Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 164

FSCO A05-001520

BETWEEN:

UMBALA THIYAGARAJAH

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Lawrence Blackman

Heard:

June 26, 27, 28, 29 and 30, August 24 and 25, 2006, at the Commission's offices in Toronto.

Appearances:

David S. Wilson for Mr. Thiyagarajah

William M. Sproull for ING Insurance Company of Canada

Issues:

That the questions fundamental to this hearing are familiar ones does not detract from the difficulty answering them. How does one determine the existence and the extent of pain in the context of employability? How does one decide how much pain is too much pain?

The answer in this case, in large measure, hinges on the requisite onus of proof. If the onus on the Applicant, Mr. Umbala Thiyagarajah, was to establish disability beyond a reasonable doubt, valid doubts have been raised. However, the detailed factual findings of two functional capacity evaluations (FCEs), which the Insurer failed to undermine by conflicting expert evidence, critique or cross-examination, persuade me, on a balance of probabilities, that the Applicant is substantially unable to perform the essential tasks of his pre-accident employment. The FCEs were arranged by the Applicant's counsel. There is a somewhat dated argument that one should start with the premise that experts retained by either side are little more than "hired guns" who accentuate the positive or the negative according to the interests of the party paying them.¹ However, upon critical review of these FCEs, I see nothing in the reports themselves or in the broader evidence that undermines their reasonableness or other hallmarks of reliability such that little or no weight can be given to them regarding the "own occupation disability test."

This arbitration arises from Mr. Thiyagarajah's car accident on March 6, 2004, as a result of which he applied for statutory accident benefits from ING Insurance Company of Canada (ING), payable under the Schedule.² ING ultimately paid the Applicant weekly income replacement benefits (IRBs) to June 1, 2005. The parties were unable to resolve through mediation the issue of Mr. Thiyagarajah's ongoing IRB entitlement. Accordingly, the Applicant 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. Thiyagarajah entitled, pursuant to subsection 4(1) and paragraph 5(2)(b) of the Schedule, to a weekly income replacement benefit in the agreed weekly amount of $353.14, ongoing from June 2, 2005?

2. Is ING liable to pay Mr. Thiyagarajah a special award, in accordance with subsection 282(10) of the Insurance Act?

3. Is ING liable to pay Mr. Thiyagarajah's legal expenses in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Insurance Act?

4. Is Mr. Thiyagarajah liable to pay ING's legal expenses in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Insurance Act?

5. Is Mr. Thiyagarajah entitled, pursuant to subsection 46(2) of the Schedule and/or pursuant to the terms of an agreement reached at mediation, to interest for the overdue payment of benefits?

Result:

1. Mr. Thiyagarajah is entitled, pursuant to subsection 4(1) of the Schedule, to receive a weekly income replacement benefit of $353.14 from June 2, 2005 to March 5, 2006.

2. Mr. Thiyagarajah is not entitled, pursuant to paragraph 5(2)(b) of the Schedule, to payment of an income replacement benefit ongoing from March 6, 2006.

3. The parties shall have until Friday, November 24, 2006, to serve and file their written submissions regarding pre-judgment interest.

4. The parties shall have until Friday, November 24, 2006, to serve and file their written submissions regarding the special award jurisdictional issue and regarding the amount of the special award.

5. The issue of the legal expenses claimed pursuant to subsection 282(11) of the Insurance Act may now be addressed in accordance with the provisions of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

EVIDENCE AND ANALYSIS:

My findings based on the evidence in this case are as follows.

- The Car Accident

Mr. Thiyagarajah was a back seat passenger in a single vehicle car accident on Highway 401 in the early morning of March 6, 2004. He testified, and I accept, that the driver lost control of the car, which ultimately hit a median or some other structure on the road. I accept as consistent with what could reasonably occur in these circumstances, Mr. Thiyagarajah's evidence that when the car hit the barrier he was holding the headrest ahead of him tightly in anticipation of impact.

Pictures of the Applicant after the accident show him with bruises, cuts and welts on his face. He was taken from the accident scene by ambulance to William Osler Health Centre. The hospital records note superficial lacerations and no loss of consciousness. There is no allegation of traumatic brain injury in this case.

- The Applicant's Prior Education, Training and Experience

Mr. Thiyagarajah was 22 years old at the time of the accident. He was born in Sri Lanka, where he attended school and gained a basic facility in English. Moving to Canada in 1996 at age 15, he enrolled in Grade 9 at Blessed Mother Teresa Catholic Secondary School. He attended there until graduating Grade 12 in the beginning of 2000 with a Secondary School Graduation Diploma. While in Grade 12, Mr. Thiyagarajah enrolled for six months in a co-operative education work-training placement in computer repair, maintenance and construction. In addition, while in high school, he worked for six or seven months as a grill person at a Burger King outlet. He stopped working there because of the distance he had to travel and the volume of work.

Mr. Thiyagarajah's post secondary school employment is rather limited. From the time he left school in 2000, until he injured his neck and low back in a car accident the following year, he was unemployed other than informally helping at his brother's used car rental business, picking up or delivering items and doing minor repairs such as changing tires.

I accept Mr. Thiyagarajah's testimony that he received treatment for perhaps three months after the 2001 accident and that he recovered from his injuries. ING does not raise a causation issue as a result of this prior accident. The Applicant's counsel argued that his client's short period of impairment following the earlier accident belies any argument that Mr. Thiyagarajah tries to embellish his accident sustained injuries. However, the facts of the earlier accident are equally consistent with the Applicant simply not meeting the initial eligibility requirements of any of the weekly benefits potentially available under the Schedule.

Between the 2001 and 2004 accidents, Mr. Thiyagarajah had three brief stints of employment. The first was for six or seven months, from approximately February to September 2002, as a busboy at Ice Sports, a restaurant at an ice rink, where he cleared tables and had to lift heavy beer cases. The second job was at Staff Plus, where he was called to work from time to time packing CDs into boxes, which he then lifted onto skids. The boxes, when filled, weighed 35 to 40 pounds. I accept the evidence of Mr. D. Antflick, the Applicant's vocational evaluation and rehabilitation expert, that this employment lasted about three months and the Applicant was then unemployed for about a year until he found work at Compu-Cell Warehouse (Compu-Cell), starting three months before the March 2004 accident.

- The Essential Duties of Applicant's Pre-Accident Employment

Mr. Thiyagarajah's duties at Compu-Cell were repairing computers on a full-time basis, five days a week. The Applicant had a work station. He was required to walk from his station 10 or 15 metres to a warehouse area, where he would have to bend down and pick up a boxed computer or monitor, each weighing 20 to 30 pounds. He then had the option to carry the two boxes together (which would amount to at least 45 pounds) or one at time. Each employee was responsible for carrying the computers assigned to them.

At his work station, Mr. Thiyagarajah spent half of his time standing and half of his time sitting. While standing, he would be required to bend frequently. Sitting required a degree of neck flexion. When he finished repairing the computer, he would carry it back to the warehouse area and stack it on a shelf at about shoulder height. On occasion, the Applicant would carry the repaired item to a customer's car.

- The Applicant's Accident Injuries

I accept the Applicant's evidence that following and as a result of the 2004 car accident, he suffered from headaches and dizziness, in addition to pain in both of his shoulders, and in his neck, low back and right knee.

Mr. Thiyagarajah testified that about two months after the accident, his shoulders began dislocating; if he extended his arm, especially behind his body, the shoulder joint would pop out, causing immediate pain. He would use his other hand to put the shoulder back in the socket. The Applicant's older brother, Ragavan, testified that when the dislocation occurs, the arm comes out completely from the joint and just hangs. He testified that he has seen both shoulders dislocate, but that the problem is mainly with the left shoulder.

The Applicant testified that when he saw Dr. B. Alpert, an orthopaedic surgeon, in February 2005 for an insurer's medical examination (IME), he was experiencing constant neck and back pain. He rated his back pain as eight out of ten, ten being the high end of the scale. He also had intermittent shoulder pain in the sense that the constant pain varied based on movement. He was further experiencing shoulder dislocation, as well as a mild degree of constant pain in his right knee.

Mr. Thiyagarajah testified that he still suffers from constant neck and low back pain, the intensity reaching a level of up to seven or eight out of ten. He also related continuing shoulder pain. Although the latter pain has lessened over time, it can still escalate to an intensity of nine out of ten when there is a dislocation. He further noted a mild degree of ongoing right knee pain (rated at about four out of a maximum of 10) in addition to subsiding instances of headaches and dizziness.

Mr. Thiyagarajah submits that as a result of the combination of functional limitations, existing and/or anticipated pain, and the psychological sequelae of this accident (including depression), he is unable to return to any employment for which he is reasonably suited, and specifically, he is unable to manage heavy lifting, repetitive bending and standing all day. Mr. Thiyagarajah felt that he could do a purely sedentary job, but not on a full-time basis. However, the Applicant was of the view that there was no purely sedentary job for which he is presently trained.

- Assessment of the Applicant's Complaints

I have significant difficulty accepting that the Applicant's complaints of pain and shoulder dislocation are as severe as he claims, as a combined result of the following reasons:

1. The evidence of the Applicant's use of medication or other relief is not consistent, nor is it consistent with his allegations as to the intensity and continuing nature of his pain The Applicant testified that he filled a prescription in March 2004, but has not taken any further prescription medication because he has felt better. A family doctor, Dr. K. Jayashankar, prescribed Advil and Tylenol #3 in February 2006, but there is no evidence that these prescriptions were filled. This is not consistent with the Applicant's evidence of continuing constant neck, shoulder and low back pain which can reach a very high intensity.

Dr. P. Kirwin, a physiatrist retained by the Applicant, reported that Mr. Thiyagarajah was taking Tylenol Extra Strength in October 2005 nightly for pain control.

However, an April 2005 questionnaire from the Applicant's treating dermatologist, Dr. W. Abadir, notes the patient taking medication only for stomach complaints. Dr. Alpert's February 2005 IME report states that the Applicant was not taking any medication. Most significantly, an October 26, 2005 questionnaire (contemporaneous with Dr. Kirwin's assessment), from the treating Markham Active Rehab (Markham), states that Mr. Thiyagarajah was not taking any regular medication.

Mr. Thiyagarajah testified that after the 2004 accident, he bought a cream to be externally applied to relieve pain. His brother, Ragavan, testified that the Applicant constantly asks their mother to apply this cream to his back. No evidence as to the quantity of purchase of the medication and creams was tendered into evidence. There was no evidence that these items were submitted to ING or any other insurer for payment.

Dr. R.S. Miller, a psychologist retained by the Applicant, reported in the spring of 2006 that the Applicant, while not using any prescription medication, was taking two regular strength Tylenol a week for pain. Dr. Kirwin stated that Mr. Thiyagarajah was taking regular strength Tylenol once a week in May 2006 because he was afraid the medication was having side effects and was hurting his body.

The latter explanation is plausible. However, the Applicant alleges constant and sometimes excruciating pain. He is not described by any of the medical practitioners nor does he present himself as being especially stoic. Therefore, the contradictory evidence of either sporadic and limited use of medication or the absence of any continuing use of medication relevant to his accident-related injuries, gives one pause as to the true extent of the Applicant's pain.

2. The paucity of non medico-legal appointments is inconsistent with the Applicant's allegations as to the intensity and continuing nature of his complaints

The Applicant's decoded OHIP summary contains numerous entries for medical attendances for skin blemishes, diarrhea, "common cold" and other non accident-related complaints between mid-March 2004 and mid-July 2005. There are no entries during this period for accident-related complaints.

Mr. Thiyagarajah attended Finch-Birchmount Injury Management (Finch-Birchmount) starting March 2004 which, according to their records, continued until June 2004. Presumably, these attendances are not covered by OHIP. Mr. Thiyagarajah testified that he attended the clinic for six months, the first three months regularly, and thereafter, more intermittently.

I accept the evidence of Dr. D. Wong of Finch-Birchmount that it is probable that the clinic had all of the Applicant's attendance records (which failed to show any attendances after June 2004), although Dr. Wong conceded that the absence of a discharge statement left open the reasonable possibility that there may have been further attendances. I found Dr. Wong to be a fair and impartial witness. I accept his evidence that although his Disability Certificate, based on a March 15, 2004 examination, anticipated nine to twelve weeks of disability, it was fair to say that frequently such predictions prove inaccurate and it is difficult to tell whether a patient will be part of that group which continues for an indefinite period of time to be unable to work. Mr. Thiyagarajah's non medico-legal attendances since mid-July 2004 relevant to this accident are limited to three appointments with a family doctor, Dr. Jayashankar, and, at most, six or seven alleged attendances in the Fall of 2005 at Markham (Markham's records showing only three attendances). The Applicant says that one reason for not seeking medical help was depression. However, the relevant medical attendances in the year following the tragic death of the Applicant's brother, Umathevan, in July 2005, greatly exceed those the year before. As well, the only therapy after Finch-Birchmount followed relatively shortly after Umathevan's death.

3. The alleged degree of shoulder problems is inconsistent with the Applicant's failure to seek or be recommended by medical practitioners for treatment

As noted, there is in this case a scarcity of attendances with doctors for accident-related complaints. Mr. Thiyagarajah saw a family doctor in July 2005 (after a one year gap), and, while there is a note of neck and low back complaints, most curiously, there is no notation of shoulder complaints. This was confirmed by the oral testimony of Dr. Jayashankar who noted that she spoke to the Applicant in his native Tamil. Nor can one discern any specific mention of shoulder complaints in the doctor's subsequent February 4 and April 23, 2006 entries.

Dr. Jayashankar was not a hostile witness. Rather, she testified that she found the Applicant credible and was of the view that his March 6, 2004 injuries prevented him from doing a physical job. She agreed that sometimes, notwithstanding the best motivation and the best medical care, a person will not get better from the type of injuries sustained by Mr. Thiyagarajah.

The Applicant could not remember if he told Dr. Alpert about his shoulder dislocation problem. However, he did testify that he had told another family doctor, Dr. E.K.W. Lo, about four months after the accident, that his shoulders dislocated when he made certain movements. He further stated that Dr. Lo told him that the cartilage might be weak and not to make those movements, and that if the problem did not settle down, he might have to be referred to surgery.

The Applicant's failure to return to Dr. Lo, or someone else, in light of his alleged ongoing shoulder instability, is inconsistent with the likelihood that a person whose shoulders were repeatedly coming out of their sockets over an extended period of time would likely diligently seek medical assistance in this regard.

There was no evidence presented that the Applicant had a fear of surgery. There was no argument that the Applicant, who attended doctors for skin blemishes, diarrhea and colds, had a fear of or reluctance to seek medical help.

However, more fundamentally problematic is that Dr. Lo's post accident notes are restricted to an appointment on September 10, 2004, the purpose of that visit being a right cheek discolouration, which led to a medical referral. There is no mention of any accident-related injuries, which Dr. Lo confirmed in his oral evidence. I found Dr. Lo to be a conscientious doctor. There was no allegation that he had any reason to be untruthful. The Applicant, on the other hand, has an obvious stake in this proceeding. I find that the Applicant did not tell Dr. Lo about his alleged shoulder problem.

Dr. Kirwin diagnosed the Applicant as having "bilateral rotator cuff and bicipital tendonosis with strains of the acromioclavicular joint and anterior bilateral shoulder instability." He agreed on cross-examination that his report did not recommend any investigation of this problem, including possible referral for a bone scan, MRI or an ultrasound (the only diagnostic investigation to date being x-rays of the bilateral shoulders, the cervical spine and the skull taken March 11, 2004, all of which were reported as being normal and without any sign of abnormality).

Dr. Kirwin's explanation for the lack of any referral was that he was not asked that question by counsel. He stated, however, that he would have referred Mr. Thiyagarajah for further investigation if the problem were life-threatening.

This seems most curious, especially considering the view of Mr. A. Balaban, an exercise physiologist retained by the Applicant, that an ultrasound of the shoulders might be of further value. The questionable seriousness of the purported shoulder instability is highlighted by Dr. Kirwin's belief that it was sufficient to offer to send a copy of his report to the Applicant's family doctor, an offer that, according to Dr. Kirwin, Mr. Thiyagarajah declined. It is also curious that the Applicant testified that he has not requested any further diagnostic investigation of his shoulders because he was not aware that he could make such a request, notwithstanding his referral to not one but two dermatologists regarding a non accident-related facial discolouration.

4. The Applicant's alleged reason for failing to attend further treatment is inconsistent with the evidence received at the hearing

Mr. Thiyagarajah testified that he stopped going to Markham after six or seven sessions because the clinic was not being paid. Markham allegedly told him that once they were paid they would call him back. Dr. Miller, in her May 19, 2006 report, stated that physiotherapy was alleviating some of the Applicant's pain and that he wished he had funding for more physiotherapy.

There was, however, no evidence that Markham ever prepared a treatment plan for ING's consideration or that there was any request for payment of their treatment. Further, the evidence of ING's representative, Mr. S. Gallagher, that ING had never received any type of billing from the prior treatment provider, Finch-Birchmount, was not challenged by the Applicant.

Mr. Thiyagarajah lives at home with his parents. He stopped paying them rent after the accident. Dr. Miller states in her May 2006 report that the Applicant had no serious financial concerns. She confirmed that on cross-examination. The Applicant and his brother both testified that either their parents or the brother paid Mr. Thiyagarajah's expenses. The Applicant confirmed that he had received over $26,000 in IRBs in two lump sum payments in August 2004 and July 2005, as well as interest payments. Two thousand dollars of that went to pay for Mr. Balaban's report. An unspecified amount went to legal fees. I heard no evidence that Mr. Thiyagarajah applied any of these monies for treatment. Further, I received no evidence that ING denied any treatment expenses or that any such expenses were the subject matter of any proceeding.

All of this is especially curious, as Mr. Thiyagarajah testified that the reason he stopped seeing his family doctor, Dr. Jayashankar, shortly after the March 2004 accident was that he felt that his recovery was dependent on physiotherapy and he did not think that seeing his family doctor would help.

5. I have significant concerns about the Applicant's motivation to return to the type of work for which he was qualified before this accident

Mr. Thiyagarajah had a very limited work history in the four years or so between his high school graduation and this accident. At the time of the accident, he had been employed for only three months. Mr. Antflick, the Applicant's vocational expert, wrote in his report that the Applicant had always wanted to attend a post secondary institution to study, but he first needed to save money. The Applicant's pre-accident intent was to stay at Compu-Cell for only a few more months before starting a full time, three year course of study in September 2004. He had, prior to the accident, successfully written an entrance exam for Seneca College for a computer engineering program.

While Dr. Miller wrote that no one had pressured the Applicant to return to work, nor had anyone discouraged him from returning to work, she further wrote that his mother had discouraged him from participating in activities out of concern that would increase his pain. Noting the impact of his brother's death, Dr. Miller observed that Mr. Thiyagarajah's parents were overprotective about the Applicant's safety. They did not want him to go out with friends and his father did not want him to drive or ride in cars at any time.

Since the accident, the Applicant has not made any serious effort to go back to Compu-Cell. He has not attempted to find alternative employment. He has not availed himself of the assistance of any human resource organization. He has not tried to further his education. He has not sought retraining from ING.

Mr. Thiyagarajah's presentation at the hearing was generally of sad resignation. Much of the time he was hugging his arms. He was not otherwise demonstrative regarding pain. Dr. Miller, referring to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV), noted the Applicant's Axis V Global Assessment of Functioning (GAF) as 60. The 51 to 60 range reflects moderate symptoms or moderate difficulty with social, occupational or school functioning. The 61 to 70 range reflects some mild symptoms or some difficulty with function, but generally one is functioning "pretty well" and has meaningful interpersonal relationships. Dr. Miller agreed that another psychologist might place the Applicant in the 61 to 70 range.

Although the evidence of the Applicant and his brother Ragavan was that Mr. Thiyagarajah mainly stays home, primarily in his room, and does not see his girlfriend very much, Dr. Miller reported that his relationship with his girlfriend has become more serious since December 2005. The Applicant also told Dr. Miller that he does try to help his parents cope with their tragedy as much as possible and often takes them to relatives so that they are not alone (the Applicant's surviving sibling works full time in his own business and is largely away from home). In addition, the Applicant's alleged preferred seclusion from society is inconsistent with one sufficiently concerned with one's appearance to seek to remedy a facial discolouration.

Dr. Miller opined that "compared to other patients with chronic pain, Mr. Thiyagarajah reports that his pain is interfering significantly less with life." She was of the view that his resources, already strained by accident-related problems, were further taxed by his brother's untimely death. I find that the Applicant has limited motivation to return to work. The question of whether this is due to reasons beyond the reasonable control of the Applicant goes to the question of what, if any, are the true and legitimate pain and disability complaints being advanced by the Applicant.

The Insurer's Evidence

In addressing the above question, ING relies significantly on the medical opinion of Dr. Alpert, who saw the Applicant at ING's request on February 4, 2005. Dr. Alpert is an orthopaedic surgeon with special training and expertise in chronic pain. Based on what he termed an unremarkable orthopaedic physical examination of Mr. Thiyagarajah, Dr. Alpert was of the view that the Applicant was able to perform the essential duties of his pre-accident employment at Compu-Cell.

I give Dr. Alpert's opinion little weight, for the following combined reasons:

6. Whether Dr. Alpert has philosophical approach at odds with the Schedule

In his initial report, Dr. Alpert twice advises that studies show that 90% of individuals with mild to moderate soft tissue injuries, as he says were sustained by the Applicant, resolve within a few months. He notes that his February 2005 examination took place eleven months post accident.

Dr. Alpert testified in his examination-in-chief that he looks to see whether a claimant falls outside the usual prognosis. In his view, a patient's complaints, history and findings on examination must provide objective evidence of residual, persistent or permanent musculo-skeletal impairment. In his opinion, Mr. Thiyagarajah did not demonstrate, on examination, evidence of residual musculo-skeletal impairment, restriction, or disability.

Dr. Alpert does not set out in his reports the proposition, accepted by this Commission, that disability may exist in the absence of objective findings,³ although he conceded on cross-examination that he did not have a problem with that general proposition. However, based on his own evidence, Dr. Alpert begins his assessments with the implicit philosophical presumption that disability does not exist in soft tissue cases after a few months post-accident, and that the onus is on the insured person to rebut that general premise by presenting, on examination, with spontaneous substantive objective orthopaedic findings.

The difficulty with this approach is that the Schedule sets out a functional test for disability. The function in question is not the ability, on a relatively brief physical examination in the comparative comfort of an examination room, to move one's neck or bend one's back. Rather, the test is whether this Applicant is substantially unable to work full time, five days a week, week after week, lifting, carrying and repairing computers in a competitive employment setting. The presence or absence of objective findings on a medical examination is a factor to be taken into consideration. It is not the end of the inquiry.

7. The Limitations of Dr. Alpert's Information

Thus, it is important to note that Dr. Alpert did not inquire, when he examined the Applicant, as to the walking or standing requirements of Mr. Thiyagarajah's pre-accident job. He did obtain information as to the weight he was required to lift, but had no information as to the required frequency of bending or lifting. Dr. Alpert would only concede that such data would be additional information to consider. In my view, this was essential information.

I agree with the Applicant's submission that Dr. Alpert was prepared to render an opinion negating disability without knowledge of key components of the essential tasks of the Applicant's pre-accident job duties. I took from Dr. Alpert's testimony that although this information could always be considered, it would make no consequential difference in the absence of what he would consider to be objective findings on orthopaedic examination.

8. The Surveillance Evidence

Prior to the arbitration hearing, ING provided Dr. Alpert with copies of the reports of the Applicant's experts, in addition to surveillance videotapes and copies of the clinical notes and records of treating practitioners. Dr. Alpert indicated that this further information failed to change his orthopaedic opinion, which would include his view that Mr. Thiyagarajah was able to perform the essential duties of his pre-accident employment.

In his first addendum report, Dr. Alpert indicated that he observed no functional limitations in the surveillance provided. Rather, full bending of the lumbar spine was seen in picking up keys, consistent with good spinal rhythm and good muscle conditioning, as well as the ability to enter and drive a vehicle without difficulty. Although these activities were not part of the Applicant's essential tasks of his pre-accident employment, Dr. Alpert placed no caveat on his comments.

In his oral testimony, Dr. Alpert acknowledged that he was now aware that the main subject of the surveillance was not the Applicant. He volunteered that the video surveillance was of minimal assistance, something he had not stated in his report. Nonetheless, in cross-examination, Dr. Alpert commented that the portion of the three surveillance videos in which the Applicant did appear, showed him moving in a "fluid" manner. When asked whether the Applicant was indeed the person seen dropping the keys, Dr. Alpert equivocated. When informed that ING had conceded that all of the surveillance was entirely of someone other than the Applicant, Dr. Alpert's response was that the video surveillance had not changed his opinion. This is true. The video surveillance had supported his opinion that the Applicant was not disabled.

9. Cherry Picking

Dr. Alpert testified that he never asked the Applicant to lift anything on examination, not because lifting was outside the Applicant's job duties, but because such demonstrations were not part of a proper orthopaedic examination and were not necessary. After several attempts at avoiding answering the question, Dr. Alpert testified that despite not observing any lifting by the Applicant, his opinion was that Mr. Thiyagarajah could lift 20 pound weights.

While observing a person's lifting ability was evidently unnecessary and not part of a proper orthopaedic examination, Dr. Alpert did take time to note in his report the Applicant's ability to walk with a normal gait, which evidently meant walking the distance from the waiting room to the examination room, his ability to mobilize well from sitting to standing and his ability to get on and off the examination table. None of the latter appeared to be essential tasks of the Applicant's pre-accident employment or areas of function that were of any controversy.

Dr. Alpert mentioned numerous times in chief that he found no muscle spasm on examination in February 2005. He was very specific in noting this finding individually to each of the Applicant's cervical spine, his thoracic spine and his lumbar spine. Dr. Alpert was of the view that muscle spasm is an objective sign, an involuntary response. Yet, when advised in cross-examination that Dr. Kirwin had observed muscle spasm in October 2005 (over the cervical muscles), Dr. Alpert volunteered that muscle spasm can be caused by other things besides accidents, that sneezing can cause muscle spasm. What I took from Dr. Alpert's evidence was that while the absence of muscle spasm was significant, its presence can be explained away as being insignificant.

10. Dr. Alpert's Summary of Mr. Balaban's FCE Conclusions

Dr. Alpert insisted, pointing to a summary chart in Mr. Balaban's initial report, that his own report fairly summarized Mr. Balaban's opinion that Mr. Thiyagarajah had the ability to lift 20 pounds from the floor to waist level and demonstrated the ability to perform bilateral carrying of 25 pounds. Dr. Alpert, therefore, opined that this FCE demonstrated the Applicant's ability to meet and to perform the essential tasks of his pre-accident employment.

When asked why his report did not mention the caveats raised in the text of Mr. Balaban's report (including, most notably, changes in body mechanics, decreasing control, increasing pain and decreasing tolerance when performing these tasks), Dr. Alpert testified that he did, when he clearly did not. Dr. Alpert denied accentuating the positive in the FCE examinations and minimizing the negative. I disagree.

11. Dr. Alpert's Failure to Seriously Address Opinions or Evidence at Variance with his own Conclusion

As noted, prior to the arbitration hearing, ING sent Dr. Alpert significant material for his review.

In his May 26, 2006 addendum, Dr. Alpert noted receipt of the clinical notes and records of Dr. S. Sharma, a general practitioner, and Markham, as well as the report of Dr. Miller, and follow-up reports of Dr. Kirwin and Mr. Balaban. Dr. Alpert's two-line response to this material was "[after review of this further documentation, there is no change in my orthopaedic opinion as stated in my report of February 4, 2005." Dr. Alpert provides no review or critique of this material, nor does he favour the reader with any explanation as to why this extensive material did not appear to even give him pause to reconsider his position.

In his earlier May 25, 2006 addendum, Dr. Alpert notes receipt of the surveillance material, the clinical notes and records of various treating practitioners, as well as the first report of Dr. Kirwin and the report of Mr. Antflick. In his five-page response to specific questions raised by ING, Dr. Alpert spends considerable time reiterating his initial findings and opinions. He spends twice as much time on the surveillance material than on Mr. Antflick's vocational report.

In addition, as noted, he summarizes (in my view, in a manner less than fairly) Mr. Balaban's findings. In critiquing Dr. Kirwin's report, he merely highlights Dr. Kirwin's notation of two areas of difference with Mr. Balaban's findings (that Mr. Balaban noted right knee pain when Dr. Kirwin did not, and that Mr. Balaban noted right shoulder pain only, when Dr. Kirwin noted bilateral shoulder pain).

On cross-examination, Dr. Alpert conceded that an FCE might be of assistance and might be one thing to consider, if the person tested was giving an honest effort, the testing was conducted properly, and the testing mirrored the person's actual job duties. Dr. Alpert did not opine that Mr. Thiyagarajah was giving a less than honest effort in the two FCEs, that the FCE testing was improperly conducted, or that the testing failed to mirror the Applicant's actual job duties.

I am concerned that there was an assumption that an FCE, conducted by an exercise physiologist, was simply insufficient to change one's orthopaedic opinion. I am not persuaded to ignore a relevant report which is essentially unchallenged (including the expert qualifications of the writer) simply on the basis that the author may be at the lower end of some tacitly presumed medical pecking order.

12. Dr. Alpert as a Witness

On persistent cross-examination, Dr. Alpert did not reject, but neither did he easily accept the proposition that pain by itself, in the absence of objective signs, whether substantiated or not, could be disabling. It was clear that Dr. Alpert was most reluctant to give a clear answer that might have lessened the import of his orthopaedic opinion as the final word on disability.

Dr. Alpert repeatedly avoided directly answering the specific question of whether he had asked the Applicant why he felt he could not return to work. It was quite clear that Dr. Alpert had not asked that precise question, and it was further clear that Dr. Alpert was of the view that this was an oversight on his part that might undermine the weight given to his report. In my view, Dr. Alpert's failure to ask this specific question was of minimal significance compared to his reluctance to admit his omission.

Dr. Alpert's evidence was, at times, disingenuous. In reviewing causation, and asked whether holding the headrest could cause the alleged shoulder instability, Dr. Alpert responded that just holding onto the headrest would not by itself be sufficient to cause the alleged impairment, when clearly it was a question of the effect of tightly holding the headrest when a motor vehicle, travelling on the 401, comes to a sudden and violent stop against a concrete structure.

The above are but some examples from Dr. Alpert's testimony which lead me to accept the Applicant's characterization of this expert's cross-examination as stubborn, inflexible, evasive where the answer might undermine his opinion, and unable to concede the obvious. Overall, I found that Dr. Alpert presented his evidence not as an impartial witness endeavouring to assist this Tribunal, but as an advocate. Cross-examination can be one of the most effective tools available in a judicial proceeding in the search for the truth. Witnesses who see cross-examination as an opportunity to intellectually and verbally parry, like a doctoral candidate defending his or her thesis, may find the experience less than pleasant.

Own Occupation Test

The disability test for entitlement to IRBs for the first two years of disability is that the Applicant must have suffered a substantial inability to perform the essential tasks of his pre-accident employment at Compu-Cell.

I accept that Mr. Thiyagarajah has continued, since his motor vehicle accident of March 6, 2004, to be in some measure of pain. That is not denied by the Insurer. The concerns I raised in pages seven to fifteen above cause me to doubt that the pain and ensuing disability actually being experienced are to the degree stated by Mr. Thiyagarajah. The only expert opinion retained by ING, being that of Dr. Alpert, does not assist me, for the reasons set out in pages fifteen to twenty-one, in determining the measure of the Applicant's pain and disability. Dr. Alpert's opinion that there is a scarcity of orthopaedic objective findings, even if I accept that, is but the beginning of the inquiry, not the end.

The deciding factors for me regarding the "own occupation" test are the reports of Mr. Balaban, but not for the reasons submitted by the Applicant. Mr. Thiyagarajah, citing the decision of Quinn J. in Biss and Van Egmond 2004 CanLII 48876 (ON SC), [2004] O.J. No. 5200 (Ontario Superior Court of Justice), submits that the failure of a party to cross-examine on uncontradicted evidence, is a deemed admission by that party. With respect, it seems to me that Biss is support only for the proposition that failure to cross-examine on a sworn affidavit, "invites" its acceptance. In any event, to accept the proposition advanced by the Applicant would merely force parties in every proceeding before this Commission to require the author of every report it did not agree with, to attend for cross-examination. That, by itself, would defeat any possibility of this Commission being cost and time efficient.

Rather, I am persuaded, upon critical review, that Mr. Balaban's opinion regarding the "own occupation" test, is fair and balanced, using Dr. Alpert's own criteria. Dr. Alpert did not opine, nor did ING argue, let alone present any evidence:

• that Mr. Balaban's assessment did not represent an honest effort by the Applicant (or as opined by Mr. Balaban, the Applicant's best effort);

• that Mr. Balaban did not have the appropriate expertise to conduct the FCEs;

• that the assessments were not conducted properly;

• that the Applicant was not pain limited;

• that the testing did not mirror the Applicant's actual pre-accident job duties; or,

• that the changes noted in body mechanics during the FCEs were inconsistent with functional limitation.

Dr. Kirwin's opinion, that the FCE was appropriately done and the conclusions warranted, was not challenged by the Insurer.

There are some errors in Mr. Balaban's reports, such as that Mr. Thiyagarajah had been working at Compu-Cell for four to six months rather than three. There are some gaps in information, such as the frequency of bending (upon which Dr. Alpert was cross-examined). Dr. Kirwin notes the Applicant's knee and shoulder complaints were different from those noted by Mr. Balaban.

These weaknesses, however, do not detract from the overall strength of the reports. There is a far more precise description of the exact job demands of Mr. Thiyagarajah's essentially physical pre-accident employment than is provided by any other expert. There is a detailed simulation of job duties and an extremely precise detailing of changes in body mechanics, all in the context of monitoring the Applicant's increasing heart rate (which showed consistent effort) and increasing complaints of pain (specifically with lifting). Decreased muscle strength and endurance, muscle imbalances and functional limitations are noted, specifically in the context of lifting (decreased control being noted with lifting 20 pounds, requiring counterbalancing or compensation by leaning back and the degree of elbow flexion) and carrying (decreased control of a 25 pound load causing the Applicant to lower the load to the ground).

Mr. Balaban's reports note, in exacting detail, negative findings of function. They also note fourteen measures of consistency of performance, including similar changes in body mechanics occurring during tasks which stressed the same area of the body. I find Mr. Balaban's reports of October 14, 2005 (based on an evaluation of September 15, 2005) and May 15, 2006 (based on an evaluation of April 6, 2006, that is, a little more than two years post-accident) the best evidence before me as to whether the actual pain and other functional sequelae from this accident are too much for the Applicant to perform certain of the more physically taxing, essential duties of Mr. Thiyagarajah's pre-accident employment.

Specifically, I find both lifting and carrying of 20 to 30 pound loads to be essential tasks of the Applicant's pre-accident employment. I am persuaded, on a balance of probabilities, that Mr. Thiyagarajah is substantially unable to perform these tasks. Accordingly, I find that Mr. Thiyagarajah meets the "own occupation" disability test.

The "own occupation" test is applicable for the first two years of disability. It was not argued otherwise than that the two-year disability test ends at March 5, 2006. Accordingly, I find that Mr. Thiyagarajah is entitled to IRBs in the agreed weekly amount of $353.14 during the period in dispute from June 2, 2005 to March 5, 2006.

Any Occupation Test

To meet the post-104 week disability test, an insured person must suffer a complete inability to engage in any occupation for which he or she is reasonably suited by education, training or experience.

In this regard, Mr. Thiyagarajah relies on the medical opinions of Dr. Miller, Dr. Kirwin and Mr. Balaban, and the vocational expertise of Mr. Antflick.

Mr. Antflick sets out as suitable job alternatives, employment as a cook, a packer, a computer repair person and a busboy (all based on prior job experience), as well as a cleaner, industrial labourer, kitchen helper and courier. He notes that most of these positions have significant physical demands. He states the opinion that the Applicant was unsuited for jobs having sedentary to light demands (with the exception of cook) as such jobs require aptitudes the Applicant does not possess. While the Applicant argued that experience as a grill person at Burger King does not equate to being a cook, there was no argument made that being a grill person again was something inappropriate for the Applicant due to salary range or status.

I found Dr. Miller to be a fair and balanced witness. So did the Insurer. Dr. Miller's opinion was that Mr. Thiyagarajah was able to cope, overall, in an adaptive manner and that there was no evidence that he was clinically depressed or that there was a major depressive disorder. As conceded by the Applicant, the focus of Dr. Miller's report was whether Mr. Thiyagarajah's pain complaints were credible, whether he was reporting honestly. Dr. Miller concluded that the Applicant's pain complaints were an accurate reflection of his experience, that his pain was genuine and that he was being honest. I accepted Dr. Miller as an expert in psychology, not in credibility assessment. Dr. Miller's opinions do allay my concerns regarding the Applicant's credibility, noted above.

To a significant degree, Dr. Kirwin's opinion regarding disability was based on the FCEs performed by Mr. Balaban and on accepting the Applicant's subjective complaints. His examinations did reveal some objective findings, such as a positive Hawkin's test of the shoulders, greater on the left than on the right. This finding, according to Dr. Kirwin, meant that there was impingement of the structures beneath the acromion (which forms the highest point of the shoulder). However, Dr. Kirwin's failure to recommend or follow up on any further investigation causes me to question the significance of the impact of the Applicant's presented impairment complaints on his actual functional ability to perform less physically demanding tasks than the lifting and carrying requirements of his pre-accident employment.

In terms of alternative employment, one unanswered question is the Applicant's knowledge of English. The Applicant's choice of an interpreter reflects his right of choice in best understanding questions in a legal context where his right to monetary benefits is in dispute. It is not evidence of his ability to speak English. I note that the Applicant's brother, Ragavan, who runs his own used car rental business, also chose to avail himself of an interpreter.

The Applicant attended four years of high school in Ontario. He obtained his Secondary School Graduation Diploma. He successfully wrote an entrance examination for Seneca College. The Applicant testified that no interpreter was present when he saw Dr. Miller. Dr. Miller wrote in her report that Mr. Thiyagarajah was "able to comprehend my questions and to express his responses in English with little difficulty." Certain testing responses, however, appeared to reflect a lack of facility with reading English. I suspect that the Applicant's facility in English and his range of alternative employment might be broader than that proffered by Mr. Antflick. However, the Insurer presented no evidence in this regard.

Mr. Balaban's testing following the two-year anniversary of the accident, mainly addressed the essential duties of the Applicant's pre-accident job. From these findings, Mr. Balaban extrapolated that Mr. Thiyagarajah is precluded from performing anything more than sedentary level work, and even that, only on a part-time basis. Mr. Balaban's opinion that the Applicant had a sitting tolerance of 45 minutes belied what I saw with my own eyes at the hearing.

Given:

• my concerns regarding the Applicant's credibility regarding the extent of his pain and accident-related complaints as well as his motivation to return to employment,

• Mr. Balaban's generalized, and I think unwarranted, pessimistic opinion regarding alternative light employment,

• that Mr. Antflick has identified one possible alternative employment as the relatively light duties of a cook, and,

• my comments regarding the limitations of the evidence of Drs. Kirwin and Miller,

I am not persuaded that Mr. Thiyagarajah has met the post-104 week "any occupation" test.

Special Award

Subsection 282(10) of the Insurance Act provides that an arbitrator shall award a lump sum special award to an applicant if the arbitrator finds that an insurer has unreasonably withheld or delayed benefits. The Applicant claims a special award in this case for the following reasons:

13. The Delay of the Initial IRB Payment and Interest

Subsection 35(1) of the Schedule provides that the insurer shall pay IRBs within fourteen days of receiving an application if they determine that the benefit is payable. By letter dated April 29, 2004, the Applicant's counsel sent the independent adjuster the Application for Accident Benefits, the Employer's Confirmation Form and Dr. Wong's Disability Certificate. ING states that the independent adjuster failed to forward these documents on to the Insurer.

The Applicant's counsel resubmitted these forms, by letter dated July 28, 2004, directly to ING. By letter dated August 11, 2004, ING forwarded the Applicant a cheque for $4,237.68, representing twelve weeks of benefits. Mr. S. Gallagher, ING's representative, acknowledged that ING had fourteen days to respond to the April 29, 2004 letter. Mr. Gallagher further conceded that as ING had retained the independent adjusters, it must take responsibility for their failings.

The Applicant submits that payment of late interest should have been included in ING's August 11, 2004 correspondence. Instead, a cheque in the amount of $239.06 (representing interest) was forwarded to the Applicant under cover of letter dated January 20, 2005. Mr. Gallagher agreed that ING had "dropped the ball" and that it had no excuse for the delay.

14. The Delay of the Second IRB Payment

By letter dated July 18, 2005, ING forwarded its second (and last) IRB payment, this one in the amount of $22,247.84, representing IRB payments up to June 1, 2005. Under cover of a second letter dated September 2, 2005, ING forwarded a cheque for $1,514.10, representing interest on the overdue payments.

ING states that the Applicant contributed to any delay in payment by failing to provide a further disability certificate (ING having sent a further blank disability certificate to the Applicant, notwithstanding its submission that counsel should have these forms), and by failing to complete a 64-question statutory declaration, which Mr. Gallagher asserted was a pre-condition to payment of weekly benefits, if same is required by an insurer.

The Applicant submitted that the questionnaire (which included inquiries as to whether the claimant intended to take legal action against the at-fault party and if so, whom they intended to sue) was unnecessarily complicated, especially for a person whose first language is not English.

By letter dated September 14, 2004, Mr. Wilson, the Applicant's counsel, while denying ING's right to a statutory declaration containing the information requested, offered ING an opportunity to take a statement in his office. Mr. Gallagher testified that ING had no explanation for failing to take up Mr. Wilson's offer (it should be noted that Mr. Gallagher did not take carriage of this file until the Application for Arbitration was received by ING in July 2005). ING conceded that after a time, requiring the statutory declaration was probably wrong.

The Applicant submits that ING failed to properly follow the stoppage provisions under the Schedule. Mr. Gallagher testified that the stoppage provisions were not applicable in this case. Nonetheless, ING asserted that it put the Applicant in stoppage in May 2005 on the basis of Dr. Alpert's report, paying benefits until June 1, 2005 because it felt it was obliged to do so under the Schedule. Mr. Wilson had raised the alleged failure of ING to comply with the proper stoppage provisions in his letter of February 7, 2005. Mr. Gallagher testified that it appeared ING did not respond to that letter, and that it had no excuse for failing to do so.

Dr. Alpert's report was based on a February 4, 2005 assessment. The report is marked "received" (presumably by ING) on February 24, 2005. The Schedule requires that an insured person shall be provided with a copy of an IME report within five business days. Dr. Alpert's report was sent to the Applicant by letter dated March 24, 2005. Mr. Gallagher testified that ING had no excuse for the delay.

15. ING's Failure to Pay IRBs after June 1, 2005

At the arbitration hearing, just prior to Mr. Gallagher's examination, the Applicant requested access to ING's entire adjusting file. ING objected to the scope of this request. There did not appear to be any such prior production request. I noted that this request should have been made during the pre-hearing process. I was not persuaded to depart from the usual Commission approach of allowing production of an insurer's adjusting file only to the date of the Application for Mediation. No case law was proffered by the Applicant regarding this motion. No argument was advanced as to why there were special circumstances in this case that outweighed the zone of privacy generally afforded insurers once the mandatory settlement discussion provisions under the Schedule are invoked.

However, the Applicant pointed to an early adjusting entry of August 11, 2004, in which the author states that he or she was "not comfortable that this claimant will go away and at this point we do not have any proof this claimant was indeed in the mva." There was no allegation in this hearing that the Applicant was not injured in this car accident. The note continues, that in addition to getting proof of identity, "at the same time [we should] arrange for IE to confirm he no longer is disabled." Mr. Wilson suggested to Mr. Gallagher that the entry indicated ING's intent to hire a doctor to be able to deny benefits. Mr. Gallagher denied that was ING's intent, but indicated that if he had been the adjuster, he would not have used those words.

The Applicant argued that ING failed to properly review this file at the two-year mark when the disability test changed. Mr. Gallagher agreed that ING was "riding on Dr. Alpert's stallion." He agreed that the reports of Dr. Kirwin and Mr. Balaban could be right or they could be wrong. He agreed that ING did nothing in response to these reports except send them to Dr. Alpert for review. The Applicant submits that ING should have been aware of the weaknesses in Dr. Alpert's responses, and that it failed in its duty to reconsider its position in light of additional medico-legal evidence, even during the course of the arbitration proceeding.

Regarding Dr. Miller's psychological evidence, Mr. Gallagher agreed that ING had no evidence that Dr. Miller was wrong in her opinion nor an explanation of why ING did not pay IRBs when it received Dr. Miller's report. Mr. Gallagher indicated that a decision had been made to terminate benefits. He was unable to indicate what might cause ING to abandon that decision. Mr. Gallagher did not disagree with the Applicant's suggestion that it should be recommended that ING recommence payments as it had no evidence to contradict Dr. Miller.

On re-examination of Mr. Gallagher, somewhat pointed questioning directed to specific parts of Dr. Miller's report (payment of which ING had approved under section 38 of the Schedule) failed to cast light on ING's precise concerns with that report.

I find that the parties had an inadequate opportunity to address the question I posed of whether I have authority to grant a special award in regard to IRBs paid for the period up to June 1, 2005, if I found an award was warranted. The wording of subsection 282(10) of the Insurance Act requires that the lump sum special award shall be "up to 50 per cent of the amount to which the person was entitled at the time of the award." I note that I have not made an order regarding the payment of these benefits, I have not been asked to make an order for their payment, and the issue of payment of such benefits has never been raised in this arbitration proceeding.

The parties shall have until Friday, November 24, 2006, to serve and file their written submissions both on this jurisdictional question, as well as their submissions regarding the quantum of the special award, which had been left open.

As well, I received no submissions regarding pre-judgment interest. The parties shall have until Friday, November 24, 2006, to serve and file their written submissions regarding this issue as well.

Repayment Issue

At the beginning of the hearing, ING requested that an accounting issue be added to this proceeding, namely that it had overpaid $3,087.83 in IRBs and pre-judgment interest. ING had put the Applicant on notice of its request for repayment by letter October 13, 2005. ING was unable to provide a reasonable explanation as to why it took some five further months to seek mediation of this issue, which ultimately took place on June 15, 2006.

The Insurer's Motion Record was dated June 23, 2006, the Friday before the Monday start of the hearing. The Applicant submitted that he was prejudiced in having to respond in this hearing to this accounting issue, which may require the assistance of an accounting expert. I agreed. I was also of the view that arbitration should seek to encompass in one proceeding those issues it can reasonably and fairly include, so as to avoid multiple actions and unnecessary cost and time.

I, therefore, added the repayment issue to this proceeding on the condition that the issue would be addressed at a date to be set. I allowed the Applicant his costs of the motion, fixed at $450, inclusive of GST, payable forthwith, in any event of the cause. Further, as the repayment issue, if advanced expeditiously, could have and should have been included in this initial hearing, I held that the Applicant was entitled to his costs of the further hearing, in any event of the cause. I am not persuaded that this further issue requires more than one hearing day. I leave it to the parties to make appropriate arrangements with the Case Administrator.

EXPENSES:

I refer the parties to the provisions of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003). Rule 77 provides that where an adjudicator is advised that a party wishes an offer to settle to be considered, the adjudicator will determine all issues in dispute except expenses. I have not yet determined all of the issues in dispute, but in the absence of an offer to settle, there is no reason why expenses cannot now be considered. I leave it to the parties to comply with the requirements of the Code.

October 26, 2006

Lawrence Blackman

Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 164

FSCO A05-001520

BETWEEN:

UMBALA THIYAGARAJAH

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. ING Insurance Company of Canada shall pay Mr. Thiyagarajah a weekly income replacement benefit of $353.14 from June 2, 2005 to March 5, 2006.

2. The parties shall have until Friday, November 24, 2006, to serve and file their written submissions regarding pre-judgment interest, the special award jurisdictional issue and the amount of the special award.

3. The issue of the legal expenses claimed pursuant to subsection 282(11) of the Insurance Act may now be addressed in accordance with the provisions of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003).

October 26, 2006

Lawrence Blackman

Arbitrator

Date

Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. These witnesses are usually required to speak, not to facts, but to opinions; and when this is the case, it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond with the wishes or the interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgments becomes so warped by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of forming an independent opinion.

Footnotes

1. 1The Manitoba Court of Appeal in Regina v. de Tonnancourt et al. (1956) 1956 CanLII 470 (MB CA), 115 C.C.C. 154 cited Taylor on Evidence, 12th ed., vol. 1, p. 59, para. 58 that::
2. 2The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
3. 3Quattrocchi and State Farm Mutual Automobile Insurance Company (FSCO A-006854, September 29, 1997).