum, an unrepresented applicant, reminding him of the production agreement. On the other hand, Mr. Rosenbaum is intelligent and was well prepared for this hearing. He researched the law and relied on his interpretation of Practice Note C-4 of the Dispute Resolution Practice Code as authority for not producing his financial records. Practice Note C-4 does not excuse Mr. Rosenbaum from producing his records. Practice Note C-4 applies to the situation where the amount of benefit is in dispute. Although the amount of Mr. Rosenbaum's benefit was not in dispute, his financial records were relevant to the issue of what was suitable employment for Mr. Rosenbaum. They would have helped establish the extent of Mr. Rosenbaum's business activities before and after the accident.

As well, Mr. Rosenbaum knew that the requested documents were relevant to his business activity before the accident. In his written submissions, he responded to a statement by a caseworker that he was not professionally active after 1988 by writing that if she had asked him he "would have produced irrefutable proof that I have been active in my profession until the end of the 1993 sailing season."

Similarly, Mr. Rosenbaum knew that his health immediately before the accident was relevant. In his written submissions, he noted that he did not tell a doctor who performed an examination for Zurich about a second place finish in a sailing competition "because it was a personal matter dating back 15 years and, therefore, irrelevant to my profession as a photographer and my physical condition shortly before the accident."

I find it significant that Mr. Rosenbaum did not produce his pre-accident business and health records and I considered this failure when I examined the other evidence on Mr. Rosenbaum's pre-accident business activity and pre-accident health.

Pre-accident business activity:

Mr. Rosenbaum was evasive about what he did in 1993. He admitted that his income from self-employment dropped off in the 1990s, however he claimed that his business activity remained the same. He could remember where he travelled before 1990 and preferred to testify about his photography activities before 1990. Although he said he was active in the year before the accident, he provided very little detail. He could remember what trips he hoped to take in February and March 1994, but he was not clear about what trips he did take in 1993.

Mr. Rosenbaum introduced as part of his case, an adjuster's note of an interview between himself and the adjuster taken two months after the accident. The adjuster belonged to the same yacht club as Mr. Rosenbaum and knew of his reputation as an adventurous sailor. The adjuster wrote: "You must understand that Mr. Rosenbaum is 64 years of age and is not hurting for money. He has made his money over the years. . . . Last year he tried something new and took a trip around the world, taking photographs of temples, etc." I heard no further evidence of this trip.

Zurich argued that Mr. Rosenbaum's best work is represented in the book SAILS and that none of the photographs were taken after 1990 when Mr. Rosenbaum turned 60. At first, Mr. Rosenbaum said he could not point to any of the 158 photographs in SAILS which he took after 1990. At another time he testified that he changed two windsurfing pictures in 1992.

Mr. Rosenbaum gave evidence that his income in 1993 was $3,994, $4,047.90 and $9,861. He also filed his summary of royalties he received from the German stock photo agency. In 1993, he claimed that he received $3,554 in royalties. He testified that in 1993 he did not sell one photograph in Canada.

Although Mr. Rosenbaum testified that he travelled economically, I expect that he had and continues to have significant business expenses including the yacht club membership, travelling expenses and maintenance and operation of a 24-foot 30-year-old sailing boat. His evidence that he had income of about $4,000 in 1993 does not make sense when he claims his only business income was $3,554 in royalties from which he must have had significant expenses to deduct. Mr. Rosenbaum was questioned extensively about the travels he took in the year before the accident, and although no one specifically referred him to the adjuster's note, I heard no particulars of the around-the-world trip when he photographed the temples mentioned in the adjuster's notes. I find that in 1993 Mr. Rosenbaum went to Hawaii once for about six days where he photographed windsurfing from shore. From May to October of 1993, he sailed his own boat to 22 regattas on Lake Ontario where he took photographs. The regattas took place on the weekends and Mr. Rosenbaum stayed on his boat. I find that this was the only business travelling Mr. Rosenbaum did in 1993.

In the absence of income tax returns, I accept the adjuster's note that Mr. Rosenbaum was "not hurting for money." Mr. Rosenbaum loved his work and I find that he could afford to do that work even if he was losing money. Although Mr. Rosenbaum would have preferred to have been as busy as he was in the 1980s, I find that, he was content in the four years before the accident, with a greatly reduced level of activity. I find that in 1990, 1991, 1992 and 1993, Mr. Rosenbaum's business activity was more of a hobby than a business and he was happy to do it and could afford to do it. In my view, the income from this four-year period is a fair reflection of what constitutes income from suitable employment for Mr. Rosenbaum. Accordingly, any activity, so long as there is a prospect of making a profit and so long as it satisfies the other criteria of paragraph 12(5)(b) is suitable.

Since Mr. Rosenbaum was content with his life in 1993, I also find that suitable employment would include a level of activity similar to what Mr. Rosenbaum enjoyed in 1993, that is, six days and 22 weekends.

Pre-accident health:

I considered Mr. Rosenbaum's pre-accident health and the physical requirements of his self-employment to determine the physical aspects of any suitable employment. In general, Mr. Rosenbaum described an active life which included taking photographs in the surf of Hawaii and from power boats. He described sailing in stormy conditions. However, like the income from his self-employment, he avoided talking about his health in the three years before the accident and preferred talking about his health before 1990.

His friend and family doctor, Charles Baxter, wrote that until the motor vehicle accident, Mr. Rosenbaum was in good physical condition and lead a more vigorous life then his peer group. "He engaged in a daily regimen of exercises and had the fitness level of an athlete, remarkable for a 65-year-old man." However, Dr. Baxter also had a tendency to focus on Mr. Rosenbaum's life before 1990. He wrote that "Mr. Rosenbaum pointed out that he only missed one winter season (1979/1980) during which he would routinely have worked in Florida, the Caribbean, Hawaii and in alternate years, Australia . ." However, this statement is not accurate. Mr. Rosenbaum could only point to one trip outside of Canada for six days in 1993. At that time, Florida and the Caribbean were not part of the "routine" described by Dr. Baxter. As well, Mr. Rosenbaum admitted that the last time he swam in the ocean to take a photograph was in 1989, four years before the accident.

Further, the evidence on Mr. Rosenbaum's pre-accident back problems was not clear. Mr. Rosenbaum testified that on three occasions in 1973 and 1974 he suffered low back pain which required hospitalization. X-rays taken after the accident revealed marked degenerative changes at several levels of the cervical and lumbar spine. Mr. Rosenbaum testified that in 1974, a surgeon suggested a spinal fusion. X-rays of the cervical spine taken in 1974 showed narrowing at C5-6 with a disc which was 60 per cent thinner than the others with "bad posterior and anterior osteophytosis." As a result of seeking other opinions, Mr. Rosenbaum started a daily exercise of lying on his back and drawing his knees towards his chest. He also stopped using a soft bed. He testified that he since then, he has never had a recurrence of low back pain.

However, in his disability certificate dated February 11, 1994, Dr. Baxter certified that "Back strain 1992 recovered." No one questioned Mr. Rosenbaum about this contradiction.

Perhaps Mr. Rosenbaum could have explained Dr. Baxter's note. However, Mr. Rosenbaum knew that his physical condition shortly before the accident was relevant. He knew enough to ask Dr. Baxter to attest to his good health before the accident. He produced some of his pre-accident health records such as coronary test results from 1979 and he knew that he undertook to provide Zurich with Dr. Baxter's clinical notes, yet he did not produce those notes, at least for the one year before the accident. In view of the tendency of both Dr. Baxter and Mr. Rosenbaum to focus on Mr. Rosenbaum's activity level before 1990, I infer that those notes would not support Mr. Rosenbaum's claim that he was in excellent health just prior to the accident.

Considering all the evidence, including Mr. Rosenbaum's failure to provide Dr. Baxter's notes for the year before the accident, I find it likely that Mr. Rosenbaum was not as physically active in his self-employment after 1990 partly due to symptoms of osteoarthritic changes in his spine. Accordingly, I find that a high standard of health is not a necessary requirement for suitable employment for Mr. Rosenbaum.

Conclusion on what constitutes suitable employment:

Mr. Rosenbaum left the German diplomatic corps about 25 years ago to pursue his hobbies of sailing and photography as a business. Besides selling his photographs to magazines, he had financially successful years with special projects such as his sailing calendar and prints of well-known sailing races. After 1990, when he turned 61, his income and activity level declined. Although his income may have declined after 1990 due to a slower economy, I accept that he loved his lifestyle and would have been more active after 1990 than he was if his health would have supported it. I find that another factor contributing to a decline in his activity level was that the degenerative changes in his spine became more symptomatic. Notwithstanding this decline in his activity level, Mr. Rosenbaum was content with his life before the accident. I find that employment or self-employment which offered the same kind of activity that Mr. Rosenbaum enjoyed in the three or four years before the accident, is suitable employment having regard to his education, background and experience.

Accordingly, such employment need not be financially rewarding, so long as there is a prospect of making an income. As well, the employment would require a measure of independence and freedom. Self-employment limited to working on weekends during the summer and for one week in the winter would be suitable. Some degree of travel and adventure would be suitable. The self-employment should include physical challenge compatible with the health of a 64-year-old man with marked degenerative changes in the cervical and lumbar spine which were becoming symptomatic. The self-employment should also be intellectually stimulating and involve social contact.

In order to determine whether Mr. Rosenbaum can engage in suitable employment, the next question is what impairments he suffered as a result of the accident and whether those impairments disable him from engaging in suitable employment.

Impairments:

A few minutes after the rear-end collision, Mr. Rosenbaum felt pain from his neck to the top of his head. He did not strike his head in the accident. He saw Dr. Baxter that afternoon. On the way home from Dr. Baxter's office, Mr. Rosenbaum suffered a visual disturbance which was later diagnosed as a migraine aura without pain. About 15 times a day, and every day, an oval shape like a frosted light bulb in rainbow colours passes his field of vision. Each aura lasts five to 30 minutes. Mr. Rosenbaum has tried without success to determine what triggers the aura. It does not affect his long distance vision and activities such as driving. However, it affects short distance vision and activities like reading and focussing a camera. This is a rare condition and is usually associated with trauma to the head.

Dr. Paul Ranalli, a neuro-ophthalmologist, reported to Dr. Baxter that such a migraine aura can be triggered by the moderate whiplash force associated with Mr. Rosenbaum's rear-end collision. Dr. James Sharpe is a neuro-ophthalmologist who examined Mr. Rosenbaum for Zurich. He reported his opinion that migraines sometimes follow accidents, but with trauma to the head. He also expected that post-traumatic migraine would resolve within a matter of months following an accident. Mr. McCorriston asked for an adjournment so that Dr. Sharpe could provide either testimony or answer specific questions in writing. I declined the request because Mr. McCorriston did not know what Dr. Sharpe would say if an adjournment was granted and because he did not know why Dr. Sharpe did not provide further information in his report if he had any.

Dr. Theodor Schapira is a specialist in occupational medicine who examined Mr. Rosenbaum for Zurich. Under cross-examination by Mr. Rosenbaum, Dr. Schapira admitted that the migraines Mr. Rosenbaum described exist in clinical reports and that he does not say that Mr. Rosenbaum was making them up.

I accept Mr. Rosenbaum's testimony that he continues to suffer these aura as he describes them. The evidence that he suffered migraine auras within hours of the accident and continues to suffer them is well documented. I therefore prefer the opinion of Dr. Ranalli, over that of Dr. Sharpe, that the condition was caused by the motor vehicle accident.

Mr. Rosenbaum claimed that he has constant, painful stiffness in his neck which causes his entire back to stiffen. In order to reduce the incidence of waking due to pain, he sleeps in a chair for two periods of two to three hours each. In between, he watches TV or reads. This manner of sleeping has caused his ankles to swell to the point he was once taken to the emergency department of the hospital on suspicion that he had a blood clot.

As late as January 1999, Dr. Baxter treated Mr. Rosenbaum for such severe muscle spasm in his neck that he held his head severely forward and to the right. An injection of Norflex did not ease the spasm.

Dr. D. Garbuz, an orthopaedic surgeon reported to a Zurich case worker: "It seems he is very slow to recover and this is not unusual for a gentleman of this age. His underlying osteoarthritis has obviously been aggravated by the accident and he is very slow to recover. . . It could be that Mr. Rosenbaum is never going to completely recover from this accident and never get back to his previous occupation."

Dr. Schapira reported to Zurich in November 1996 his opinion that Mr. Rosenbaum was standing in the way of his own rehabilitation. "The natural history of such injuries, even with pre-existing degenerative changes in the spine, are of complete recovery certainly within a year in a man of his age with the mild to moderate degree of whiplash that he sustained." In cross-examination, Mr. Rosenbaum directed Dr. Schapira to those parts of his report where Dr. Schapira implied that he did not believe Mr. Rosenbaum. Dr. Schapira generally admitted that he did not mean to say he did not believe Mr. Rosenbaum. He also retracted from his reported comments that the "aura were questionable" and that "continuation of benefits was the most likely reason for his ailment." Dr. Schapira testified that he sees many cases where chronic pain behaviour is maintained longer because of issues of secondary gain.

I believe that Dr. Schapira generalized by grouping Mr. Rosenbaum into those many cases he sees where disability is maintained for secondary gain and that he did not look at Mr. Rosenbaum as a believable individual. I place little weight on his opinion.

I accept that Mr. Rosenbaum suffered from neck pain which affected his entire back, however, it is not clear to what extent his neck and back problems were caused by the motor vehicle accident. Mr. Rosenbaum made much of his current practice of sleeping in a chair to reduce back pain, but he admitted that the relationship between his sleep and back pain goes back 25 years when he found that a soft bed aggravated his back. He testified that he recovered from severe and debilitating back pain in 1973 and 1974 without a reccurrence, however, Dr. Baxter certified that he had recovered from back strain in 1992. X-rays taken after the accident revealed advanced degenerative changes at all levels of the cervical spine and marked degenerative changes at several levels of the lumbar spine. Despite his love for travel and adventure and despite the evidence that he could afford to travel, Mr. Rosenbaum took only one trip outside of Canada to photograph sailing events in the year before the accident, when he was 64 years old. However, when he was in his 50s, Mr. Rosenbaum spent most of the winter in tropical locations photographing sailing events. I do not accept Dr. Baxter's report that Mr. Rosenbaum was in remarkable health just prior to the motor vehicle accident because he exaggerated Mr. Rosenbaum's activity level before the accident by reporting that Mr. Rosenbaum routinely worked in Florida, the Caribbean and Hawaii before the accident when that was not the case. Lastly, Mr. Rosenbaum did not disclose Dr. Baxter's notes for the year before the accident when he knew that his physical condition before the accident was relevant, when he had a history of back pain and when he knew that x-rays revealed degenerative changes in his spine. I infer that he did not disclose those records because they would not help his case and because he suffered from back and neck problems in the 1990s which he did not want to disclose. Mr. Rosenbaum saw Dr. Baxter immediately following the accident for neck and back pain and I accept that Mr. Rosenbaum's spinal problems were aggravated by the trauma of the motor vehicle accident. However, I do not accept that his problems were aggravated to the extent Mr. Rosenbaum now complains of. Accordingly, I cannot find that the motor vehicle accident significantly contributed to any disability Mr. Rosenbaum now suffers from on account of neck and back pain.

I now consider whether the migraine aura Mr. Rosenbaum suffers from disables him from engaging in suitable employment. As well, for the sake of completeness, I also consider whether Mr. Rosenbaum's neck and back pain would disable him from engaging in suitable employment if that pain was caused by the accident.

Ability to engage in suitable employment:

Mr. Rosenbaum published his book SAILS in 1998. I look at the circumstances surrounding the publishing of this book to determine Mr. Rosenbaum's ability to engage in suitable employment.

Zurich argued that Mr. Rosenbaum completed the manuscript for SAILS after the motor vehicle accident. Mr. Rosenbaum testified that he completed the manuscript before the accident in the hope of publishing it at a profit and as a testament to his work. Mr. Rosenbaum submitted letters from book publishers dated in 1987 and 1988 rejecting the manuscript for publication. He also submitted letters from potential sponsors dated in 1988 and 1989 rejecting his request for financial support to publish the book. Throughout his evidence, Mr. Rosenbaum mentioned how his business started to deteriorate in 1990 due to a recession. I accept Mr. Rosenbaum's explanation that he did not publish the manuscript before the accident because, although the manuscript was complete, the economy was poor and he could not find a publisher. I accept his evidence that he made a few minor editing changes and changed three pictures after the accident and decided to publish the book himself because printing costs had decreased and he had an order from a distributor which covered the cost of printing the book.

Mr. Rosenbaum found a printer in Manitoba with offices in Toronto and obtained a quotation of $60,193 to print 3,019 books. Mr. Rosenbaum contacted a distributor who had shown interest in his book before the accident. The distributor agreed to purchase the books in January 1998 and Mr. Rosenbaum put in an order for the printing. He travelled to Manitoba once because of problems with colour separation. The books arrived at the distributor in May 1998. Mr. Rosenbaum contacted some of his old calendar clients and they purchased some of his books. As a result of those contacts, the Bay department store ordered prints of the historical sailing ship the "Nonsuch" which played a part in the establishment of the "Hudson's Bay Company." All but 500 of the book SAILS were sold. Mr. Rosenbaum said he had a net profit of either $3,234 or $4,805 in 1998 and 1999 from the sale of the book. Again, Mr. Rosenbaum did not produce his income tax returns.

Mr. Rosenbaum said that he still files returns for income from self-employment. He admitted that his income in 1998 was greater than in 1993. I find that his income after the accident is similar to what it was in the 1990s.

Mr. Rosenbaum testified that he sails occasionally. I heard no evidence of any difficulty he had sailing or any precautions he had to take so that he could sail. Although he does not photograph sailing boats, he still photographs animals and family members. He edited and published and helped with the sale of his own book after the accident. Although I accept that he doesn't have the physical ability to take pictures from a moving vessel, I find that he did not do a great deal of this in the three years before the accident.

Mr. Rosenbaum admitted that the photographs in his book represent his best work over a life time. In the book he writes: "the 158 pictures in this book were exposed at an average shutter speed of 1/500 second; i.e. the total exposure time for all pictures was less than one third of one second." Although taking action photographs requires certain physical abilities, I find that because of the very short exposure time, Mr. Rosenbaum could successfully take still photographs despite his neck and back pain and migraine aura.

He can still travel. He can edit a manuscript, publish a book and market his book at a small profit. The time involved in this enterprise after the accident is similar to the amount of time he spent taking photographs in the three years before the accident.

Mr. Rosenbaum still has corporate contacts. He testified that just before the accident, clients started to call him again about his sailing calendar. Although photographs for yachting magazines are current, the first photograph in SAILS was taken in 1969. Given that many sailing vessels photographed in SAILS are old, I expect that he could produce another calendar from his stock of photographs if he wanted to.

Mr. Rosenbaum can still sail. He testified that this arbitration process initially pumped him up but that it eventually wore him down. Dr. Baxter wrote a number of times that Mr. Rosenbaum was independent and followed his own agenda. I am satisfied that Mr. Rosenbaum can still have adventure in his life if he wants it. Mr. Rosenbaum may not have the physical energy or strength he had before the accident and although his health was an important aspect of his work, he only spent six days in the winter and weekends in the summer engaged in a physical work-related activity, and even then, it was not the strenuous activity of taking pictures from the surf which he did years earlier.

Having regard to his education, training and experience I am satisfied that Mr. Rosenbaum can engage in suitable employment if he wants to. Such employment might include part-time work marketing and selling photographs he has already taken or taking less physically demanding photographs and marketing them.

Expenses for medicine:

Mr. Rosenbaum tendered a package of receipts at the hearing which he claimed were for prescription medicine he took as a result of the accident and which he purchased since August 22, 1997 in the total amount of $1,334.64. He said it was mainly for Endocet, an analgesic. He testified that the Ontario Drug Plan pays for prescriptions for seniors except for a $100 deductible and $6 per prescription. Mr. Rosenbaum said that he offered the receipts to Zurich's representative at the mediation and she told Mr. Rosenbaum to keep them. At the pre-hearing, the arbitrator identified the cost of medication as an issue for hearing. Mr. Rosenbaum agreed to produce those documents referred to in Zurich's Response to Arbitration as a "prescription profile." Mr. McCorriston said that he offered the use of his firm's photocopy machine so that Mr. Rosenbaum could copy his documents and submit them, however, he did not request copies of receipts for medication.

It is not clear that Mr. Rosenbaum agreed to produce his prescription receipts prior to the hearing and it is not clear that Zurich asked for them. In my view, the representative acted unreasonably in either not taking the receipts, or, if Mr. Rosenbaum wanted to keep copies, in not telling Mr. Rosenbaum to make copies and submit the receipts by mail. Mr. Rosenbaum acted unreasonably in not taking advantage of Mr. McCorriston's offer of photocopying the material and leaving a copy with Mr. McCorriston. In this case, where both parties have acted unreasonably, I believe the first one to act unreasonably should bear the consequences. Mr. Rosenbaum testified that he spent $1,334.64 on medications as a result of the accident which were not covered by the Ontario Drug Plan. He was not questioned on this amount. I allow it.

Transportation expenses:

Mr. Rosenbaum referred to a package of receipts for transportation expenses incurred as a result of the accident from August 22, 1997 to the date of the hearing. He claimed he had receipts in the amount of $923 for transportation by taxi for visits to doctors. Dr. Baxter reported to a caseworker that he advised Mr. Rosenbaum not to drive when taking medications. Mr. McCorriston argued that he did not receive the taxi receipts until the hearing. Again, Mr. Rosenbaum offered the receipts and a summary to Zurich's representative at the mediation and she told him to keep the receipts. She accepted the summary. Transportation expenses were identified as an issue for this hearing. The production agreement does not refer to evidence to support the claims for transportation. Based on the little evidence I heard on the issue, I find that $923 for transportation by taxi to doctors' appointments was reasonable and I allow it.

Mr. Rosenbaum also testified that he took the subway for four hospital visits at a total cost of $11.20. I allow this amount.

Mr. Rosenbaum travelled to Dr. Baxter's office five times by automobile. I allow his claim of 40 kilometres round trip at $ .25 per kilometre in the total amount of $50.

The other transportation expenses claimed for travel to Zurich, FSCO and Mr. McCorriston's office are not recoverable under section 6(1)(d) of the Schedule as supplementary medical expenses. They are more properly classified as disbursements relating to the arbitration proceeding.

I allow total transportation expenses of $984.20.

Housekeeping expenses:

Mr. Rosenbaum claimed house cleaning expenses from March 1997 to August 2000 in the amount of $1,691 and window washing expenses in the amount of $350. Zurich relied on the limitation period set out in subsection 281(5) of the Insurance Act which provides as follows:

(5) A proceeding in a court or an arbitration proceeding in respect of statutory accident benefits must be commenced within two years after the insurer's refusal to pay the benefit claimed or within such longer period as may be provided in the Statutory Accident Benefits Schedule. R.S.O. 1990, c. I.8, s. 281 (5); 1993, c. 10, s. 1.

By Notice of Assessment dated November 8, 1996, Zurich advised Mr. Rosenbaum that "The insurer will not pay expenses for house cleaning and massage therapy beyond November 8, 1996." Mr. Rosenbaum commenced this arbitration proceeding on November 15, 1999.

In Kirkham v. State Farm, File 510/97, March 31, 1998, the Divisional Court of the Ontario Superior Court of Justice upheld the Director's Delegate interpretation of subsection 281(5) in these words:

Even if the insured can be said to have a separate claim for benefits for each weekly period, all such claims are barred beyond the two-year limitation period by the insurer's notice of refusal to pay any further benefits.

The two-year limitation period for house cleaning expenses started to run on November 8, 1996 when Zurich advised Mr. Rosenbaum that it would not pay for house cleaning beyond November 8, 1996. Accordingly, Mr. Rosenbaum's claim for housekeeping expenses was out of time when he commenced this proceeding more than two years later. The claim for house cleaning expenses is dismissed.

EXPENSES:

If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding, either party can contact the case worker to arrange a teleconference for me to determine the issue.

November 2, 2000

William J. Renahan Arbitrator

Date