Neutral Citation: 2002 ONFSCDRS 124

FSCO A00-001188

BETWEEN:

HARPREET GILL

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

June 17, 18, 19 and 20, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received up to July 26, 2002.

Appearances:

Patrick Mazurek for Mr. Gill

Robert S. Franklin for State Farm Mutual Automobile Insurance Company

The Applicant, Harpreet Gill, was injured in a motor vehicle accident on December 7, 1999. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits on June 21, 2000. The parties were unable to resolve their disputes through mediation, and Mr. Gill 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 pre-hearing of this matter on May 22, 2001, the parties identified a number of issues. The discussion was resumed on December 24, 2001 and the parties added more issues to the hearing. At the outset of the hearing, the parties advised me that they had resolved some issues.

The remaining issues in this hearing are:

Is Mr. Gill entitled to income replacement benefits pursuant to section 4 of the Schedule after June 20, 2000, including income replacement benefits after December 7, 2001 when, the test for entitlement changes?
Is either party entitled to expenses?

Mr. Gill is not entitled to income replacement benefits after June 20, 2000.
Mr. Gill shall pay State Farm its expenses of the arbitration proceeding.

Preliminary issue:

In his opening statement, Mr. Mazurek, counsel for the Applicant, said that State Farm's termination of benefits was technically defective and that Mr. Gill was entitled to income replacement benefits up to the date of a disability assessment at a Designated Assessment Centre ("DAC"). He claimed that State Farm did not give Mr. Gill 14 days' notice of his right to elect such an assessment when it terminated benefits and, that in any event, Mr. Gill's application for mediation constituted a valid election for such an assessment.

Mr. Franklin said that this was the first time he had heard of the issue. I found no mention of this issue in the file. Although Mr. Mazurek did not give State Farm notice that it wished to raise this preliminary issue and the grounds, Mr. Franklin did not object to dealing with the issue. I agreed to add it as a preliminary issue on those grounds Mr. Mazurek referred to in his opening submissions. Mr. Mazurek did not mention the preliminary issue in his closing submission and I agreed to accept written submissions on the issue.

Mr. Mazurek raised new grounds in his written submissions, including allegations that State Farm did not provide Mr. Gill with the proper documents to elect an assessment at a DAC and that it did not provide him with a proper explanation for terminating benefits. Mr. Franklin objected to dealing with these new grounds. I received no explanation why Mr. Mazurek did not raise these grounds at the hearing. In his reply to Mr. Franklin's submissions, Mr. Mazurek raised further grounds including an allegation that Mr. Gill did not understand in June 2000 that he had a right to an assessment at a DAC, and what he was supposed to do if he wanted to exercise that right.

It is unfair to raise new grounds after the conclusion of the hearing when the opposing party does not have an opportunity to address them with evidence. Further, if State Farm did not ask questions regarding relevant issues, I might have. For example, no one asked Mr. Gill about his understanding of his rights to an assessment or what his consultant at the time, Mr. Kumar Pavan, told him about a disability assessment at a DAC. I have no evidence of what his understanding was. If I thought his understanding of his rights were in issue, I would have asked him. Accordingly, the only grounds for a preliminary order I will deal with are those that were identified at the outset of the hearing:

Did State Farm give Mr. Gill 14 days' notice of termination of benefits as required by section 37 of the Schedule, and if not, what are the consequences?
Did Mr. Gill's Application for Mediation constitute written notice that he required a disability assessment at a DAC?

Result:

State Farm gave 14 days' notice of termination of benefits.
Mr. Gill's Application for Mediation did not constitute written notice that he required a disability assessment at a DAC.

The relevant portion of section 37 is as follows:

(1) If the insurer determines that a person is not entitled or is no longer entitled to receive an income replacement, non-earner or caregiver benefit, the insurer shall give the person notice of its determination, with reasons,

(a) within 14 days after receiving an application for the benefit; or

(b) if the insurer has been paying the benefit to the person, no later than the date the next payment of the benefit is due.

(2) If notice is given under clause (1)(b), the insurer shall specify in the notice a date for stopping the benefit and the insurer may stop payment of the benefit in accordance with the notice.

(3) If notice is given under clause (1)(b) for the reason that the person no longer suffers from the disability in respect of which the benefit was paid,

(a) the date specified under subsection (2) shall be at least 14 days after the person receives the notice;

(b) the notice under clause (1)(b) shall inform the person that he or she has the right to require an assessment in accordance with section 43 by giving the insurer written notice before the date specified under subsection (2); and

(c) despite subsection (2), the insurer shall not stop payment of the benefit if, within 14 days after receiving the notice under clause (1)(b), the person gives the insurer written notice that he or she requires an assessment in accordance with section 43.

By letter dated June 6, 2000, State Farm advised Mr. Gill that his "benefits will be discontinued on June 21, 2000." Mr. Gill or his representative signed the Notice of Stoppage of Weekly Benefits and Request for Assessment on September 15, 2000, approximately three months after Mr. Gill received notice that State Farm was stopping benefits.

Under paragraph 37(3)(c) the insurer cannot stop weekly benefits if the insured notifies it within 14 days of receiving the stoppage notice that he requires an assessment at a DAC. The insurer must continue paying benefits until it receives a report from a DAC that the insured is no longer disabled. I heard no argument or evidence to justify a finding that an election after three months was substantial compliance with the 14-day period for making an election.

Mr. Mazurek argued that State Farm did not give Mr. Gill 14 days' notice of his right to elect an assessment at a DAC as required by paragraph 37(3)(a) and, therefore, Mr. Gill should not be prejudiced by his late election and, pursuant to paragraph 37(3)(c), weekly benefits should have continued until the date of the DAC report.

State Farm's letter of June 6, 2000 refers to an enclosed Explanation of Assessment and a medical report. The letter sets out section 37 of the Schedule. A copy of the letter was mailed to Mr. Gill's representative at the time, R.K. Consultants Inc.

The letter is signed by Gloria Cabral, claims representative. A completed "Notice of Stoppage of Weekly Benefits and Request for Assessment," Form OCF 17/59, is an exhibit. It is signed by Gloria Cabral on June 6, 2000. Since Ms. Cabral signed and dated the "Notice of Stoppage of Weekly Benefits and Request for Assessment" form on June 6, 2000, the same day she signed and dated the letter advising Mr. Gill that State Farm was discontinuing benefits, I find it likely that the Notice was included with the letter.

Under Part 4, "Applicant's Rights" the OCF 17/59 form provides:

If you disagree with the stoppage of benefits described above, you have the right to ask for an assessment by a Designated Assessment Centre to determine whether your disability continues. If you ask for an assessment, the Designated Assessment Centre requires your permission to obtain and discuss your medical history and to release its report. Please sign this form and the attached Permission to Disclose Health Information to the Designated Assessment Centre form. Please return both forms within 14 days of receiving this notice. If you do not return this Request for Assessment and the Permission to Disclose Health Information to the Designated Assessment Centre form within 14 days, your benefits will be stopped.

A completed "Permission to Disclose Health Information to the Designated Assessment Centre" is an exhibit.

Since the "Notice of Stoppage of Weekly Benefits and Request for Assessment" form refers to an attached "Permission to Disclose Health Information to the Designated Assessment Centre form," I find it likely that this form too, was enclosed with the stoppage letter.

Section 37 requires the insurer to give the insured notice. It does not specify the kind of notice or specify that the insurer serve the insured with notice. The information as to when Mr. Gill received the notice is within his knowledge. Mr. Mazurek argued that the date for stopping the benefit, June 21, 2000, is not at least 14 days after Mr. Gill received the notice. However, he adduced no evidence as to when Mr. Gill received the notice. He did not ask Mr. Gill. He presented no evidence as to when R.K. Consultants Inc. received the notice in their office. Rule 7 of the Dispute Resolution Practice Code (Fourth Edition) deals with service of documents within the arbitration process. It does not deal with delivery of documents between the insured and insurer outside of the dispute resolution process. In the absence of any evidence, I infer that the letter was mailed on the day it was dated and that Mr. Gill received 14 day's notice.

Further, even if State Farm did not strictly comply with section 37 by giving 14 day's notice, substantial compliance is sufficient.² Non-compliance with the notice provisions in section 37 do not affect an insured's right to have his or her claim adjudicated and need not be strictly construed as is the case with limitation periods. Mr. Gill signed an Application for Mediation with respect to the stoppage of weekly benefits on June 14, 2000. The Application was filed with the Commission on June 20, 2000. If Mr. Gill received less than 14 day's notice of stoppage of weekly benefits, it did not prevent him and his representative from taking other steps with regard to the discontinuance of benefits within 14 days of the date of the stoppage letter. I therefore do not see how he was prejudiced in his right to elect a DAC if he received less than 14 days' notice of stoppage.

Lastly, the parties dealt with attendance at a DAC at mediation. In the Report of Mediator dated August 23, 2000, the mediator recorded:

The insured has agreed to provide the insurer with duly executed OCF-14 and OCF-17-59 forms by no later than August 31, 2000.

The insurer has agreed to use its best efforts to arrange for the scheduling of a disability DAC by no later than September 30, 2000, and the insured has agreed to make himself readily available to attend same.

The parties have agreed to consider engaging in further discussions regarding the disputed issues set for in this report, upon their respective receipt and review of the report emanating from the upcoming disability DAC assessment.

I find nothing in this agreement that the parties agreed that State Farm would pay weekly benefits pending the outcome of the assessment. The agreement recognizes that the parties had some dispute about attendance at a disability DAC. The agreement does not refer to either party being bound by any obligation or entitled to any rights under section 37 of the Schedule. It does not deal with whether State Farm was entitled to rely on subsection 43(3) and suspend benefits for any period that Mr. Gill failed to provide it with his permission to disclose his health records to the DAC. Rather, the parties specifically agreed that they intended to use the report of the DAC to assist them in resolving their disputes.

Further, I am not bound by the strict rules of evidence and I found nothing in the conduct of Mr. Gill or his representatives that he expected payments to continue pursuant to section 37(3)(c) of the Schedule. After mediation, Mr. Gill retained a lawyer who wrote to State Farm asking for the reinstatement of benefits on the basis of a medical report. The issue of entitlement on the basis of paragraph 37(3)(c) did not arise until the opening of this hearing.

Mr. Mazurek also argued that the Application for Mediation was filed within 14 days and constituted an election under subsection 37(3). A question on the form asks "Did the insured person ask to attend an assessment at a Designated Assessment Centre relating to any of the issues in dispute?" Mr. Gill or his representative checked off the box "Yes." Another question directs the applicant to indicate the kind of assessment and the name and address of the DAC. None of this information was provided.

Mr. Gill testified that Pavan Kumar, his consultant at R.K. Consultants Inc., represented him at the time State Farm terminated weekly benefits. Mr. Gill testified that Mr. Kumar did everything on his behalf and that he "gave everything to Kumar." When asked whether he submitted his prescription expenses to State Farm he answered that he gave all these things to Mr. Kumar and he didn't know if Mr. Kumar gave them to State Farm. When asked whether he could read the letters from State Farm he replied that he took them to Mr. Kumar. I heard no other evidence on the role Mr. Gill played in advancing his claim against State Farm. I find that Mr. Gill relied on Mr. Kumar to make all decisions concerning his claim against State Farm. I heard no testimony from Mr. Gill or from Mr. Kumar to explain why someone checked the box on the application for mediation to indicate that Mr. Gill had elected an assessment at a DAC.

The mediation was concluded on August 23, 2000. On September 15, 2000, Mr. Kumar mailed State Farm the OCF 14 form which permitted State Farm to release Mr. Gill's medical records to the DAC. Looking at the scant evidence on the issue in a way most favourable to Mr. Gill, I infer that Mr. Kumar wanted to make a proper election for a DAC so that, at a minimum, Mr. Gill would receive weekly benefits at least until the report of the DAC and that Mr. Kumar was careless in not electing a DAC within 14 days or within a period that I would consider substantial compliance within the 14-day period for electing a DAC. I see no reason why I should treat the check mark on the application for mediation as an election under subsection 37(3) of the Schedule so that Mr. Gill should benefit from and State Farm should pay for Mr. Kumar's carelessness.

Again, any confusion as to rights arising on attendance at a disability assessment at a DAC was dealt with by agreement and that agreement does not provide that State Farm would continue paying weekly benefits pending the outcome of a DAC. According to the agreement, the purpose of the DAC assessment was to assist the parties in the resolution of Mr. Gill's claim.

Interpretation:

A person who does not understand or speak the language in which a proceeding is conducted has the right to the assistance of an interpreter. At the outset of the hearing, I talked to Mr. Gill in English and determined that he required the assistance of a Punjabi interpreter.

Mr. Mazurek submitted that Mr. Gill had a limited ability to communicate and that language was a problem throughout this case. Some of Mr. Gill's testimony made no sense. As well, much of his testimony contradicted what was reported by various examiners who spoke to Mr. Gill. As well, I heard evidence that Mr. Gill can communicate in English. I therefore re-examined Mr. Gill's ability to speak English to determine whether the confusion and contradictions were due to Mr. Gill's inability to speak English.

Mr. Gill is 40 years old. He completed grade six in India and came to Canada at the age of 18. He has not received any other education and has worked at mainly physical occupations.

State Farm arranged a psycho-vocational assessment of Mr. Gill to identify suitable vocational options. The assessment was performed with the assistance of a Punjabi interpreter. The psychologist noted that Mr. Gill displayed very little English conversational skills.

At the time of the accident, Mr. Gill worked at Nafta Foods and Packaging ("Nafta"), a factory which made cookies. Mr. Gill loaded dough into a cookie-making machine. His supervisor, Mr. William Garcia, testified that he spoke to Mr. Gill in English and he agreed that Mr. Gill's English was fairly good.

Dr. A. M. Lockhat is a family doctor who has treated Mr. Gill for about 20 years. Mr. Gill testified that Dr. Lockhat speaks Hindi and that he doesn't understand much Hindi. He said that he communicates to Dr. Lockhat half in Hindi and half in Punjabi and that he understands some of what he says. He testified that he never spoke to Dr. Lockhat in English.

Dr. Lockhat referred Mr. Gill to Dr. Owen Giddens, a psychologist. Dr. Giddens submitted a report and treatment plan to State Farm and treated Mr. Gill on seven or eight occasions. Mr. Gill testified that he communicated with Dr. Giddens in body language, Punjabi and broken English.

Dr. Kilian Walsh conducted a psychiatric assessment as part of the assessment at the disability DAC. She reported that "While Mr. Gill indicated that he had a reasonable understanding of English, and this appeared to be so, the interview was conducted via the interpreter essentially in total."

Dr. Paul Grant arranged an MRI scan of Mr. Gill's lumbar spine. The log notes of the clerks at the health centre who arranged the appointment indicate that his "English wasn't too bad" and that a clerk spoke to him for about 20 minutes and he seemed fairly well- spoken but that he felt more comfortable calling back with an interpreter.

Dr. Walsh, Mr. Gill's supervisor and the clerks at the MRI centre found that Mr. Gill spoke English fairly well. It is implausible that Dr. Giddens would perform a psychological assessment and provide treatment if he could not communicate with Mr. Gill in English. I do not accept Mr. Gill's testimony that he communicated with Dr. Giddens in body language, Punjabi and broken English. Nor do I accept that Mr. Gill would seek treatment for 20 years with a family doctor he could not clearly communicate with. The only reasonable explanation that the psychological assessor at the disability DAC found that Mr. Gill had limited English language skills is that Mr. Gill feigned his inability to speak English.

I conclude that Mr. Gill can communicate in spoken English fairly well and that the contradictions in the evidence are not explained by his claim that he cannot speak English.

Background:

Mr. Gill claimed that he suffered disabling pain in his low back and left leg as a result of injuries he suffered in a motor vehicle accident which occurred on December 7, 1999. State Farm paid income replacement benefits for about six months and then terminated them on June 21, 2000 on the basis of an opinion it received from Dr. Grant that Mr. Gill was not disabled from returning to his job at the cookie factory. Mr. Gill claimed that he cannot return to any type of suitable employment on account of his physical injuries. Mr. Mazurek conceded that Mr. Gill was not arguing that he suffered from a psychological disability.

The accident occurred after midnight as Mr. Gill returned from work. His vehicle was stopped at a red light when it was struck from the rear by another vehicle. Mr. Gill went to hospital in an ambulance complaining of back and leg pain. He was released in the morning to the care of his family doctor.

Mr. Mazurek argued that Mr. Gill had a history of hard work at modest paying jobs. His first job was at a car wash. He was a helper on a delivery truck at $12 per hour. He worked at a glass company grinding glass at $15.50 per hour. From about 1995 until 1997 he was involved in a flyer delivery business and contracted out some of that business. He claimed that he cleared about $1,500 per week. In 1997 and 1998, before the job with the cookie factory, he had temporary assignments through agencies.

Mr. Gill's income tax summary indicates that in 1998 he had employment Income of $2,072 and In 1997 he had employment Income of $4,622. In 1996 he had net business income of $14,441 and in 1995 he had net business income of $6,529.

His explanation as to why his income tax returns indicated low income was that some employers paid him in cash and the flyer distributor made him sign a paper and he didn't know what he was doing.

Mr. Gill provided no details to persuade me that the income tax summary was not a reliable record of his earnings. On the basis of his testimony and the income tax summary, I find that he had a number of temporary labouring jobs interrupted by several periods of unemployment. I do not accept his claim that he worked steadily before the job at the cookie factory.

Pre-motor vehicle accident health:

Mr. Gill's pre-accident medical history is relevant to his ability to work at the time of the motor vehicle accident and his credibility. Mr. Gill's credibility and motivation to return to work were put into question as a result of a back injury he suffered when he fell in India, about two years earlier, in February 1998. He made a claim on a disability policy. The claims file might have answered some of those questions, however, only portions of the file were produced. Mr. Gill's employment file might have answered other questions; however, that file was not produced. Mr. Franklin indicated that the parties could not obtain the employment file and asked me not to draw any adverse inference due to the non-production. I heard extensive evidence to contradict Mr. Gill's claim that the back injury he suffered in India in February 1998 was minor and did not affect his ability to work.

Mr. Gill testified that at the time he left for India he worked at a cardboard company cutting cardboard. He obtained that job through an employment agency. According to Dr. Lockhat's records, Mr. Gill left for India on February 11, 1998. Mr. Gill testified that he went to India for the funeral of his father and hurt his back when he slipped on a wet cement floor during the cremation. His wife, Jaswant Gill, confirmed that Mr. Gill went to India in February 1998. Mrs. Gill's brother, Kuldip Singh Nahar, came to Canada in 1996. He lives with the Gills. He confirmed that Mr. Gill's father passed away but he did not know whether Mr. Gill has ever left Canada since 1996.

Dr. Lockhat's transcribed notes for March 26 and 31, 1998 indicate that Mr. Gill complained about his sore back as a result of his fall. Mr. Gill testified that soon after his return he started to look for work and found another job through the employment agency at a company that manufactured steel rods. He testified that he only missed a week and a half from work. Mrs. Gill testified that Mr. Gill did not miss any time from work. According to Mr. Gill's tax summary, his employment income in 1998 was $8,978. According to a letter from Nafta, Mr. Gill earned $5,919 from September 12, 1998 when he started work for Nafta. Therefore, he earned about $3,000 in the remaining 8 months in 1998. Taking into account his trip to India, Mr. Gill made about $3,000 for six-months' work. I do not accept that he worked full time and earned only $500 per month. Therefore, I do not accept his testimony that he was only out of work for a week and a half in 1998.

Mr. Gill testified that his back pain was minor and that he had no leg pain prior to the motor vehicle accident. The OHIP record indicates that from the time of the fall in India until the time of the motor vehicle accident, service providers billed OHIP 11 times for lumbar strain in 1998 and 10 times in 1999. The last billing was the week before the motor vehicle accident. During that period, a physiotherapist billed OHIP 16 times to treat Mr. Gill. Dr. Lockhat's transcribed notes during the same period refer to back ache or pain radiating to the left side or left leg pain 25 times.

On July 23, 1998, Dr. Lockhat referred Mr. Gill to Dr. R.C. Bull, an orthopaedic surgeon. Dr. Lockhat also ordered a CT scan of the lumbar spine which was performed on August 20, 1998. The scan revealed an osteophyte compressing the right L5 nerve root and the right S1 nerve root.

Dr. Bull saw Mr. Gill on January 25, 1999. Dr. Bull reported to Dr. Lockhat:

I saw this 36 year old on January 25th with an L5-S1 disc problem. He states that he injured his back about a year ago when he fell down and was told that he had "crushed a bone."

He then did physiotherapy at Keele and Wilson and they did a good job. He took Tylenol, but he continues to have marked discomfort in the low back and he cannot work. He cannot even do housework.

I heard nothing to explain the contradiction between Mr. Gill's evidence that he missed no time from work at Nafta with Dr. Bull's report that Mr. Gill could not work.

Dr. Bull ordered another CT scan. Dr. Lockhat described the results of a CT scan taken on February 2, 1999 as showing "diffuse bulging of L4-5 disc and moderate bulging of L5-S1 disc, like a disc herniation."

Mr. Gill testified that before the accident he only took one or two Tylenol No. 3’s per month. It is not clear how much Tylenol No. 3 Mr. Gill took before and after the accident, but Dr. Lockhat prescribed 100 Tylenol No. 3s the week before the motor vehicle accident.

Mr. Gill's testimony that the injury he sustained in India was minor is also contradicted by the little evidence I heard concerning his claim on an accident policy he took out the month before he went to India.

On January 12, 1998, Mr. Gill took out a one-year accident policy with Westbury Life [later bought by RBC insurance, "the RBC policy"]. For a monthly premium of $18 he purchased coverage of $600 per month for disability caused by accident. Portions of the RBC file were made an exhibit. Mr. Gill made a claim on this policy for disability resulting from his fall in India. Although I saw a number of applications for benefits arising out of the motor vehicle accident, I could not find any application for benefits arising out of the fall in India.

On July 22, 1998, Dr. Lockhat made a note that Mr. Gill was upset because he was not getting paid by insurance. On July 23, 1998, Dr. Lockhat wrote to RBC a letter in support of Mr. Gill's claim. He wrote:

It is difficult to come to any definite diagnosis as to why Mr. Gill continues to have back problems. In fact his symptoms appear to be getting worse although there are no neurological findings to substantiate his complaints. However, I will await the CT scan and Dr. Bull's opinion before any definite prognosis is made.

On August 4, 1999, RBC issued a cheque for $1,200 to cover disability payments for the two months following the fall in India in February 1998. I heard no explanation why Mr. Gill received payments for two months of disability when he claimed he was unable to work a week and a half. In the year and a half between the fall and the payment, I could only find one letter from Dr. Lockhat in the RBC file to support or explain this payment. I do not know if Dr. Bull's note was sent to RBC.

On December 7, 1999, the day of the motor vehicle accident, Dr. Lockhat wrote a second letter to RBC in support of Mr. Gill's claim for benefits arising out of the fall in India. He wrote:

I am requested by Mr. Gill that you require a follow-up report since my last report dated July 23, 1992.

In my last report I had stated that Mr. Gill was seen on the 22nd of July 1992, and he still complained of back pains.

Mr. Gill stated that although he had started light work working 2 hours per day. He described his present job as standing and working on a counter. He further stated that he was only able to continue working by taking Tylenol #3 tablets to alleviate his pains.

Mr. Gill who injured his back during his visit to India in February 1992, has not been able to work at his normal job. His back injury is clearly visualized by the CT scan taken in February 1999. It appears that Mr. Gill has a chronic back problem with possibility of little or no improvement in future.

RBC did not receive this report.

William Garcia was Mr. Gill's supervisor at Nafta. He testified that Mr. Gill was a reliable worker and that he did not recall that he missed a day of work and that he did not recall that he had any difficulty doing the job. However, I heard unexplained contradictions which make me question Mr. Garcia's reliability. Mr. Garcia said that Nafta had one shift during the day and that he supervised the second shift. Mr. Gill did not say what time he started work but his wife and brother-in-law said he started work at 8:00 a.m. I heard no explanation for this contradiction.

Mr. Garcia said that after the motor vehicle accident, Mr. Gill attempted to return to work on two occasions. In March or April 2000 he worked 40 hours a week for a week or two. In May 2000 he worked for "a few days." Mr. Gill was not clear on how many times he attempted to return to work. He testified that he attempted to return to work in 2000, the summer of 2001 and in April and May 2002 and a few weeks before the hearing. He said he could not walk or stand and he was at work about one hour.

In view of the stark and unexplained contradictions over such basic information as to what shift Mr. Gill worked and how long his attempts to work lasted, I see no reason to accept Mr. Garcia's testimony that he had no recollection of Mr. Gill missing time from work before the motor vehicle accident and that he had no recollection of any difficulty Mr. Gill had doing his job.

Mr. Gill's testimony that the back and left leg injury he suffered in India was minor and did not affect his ability to work is contradicted by the records of Dr. Lockhat and Dr. Bull and the evidence of his claim against RBC. Either the injury was more significant than Mr. Gill would admit, or Mr. Gill exaggerated the effects of the injury to support his claim against RBC.

I now go on to consider whether Mr. Gill suffered a substantial inability to perform the essential tasks of his employment after December 7, 1999.

Essential tasks of employment:

I heard contradictory evidence on the tasks Mr. Gill performed at the time of the accident. Mr. Gill worked on a machine which cut dough into the shape of cookies. The machine required two or three workers. One worker retrieved trolleys of cookie dough from the mixing room. Each box of dough weighed 40 to 50 lbs. depending on the type of cookie. The worker carried the dough up two steps to the side of the machine and lifted it to shoulder level and emptied it into the machine. The worker emptied a package of dough into the machine every five to ten minutes. The other worker removed the cut cookies from the machine and placed them on trays. The trays were placed in an oven rack with shelves five to 70 inches above the floor. An occupational therapist noted that modified duties were available emptying the cookie trays. A person from the DAC telephoned Nafta to confirm the tasks of employment. She noted that the employees working on the line may alternate between two to three positions.

Mr. Gill testified that he was trained to operate the machine. He testified that he carried cooking trays and put them on trolleys and he unloaded buckets of dough into the machine and he supervised the machine to make sure it was making cookies. Mr. Garcia testified that it took three people to operate the machine: "One with the trays, one in the middle to make sure nothing goes wrong and the operator, Mr. Gill."

On November 30, 1999, one week before the motor vehicle accident, Dr. Lockhat recorded in his notes:

Backache. Patient doing light work 8 hours per day. Standing job working on counter. Able to do work by taking Tylenol #3 and back support. Lumbar flexion 40% normal.

Mr. Gill denied doing light work before the accident and denied telling Dr. Lockhat that he did light work before the motor vehicle accident. He testified that he saw Dr. Lockhat for allergy and shortness of breath on that occasion. Dr. Lockhat repeats that Mr. Gill was doing light work in his letter to RBC dated the same day as the motor vehicle accident. In that letter he adds that Mr. Gill had "started" light work. It is not clear whether "started" means Mr. Gill changed jobs or he was absent from work and returned. Dr. Lockhat did not testify.

I heard contradictory evidence on how many hours Mr. Gill worked before the accident and how much time he missed from work.

No one asked Mr. Gill what time he started work. He testified that he normally worked 10 to 16 hours a day. Mrs. Gill testified that Mr. Gill started work at 8:00 a.m. Mr. Nahar went to work with Mr. Gill and he testified that they always started at 8:00 a.m. Mr. Gill's supervisor testified that there was a day shift and a second shift and that Mr. Gill worked the second shift. The accident occurred after midnight as Mr. Gill returned from work.

Mr. Gill, Mrs. Gill and Mr. Nahar all testified that Mr. Gill worked a great deal of overtime, including a number of double shifts. Mrs. Gill testified that she argued with Mr. Gill about the excessive overtime he worked and that Mr. Gill responded by telling her that they were divorced. He presented her with a piece of paper which Mrs. Gill understood meant they were divorced. Mrs. Gill believes that she was divorced in 1997. In 1998 Mr. Gill started to indicate his status on his income tax returns as divorced. I believe Mr. and Mrs. Gill are mistaken as to when Mr. Gill presented his wife with what she thought was a divorce certificate. The status indicated in the 1998 income tax return is more reliable and I find that Mr. Gill confronted Mrs. Gill with what he said was a divorce certificate in 1998.

Mr. Gill made $10 per hour and time and a half for overtime. He submitted an employer's confirmation of income for the four weeks before the accident which supports a finding that in those four weeks he worked approximately five hours of overtime per week. Taking into account the two-week annual layoff at Nafta, Mr. Gill's income in 1999, as shown in the tax summary, also supports a finding that he worked approximately five hours of overtime per week if he worked every week.

Therefore, if I am to believe Mr. Gill's evidence that he worked a great deal of overtime, including double shifts, I would have to find that he did not work every week as he claimed.

I do not accept Mr. Gill's claim that he was a reliable worker doing heavy work at the time of the motor vehicle accident, including working a great deal of overtime.

Trying to make sense of all the contradictions which arise from examining the testimony and the records of Dr. Lockhat, Dr. Bull and Revenue Canada, I find that Nafta hired Mr. Gill to do heavy work on the cookie machine. However, until the date of the motor vehicle accident, Mr. Gill continued to complain of back and left leg pain. He used Tylenol No. 3, did some overtime, including double shifts, but also missed some time from work. At the time of the motor vehicle accident he was doing light work standing at a counter eight hours a day. I also find that up to the time of the motor vehicle accident he was pursuing a claim against RBC for his fall in India.

Ability to perform essential tasks of employment:

Mr. Gill underwent CT scans of the lower spine before and after the motor vehicle accident as well as an MRI scan after the accident. The evidence is consistent that the abnormalities are on the right side and Mr. Gill's complaints of pain are in the left leg. Dr. H. Weinberg performed an orthopaedic assessment for State Farm on December 15, 2000 and found it noteworthy that the protrusions noted on the imaging studies were on the right side and the symptoms were on the left side. Dr. J.G. Ashby is a neurosurgeon who examined Mr. Gill for State Farm. He found it significant that the abnormalities on the CT scan were on the right side and the pain was on the left side. Dr. Lockhat referred Mr. Gill to Dr. Anita North, a neurosurgeon, for an opinion on the role of surgery in the treatment of Mr. Gill's chronic low back and left leg pain. She reported on November 20, 2001:

My clinical impression is that Mr. Gill has chronic low back and left upper thigh pain but this does not correlate to his MRI scan, as the only possible abnormality that might have some surgical significance is on the right side at L5-S1 and this does not correlate with his clinical symptoms.

These opinions appear reasonable and I find that any abnormalities found in the scans do not relate to Mr. Gill's claim that he is disabled by pain.

Mr. Gill walks with a painful gait favouring his left leg. Dr. Todd Walters, a family doctor at the disability DAC found it "interesting" that Mr. Gill said that he walks normally when he takes Tylenol 3. Dr. Weinberg noted "When he takes off his shoes and socks, he reached awkwardly to the left foot keeping the knee straight which is the opposite of what one would expect from someone with nerve root irritation." Dr. Paul Grant examined Mr. Gill for State Farm. He too noted a painful limp on the left side. Dr. Louis Weisleder performed an orthopaedic assessment for State Farm and noted the left painful gait.

Mrs. Gill at first testified that she did not remember which leg bothered Mr. Gill. After some hesitation she answered that she had never seen Mr. Gill walk without a limp. After further questioning she thought it was the left leg that bothered him, but she was not sure.

State Farm arranged for surveillance of Mr. Gill in August 2000. A video tape shows Mr. Gill helping a person remove four sheets of drywall from a van in a driveway and carry them into a house. The worker carries the front of each sheet and Mr. Gill bends and twists and appears to walk normally as he holds the end of each sheet. Another video taken in May 2001 shows Mr. Gill at a laundromat with a relative. He appears to walk normally and move normally as he loads and unloads top and side-loading machines. Dr. Walters reviewed the video tape of Mr. Gill helping carry the drywall and wrote that Mr. Gill's gait was normal. He found that his examination of Mr. Gill without weight bearing on the left leg was not compatible with what he saw on the surveillance tape.

Mr. Gill explained that he can walk normally when he takes Tylenol 3. He submitted a summary which sets out the medications that State Farm has not paid since the time of the accident. It includes 100 Tylenol 3 which were purchased the week before the motor vehicle accident. It does not include the Tylenol 3 State Farm paid for. This summary indicates that since the motor vehicle accident, Mr. Gill has taken a minimum of approximately 140 Tylenol 3 per month. Mr. Gill also explained that as a Sikh, he fasts on Mondays and does not take medication on those days. This does not explain why Mrs. Gill has never seen him walk without a limp or why all the examining doctors noted a limp.

Mr. Garcia's testimony contradicts the details of Mr. Gill's version of his attempt to return to work. Further, it doesn't make sense that Mr. Gill would attempt to work if his complaints of severe pain were true.

Although Dr. Lockhat and Dr. Bull support Mr. Gill's claim that he is disabled, other than saying they accept his complaints, they do not say why they accept his complaints. Neither explain how MRI and CT scan abnormalities on the right side affect pain experienced on the left side. Even Dr. Bull concedes that Mr. Gill could work at lighter duties.

Dr. Weinberg found objective signs that Mr. Gill exaggerated his problems including non-anatomical distribution of diminished sensation on his left side, inappropriate stretching of the left leg to remove his shoe and inappropriate responses to downward pressure on his shoulders.

CONCLUSION AND SUMMARY:

I do not accept Mr. Gill's claim that he was an industrious worker before Nafta. I find that he worked at a number of temporary jobs with several periods of unemployment in between.

I do not accept his claim that the injury he sustained in India was minor. He continued to complain to Dr. Lockhat of back and leg pain up to the motor vehicle accident. The week before the motor vehicle accident Dr. Lockhat prescribed 100 Tylenol 3 s. One year after the fall, Mr. Gill reported to his orthopaedic surgeon that he could not work, including even housework.

I do not accept his assertion that his claim against RBC was resolved long before the motor vehicle accident. RBC issued the first cheque to Mr. Gill as a result of the fall in India, three months before the motor vehicle accident. Although I found nothing in the RBC file to justify this payment, I infer that RBC would not have made the payment a year and half after the loss unless Mr. Gill was pursuing that claim. Dr. Lockhat's letter to RBC dated the same day of the accident is not an unexplained curiosity. It is evidence that Mr. Gill was claiming disability benefits from RBC at the time of the motor vehicle accident.

I do not have clear evidence on the simplest of issues concerning Mr. Gill's job. I heard contradictory evidence on his hours of work. I heard contradictory evidence on whether Mr. Gill performed heavy or light duties at the time of the motor vehicle accident. His evidence that he worked a great deal of overtime is incompatible with the income tax records unless I find that he worked extensive overtime but also took time off work which contradicts his testimony that he did not miss time from work.

Mr. Gill's demonstration of a painful gait to examining doctors is not believable. Although Mrs. Gill claimed that he always limped, she could not clearly remember which leg he favoured. This is not believable. The surveillance taken on two occasions shows a normal gait.

Mr. Gill is not a credible witness. I am not satisfied that Mr. Gill suffered a substantial inability to perform heavy or light work at Nafta after June 20, 2000 when State Farm terminated benefits. I find that Mr. Gill exaggerated and made up complaints of back and leg pain in order to advance a claim for benefits against State Farm.

ENTITLEMENT TO EXPENSES:

The criteria for determining entitlement to expenses of the arbitration proceeding are set out in subsection 12(2) of Ontario Regulation 664, R.R.O. 1990 as amended by Ontario Regulation 464/96 ["Expense Regulation"]. I set out each criteria with my comments.

Each party's degree of success in the outcome of the proceeding.

The Insurer succeeded on every issue.

Conduct of the Insurer or the insured person that tended to shorten or facilitate the proceeding or that tended to prolong, obstruct or hinder the proceeding, including failure to comply with undertakings or orders.

Issues which are normally straightforward and require little time to resolve consumed an excessive amount of time due to the contradictions between the testimony and the documents. The hearing was prolonged to deal with such usually non-contentious issues as Mr. Gill's marital status, address, hours of work, duties at the time of the motor vehicle accident, work record, and the hours or weeks he attempted to return to work. After hearing contradictory evidence, I was required to draw inferences on issues which usually are not in dispute.

Whether the proceeding or any position taken by the Insurer or the insured person during the proceeding was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process.

Although the application was not manifestly unfounded, it had little chance of success. Nearly all the testimony was contradicted by the documentary evidence.

The degree of complexity, novelty or significance of the factual or legal issues raised in the proceeding.

The issues were not complex, novel or significant.

If the insurer or the insured person requests, any written offers to settle made after the conclusion of mediation and before the conclusion of the arbitration in accordance with the rules of practice and procedure applicable to the proceeding, including the terms of the offers, the timing of the offers and the responses to the offers, having regard to the result of the proceeding.

The parties made submissions on the expense issue and I therefore conclude that they do not want me to consider any offer made in accordance with the rules of practice and procedure.

Any other matter related to the proceeding that the arbitrator considers relevant to the issue of whether an award of expenses is justified.

This criteria leaves room for concerns about access to the dispute resolution system.³

Having regard to all the criteria, I find that Mr. Gill should pay State Farm's expenses of the arbitration proceeding.

If the parties cannot agree on the amount, they may apply for an appointment for me to determine the amount in accordance with the procedure set out in the Dispute Resolution Practice Code (Fourth Edition).

August 15, 2002

William J. Renahan Arbitrator

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