Neutral Citation: 2002 ONFSCDRS 184

FSCO A99-000059

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

IMAD EL-SAIKALI

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Eban Bayefsky

Heard:

February 19, 20, 21 and 22, 2001, in Ottawa, Ontario.

Appearances:

R. Mitchell Rowe for Mr. El-Saikali

Ivan Luxenberg for Co-operators General Insurance Company

Issues:

The Applicant, Imad El-Saikali, was injured in a motor vehicle accident on April 3, 1996. He applied for and received statutory accident benefits from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.¹ Co-operators terminated weekly income replacement benefits on May 17, 1997. The parties were unable to resolve their disputes through mediation, and Mr. El-Saikali applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. El-Saikali entitled to weekly income replacement benefits from May 18, 1997 to April 3, 1998, pursuant to section 7 of the Schedule?

2. Should the remuneration Mr. El-Saikali received from his employment at A&A Welding be included in the calculation of his income replacement benefits both before and after the date on which the Insurer terminated benefits (May 17, 1997), pursuant to section 10 of the Schedule?

3. Is Mr. El-Saikali entitled to medical benefits for the cost of various prescriptions, pursuant to section 36(1)(c) of the Schedule?

4. Is Mr. El-Saikali entitled to benefits for airfare incurred by his parents in travelling from Lebanon to Canada, pursuant to section 53 of the Schedule?

5. Is Mr. El-Saikali entitled to a special award under section 282(10) of the Insurance Act?

Both parties seek their expenses of the arbitration. Mr. El-Saikali also claims interest on any amounts owing.

Result:

1. Mr. El-Saikali is not entitled to weekly income replacement benefits from May 18, 1997 to April 3, 1998.

2. The remuneration Mr. El-Saikali received from his employment at A&A Welding should not be included in the calculation of his income replacement benefits.

3. Mr. El-Saikali is not entitled to medical benefits for the cost of various prescriptions.

4. Mr. El-Saikali is not entitled to benefits for any airfare incurred by his parents in travelling from Lebanon to Canada.

5. Mr. El-Saikali is not entitled to a special award or interest.

6. If required, the parties may now make submissions on the issue of expenses.

EVIDENCE AND ANALYSIS:

Background:

At approximately 5:50 a.m. on April 3, 1996, while driving to his work as a manager of a Becker's store in Ottawa, Mr. El-Saikali was injured in a motor vehicle accident. His car collided with the rear trailer of an eighteen-wheel truck in an intersection. His car was written off as a result of the accident. He testified that, at first, he was "scared to death" because he was about to hit the truck. He said that, immediately after the collision, he felt lower neck and lower back pain, but not that much pain. He said he had a mark on his chest due to the seat belt he was wearing. He said that he called the police on his cell phone and that an ambulance subsequently came and took him to the hospital. He was treated and released about 5:00 p.m. that day, after which he went to the Becker’s store to give his employees some keys, and then went home.

Mr. El-Saikali testified that the next day, although he felt pain, he went to work at his usual time (approximately 6:00 a.m.). At approximately 9:00 a.m., he felt lower neck and lower back pain and, therefore, went home. One of his employees took over for him at the store. He said that over the next three months, he went to work every day to do the store’s banking and to open up the cigarette case with his keys. He said that he was at the store for approximately one hour, seven days a week and that other employees covered for him at the store. He testified that during this time, his problem was mid-back pain. However, he also stated that his problem was neck and upper and lower back pain. He said that his low back pain resolved around July or August 1996. He said that after about two to three months post-accident, his neck and mid-back pain started to increase.

Mr. El-Saikali testified that for at least the next two years, he became severely disabled, both physically and emotionally. He stated that he had muscle pain and stiffness throughout his body, and that he was very nervous and sleepy. He said that he suffered from a huge depression and that he had decreased memory and concentration. He said that, little by little, his social life disappeared. He stated that his parents came to Ottawa from Lebanon approximately three to four months after the accident to help him with his daily activities, including driving him to the store and to medical appointments, and doing the cooking, cleaning and housekeeping at his apartment. His sister, who lived in Ottawa, also helped him with these activities. His parents stayed with him for approximately a year.

A co-worker of Mr. El-Saikali, Mr. Albert Matar, testified that Mr. El-Saikali worked ten hours a day, six days a week, before the accident. Mr. Matar said that, following the accident, Mr. El-Saikali would come to the store each day for approximately half an hour to forty-five minutes to do the banking and to check on the store. He said that Mr. El-Saikali could not stand or sit for a long time and that he had to wear his coat because he felt nervous and was in pain. Mr. Matar said that Mr. El-Saikali's condition grew worse with time.

Mr. El-Saikali's brother, Aziz, testified that the 1996 accident changed Mr. El-Saikali's life. Aziz testified that Mr. El-Saikali used to work long hours at Becker's, but now sleeps all of the time, is in pain and cannot work. Aziz said that Mr. El-Saikali just does the paper work at Becker's.

Mr. El-Saikali's mother, Isabelle, testified that the 1996 accident changed Mr. El-Saikali's life. She said that he sleeps all of the time, that she has to wake him up, that everything hurts and that sometimes he goes for two days without eating or drinking. She also stated that her son worked a little at Becker's after 1996, that his father would drive him to the store and to the doctors, and that he did not do any housework after the accident. Mr. El-Saikali would not talk to friends when they called.

Mr. El-Saikali's sister, Mary Fleur Kouri, testified that her brother was very active and energetic prior to the 1996 accident, but that afterwards, he was a completely different person. She said that he was home all of the time, did not eat and did not care about the business. She would help him cook and clean around the house, which she did not do before the accident. She said that he did not work anywhere, other than as a manager at Becker s, where he would drop by the store to deal with money things, such as depositing the money.

Prior to the accident, Mr. El-Saikali had worked part-time (approximately sixteen hours in two to three days a week) as a welder for his brother's company, A&A Welding and Ironworks. In this job, he would cut, twist, grind and weld metal into fences, window security bars, railings and door gates. He stood and/or walked for most of his shift and needed to lift various tools and inventory, weighing from a few pounds to eighty pounds. He said that he did not continue with this work after the accident due to the pain. His brother, Aziz, said this as well. Mr. El-Saikali also apparently operated a dating service, matching couples with similar interests, although it is unclear how many hours he spent doing this work.

Mr. El-Saikali's job as a manager of a Becker's store involved a variety of tasks, including serving customers at the front counter/cash register, stocking shelves with cigarettes, milk, pop, snacks and other products, cleaning the store (including mopping the floor one to three times per day), taking inventory of store products, ordering required items and conducting the store's daily banking. He also needed to push and pull milk crates in the refrigerator twice a week and to lift milk bags/jugs, weighing approximately eight pounds. He worked ten hours a day, from 6:00 a.m. to 4:00 p.m, seven days a week, and stood most of the day. Together with his welding job, he worked approximately 86 hours a week.

Mr. El-Saikali had a history of low back pain prior to the 1996 accident. In September 1993, Dr. Z. Dhalla, a neurologist, reported Mr. El-Saikali's past medical history as including low back pain "occurring intermittently for the past 12 years," which "seemed to improve after he avoided tight clothing at his waist." In January 1994, Dr. Dhalla reported that Mr. El-Saikali might have a spinal cord lesion at the right T6 level, that his symptoms were chronic and that they might be related to a bullet wound Mr. El-Saikali received when he was 9 years old. Mr. El-Saikali testified that he received a bullet wound when he was 11 years old, that he was not sure when he received it and that he had to ask his parents to determine when it was (which required figuring it out in relation to when his uncle was married). Dr. Dhalla also investigated Mr. El-Saikali for cognitive/speech lapses lasting a few minutes, which had begun a number of years earlier. Dr. Dhalla was unable to properly diagnose this condition.

Mr. El-Saikali was involved in a motor vehicle accident in March 1994, where he was rear-ended. This caused him further low back pain. Mr. El-Saikali testified that the pain he suffered following this accident prevented him from carrying on with two of the three jobs he was doing at the time of the accident, namely, a pizza delivery job and a job as a superintendent managing three apartment buildings. However, he testified that he was able to carry on with his job managing a Becker's store and was able to work at his brother's welding company as of the fall of 1995. Mr. El-Saikali testified that he worked approximately 130 hours per week before the March 1994 accident. He said that he worked about 70 hours per week following this accident, and until the time of the April 1996 accident.

Mr. El-Saikali's brother, Aziz, testified that Mr. El-Saikali slowed down for about one week after the 1994 accident, but that, after this week, he returned to his regular job, working his normal hours. Aziz said that Mr. El-Saikali returned to normal after the 1994 accident and could not recall any other jobs that Mr. El-Saikali could not do as a result of that accident. Mr. El-Saikali's mother said that her son had a little bit of back pain after the 1994 accident, but that it was not a big thing. She could not recall whether or to what extent Mr. El-Saikali had to stop doing jobs after the 1994 accident. Mr. El-Saikali's sister said that the 1994 accident was not a big deal, that he slowed down a bit in the beginning, with a little bit of pain in his low back, and that he went to some doctors and returned to normal.

In May 1994, Dr. Wasfy Saleh, a general practitioner, reported Mr. El-Saikali as saying that he had a "history of back pain of one month's duration," that he was presently unemployed and undergoing physiotherapy.

Mr. El-Saikali continued to see Dr. Dhalla until September 1995, at which point Dr. Dhalla indicated that Mr. El-Saikali's pain was largely mechanical or myofascial in origin, but possibly related to an L5 or S1 root compression. Dr. Dhalla noted that Mr. El-Saikali had been "extensively investigated regarding his low back pain, but he seems to be looking for a magic cure for his low back pain."

In August 1995, Dr. R. El-Sawy, a physiatrist, reported that Mr. El-Saikali's pre-1994, intermittent low back pain was now continuous and that he could not work more than 30 hours per week. Dr. El-Sawy reported that Mr. El-Saikali had been taking medication for the problem "related to his head," but that "finally all that stopped." Dr. El-Sawy stated that Mr. El-Saikali's past medical history revealed surgery for various accidents. Mr. El-Saikali testified that he did not know what this referred to, that he had had a small piece of fat under his right shoulder removed in 1992 or 1993, but otherwise, he had not had other surgery.

In January 1996, Dr. Garth Johnson, an orthopaedic surgeon, reported that Mr. El-Saikali suffered back pain "every day" and that it "lasts all day long and occasionally will waken him at night." Dr. Johnson said that Mr. El-Saikali's back pain radiated down into his left leg, with some paraesthesia in his left thigh and lower leg, and was aggravated by lifting, standing, sitting and driving. Mr. El-Saikali testified that he was talking about his previous pain, not his present pain, and that there might have been a language problem. He also said this in relation to a January 1996 chiropractic examination in which he reported he was taking pain killers and/or muscle relaxants for his low back pain. Dr. Johnson reported that Mr. El-Saikali did not lose any time off of work after the 1994 accident, but that he had had to change his job from the physically demanding work of welding to that of a manager of a convenience store. Dr. Johnson reported that Mr. El-Saikali's past illnesses included a tonsillectomy. Dr. Johnson stated that Mr. El-Saikali was predisposed to mechanical back pain and that, by that point after his 1994 accident, he had probably "reverted back to the natural history of his pre-existing condition." Dr. Johnson encouraged Mr. El-Saikali to follow a regimen of abdominal exercises and prescribed a lumbosacral corset for use during activities that would bother his back.

Mr. El-Saikali testified that he was in good health just prior to the April 1996 accident. He testified that his injuries from the 1994 motor vehicle accident had resolved by the time of the second accident and that he was in no pain at all right before the April 1996 accident.

Mr. El-Saikali told the health practitioners he saw after the 1996 accident various things about his prior medical history. He testified that he sometimes forgot to tell his physicians about his 1994 accident, that sometimes he simply mentioned his main (or "level 1") complaints, and asked why he would talk about something if it had resolved. He said that some doctors simply asked him if he had suffered any accidents that had made him sit at home and do nothing.

In May 1996, Ms. Julie Dignard, a registered physiotherapist, stated that "Mr. El-Saikali reports no previous neck or back injuries" and that "general health is good." Mr. El-Saikali testified that he might have misunderstood Ms. Dignard's questions. In July 1996, Dr. Tony Newell, a physical medicine and rehabilitation specialist, reported Mr. El-Saikali's past medical history as "negative." In July 1996, Mr. El-Saikali told Dr. El-Sawy that between November 1995 and the second accident, his condition "was improving." In August 1996, Dr. Selwyn Smith, a psychiatrist, reported Mr. El-Saikali as describing himself as "being in good health" prior to the 1996 accident and as having "completely recovered" from the 1994 accident. In August 1996, Dr. Juan Tejada, a psychiatrist, reported Mr. El-Saikali as saying that he "developed severe back pain" as a result of the 1994 accident and had to reduce his working hours from roughly 130 per week to 90 per week.

In September 1996, Dr. D. Buchanan, a neuropsychologist, reported Mr. El-Saikali as saying that since the 1994 accident, "some symptoms got better with time and some were worse" and that the 1996 accident "apparently aggravated his neck problems and created a mid back problem." In September 1996, Mr. El-Saikali told Dr. K.P. Sitaram, a physical medicine and rehabilitation specialist, that he did not seek any medical treatment as a result of the 1994 accident, but that, about a year later, he saw his family physician for low back pain. Mr. El-Saikali said that "his symptoms got better and he stopped all treatments in January 1996." In October 1996, Dr. El-Sawy reported that, in November 1995, Mr. El-Saikali said that his condition was "getting worse," that "his lower limbs are getting weaker" and that "he wondered whether he had to quit his job."

In December 1996, Dr. E. Pringle, a neurologist, reported Mr. El-Saikali as being "completely well and healthy until he was involved in a motor vehicle accident in April, 1996." Mr. El-Saikali said he could not recall saying this or being asked about it. He said that the doctors were in a rush to save time. In April 1997, Dr. Charles Agbi, a neurosurgeon, reported Mr. El-Saikali's past history as "unremarkable except for a gunshot injury he sustained when sixteen years old." In January 1998, Dr. A.V. Jovaisas, a rheumatologist, stated that Mr. El-Saikali's "past medical history, apart from a gun shot wound as a child, was unremarkable." In April 1998, Dr. S.C. Marshall, a physical medicine and rehabilitation specialist, reported Mr. El-Saikali's past medical history as "unremarkable other than the fact htat hse [sic] suffers from heatburn [sic] and has some difficulties with his memory." Mr. El-Saikali testified that the doctors "mixed it up all over" and that "they all say something different."

In June 1999, Mr. El-Saikali told Dr. Jack Klein, a psychiatrist, that his 1994 accident was "small (i.e. minor), however, he experienced low back pain which had not resolved at the time of the 1996 accident." At the hearing, Mr. El-Saikali testified that he had no back pain at all right before the 1996 accident. In June 1999, Mr. El-Saikali told Dr. Perry Rush, a rheumatologist, that his low back pain resolved two or three months after the 1994 accident and that, prior to the 1996 accident, he had no pain. Mr. El-Saikali testified that his pain did not resolve after two or three months following the 1994 accident.

In July 1999, Dr. A. Tellier, a neuropsychologist, and Dr. James Blackburn, a neuropsychology resident, stated that Mr. El-Saikali’s past medical history included a motor vehicle accident in 1994 in which he "suffered some back pain" and from which the "injuries...were resolved before the second occurred." The doctors also note a gunshot wound at the age of fifteen, but that "no other prior medical problems were reported."

In March 2000, Dr. Ellen Thompson, an anesthesiologist and chronic pain specialist, reported that Mr. El-Saikali had had a "minor MVA in 1994 which left him with some back pain which was treated and which he states had recovered by 1996." Mr. El-Saikali testified that the 1994 accident was minor in the sense that it did not cause him to lose all of the jobs he was doing at the time. Dr. Thompson also reported that when "aged 9 [Mr. El-Saikali] suffered a gun shot wound injury "

In September 2000, Dr. M. della Zazzera, a general practitioner, reported that in late November 1995, Mr. El-Saikali had said that he "was unable to work," that he "had to quit his job" five months after the 1994 accident and that he "was fearful of losing his job." Mr. El-Saikali testified that Dr. della Zazzera may have misunderstood his language and that he was getting better in 1995.

In October 2000, Dr. Dan Sweet, an anesthesiologist and chronic pain specialist, reported Mr. El-Saikali as saying that, by December 1995, he was largely rehabilitated from his 1994 motor vehicle accident and that rehabilitation of his back had been successful "to the point where there was no pain or disability." Dr. Sweet testified that Mr. El-Saikali had said that he had received a bullet wound when he was nine years old.

In December 2000, Dr. M.S. Acharya, a physical medicine and rehabilitation specialist, reported that, after the 1994 accident, Mr. El-Saikali "did not have any residual pains after two months but he reduced his number of hours to 70 hours a week and he changed the type of work he was doing to part-time welding." Dr. Acharya also noted that Mr. El-Saikali received a "gun shot injury at age 9 years."

Following the 1996 accident, Mr. El-Saikali experienced physical and psychological symptoms. Regarding his physical symptoms, Dr. Acharya diagnosed Mr. El-Saikali's physical problems as "supportive tissue origin chronic pain following a motor vehicle accident" with a "fear of movements" and a "significant nonrestorative sleep pattern." Mr. El-Saikali underwent a Functional Capacities Evaluation ("FCE") in July 1996, after which the physiotherapist, Mr. Marc Dignard, expressed concern about the reliability of the results of the examination. However, Mr. Dignard suggested that Mr. El-Saikali's physical problems prevented him from performing his work as manager of a Becker's store and his work as a welder. A similar finding was made in a September 1996 FCE.

In July 1996, Dr. El-Sawy reported that Mr. El-Saikali showed no "abnormal physical signs or any evidence in the history, to suggest that his complaints are due to organic problems" and that there were no physical restrictions or limitations. In February 2000 and 2001, Dr. El-Sawy conducted further reviews and reiterated his conclusions. In relation to whether a pre-existing condition was affecting Mr. El-Saikali’s recovery, Dr. El-Sawy stated that there was no physical abnormality to explain his complaints.

In September 1996, Dr. Sitaram concluded that "there are no objective findings...that the experience of pain is rendering [Mr. El-Saikali] substantially unable to perform the essential duties of his occupation." Dr. Sitaram also found that the 1996 accident exacerbated Mr. El-Saikali's pre-existing spinal pain and that, although it was difficult to determine, the main part of his pain probably existed prior to the accident. Dr. Sitaram stated that "pre-existing pain condition and significant pain behaviour with exaggerated perceived disability are contributing to his present condition." Dr. Sitaram testified that there was no match between Mr. El-Saikali's complaints and his physical findings, that his functional capacities evaluation showed inconsistencies and was unreliable.

On cross-examination, Dr. Sitaram stated that a diagnosis of chronic pain syndrome was not a disorder in itself, that it is simply a different interpretation of a patient's symptoms, that Mr. El-Saikali's pain was purely subjective and that he found no abnormality in Mr. El-Saikali's range of motion or other physical testing. Dr. Sitaram stated that the recommendation in his 1996 report for ten pain management sessions concurrently with a graduated return to work was the psychologist's opinion during the multi-disciplinary DAC assessment. Dr. Sitaram also stated that he left the issue of whether Mr. El-Saikali suffered from chronic pain syndrome to the psychologist and that it was possible for a person to have chronic pain syndrome without objective findings.

In October 1996, Ms. Julie Dignard, a registered physiotherapist, reported that Mr. El-Saikali continued to complain of "'huge pain' in his neck, thoracic and low back area with radiation to bilateral upper and lower extremities and numbness in his face." Mr. El-Saikali testified that his low back pain had resolved by July or August 1996. Ms. Dignard reported that Mr. El-Saikali showed no objective signs supporting his complaints of significant pain throughout his body, that when observed, spontaneous movements were within normal limits, and that "his poor level of motivation and significant pain focused behaviour were likely a contributing factor to his limited improvement."

In June 1999, Dr. Rush, after an extensive examination of Mr. El-Saikali and the medical documents on file, concluded that the 1996 accident did not cause Mr. El-Saikali to suffer a loss or abnormality of physiological or anatomical structures or function and that Mr. El-Saikali was capable of performing the essential tasks of his pre-accident employment. In August 1999, February 2000 and January 2001, after reviewing further information, Dr. Rush reiterated his conclusion that there were no objective findings of physical impairment or disability.

The more contentious aspect of Mr. El-Saikali's condition is his psychological/emotional state following the accident. In July 1997, Dr. Newell noted a "major perception of disability" secondary to a minor whiplash injury and that Mr. El-Saikali was "looking for a cure." In November 1997, Dr. P. Henderson, a psychologist, found that Mr. El-Saikali exhibited some of the criteria of post-traumatic stress disorder, in that he experienced a life-threatening event and was traumatized. Dr. Henderson also said that Mr. El-Saikali had a variety of symptoms similar to a somatization disorder. Dr. Henderson diagnosed a "pain disorder associated with psychological factors, in his case depressed mood and to a lesser extent anxiety."

In January and March 1998, Dr. Jovaisas, found that Mr. El-Saikali suffered from "total body pain in keeping with post-traumatic myofascial pain syndrome." Dr. Jovaisas also characterized Mr. El-Saikali's condition as "ongoing chronic post-traumatic myofascial pain syndrome." In April 1998, Dr. Marshall diagnosed "chronic pain syndrome." In December 1999, Dr. E. Day, a physical medicine and rehabilitation specialist, found that Mr. El-Saikali had "myofascial syndrome, sometimes considered to be fibromyalgia" and "mechanical joint blockage [at various points in the spine and into the hip], typical of previous trauma." In March 2000, Dr. Thompson concluded that he suffered from "post-traumatic myofascial pain syndrome" and stated that "psychological malfunction or secondary gain issues do not cause this type of pain."

In October 2000, Dr. Sweet reported that Mr. El-Saikali had "chronic pain and disability as a result of [the 1996] motor vehicle accident...." Dr. Sweet began treating Mr. El-Saikali in late 1999 and testified that, at that time, Mr. El-Saikali "was a shadow of what he is today." Dr. Sweet said that Mr. El-Saikali was obviously severely depressed and diagnosed major depression. Dr. Sweet stated that Mr. El-Saikali had all the symptomatology of a chronic pain and fibromyalgia patient and that, based on his review of the available medical reports, Dr. Sweet felt that Mr. El-Saikali definitely had chronic pain between 1996 and 1998. Dr. Sweet testified that he had no reason to doubt Mr. El-Saikali's presentation. Dr. Sweet stated that he had conducted a physical examination of Mr. El-Saikali in September 2000, that he had not conducted such an examination in Mr. El-Saikali's first two visits in December 1999 and that he could not find any reports of a physical examination earlier than September 2000.

On cross-examination, Dr. Sweet testified that part of his role as a physician was to advocate on behalf of his patients and that he felt that Mr. El-Saikali had not been treated fairly in his claim. Dr. Sweet acknowledged that he was not a psychiatrist or psychologist, but felt he could diagnose major depression in his capacity as a physician. Dr. Sweet maintained that Mr. El-Saikali had steadily improved under his care. Dr. Sweet said that if he had read some of the other medical reports (for example, from Drs. El-Sawy and Rush), he would have questioned whether the 1996 accident was the sole cause of Mr. El-Saikali's problems. Dr. El-Sawy, who found no evidence of a physical impairment, stated that "there [was] extensive evidence of psychological problems, mainly on a conversion fashion" and that Mr. El-Saikali should seek psychological assistance.

A number of medical reports question the nature, source and veracity of Mr. El-Saikali's psychological complaints. Drs. Tellier and Blackburn found that his declining memory was not related to an accident-related head injury, but to the "interfering impact of such factors as pain, psychological distress, questionable motivation, and personality variables." Drs. Tellier and Blackburn also concluded that their "testing did not yield a valid neuropsychological profile...." Dr. Smith found no evidence of post-traumatic stress disorder, generalized anxiety disorder or that Mr. El-Saikali had suffered from a major depressive episode. Dr. Smith concluded that Mr. El-Saikali had not been psychologically impaired as a result of the 1996 accident. He noted that Mr. El-Saikali had had similar symptomatology following the 1994 accident, but that there was no significant pre-existing psychopathology contributing to his present impairment.

Dr. Buchanan found that Mr. El-Saikali's "pain behaviour and his psychological attitudes regarding pain are out of keeping with the consequences of this accident" and that "he has an underlying personality that tends him to be overly dramatic and in need of attention and support." Dr. Buchanan noted, in particular, that Mr. El-Saikali's responses to a depression questionnaire placed his symptoms at a "severe range," but that this "far exceed[ed] his clinical presentation."

Dr. Klein also concluded that the 1996 accident did not cause a psychological impairment. He testified that Mr. El-Saikali did suffer from a psychologically-based chronic pain condition, in that Mr. El-Saikali reported pain, had significant emotional distress and experienced a disturbed mood. However, Dr. Klein reported that "the current clinical picture constitutes a continuation of a pre-existing clinical picture involving chronic unexplained physical symptoms, lack of objectively demonstrable organic pathology, lack of response to treatment, and strong perpetuating factors involving primary and secondary gain." Dr. Klein also commented that Mr. El-Saikali's "lack of participation in home exercise and other physical activity is detrimental to him in terms of reinforcing his above-described-self perception of disability and preventing him from proceeding with his life in various ways, however I do not view this as a recovery issue with respect to the above noted accident. Rather, I view this as a personal non-accident related issue for Mr. El-Saikali to address." Dr. Klein concluded that "the overwhelming preponderance of evidence points to non-organic, non-accident related factors in this case...."

Dr. Klein testified that Mr. El-Saikali exhibited pain magnification in that he said he was in constant, severe pain, but that this was inconsistent with the organic findings, and that there was no cause and effect relationship between the accident and Mr. El-Saikali's life being destroyed. Dr. Klein testified that Mr. El-Saikali did not present with the symptoms of one suffering from a major depressive disorder (for example, with respect to the coherence of speech and thought). Dr. Klein said that credibility was important to Mr. El-Saikali's assessment. Dr. Klein stated that the main inconsistency was that Mr. El-Saikali had clearly said that he had not gone into work since a brief period immediately following the accident, but that the video surveillance showed him going into work a few weeks after Dr. Klein saw him. Dr. Klein explained that he normally does not look at surveillance unless patients have a chance to view it and comment on it. However, Dr. Klein said that he did not review the surveillance with Mr. El-Saikali since it was clearly inconsistent with his statements that he had not been back to work at all since a brief period following the accident. Dr. Klein testified that the video demonstrated a need for Mr. El-Saikali to present himself as disabled (namely, for psychological gratification and secondary gain) and that the videos tipped the balance in favour of explaining Mr. El-Saikali's presentation on the basis of secondary gain.

Dr. Klein stated that his examination of Mr. El-Saikali demonstrated a conscious amplification of pain, that is, pain amplification based on a self-belief of being disabled by chronic pain. Dr. Klein stated that Mr. El-Saikali had explained what his work consisted of at Becker's and that he clearly and unequivocally said that he was not doing any work function at all, and that he was not going into work or spending any time there. Dr. Klein stated that he had originally thought that Mr. El-Saikali exhibited both voluntary and involuntary somatization, but that viewing the videotape tipped the balance in favour of voluntary somatization, since if Mr. El-Saikali believed himself to be disabled, then he would not work at all. Dr. Klein said, therefore, that even if Mr. El-Saikali only worked one hour at a time, it would not change his view that Mr. El-Saikali was voluntarily presenting himself as disabled.

Dr. Rush found that there was no objective basis upon which to conclude that Mr. El-Saikali suffered from one of a variety of "physical sounding type diagnoses" such as fibromyalgia, myofascial pain syndrome or chronic pain syndrome. For example, Dr. Rush noted that chronic pain syndrome may be psychogenic in origin and demonstrated by extravagant pain behaviour or inconsistencies in history or examination. Dr. Rush noted Mr. El-Saikali exhibited many inconsistencies and non-organic physical signs, such as "self-reported pain to the slightest of touching (even to a bird feather) over the entire body (even over 'control' sites) which was inconsistent (dolorimeter vs foot callous, blood pressure and muscle strength testing)" and "JAMAR grip strength testing (about that expected of a 5 year old child) [which] was inconsistent with known physiology, with other aspects of the examination and with his stated abilities (e.g. driving)."

Dr. Rush testified that myofascial pain syndrome and fibromyalgia were labels for the same condition and that they were purely subjective conditions, with no objective basis for the complaints. On cross-examination, Dr. Rush acknowledged that people will react to, and recover from, trauma differently and that it is possible, but unlikely, that the physical cause of fibromyalgia, chronic pain and myofascial pain syndrome has not yet been discovered. Dr. Rush acknowledged that there is a syndrome (that is, a group of symptoms and complaints) for these conditions, but that the question was whether it should be given a physical label. Dr. Rush also stated that chronic pain syndrome and somatoform pain syndrome were the same and that credibility is important to the assessment and diagnosis of patients with these symptoms. However, Dr. Rush acknowledged that a doctor cannot really know whether a person has pain.

Dr. El-Sawy found that Mr. El-Saikali's "complaint is on a psychiatric/psychological basis related to his constitution," that "this has nothing to do with his accident" and that "this is due to his psychological constitution." Dr. El-Sawy further reported that Mr. El-Saikali's "significant problems are erectile dysfunction, sleep disturbance and energy loss," that the "hypogonadism should be treated appropriately and he should be under the care of a psychiatrist."

Law:

Section 7(1) of the Schedule states that an insured person is entitled to a weekly income replacement benefit if the insured person meets any of a number of qualifications, including whether, as a result of the accident, the person suffered a substantial inability to perform the essential tasks of his or her pre-accident employment. Counsel for Mr. El-Saikali, Mr. Rowe, submitted that an insured only bears the onus of establishing a prima facie case of entitlement and that the onus then shifts to the Insurer to disprove the person's entitlement, particularly where, as here, the Insurer initially paid, but then terminated, benefits. I reject this. I find that the Schedule clearly places the onus on the insured to establish entitlement to income replacement benefits, regardless of the payment and subsequent termination of benefits by the Insurer. Arbitration decisions have consistently taken this approach² and I see no reason to depart from it now. However, even if the burden is as suggested by Mr. Rowe, I find that the Insurer has discharged the onus of demonstrating that Mr. El-Saikali was not substantially disabled from his job as a result of the accident.

I accept the following principles (gleaned from arbitration decisions³) as relevant to Mr. El-Saikali's claim for income replacement benefits. Pain, in itself, is not compensable, nor does a diagnosis of chronic pain syndrome guarantee entitlement. Credibility is important to the assessment of a claim where there is no objective evidence of impairment or where complaints of pain are inconsistent with objective findings. Exaggeration and inconsistencies in medical history will not necessarily defeat an applicant's claim, if it can be shown that the accident was a significant or material contributing factor to the applicant 's disability. An applicant will not necessarily be disentitled to benefits because he or she suffered from a pre-existing condition (or "thin skull "), rendering him or her more susceptible to injury.

In my view, it is not enough that a person undergoes changes in his or her life following an accident or that the accident was the apparent trigger of those changes. An arbitrator must consider the total context of the applicant 's claim, having regard to the pre-accident medical and vocational history, the nature of the accident and the course and development of the applicant 's complaints. Given the subjective and illusive nature of chronic pain syndrome, I find that an applicant 's credibility on these issues is vital.

Findings:

I find, on a balance of probabilities, that Mr. El-Saikali has not, as a result of the April 3, 1996 motor vehicle accident, suffered a substantial inability to perform the essential tasks of his pre-accident employment.

Credibility:

I find that Mr. El-Saikali lacked credibility on a number of key points. I find that Mr. El-Saikali was more than merely a "poor historian" regarding the history and development of his symptoms. I find that he misrepresented the nature and course of his complaints, as well as a number of other relevant aspects of his life. I find an established pattern in which Mr. El-Saikali embellished his problems in order to further his claim for accident benefits. I acknowledge that Mr. El-Saikali’s life has undergone significant change since the 1996 accident and that he has undergone extensive medical treatment, including taking a wide variety of medications over the years. I also acknowledge that these events have been of concern to Mr. El-Saikali’s family. However, my task in this arbitration is simply to determine whether the accident in question materially contributed to these changes. On the basis of the medical, functional and personal evidence, all of which has been tainted by Mr. El-Saikali's lack of credibility, I find that it did not.

Mr. El-Saikali had a history of misrepresenting his medical condition and functional ability even before the 1996 accident occurred. About two months after his 1994 motor vehicle accident, he told Dr. Saleh that he had had back pain for approximately a month and that he was unemployed, whereas he had been treated by Dr. Dhalla in late 1993 and early 1994 for chronic back pain (which had begun at least in mid-1992) and whereas his family testified that he had returned to his normal employment approximately one week after the 1994 accident. In August 1995, Mr. El-Saikali told Dr. El-Sawy that he had continuous low back pain and could work no more than 30 hours per week, whereas he told Dr. Johnson five months later that he had not lost any time off of work after the 1994 accident, but had to change jobs from welding to managing a convenience store. At the hearing, Mr. Matar and Mr. El-Saikali's family testified that the 1994 accident was very minor and that Mr. El-Saikali only suffered a temporary slow-down in both his full-time job at Becker's and his part-time job at A&A Welding. Mr. El-Saikali testified that he was forced to give up two of his jobs (pizza delivery and apartment superintendent) and to reduce his weekly hours from 130 to 70 due to the 1994 accident. Again, however, his family suggested that the 1994 accident caused only minor disruption in Mr. El-Saikali 's life. None of his family members indicated that Mr. El-Saikali had to relinquish certain jobs as a result of the 1994 accident.

Mr. El-Saikali received a gunshot wound when he was young, had been treated by Dr. Dhalla for cognitive/speech lapses (which had been occurring for a number of years) and had told Dr. El-Sawy that he had had surgery for various accidents. However, Mr. El-Saikali only told Dr. Johnson that his past illnesses included a tonsillectomy.

Mr. El-Saikali continued to report significant, cont inuous low back pain to doctors and other health practitioners from before the 1994 accident to approximately three months before the 1996 accident. However, his family made no mention of Mr. El-Saikali's pre-1994 back pain and consistently stated that the 1994 accident caused him only minor back pain and disability. At the hearing, Mr. El-Saikali attempted to state that his reports of pain in 1996 to both Dr. Johnson and the chiropractor referred to previous, as opposed to current, symptoms, although Dr. Johnson’s report clearly refers to present complaints, and there is nothing in the chiropractor's report to suggest that it referred to some prior period of time. I reject Mr. El-Saikali’s claim that there may have been a misunderstanding or language problem. I find that Mr. El-Saikali has a solid grasp of the English language and that there were no significant communication problems either at the hearing or in his reports to the various health practitioners. I note, in particular, the comment in Dr. Blackburn's and Dr. Tellier's July 1999 report that "although some difficulty was noted with spoken English, Mr. El-Saikali’s conversational skills were quite sophisticated and his grammar was usually appropriate."

Mr. El-Saikali testified that he was in good health just prior to the 1996 accident and that his previous injuries had completely resolved. Based on his ongoing treatment from the time of the 1994 accident (and before), in which he complained of significant and continuous low back pain, I find that Mr. El-Saikali continued to suffer from back problems at the time of the 1996 accident. I note that, contrary to his testimony at the hearing, in which he said that he had completely recovered from the 1994 accident at the time of the 1996 accident, Mr. El-Saikali told Dr. El-Sawy in July 1996 that between November 1995 and the second accident, his condition "was improving." I note, as well, that in November 1995, Mr. El-Saikali told Dr. El -Sawy that his condition was deteriorating, and he told Dr. della Zazzera that his condition had rendered him unable to work or, at least, fearful of losing his job. These latter statements also contradict Mr. El-Saikali's testimony that he was getting better in 1995.

Mr. El-Saikali generally reported the circumstances of the 1996 accident consistently, but with one notable exception. At the hearing, Mr. El-Saikali said that when he was about to hit the truck, he was "scared to death." He also told Dr. Klein that, in the moment prior to the impact, he felt intensely frightened. However, he told Dr. Smith that he was "surprised" by the actions of the truck-driver and Dr. Smith reported that the accident did not involve any threat of death or intense fear. As discussed below, this discrepancy is particularly relevant to whether Mr. El-Saikali suffered post-traumatic stress disorder as a result of the accident.

Mr. El-Saikali gave widely varying reports to the doctors he saw after the 1996 accident about his pre-accident health. As noted earlier, these reports ranged from having no prior medical problems at all (in particular, no previous neck or back injuries) to having suffered some previous problems (including severe back pain as a result of the 1994 accident, which caused him to significantly alter his working life) to having continuous, but improving, back pain at the time of the 1996 accident, to being completely well and recovered from the 1994 accident at the time of the second accident. I do not accept Mr. El-Saikali 's testimony that he misunderstood the doctors when they asked him about his pre-accident history or that he either forgot or neglected to mention his previous problems. I also reject his explanation that, when asked about his prior medical history, the doctors simply wanted to know about accidents which had rendered Mr. El-Saikali housebound. I find that Mr. El-Saikali was asked directly and repeatedly about his pre-accident health and that he gave widely divergent and inconsistent responses.

One particularly striking example of this is Mr. El-Saikali’s reporting of the gunshot wound he received when he was young. The materials contain various references to this issue and Mr. El-Saikali gave no less than five different responses as to how old he was when he was shot, ranging from when he was a "child" to 9 years old, to 10 years old, to 15 years old, to 16 years old. At the hearing, he gave a sixth and seventh answer, namely, that he was 11 years old at the time and that he was not sure how old he was. Even if I were to accept that he needed his parents assistance to determine his age when this event occurred, I do not accept that this explains or justifies his giving numerous responses both to the doctors and at the hearing. I find that Mr. El-Saikali would likely not have forgotten when such a drastic event in his life occurred.

Mr. El-Saikali also gave various answers as to the number of hours he worked before the 1996 accident. He testified that he worked at Becker's for ten hours a day, seven days a week, and at his brother's welding company, for approximately 16 hours in two to three days a week. This amounted to approximately 86 hours a week. He also apparently worked for a certain amount of time running a dating service. However, Mr. El-Saikali also testified that he reduced his working hours from 130 to 70 per week following the 1994 accident, and until the 1996 accident. He told Dr. Tejeda that he worked 90 hours per week following the 1994 accident. He told Dr. Henderson that he typically worked 60 to 70 hours per week before the 1996 accident. He told Dr. Acharya that he worked close to 100 hours per week before the 1994 accident, but then had to reduce his workload to 70 hours per week. In August 1995, he told Dr. El-Sawy that he could not work more than 30 hours per week. In February 2000, he told Dr. El-Sawy that, before the 1994 accident, he worked an average of 140 hours per week and that, before the 1996 accident, he worked an average of 70-75 hours per week. In November 1995, he told Dr. della Zazzera that he was unable to work. He told Dr. Buchanan that, before the 1994 accident, he worked 80 hours per week and that, prior to the 1996 accident, he worked 70 hours per week. I see no reason for the many and varied responses Mr. El-Saikali gave to these simple inquiries about his work history.

Mr. El-Saikali demonstrated various inconsistencies in medical examinations following the 1996 accident. For example, the July 1996 FCE (which occurred only three months post-accident) showed inconsistencies in numerous physical tests including repeated trunk measurements, hip flexion, neck movements, straight leg raising measurements, right side bending, pull- and push-force testing, right hand grip testing, twisting and crawling during hand co-ordination tests, stooping and kneeling, and climbing while favouring his left lower extremity. During the FCE, Mr. El-Saikali also complained of significant pain, with no physical signs of discomfort. The physiotherapist concluded that "due to the significant inconsistencies...[he] was unable to determine [Mr. El-Saikali 's] true limitations." In the same month, Dr. Newell noted that it was very difficult to assess Mr. El-Saikali's gait "since it was quite bizarre," but that, upon observing him walking through the building, Dr. Newell was "unable to reconfirm any observations except for slowness in gait and a slight favouring of the right leg."

In his July 1996 examination, Dr. El-Sawy noted various inconsistencies, including significant functional problems on testing, but no pain behaviour "during the whole period of history taking," which was "not the characteristic way of people in pain in any part of the spine." Dr.

El-Sawy also stated that it was interesting to note that in the middle of the examination, Mr. El-Saikali "jumped off the exam table to rest in the sitting position" and that "while lying down on the examination table, [he sat] up at the edge of the table," which is "the exact opposite of what people with a spinal problem would do."

In September 1996, Dr. Buchanan reported that he observed Mr. El-Saikali undergoing the FCE and "he was extraordinarily dramatic in his pain behaviour with bizarre hand movements."

In her October 1996 discharge report, the physiotherapist, Ms. Julie Dignard, reported that Mr. El-Saikali demonstrated numerous inconsistencies and very poor motivation and compliance throughout his rehabilitation. For example, Mr. El-Saikali would, at one point, demonstrate significant restriction of movement in his cervical spine and, at another point, demonstrate near full mobility in the cervical spine with no pain behaviour. Mr. El-Saikali would complain of leg discomfort when performing shoulder shrugs, although there could be no relationship. He would "often refuse to perform the exercises given to him due to complaints of increased discomfort."

In July 1999, Drs. Blackburn and Tellier noted a variety of "extreme" behaviours. For example, Mr. El-Saikali had little stamina during testing, "sometimes asking if he could interrupt a test (even when the test was timed or was measuring endurance)." He walked very slowly, attributing this to pain, and then needed to be "transported throughout the hospital in a wheelchair." He worked "extremely slowly and deliberately on most tasks, even when he was instructed to work quickly." The assessors stated that, in light of these and many other difficulties, their test results "must be interpreted with caution."

Dr. Rush conducted an extremely detailed examination and noted numerous inconsistencies and non-organic physical signs, including reports of pain to negligible touching, reports of pain in varying degrees and locations, and an inability to perform simple physical tests.

Mr. El-Saikali's pain complaints varied from doctor to doctor, as did his descriptions of the progression of his symptoms since the 1996 accident. For example, in July 1996, Dr. Newell reported neck and back pain since the accident, whereas, in December 1996, Dr. Benoit reported steady discomfort in the lower neck radiating into the arms and hands. Dr. Newell noted that Mr. El-Saikali said he was "unable to sit for longer than one to two minutes," when he was "actually able to sit quite comfortably in the chair without any movement for about twenty to twenty-five minutes." As early as September 1996, Mr. El-Saikali told Dr. Sitaram that he had had "generalized body pain" which had started about two weeks after the accident (where he first experienced neck and low back pain). In October 1996, Mr. El-Saikali told Ms. Dignard that he had significant neck, thoracic and low back area pain, whereas he testified that his low back pain had resolved by July or August 1996. In April 1997, Dr. Agbi reported pain and numbness in both hands and occasional left shoulder pain since the accident. In January 1998, Dr. Jovaisas reported Mr. El-Saikali as saying that "since [the accident], he has basically had total body pain." In April 1998, Mr. El-Saikali told Dr. Marshall that, since the accident, he "has had a progressive increase in his pain symptoms" and that his pain is "present 100% of the time in all of his muscles." In December 1999, he told Dr. Day that he had had "pain 'all over' and 'everywhere' ever since the motor vehicle collision in 1996." Finally, within the span of approximately seven days, Mr. El-Saikali reported significant joint pain to Dr. Sweet (on September 27, 2000) and "almost no pain" to Dr. Thompson (on October 3, 2000).

As discussed more below, I find that these numerous discrepancies and inconsistencies in Mr. El-Saikali's reporting and physical presentation, dating from shortly after the accident to the present, significantly undermine the authenticity of his complaints and reflect a conscious misrepresenta- tion of the nature, course and extent of the accident’s effect on him.

Mr. El-Saikali gave widely divergent reports of his income after the 1996 accident. He testified that, in October 1996, the Insurer was paying him $498 per week in income replacement benefits. However, he also said that the Insurer was paying him $3,500 a month in income replacement benefits (which is $875 per week). Mr. El-Saikali applied for a number of credit cards after the 1996 accident and gave various reports as to his employment income. In what appears to be August 1996, he applied for a GM Card and reported his current gross monthly income as $5,000. In October 1996, he applied for a "Homecard" and reported his gross monthly income as $3,500. In December 1998 (after the Insurer had terminated benefits), Mr. El-Saikali applied for a Future Shop account and reported his annual income as $40,000 (or $3,333 per month). In June 1998, he applied for a Royal Bank Classic Card and reported his gross monthly income as $6,400. Interestingly, he reported his employer as "Mac’s Milk" (which he also did in October 1998, when he applied for a Zeller’s account), as opposed to the Becker’s where he actually worked and which he reported on the other credit applications. In January 1997, Mr. El-Saikali applied for an American Express Card and reported his personal annual income as $45,000 (or $3,750 per month). Finally, in April 2000, Mr. El-Saikali filled out a "GNA Triumph Switch Products" form (which appears to be an American Express credit transfer product) in which he reported annual income of $130,000. Mr. El-Saikali testified that this was his company's income, but on the form, he is noted as the cardmember, all of the information (other than Becker's being noted as his employer) pertains to Mr. El-Saikali personally and there is no indication that the transaction involves a corporate, Becker's account. I find that these are yet further examples of Mr. El-Saikali 's conscious and blatant misrepresentation of his personal circumstances following the accident.

Mr. El-Saikali also misrepresented whether he returned to work following the 1996 accident. For example, he told Dr. Smith and Dr. Newell that he "ha[d] not worked since his accident." During the FCE, he told Mr. Dignard that he had "not returned to any work," but that he did "paper work at night in his home for up to five hours in duration which is usually performed after his physiotherapy exercise program." He told Dr. Buchanan that he worked two hours per day doing bookkeeping at the Becker's store ("paper work, bank deposits, etc."), but he also said that he worked "zero hours per week." Dr. Buchanan reported that "zero hours per week" apparently meant "customer contact and being alone in the store." He told Dr. Henderson that "his greatest social outlet formally was his business which he is now unable to attend." He told Dr. Rush that he "does not do any work now" and, when asked what he did do now, he said that he "mostly sleeps in bed." He told Dr. Klein that he had "been unable to work at his occupation of manager of a Becker's convenience store in that his post-accident attempts to return to work have resulted in severe exacerbations of pain." Dr. Klein testified that contrary to what was shown in the surveillance (discussed below), Mr. El-Saikali clearly and unequivocally stated that he had not done any work at all since a brief period following the accident, and that he had not gone into work or spent any time there.

The Insurer conducted surveillance of Mr. El-Saikali in mid-1996 and in late 1999. Mr. El-Saikali's counsel, Mr. Rowe, objected to the introduction of the 1999 surveillance on the basis that it was not relevant, since it was done after the period in dispute. I admitted the surveillance. I find that it is relevant to the central issue of credibility in this case. I note that many of the reports relied on by Mr. El-Saikali both pre- and post-date the relevant time period. In particular, Mr. El-Saikali relied heavily on the reports of Drs. Thompson and Sweet, neither of whom saw him until late 1999. The course of Mr. El-Saikali’s symptoms (including his pre-accident health and general medical reporting since the accident) is critical to the question of his entitlement. I find that excluding the 1999 surveillance would artificially restrict the scope of this hearing and undermine a proper determination of the issues of causation and disability.

The first part of the surveillance was conducted in May, June and July 1996 (one to three months post-accident). While the May videotapes show some evidence that Mr. El-Saikali has a stiff upper back or neck, the tapes generally show him to be active in standing, twisting, bending, walking and driving. Contrary to Mr. El-Saikali’s evidence, the tapes do not show a deterioration or a change in the nature of his condition. If anything, they show him significantly improved by July. They certainly do not show the total body pain which he told several doctors he suffered from the time of the accident. The tapes also show him to be fully independent in driving, whereas his mother testified that he could not drive right after the accident (although she also said that he may have driven the car a little bit in the few months after the accident, but that he was very tired). The tapes also show Mr. El-Saikali at the store for well over the thirty minutes to an hour stated by Mr. El-Saikali and Mr. Matar, and show him conducting various errands over the course of the day. While some of the investigator's reports refer to Mr. El-Saikali being in the back room of the store for some of the time he was there and while Mr. El-Saikali said that he would go to the back room to lie down and sleep, I note that Mr. Matar (upon whose evidence Mr. Rowe urged me to rely) made no reference to Mr. El-Saikali doing this. He said that Mr. El-Saikali simply came to the store for an hour at the most, to check on things, to do the banking and then to leave.

The 1999 surveillance shows even greater activity on Mr. El-Saikali 's part. He is working at the store for several hours at a time (on two occasions, from early afternoon until after midnight), helping customers, assisting employees behind the counter, moving products and stocking the shelves. Mr. El-Saikali also runs errands on these days. Throughout this time, Mr. El-Saikali walks easily and briskly, stands for lengthy periods of time, and bends, lifts and squats with no apparent difficulty. At one point in the hearing, Mr. El-Saikali denied that he was standing, when the tape clearly showed him standing behind the counter helping an employee to serve customers. The 1999 tapes are clearly inconsistent with Mr. El-Saikali 's and his family's evidence that he did not return to work after the accident and was essentially housebound, except for some brief times at the store to take care of administrative duties. The tapes also stand in stark contrast to Dr. Sweet 's evidence that, in 1999, Mr. El-Saikali was a "shadow of what he is today" and that he was suffering from a major depression. Dr. Sweet also testified that Mr. El-Saikali had said that, after the 1996 accident, he might have "two to three good days" and that he could only stock milk crates for approximately an hour. None of the other witnesses suggested that Mr. El-Saikali could do any sort of significant work for two to three days at a time, and made no mention at all of him stocking milk crates. Dr. Klein correctly noted that the tapes clearly contradict Mr. El-Saikali’s claim that he had not been back to work at all since a brief period following the accident.

I find that the surveillance further undermines the manner in which Mr. El-Saikali has attempted to portray his post-accident condition and limitations. I find that it is yet further evidence of Mr. El-Saikali's general lack of credibility in this case.

Causation and Disability:

I accept that Mr. El-Saikali could have suffered neck and back pain as a result of the 1996 motor vehicle accident. However, given the numerous discrepancies in his medical reporting, both before and after the 1996 accident, I find that, assuming he experienced any problems at all, he did not suffer significant neck, back or other physical injuries as a result of the 1996 accident.

As noted above, Mr. El-Saikali gave several different and conflicting reports as to his symptoms following the accident, ranging from shoulder pain, to neck and back pain, to total body pain. He also demonstrated numerous inconsistencies upon physical testing (during medical examinations, functional capacities evaluations and rehabilitation). Mr. El-Saikali simply did not provide a coherent and credible articulation of what, if anything, he had suffered as a result of the accident.

Superimposed on this are the inconsistent and unsupported reports Mr. El-Saikali was providing to his doctors prior to the accident, as well as the blatant non-reporting of his medical history following the accident. Mr. El-Saikali attempted to portray the 1994 accident as a turning point in his medical history and as significantly affecting his ability to work, right up to the time of the 1996 accident. This conflicted both with his family's and his co-worker's testimony, as well as his own reports following the 1996 accident. Mr. El-Saikali also gave widely divergent and inconsistent reports about both his pre-accident medical health and his working hours to the physicians he saw after the 1996 accident. I find that Mr. El-Saikali 's history of misrepresenting his medical condition and functional ability significantly undermines his claim of having suffered significant (and, in fact, life-altering) injuries as a result of the 1996 accident.

I find that the preponderance of medical evidence establishes that Mr. El-Saikali did not suffer significant physical injuries as a result of the accident. The 1996 FCEs found that Mr. El-Saikali suffered soft-tissue injuries in the accident which impaired his ability to return to work, but both reports clearly stated that the number of inconsistencies and other difficulties during the tests undermined the reliability of their conclusions. Neither evaluation was aware of the numerous discrepancies in Mr. El-Saikali's medical reporting both before and after the 1996 accident. Drs. El-Sawy, Sitaram and Rush, and Ms. Dignard, found that there were no objective findings to support Mr. El-Saikali's reported symptoms.

Dr. Acharya diagnosed Mr. El-Saikali's physical problems as "supportive tissue origin chronic pain following a motor vehicle accident" with "some fear of movements" and a "significant nonrestorative sleep pattern." Dr. Jovaisas found that Mr. El-Saikali suffered from "total body pain in keeping with post-traumatic myofascial pain syndrome." Dr. Marshall diagnosed "chronic pain syndrome." Dr. Day found that Mr. El-Saikali had "myofascial syndrome, sometimes considered to be fibromyalgia" and "mechanical joint blockage [at various points in the spine and into the hip], typical of previous trauma." Dr. Thompson concluded that he suffered from "post-traumatic myofascial pain syndrome." Dr. Sweet found that Mr. El-Saikali suffered from chronic pain and fibromyalgia. For the following reasons, I find that these reports do not support the conclusion that Mr. El-Saikali suffered significant physical injuries as a result of the 1996 accident.

None of the noted physicians had an accurate understanding of Mr. El-Saikali's pre-accident medical and functional history. For example, Dr. Jovaisas was under the impression that Mr. El-Saikali's pre-accident medical history was unremarkable, apart from having received a gunshot wound as a child. Dr. Marshall understood Mr. El-Saikali’s past medical history to be unremarkable other than having had heartburn and some difficulties with his memory. Dr. Acharya thought that Mr. El-Saikali had fully recovered from the 1994 accident after two months, but that he nevertheless significantly reduced his working hours and had to change occupations. Mr. El-Saikali had told Dr. Thompson that his 1994 accident was minor and that he had fully recovered by 1996. Mr. El-Saikali had told Dr. Sweet that, by December 1995, he was largely rehabilitated from his 1994 accident and was without pain or disability. As discussed earlier, Mr. El-Saikali either contradicted or significantly altered each of these reports when seeing other physicians.

None of the noted doctors had an accurate understanding of Mr. El -Saikali's medical development following the 1996 accident. Dr. Jovaisas and Dr. Day understood that Mr. El -Saikali had had total body pain since the 1996 accident. Dr. Marshall thought that Mr. El-Saikali's pain symptoms had increased progressively to the point of constant and total muscle pain. Dr. Sweet simply reported that, since 1996, Mr. El-Saikali had continued to complain of chronic pain and disability. Dr. Thompson understood Mr. El-Saikali to have suffered from mid-back and anterior chest pain, then low back and occipital pain (which subsequently improved) and then primarily mid-dorsal, forearm and right shoulder pain. Again, Mr. El-Saikali significantly modified his reports of pain (in location, timing and degree) as he proceeded from physician to physician. I find particularly significant that within the span of a week in the fall of 2000, he told Dr. Sweet and Dr. Thompson that he suffered significant joint pain and almost no pain. The reports of Drs. Acharya, Day, Sweet and Thompson (all of whom saw Mr. El-Saikali from December 1999 onward) were also undermined by the surveillance in late 1999. Contrary to Mr. El-Saikali's reports of significant pain and functional limitations (as Dr. Thompson put it in her March 2000 report, "myofascial pain syndrome which is quite severe and disabling"), the surveillance shows Mr. El-Saikali actively moving and working for extended periods of time. The surveillance contradicts Mr. El-Saikali 's medical reporting and testimony, as well as his family's evidence as to his functional ability following the accident. I find that these numerous discrepancies undermine any suggestion that Mr. El-Saikali suffered significant physical injuries as a result of the 1996 accident.

I further find that the medical evidence establishes, on a balance of probabilities, that Mr. El-Saikali did not suffer significant psychological and/or emotional injuries as a result of the 1996 accident. I make this finding both as a general conclusion and to the extent that the various diagnoses of chronic pain syndrome, fibromyalgia and myofascial pain syndrome are considered to be subjective and/or non-organic conditions.

In addition to the doctors who diagnosed chronic pain syndrome and fibromyalgia (Drs. Jovaisas, Marshall, Day, Thompson and Sweet), Dr. Newell said that Mr. El-Saikali had a "major perception of disability" and that he was "looking for a cure." Dr. Henderson suggested that Mr. El-Saikali suffered post-traumatic stress disorder and a somatization disorder, and diagnosed a pain disorder with associated psychological factors. Dr. El-Sawy said that there was extensive evidence of psychological problems, mainly on a conversion basis. Dr. Thompson noted that "psychological malfunction" and "secondary gain issues" do not cause post-traumatic myofascial pain syndrome. Dr. Sweet diagnosed depression, in addition to chronic pain and fibromyalgia.

For the reasons outlined above regarding the physical aspects of Mr. El-Saikali's complaints, I am not prepared to accept the opinions of Drs. Jovaisas, Marshall, Day, Thompson and Sweet that Mr. El-Saikali suffered significant psychological sequalae as a result of the 1996 accident. Each opinion was predicated on significant misunderstandings of Mr. El-Saikali’s pre- and post-accident medical and functional history. For example, Drs. Jovaisas and Marshall proceeded on the basis that Mr. El-Saikali was suffering total body pain, whereas Mr. El-Saikali's subjective reports of pain fluctuated significantly throughout the claim. None of the physicians were aware of Mr. El-Saikali’s pre-accident state and his propensity to misrepresent the effect of the 1994 accident on his life. Drs. Day, Thompson and Sweet were unaware of Mr. El-Saikali's extensive activities in late 1999.

I do not accept Dr. Henderson's opinion concerning the nature of Mr. El-Saikali's condition. Dr. Henderson was under the impression that Mr. El-Saikali experienced a "life-threatening event" (similar to Dr. Klein's report and similar to Mr. El-Saikali's testimony), whereas Dr. Smith reported Mr. El-Saikali as saying that he was "surprised" by the actions of the truck-driver. Dr. Smith also reported that the accident did not involve any threat of death or intense fear. I find this to be a basic aspect of Mr. El-Saikali 's reaction to the accident and he did not report it consistently. I find that this discrepancy undermines the conclusion that Mr. El-Saikali suffered post-traumatic stress disorder as a result of the accident.

Dr. Henderson was also under the impression that Mr. El-Saikali 's symptoms of somatization began with the accident. However, Dr. Henderson was completely unaware of Mr. El-Saikali's pre-accident medical history and reporting, including the fact that Dr. Dhalla reported some seven months before the 1996 accident that Mr. El-Saikali seemed to be "looking for a magic cure for his low back pain." This was remarkably similar to Dr. Newell's comment in 1997 that Mr. El-Saikali had a "major perception of disability" and was "looking for a cure." I do not accept Dr. Henderson's comment that Mr. El -Saikali's symptoms began with the 1996 accident. I find that Mr. El-Saikali had a long history of overstating and misrepresenting the nature and functional impact of accidents.

Drs. Henderson, El-Sawy and Sweet suggested that whatever pain Mr. El-Saikali had was complicated by psychological factors. I, therefore, find curious Dr. Thompson’s comment that "psychological malfunction or secondary gain issues do not cause" post-traumatic myofascial pain syndrome. To the extent that myofascial pain syndrome contains a subjective and/or non-organic element, I find that Mr. El-Saikali’s condition was a reflection of his particular psychological constitution. While any pain he was experiencing may not have been caused by his emotional state, I nevertheless find that his portrayal of himself as severely disabled was directly related to his psychology and to his desire to benefit both personally and financially from his situation. Regarding the issue of secondary gain (and as discussed earlier), I find that Mr. El-Saikali misrepresented his pre- and post-accident medical and work history in order to further his disability claim. I also find that he misrepresented his post-accident income in order to obtain various forms of credit. I, therefore, conclude that the accident played a relatively insignificant role in Mr. El-Saikali's complaints and that he sought (as he had done in the past) to portray himself as severely disabled by widespread pain.

Mr. El-Saikali relied heavily on Dr. Sweet’s evidence. However, in addition to the problems I have already identified, I reject Dr. Sweet’s opinion for the following reasons. Dr. Sweet found that, from 1996 to 1998 and following, Mr. El-Saikali suffered chronic pain disability and/or fibromyalgia as a result of the 1996 accident. Dr. Sweet based this opinion on his review of the medical reports between 1996 and 1998, as well as his treatment of Mr. El-Saikali. However, Dr. Sweet acknowledged that he had not reviewed a variety of medical reports, including those of Drs. El-Sawy, Sitaram and Rush, and that, if he had, he would have questioned whether the 1996 accident was the sole cause of Mr. El-Saikali's problems. Dr. Sweet also began treating Mr. El-Saikali in late 1999, but could only recall physically examining him in September 2000 (and, as noted earlier, while Dr. Sweet said that, in late 1999, Mr. El-Saikali was a shadow of what he was currently, surveillance showed Mr. El-Saikali to be very active at that time). All of this is complicated by the fact that Dr. Sweet acknowledged at the hearing that he considered part of his role as a physician to be to advocate on behalf of his patients, and that he felt Mr. El-Saikali had not been treated fairly in this case. I find that Dr. Sweet had a very limited and distorted understanding of Mr. El-Saikali's situation and that he reached his conclusions relying too heavily on Mr. El-Saikali's own reporting of his medical condition, as well as his own views of his role in this process. I do not accept Dr. Sweet's opinion as to the nature and source of Mr. El-Saikali's condition.

I prefer to rely on those reports which considered the significant discrepancies in Mr. El-Saikali's reporting and presentation. For example, Drs. Tellier and Blackburn rejected Mr. El-Saikali 's claim that he suffered declining memory as a result of the 1996 accident, on the basis that there were no indications of a head injury, that Mr. El-Saikali's complaints far exceeded the symptoms associated with traumatic brain injury, that testing had not yielded a valid psychological profile and that his symptoms were more likely due to factors such as pain, psychological distress, questionable motivation and personality variables. As early as September 1996, Dr. Buchanan found that Mr. El-Saikali 's pain behaviour and psychological profile were out of keeping with the consequences of the accident. Even his responses to a depression questionnaire exceeded his actual clinical presentation. Dr. Buchanan concluded that Mr. El-Saikali had a personality that rendered him overly dramatic and in need of attention and support, and that he was not disabled from returning to work. I find that these conclusions are buttressed by the numerous contradictions and inconsistencies in Mr. El-Saikali's evidence.

I find Dr. Klein's evidence particularly useful in this regard. Dr. Klein had a much more complete understanding of Mr. El-Saikali's pre- and post-accident history and was aware of some of the key discrepancies in Mr. El-Saikali's evidence, notably, the surveillance showing Mr. El-Saikali working for prolonged periods of time. Dr. Klein was quite prepared to state (as a number of other physicians had observed) that Mr. El-Saikali's condition contained a psychological component, even to the point of saying that Mr. El-Saikali suffered from a psychologically-based chronic pain condition. However, I agree with Dr. Klein’s opinion that this did not end the matter. Dr. Klein pointed out that Mr. El-Saikali fits the criteria for chronic pain syndrome, simply on the basis that he reported pain, had significant emotional distress and experienced a disturbed mood. Dr. Klein further noted that Mr. El-Saikali’s condition was a continuation of a pre-accident condition of chronic unexplained physical symptoms, perpetuated by primary and secondary gain. In particular, Dr. Klein concluded that Mr. El-Saikali demonstrated a conscious amplification of pain and/or voluntary somatization, based on a self-belief of disability, and motivated by secondary gain. I find that, unlike the other physicians who diagnosed chronic pain syndrome or fibromyalgia, Dr. Klein had a clearer understanding of Mr. El-Saikali’s medical history and development, and correctly understood his post-1996 condition as a continuation and reflection of a host of pre-existing psychological factors. I accept Dr. Klein's view that Mr. El-Saikali’s psychologically-based symptoms were not causally related to the 1996 accident.

I further find that Dr. Rush’s and Dr. El-Sawy’s evidence supports Dr. Klein’s conclusions. Both Dr. Rush and Dr. El-Sawy found that Mr. El-Saikali exhibited numerous inconsistencies and non-organic signs and that there was no correlation between the accident and the symptoms with which he presented. Dr. Rush noted that neither Dr. Thompson nor Dr. Sweet had tested Mr. El-Saikali for inconsistencies or non-organic physical signs. Dr. El-Sawy correctly pointed out that Mr. El-Saikali had been reporting significantly different symptoms to Drs. Thompson and Sweet, whom he was seeing within the same time frame. Again, both Dr. Rush and Dr. El-Sawy had a more complete understanding of Mr. El-Saikali 's medical history, particularly Dr. El-Sawy, who had treated Mr. El-Saikali after the 1994 accident and who, like Dr. Klein, found Mr. El-Saikali's complaints to be a continuation of a pre-existing psychological state. Dr. Rush also noted that Mr. El-Saikali had had a pre-accident history of fibromyalgia or myofascial pain syndrome.

I, therefore, find that Mr. El-Saikali's condition was not caused by the 1996 motor vehicle accident, that his complaints were psychologically-based and that they were significantly compromised by his long-standing propensity to overstate and to misrepresent his medical and functional problems.

Returning, then, to the legal principles identified earlier, I do not find that Mr. El-Saikali 's subjective complaints of pain or the corresponding diagnoses of chronic pain syndrome, fibromyalgia and myofascial pain syndrome are sufficient to support his claim for income replacement benefits. There is a dearth of objective or organic evidence to support Mr. El-Saikali 's complaints of severe, widespread and disabling pain. The complaints, themselves, vary widely from doctor to doctor. Mr. El-Saikali 's evidence both before and after the 1996 accident, as well as at the hearing, was rife with inconsistencies and misrepresentations. As stated earlier, in light of the subjective and illusive nature of chronic pain syndrome (or the associated conditions), I find that credibility is vital to such a claim. Mr. El-Saikali 's lack of credibility was more than simply a factor in an otherwise meritorious claim: it pervaded and undermined every aspect of his case. I again acknowledge that Mr. El-Saikali's life has changed significantly following the accident. However, based on the preponderance of evidence in this case, I find that the accident did not materially contribute to these changes. This is not a case where the applicant suffered from a pre-existing condition rendering him more susceptible to injury. Mr. El-Saikali’s pre- and post-accident complaints were remarkably similar, his post-accident presentation simply being a more pronounced, yet equally suspect, manifestation of his particular psychological constitution. I, therefore, conclude that Mr. El-Saikali did not, as a result of the 1996 accident, suffer a psychological impairment.

For many of the same reasons, I further find that Mr. El-Saikali did not suffer a substantial inability to perform the essential duties of his pre-accident employment. While the medical opinions dismissing Mr. El-Saikali’s claim do so largely on the basis that there is no causal relationship between his alleged injuries and the accident, some also address the issue of whether he was substantially disabled from performing his pre-accident duties. While I accept that Mr. El-Saikali’s life changed after the accident, I do not accept that this represented a physical and/or psychological inability to perform his previous activities.

As established by various medical reports (for example, those of Dr. Sitaram and Dr. Rush), there was no objective or organic evidence that Mr. El-Saikali suffered from a physical disability. Even the early functional capacities evaluations concluding that Mr. El-Saikali was incapable of doing his former jobs were hampered by the significant credibility problems outlined above. Similarly, the reports which diagnosed chronic pain syndrome and/or fibromyalgia (and which suggested that Mr. El-Saikali suffered a severe disability) relied heavily on Mr. El-Saikali's subjective complaints. I have found those complaints to be highly problematic. I prefer to rely on those reports which suggested that Mr. El-Saikali was not psychologically impaired from returning to work and that, given his particular constitution, psycho-emotional counselling might be advisable, but would likely not assist him in recovering whatever functionality he felt he had lost.

For example, Dr. Buchanan found that there was no emotional reason precluding a return to employment and that pain management education could be administered concurrently with a gradual return to work. Dr. Newell suggested that continued treatment might, in fact, be "reinforcing [Mr. El-Saikali's] high level of perceived disability and pain." Dr. Klein found that Mr. El-Saikali was not psychologically impaired from returning to work. In particular, Dr. Klein stated that Mr. El-Saikali 's having returned to work at the same time that he was claiming severe physical and emotional problems, demonstrated Mr. El-Saikali 's inherent need to present himself as disabled. I, therefore, conclude that, despite his general presentation, the 1996 accident had not rendered Mr. El-Saikali substantially disabled from performing his pre-accident employment.

Inclusion of A&A Welding Income in IRB Calculation :

Mr. El-Saikali maintained that the remuneration he received from his employment at his brother's welding company should be included in the calculation of his income replacement benefits, both before and after the date on which the Insurer terminated benefits (May 17, 1997). As the Insurer was justified in terminating benefits in May 1997, I will only determine the issue of quantum for the period of April 10, 1996 to May 17, 1997.

Mr. El-Saikali testified that he and his brother worked for each other (Mr. El-Saikali at A&A Welding and his brother at Becker's). He said that they recorded their respective hours, but that no money was exchanged until the end of the year. Mr. El-Saikali's brother first testified that he paid Mr. El-Saikali by exchanging hours with him. He then said that he gave his brother cheques.

In October 2000, at the request of the Insurer, Hrycko & Associates (a forensic accounting firm) provided a report as to how Mr. El-Saikali’s income replacement benefits should be calculated. They did not include any amounts Mr. El-Saikali may have received from A&A for the following reasons. They only had manual pay stubs and calendar extracts for income received from A&A and had no evidence as to when these were prepared or by whom. They had various cheques drawn on A&A’s bank account and made payable to Mr. El -Saikali, but these did not show bank encoding as would be typical for cheques that had cleared the banking system. Four of the cheques had the word "cancelled" stamped on the back. Some of the cheques were undated. The accountants stated that they could not confirm whether the cheques provided were indeed cashed or whether Mr. El-Saikali received the noted amounts. Despite repeated requests, Mr. El-Saikali had not provided copies of his personal bank statements showing deposits of the funds alleged to have been received from A&A. Mr. El-Saikali's 1995 and 1996 income tax returns were filed and assessed in 1997, well after both the tax-filing deadlines and the accident.

I find that the calculation of Mr. El-Saikali's income replacement benefits should not include his work or payments from A&A Welding. Mr. El-Saikali's and his brother's testimony were inconsistent and confusing. I am unable to determine what, if any arrangement, the brothers had to remunerate Mr. El-Saikali for his work at A&A Welding. I accept the accountants' comments that the documentation provided was entirely inadequate to determine the existence or nature of any arrangement between Mr. El-Saikali and hi’s brother and, in particular, whether and how Mr. El-Saikali was paid for his work at the welding company. Some of the documentation, such as the income tax returns filed after the accident, was potentially self-serving. I find the material provided and the testimony unreliable, particularly in the context of the myriad inconsistencies and misrepresentations in this case (most notably, the various income figures Mr. El-Saikali provided on his credit applications). I see no basis to recalculate Mr. El-Saikali 's income replacement benefits taking into account his work at A&A Welding.

Entitlement to Benefits for Parents' Airfare:

Section 53 provides, in part, that, if an insured person has suffered an impairment as a result of an accident, his or her parents are entitled to an allowance, that is reasonable having regard to all of the circumstances, for expenses actually incurred in visiting the insured person during his or her treatment or recovery.

Even if it were accepted that Mr. El-Saikali suffered an "impairment" within the meaning of the Schedule as a result of the 1996 accident, I do not find that his parents are entitled to be reimbursed for airfare for a trip from Lebanon to Canada.

I received no evidence of the cost or timing of Mr. El-Saikali’s parents flight to Canada. Mr. El-Saikali’s counsel, Mr. Rowe, stated that he had no submissions on the issue of entitlement to airfare. Mr. El-Saikali testified that his parents first came to Canada in 1989 and subsequently went back and forth between Lebanon and Canada. He was not sure when they came to Canada in 1996. He said both that they came about three to four months after the accident, but also that they probably came in November 1996 (some seven months after the accident). He said that they came in order to help him and that they returned to Lebanon approximately a year after the accident, but, again, he was not sure. I accept that Mr. El-Saikali’s parents assisted him with a variety of activities when they were in Ottawa. However, Mr. El-Saikali's mother testified that between 1989 and 1996, Ottawa was her home, that her son had lived with them from 1990 to the present and that he lived with them all the time. She did not say when she came to Canada in 1996 or when she left. She did not say that she and her husband had travelled from Lebanon to Canada in order to assist her son.

In all of the circumstances, I do not accept Mr. El-Saikali’s evidence that his parents travelled to Canada in 1996 to assist him after the accident. I am unable to determine whether or when his parents came to Canada in 1996. While his parents were clearly in Ottawa assisting him, I do not find that they had flown there as a result of the accident. I also find, based on the preponderance of medical evidence, that any assistance Mr. El-Saikali received was not required as a result of the accident. I, therefore, conclude that his parents are not entitled to be reimbursed for airfare they might have incurred in travelling from Lebanon to Canada in 1996.

Entitlement to Prescription Expenses:

Mr. El-Saikali has consumed a wide variety of medications since the accident. Mr. Rowe indicated that he had no submissions to make on this issue and simply stated that Mr. El-Saikali had received a cheque for some of these items. I have no evidence as to which items have been paid for by the Insurer and which remain outstanding. In correspondence prior to the hearing, and entered into evidence, the Insurer's counsel, Mr. Luxenberg, made clear that the Insurer was attempting to streamline matters for the arbitration by paying for some of the prescriptions. The Insurer was not conceding that the various medications were either reasonable or necessary in the circumstances. In this regard, I note that a number of physicians observed that the various combinations of drugs Mr. El-Saikali was ingesting could, in fact, create problems for him. Based on my earlier conclusions, I do not find that Mr. El-Saikali required the various medications as a result of the accident. He is not entitled to any benefits for prescription expenses.

Special Award:

At the commencement of the hearing, Mr. Rowe raised the issue of a special award. This had not been raised earlier. Based on the lack of notice on this issue, I declined to add it to the arbitration. However, I indicated that a final determination of the matter would be deferred, pending my decision on the merits of this case. Having rejected Mr. El-Saikali 's claims, I have no basis to proceed to consider the matter of a special award.

EXPENSES:

If required, the parties may now make submissions on the issue of expenses.

November 21, 2002

Eban Bayefsky Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 184

FSCO A99-000059

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

IMAD EL-SAIKALI

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mr. El-Saikali is not entitled to weekly income replacement benefits from May 18, 1997 to April 3, 1998.

2. The remuneration Mr. El-Saikali received from his employment at A&A Welding should not be included in the calculation of his income replacement benefits.

3. Mr. El-Saikali is not entitled to medical benefits for the cost of various prescriptions.

4. Mr. El-Saikali is not entitled to benefits for any airfare incurred by his parents in travelling from Lebanon to Canada.

5. Mr. El-Saikali is not entitled to a special award or interest.

6. If required, the parties may now make submissions on the issue of expenses.

November 21, 2001

Eban Bayefsky Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — A ccidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2See, for example, Vial and Motor Vehicle Accident Claims Fund, (OIC A-010539, November 14, 1995) Koch and Axa Insurance (Canada), (OIC P96-00058, May 8, 1997), S.M. and Markel Insurance Company of Canada, (OIC P97-00063, June 15, 1998), and Krusto and General Accident Assurance Company of Canada, (FSCO A99-00039, February 20, 2001)
3. 3For example, Quattrocchi and State Farm Mutual Automobile Insurance Company (OIC A-006854, September 29, 1997), Kotey and State Farm Mutual Automobile Insurance Company (FSCO A97-001506, October 4, 1999), and Krusto and General Accident Assurance Company of Canada (FSCO A99-000392, February 20, 2001)