Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 208

FSCO A05-001868

BETWEEN:

DON R. MARSHALL

Applicant

and

AVIVA CANADA INC.

Insurer

REASONS FOR DECISION

Before:

William J. Renahan

Heard:

September 11, 12 and 13, 2006, in Leamington, Ontario.

Appearances:

Mr. Marshall represented himself

Raymond Murray for Aviva Canada Inc.

The Applicant, Don R. Marshall, was injured in a motor vehicle accident on November 8, 2001. He applied for and received statutory accident benefits from Aviva Canada Inc. ("Aviva"), payable under the Schedule.¹ Aviva terminated weekly income replacement benefits of $215.26 on April 15, 2005. The parties were unable to resolve their disputes through mediation, and Mr. Marshall 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:

Is Mr. Marshall entitled to income replacement benefits after April 15, 2005?
Is either party entitled to expenses of the arbitration proceeding?

Mr. Marshall is not entitled to income replacement benefits after April 15, 2005.
If the parties cannot resolve the issues of entitlement to or amount of expenses, they may make written submissions to me within 30 days of this decision.

Background:

At the time of the motor vehicle accident Mr. Marshall was 47 years old. He had lost his job as a telemarketer one month earlier because he swore at his manager. Mr. Marshall suffered soft tissue injuries in the accident when the truck he was driving struck a sedan at an intersection in Brockville. After the accident, Mr. Marshall walked two blocks to his room in a rooming house and later that day to the police station to inquire about the police report. About a year later, Mr. Marshall moved to Kingston to live with his brother. He received treatment and underwent assessments in Kingston. Mr. Marshall moved from Kingston to Leamington in October 2005 to be closer to his two daughters and their children. The hearing was held in Leamington. Two doctors from Kingston testified at the hearing.

The test for entitlement to weekly income replacement benefits more than 104 weeks after an accident is set out in section 5 of the Schedule. In general, the test is whether the insured suffers a complete inability to engage in employment which is suitable for him having regard to his education, training or experience.

Aviva paid Mr. Marshall weekly income replacement benefits beyond two years on the basis of assessments it arranged. One of those assessments was by Dr. Matthew Faris, a physiatrist, in August 2002. Dr. Faris found that Mr. Marshall was completely disabled from working as a telemarketer. In April 2004, Dr. Faris reassessed Mr. Marshall and again concluded that Mr. Marshall was not capable of light employment. However, this time Dr. Faris found new information and on the basis of that new information he concluded that Mr. Marshall's disability was caused by the progression of Mr. Marshall's pre-existing fibromyalgia and that the car accident did not cause Mr. Marshall's chronic pain disability. Mr. Marshall elected an assessment at a designated assessment centre ("DAC") in Kingston. Dr. Gavin Shanks is a physiatrist and he wrote the consensus report for the DAC. He concluded that Mr. Marshall's complaints were largely the same as his pre-accident complaints and had nothing to do with the motor vehicle accident. Aviva terminated weekly income replacement benefits on April 15, 2005 on the basis that Mr. Marshall would have suffered the same disability regardless of the accident.

Mr. Marshall admitted that he had a painful condition prior to the accident, but he claimed that it was worse after the accident, particularly on the right side of his body.

Mr. Marshall, Dr. Faris and Dr. Shanks testified at the hearing.

Summary:

I found on the balance of probabilities that Mr. Marshall was disabled from engaging in suitable employment.

The more difficult question was whether his disability was caused by the motor vehicle accident. Mr. Marshall presented no evidence on this issue. I reviewed Aviva's evidence and did not find any reliable evidence that the motor vehicle accident did not cause his disability. Since I heard no persuasive evidence one way or the other on the issue of causation, I had to determine who had the burden to prove the motor vehicle accident caused or did not cause Mr. Marshall's disability.

I found that Mr. Marshall had the burden of proving that he was entitled to income replacement benefits, including the burden of proving that his disability was caused by the motor vehicle accident. Since he failed to discharge that burden, he is not entitled to income replacement benefits.

Suitable employment:

It is first necessary for me to determine what is suitable employment for Mr. Marshall having regard to his education, training or experience in order to then determine whether he is completely disabled from engaging in that employment. If he is disabled, the next question is whether the injuries suffered in the motor vehicle accident caused the disability.

Mr. Marshall has the equivalent of a grade 12 diploma. Psychological testing revealed an intellectual level at the higher end of the normal range. Mr. Marshall has worked at different jobs across Canada. He admitted that he lost several jobs because of alcohol abuse. He has abstained from alcohol for about four years. Some assessors described him as a drifter.

He worked about one year for Sherwood Packaging in Belleville as a general labourer and fork lift operator. He left that job in about July 1999 because he found the physical work too painful. He made a claim for Workplace Safety and Insurance Board (WSIB) benefits on the basis that he suffered from chronic pain as a result of that work. The claim was dismissed.

His next job, and the one which he lost shortly before the accident, was as a telemarketer in Belleville. The start date on the Employer's Confirmation of Income is not correct because it indicates that he started as a telemarketer while he was still working at Sherwood. It is not clear from the documents when he started as a telemarketer. However, Mr. Marshall testified that he worked as a telemarketer for two years until his employment was terminated in September 2001, about six weeks before the motor vehicle accident.

Mr. Marshall described work as a telemarketer. He said that normal full-time hours are five hours a day, five days a week. He said that most weeks he worked 40 hours. The telemarketer gets two ten-minute breaks a day. During a typical day the telemarketer gets one to five scripts which he studies in order to sell products for such customers as book distributors, political parties and charities. A computer calls telephone numbers at random and the telemarketer sells the potential customer what Mr. Marshall described as "things people don't want." If a customer asks the telemarketer not to call again, Mr. Marshall would allow the telephone number to go back into the computer because it took less time than recording the person's request. Mr. Marshall said it was necessary to keep a "smiley happy disposition" in order to sell and maintaining that disposition was the hardest part of the job. Telemarketers are paid a commission and it was necessary to generate a minimum commission of $250 a week in order to maintain employment. The Employer's Confirmation of Income indicates that in the previous 40 weeks, Mr. Marshall earned an average of $405.96 per week. The amount of Mr. Marshall's income replacement benefit of $215.26 was not an issue in this hearing.

Mr. Marshall noted that he walked to and from work and often helped the janitor after work. He also noted that he constantly suffered pain while working as a telemarketer.

Disability:

Mr. Marshall testified that he experienced more pain after the accident, particularly on the right side of his body, and that he cannot work as a telemarketer because he no longer has the happy disposition necessary for that work. As well, he finds it too painful to sit for prolonged periods and he cannot concentrate because of his overall body pain.

Two months after the accident, a physiotherapist found no non-organic signs during his testing. In 2002, Dr. Christopher Prince, a psychologist, found that test results for psychogenic pain amplification were all within normal limits. In 2003, Dr. Lynn Kelly, another psychologist, noted that Mr. Marshall's somatization was within normal limits. In January 2004, the assessor at a functional abilities evaluation found that Mr. Marshall participated in all test tasks with reasonable effort and reliable consistency and concluded that he was not a malingerer. At a vocational assessment in April 2004, the assessor found that Mr. Marshall was motivated and wanted to attempt to return to work. However, now Mr. Marshall has given up hope of returning to work. I did not find any evidence that Mr. Marshall was dishonest or malingering. I found that Mr. Marshall was generally credible.

All the assessors who expressed an opinion on disability stated that Mr. Marshall was disabled from light employment. Part of Dr. Faris' clinical practice is dealing with patients with chronic pain and he testified for Aviva that he had no doubt that Mr. Marshall had a severe disability.

Although Dr. Shanks at the disability DAC concluded that Mr. Marshall was not disabled as a result of the motor vehicle accident, his assessment dealt with the issue of causation, not disability. In testimony, he confirmed that others generally found significant disability and that his sole contribution was on the issue of whether Mr. Marshall's impairment was caused by the motor vehicle accident.

Dr. Arjun Purohit was the psychologist at the disability DAC. I find that his opinion was that Mr. Marshall could not engage in suitable employment given his psychological problems.

I find that Mr. Marshall suffers a complete inability to engage in suitable employment because of chronic pain and psychological problems.

Causation:

Aviva argued that Mr. Marshall had fibromyalgia before the accident and his disability was due to this condition, not to injuries he suffered in the accident.

Dr. Faris testified that fibromyalgia is more of a label, than a diagnosis. It was defined by a rhuematolgoist. The criteria are straightforward. The patient must have widespread body pain for at least three months above and below the waist and on both sides and in the head or spine. The patient must experience pain in at least 11 of 18 trigger points on the body when a pressure of four kg of force is applied to the trigger point. Typically the condition may plateau but it is unpredictable and may be progressive.

Several assessors noted that Mr. Marshall was diagnosed with fibromyalgia. Dr. Shanks testified that it was not clear to him whether the assessors made the assessment or they got it from Mr. Marshall.

I found three references to fibromyalgia in the medical records which were completed prior to the motor vehicle accident. They were reported by Mr. Marshall's family doctor, Dr. Adam Steacie, and were made around the time Mr. Marshall left his labour job at Sherwood Packaging and applied for WSIB benefits. Following an examination on August 6, 1999 Dr. Steacie completed a WSIB form in which he wrote "I suspect pt has developed fibromyalagia. Pain has been slowly increasing." In his clinical notes of August 20, 1999 Dr. Steacie recorded "gen musc aches ?fibromyalgia." And, in his notes of August 26, 1999 he recorded "? Fibromyalgia." These are the only pre-accident documents which refer to fibromyalgia.

Dr. Faris recorded 9 of 18 tender point sites as being painful to 4 kg of pressure, which included a couple of sites on the left site. He reported that although it dropped below the formal classification criteria of 11, it did not alter the diagnostic conclusion that Mr. Marshall had widespread body pain consistent with this disorder.

Dr. Shanks testified that although he does not use the test, he performed it on Mr. Marshall and found that Mr. Marshall did not have any tender points. He reported that his examination did not support a diagnosis of fibromyalgia.

After the accident, several assessors reported that Dr. Steacie had diagnosed Mr. Marshall with fibromyalgia before the accident. The three references to fibromyalagia in the pre-accident records indicate to me that Dr. Steacie suspected fibromyalgia. Subsequent testing performed by Dr. Faris and Dr. Shanks did not support this diagnosis. I find it likely that Mr. Marshall told various examiners that he suffered from fibromyalgia before the accident, although it is not clear that this is the case.

The evidence is clear that Mr. Marshall left his labourer's job at Sherwood Packaging because he found physical work too painful. The evidence is also clear that he told this to every examiner who asked about his health history. With some examiners he added the diagnosis of "fibromyalgia." Although he told Dr. Faris why he left Sherwood Packaging, he did not use the word "fibromyalgia."

The evidence is also uncontradicted that Mr. Marshall worked a regular 25 hour work week as a telemarketer for two years before the accident, often working 40 hours a week, and that he walked back and forth between home and work. I heard no evidence that he took any time off from this work in the two years before the accident. Mr. Marshall testified that he was in constant pain while working as a telemarketer. After the accident, the pain was worse and more on the right side.

The question is whether the chronic pain Mr. Marshall experienced before the accident was stable or progressive. If it was stable, was it aggravated to the point I would find that the accident significantly contributed to Mr. Marshall's inability to work as a telemarketer? Or, if it was progressive, would it have eventually caused Mr. Marshall's disability even if the accident had not occurred?

Dr. Faris first assessed Mr. Marshall on August 30, 2002. He wrote:

Past history in fact proves to be quite important.

Mr. Marshall also reports mid to low back pain for the prior five years. He indicates that this was more in the centre of the lumbar area rather than the right side as it is currently . . . He reports that his neck and back pain was the primary reason that he went from working at Sherwood Packaging to starting his telemarketing job that he did for two years prior to the crash.

He couldn't tolerate this work [Sherwood Packaging] due to its aggravating effect on his back and neck pain. He reports that he was able to tolerate sustained sitting as a telemarketer. The implication is that his pretraumatic neck and back pain did limit his physical capacity already but he was by his own account capable of static postures including sitting.

Dr. Faris concluded that Mr. Marshall could not work as a telemarketer.

In his second assessment performed on April 29, 2004, Dr. Faris reviewed several post-accident assessments. He wrote:

He made no mention of having been diagnosed with fibromyalgia. It is evident from almost every report subsequent to mine that he did have an established diagnosis of fibromyalgia made by Dr. Steacie and with a clear understanding that it was because of this chronic pain problem that he had actually shifted jobs to light work as a telemarketer.

This diagnosis lead Dr. Faris to conclude that Mr. Marshall's disability would have evolved notwithstanding the accident. He wrote:

On re-reviewing my report it is clear that I wasn't able to make clear sense of the progressive pattern of pain over two weeks after the crash. I did identify this as atypical for primary soft tissue or articular injury. The new information learned in the course of this evaluation now makes sense of that. That is the progressive nature of the pain over a period of weeks rather than days almost certainly indicates the underlying pathophysiology related to worsening fibromyalgia rather than direct biological effects of tissue injury. That is, the pattern of progressive pain is consistent with a worsening of his pre-existent fibromyalgia.

After receiving the pre-motor vehicle accident medical records Dr. Faris concluded in his report of September 13, 2004:

Dr. Stacey [sic] considered the possibility of fibromyalgia prior to the crash given the persistence and wide spread nature of the pain problems.

This therefore provides supportive evidence for the conclusion that the car crash was not causally responsible for the subsequent chronic pain problem. That is the chronic pain problem had origin prior to the crash. There is no question that the pain problem did escalate subsequent to the crash but I don't believe that the evidence supports the conclusion that the crash made a material contribution to this escalation. It would appear that the subsequent escalation related to the already pre-exiting pre traumatic pain problem in the same areas and other non trauma factors particularly in the psychological sphere.

Dr. Faris admitted that fibromyalgia and chronic pain can plateau or progress and he concluded that Mr. Marshall's pre-accident disability was progressive. The only evidence I heard that Mr. Marshall's pre-accident condition was progressive was that he could not work at Sherwood Packaging because of pain and that his condition deteriorated in the two weeks after the accident. I heard no evidence that Mr. Marshall's chronic pain disabled him from work as a telemarketer in the two years before the accident and no evidence that his condition was progressive or getting worse in the two years before the accident. In his disability certificate dated November 1, 2004, Dr. Steacie certified that "Despite complaints of some pain in neck, right leg, low back and headaches, he had no difficulty performing duties as a labourer."

Further, Dr. Faris knew at his first meeting with Mr. Marshall that Mr. Marshall had a history of chronic pain. He knew that he had worked as a telemarketer for the two years before the accident. He knew that every assessor who tested Mr. Marshall found that Mr. Marshall was not a malingerer. He had no reason to distrust Mr. Marshall. If he had any concern that Mr. Marshall's pre-accident chronic pain was progressive to the point it effected his ability to work, I would have expected him to put this to Mr. Marshall. Yet, he did not ask Mr. Marshall if he had missed any time from work as a telemarketer because of pain problems.

I do not find Dr. Faris' opinion that Mr. Marshall's disability was not caused by the accident reliable.

The disability DAC's conclusion on causation is summarized in its report of March 15, 2005:

His present complaints are largely the same as his pre-accident complaints and has nothing to do with the motor vehicle accident. His present physical examination does not support a diagnosis of fibromyalgia, nor a diagnosis of myofascial pain syndrome. His pain description currently is very suggestive of non-organic pain and both the history and physical examination are strongly suggestive of largely psychological roles in pain production.

Again, the assessors failed to consider that Mr. Marshall could work as a telemarketer with his pain in the two years prior to the accident, and he could not work with his pain after the accident.

Many of the assessors comment on psychological aspects to Mr. Marshall's pain.

Dr. Faris frequently commented on the importance of the psychological aspects to Mr. Marshall's pain. In his first report, he suggested bringing in a psychologist to address "the cognitive belief systems related to his pain."

The DAC report noted that Mr. Marshall's barriers to employment were (1) strong cognitive beliefs regarding his disability and (2) a number of psychological issues that he had to resolve prior to attempting to return to work.

Besides Dr. Faris, at least six doctors comment on the psychological aspects of Mr. Marshall's impairment.

Mr. Marshall saw three psychologists for treatment and assessments. He saw Dr. Christopher Prince three times, Dr. Marion Cuddy six times and Dr. Lynn Kelly on several occasions from July 2003 to April 2004. Although they write extensively on Mr. Marshall's psychological condition, they shed very little light on the issue of whether Mr. Marshall's disability was caused by the accident. Dr. Cuddy found that the injuries Mr. Marshall suffered in the accident were exacerbated by pre-existing physical conditions and that "Don finds it difficult to distinguish symptoms of fibromyalgia with symptoms he is experiencing now." Dr. Kelly found that psychological factors were playing an important role in maintaining his symptoms and disability.

Dr. Arjun Purohit was the psychologist at the disability DAC who assessed Mr. Marshall. He concluded:

His general occupational cluster has been identified as general labor and I think it will be quite challenging to locate a vocational option within this category given his psychological problems. His fatigability requiring frequent rest periods as well as inability to drive for more than half an hour would be barriers in finding an option within his occupational cluster. I will leave it to Dr. Shanks to find the causality and severity of his problems as far as pain is concerned.

As noted above, Dr. Shanks was the physiatrist at the disability DAC assessment. He testified that Mr. Marshall's complaints were psychogenic, and not due to physical injury, and that emotion has an enormous effect on pain. He said that Mr. Marshall had significant stress and psychological problems before the accident and that his problems were due to something other than a physical cause. He did not recall whether he had any conversation with Dr. Purohit concerning a psychological link between Mr. Marshall's disability and the accident.

As a family doctor, Dr. Steacie may have had some insight into Mr. Marshall's psychology. In a treatment plan dated April 22, 2002 he wrote: "I suspect Don will never improve." Dr. Faris found that this was "a remarkable statement on a treatment plan as it suggests that Dr. Steacie has some prior experience with Mr. Marshall that would lead him to a conclusion that he was not going to recover from what was apparently a mild set of injuries."

Conclusion on psychological causation:

Mr. Marshall was treated by several psychologists and underwent several assessments. Before the accident, he had psychological problems. I heard no evidence on what those problems were or whether they were exacerbated by the accident or whether he developed new psychological problems after the accident. Dr. Shanks was the only doctor to express an opinion on whether Mr. Marshall's psychological impairment was caused by the accident. He did not address it in the DAC report or discuss it with the psychologist on the DAC, Dr. Purohit. Instead, Dr. Shanks testified at the hearing that any psychological impairment that Mr. Marshall had was not caused by the accident. Dr. Shanks is a physiatrist. He did not demonstrate any understanding of Mr. Marshall's psychological impairment. His opinion that Mr. Marshall's psychological impairment was the same after the accident as it was before the accident is not reliable.

I have no reliable opinion whether the accident significantly contributed to Mr. Marshall's disability from a psychological point of view.

The only evidence I have is that whatever Mr. Marshall's psychological problems were before the accident, he was able to work as a telemarketer in the two years before the accident and that he was disabled from that work after the accident.

Failure to participate in rehabilitation:

Aviva argued that Mr. Marshall failed to participate in reasonable rehabilitation and referred to section 55 of the Schedule. Section 55 deals with the insurer's right to reduce a weekly benefit if the insured fails to participate in reasonable rehabilitation. The section requires the insurer to give the insured notice of its intention to reduce benefits. I heard no evidence that Aviva notified Mr. Marshall that it was relying on this section. However, I looked at the allegation that Mr. Marshall failed to participate in rehabilitation with respect to whether any failure to participate in rehabilitation contributed to his disability.

When he first saw him, Dr. Faris believed that Mr. Marshall had a high risk of developing disability due to chronic pain and recommended "a very active and supportive approach to physical management" to help avoid this.

Mr. Marshall started physiotherapy soon after the accident. He testified that he felt worse with treatment and he stopped. Dr. Steacie supported Mr. Marshall's decision. In a treatment plan dated April 24, 2002, Dr. Steacie wrote "I have suspended physio as it was not helping, and worsened pain." [emphasis in original]. Mr. Marshall attended another physiotherapy clinic from January 2003 to March 2003 but was discharged because his attendance was poor. Again, Mr. Marshall testified that the therapy made his pain worse. In June 2003, Mr. Marshall attended a third clinic for 24 sessions. The physiotherapist noted that despite improvement, Mr. Marshall was discharged due to lack of attendance.

Several assessors, including Ruth Whiting, occupational therapist, Dr. Faris, Dr. Shanks and the three psychologists who treated and assessed Mr. Marshall comment on the large effect emotion and psychological factors have on pain in general. In Mr. Marshall's case, I accept their opinions that psychological factors play an important role in maintaining Mr. Marshall's symptoms, dysfunctional sedentary lifestyle and disability.

Dr. Kelly treated Mr. Marshall in Kingston from September 2003 to April 2004. In each of her three assessments she reported that Mr. Marshall was taking full advantage of the treatment, that his chronic pain was improving and that he required more treatment. It is not clear to me why this treatment stopped.

Mr. Marshall moved to Leamington in October 2005 to be close to the families of his two daughters. One of the factors which contributed to Mr. Marshall's psychological problems and inability to overcome his chronic pain was his social isolation and lack of emotional support. I find that his move to Leamington was an attempt to overcome these obstacles.

I find it likely that Mr. Marshall did not benefit from active physiotherapy due to his psychological problems and that he participated in rehabilitation to the best of his ability.

Burden of proof:

Usually, which party has the burden of proof is not an issue because an arbitrator can determine on the balance of probabilities whether an applicant is entitled to benefits. In Henriques and Motor Vehicle Accident Claims Fund, (OIC A96-000037, December 12, 1996). I considered who had the legal burden of proof where the insured terminates weekly income replacement benefits. I did not have to decide the issue because I was satisfied on a balance of probabilites that Mr. Henriques was not entitled to further weekly income replacement benefits.

In the present case, however, I did not hear any reliable evidence from either party on whether the motor vehicle accident significantly contributed to Mr. Marshall's complete inability to engage in suitable employment. I could not say whether Mr. Marshall's disability was likely or not likely caused by the motor vehicle accident. I must therefore determine who has the burden to prove that fact. The unsuccessful party is the party who had the burden to prove causation and failed to discharge that burden.

In The Law of Evidence in Canada², the authors state "The substantive law, such as the law of torts or the criminal law, and not the adjectival law of evidence, governs which party has the burden of proof in relation to a fact or issue."

The question is whether the substantive law identifies who has the legal burden of proof.

Section 37 of the Schedule provides as follows:

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

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

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

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

(4) If the person gives the insurer written notice under clause (3) (c) that he or she requires an assessment and the report from the designated assessment centre states that the person no longer suffers from the disability in respect of which the benefit was paid, the insurer may stop paying the benefit after it has provided the person with notice of its reasons for stopping payment.

(5) If the person gives the insurer written notice under clause (3) (c) that he or she requires an assessment and the report from the designated assessment centre states that the person continues to suffer from the disability in respect of which the benefit is paid, the insurer may dispute the obligation to pay the benefit in accordance with sections 279 to 283 of the Insurance Act, and, pending the resolution of the dispute, the insurer shall pay the benefit.

(6) Nothing in this section prevents a person from disputing a stoppage in the payment of a benefit in accordance with sections 279 to 283 of the Insurance Act and section 50 of this Regulation and, if it is finally determined that payment of the benefit should not have been stopped, the insurer shall,

(a) resume payment of the benefit; and

(b) pay any amounts under the benefit that were not paid.

Section 37 of the Schedule places certain restrictions on the insurer's right to terminate benefits. It must give notice and a reason why it thinks the insured is no longer entitled to benefits. It must notify the insured of his right to elect an assessment at a DAC and pay benefits pending the outcome of that assessment. An insurer cannot terminate weekly benefits arbitrarily and place the burden on the insured to prove he is still entitled to benefits. The first part of section 37 appears to place the legal burden on the insurer to prove that the insured is no longer entitled to weekly benefits.

However, section 37(6) provides that nothing in the section "prevents a person from disputing a stoppage in the payment of a benefit in accordance with sections 279 to 283 of the Insurance Act . . . and, if it is finally determined that payment of the benefit should not have been stopped, the insurer shall resume payment of the benefit. . ."

This subsection sets out the issue for determination which is whether "payment of the benefit should not have been stopped." It is the insured who is interested in proving that "payment of the benefit should not have been stopped."

I also considered the case of Caisse populaire de Maniwaki v. Giroux 1993 CanLII 151 (SCC), [1993] 1 S.C.R. 282. In that case, the insurer made payments to Giroux under a disability policy and then stopped. The Supreme Court held that where the insurer makes payments under the policy, it is up to the insurer to prove to the court that the insured was no longer disabled.

I do not find that this case applies to determinations of entitlement to weekly benefits under the Schedule because the substantive law set out in section 37(6) determines the burden of proof.

I find that where the insurer has paid weekly benefits and the insured disputes the termination of those benefits, the insured has the legal burden of proving that the "benefit should not have been stopped." If at the end of the case the insured does not satisfy that burden, the insurer wins. The legal burden of proof is only an issue where the decision maker is left in a state of uncertainty.

Conclusion:

Neither party presented any reliable evidence on the issue of whether the motor vehicle accident significantly contributed to Mr. Marshall's disability. Since Mr. Marshall failed to discharge his burden of proving that the motor vehicle accident caused his disability and that the benefit should not have been stopped, Mr. Marshall is not entitled to further weekly income replacement benefits.

EXPENSES:

If the parties cannot resolve the issue of entitlement to expenses of the arbitration proceeding, they may make written submissions to me within 30 days. If, after the issue of entitlement to expenses is resolved, the parties cannot resolve the issue of amount of expenses, they may make written submissions to me within 30 days of the resolution of the entitlement issue.

December 29, 2006

William J. Renahan Arbitrator

Date