Neutral Citation: 2000 ONFSCDRS 33

FSCO A98-000704

BETWEEN:

JASPAL S. SINGH

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

John Wilson

Heard:

September 7 and 8, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances:

David F. Longley for Mr. Singh

Pamela Brownlee for Liberty Mutual Insurance Company

The Applicant, Jaspal S. Singh, was injured in two motor vehicle accidents, one on March 20, 1996 and the other on April 24, 1996. He applied for and received statutory accident benefits at the rate of $266.52 per week from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ Liberty Mutual terminated weekly income replacement benefits on May 28, 1997. The parties were unable to resolve their disputes through mediation, and Mr. Singh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Prior to the hearing, the parties agreed that the appropriate level of benefits should have been $394.61 per week. Liberty Mutual agreed to pay Mr. Singh the shortfall of benefits owing to him from March 27, 1996 until May 28, 1997.

The issues in this hearing are:

Is Mr. Singh entitled to income replacement benefits from May 28, 1997 to the date of his return to work?
Is Mr. Singh entitled to interest on the amount of the shortfall of benefits between March 27, 1996 and May 28, 1997?

Mr. Singh also claims interest on any other outstanding amounts.

Mr. Singh is entitled to income replacement benefits from May 28, 1997 to the date of his return to work.
Mr. Singh is entitled to interest on the shortfall of benefits between March 27, 1996 and May 28, 1997.

Background:

Mr. Singh, a taxi driver in the City of Toronto, ran into a patch of black ice on Highway 409 on March 20, 1996. After skidding and hitting the guardrail, Mr. Singh's Lincoln Towncar spun around, hitting the guardrail on the rear end as well, before coming to a halt. His car was reported to have sustained damage costing some $8,600 to repair.

The following morning Mr. Singh went to his family doctor, complaining of neck pain and back spasms. Dr. A.K. Seth prescribed Robaxacet tablets and referred Mr. Singh to physiotherapy.

On the way home from physiotherapy, on April 24, 1996, Mr. Singh had the misfortune to be involved in another motor vehicle accident. In this case, Mr. Singh was struck from the rear, while stopped behind another car. His car was pushed forward into the car ahead. Mr. Singh reported that he was thrown about by the impact, hitting the steering wheel.

Following the second accident, Mr. Singh saw Dr. Seth again. He reported headaches and dizziness, as well as neck and back pain.

Prior to the first accident, Mr. Singh had been working as a taxi driver, renting a car from an acquaintance, Jetinder Singh Rishi. Mr. Singh testified that he had been working the long hours typical of a Toronto taxi driver, upwards of twelve hours per day. At the time of the second accident, Mr. Singh was still undergoing treatment and had not yet returned to work.

Liberty Mutual continued to pay Mr. Singh income replacement benefits ("IRBs") in the amount of $266.52 per week until May 28, 1997.

Liberty Mutual stopped paying benefits to Mr. Singh on May 28, 1997 on the grounds that he was able to resume his former employment as a taxi driver.

Mr. Singh did not actually return to work as a taxi driver until May 1998, when he began to work limited hours, gradually increasing to full-time.

After a review of further information provided by Mr. Singh in September 1998, Liberty Mutual agreed that the correct amount for Mr. Singh's IRBs should have been $394.61. Liberty Mutual, however, continued to deny Mr. Singh's claim for ongoing IRBs from May 28, 1997 to the date of his return to full-time work. Liberty Mutual also denied that it was responsible for interest on the shortfall in payments actually received by Mr. Singh.

Evidence:

In order to qualify for IRBs pursuant to section 7 of the Schedule, Mr. Singh must show that he suffered a disability arising from an accident that prevented him from performing the essential tasks of his employment.

There is no question that Mr. Singh was involved in two accidents within a relatively short time frame. The only factual questions at issue in this hearing are whether Mr. Singh sustained a disability in the accidents, and whether the disability prevented him from performing the essential tasks of his employment.

Essential Tasks of Mr. Singh's Employment:

Mr. Singh testified on his own behalf. He testified that he had been a taxi driver for many years, renting his cab from a friend. His share of the taxi cost him between $300 to $350 per week. He drove for twelve hours a day, and another driver was responsible for the other twelve hour shift.

Mr. Singh testified that twelve hour shifts were the norm in the taxi industry. Normally, he started at 6:00 a.m. and finished at 6:00 p.m. Without such long hours, it was impossible to make money from the taxi business. Occasionally, he would work nights. In any shift he might spend some eleven and a half hours behind the wheel.

Mr. Singh testified that his normal area of operation was downtown Toronto. The majority of his fares would be relatively short trips of about fifteen to twenty minutes. A shift could produce as few as five, or more than twenty fares.

Fares could be obtained by radio dispatch, waiting in a queue at a hotel or train station, or by cruising the streets for fares. To do this, the driver had to be alert and aware of the presence of potential clients on either side of the street.

Mr. Singh testified that dealing with passengers frequently involved lifting of baggage and parcels in and out of the trunk, or the car. A pickup at a hospital could also involve handling a wheelchair. He testified that as a taxi driver, it was his duty to assist in the removal of luggage from the trunk for a passenger. As a matter of courtesy, as well, he would open the door for a customer and close it after them.

Mr. Singh also testified about other, less frequent, work-related activities of a Toronto taxi driver. In Toronto, taxi drivers are frequently used as couriers, delivering small parcels which are required to be delivered on a timely basis. Although the heaviest parcels might run some 15-20 pounds, the delivery of parcels frequently involved other significant challenges. Since the senders or the recipients were often businesses in the core of the city, a driver would have to run from his illegally parked taxi at both the pickup and drop off point. Often this would entail running up one or more flights of stairs at either end, carrying the parcel. The aim was not only to ensure that the parcel was delivered in a timely manner, but to ensure that the taxi was not ticketed or towed away during the stop. Courier business was relatively frequent, and could happen on a daily basis. It was good money, if the driver did not have his vehicle towed away in the process.

Another, desirable, but less frequent, activity was assisting in moving parties who had no car of their own, and too few belongings to justify the use of commercial movers. Usually this involved relatively short distances, and perhaps the assistance of a second taxi and driver. Although the occasion was rare, it was "good money".

Mr. Singh emphasised in his testimony that a taxi driver had to work hard and be creative to make a living at the business. To paraphrase him, the more you hustle, the more you make money.

The Insurer did not call any evidence as to Mr. Singh's employment. It filed a job site evaluation prepared by Herrold & Vernon Disability Management Inc. (Exhibit 1, Tab 8). The four page summary agrees in many ways with Mr. Singh's evidence about his duties. It mentions the long working hours, handling luggage, continuously sitting behind the wheel, as well as occasional lifting and carrying. Although it acknowledges that Mr. Singh reported having to lift luggage in excess of 70 pounds, it refers to the CCDO guide which shows a maximum lift of 20 pounds, and rates Mr. Singh's work at the light strength level. It does not discuss any implications raised by the long hours of sitting, or how to deal with the occasional requirement to lift more than the 20 pounds listed in the CCDO guide. I do not accept that the CCDO classifications accurately describe the work of a successful Toronto taxi driver in general, nor of Mr. Singh's workplace tasks specifically.

I found Mr. Singh to be a candid and credible witness, and accept his evidence that his tasks involved more than just the ability to sit and lift no more than 20 pounds. I find that a taxi driver must remain alert and nimble for a twelve hour shift, with few regular breaks. He must be able to lift heavy luggage, if required, and to perform the necessary supporting tasks of assisting passengers as required. He must be able to turn his head easily, both from a safety point of view, and from a need to interact with passengers in the back seat. He must also be capable of carrying packages from time to time in an expeditious manner, including walking briskly or jogging short distances.

I do not accept, however, that Mr. Singh must be capable of moving furniture and heavy objects, since, as he admitted himself, the moving services were infrequent, and formed only a welcome, if profitable, diversion from his normal activities.

Disability:

Mr. Singh was involved in the first accident on March 20, 1996. According to his testimony, he left the accident scene with a friend and did not proceed immediately to a hospital. He claimed to be nervous but was able to drive his car to the reporting centre.

Mr. Singh was not scheduled to work for the next few days, and went home. He later went to Dr. Seth, his family doctor, some two days after the accident, and complained of pain in the back, shoulder and neck. He believed that both his shoulders were the centre of his complaints, since he had been grasping the wheel with both hands at the moment of the accident.

He was given a painkiller, and advised not to work. He also began some therapy shortly afterwards, with the aim of returning to work by May.

In April, Mr. Singh had the second accident. He had just completed repairs to his car, and was attending at physiotherapy, with a view towards a return to work, when a car slammed into his stopped vehicle. Mr. Singh testified that his car jumped forward from the impact. He reported that he hit his head on the inside of his car, and that his car was badly damaged with more than $9,000 in repair costs.

Mr. Singh testified that following the accident he felt pain and dizziness, especially when he moved his head quickly. He stated that he could barely move for about a week, and felt uncomfortable either sitting or moving. He was unable to return to physiotherapy. He felt that he was definitely unable to return to work.

Around June, he was able to resume physiotherapy. He remained on painkillers for his pain and discomfort, and continued to experience headaches and dizziness.

Mr. Singh was also advised that he needed an operation for varicose veins, and later experienced a related blood clot in his left leg that reduced his mobility and increased his pain level.

There seems to be no dispute that the operation for varicose veins, and the treatment of the blood clots, including Coumadin therapy, and a hospitalization in January 1997 interacted with and complicated any disabilities arising from the accidents in March and April of 1996, and limited Mr. Singh's ability to participate in physiotherapy.

Following the treatment of the varicose vein problem and the related clotting, Mr. Singh maintained that he continued to be disabled. Specifically, he felt that he could not sit more than twenty minutes at a time, and he still experienced dizziness when moving his head, especially with any sudden movement to check the blind spot when driving.

By May 1998, Mr. Singh felt capable of starting back to work on a gradual basis. He started working about 25-30 percent of a normal shift, and gradually increased his time to a full shift. There was a strong incentive to build up to full-time since normally he was obliged to pay for a full shift whether he fully utilized the vehicle or not. Mr. Singh testified that at first he was able to make an arrangement to sublet a car two or three days midweek, before ultimately renting his own car again.

Mr. Singh was examined by several physicians with regard to his accident-related disabilities. His own physician, Dr. Seth, referred him to Dr. Birnbaum, a neurologist, and he was, as well, examined by physicians at the request of the Insurer. Dr. Fred Langer, an orthopaedic surgeon, examined him on March 5, 1997, and Dr. Ross Roussev, a neurologist, examined him on April 4, 1997. Finally, Dr. Michael Kliman examined Mr. Singh at the request of his lawyer on November 9, 1998. In addition, Mr. Singh was examined for a Med-Rehab DAC, which reported on February 28, 1997.

Dr. Langer concluded that Mr. Singh was not prevented by orthopaedic problems from working as a taxi driver. He referred in his report to a job site evaluation, and appeared to rely upon the Herrold & Vernon Job Site Evaluation dated August 12, 1996, for an appreciation of Mr. Singh's essential tasks.

Dr. Roussev's report (Exhibit 1, Tab 13) dealt with Mr. Singh's neurological problems, and specifically, the claim that dizziness followed any sudden turning or movement of the head. Dr. Roussev found that Mr. Singh's neurological function was normal, and that he could not provoke the benign positional vertigo during tests.

Dr. Roussev did not comment on the possibility of post-traumatic vertigo reported by Dr. Birnbaum, only on the failure of provoking manoeuvres to generate objective findings of vestibular dysfunction or imbalance. He also concluded that Mr. Singh was not disabled from his tasks of normal living, and, as well, was not disabled from his tasks of driving a taxi. His report does not deal with exactly what these tasks entailed, nor does it explain how his assessment of the essential tasks was developed.

Dr. Mayer, a neurologist who formed part of the Med-Rehab DAC, concluded that Mr. Singh "...sustained post-traumatic vertigo (symptomatic, but not confirmed by any objective signs), myofascial neck strain and a myofascial mid and low-back strain." (Exhibit 1, Tab 12).

The report, however, went on to recommend against any further therapeutic intervention, principally due to concerns over his deep-vein thrombosis.

The only physician, in addition to the family doctor, Dr. Seth, who treated Mr. Singh on an ongoing basis was Dr. Birnbaum, a neurologist. He first saw Mr. Singh for his accident-related complaints on October 22, 1996. At this point, he diagnosed post-traumatic headaches and post-traumatic vertigo. He noted that postural testing did not produce the vertigo or nystagmus. He went on to recommend Nortriptyline, an anti-depressant, and Propranolol, a non-steroidal anti-inflammatory. Dr. Birnbaum's last report on May 27, 1997 linked the onset of Mr. Singh's vertigo to hyperventilation, which he felt could be dealt with through avoidance measures.

Extraneous Causes of Disability:

Liberty Mutual has argued that Mr. Singh suffered from a variety of disabilities in the period following the accident. It submitted a case that if Mr. Singh's post-accident disability claims are credible, such disabilities would not have been due to the two accidents, but rather to these non-motor vehicle related conditions. Specifically, it points to the closed-head injury suffered by Mr. Singh in an assault, more than two years prior to the accident, and an ongoing difficulty with varicose veins and deep-vein thrombosis.

In essence, Liberty Mutual poses the question of whether Mr. Singh could have worked, post-accident, but for the accident, and proceeds to argue that the answer should be in the negative. It argues that it was the effects of the vertigo, the varicose veins and the severity of the deep-vein thrombosis that disabled Mr. Singh.

The test for causation of impairments has been dealt with frequently in arbitral jurisprudence. As Director's Delegate Draper remarked (Traders General Insurance Company and Levey, Appeal P98-00035, February 25, 1999):

Many decisions, including some of mine, have held that the accident need not be the sole or even the principal cause of the insured person's condition. If the accident materially contributes to the impairment, leaving the person unable to perform the essential tasks of his or her employment, weekly benefits are payable.

I will deal with the alternative causes of Mr. Singh's post-accident impairments.

Previous Head Injury:

Dr. Birnbaum treated Mr. Singh in 1993 and 1994 in conjunction with a head injury related to an assault which took place in August 1993. During these consultations, Mr. Singh complained of dizziness and was diagnosed with post-traumatic headaches, and post-traumatic vertigo. By November 22, 1994, both of these complaints had resolved sufficiently to allow Mr. Singh at least a partial return to work.

By March 1996, if Mr. Singh had any lingering problems from the assault in 1993, they were not significant enough to prevent him from doing his work. He testified categorically that he was fit to work, and indeed was working effectively at the time of the first accident.

I find that Liberty Mutual's reference to the earlier head injury as the cause of Mr. Singh's post-accident vertigo is, at best, speculation based on the repetition of symptoms that appeared at the time of the assault, and is unsupported by any credible evidence submitted by the Insurer.

The earlier injuries may well have created either a physical or psychological weakness or pre-disposition that in turn exacerbated the injuries complained of in the 1996 accidents, but there is no evidence before me to suggest that they caused Mr. Singh's 1996 symptoms.

I find that although his previous head injury may possibly have made him more susceptible to vertigo and other conditions, in the event of another trauma to the head, there is no evidence that Mr. Singh's problems in 1996 and afterwards were caused by the 1993 assault.

Varicose Veins and Blood Clotting:

No evidence was submitted to suggest that the operation for varicose veins which took place in August 1996, and the various treatments for blood clots, including hospitalization in January 1997 and Coumadin therapy, resulted from the accident. Indeed, as part of the Med-Rehab DAC report (Exhibit 1, Tab 12), Dr. Mayer stated clearly that "the swelling and clot in his left leg is not related to the motor vehicle accident but is related to his pre-existing vascular disease."

Liberty Mutual has argued that, if Mr. Singh was disabled after May 1997, it was because of the ongoing effects of these disorders, and not because of any lingering effects of the accidents. Liberty Mutual in its argument commented that thrombosis and varicose veins are particularly common among taxi drivers.

From a purely functional point of view, Mr. Singh's undisputed evidence was that prior to the two accidents, neither varicose veins, nor thrombosis prevented him from working as a taxi driver. Presumably, the same conditions still exist, although they have been treated, but since Mr. Singh has testified that he is now able to work, it is hard to accept that they alone are sufficient to have prevented him from carrying out his duties as a taxi driver. This would imply that the varicose veins and the thrombosis, although periodically debilitating, are not the principal factor in Mr. Singh's post-accident disability.

Mr. Singh's mobility was limited by the use of a cane, and from the leg pain caused by the varicose veins and the thrombosis. He may have not been available to work during the few days in August 1996 and January 1997 when he was hospitalized for treatment of these conditions. However, the Insurer has not filed convincing evidence that Mr. Singh's post-accident disabilities were primarily due to these conditions.

Mr. Singh, on the other hand, has provided credible testimony linking his complaints, in time and causation, to the two accidents that form the basis of his claim. This is not to suggest, however, that these extraneous conditions played no role in Mr. Singh's disabilities.

Dr. Langer, in his report, commented on the length of time that soft tissue injuries, such as those suffered by Mr. Singh, generally take to resolve. Mr. Singh has testified that his injuries took substantially longer to heal than Dr. Langer anticipated.

It seems likely that the thrombosis and the varicose veins were a factor in delaying Mr. Singh's recovery. Mr. Singh had to avoid physiotherapy for a period, and when he resumed, it was necessarily of a less challenging nature than might otherwise have been the case. As noted in the Med-Rehab DAC report's executive summary (Exhibit 1, Tab 12):

Left leg vascular problems have no causal relationship to the MVAs. Complications from this condition dominate the health picture and limit activity level and therapeutic options. Spinal manipulation and massage are contraindicated as a result.

If, as Liberty Mutual has argued, thrombosis and varicose veins are a common ailment for taxi drivers, then it should be anticipated that this class of accident victims will have a more complicated and lengthy recovery than the average insured.

In his Application for Accident Benefits (Exhibit 1, Tab 1), Mr. Singh's primary complaints were headaches, chest, back and neck pains, dizziness, spinning, and difficulty moving "too much". He did also mention a pain in his right leg. In summary, the majority of his complaints did not relate to his varicose veins and thrombosis.

I find that although the thrombosis and the varicose veins may have hindered Mr. Singh's recovery, and were definitely a factor in the level of pain and discomfort he experienced, they are not a direct cause of his disabilities in the period between the two accidents and his return to work in May 1998.

Disability: Conclusions

In his testimony, Mr. Singh emphasized that he functioned well as a taxi driver prior to the two accidents. His testimony was also clear that, after the two accidents, he was unable to function. He suffered headaches, shoulder and back pain, dizziness, and fatigue.

He emphasized that he returned to work as soon as he was able to undertake sustained duties. In other words, as soon as his pain and discomfort, and dizziness reached manageable levels, which he testified was in May 1998, he returned to work.

I find that Mr. Singh was a credible witness when he testified about his condition, both pre and post-accident.

I note, as well, the comments of the DAC assessor (Exhibit 1, Tab 12) that:

This gentleman presented in a pleasant, sincere and cooperative manner. He provided an apparently reliable and consistent history.

I accept Mr. Singh's description of his symptoms as being the best indication of the status of his disability in the period between the last accident and his return to work in May 1998.

I find that following the two 1996 accidents, Mr. Singh suffered soft-tissue injuries to the arms, neck and back that created difficulties in lifting, sitting and walking. He also suffered ongoing pain, for which he took medications. Principally, the pain prevented Mr. Singh from sitting in his car for an extended period of time.

I find, as well, that the two accidents prompted a second bout of post-traumatic dizziness that served to complicate Mr. Singh's return to driving professionally. The dizziness and the vertigo gradually became less disabling and were more or less resolved by May 1998.

I find that all the above impairments materially resulted from the accident, and were not directly related to either the previous closed-head injury or the varicose veins or thrombosis.

Ability to Carry Out the Essential Tasks of his Employment:

Mr. Singh's work as a taxi driver involved long working hours, long periods of sitting, and occasional periods of heavier lifting.

There is no question that at various times, Mr. Singh was able to drive a car. Mr. Singh testified to this effect. In spite of some discomfort, he was able to drive a car in the short period between the two accidents, and did drive himself to some physiotherapy appointments.

He testified, as well, that he was advised to try driving as soon as possible, to avoid developing a fear of driving. He made it clear, however, that for much of the period between May 1996 and his return to work in May 1998, his driving was restricted to periods of about one half of an hour, and he did not drive on highways due to a fear of dizziness.

Mr. Singh also remarked that the medications recommended by Dr. Birnbaum made him drowsy. I note that Dr. Birnbaum's report of October 22, 1996 suggested Nortriptyline, and Propranolol. The CPS (Compendium of Pharmaceuticals and Specialties, Thirty-fourth Edition, Canadian Pharmacists Association, Ottawa, 1999), at page 181, specifically lists the following warning under the listing for Nortriptyline:

Occupational Hazards: Nortriptyline may impair the mental and/or physical abilities required for the performance of hazardous tasks, such as operating machinery or driving a car; therefore, warn the patient accordingly.

I accept Mr. Singh's evidence that, at least during the period when he was taking Nortriptyline and other medications, pharmacological side-effects from the vertigo treatment prevented him from returning to his work as a taxi driver.

There is little question that at some time after the accident, Mr. Singh was able to lift some weights, although potentially with painful consequences, get into and drive a car, talk on the radio with the dispatcher, and otherwise perform the individual elements of his tasks as a taxi driver.

Liberty Mutual has suggested that from at least May 1997, Mr. Singh could have done all these tasks, and so was fit to return to his work as a taxi driver. Mr. Singh has testified that he could not do these tasks in concert for any prolonged period, and to work a shorter shift, to refuse to carry baggage or assist passengers, or to accommodate his ongoing difficulties, would have meant that he would not be successful as a taxi driver.

Arbitrator Naylor in Flemming and Wawanesa Mutual Insurance (OIC A-000406, April 28, 1992) explored the question of a person's ability to perform the essential tasks of employment:

The regulations contemplate inability to perform the duties of remunerative work. The performance of essential tasks must incorporate the ability to perform such tasks in a manner, at a speed or for a time that renders such performance capable of being remunerative.

The period of May 1997 to Mr. Singh's return to work in May 1998 presents a problem in evaluating Mr. Singh's ability to perform his essential tasks. Other than Mr. Singh's own testimony, and a retrospective report by Dr. Kliman, dated November 9, 1998, we have little clear evidence of his functional ability in this period.

It is true that Dr. Roussev's report of April 1997 gives some indications of Mr. Singh's abilities at the start of this period. Dr. Roussev opined on April 4, 1997 that "... from a neurological point of view the client is not disabled from performing the essential tasks of his job as a taxi driver." (Exhibit 1, Tab 13, page 7).

Dr. Roussev's view of Mr. Singh's condition does, however, present some serious problems, since it does not deal directly with all of Mr. Singh's reported complaints.

Dr. Roussev, for example, reports that the dizziness could not be provoked in April of 1997 and appears to treat this as indicative that the problem is resolved. Dr. Birnbaum, on the other hand, reported in conjunction with his diagnosis of post-traumatic vertigo in October 1996 that "postural testing does not produce vertigo."

In fact, Dr. Roussev did report (Exhibit 1, Tab 13, page 6) that Mr. Singh's symptoms were consistent with benign positional vertigo, although he qualified this with the statement that he was unable to provoke those symptoms during examination. He does not explore the question of whether this vertigo may be due to other factors, such as those suggested by Dr. Birnbaum, which may not be provoked by postural testing.

I also find that Dr. Roussev did not address the issue of whether a person with a periodic vertigo would be capable of safely operating a taxicab, and indeed, what the consequences of such a condition might be. Without such an analysis, Dr. Roussev's opinion that Mr. Singh was fit to perform the essential tasks of a taxi driver carries little weight.

I accept Mr. Singh's testimony that he suffered from an unexplained vertigo that could often be precipitated by sudden movements of the neck or head, and that such occurrences, if they happened during the performance of his work as a taxi driver, would have compromised his safety and that of his passengers.

Mr. Singh also claimed to have been disabled by pain, arising from the soft-tissue injuries sustained in the two accidents. Dr. Langer's report of March 5, 1997 (Exhibit 1, Tab 14) deals with the physical aspects of Mr. Singh's injuries. At page 4 of his report, Dr. Langer summarizes his view of Mr. Singh's injuries:

Mr. Jaspal Singh suffered soft tissue injuries as a result of the motor vehicle accidents of the 20th of March 1996 and 24th of April 1996. The second accident aggravated the effects of the first accident. On the other hand, there is no evidence that either accident caused structural damage, that is, caused a serious problem or irreversible pathology. One would have expected complete resolution of the symptoms over a period of two to three months. Certainly, during this period, Mr. Singh could have returned to his regular job, working as a taxicab driver.

Dr. Langer then went on to opine on the potential for any underlying neurological problems related to the complaints of dizziness, and to imply that the absence of musculoskeletal pathology meant that Mr. Singh's reports of significant pain could be dismissed as "pain simulation behaviour" (Exhibit 1, Tab 14, page 5).

Dr. Langer's opinion on Mr. Singh's disabilities is compromised because it relies on Herrold & Vernon's Job Site Evaluation, which I have found underestimates the difficulty of Mr. Singh's essential tasks by not taking into account the complete lifting requirements or the cumulative effect of the long shifts and sitting in a taxi.

Although Dr. Langer's C.V. (Exhibit 2) shows considerable achievements as an orthopaedic surgeon and Associate Professor of Surgery at the University of Toronto, it does not outline any specific expertise in neurology. His willingness to comment and make conclusions on the neurological aspects of Mr. Singh's complaints further weakens the credibility of his overall conclusions. I find that his report is not a convincing analysis of Mr. Singh's ability to perform the essential tasks of his employment in March of 1997.

In his last report of May 27, 1997, Dr. Birnbaum linked Mr. Singh's dizziness to hyperventilation, and suggested techniques of dealing with the phenomenon. At no time, however, did he discount the reality of the dizziness and vertigo.

Although I heard no direct evidence on this point, it would not be surprising if, given the history of the previous head injury, and the two, almost sequential car accidents, Mr. Singh developed some symptoms that did not correlate directly to identifiable underlying physical injuries. As Arbitrator Palmer commented in Mathers and Algoma Mutual Insurance (OIC A97-000975, February 4, 1998) :

Some motor vehicle accident injuries produce a baffling array of symptoms in their victims. Insurance companies know this. In my opinion, there is no magic in a clinician putting a particular label on the condition.

Dr. Kliman, an orthopaedic surgeon, saw Mr. Singh once, at the request of Mr. Singh's lawyer, some six months after his return to driving a taxi. Although Dr. Kliman did not see Mr. Singh during his time off work, his examination and report provides some corroboration of Mr. Singh's statements that he returned to work as soon as he could manage to.

Dr. Kliman's conclusion that Mr. Singh still suffered "...residual difficulties particularly at the lumbar area related to these myofascial strains.", some six months after his return to work, supports Mr. Singh's claim that he continued to suffer from the consequences of the motor vehicle accidents in the period after his accident benefits ceased. Since Dr. Kliman is an orthopaedic surgeon, he expressed no opinion on Mr. Singh's vertigo.

I accept Mr. Singh's testimony that May 1998 was the first point when he was able to work through his pain and discomfort. He testified that his dizziness persisted until then, and rendered driving uncertain and unsafe.

I find that because of his ongoing vertigo, pain and his inability to sit for long periods of time, Mr. Singh was unable to perform the essential tasks of a taxi driver on a full-time basis in a manner that was capable of being remunerative, until May 1, 1998.

Interest:

Mr. Singh claims interest on all overdue amounts, pursuant to section 68 of the Schedule. Section 68 provides that:

If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 per cent per month compounded monthly.

Director's Delegate Draper in Zdebski and Allstate Insurance Company of Canada (Appeal P97-00045, June 17, 1998) confirmed that payment of interest is mandatory:

I do not find any flexibility in this section. If payments are overdue, interest is payable at two per cent per month from the date that they became overdue.

The "Agreed Upon Statement of Facts" (Exhibit 4) establishes that Liberty Mutual initially paid Mr. Singh IRBs of $266.52 per week from March 27, 1996 to May 28, 1997. Mr. Singh subsequently provided his income tax returns for the three years prior to the accident on September 28, 1998. As a result of this information, Liberty Mutual agreed to a re-calculation of the benefit, and set the amount at $394.61.

The question now arises whether interest is payable on the difference between the amount actually paid and the agreed amount prior to the date that the new information was supplied to Liberty Mutual.

Liberty Mutual maintains that the payments did not become "overdue" until the new information was supplied to them. Section 62(4) of the Schedule states simply that:

An amount payable under Part II, section 15 or Part IV, V or VI is overdue if the insurer fails to comply with subsection (1) or (2).

Subsections (1) and (2) provide that the Insurer shall mail a weekly benefit within fourteen days after the Insurer receives an application for the benefit and sets out the frequency of such payments. Subsection (5) in turn sets out an exception if the Insurer required that a certificate be furnished under section 60, and more than six weeks have elapsed without the provision of such a certificate.

A certificate pursuant to section 60 of the Schedule is a certificate from a health practitioner as to the cause and nature of the impairment, and an estimate of the duration of the disability, together with a treatment plan for the claimant.

I have received no evidence that the Insurer ever requested a certificate pursuant to section 60 of the Schedule and that this was not provided by Mr. Singh. Accordingly, the Insurer cannot rely on this exception to the obligation to pay interest.

Arbitrator Kirsch in Sebastian and Canadian Surety Company (OIC A-011358, February 9, 1996) examined the wording of a similar section in a previous Schedule. In that case, an Insurer argued that interest should only be payable from the date on which "reconstructed invoices" were supplied to the Insurer, which supported a higher calculation of Mr. Sebastian's income replacement benefit. The question turned on when an applicant's application form was "completed". The arbitrator remarked:

I have found benefits are owing to Mr. Sebastian from July 29, 1993 onwards. If I accept Canadian's submission that the interest starts to run only when they received the reconstructed invoices, then Canadian would have had the benefit of the money which should have been paid to Mr. Sebastian, without the necessity of paying interest to him, for a period of over two years. I do not believe that this was the intent of the legislature when drafting this section of the Schedule.

Arbitrator Kirsch went on to conclude:

I find that the term "completed" in section 24 (1) should be given its plain and ordinary meaning. Taken literally, and on its face, the section means that the application for accident benefits is finished and interest is owed within 30 days after the application is received by the insurance company.

I find that Arbitrator Kirsch's remarks are equally appropriate to an analysis of whether a payment is "overdue" pursuant to section 62(4) of the Schedule applicable to this case.

At Tab 1 of Exhibit 1 is a copy of an Application for Accident Benefits, signed by Mr. Singh and dated June 14, 1996. It is stamped by Liberty Mutual, and marked with a hand-written notation "Due 6/28".

I find that the full income replacement benefit of $394.61 was due to Mr. Singh fourteen days after the completed application form (Exhibit 1, Tab 1) was received by Liberty Mutual. Accordingly, interest is due and payable on each and every shortfall of the payments actually received by Mr. Singh, from the date when that payment became due, and all the unpaid IRBs, from the date each became overdue.

EXPENSES:

The issue of expenses was not dealt with at the hearing. If the parties are unable to agree on this matter, they may speak to this issue.

February 9, 2000

John Wilson Arbitrator

Date