Neutral Citation: 2004 ONFSCDRS 17

FSCO A00-001163

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

VLADISLAV SOROKIN

Applicant

and

WAWANESA MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Beth Allen

Heard: December 16, 17, 18 and 20, 2002 and July 4, 2003, at the offices of the Financial Services Commission of Ontario in Toronto. All written submissions were received by August 29, 2003

Appearances: Jadranka Cavrak for Mr. Sorokin Darrell March for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Vladislav Sorokin, was injured in a motor vehicle accident on May 27, 2000. He applied for and received statutory accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.¹ The Applicant seeks income replacement benefits for the 104-week period after the accident based on a contract of employment he had before the accident. He also claims medical benefits and the cost of a disability certificate. Wawanesa paid no income replacement benefits and refused to fund the medical treatment and the cost of the disability certificate. The parties were unable to resolve their disputes through mediation, and Mr. Sorokin 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 the Applicant entitled to income replacement benefits pursuant to section 4 of the Schedule?

2. What is the correct amount of the Applicant's income replacement benefit?

3. Is the Applicant entitled to $7,226.08² for expenses incurred for the services rendered by Integrated Health Recovery ("Integrated Health") pursuant to section 14 of the Schedule?

4. Is the Applicant entitled to the cost of a disability certificate prepared by his family physician, Dr. Andrei Tchernov, dated May 30, 2000, pursuant to section 24 of the Schedule?

5. On consent, the Applicant withdrew his claim for the cost of the vocational assessment by Career Navigators claimed pursuant to section 24 of the Schedule.

6. Is Wawanesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?

7. Is the Applicant entitled to his arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

8. Is Wawanesa entitled to its arbitration expenses pursuant to subsection 282(11) of the Insurance Act?

9. Is Wawanesa entitled to an amount not exceeding its assessment fee pursuant to subsection 282(11.2) of the Insurance Act?

10. Is the Applicant entitled to interest on any overdue amounts pursuant to section 46 of the Schedule?

Result:

11. The Applicant is entitled to income replacement benefits under section 4 of the Schedule at the rate of $321.22 per week.

12. The Applicant is entitled to the cost of the medical treatment by Integrated Health in the amount of $7,226.08, under section 14 of the Schedule.

13. The Applicant is entitled to the cost of the disability certificate prepared by Dr. Tchernov, dated May 30, 2000, in the amount of $81.18, under section 24 of the Schedule.

14. Wawanesa is liable to pay a lump sum special award in the amount of $15,000 pursuant to subsection 282(10) of the Insurance Act.

15. The Applicant is entitled to interest on any overdue benefit payments to be calculated in accordance with section 46 of the Schedule.

EVIDENCE AND ANALYSIS:

Overview and the Law:

The Applicant claims entitlement to income replacement benefits during the 104 weeks after the accident, as well as medical benefits and the cost of a disability certificate prepared by the Applicant's family doctor, and a special award.

The Applicant's claim for income replacement benefits is based on section 4, paragraph 3 of the Schedule. This provision states:

4. The insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if the insured person meets any of the following qualifications:

5. The insured person,

i. was entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing, and

ii. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment he or she was entitled to start under the contract.

The Applicant claims that he had a legitimate contract, evidenced in writing, to start work at the time of the accident as a van driver/delivery person. He argues that he sustained impairments as a result of the accident that substantially disable him from performing the essential tasks of that position.

Wawanesa argues that the Applicant did not have a legitimate contract of employment at the time of the accident and, accordingly, is not entitled to an income replacement benefit. Wawanesa argues in the alternative that if he is found to have a legitimate contract of employment, he did not sustain impairments that substantially disable him from performing the essential tasks of the job.

The Applicant also claims income replacement benefits at the rate of $400 per week under section 6 of the Schedule which states:

6. The amount of the income replacement benefit shall be,

(a) for each of the first 104 weeks of disability, 80 per cent of the insured person's net weekly income from employment determined in accordance with section 61; ...

Section 61 of the Schedule provides that the person's net weekly income from employment is to be determined by deducting from their gross income the annual employment insurance premium, the annual contribution under the Canada Pension Plan (Canada) and income tax payable under the Income Tax Act (Canada) and Income Tax Act (Ontario).

The Applicant's claim for medical benefits is made under section 14 of the Schedule. The relevant provisions are as follows:

14. (1)The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.

(2) The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,

(b) chiropractic, psychological, occupational therapy and physiotherapy services; ...

The Applicant argues that the further medical treatment he claims to alleviate the effects of his accident-related injuries is reasonable and necessary. Wawanesa submits, on the other hand, that the Applicant has received sufficient treatment and, as such, further treatment is not reasonable or necessary.

The Applicant also claims benefits under section 24 of the Schedule for a disability certificate by his family doctor dated May 30, 2000. Wawanesa submits that this is not a reasonable expense.

Section 24 in its relevant part provides:

24. (1) The insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment or in obtaining a certificate, report or treatment plan, including,

(a) fees charged by a person who conducts an examination or assessment or provides a certificate, report, or treatment plan;

The Applicant further argues that Wawanesa is liable to pay a special award pursuant to subsection 282(10) of the Insurance Act for unreasonably delaying or withholding payment of accident benefits. This provision states:

282. (10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

Background:

The Applicant, 24 years old at the time, was involved in a motor vehicle accident on Saturday, May 27, 2000. His vehicle was travelling eastbound proceeding through an intersection on a green light when a vehicle travelling southbound against a red light struck the Applicant's vehicle on the passenger's side causing both air bags to disengage. The Applicant stated that the front passenger side of his car was smashed in and that the car was a write-off. He testified that when the accident occurred, he was returning to a friend's pizzeria after delivering a pizza as a favour to that friend. The Applicant stated that after impact he passed out for about 30 seconds to a minute and was shaky and dazed when he left his car.

The ambulance and police arrived at the scene of the accident, the ambulance attendants examined him and the Applicant indicated that he preferred to have his friends drive him home rather than for the ambulance to take him to the hospital. He testified that after he arrived home he had increasing pain in his mid chest, mid and lower back, both shoulders, both sides of his neck and his left leg. The Applicant testified that he feared hospitals and therefore, following the accident, he chose to wait to see his family physician, Dr. Andrei Tchernov, until the first available date on Tuesday, May 30, 2000.

At the time of the accident, the Applicant was a student taking evening classes in an electrical engineering programme in communications at a local community college. His classes started at the beginning of May 2000. He stated that he missed about two or three weeks of classes following the accident, after which time he resumed classes taking two three-hour courses, each of which he attended twice per week. The Applicant testified that during the summer of 2000 he spent about 10 to 15 hours attending classes and studying for the two courses. He completed the semester in August 2000. He started further night courses in the fall of 2000. He completed all of the professional courses towards his diploma except English literature.

Contract of Employment and Essential Tasks:

The Contract

The Applicant claims that on May 23, 2000 Mr. Aizik Bercovitch offered him a position with his company, Mr. Gemini 7 Inc., as a van driver/delivery man delivering frozen bagel dough to bakeries. The Applicant testified that he did not know Mr. Bercovitch previously and learned of the job through his brother's friend, Mr. Bercovitch's son. As evidence of this offer, the Applicant produced a letter dated May 23, 2000 signed by Mr. Bercovitch. The Applicant testified that the May 23, 2000 letter contained the terms of employment as he understood them.

The Applicant testified that at the interview Mr. Bercovitch offered and he accepted the job. Wawanesa's counsel attempted to challenge the credibility of the contract. He questioned why, if the Applicant had already accepted the job, the letter says: "I would like to offer you a position as a van driver", suggesting there is a discrepancy between the Applicant's evidence and the letter. The Applicant explained, and I accept as reasonable, that the letter which Mr. Bercovitch gave him immediately following the interview, served as confirmation of the offer and acceptance.

Wawanesa's counsel further contested the credibility of the contract by looking at data on the Applicant's application for accident benefits. He questioned the Applicant about the entry on the application indicating that he was "unemployed" at the time of the accident. The Applicant testified, and I accept as credible, that he considered himself to be unemployed because he had not started the driver/delivery man position by the time the accident had occurred. I do not find the "unemployed" entry on the application affects the existence of the contract of employment with Mr. Gemini7 Inc.

The Applicant and Mr. Bercovitch testified that the Applicant received two days of training on Friday and Saturday, May 26 and 27, 2000, for which the Applicant did not receive pay. On cross-examination, the Applicant was asked why the May 23, 2000 letter only mentioned May 26 and not May 27 as a training day. The Applicant explained that on May 26 he first went to Mr. Bercovitch's home where he had his business office and the garage where a freezer stored frozen dough. On that day, the Applicant helped load the van with cases of frozen dough and made deliveries to two or three bakeries for a couple of hours. The Applicant testified he did not consider May 27 to be a training day because on that, the day of the accident, he only went to Mr. Bercovitch's home office to learn about the business invoices and made no deliveries.

The Applicant testified, and Mr. Bercovitch confirmed, that the job was to be full time, generally from Monday to Friday, with occasional Saturdays, at a wage of $12.50 per hour for about 82 hours per day from 7 p.m. to 5 p.m. The Applicant testified that his weekly wage would be $531.25 (422 hours X $12.50). I accept this figure as the gross weekly wage.

The Applicant was asked about an apparent discrepancy in the evidence with respect to the prospective wage for the job. Wawanesa's counsel pointed to certain adjuster's notes and correspondence dated shortly after the accident and to the Applicant's application for accident benefits. Counsel for Wawanesa specifically referred to a note dated June 5, 2000 by the adjuster on the file, Carmela Pontieri, purporting to reflect the contents of a telephone conversation with the Applicant on that day. The Applicant acknowledged that he might have spoken to Ms. Pontieri that day, but stated that he did not remember that particular call because he had spoken to so many people about his insurance claims. However, at the hearing he answered questions about the monthly pay for the van driver/delivery job.

Wawanesa's counsel pointed out that Ms. Pontieri noted that the Applicant had "agreed to $1,800/mth" over the phone (a lesser amount than the monthly wage based on the $531.25 weekly amount). In a letter dated July 11, 2000 from Ms. Pontieri to the Applicant, which the Applicant indicated he might have received, Ms. Pontieri comments on the apparent discrepancy between the weekly amount calculated based on $1,800 per month, $450.00, and the $531.25 reflected by the $12.50 per week offered in the May 23, 2000 letter. The Applicant responded by explaining that he recalled telephone conversations with Wawanesa personnel where many questions were asked in rapid succession. He said he might have told Ms. Pontieri the monthly amount was $1,800 after doing a quick calculation in his head. The Applicant agreed that there was a discrepancy and explained that if he received the July 11, 2000 letter, he would not have understood it or that he would have been expected to contact Wawanesa. The Applicant further stated that he always advised his counsel of communications with Wawanesa.

Wawanesa's counsel pointed to the fact that the Applicant's application for accident benefits, dated June 21, 2000, noted a gross weekly income of $500 for a 40-hour work week for the van driver/delivery job. The Applicant acknowledged that he signed the application but that it was completed by a secretary at Integrated Health and that the $500 gross figure and 40 hours per week were approximations.

The Applicant conceded the discrepancies Wawanesa's counsel pointed out, and stated, "The biggest mistake is that I didn't calculate the exact amounts. I didn't know the laws. I didn't know I had to give exact numbers." Ms. Pontieri was unable to recall in her testimony whether she had asked the Applicant in the telephone call for a specific weekly breakdown for the monthly rate he provided.

Wawanesa's counsel also pointed to a completed statutory declaration form dated July 14, 2000 which the Applicant indicated he had filled out with the help of his mother. Next to item 2 on the form, which asks for employment and income information, the Applicant notes that he had a job offer and one day of training before the accident and does not indicate his income. The Applicant explained, and I also find reasonable, that he did not understand the question and that he did not put an income amount because he did not get paid for the one day of training. I also find it is not clear from item 2 what information a person with an offer of employment should provide.

Wawanesa's counsel argued that the Applicant's failure to supply income information on the statutory declaration, combined with the discrepancies in the income amounts in other areas of the evidence, casts doubt on the legitimacy of the contract of employment. I do not agree. I find the Applicant answered Wawanesa's counsel's questions about the income figures to the best of his ability and, on the whole, gave credible and honest evidence about the contract, which generally conformed with that of Mr. Bercovitch. I find that the Applicant was cooperative and reasonably explained any deficiencies in the information he furnished to Ms. Pontieri.

I therefore conclude that the Applicant had a legitimate contract of employment to work for Mr. Bercovitch at Mr. Gemini7 Inc. as a van driver/delivery person at the time of the accident in accordance with the requirements of section 4, paragraph 3 of the Schedule. I find the May 23, 2000 offer letter contained the essential terms of employment - the title of the job, the start date, the hourly wage, the hours of work and training arrangements.

Essential Tasks

The Applicant testified that he would be required to drive the van and load and unload cases of frozen dough on and off the van. He stated that his right shoulder and arm conditions, his left neck and lower back conditions would be aggravated by the bending, stooping, reaching, carrying and lifting activity involved in this work.

Mr. Bercovitch testified that the Applicant was eventually, after the completion of his training, expected to do all the tasks himself. He would first be required to take the orders from the customers by phone, and then go to the factory to pick up the orders and deliver them to the customers. He would be required to do all the loading himself by hand without the assistance of skids and a forklift. Usually, deliveries were made to a customer once a day, but some customers would at times require deliveries twice a day.

On cross-examination, Wawanesa's counsel asked Mr. Bercovitch why he did not use skids and a forklift to take the cases on and off the van. Mr. Bercovitch responded that the van is too small to carry a skid and too low to use a forklift. He explained that his van is not a cube van. I find Mr. Bercovitch's answer to this question credible. Wawanesa's counsel also queried why Mr. Bercovitch did not ask factory personnel to help load and customers to help unload the van. Mr. Bercovitch responded, and I find reasonably so, that he does this work himself. I find it would not be at all reasonable to expect Mr. Bercovitch to prevail on the factory workers and his customers to help with this work in order to accommodate the Applicant's disability.

Mr. Bercovitch testified that he would make between 20 to 24 deliveries of about 250 to 260 cases of frozen dough per week, depending on the size of customers' orders. He described the cases as being 2' X 1.5' X 9", weighing from 11 to 14 kilograms.

I find the Applicant and Mr. Bercovitch testified credibly about the essential tasks of the job. I therefore find that the Applicant would be required to take orders by phone and drive the van. He would also be required to pick up from the factory and load into the van and load off of the van and deliver to customers, from 250 to 260 cases of frozen dough per week, weighing from 11 to 14 kilograms each. I accept that this work would require continuous lifting, carrying, bending, stooping and reaching.

Medical Treatment and Assessment:

The Applicant claims that he is substantially disabled from performing the essential tasks of the van driver/delivery job due mainly to his right shoulder and arm conditions and his left neck and lower back pain and, as such, is entitled to income replacement benefits. The Applicant also argues, pursuant to subsection 14 of the Schedule, that he is entitled to $7,226.08 representing the cost of physiotherapy, massage and chiropractic treatment he received from September 8, 2000 to February 9, 2001 and from May 6, 2002 to July 18, 2002.

The Applicant attended at a number of medical practitioners and underwent various modes of treatment and various assessments.

By a disability certificate dated May 30, 2000, Dr. Tchernov, the Applicant's doctor from one year pre-accident, diagnosed a contusion of the left chest wall, soft tissue injury to the neck, tension headaches and a probable cerebral contusion.

He recommended that the Applicant not return to work and to avoid activities requiring lifting, bending, prolonged ambulation, sitting and standing. Dr. Tchernov prescribed pain killers, bed rest and physiotherapy. Dr. Tchernov testified that he did not diagnose a shoulder problem on the first examination because this condition had not developed at that time. He explained on cross-examination that with a whiplash, symptom complications often develop over time. The Applicant continued to see his family doctor on a monthly basis complaining of chest, neck, back, right shoulder and arm pain, headaches, and sleep and mood disorders.

A few days after the accident, upon Dr. Tchernov's referral, the Applicant attended for treatment with Dr. V.B Levitin, a chiropractor with Integrated Health. Treatment plans by Dr. Levitin dated May 31, July 26 and September 6, 2000 and May 6, 2002, with accompanying assessment reports, were submitted to Wawanesa. Wawanesa immediately denied the first two treatment plans and a medical and rehabilitation Designated Assessment Centre assessment ("Med/Rehab DAC"), which is discussed below, was arranged in August 2000.

Dr. Levitin testified that in addition to treating the Applicant, he set the Applicant's treatment parameters, supervised treatment by other practitioners and continuously communicated with the Applicant, Dr. Tchernov and other treatment providers about the Applicant's progress. In his assessments, Dr. Levitin noted the Applicant's complaints as neck, chest, low back, entire spine, left shoulder pain and headaches, and he diagnosed grade II whiplash, early thoracic outlet syndrome, thoracic and lumbar spine strain/sprain, chest wall contusion and cervicogenic headaches. On cross-examination, Dr. Levitin acknowledged, and I accept, that the reference to "left shoulder pain" in his May 31, 2000 report was a typographical error and it should have said "right shoulder pain." In the treatment plans, he recommended six weeks of passive modalities including chiropractic mobilizations, interferential therapy, ultrasound, hot/cold applications, massage, acupuncture, as well as active exercise therapy, to be re-assessed after six weeks.

The Applicant attended the first two six-week sessions of treatment and his treatment stopped in February 2001. He stated that Dr. Tchernov recommended that he stop treatment because the insurance company was not providing funding. Dr. Tchernov suggested that this would provide an opportunity to observe how the Applicant would do without treatment. Dr. Tchernov examined the Applicant on August 8, 2001 and reported substantial improvement in the Applicant's condition, but noted chronic significant pain in his posterior neck, scapular and trapezius muscles. In his September 8, 2001 report, Dr. Tchernov noted, and he testified at the hearing, that the Applicant would have difficulty with physical labour. He recommended further physiotherapy, and passive modalities such as massage, hot and cold packs and chiropractic treatment. On May 6, 2002, the Applicant resumed treatment for a last session with Health Recovery which ended in July 2002.

Speaking of the benefits of the treatment by Health Recovery, the Applicant stated that the treatment helped reduce some of his pain. After about a month-and-a-half of treatment, the pain in his left leg disappeared, and his headaches, chest pain, mid-back and right neck pain were alleviated. The Applicant testified that massage to his neck, head, arms and back areas gave him two to three days' relief from pain in his mid and lower back and left shoulder, but offered no relief to his right shoulder and arm. He also received chiropractic treatment which he stated was helpful for the following three or four days in alleviating his morning neck tightness, together with active therapy involving light weights, bicycling and stretches, which helped relieve muscle tightness. He also underwent acupuncture and ultrasound.

The Applicant stated that the right shoulder, left neck, upper and lower back pain persisted and that there was nothing he could do to alleviate the pain in his right shoulder and arm. He stated that if he got neck stiffness and a headache, he would get chiropractic treatment from Dr. B Grossman, a chiropractor with Health Recovery, on a pro bono basis after Wawanesa ceased funding his treatment. The Applicant testified that after his treatment with Health Recovery ended, he began receiving trigger point injections in his right shoulder which offered only temporary relief from pain.

About three months post-accident, a multidisciplinary Med/Rehab DAC assessment at York Active Rehab Centre was conducted in August 2000 and a report dated September 25, 2000, was prepared by Ms. SusanWagar, a registered physiotherapist, Dr. Dr. Nikolai Wolfson, an orthopaedic surgeon, Dr. Robert Ogilvie, a chiropractor and, less important to the issues in this arbitration, Dr. Richard Finkel, a psychiatrist. In preparing their reports, the assessors reviewed Dr. Levitin's May 31 and July 26, 2000 treatment plans, a disability certificate by Dr. Tchernov, the initial assessment by Health Recovery, a treatment plan by Dr. Felix Yaroshevsky, a psychiatrist, and an activities of daily life report.

The May 31, 2000 treatment plan had been completed by the time of the Med/Rehab DAC assessment and the July 26, 2000 treatment plan was underway at that time. The assessors investigated the Applicant's right shoulder and arm and left neck conditions and approved the full treatment recommended in Integrated Health's July 26, 2000 treatment plan. The Med/Rehab DAC assessors concluded that further medical treatment after the completion of the July 26, 2000 treatment plan, would not be reasonable and necessary and recommended the Applicant continue with a self-directed exercise programme.

Wawanesa requested, and the Applicant attended, insurer's orthopaedic and FAE assessments.

On September 11, 2000 and October 21, 2002, the Applicant underwent insurer's orthopaedic assessments by Dr. John Zeldin of Seiden Health Management Inc. at the request of Wawanesa. He prepared reports dated September 11, 2000 and September 28, 2001 and October 21, 2002 and November 6, 2002. Dr. Zeldin testified that at the time of the hearing, he had been retired from his practice as an orthopaedic surgeon for seven years and has since then been providing consulting services. His curriculum vitae was last updated in 1994.

I find Dr. Zeldin's September 11, 2000 assessment of the Applicant problematic. Although his September 11, 2000 report does not indicate that he had background medical documentation when he assessed the Applicant, Dr. Zeldin testified that he had the family doctor's health practitioner's certificate, an Integrated Health treatment plan and assessment and thought he might have had a psychological treatment plan, but he was not certain. He diagnosed myofascial strain to his neck, shoulders and upper back. On examination, Dr. Zeldin found full range of motion in both shoulders and his neck and tenderness in the right shoulder on palpation. The report does not quantify the range of motion measurements. On cross-examination, when asked to explain this, Dr. Zeldin responded that if the range of motion is full, there is no need for measurements.

Dr. Zeldin concludes that the Applicant is not disabled and is capable of returning to his driver job. However, on cross-examination, Dr. Zeldin conceded that he did not know the particulars of the van delivery/driver's job and therefore could not have considered this when arriving at his conclusions.

Dr. Zeldin's September 28, 2001 report comments on Dr. Alpert's March 8, 2001 report. Dr. Zeldin's November 6, 2002 report comments on Dr. Shahira Khoury's October 4, 2001 and Dr. Brian Alpert's June 6, 2002 reports. (Dr. Khoury's and Dr. Alpert's reports are discussed below.) In his reports, Dr. Zeldin takes issue with Dr. Alpert's opinion that the Applicant's conditions are of an ongoing and chronic nature and challenges Dr. Alpert's forecast of the Applicant's potential need for shoulder surgery. In contrast, Dr. Zeldin describes the Applicant's condition as temporary and non-restrictive discomfort which would not disable him from his pre-accident activities. However, for reasons I discuss below, I prefer Dr. Alpert's assessments to those of Dr. Zeldin. Dr. Zeldin referred to Dr. Khoury's description in her report of the Applicant's conditions as being not serious and he relied on that conclusion to support his opinion that the Applicant is not disabled. However, contrary to Dr. Zeldin, Dr. Khoury's assessment found the Applicant to be disabled from performing his pre-accident employment duties and in need of further physiotherapy and trigger point injections.

I find, on the whole, that Dr. Zeldin's reports were of little, if any, assistance. I found they reveal a lack of knowledge about the Applicant's medical background and the particulars of his pre-accident employment offer. I also find the value of his September 11, 2000 assessment was affected by the lack of quantitative measurements for the movements he assessed. For these reasons, I find that neither Dr. Zeldin's reports nor his oral evidence of much assistance to my decision on the Applicant's medical status.

I also find the insurer's FAE assessment problematic. The assessor conducted a number of subjective and physical demands and endurance tests. In his report, Mr. Scott Wager, a kinesiologist at Seiden Health Management Inc. who assessed the Applicant on November 20, 2000, concluded that the Applicant was not substantially disabled. This report indicates that the assessor reviewed Dr. Tchernov's disability certificate, but does not contain a reference to any other documentation of the Applicant's medical background and treatment. Mr. Wagar reported that he did not have a detailed account of the employment tasks. There is no indication in Mr. Wagar's report that he sought permission to obtain particulars from Mr. Bercovitch. Because Mr. Wagar did not consider essential information about the Applicant's medical background and the pre-accident job, I also find this report's assessment of the Applicant's ability to return to his pre-accident employment of limited value.

Subsequent to the Med/Rehab DAC assessment in August 2000, Dr. Tchernov referred the Applicant for various assessments of his disability. Dr. Tchernov testified that he was concerned that the Applicant's conditions were not improving as he expected. He referred the Applicant to Dr. Khoury, a specialist in physical medicine and rehabilitation, who saw the Applicant on January 15, 2001 and diagnosed chronic scapular and upper trapezius fiber sprain and recommended physiotherapy, massage and chiropractic treatment, as well as trigger point injections. Dr. Tchernov also referred him to DEAHY Medical Assessments Inc. ("DEAHY") where he underwent functional abilities and orthopaedic assessments in February and March 2001 and in June 2002.

The February 2001 FAE assessment by DEAHY contains no indication of whether it considered any background medical documentation in arriving at its conclusions. It concludes that the Applicant was unable to perform the frequent lifting, carrying, crouching and stooping required in the van driver job due to pain and had decreased tolerance in relation to his right shoulder and arm and low back pain. Because of deficiencies in the background information the assessors had available, I also find this assessment of limited value.

Dr. Alpert conducted orthopaedic assessments for DEAHY on behalf of the Applicant and prepared reports dated March 8, 2001 and June 6, 2002. He has practised as an orthopaedic surgeon since 1989, conducts plaintiff's assessments as well as designated assessment centre and insurer's medical assessments. Dr. Alpert testified that for his March 8, 2001 report, he was provided with Dr. Zeldin's orthopaedic opinion and a detailed oral account by the Applicant of his background.

In this report, Dr. Alpert notes complaints of right shoulder and arm and mid to low back pain. He diagnoses chronic muscular ligament strains and joint pain in the cervical spine, trapezi and lumbar spine with cervicogenic headaches. He concludes that the Applicant is disabled from performing work involving his right arm above shoulder level and any forceful lifting, pushing, pulling, grasping, prolonged spinal postures, repetitive bending, stooping, twisting and driving. Dr. Alpert recommends multidisciplinary chronic pain management and indicates that the Applicant is a potential candidate for right shoulder surgery.

In his June 6, 2002 report, Dr. Alpert considered the Applicant's self-report, his own previous medical report, Dr. Zeldin's report of September 11, 2002 report and Career Navigators' May 27, 2002 report. Dr. Alpert arrived at essentially the same diagnoses as noted in his first report and recommended physical and chiropractic treatment in addition to a number of assistive devices. Dr. Alpert recommended an MRI to investigate his right shoulder rotator cuff damage and impingement and suggested the same restrictions on the Applicant's activities as noted in his first report. Again, he noted that the Applicant was a potential candidate for orthopaedic surgical intervention. In testimony, Dr. Alpert described the Applicant's disability as a permanent, long-term disability which would seriously limit his abilities to perform his tasks in the future.

Dr. Alpert testified at the hearing and confirmed the findings in his two reports. In testimony, in answer to questions about Dr. Zeldin's opinion, Dr. Alpert pointed out that Dr. Zeldin's report is deficient in that with the range of motion and flexion extension assessments, Dr. Zeldin fails to be precise about which movements he put the Applicant's body through.

On cross-examination, Dr. Alpert was asked about the sufficiency of the background information he considered and he responded that Dr. Zeldin's and Career Navigators' reports, together with the Applicant's detailed account and his previous report, were sufficient for him to arrive at his opinion. Wawanesa also suggested that his assessment was subjective and incapable of assessing fake performance. Dr. Alpert responded that he put the Applicant through a number of objective tests and pointed out that a skilled assessor would be able to detect fake performance. He testified that he put the Applicant through a number of passive tests, and re-examined the results of these tests with active tests and found the results consistent. Dr. Alpert further pointed out that both Dr. Zeldin's and his own assessments had some similar findings in that they both found tenderness in the Applicant's right shoulder.

In answer to questions on cross-examination about whether he was aware of or considered the results of recently administered insurer's orthopaedic and FAE assessments, and whether these would have assisted him in his assessment, Dr. Alpert responded that although additional information might have been helpful, he thought the information he reviewed and his examination of the Applicant sufficed to arrive at his opinion. He stressed that he relied on the subjective and objective findings that were revealed on the two occasions he examined the Applicant and stated that the Applicant's performance as assessed by Career Navigators was consistent with his assessment.

On the whole, I found Dr. Alpert's orthopaedic assessment and oral evidence of more value than that of Dr. Zeldin. I find that although Dr. Alpert did not have optimal background medical documentation, he seems to have had more detailed information than Dr. Zeldin. Dr. Alpert arrived at consistent findings in his two reports that were also consistent with the Applicant's and Dr. Tchernov's evidence. I find that he elicited a fairly detailed description of the Applicant's work related tasks which was consistent with the account Mr. Bercovitch gave at the hearing. I further find that Dr. Alpert responded knowledgeably to Wawanesa's counsel's challenges on cross-examination.

I also attribute less weight to the Med/Rehab DAC opinion than that of Dr. Alpert, Dr. Khoury and Dr. Tchernov. The Med/Rehab DAC assessment was completed three months after the accident in August 2000 and the latter assessments were done months later. I find limited value in an assessment that attempts to assess a person's medical status into the future as the Med/Rehab DAC did when it concluded that the Applicant would require no further benefits after the July 2000 treatment plan was completed. I give more weight to the more recent assessments which were essentially consistent with each other and with the Applicant's evidence.

Dr. Tchernov testified that he last examined the Applicant on December 13, 2002 and that the Applicant continued to complain of pain and restricted range of motion in his right shoulder which had not improved since his last examination. He concluded from this examination that the Applicant's condition was "chronic and protracted" and would be exacerbated by physical labour involving repetitive motion over the shoulder with his dominant extremity. He recommended employment involving mental labour. Regarding further treatment, Dr. Tchernov recommended treatment with a variety of modalities to promote maximum recovery. He testified that, in his opinion, the fact that the Applicant's conditions are persistent and difficult, does not mean he should not be treated.

The Applicant testified that in about March 2002, after he started receiving the trigger point shots in his right shoulder, because of the temporary relief from pain, he sought a job delivering flyers to households. He testified that after the first day on this job, he suffered severe pain in his right shoulder that was more intense than it was before undertaking this job. He forced himself to do the job for the next two days, but after the third day, he quit because of his right shoulder pain. The Applicant testified that he received no further trigger point injections after this because he felt that his right shoulder pain got worse.

The Applicant testified that despite his right shoulder and arm pain, he had to seek employment because he did not have a source of income and he was in debt. He testified that after failed attempts to get a job in his profession as an electronic engineer, he applied for pizza delivery jobs. In June 2002, he got a job working as a pizza delivery person and stated that for the most part the job was not too difficult because he used his left hand to carry pizzas and to drive. However, he testified that the repetitive movement of assembling pizza boxes caused the pain in his right shoulder and arm to intensify. The Applicant continued to work at this job at the time of the hearing.

Income Replacement Benefits:

Entitlement:

It is not in dispute that the Applicant sustained impairments in the accident. What is in dispute is whether his impairments substantially disable him from performing the essential tasks of his van driver/delivery job. Wawanesa argues that the Applicant is not substantially disabled.

However, I find that the evidence strongly supports the Applicant's claims that his right shoulder and arm and left neck and back conditions disable him from performing duties that would be required of him on this job. The Applicant, who is right-hand dominant, stated that he had performed many of the tasks during his training period. He testified that the lifting, carrying, loading and unloading of cases of frozen dough (which Mr. Bercovitch estimated to number from about 250 to 260 per day) weighing up to 14 kilograms, and the stooping and bending involved in this work would aggravate his conditions. I accept the evidence of Dr. Tchernov and Dr. Alpert over that of Dr. Zeldin. They reported that the Applicant's conditions would disable him from any activities involving the use of his right arm above shoulder level, requiring any forceful pushing, pulling, grasping, lifting and prolonged spinal postures, repetitive bending, stooping, twisting and driving. I find the evidence shows that a major part of the essential tasks of the position would involve these types of actions.

The fact that the Applicant was doing a pizza delivery job from June 2002 does not detract from his disability claim in relation to the frozen dough delivery job. I accept his evidence that he could carry pizzas and drive the vehicle with his left hand. There is no evidence that the pizza delivery job required the types of body postures and movements involved in the frozen dough delivery job.

I therefore find that the Applicant is entitled to income replacement benefits under section 4 of the Schedule for the 104-week period after the accident, on the basis that he was substantially disabled from performing the essential tasks of the van driver/delivery job.

Amount:

The Applicant presented little evidence from which to calculate the weekly rate of the income replacement benefit. Both counsel spoke of employment income in their submissions, but provided no particulars with which to deal with the quantum issue. According to the report of mediator dated October 30, 2000, the Applicant claims income replacement benefits at $400 per week. The Applicant testified, and I found, that the gross weekly pay for the van driver/delivery position would be $531.25. This amount was calculated based on the terms presented in the May 23, 2000 letter - 422 hours of work per week times the hourly rate of $12.50.

There was no direct evidence on the nature of the Applicant's employment relationship with Mr. Gemini7 Inc. A determination on this matter is necessary to deciding quantum. I find, for the following reasons, it can be inferred from the evidence that the Applicant was to be an employee of the company.

Some guidance can be gleaned from the Commissioner's Guideline for Identifying Self-Employed Individuals,³ which defines an "employee" as "an individual who is hired to perform pre-determined tasks/work in a business in exchange for remuneration"; and defines an "employer" as "an entity, such as a corporation, group of individuals or a single individual, who hires another individual(s) to perform pre-determined tasks/work in a business in exchange for remuneration." The Guideline describes a "self-employed" individual, among other things, as determining their own method and schedule for accomplishing tasks; as determining their own hours; and as not necessarily working a set number of hours.

I draw on the following facts about the Applicant's relationship to Mr. Gemini7 Inc. to arrive at my conclusion: the Applicant was to work for Mr. Gemini7 Inc., a company Mr. Bercovitch has owned and operated for 11 or 12 years; Mr. Bercovitch set the wage, the hours and days of work; and Mr. Bercovitch arranged and conducted the training. The list of customers to whom the Applicant would be delivering frozen dough and the factory source that supplied the frozen dough were provided by Mr. Bercovitch. The business office is located at Mr. Bercovitch's house and the van used for the delivery was furnished by Mr. Bercovitch.

It appears from this evidence that Mr. Bercovitch was to be the Applicant's employer with control and dominion over all aspects of the business and the Applicant's work.⁴ I received no evidence from Wawanesa that contradicts this interpretation of the arrangement. I find it can reasonably be inferred from these facts that more likely than not, the Applicant was offered a contract as an employee of Mr. Gemini7 Inc. rather than as an independent contractor or a self-employed person.

To determine the net weekly income under these circumstances, I resort to the Net Weekly Income Table, Other Than Self-Employment (November 25, 1993) ("the Table"). The Table was prescribed by the Commission under a predecessor statutory accident benefits scheme, Regulation 776/93 under the Insurance Act, and has not been updated. Failing access to a better basis to calculate net income in these circumstances, I find this Table can assist with the calculation.

At the time of the accident, the Applicant was a single man, 24 years of age, with no dependants, living with his parents and younger brother. Therefore, under the Table his net income would be calculated under Claim Code 1. Rounding his gross income down to $531.00, his net weekly income under Claim Code 1 would be $401.52 The Applicant's weekly income replacement benefit would therefore be $321.22 ($401.52 X .80). The total amount of the Applicant's benefit entitlement for the period of his claim would be $33,085.25 ($321.22 X 103⁵ weeks), plus interest calculated in accordance with section 46 of the Schedule.

Entitlement to Medical Treatment:

The Applicant seeks the cost of medical treatment in the amount of $7,225.08 for treatment plans dated September 6, 2000 and May 6, 2002 for 30 massage, acupuncture, active therapy and chiropractic treatment sessions he underwent from September 8, 2000 to February 9, 2001 and from May 6, 2002 to July 18, 2002. Wawanesa relies on the conclusions of the Med/Rehab DAC, its FAE and Dr. Zeldin's assessment in arguing that the Applicant is entitled to no further treatment.

I find the Applicant's oral evidence about the disabling nature of the pain in his left neck and right shoulder and arm to be trustworthy. The Applicant testified credibly about the effectiveness of the various treatments by Health Recovery in alleviating his pain. I accept his evidence that the massage relieved the pain in his neck, head, arms and back and gave him two to three days of relief in his mid and lower back and left shoulder, but offered no relief to his right shoulder and arm. I also accept the Applicant's evidence about the helpfulness of chiropractic treatment and active therapy in minimizing his morning neck tightness and general muscle tightness.

The two orthopaedic assessments by Dr. Alpert on March 8, 2001 and June 6, 2002 and Dr. Khoury's January 15, 2001 physical medicine assessment support the Applicant's oral evidence about his disabilities and recommend multidisciplinary treatment modalities for relief of his pain.

The Applicant's evidence was also consistent with the medical findings of his family doctor, Dr. Tchernov, who assessed and treated him over a period in excess of two years for these conditions, last examining him in December 2002. Dr. Tchernov, who also recommended multidisciplinary treatment modalities, opined, and I agree, the fact that the Applicant's condition is chronic and difficult, should not be seen as a bar to treatment. Arbitration decisions have held that alleviation of pain and maintenance are worthwhile treatment goals.⁶

I place more weight on the Applicant's evidence and the findings and conclusions of Dr. Alpert, Dr. Tchernov and Dr. Khoury and find less evidentiary value in the Med/Rehab DAC and the Insurer's orthopaedic and kinesiologist assessments by Dr. Zeldin and Mr. Wagar, for reasons I discussed above.

I therefore find the Applicant is entitled to the medical treatment claimed for the period from September 8, 2000 to July 18, 2002. I have no persuasive evidence before me that the Applicant's conditions improved from August 25, 2000, the end of the last course of treatment approved by the Med/Rehab DAC. I also accept Dr. Levitin's uncontroverted evidence that the fees billed for massage, acupuncture, chiropractic treatment and physiotherapy were less than the amounts permitted under the professional guidelines for the respective treatment disciplines involved. I therefore find $7,226.08 to be a reasonable and necessary expense pursuant to subsection 14 of the Schedule. Wawanesa shall pay $7,226.08, together with interest calculated according to section 46 of the Schedule.

Entitlement to the Cost of the Disability Certificate

The Applicant seeks benefits for the cost of the disability certificate dated May 30, 2000 prepared by Dr. Tchernov. Wawanesa submits that the cost of the certificate is not a reasonable expense on the basis that its contents are not adequate because, according to Wawanesa, it fails to report all of the Applicant's medical conditions.

Dr. Tchernov testified that he prepared the certificate after a full examination of the Applicant's accident-related complaints within the week after the accident. I am satisfied with Dr. Tchernov's evidence that he did not diagnose a shoulder complaint because many whiplash conditions like shoulder strain develop over time and often do not reveal themselves in the first few days after the accident. I do not find the absence of a shoulder diagnosis on the disability certificate detracts from its medical value.

Regarding the cost of the certificate, Dr. Tchernov indicated that he did not have in his possession the invoice reflecting what he charged for the certificate. The Applicant's counsel referred to the Ontario Medical Association (OMA) billing guidelines suggesting that physicians are permitted by the OMA to bill $85.50, plus GST for the preparation of an OCF 3/59 Disability Certificate. My review of the OMA Physicians Billing Guideline for 2000 reveals that a physician may charge a slightly lesser amount, $81.18, plus GST for that service.

I find that the Applicant is entitled to the cost of Dr. Tchernov's disability certificate dated May 30, 2000. I find this to be a reasonable expense in that the initial assessment by an applicant's treating doctor is important to establishing an initial diagnosis and to providing the basis for setting an applicant's course of treatment in motion following an accident. The diagnoses reflected in the disability certificate were largely confirmed by subsequent assessors and formed the basis of the treatment the Applicant received.

The Applicant is therefore entitled to $81.18 plus GST for the cost of Dr. Tchernov's disability certificate, together with interest calculated according to section 46 of the Schedule.

Special Award

To find Wawanesa liable to pay a special award under subsection 282(10) of the Insurance Act, I must find that it unreasonably withheld or delayed payment of accident benefits. I find for the following reasons that Wawanesa unreasonably delayed and withheld payment of income replacement and medical benefits and the cost of the disability certificate.

The Applicant's counsel called Ms. Pontieri, the sole adjuster on the Applicant's accident benefits file, to testify. She testified that she was currently working for Wawanesa and had been a senior field adjuster with Wawanesa for eight years and had worked with other insurance companies since 1987. Ms. Pontieri testified that she made the decisions with respect to the Applicant's entitlement to benefits and stated that the Applicant's complete accident benefits file was before the tribunal. Ms. Pontieri was questioned by the Applicant's counsel about the basis of her denial of income replacement and medical benefits.

I found Ms Pontieri most uncooperative in her responses to questions and that she seemed to display a marked unfamiliarity with the file.

As evidence of why income replacement benefits were denied, she pointed to her letter to the Applicant of July 11, 2000 where she questions what she saw as a discrepancy between the wage cited in the May 23, 2000 job offer letter, and the information the Applicant gave her in a telephone conversation on June 5, 2000. As noted earlier, the adjuster's notes also reveal that she spoke to Mr. Bercovitch on July 11, 2000 and that he provided information about the job offer which amounted to a different hourly rate than that provided by the Applicant. Mr. Bercovitch gave the weekly figure of $531.25 and the Applicant gave the monthly figure of $1,800, which latter figure Ms. Pontieri states she calculated to be $450.00 per week.

Ms. Pontieri testified that she was not satisfied with the wage information provided by the Applicant and Mr. Bercovitch, but conceded that she did not write to Mr. Bercovitch for clarification or further details about the job, despite the fact that Mr. Bercovitch provided his contact information and was cooperative. Nor did she contact the Applicant again. Ms. Pontieri testified that although she received the May 23, 2000 letter, a completed application for accident benefits and a statutory declaration from the Applicant, she still did not find this sufficient to pay income replacement benefits. When asked by the Applicant's counsel why, in face of this information, she made this decision, she responded, "I'm not sure."

Ms. Pontieri testified that she did not issue a notice of refusal or stoppage of income replacement benefits pursuant to section 37 of the Schedule because, in her opinion, she was not required to because Wawanesa had not paid any income replacement benefits.

The Applicant's counsel also queried whether the discrepancy in the information about the quantum of the benefit was the only reason for the denial, or whether there were medical reasons as well. I find that Ms. Pontieri appeared confused by the question and, in the end, unclear as to the actual basis for the denial. She again responded, "I 'm not sure."

I find Ms. Pontieri's unfamiliarity with the file puzzling since she knew in advance that she would be testifying at the hearing and would have had time to prepare. When asked when she last reviewed the medical documents on the file, she responded, "in the last couple of days." The Applicant's counsel asked Ms. Pontieri to review the Applicant's file and Ms. Pontieri was not able to find, or was not certain whether she had received, certain significant documentation such as: the document reflecting the basis of the denial of medical benefits; a referral letter to Dr. Zeldin; the notes and the records of Dr. Khoury. On questioning, Ms. Pontieri said she did not know the basis of the refusal to pay for the disputed treatment plans. Many of the documents Ms. Pontieri indicated she could not find, such as medical documents and documents reflecting the bases of benefit denial, the latter of which were actually signed by Ms. Pontieri, were produced by Wawanesa and the Applicant for the arbitration hearing.

I find that Wawanesa made significant errors in adjusting the Applicant's income replacement benefits claim which resulted in an unfair and an unreasonable denial of benefits.

I find Wawanesa breached the provisions of the benefit refusal or stoppage scheme set out in subsection 37(1) of the Schedule. In part, this provision states:

37. (1) If the insurer determines that a person is not entitled or is no longer entitled to receive an income replacement ...benefit, the insurer shall give the person notice of its determination, with reasons,... [my emphasis].

Contrary to Ms. Pontieri's opinion, this provision makes it mandatory for the insurer to provide a notice of refusal under circumstances where the insurer finds the insured person is not entitled and refuses to pay the benefit. I find this contemplates a circumstance where the insured person has not been paid the benefit, as is the case with the Applicant. I am fortified in this interpretation by the alternative situation noted in this provision, where a notice is mandated when the insurer determines an insured person "is no longer entitled." I find this contemplates a circumstance where an insured person has been in receipt of a benefit and the insurer decides to terminate it. I find therefore that Wawanesa ought to have provided the Applicant with a notice under subsection 37(1).

As well, I find that Wawanesa failed in its obligations to do a proper investigation into the employment contract. There is no persuasive evidence that either the Applicant or Mr. Bercovitch were uncooperative or unwilling to provide the information Wawanesa needed to satisfy itself of the legitimacy of the contract. I found the Applicant and Mr. Bercovitch to be honest and reliable witnesses. I do not find they should be expected to have the knowledge and resources of persons involved in the established corporate business world.

I find insurers have certain obligations when communicating with insurance claimants who are not being assisted at the time by legal counsel. Insurers must recognize they are often dealing with unsophisticated people and must make every reasonable effort to pursue the information needed to assess a claim. Wawanesa did not do this in relation to the Applicant's contract of employment. Ms. Pontieri conceded there were no other letters or documents on file other than the July 11, 2000 letter to the Applicant and the June 5 and July 11, 2000 adjuster's notes, that deal with the basis for benefit refusal and admitted that she made no further inquiries and pursued no further clarification. I find the failure to adequately investigate the claim, combined with Wawanesa's procedural non-compliance with notice provisions, amounted to sub-standard conduct which resulted in an unreasonable denial of income replacement benefits.

Understandably, the Applicant found this very frustrating and emotionally burdensome as he fell into financial hardship.

I also find troubling Wawanesa's conduct in respect of the adjustment of the Applicant's medical benefits claims. Days after the accident, Dr. Levitin provided his treatment plan dated May 31, 2000 and subsequently other treatment plans dated July 26 and September 6, 2000 and May 6, 2002. Wawanesa refused to fund the first two treatment plans until the Med/Rehab DAC approved the treatment on September 25, 2000, after which time Wawanesa funded the first two plans. In doing this, Wawanesa acted in non-compliance with the express requirements of subsection 38(16) of the Schedule with respect to these treatment plans. This provision provides, despite the fact that the insurer requires a Med/Rehab DAC after the submission of a treatment plan, that the insurer shall fund the total expense for the first 15 treatment sessions with a chiropractor or a physiotherapist after the accident or the total expense for all treatment sessions with a chiropractor or physiotherapist within six weeks after the accident. The Applicant commenced the treatment without funding by Wawanesa and Wawanesa funded the first two treatment plans only after the DAC approved these treatment plans in September 2000.

I find Wawanesa's conduct in not funding 15 of the 24 sessions in the May 31, 2000 treatment plan was non-compliant with the Schedule and resulted in an unreasonable delay in funding the treatment. It is fairly common ground that early intervention in treating whiplash and soft tissue injuries during the acute phase is essential to the recovery process. With this in mind, the legislators drafted medical treatment provisions under the Schedule that make it mandatory for insurers to fund early treatment. The fact that the Applicant commenced the treatment under these plans without Wawanesa's funding, does not relieve Wawanesa of its obligations under the Schedule or the consequences of its failing to provide funding in a timely manner. I find that this conduct by Wawanesa resulted in unreasonable delay in funding the treatment and, accordingly, should attract a special award.

Wawanesa also refused to fund the disputed treatment plans dated September 6, 2000 and May 6, 2002. Wawanesa commissioned insurer's orthopaedic and FAE assessments. As noted earlier, the orthopaedic assessment conducted in September 2000 by Dr. Zeldin concluded that the Applicant needed no further active treatment and diagnosed the Applicant's condition as causing discomfort that was not disabling or restrictive. The FAE was silent on the need for further treatment. The Med/Rehab DAC report dated September 25, 2000 concluded that after the completion of the July 26, 2000 treatment plan, no further formal treatment would be reasonable or necessary and recommended a self-directed exercise programme. Wawanesa also had the Applicant's assessments by Dr. Tchernov, Dr. Levitin, Dr. Khoury and Dr. Alpert to consider.

I must decide whether the denial of funding for the disputed treatment plans was unreasonable in the circumstances. As I stated above, I found the assessments commissioned by the Applicant to be stronger evidence and more helpful to my determination than those performed by the Med/Rehab DAC and those ordered by Wawanesa. I find that a party is entitled to rely on the evidence they have generated to support their positions at a hearing without fear of a punitive outcome, beyond possible expense and interest implications, by reason only that their evidence is found to be weaker than that of the other party. However, in this case, I find there are further compounding factors involving Wawanesa's conduct, particularly that of Ms. Pontieri in relation to the content of notices refusing benefits, and her uncooperative conduct at the hearing.

I do not seem to have before me a notice refusing the September 6, 2000 treatment plan. I am not clear as to whether one exists or not. Neither party referred to such a document in evidence or submissions. The notice refusing the May 6, 2002 treatment plan provides no reason for refusal besides saying that the treatment is unreasonable and unnecessary. Subsection 38(18) of the Schedule requires the insurer to "give the insured person notice of its reasons for not paying the expenses." Since it is a medical benefit being refused, I find it stands to reason that the reason for denial should be supported by a medical opinion. As noted earlier, in answer to questions about the basis for refusing medical benefits, Ms. Pontieri could not refer to a document reflecting these decisions and responded that she did not know the bases of the decisions. Ms. Pontieri appeared unaware of the assessments of Dr. Tchernov, Dr. Alpert and Dr. Khoury.

I find that Ms. Pontieri's failure: to identify the basis of the denial of benefits; to take into account assessments ordered by the Applicant subsequent to those ordered by Wawanesa; and to provide proper notice to the Applicant, is unacceptable conduct. I conclude that this conduct has resulted in an unreasonable withholding of funding for the September 6, 2000 and May 6, 2002 treatment plans by Integrated Health and should attract a special award.

I also find that Wawanesa's failure to fund Dr. Tchernov's May 30, 2000 disability certificate to be unreasonable. The disability certificate contains the medical information necessary to inform treatment providers, other health care practitioners and Wawanesa of the Applicant's medical status immediately following the accident. I found Dr. Tchernov's explanation of why the shoulder condition was not included in the certificate reasonable. Accordingly, I find Wawanesa's denial of the cost of this item to be unreasonable and should attract a special award.

Amount of Special Award:

The special award in this case will be calculated based on the amount of the Applicant's entitlement to income replacement and medical benefits and the cost of the disability certificate. Subsection 282(10) provides that if an arbitrator finds that an insurer unreasonably withheld or delayed benefit payments, they shall impose "a lump sum award of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule." Based on the circumstances of this case, I award a special award of $15,000.

EXPENSES:

The parties did not address the issues of expenses and the Insurer's assessment fee in any detail in their submissions. I encourage the parties to try to settle these issues and failing this, I remain seized of these matters.

February 9, 2004

Beth Allen Arbitrator

Neutral Citation: 2004 ONFSCDRS 17

FSCO A00-001163

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

VLADISLAV SOROKIN

Applicant

and

WAWANESA MUTUAL 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. Wawanesa shall pay the Applicant income replacement benefits from June 3, 2000 until May 27, 2002 at the weekly rate of $321.22.

2. Wawanesa shall pay the cost of the medical treatment by Integrated Health in the amount of $7,226.08.

3. Wawanesa shall pay the cost of the disability certificate dated May 30, 2000 prepared by Dr. Tchernov in the amount of $81.18, plus GST.

4. Wawanesa shall pay a special award of $15,000.

5. Wawanesa shall pay interest on any overdue benefit payments to be calculated pursuant to section 46 of the Schedule.

February 9, 2004

Beth Allen Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2I obtained this figure from Exhibit 5, an Integrated Health account summary dated December 5, 2002, which covers the period from September 8, 2000 to July 18, 2002. It was provided by the Applicant's counsel at the hearing as evidence of the amount of the Applicant's outstanding claim. This figure represents the total cost of treatment for two periods: $4,670 from September 8, 2000 to February 9, 2001, which expense was mediated; and $2,556.08 from May 6, 2002 to July 18, 2002, which was not mediated. Wawanesa's counsel consented to having the treatment costs for both periods dealt within this arbitration.
3. 3Commissioner's Guideline No.4/96, Ontario Insurance Commission, effective October 19, 1996. This Guideline was issued pursuant to Regulation 268.3 of the Insurance Act and applies to accidents that occurred after January 1, 1994, including accidents that occurred after November 1, 1996.
4. 4See the following cases that have looked at this issue: Healey and Pafco Insurance Company (FSCO A00-000493, March 5, 2002); Balenas and State Farm Mutual Automobile Insurance Company, (FSCO A00-000515, April 26, 2000).
5. 5The 103 weeks takes into account that income replacenment benefits are calculated excluding the first week of disabilty after the accident under subsection(2)(a) of the Schedule.
6. 6Walker and State Farm Mutual Automobile Insurance Company (OIC P96-000036, December 3, 1998); Violi and General Accident Assurance Company of Canada (FSCO A-98-000670, August 20, 1999), confirmed by appeal decision (FSCO P99-00047, September 27, 2000) and Palmer and State Farm Automobile Insurance Company (FSCO A00-00186, December 20, 2001).