Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 48

FSCO A03-001344

BETWEEN:

JERRY CHAMPAIGNE

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Lawrence Blackman

Heard:

July 19 and 20 (in Sudbury), October 26 (by teleconference), November 15, 16, 17 and 18, 2004, June 20, 21, 22 and 23 (in Sudbury), November 5 and 30, December 15, 2005 and January 10, 2006 (by teleconference)

Appearances:

Ms. Carolyne Champaigne, Ms. Julie Wilson and Ms. Jill Stevens for Mr. Champaigne

Mr. Bruce A. Keay for Co-operators General Insurance Company

Issues:

The Applicant, Mr. Jerry Champaigne, was injured in a motor vehicle accident on August 22, 2002. He was subsequently injured in work accidents on June 16, 2003 and October 31, 2003. Mr. Champaigne applied for statutory accident benefits from Co-operators, payable under the Schedule,¹ with respect to the August 22, 2002 and October 31, 2003 accidents.

Entitlement and quantum disputes arose between the parties. As the parties were unable to resolve these disputes through mediation, Mr. Champaigne applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Champaigne submits that Co-operators failed to advise him of the benefits to which he was entitled, sabotaged his efforts to obtain treatment, sabotaged his relationship with his family doctor, took advantage of his lack of sophistication, consistently failed to meet its obligations under the Schedule and, as a result, caused him further injury leading to his present permanent crippling impairment. In addition to seeking an order for full entitlement to all benefits sought, Mr. Champaigne seeks the maximum special award possible.

Co-operators submits that this case is about onus, the Applicant having to prove his entitlement to, and the quantum of, the benefits claimed. It is Co-operators' position that the August 22, 2002 accident plays no material role in any ongoing claim of disability that Mr. Champaigne is advancing.

The issues in this hearing, as agreed by the parties, are as follows:

Regarding the October 31, 2003 incident:

(a) is Mr. Champaigne an insured person for the purposes of the Schedule;

(b) if so, is the Co-operators not required to pay benefits, in accordance with section 59 of the Schedule;

(c) if not, did Mr. Champaigne suffer an impairment in an accident on October 31, 2003, as the term "accident" is defined in section 2 of the Schedule?

Is Mr. Champaigne entitled to receive a weekly income replacement benefit, ongoing from June 17, 2003, claimed pursuant to subsection 4(1) and paragraph 5(2)(b) of the Schedule?

The Co-operators concedes Mr. Champaigne's entitlement to income replacement benefits ("IRBs") from August 29, 2002 until June 16, 2003. The Applicant claims IRBs solely as a result of the August 22, 2002 accident, except for the period October 31, 2003 to January 4, 2004, when the claim is based on both the August 22, 2002 and the October 31, 2003 accidents.

What is the amount of the weekly income replacement benefit that Mr. Champaigne is entitled to receive pursuant to section 6 of the Schedule?
Is Mr. Champaigne entitled to payment of the following expenses, claimed pursuant to section 14 of the Schedule:

(a) $738.56 (less whatever monies the Co-operators has paid) for a treatment plan dated May 9, 2003 from Mr. M. De Angelis, physiotherapist, for an enhanced one-year membership at the YMCA as a result of the August 22, 2002 accident;

(b) $663 for a treatment plan dated March 26, 2003 for massage therapy from Ms. D. Borosch (Kawa), massage therapist, claimed as a result of the August 22, 2002 accident; and,

(c) $865.05 and $443 respectively for treatment plans for chiropractic treatment dated November 21, 2003 and January 26, 2004 from Dr. Michlowski, chiropractor, claimed as a result of injuries sustained on August 22, 2002?

The Applicant withdrew his claim for a $3,750 treatment plan for physiotherapy dated November 10, 2003 from Mr. De Angelis on the basis that it was being paid by the Ontario Workplace Safety and Insurance Board (WSIB).

Is Mr. Champaigne entitled to payment of a rehabilitation benefit, claimed pursuant to section 15 of the Schedule, for the following:

(a) a rehabilitation worker/assistant to help locate and co-ordinate treatment for him as a result of injuries sustained on August 22, 2002;

(b) $1,000 for a driver's helper, Mr. Tyler Vincent, from August 30 to September 27, 2002, claimed in the alternative as a loss from self-employment, pursuant to subsection 6(5) of the Schedule;

(c) $227.61 for a truck rental from Budget on August 23, 2002 and September 13, 2002, claimed in the alternative as a loss from self-employment, pursuant to subsection 6(5) of the Schedule; and,

(d) $1,382.55 for replacement drivers Mr. Dan Paquin, Mr. Ron Sarazin and those provided by Transport Placement Services from August 23 to September 13, 2002, claimed in the alternative as a loss from self-employment, pursuant to subsection 6(5) of the Schedule?

The Co-operators raises a specific defence pursuant to subsection 50(a) of the Schedule regarding issue 5(a) above.

Is Mr. Champaigne entitled, as a result of the August 22, 2002 accident, to payment of $800 for housekeeping and/or home maintenance services provided between August 22 and December 31, 2002 by Josh Boric, Shawnda Loney, Paulette Michel and Lucy Harnett, claimed pursuant to section 22 of the Schedule?

The Co-operators raises a specific subsection 50(a) defence to this issue.

Is the Co-operators liable to pay a special award pursuant to subsection 282(10) of the Insurance Act?
Is Mr. Champaigne entitled to interest for the overdue payment of benefits pursuant to subsection 46(2) of the Schedule?
Is the Co-operators liable to pay Mr. Champaigne's out-of-pocket legal expenses in respect of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Champaigne liable to pay the Co-operators' legal expenses in respect of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?

Result:

(a) Mr. Champaigne was not an insured person of the Co-operators at the time of the October 31, 2003 accident;

(b) in accordance with section 59 of the Schedule, the Co-operators is not required to pay benefits as a result of the October 31, 2003 accident;

(d) Mr. Champaigne did suffer an impairment in the October 31, 2003 work accident, as the term "accident" is defined in section 2 of the Schedule. However, the October 31, 2003 accident was not caused by the August 22, 2002 accident.

Mr. Champaigne is entitled to receive a weekly income replacement benefit from July 31, 2003 to October 30, 2003, and from February 13, 2004 to August 21, 2004, pursuant to subsection 4(1) of the Schedule.
Mr. Champaigne's income replacement benefits total $1,240.92 for the period July 31, 2003 to October 30, 2003 and $331 per week from February 13, 2004 to August 21, 2004.
Pursuant to section 14 of the Schedule, Mr. Champaigne:

(a) is entitled to a one-year gym YMCA membership, without the sauna and whirlpool portion, less whatever monies the Co-operators has paid;

(b) is entitled to $663 for a treatment plan dated March 26, 2003 for massage therapy from Ms. D. Borosch (Kawa), massage therapist; and,

(c) is not entitled to $865.05 and $443 for treatment plans for chiropractic treatment dated November 21, 2003 and January 26, 2004 from Dr. Michlowski.

Pursuant to section 15 of the Schedule, Mr. Champaigne:

(a) is not entitled to payment for a rehabilitation worker/assistant to help locate and co-ordinate treatment for him as a result of injuries sustained on August 22, 2002;

(b) is entitled to payment of $1,000 for a driver's helper, Mr. Tyler Vincent, from August 30 to September 27, 2002;

(d) is entitled to payment of $1,382.55 for replacement drivers from August 23 to September 13, 2002.

Mr. Champaigne is not entitled, as a result of the August 22, 2002 accident, to payment of $800 for housekeeping and/or home maintenance services provided between August 22, 2002 and December 31, 2002.
Co-operators is not liable to pay a special award.
Mr. Champaigne is entitled to interest on overdue payment of benefits in accordance with subsection 46(2) of the Schedule.
The issue of the legal expenses of this arbitration, 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).

INDEX

Section

Page

EVIDENCE AND ANALYSIS

The October 31, 2003 accident

(a) Is Mr. Champaigne an insured person for the purposes of the Schedule with regard to the October 31, 2003 accident?

– The Causation Argument – Disputes Between Insurers – The Limitation Defence

(b) Is Co-operators not required to pay benefits as a result of the October 31, 2003 accident because of section 59 of the Schedule?

(c) Did Mr. Champaigne suffer an impairment in an accident on October 31, 2003, as the term "accident" is defined in section 2 of the Schedule?

Entitlement to Income Replacement Benefits

(a) the pre-104 week disability test

(b) the essential tasks of Mr. Champaigne's pre-accident employment

(d) the Medical Evidence - the Applicant’s treating doctors

– Dr. M. Dubé – Ms. D. Borosch (née Kawa) – Dr. C. Michlowski – Mr. M. De Angelis – Dr. M. St. Martin – Dr. W. Nolan – Dr. S.C. Cheung – Dr. F.A. Ogundimu – Dr. C.S. Lindsay – Dr. A. Brooks-Hall – Specialists seen regarding complaints of dizziness

(e) Other Medical Evidence

CBI Physiotherapy and Rehabilitation Centre Disability DAC Mr. J. Bonin the Regional Evaluation Centre Medical/Rehabilitation DAC Work Able Centres Ltd. Medical/Rehabilitation DAC Dr. J. Cisa the South Muskoka Memorial Hospital Medical and Rehabilitation DAC

(f) Credibility Evidence in Favour of Mr. Champaigne

(g) Credibility Concerns

pre-existing history the August 22, 2002 accident and complaints in the following months time off work and replacement labour August 22, 2002 to June 16, 2003 the June 16, 2003 work accident replacement labour prior to the October 31, 2003 accident complaints of dizziness and continuing to drive dizziness causing the October 31, 2003 accident filling out the medical reports telling the doctors everything lack of treatment and being forced to return to work pain threshold and use of medication why his business folded medical/accounting expertise Dr. Dubé Failure to try to find alternative employment

(h) the Post 104 week test

(i) Summary regarding IRB Entitlement

The Quantum of Mr. Champaigne’s weekly IRB

(a) August 29, 2002 to June 15, 2003

(b) June 16 to July 28, 2003

(d) October 31, 2003 to January 16, 2004

(e) January 17 to August 21, 2004

(f) ongoing from August 22, 2004

(g) loss of profit

Medical Expenses

(a) Mr. De Angelis= May 9, 2003 treatment plan for an enhanced one-year membership at the YMCA

(b) Ms. Borosch’s March 26, 2003 treatment plan for massage therapy

Rehabilitation Expenses

(a) a rehabilitation worker/assistant to help locate and co-ordinate treatment as a result of injuries sustained on August 22, 2002

(b) $1,000 for a driver’s helper, Mr. Tyler Vincent, from August 30 to September 27, 2002

(d) $1,382.55 for replacement drivers Mr. Dan Paquin, Mr. Ron Sarazin and those provided by Transport Placement Services from August 23 to September 13, 2002

Housekeeping

Special Award

EXPENSES

ARBITRATION ORDER

80-81

EVIDENCE AND ANALYSIS:

Before dealing with the heart of this dispute, there is a preliminary issue to be addressed, namely, the status of Mr. Champaigne’s October 31, 2003 accident, and whether Mr. Champaigne is entitled to accident benefits from Co-operators as a result of that incident.

5. The October 31, 2003 accident

(a) Is Mr. Champaigne an insured person for the purposes of the Schedule with regard to the October 31, 2003 accident?

For the period October 31, 2003 to January 4, 2004, Mr. Champaigne seeks IRBs as a result of injuries sustained in both the August 22, 2002 and October 31, 2003 accidents. A preliminary issue is whether Mr. Champaigne is an insured person with Co-operators for the latter accident.

I find that Mr. Champaigne was not an insured person with Co-operators at the time of the October 31, 2003 accident.

There is no evidence before me that Mr. Champaigne was an insured person, as defined in the Schedule, at the time of the October 31, 2003 accident, in respect of a motor vehicle insurance policy issued by Co-operators. He was, in fact, insured with Kingsway General Insurance Company (Kingsway) under policy # 990075 at the time of that accident, as conceded in correspondence to Co-operators from the Applicant and his sister, Carolyn Champaigne, dated August 27, 2004. However, that is not the real issue in this case.

The Causation Argument

Mr. Champaigne argues that the October 2003 accident, in which he says a large bolt impaled his leg, occurred as a result of his ongoing symptoms of dizziness emanating from the August 2002 accident. Mr. Champaigne testified that he complained of dizziness on 47 occasions following the first accident to his massage therapist, Ms. D. Borosch (née Kawa), symptoms he alleges continued because Co-operators failed to pay the treatment and disability benefits claimed.

In support of what is really a causation argument, Mr. Champaigne relies on TTC Insurance Company limited and Correia (FSCO P00-00061, July 16, 2001) (cited in Monks v. ING Insurance Company, 2005 Can LII 31994, Ontario Superior Court of Justice), which held that:

New injuries clearly may be related to an impairment sustained in the accident. The arbitrator gave examples of cases in which someone fell down the stairs due to dizziness related to, or a knee weakened from, the effects of an accident and sustained new injuries. Those new injuries can be viewed as a direct consequence of the accident and a result of it. Likewise, if someone undergoes surgery for accident-related problems and, through no one's fault, suffers new impairment in the course of the operation, such consequences are directly traceable to the accident.

The Applicant relies on the statement in Monks that it is not that "the impairment must be directly caused by the accident, rather it is the accident giving rise to the impairment [that] must be directly caused by the use or operation of an automobile." Mr. Champaigne's claim against the Co-operators for the October 31, 2003 accident is not on the basis that he was their insured at the time of that accident, but rather that he was their insured at the time of the first accident, the injuries from which caused his subsequent accident and his subsequent impairments.

The Co-operators argues that as it did not insure Mr. Champaigne at the time of the October 31, 2003 accident and as his truck was then insured with Kingsway, Mr. Champaigne cannot claim benefits from Co-operators for new injuries which follow the subsequent accident, regardless of any alleged causative link to an earlier accident.

There is no disagreement that Mr. Champaigne was injured in the October 31, 2003 accident and that he was in the course of his employment at the time. The contemporaneous ambulance and Sudbury Regional Hospital records note that Mr. Champaigne's left leg slipped between a truck and a loading dock while unloading a delivery. Mr. M. Morin, who is the terminal manager at the Apex Sudbury division where Mr. Champaigne worked, notes in his Employer's Report of Injury to the WSIB (marked received the day after the accident) that in the course of handing bags to a receiver, Mr. Champaigne's left foot slipped. A November 6, 2003 Disability Certificate from Dr. J. Kusnierczyk states that Mr. Champaigne had slipped and injured his left thigh and knee.

None of these contemporaneous reports record that Mr. Champaigne fell, slipped or was injured as a result of a dizzy spell.

Mr. Champaigne's Worker's Report of Injury states that he fell when he experienced dizziness. That report, however, is dated January 26, 2004, almost three months after the October 31, 2003 accident. An earlier letter of December 30, 2003 from Mr. Champaigne and his sister, Ms. Carolyne Champaigne, some two months after the accident, sets out Mr. Champaigne's hypothesis that the accident "would appear to have been caused by a dizzy spell from the repeated bending and turning of his head to the left while unloading the skid." A December 3, 2003 note from Dr. C. Michlowski, D.C. appears to be the earliest mention of this theory. I have no evidence that Dr. Michlowski had first-hand knowledge of this accident and I find that he was merely repeating what Mr. Champaigne or someone on the Applicant's behalf had told him. As stated below, I have serious concerns as to the reliability of Mr. Champaigne's evidence.

The onus would be on Mr. Champaigne to prove that his injuries resulting from the first accident, more likely than not, caused the subsequent accidents. In his oral evidence, Mr. Champaigne also related his June 16, 2003 work-related back injury (for which he received WSIB benefits) to the August 22, 2002 accident. I am not persuaded that either accident was caused by injuries sustained in the August 22, 2002 accident. Specifically, based on the contemporaneous documentation, I am not persuaded that any injuries sustained in the August 2002 accident directly or indirectly caused the October 31, 2003 accident. I find that it is more likely than not that Mr. Champaigne and his sister, in the weeks following the October 31, 2003 accident, in the course of exploring their potential options, came to persuade themselves that the Co-operators was the appropriate party from whom to pursue compensation for loss of income resulting from the October 2003 accident.

However, I find that the clear intent of the Insurance Act and its regulations is to avoid such fault or causation disputes.

Disputes Between Insurers

When an insurer receives an application for accident benefits, it is free to argue that another insurer is obliged to pay benefits. The procedure is governed by Ontario Regulation 283/95, entitled "Disputes Between Insurers." Under that legislation, pending the resolution of any dispute, the insurer first receiving a completed application for benefits is responsible to pay benefits. Under that regulation, the first insurer also has notice requirements which run from the date that it receives a completed application for benefits. I have no evidence that the Co-operators ever put Kingsway on notice or that there is any dispute under this regulation.

Ontario Regulation 283/95, in my view, serves to ultimately protect insurers from improperly or mistakenly brought claims. It also prevents accident victims from falling between the cracks of warring insurers. It would defeat the intent of this no-fault legislative framework, and increase disputes and legal expenses, if first-party insurers of subsequent accidents could seek to avoid payment by alleging that an applicant's prior injuries (be it restricted cervical range of movement, dizziness, or some other condition) caused the subsequent accident and that one should look to the prior insurer for first-party compensation.

The Limitation Defence

What Co-operators does argue in this case, firstly, is a limitation defence. It submits that in February 2004 it handed the Applicant a blank application for accident benefits, although it has no copy of any covering letter accompanying that application. It asserts that Mr. Champaigne never returned a completed application, although, in response to the Insurer's November 4, 2003 letter, it did receive Dr. Kusnierczyk's completed OCF-3 disability form from the Applicant.

The Co-operators, relying on subsection 32(3) of the Schedule, submits that as Mr. Champaigne failed to submit an application for benefits within thirty days of receiving the forms, he is not entitled to any benefits resulting from the October 31, 2003 accident for that reason alone, pursuant to section 31 of the Schedule.

I do not agree. I find that the Co-operators had an obligation, under subsection 32(2) of the Schedule, to provide Mr. Champaigne with information to assist him in applying for benefits. I find that any application package should contain, in accordance with the consumer protection principles of Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, clear written notice of any adverse consequences upon which an insurer may rely should their insured fail to return the documents within a requisite period of time. I am not persuaded that this was done.

Further, following the "red line" principles of Smith, I am not persuaded that it should make any difference whether the insured person is an "experienced" claimant; the same minimum notice requirements apply to all.

Hence, I find that Mr. Champaigne's potential claim against the Co-operators for injuries sustained on October 31, 2003, allegedly resulting from injuries sustained in the earlier August 2002 accident, would not be defeated by any limitation defence.

(b) Is Co-operators not required to pay benefits as a result of the October 31, 2003 accident because of section 59 of the Schedule?

In any event, I find that the legislature, pursuant to section 59 of the Schedule, has specifically restricted any possible application of the Correia causation principle in this case. That provision provides that an insurer is not required to pay benefits under the Schedule where the insured person is entitled to receive benefits under any workers' compensation law or plan.

In her memo to file, Ms. D. Laframboise of the WSIB notes that she met with Mr. Champaigne on January 26, 2004, the Applicant's sister, Ms. Champaigne, joining them by telephone. Ms. Laframboise records that she advised them that the October 31, 2003 accident was an allowable claim and coverage was extended for the left leg, notwithstanding the Applicant's argument that this accident was caused by dizziness from the earlier accident. If it was medically proven that the cause of the accident was non-work related, cost relief would be granted to the employer.

Ms. Laframboise's subsequent March 11, 2004 memo to file states that Ms. Champaigne advised that her brother was not claiming WSIB benefits, that the only reason she came to the Board was because her insurer told her to do so. Ms. Champaigne agreed that no further action was to be taken unless the WSIB heard further from them.

At the hearing, both parties agreed that the WSIB ultimately paid for a November 10, 2003 treatment plan from Mr. M. De Angelis, a physiotherapist, in the amount of $3,750. Hence, Mr. Champaigne withdrew that claim from this arbitration. Ms. Lafrombroise notes in her November 18, 2003 entry that she had allowed a claim for medical treatment, which she confirms in her letter of November 20, 2003. That letter also confirms that Mr. Champaigne was still considering his options whether to claim loss of earnings benefits through the WSIB.

I am, thus, persuaded that Mr. Champaigne was entitled to receive and did receive benefits from the WSIB as a result of the October 31, 2003 accident. Subject to the subsection 59(2) exception, Mr. Champaigne is not entitled to benefits from this Insurer as a result of that accident.

Subsection 59(2) applies where an insured elects to bring an action referred to in section 30 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, so long as the election is not made primarily for the purpose of claiming benefits under the Schedule. Section 30 states that the section applies when a worker or a survivor of a deceased worker, in addition to WSIB benefits, is entitled to commence an action against a person in respect of the injury or disease.

Mr. Champaigne testified that no one else was at fault for the October 31, 2003 accident. No one had pushed him. No one else was careless. There was no oil or water or something else on the loading dock that may have caused the accident. There was nothing unusual about the loading dock. He stated that he had not started any action against anyone else for injuries arising from that accident.

Ms. Laframboise notes on November 18, 2003 that Mr. Champaigne had "gotten a lawyer, Guy Hurtubise to represent him awaiting report from Ministry of Labour + he may decide to sue the mall because of the dock." I have no evidence that Mr. Champaigne has pursued any such claim.

Mr. Champaigne has in this proceeding, however, advanced amongst other claims a claim against his first-party insurer, the Co-operators, for the loss of increased business profits he anticipated after these accidents, a claim one usually sees in tort cases.

Given the lack of any evidence of any claim being advanced by Mr. Champaigne outside this venue, the Applicant has failed to persuade me that he is entitled to take advantage of the subsection 59(2) exception. Rather, I am persuaded that Mr. Champaigne has elected not to proceed with a WSIB claim for weekly benefits primarily, if not exclusively, in order to claim IRBs and other no-fault benefits available under the Schedule against the Co-operators.

Hence, in accordance with section 59 of the Schedule, I find that Co-operators is not required to pay Mr. Champaigne any benefits which may flow from the October 31, 2003 accident.

(c) Did Mr. Champaigne suffer an impairment in an accident on October 31, 2003, as the term "accident" is defined in section 2 of the Schedule?

This question is moot as a result of my prior finding.

However, for completeness, I will succinctly state my finding that I am persuaded that Mr. Champaigne was involved in an accident on October 31, 2003, as that term is defined in the Schedule. I find that Mr. Champaigne injured himself by slipping between his truck and a loading dock. I am persuaded that Mr. Champaigne injured himself as a direct result of the use and operation of his truck, while removing cargo from his truck, an ordinary and well-known use to which a motor vehicle may be put.

2. Entitlement to Income Replacement Benefits

(a) the pre-104 week disability test

Mr. Champaigne claims IRB entitlement pursuant to subsection 4(1) of the Schedule. Under that provision, to be entitled to IRBs for the first 104 weeks of disability, one must have sustained an impairment as a result of an accident, and must suffer a substantial (that is, a sizeable) inability to perform the essential (that is, key) tasks of one's pre-accident employment.

(b) the essential tasks of Mr. Champaigne's pre-accident employment

I accept that at the time of the August 22, 2002 accident, Mr. Champaigne was a self-employed broker, hired by Apex Motor Express Ltd. ("Apex"). Mr. Champaigne owned and operated his own 24-foot tandem truck that he used to deliver freight to customers in the Sudbury area, making up to 35 to 40 stops a day, five days a week, from 6:00 or 6:30 a.m. to 4:00 or 4:30 p.m.

In addition to his driving duties (which I accept required frequent turning of his neck), Mr. Champaigne was required to make deliveries. This entailed the need to bend, push, pick up and carry items varying from carpets to slate. He had to jump off the rear of his truck. He might be required to drag items up flights of stairs or over snow banks.

The precise weights of the items involved in this work differed depending on whether one believed the testimony of Mr. Champaigne or that of Mr. J. Bonin, a kinesiologist retained by Co-operators, who performed a job site analysis. I accept that Mr. Champaigne's pre-accident employment was very physically demanding work in which he could be expected to push, load, unload, lift and carry extremely heavy items.

I accept the evidence of Mr. Andy Pellerin, a dock foreman at Apex, that Mr. Champaigne might have to lift up to 70 lbs., and occasionally more, and that the Applicant was a very hard worker. I further accept the evidence of Mr. Michael Morin, the terminal manager of the Sudbury Division of Apex who had worked with Mr. Champaigne since January 1997, that items of up to 200 lbs. would be transported by hand cart and that items of up to 3,000 lbs. transported by skid. I further accept his evidence that Mr. Champaigne was a go-getter, a very quick and above average worker. I also accept the evidence that Mr. Champaigne was paid according to the weight of his cargo. Therefore, the heavier the load, the greater his remuneration.

I find that this evidence accords with that of Ms. S. Cook, who conducted a Physical Demands Analysis of Mr. Champaigne's work, dated May 30, 2003, at the request of the Insurer. Ms. Cook notes the essential tasks of Mr. Champaigne's job as assisting in the loading, delivery and unloading of merchandise. I accept her characterization of this job as heavy. I accept her statement that there were always deadline pressures.

Ms. Cook confirms that the position required the ability to lift and carry, up to a third of the time, loads of up to 100 lbs., and sometimes greater weights using assistive devices. She also notes the requirement of pushing and pulling weights up to 2,500 lbs.

(c) the August 22, 2002 motor vehicle accident

Mr. Champaigne was injured in an intersection accident on Thursday, August 22, 2002. He saw his family doctor, Dr. M. Dubé, on August 26, 2002, complaining of left shoulder and arm and lower back pain. Two days later, there is a notation that his left eye was cloudy. A September 27, 2002 entry notes a complaint of dizziness.

The parties agree that Mr. Champaigne meets the IRB entitlement test, and is entitled to IRB benefits (less an appropriate deduction for post-accident income) from August 29, 2002 to June 16, 2003. Subsequent IRB entitlement is in dispute. Regarding such entitlement, the following medical evidence was presented.

(d) the Medical Evidence - the Applicant's treating doctors

Dr. M. Dubé

Dr. Dubé was Mr. Champaigne's family doctor at the time of and in the weeks following the August 2002 accident. An initial undated note from Dr. Dubé states that Mr. Champaigne should be fit to return to work on September 2, 2003. A subsequent undated note states that Mr. Champaigne needed help with lifting for the next two to four weeks, but was still fit to return to work on September 2, 2003. No explanation is provided as to the basis for these opinions.

Dr. Dubé provided a Disability Certificate dated October 23, 2002, in which he diagnosed the Applicant as having a contusion and headache. His opinion was that Mr. Champaigne could return to work or to modified work or hours. He was also of the view that Mr. Champaigne did not suffer from an impairment that substantially prevented him from performing his pre-accident housekeeping or home maintenance activities. No explanation or support for these opinions is provided. No assistance is given as to what modified work or hours would be appropriate, if such restrictions were indeed in order. I find Dr. Dubé's reports of little assistance.

Ms. D. Borosch (née Kawa)

Ms. Borosch is a massage therapist registered with the College of Massage Therapists of Ontario. Her November 27, 2002 report noted that Mr. Champaigne was doing better when he had help available, "but now that this help is no longer there and he has had to return to full work duty, he is regressing . . . If you consider what is required of him physically where [his] job is concerned it is quite obvious why he is having such a hard time recovering." Ms. Borosch also noted the visual disturbances Mr. Champaigne was experiencing which she felt warranted follow-up.

Ms. Borosch's October 12, 2004 clinical note states that she had treated Mr. Champaigne 58 times from September 2002 to December 2003. The Applicant complained of headaches, problems both focussing and sleeping, dizziness and nausea, neck pain, constant deep throbbing pain in left shoulder, right shoulder pain, stiffness through the whole back, and pain in his groin (from his prior hernia condition), with his left knee injury (from the October 31, 2003 accident) now causing him little problem.

In October 2004, Ms. Borosch found Mr. Champaigne in a much worse position than when last time seen in December 2003. He was quite vocal about his pain, moaning, groaning and crying out.

In her oral evidence, Ms. Borosch testified that it was out of her realm of expertise to provide a conclusion as to Mr. Champaigne's ability to work or manage his day-to-day activities. She also indicated that she did not know the Applicant's level of education, nor very much about the specifics of his employment background. I find Ms. Borosch's evidence limited to documenting Mr. Champaigne's complaints.

Dr. C. Michlowski

Dr. Michlowski is a chiropractor. Prior to the August 2002 accident, he saw Mr. Champaigne 47 times for spinal treatments between October 1999 and September 2001.

In a November 21, 2003 treatment plan, Dr. Michlowski advises that Mr. Champaigne had difficulty working due to neck and left shoulder pain. He does mention the Applicant's occasional pre-accident left shoulder dysfunction for three years prior to the accident. Mr. Champaigne's 47 pre-accident treatments are not mentioned. Dr. Michlowski further advises that with chiropractic treatment and massage therapy, Mr. Champaigne was able to work longer and harder with as little pain as possible. Dr. Michlowski does not mention that Mr. Champaigne had been off work for three weeks due to the October 31, 2003 accident.

Dr. Michlowski provided a letter, dated December 3, 2003, which states that while injured, Mr. Champaigne had been carrying on his occupation since August 22, 2002 and had not had an opportunity to recuperate. Dr. Michlowski was of the view that the Applicant's very intensive job was aggravating his patient's condition.

This, again, is incorrect, as Mr. Champaigne had been off work for several weeks following his June 2003 work accident, and had been continually off work since the October 2003 work accident. Dr. Michlowski should have been aware of this, given he was seeing Mr. Champaigne almost weekly (except for the months of July and August 2003, following the second accident, when the treatments were suspended). Dr. Michlowski mentions the last work accident not as a contributing disability factor but rather to reiterate the Applicant's argument that residual dizziness from the August 2002 accident had caused the most recent accident.

In his treatment plan dated January 26, 2004, Dr. Michlowski again advises that Mr. Champaigne had difficulties working, that he was often dizzy and in pain while working, that constant work aggravated Mr. Champaigne's condition and recommended time off work. There is no mention in the plan that Mr. Champaigne has now been off work for almost three months.

Dr. Michlowski's October 21, 2004 report states that it was still his professional opinion that Mr. Champaigne's injuries sustained in the August 2002 accident were sufficient to disable him from properly carrying on his occupation as a truck driver/delivery person and that his disability arose solely from that accident. Dr. Michlowski indicated that he had examined and treated Mr. Champaigne weekly since the 2002 accident and had seen his condition worsen while he continued working. He notes mentioning the October 2003 left knee injury only to show that the Applicant was not fit to do his job because of the risk of further injury to himself and others.

I find Dr. Michlowski to be extremely selective as to which facts to provide to the reader. Mr. Champaigne's pre-August 2002 complaints and post-August 2002 accidents are either downplayed or ignored. Notwithstanding other documented injuries (for which much more significant time was taken off work than the August 2002 accident), Dr. Michlowski ascribes to the August 22, 2002 accident sole responsibility for Mr. Champaigne's disability. He reiterates the Applicant's argument that the August 2002 accident was responsible for the October 2003 accident, without qualification. I find that Dr. Michlowski has assumed the mantle of advocate for Mr. Champaigne, and I give his opinions little weight.

Mr. M. De Angelis

Mr. De Angelis is a registered physiotherapist. He prepared a report dated November 12, 2004. Mr. De Angelis was of the view that Mr. Champaigne had sustained a WAD II injury. He was further of the view that spinal changes between an August 29, 2002 cervical spinal x-ray and a February 7, 2003 MRI were as "the result of the tremendous strain forces that his neck sustained during the MVA," confirmed by nerve conduction studies performed February 25, 2003.

Mr. De Angelis reported that Mr. Champaigne had indicated that his post-accident dizziness contributed to his falling at work on October 31, 2003. Mr. De Angelis felt that the Applicant might have avoided this injury had he been advised to refrain from working until his dizziness was eliminated. Mr. De Angelis opined that although the Applicant was working after the accident, he had to employ an assistant and take time off on occasion because of pain. Mr. De Angelis was of the view that Mr. Champaigne should not have been working because he was harming his cervical spine given the acute problem of traumatic disc degeneration, but needed to work to support himself.

In his oral testimony, Mr. De Angelis indicated that he was not aware that Mr. Champaigne had injured his back at work in June 2003, nor had Mr. Champaigne told him. Nor had he taken a detailed pre-August 2002 accident history. Mr. De Angelis agreed that Mr. Champaigne's attendance for chiropractic treatment for two years, prior to this accident, would be relevant to the Applicant's WAD II injuries. Mr. De Angelis also agreed on cross-examination that if the records showed that the Applicant was working four out of the five days a week and his business continued to make money post-accident, this would not represent a substantial inability to work.

Mr. De Angelis further agreed that an MRI and an x-ray are two completely different pieces of equipment, and that he was not licensed to read or diagnose either. Mr. De Angelis agreed that x-rays can miss degenerative changes. He agreed that Mr. Champaigne may have had degenerative changes before August 2002. Mr. De Angelis also agreed that degenerative disc disease that appears on an MRI could be the result of years of wear and tear through work, poor posture, or genetics.

I find Mr. De Angelis' opinions of little assistance. To a significant degree, they are based on incomplete information and on expertise that he does not possess. I accept the view of Dr. J. Cisa, an orthopaedic surgeon retained by the Insurer to conduct a paper review, that while Mr. De Angelis may provide considerable care and attention to his patients, in this case he had taken on the role of Mr. Champaigne's champion.

Dr. M. St. Martin

Dr. St. Martin is a general practitioner. He provided a Disability Certificate, received by the Insurer December 19, 2002, in which the doctor checked off the box in the form noting that the Applicant could return to work or to modified work or hours. Dr. St. Martin does not indicate what, if any modifications were required in Mr. Champaigne's work activities. Rather, he states that Mr. Champaigne had missed little time since the accident. In the certificate, Dr. St. Martin also checked off a box that housekeeping impairment was not applicable. The form certainly gives the impression that there is little wrong with Mr. Champaigne.

Notwithstanding his earlier certificate, Dr. St. Martin provided a note dated April 26, 2004 in which he states that Mr. Champaigne continues to be unable to perform his past duties and recommends a vocational rehabilitation assessment to determine what Mr. Champaigne can do for gainful employment.

Dr. St. Martin signed a further Disability Certificate dated August 24, 2004. This certificate is almost identical, word for word, to those of Mr. De Angelis (dated August 27, 2004) and Dr. Michlowski (dated July 26, 2004). All three reports state (notwithstanding the documented extensive pre-August 2002 history of chiropractic treatment provided by Dr. Michlowski, himself) that there was no pre-accident disease, condition or injury that affected Mr. Champaigne's ability to perform his employment activities.

Notwithstanding the accidents of June and October 2003, all three reports state that there was no post-accident disease, condition or injury unrelated to the August 2002 accident that could affect the Applicant's disability. All three reports state that Mr. Champaigne was not currently taking medication because of lack of funds, notwithstanding the evidence received in this hearing that such funding was available from welfare, but that Mr. Champaigne chose not to take medication so as not to mask his pain. Mr. Champaigne testified that he and another patient of Dr. St. Martin filled out the report (which the doctor went over), because Dr. St. Martin was very busy, there being a shortage of medical practitioners in Sudbury.

I find that these three reports were written not by the medical practitioners, but by Mr. Champaigne, assisted by his friends and/or advisors. I find that these reports reflect the Applicant's endeavours to advance his entitlement to benefits as a result of the August 2002 accident, according to his own perspective as to what the Schedule required.

Dr. St. Martin provided a further report dated April 15, 2005, in which he opines that Mr. Champaigne suffers a complete inability to engage in any occupation for which he is reasonably suited by occupation, training or experience. Dr. St. Martin bases his opinion on:

– Mr. Champaigne's subjective functional limitations and his subjective complaints of continuing pain, vertigo, nausea and dizziness. I set out below, at pages 35 to 53, my concerns regarding Mr. Champaigne's reliability as a narrator of facts;

– Mr. Champaigne's condition having progressively deteriorated. As noted below, prior to both the June and October 2003 work accidents, according to Mr. Champaigne's own record, he had returned to full hours of work;

– his unqualified acceptance of Mr. Champaigne's assertion that dizziness arising from the August 2002 accident had caused the October 2003 accident;

– a February 25, 2003 EMG report which "could" reflect chronic C5 radiculopathy, minor slowing in the ulnar nerve and carpal tunnel syndrome;

– a February 7, 2003 MRI which raised "suspicion" of C6 nerve root impingement;

– the findings of Mr. De Angelis, a physiotherapist, who identified rapid changes occurring to the cervical spine as a result of traumatic spondylosis which put abnormal strains on soft tissue structures. Mr. De Angelis conceded that he based his opinion in large part on his readings of x-ray and MRI results which were outside his area of expertise; and,

– findings of Dr. Nolan, neurologist, Dr. Ogundimu, neurosurgeon, and Dr. Lindsay, orthopaedic surgeon. I note below that these experts did not provide an opinion regarding disability.

My September 3, 2004 interim decision allowed the Applicant up to the maximum $1,500 available for a medical report to address his physical condition. Mr. Champaigne chose not to get a report from one of the several specialists (noted below) who have seen him or from an independent expert. Rather, I find that Mr. Champaigne chose to rely on practitioners who were prepared to become advocates for the Applicant and content to put their signature on reports prepared by the Applicant and his advisors.

In this group I include Dr. St. Martin. Dr. St. Martin does not mention Mr. Champaigne's prior medical condition. He does not mention the June 2003 accident. He does not mention the effect of the October 2003 accident. He does not explain how, notwithstanding the alleged worsening of Mr. Champaigne's condition, Mr. Champaigne's own documents show him returning not once, but twice to full hours of employment, albeit with continuing pain and limitations.

Dr. St. Martin does not explain how someone who, in his own view, missed little time from work in the months after the August 2002 accident and could return to his pre-accident work or some modification thereof (which would still involve heavy lifting and carrying) is now suffering a complete inability to engage in any type of employment for which he is reasonably suited by education, training or experience. I find the explanation to be medical-legal advocacy.

Dr. W. Nolan

Dr. Nolan is a neurologist. He provided consultation notes to Dr. St. Martin dated January 28 and March 4, 2003. Dr. Nolan's diagnosis was that Mr. Champaigne had sustained a minor head trauma which had possibly triggered headaches and vertigo, as well as sleep disturbance. An EMG study showed that Mr. Champaigne may have had some chronic impingement at C6.

The IRB issue in this proceeding deals with function, not diagnosis. Furthermore, there is a question of causation. Mr. Champaigne's prior chiropractic treatment is not mentioned in Dr. Nolan's notes. The latter do not address the question of disability, nor do they confirm that the August 2002 accident materially or otherwise contributed to any such disability. Further, the notes are written at a point in time when entitlement is agreed. Accordingly, the notes are of little, if any, assistance.

Dr. S.C. Cheung

Dr. Cheung is a neurologist. He provided an unsigned August 29, 2002 consultation note to Dr. Dubé. Mr. Champaigne was complaining of significant neck pain, as well as left shoulder pain and weakness, elbow pain and vague numbness and tingling going into his fingers. On examination, there was mildly restricting neck motion with complaints of pain at the end of the range of motion and full shoulder range of motion, but with reports of pain.

Dr. Cheung diagnosed a whiplash, soft tissue injury. He saw no evidence of plexus injury or entrapment neuropathy. He noted an August 29, 2002 EMG which showed a normal study of the left upper limb (with the qualification that the accident had occurred only seven days before).

Given that Dr. Cheung's report is provided at a point in time when entitlement is in dispute and, in any event, does not address disability, it is of little assistance.

Dr. F.A. Ogundimu

Dr. F.A. Ogundimu is a neurosurgeon. His April 16, 2003 diagnosis was that Mr. Champaigne had cervical degenerative disc disease, probably exacerbated as a result of the August 22, 2002 accident. He could find no evidence of any significant C6 radiculopathic problem. Dr. Ogundimu does not address disability.

Dr. C.S. Lindsay

Dr. Lindsay is an orthopaedic surgeon. His May 3, 2004 consultation note to Dr. St. Martin states that in spite of attempts to return to work, Mr. Champaigne was troubled with neck and left shoulder pain, dizziness, headaches and occasional knee pain. Mr. Champaigne rated his symptoms as ten out of ten in severity. The symptoms were aggravated by pulling and pushing; lifting, bending and driving were reported to be hazardous due to dizziness.

Dr. Lindsay was of the view that the MRI results supported potential C6-nerve root impingement. Mr. Champaigne's EMG and nerve conduction studies performed February 26, 2003 provided an incidental finding of left carpal tunnel syndrome with possible C5 nerve root compression and radiculopathy.

On examination, Mr. Champaigne appeared in good physical condition, with full cervical and shoulder range of motion. Mr. Champaigne's strength was noted as remarkably well preserved regarding abduction and rotation. Dr. Lindsay indicated that Mr. Champaigne's history and symptoms were somewhat difficult to delineate. He could not give any insight into the headache and dizziness complaints. He thought that Mr. Champaigne might have a C6 nerve root compression and might be a candidate for a C5-6 fusion, and referred him for a consultation with Dr. R. Rampersaud. He concluded that Mr. Champaigne seemed quite genuine in his frustration and desire to continue working. He did not think Mr. Champaigne was malingering and that there must be some anatomic reason for his persisting discomfort.

Dr. Lindsay's report is of little assistance regarding causation and disability.

Dr. A. Brooks-Hall

Dr. Brooks-Hall, of the Orthopaedic Office of the University Health Network in Toronto (and an associate of Dr. Rampersaud), provided Dr. Lindsay with a consultation note of December 7, 2004. Dr. Brooks-Hall noted the Applicant's constant neck and arm complaints, the applicable MRI, EMG and nerve conduction tests, and provided a diagnosis of chronic C5 and C6 radiculopathy.

Dr. Brooks-Hall did not support surgery, in part because of the view that the MRI findings were not significant enough to be causing the clinical symptoms. Dr. Brooks-Hall does not comment on disability. Further, the doctor does not appear to be aware either of the Applicant's pre-August 2002 complaints or his post August 2002 accidents.

Again, the Schedule provides compensation for loss of function, not for complaints of pain or for diagnoses. Dr. Brooks-Hall provides little assistance regarding the causation and disability questions before me.

Specialists seen regarding complaints of dizziness

Dr. D. Sirkka, an optometrist, in a consultation note to Dr. St. Martin, dated November 15, 2002, states that Mr. Champaigne's "[v]isual fields were normal and ocular health was unremarkable." An associate of Dr. Sirkka, Dr. J.E. Bell, who is also an optometrist, writes in a brief note of August 25, 2004 that Mr. Champaigne's ocular heath was unremarkable. Neither doctor comments on disability.

Dr. B. Robinson, an otolaryngologist (ear, nose and throat doctor) and doctor of head and neck surgery, provided a November 22, 2004 unsigned consultation note to Dr. St. Martin. She notes the Applicant's complaints of ongoing difficulties with his neck, persistent dizziness or vertigo and his balance since the August 2002 accident. She notes that the Applicant's audiogram was completely normal and that he had normal hearing. There was no change in his hearing or evidence of tinnitus (noise in the ears). Dr. Robinson recommended physiotherapy to address "benign positional vertigo." Dr. Robinson does not comment on disability.

Dr. G.S. Devan is an ophthalmic (pertaining to the eye) surgeon, who provided a November 22, 2004 unsigned consultation note to Dr. St. Martin. Dr. Devan's findings were that Mr. Champaigne's visual fields were normal, there was no evidence of any retinopathy (non-inflammatory disease of the retina), maculopathy (pathological condition of the macula retinae) or retinal tears. Dr. Devan indicated that while Mr. Champaigne showed significant photophobia during his examination, the doctor could not find any evidence of intraocular inflammation to account for this condition. Dr. Devan did not comment on disability.

I find that these reports do not support any disability regarding the Applicant's complaints of dizziness, nor do they support any causative link to the August 22, 2002 accident.

(e) Other Medical Evidence

CBI Physiotherapy and Rehabilitation Centre Disability DAC

Mr. Champaigne was seen in May 2003 at the CBI Physiotherapy and Rehabilitation Centre ("CBI") for a DAC (Designated Assessment Centre) disability assessment. The assessment team consisted of Dr. J. Finklestein, an orthopaedic surgeon, Dr. R. Veluri, a psychiatrist, Mr. S. Savage, a physiotherapist and Mr. S. Sherrington, a certified kinesiologist.

Dr. Veluri was of the view, from a psychiatric perspective, that Mr. Champaigne did not suffer a substantial inability to perform the essential tasks of his employment.

Dr. Finklestein's May 26, 2003 report opined that there was no objective reason why Mr. Champaigne could not continue with his activities and there was no limitation in his function in doing any job that he is capable of doing by virtue of his training, education or experience. Dr. Finklestein opined that "[Mr. Champaigne] will not be doing any harm to himself by carrying on with these activities." He was further of the view that the MRI and EMG nerve conduction studies suggested chronic denervation of the CR-6 level but no acute injury.

In his oral testimony, Dr. Finklestein testified that Mr. Champaigne's nerve conduction studies suggested long-standing changes at C5-6. He stated that if trauma were the cause of these changes, they would not appear diffusely through the spine. Dr. Finklestein testified that one cannot link (as done by Mr. De Angelis) changes between the August 2002 x-ray and the February 2003 MRI, as they are different kinds of studies which reveal different things. I accept this evidence.

Dr. Finklestein also testified that chronic pain, when related to non-organic or non-physical problems, would be outside his area of expertise. He further stated that he looks for an objective problem in a person's body that would be potentially harmful. While seeing his role as ruling out an organic, anatomical basis of a claimant's pain, he is not saying that a person does not actually feel what they say they are feeling.

Dr. Finklestein testified that he considered a restriction to be something that will cause harm to a patient, that one is restricted from doing something because of a physical abnormality that would make one's condition worse or would injure the person. From a neurological and an orthopaedic perspective regarding Mr. Champaigne, he found no abnormality that would suggest there was a limitation. While Dr. Finklestein testified that one episode of a car accident is not going to create the wear and tear changes seen on the MRI scan, some trauma can exacerbate the situation.

Messrs. Savage and Sherrington performed a Functional Abilities Evaluation ("FAE") on May 14 and 15, 2003. They opined that Mr. Champaigne did not demonstrate the ability to perform the lifting, carrying pushing and pulling demands of his job, but nonetheless, was performing those tasks at work. Regarding consistency of effort, the assessors noted that Mr. Champaigne demonstrated some biomechanical changes normally associated with someone providing effort, but not maximal signs of effort. The assessors concluded that based on the FAE, Mr. Champaigne did not demonstrate the maximal job demands associated with his position as a Delivery Person.

Nonetheless, it was the unanimous opinion of the CBI assessment team that there was no significant physical or psychological impairment that would stop Mr. Champaigne from performing his pre-accident occupation with regular duties and regular hours. Therefore, they concluded that Mr. Champaigne did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

Based on Quattrocchi and State Farm Mutual Automobile Insurance Company (FSCO A-006854, September 29, 1997) I find Dr. Finklestein's opinion that disability is limited to objective, organic, anatomical impairment where function would cause harm, injure or worsen an insured's condition, narrower than and inconsistent with Commission case law. I find that the DAC assessment team did not pay appropriate attention to their own FAE findings that the Applicant did not meet the essential tasks of his pre-accident employment.

Mr. J. Bonin

Mr. Bonin is a kinesiologist, who prepared a job site analysis at the request of the Insurer, dated March 13, 2003. In addition to reviewing Mr. Champaigne's job tasks, Mr. Bonin opined, in the passive tense so it is unclear who did the observing, that the Applicant was observed to complete all of the essential tasks of his regular duties without any apparent limitation. He did not believe that Mr. Champaigne's job duties needed to be modified, although he recommended pacing. Mr. Bonin did note, however, that Mr. Champaigne complained of increased pain and dizziness during the assessment. I find, notwithstanding the comments of Mr. Bonin, that pain and dizziness are impairments and that modified work at that juncture was warranted. Indeed the Insurer, which concedes disability up to June 16, 2003 (which includes the period of Mr. Bonin's assessment), also implicitly concedes that Mr. Bonin's report is of little assistance.

the Regional Evaluation Centre Medical/Rehabilitation DAC

The Regional Evaluation Centre ("Regional") prepared a September 2003 report addressing the treatment plans of Mr. De Angelis and Dr. Michlowski. The assessment team consisted of Dr. A.D. Graham, a certified specialist in Physical Medicine and Rehabilitation, and Ms. T. Connors, a physiotherapist.

Ms. Connors indicated that the Applicant was working full-time, but he felt that he was unable to do anything after work because of pain. Dr. Graham diagnosed a left acromioclavicular joint strain probably with underlying degenerative changes and mechanical neck pain. Dr. Graham was of the view that Mr. Champaigne's cervical range of movement was quite good and was at full physiological range of movement for his age.

Work Able Centres Ltd. Medical/Rehabilitation DAC

This February 2004 DAC was constituted to consider certain treatment plans. Its assessment team consisted of Dr. S.M. Baryshnik, a neurologist, and Ms. K. Hunter, a physiotherapist. The team was to include a chiropractic examination with Dr. Bereznick. Dr. Bereznick declined to continue his assessment when the Applicant's sister, Ms. Champaigne, wished to sit in.

Dr. Baryshnik opined that he found no neurologic abnormalities or evidence of specific nerve root lesion. While there was some question whether Mr. Champaigne had a compression of a cervical nerve root, he could discern no symptoms to support that thought.

On examination, Ms. Hunter found excellent shoulder range of motion, neck range of motion within normal range for degenerative changes and no atrophy or loss of muscle bulk. Having found no impairments and an absence of objective findings, Ms. Hunter was of the view that no further treatment, be it physiotherapy, chiropractic or massage therapy, would be justified. Ms. Hunter could not account for Mr. Champaigne's dizziness.

Neither Regional nor Work Able addressed work disability, and accordingly, their reports are of limited assistance regarding IRB entitlement.

Dr. J. Cisa

Dr. J. Cisa is an orthopaedic surgeon. His March 3, 2005 paper review was prepared at the Insurer's request. Dr. Cisa opined that it was clear that Mr. Champaigne would have sustained a cervical whiplash injury in the August 2002 accident. However, Dr. Cisa was of the view that there was degenerative disc disease in Mr. Champaigne's cervical spine pre-dating this accident and that the most common etiology of degenerative disease is aging, the wear and tear on the joints from everyday activities.

Regarding possible nerve impingement, Dr. Cisa deferred to Dr. Ogundimu (neurosurgeon), who found no evidence of any significant C6 radiculopathic problem and to Dr. Baryshnik (neurologist) who failed to discern any findings or symptoms to support compression of a cervical nerve root.

the South Muskoka Memorial Hospital Medical and Rehabilitation DAC

The South Muskoka Memorial Hospital Medical and Rehabilitation DAC (the "South Muskoka DAC") prepared an August 8, 2005 report addressing treatment plans of Dr. Michlowski and Ms. Borosch. The DAC team consisted of Dr. K. Dunlop, D.C., and Ms. G. Cherry, a massage therapist. The DAC supported six months of decreasing chiropractic treatment in conjunction with a six-month monitored gym program.

Mr. Champaigne's continuing symptoms were left-sided neck pain, sporadic vertigo, twice-weekly headaches and emotional sensitivity, nightmares and depression. Dr. Dunlop and Ms. Cherry opined that:

According to Mr. Champaigne's extensive file, he suffered multiple injuries in the MVA of August 2002. Most of his injuries have resolved, but he continues to suffer the effects of the WAD II. Despite 2 years of treatment, several specialist assessments, CT and MRI exams, no one has been able to explain the cause of his ongoing symptoms. Both assessors feel the absence of a proper rehab strengthening program may be the reason this has now become a chronic problem. Therefore, they feel further treatment progress should incorporate a strengthening component.

Given the limitations (and the conflicts) in the medical evidence, and the degree to which it relies on information provided by Mr. Champaigne, it is necessary to consider, in some detail, the Applicant's credibility.

(f) Credibility Evidence in Favour of Mr. Champaigne

It is not disputed that Mr. Champaigne, who was born in 1963, had worked some 24 years as a broker or a truck driver. There is also no dispute that he was a hard working, above average employee.

Notwithstanding that Mr. Champaigne had significant chiropractic treatment prior to the August 2002 accident, there is no evidence of time off work before this accident for these problems. In addition, there was no evidence that Mr. Champaigne had unduly prolonged any prior injuries, including his broken thumb and his hernia operation.

In addition, credit must be given to Mr. Champaigne in his endeavours after the August 2002 accident to return to work, with work assistants and replacements, and with supporting medical care.

I also find that Ms. Borosch has carefully documented Mr. Champaigne's contemporaneous complaints, including continuing neck pain after the 2002 accident persisting through to the completion of this period of treatment at the end of 2003. During this duration, there were continuing low back complaints up to the June 2003 accident. By October 2003, those complaints appeared to be much more intermittent, leading credence to his neck being Mr. Champaigne's major area of concern.

(g) Credibility Concerns

The definitive test in assessing the credibility of an interested witness is set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses.

[emphasis added]

I note the following as examples of where Mr. Champaigne's evidence was not in "harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions."

pre-existing history

Given (a) that Mr. Champaigne attended 47 times with Dr. Michlowski in a two-year period before this accident, namely between October 1999 to September 2001, (b) that each of Dr. Michlowski's contemporaneous pre-accident entries notes attention to the neck as well as the mid and low back, (c) Mr. Champaigne's self-professed high pain threshold, and (d) the Applicant's testimony that he paid for Dr. Michlowski's numerous treatments out of his own pocket as it was not covered by any health plan or WSIB, I am persuaded that Mr. Champaigne had a pre-accident spinal condition, including his neck, of some significance.

I am further persuaded that Mr. Champaigne deliberately endeavoured, both in his testimony at this hearing and in his narratives to medical practitioners, to downplay his prior spinal complaints.

On February 26, 2004, Mr. Champaigne was seen by Ms. Hunter, a physiotherapist with the Work Able DAC. In her report, Ms. Hunter notes that prior to the August 2002 accident, Mr. Champaigne was having occasional neck and low back pain, and had received some chiropractic treatment, but that had ended more than two years before the accident. On cross-examination, Mr. Champaigne agreed with that statement which was, in fact, not correct.

On cross-examination, Mr. Champaigne testified seeing Dr. Michlowski "off and on" before the August 2002 accident for his low back. He characterized these visits as "part of the regular maintenance treatment, they go over your whole body." Mr. Champaigne disagreed that Dr. Michlowski was routinely treating his cervical and thoracic spine, suggesting the problem might be in the OHIP codes used. He maintained that "I never went to him for my neck ever."

Dr. Michlowski, however, in his January 4, 2004 treatment plan states that prior to the "accident" (which I take him to mean the August 22, 2002 accident) he was treating Mr. Champaigne's "prior neck and lower back facet joint dysfunction," but had not seen the Applicant prior to the "accident" for one year. I also note that Dr. Michlowski, in an earlier treatment plan of November 21, 2003, refers to occasional left shoulder dysfunction for three years prior to the accident, which I again take also to mean the August 22, 2002 motor vehicle accident.

Prior to the August 22, 2002 accident, Mr. Champaigne's family doctor was Dr. M. Dubé. Dr. Dubé's clinical entries of January 25, 2000 note complaints of left shoulder pain for two months, as well as job stress and marked depression. The doctor's entry the following month states that Mr. Champaigne injured himself at work pulling a 500 pound plastic sheet. His March 10, 2000 entry suggests trying Naproxen for the still sore left shoulder. Mr. Champaigne testified he had pulled a muscle in his upper back or shoulder area, but after a month it was not an issue anymore. He denied ever taking Naproxen or complaining of work stress.

the August 22, 2002 accident and complaints in the following months

I find that Mr. Champaigne's delay in seeking treatment immediately after the August 22, 2002 accident and the absence early on of notation of neck complaints, calls into question to some extent the seriousness of Mr. Champaigne's neck problems immediately following that accident.

The August 22, 2002 accident took place on a Thursday. An ambulance was not called. Mr. Champaigne did not go to the hospital. His first medical attendance was the following Monday with Dr. Dubé.

Dr. Dubé's notes for that visit record left shoulder, left arm and lower back complaints. His Disability Certificate dated October 8, 2002 provides a primary diagnosis of contusion and a secondary diagnosis of headache. There is no mention of specific neck complaints, which the Applicant presents as a major reason for his continued disability. Mr. Champaigne testified that he was, nonetheless, complaining of neck pain. He offered as an explanation for Dr. Dubé's omission that "[m]ost GPs have no knowledge of soft tissue damage" and that both Dr. Dubé and Dr. St. Martin both fall into that category.

time off work and replacement labour August 22, 2002 to the June 16, 2003 accident

I find that Mr. Champaigne, in his oral evidence, endeavoured to deny any improvement in his condition following the August 22, 2002 accident and exaggerated the extent of the work assistance which he obtained, apparently in support of his main theory of his case, that his continued working after the accident intensified his pain and disability.

Mr. Champaigne testified that before the August 2002 accident, he worked five or six days a week. He further testified to missing only five or six days of work following this accident. Upon returning to work, he took Fridays off for physiotherapy, chiropractor and other rehabilitation treatment. He, therefore, hired intermittent replacement labour following the accident, usually on Fridays. He also hired one worker, Tyler Vincent (who never worked in the absence of Mr. Champaigne), to assist him four days a week for twelve weeks. After that, Mr. Champaigne largely worked alone in his truck, four days a week.

Dr. Dubé's Disability Certificate of October 8, 2002 states that Mr. Champaigne could return to work or to modified work or hours. He further opined that the Applicant did not suffer an impairment that substantially prevented him from performing his pre-accident housekeeping and/or home maintenance activities. Dr. St. Martin's November 21, 2002 Disability Certificate concurred with Dr. Dubé, adding that Mr. Champaigne "has since injury missed little time." Regarding housekeeping, he ticked off the "not applicable" selection.

In cross-examination, Mr. Champaigne tried to avoid answering whether he disagreed with Dr. St. Martin's opinion regarding his post-accident work. He finally agreed that he missed little time following the accident and further agreed that Dr. St. Martin never told him to stop working.

Mr. Champaigne also agreed that Dr. St. Martin did not suggest that he should not or could not do housekeeping work and further agreed that in November 2002, Dr. St. Martin did not really suggest any restrictions that would prevent him from carrying on with his normal routine

In response to Mr. De Angelis' January 23, 2003 report that his progress had been very good, notwithstanding continued left shoulder pain and dysfunction aggravated by repetitive or heavy lifting, Mr. Champaigne disagreed that he had been improving. As to Mr. De Angelis' comment that although his occupation involved heavy lifting, "this does not mean that he cannot continue with his occupation, but he will require therapy and exercise to manage the pain and dysfunction," Mr. Champaigne, responded, "[w]ell, that's his opinion."

Regarding a November 7, 2002 notation of his treating chiropractor, Dr. Michlowski, that the Applicant was much better that week and that physiotherapy helped his dizziness, Mr. Champaigne conceded only that he "might have been better than the day before."

Mr. Champaigne conceded, based on the business records he filed for a prior work-related WSIB hernia injury, that he was averaging, before the August 2002 accident, about $1,175 a week gross before deductions between August 31 and November 16, 2001. I accept the evidence of Mr. Morin, the Sudbury terminal manager of Apex, that Mr. Champaigne's pay is directly related to what he delivers.

In cross-examination, it was pointed out to Mr. Champaigne that within three weeks of the August 22, 2002 accident, he was generally grossing more than $1,175 a week (for 14 of the 17 weeks between the accident and Christmas, he grossed more than $1,050). Mr. Champaigne's response was that there was an increase at the Apex terminal of 27%, but that his gross did not go up accordingly. This evidence was presumably meant to support Mr. Champaigne's argument of loss of business opportunity as a result of the accident. However, the answer does not detract from the evidence that Mr. Champaigne was generally grossing as much, and therefore delivering as much, in the months following the accident as he was prior to the August accident.

When he saw Dr. Finklestein in May 2003, Mr. Champaigne told him that he felt the best he had for a long time because has not worked very often over the last two weeks. However, the Applicant conceded that he earned $995.75 gross the week of the visit and the prior weeks had earned approximately $1,700 and $1,400 (which was greater than his pre-accident average).

Mr. Champaigne agreed his income is based on the amount of weight he moves. I am persuaded that Mr. Champaigne was misrepresenting his work situation in an endeavour to persuade Dr. Finklestein that his condition was worse than what might appear on examination.

Mr. Champaigne testified that he had replacement drivers nearly every week before the June 2003 accident. Mr. Buchowski, an accountant retained by Mr. Champaigne, notes in Exhibit 17, Tab 1, that there were three weeks in late 2002 and 17 of the 24 weeks in 2003 until the June 2003 accident where there were no payments for replacement drivers or temporary help.

Mr. Champaigne's calendar sheets show that he did not have any replacement workers in the first two weeks of June 2003, immediately prior to his work accident. Mr. Champaigne agreed that Dr. Veluri's May 2003 statement was "roughly" correct that the Applicant was, at that time, working five days a week, from 6 a.m. to 4:30 p.m.

the June 16, 2003 work accident

Mr. Champaigne was injured in a June 16, 2003 work accident, pulling a muscle in his back. During those six weeks, he was off work completely, hiring replacement workers five days a week. During this period, he also received WSIB benefits.

Mr. Champaigne testified that the reason he hurt his back in the June 2003 accident was that he was trying not to use his left shoulder and neck. Mr. Champaigne was unsure whether he was claiming against Co-operators for the six weeks he was off work following that accident. He testified that he did not believe that he should have been on workers' compensation, that he believed this accident was related to the August 2002 accident.

I find that this is a further example of Mr. Champaigne's endeavours to relate all of his injuries to the August 2002 accident, and to exaggerate the consequences of that accident.

replacement labour prior to the October 31, 2003 accident

Mr. Champaigne claims significant, ongoing pain from the August 22, 2002 accident and, thus, claimed that prior to the October 31, 2003 accident, he was still using replacement drivers at least once a week. When asked whether he agreed that his own calendar (which hand recorded the hiring of replacement labour) showed he had not used any replacement labour in the two or three weeks before the October 2003 accident, Mr. Champaigne responded: "Not necessarily, but yeah."

There was, in fact, no entry for replacement labour in the four weeks before the October 31, 2003 accident.

Mr. Champaigne explained he was not hiring replacement labour because "I'd already lost so much money that I couldn't afford to do it anymore." Nonetheless, once he hurt himself in the October 2003 accident, he immediately started hiring replacement labour five days a week, although he did not pursue the weekly benefits he was entitled to receive from the WSIB, benefits he had received following the June 2003 work accident.

Given his actions after the October 2003 accident, I am not persuaded that Mr. Champaigne's explanation as to why he was not hiring replacement labour prior to that date is in harmony with what would be a reasonable probability in those circumstances. I am persuaded that Mr. Champaigne did not hire replacement labour in the weeks prior to the October 31, 2003 accident because his physical condition had improved, albeit I am persuaded that he was still in some measure of significant discomfort, especially regarding the heavier and more demanding physical tasks of his employment.

complaints of dizziness and continuing to drive

Mr. Champaigne disagreed that he hired replacement labour after October 31, 2003 specifically because of that accident. Mr. Champaigne testified that he suffers from bouts of dizziness when he drives and that he is a danger on the road. He specifically noted the danger he poses to children being bused to school. He further testified regarding the October 2003 accident that "at that point my doctors decided that I was a danger to other people on the road."

When asked whether any of his doctors had pulled his driver's licence, Mr. Champaigne responded: "It's hard to get them to do that at all." When asked if he had ever surrendered his licence, Mr. Champaigne stated that "I offered it," but that you need a doctor to pull your licence. Mr. Champaigne testified that he told each of his doctors that he should not be driving and that they should pull his driver's licence, but no one listened to him or reported him to the Ministry of Transportation. Mr. Champaigne stated that, in any event, having "talked to people," he was of the view that it is almost impossible to get the Ministry of Transport to suspend your licence.

Mr. Champaigne testified that although he does not think that he should be driving and agreed that he could have surrendered his licence, he still has a driver's licence, pays his car insurance and continues to drive. He agreed that Dr. Robinson, an ENT specialist, was not able to find anything significant on testing and that Dr. Cheung, a neurologist, indicated his EMG was clean and that everything was normal. Dr. Lindsay, an orthopaedic surgeon, stated in his May 2004 report, that he could give no insight into Mr. Champaigne's persistent headaches and dizziness.

Given his continuing to drive notwithstanding his claims that he poses a danger to the community, I find that Mr. Champaigne has exaggerated his complaints of dizziness.

dizziness causing the October 31, 2003 accident

I find that Mr. Champaigne decided not to advance claims, specifically for weekly loss of income, against either WSIB or Kingsway, in order to augment his August 2002 claim against Co-operators. I find that this decision provided an incentive for him to exaggerate his complaints which he alleged arose from that accident, specifically his complaints of dizziness, and to downplay the work aspect of his October 31, 2003 accident.

Mr. Champaigne submits that his October 31, 2003 work accident was caused by a bout of dizziness related to his August 2002 accident. As noted above, none of the contemporaneous reports of the October 2003 accident note that Mr. Champaigne fell, slipped or was injured as a result of a dizzy spell. In addition, the medical link of the alleged complaints of dizziness and the August 2002 accident is tenuous.

Although he agreed his truck was insured with Kingsway as of October 31, 2003, when asked why he did not apply to them for accident benefits, he answered: "Why would I?" When asked whether he was obliged to go to WSIB as a result of that accident, Mr. Champaigne responded, "No." "I believe I was hurt because of the original accident." When asked whether there was any reason why he would not be entitled to claim benefits from the WSIB when injured at work, he responded: "I couldn't tell you."

A January 26, 2004 WSIB memo states that Mr. Champaigne was advised that the October 2003 accident was an allowable claim and coverage was extended for the left leg. When asked whether WSIB had agreed to pay for Mr. De Angelis' November 2003 treatment plan, Mr. Champaigne testified that he did not think that they paid. When reminded that it was agreed at the hearing that this issue had been dropped, Mr. Champaigne said he had no idea. Mr. Champaigne's explanation for gaps in his understanding was that "I'm just trying to get better."

filling out the medical reports

As noted above, Dr. St. Martin signed a Disability Certificate dated August 24, 2004. Mr. Champaigne testified that he and another patient of Dr. St. Martin filled out this form. He stated that he did so because Dr. St. Martin was very busy, as there are 35,000 people in Sudbury who do not have family doctors. Disability forms dated August 27, 2004 from Mr. De Angelis, and July 26, 2004 from Dr. Michlowski, follow almost word for word the August 24, 2004 disability form of Dr. St. Martin.

I am persuaded that in filling out the disability forms, rather than endeavouring to alleviate the burdens of medical practitioners in Northern Ontario, Mr. Champaigne was ensuring that he would not repeat the situation of a doctor preparing a disability form with which he did not agree.

telling the doctors everything

Mr. Champaigne testified that he is always truthful with doctors, that "part of the thing that people believe me is because everything I've ever told them has been true."

Mr. Champaigne saw Dr. Lindsay, an orthopaedic surgeon. In his consultation note of May 3, 2004, Dr. Lindsay states that other than the August 22, 2002 car accident, Mr. Champaigne could "recall no other significant injury even in the remote past."

Dr. Lindsay had failed to note Mr. Champaigne's pre August 2002 hernia surgery, his broken thumb, both of his wrists being broken in 1991, as well as his June 2003 accident wherein he was off work for six weeks. Initially, on cross-examination, Mr. Champaigne stated that the key word was "significant," and that these other injuries were not significant. He then changed his evidence and said that he had told Dr. Lindsay about all these other injuries.

I do not believe this evidence. I believe that Mr. Champainge told Dr. Lindsay what he thought would assist his claim for compensation arising from the August 22, 2002 car accident.

There is a pattern of selective information being given by Mr. Champaigne. I have noted that disability forms were completed on August 27, 2004 by Mr. De Angelis, on July 26, 2004 by Dr. Michlowski, and on August 24, 2004 by Dr. St. Martin. In these forms there is a question whether since the accident, the Applicant had developed any condition or injury not related to the August 22, 2002 accident that could affect his disability.

Notwithstanding the June 16, 2003 and October 31, 2003 accidents, on all three forms, the entry "no" is ticked off. Dr. Michlowski's form leaves blank the question whether he treated the Applicant for any similar condition before the August 22, 2002 accident, notwithstanding the form notes neck trauma, soft tissue damage and musculoskeletal injury resulting from the August 2002 accident, and notwithstanding that Dr. Michlowski saw Mr. Champaigne 47 times between October 1999 and September 2001 for spinal treatment.

lack of treatment and being forced to return to work

Mr. Champaigne testified that initially after the August 22, 2002 accident, when he was working less, he started to improve. Mr. Champaigne argues that because he was forced to work, he never healed and that is why he continues to have pain. He also submits that he has failed to heal because Co-operators has failed to allow him to obtain proper medical treatment.

However, Mr. Champaigne stayed off work for six weeks after the June 2003 accident. While his back improved, the absence did not allegedly improve his neck. Mr. Champaigne has been off work since October 31, 2003. That prolonged absence has, if anything, worsened his condition.

Since the August 2002 accident, Mr. Champaigne has seen several general practitioners (Dr. Dubé, Dr. St. Martin, Dr. Kusnierczyk). He has received extensive chiropractic treatment from Dr. Michlowski (65 adjustments between September 2002 and a February 2004 DAC assessment). He has received extensive physiotherapy treatment from Mr. De Angelis. He has received extensive massage therapy from Ms. Borosch (53 visits from September 2002 to December 2003).

He has also seen two neurologists, Drs. Nolan and Cheung, and a neurosurgeon, Dr. Ogundimu. He has seen two orthopaedic surgeons, Dr. Lindsay and Dr. Brooks-Hall of Dr. Rampersaud's office. He has seen two optometrists, Drs. Sirkka and Bell, an otolaryngologist, Dr. Robinson, and an ophthalmic surgeon, Dr. Devan. These treating and assessing medical practitioners do not include the numerous DAC medical assessors who have seen the Applicant.

Notwithstanding this treatment, the extensiveness of which is in effect denied by the Applicant, his medical condition has, if anything, allegedly worsened. I am unable to say whether Mr. Champaigne's present stated deterioration is a product of his early return to work, disability focus and/or exaggeration.

pain threshold and use of medication

Mr. Champaigne's evidence in this area was an example of exaggeration and inconsistency in his testimony, and his predilection to highlight the August 22, 2002 accident as the source of his ongoing problems.

Mr. Champaigne testified as to extremely high pain threshold, as evidenced by his being able to withstand his leg being impaled in the October 31, 2003 accident.

However, when it came to his injuries sustained in the August 22, 2002 accident, the Applicant testified that when seeing Ms. Hunter, the DAC physiotherapist, there was a part of the examination that all she had to do was touch him and he would jump and scream. When examined by a Dr. P.F. O'Donohoe, Mr. Champaigne testified that "I screamed loud enough that he said I was hurt."

Mr. Champaigne, however, testified that he was not taking any pain medication and had probably not taken any for a year. He is on social assistance, which he says pays for only some medication. However, he testified that he does not take medication because he does not want to be a "junkie." He further testified that although he is in constant pain: "I don't want to mask my pain."

Mr. Champaigne testified that notwithstanding what he was told by Dr. Finklestein, a DAC orthopaedic surgeon, and Dr. Baryshnik, a DAC neurologist, he believes that if he masks the pain, "I know for a fact that I could hurt myself and I did hurt myself." When asked if he was told that he could hurt himself more, Mr. Champaigne answered: "No, I just know."

why his business folded

Mr. Champaigne testified that he never went back to work after the October 31, 2003 accident, and that his business closed around January 16, 2004. Ms. Hunter states in her March 4, 2004 DAC report that Mr. Champaigne stated that he was not working due to injuries sustained in the car accident and his leg injury at work. Mr. Champaigne, however, testified that he never said anything about his leg, that his leg was fine by that time and that all of his injuries sustained in the subsequent accident had healed.

Mr. Champaigne's evidence was that his business failed because of pain resulting from the August 2002 accident and because he was not receiving any benefits from Co-operators, such that he could not afford to keep the business, let alone pay for the drivers. In 2001 (the full calendar year before the first accident), Mr. Champaigne had what he described at one point in his testimony as non-significant hernia problems (albeit, which required surgery). His income tax return for that year shows gross business income of $59,229.47 and net business income of $24,751.75. In 2003, notwithstanding a work injury in June for which he was off work for six weeks and a further work injury in October, for which he was off work the rest of the year, Mr. Champaigne's business still managed to gross $65,247.39 and net $26,290.87.

These documents show that in 2003, when not otherwise disabled because of non-related work injuries, Mr. Champaigne was able to earn significantly more than he was earning before the August 2002 accident.

I find it logical to presume that a major reason why his business failed was that Mr. Champaigne failed to apply for WSIB benefits to which he was entitled, and that because of that failure, he did not have the resources to continue his business while recuperating from a serious work accident.

medical/accounting expertise

Notwithstanding the many medical practitioners he has seen, Mr. Champaigne submits that he has been unable to find qualified treating doctors. While there may be a shortage of doctors in Northern Ontario, I am persuaded that Mr. Champaigne's difficulty in obtaining competent expert assistance stems significantly in his difficulty in finding practitioners who agree with everything he tells them.

Mr. Champaigne testified that after leaving Dr. Dubé, he was turned down by one doctor because he "had an insurance claim. The doctor told me outright that they could service thirty-five normal, healthy people opposed to helping me." When he saw Dr. O'Donohoe at a walk-in clinic and advised that his injuries were either work or auto accident related, the doctor went "literally screaming" from the office, saying that he wanted nothing to do with the matter.

My interim decision, dated September 3, 2004, ordered, amongst other things, that the Insurer was to pay up to the maximum $1,500 allowed for an expert report to address the issue of IRB quantum, and a further $1,500 for an expert report to address Mr. Champaigne's physical condition, such monies to be paid directly to the experts.

By letter dated October 24, 2004, Mr. M. Buchowski, a certified management accountant, provided a one-page schedule of business expenses for the period August 30 to December 27, 2002. Mr. Buchowski wrote that "I have accepted this engagement on a pro bono basis, since I cannot be compensated for this work." Mr. Buchowski's report did not address the income issues in dispute in this hearing. Rather, the Applicant and his assistants endeavoured to advance, what might be described as an evolving case, regarding the IRB quantum claim.

Rather than provide a medico-legal report with some semblance of independence or neutrality, the Applicant provided three almost identical disability forms which I find he wrote, with assistance.

At the arbitration hearing, in accordance with Rule 42.4 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003), I limited the expert witnesses to two apiece. In my interim decision of September 3, 2004, I ordered the Insurer to pay the summons to witness and conduct money for the Applicant's experts.

Notwithstanding the broad range of experts he has seen, Mr. Champaigne chose to call Mr. De Angelis, a physiotherapist, and Ms. Borosch, a massage therapist, as witnesses. Ms. Borosch's testimony was very sympathetic to Mr. Champaigne; nonetheless, she testified that it was out of her realm of expertise to opine as to Mr. Champaigne's ability to work, the key issue in dispute. Mr. De Angelis provided opinion evidence significantly outside his area of expertise.

Dr. Dubé

I find Mr. Champaigne's evidence regarding Dr. Dubé highlighted a tendency to exaggerate and an endeavour to orchestrate the evidence, and to denigrate that which he could not control.

Dr. Dubé was Mr. Champaigne's family doctor at the time of the August 22, 2002 accident. Dr. Dubé saw Mr. Champaigne several times in the months following this accident.

Mr. Champaigne testified that Dr. Dubé was not too bad at first, but he allegedly changed after Dr. Dubé had a telephone conversation with the Insurer.

Dr. Dubé signed a Disability Certificate, date stamped October 23, 2002. On the form, Dr. Dubé checked off, without comment, that Mr. Champaigne could return to work or to modified work or hours. Given that the Applicant had long returned to modified hours of work, there does not appear to be anything controversial in the form. Dr. Dubé also checked off that Mr. Champaigne did not suffer an impairment that substantially prevented him from performing his pre-accident housekeeping and/or home maintenance activities.

Mr. Champaigne, however, appears to be of the view that Dr. Dubé had seriously damaged his claim. In an endeavour to discredit Dr. Dubé, Mr. Champaigne engaged in what I find was an unwarranted and unseemly character attack.

In the few weeks in which he was seeing Dr. Dubé, Mr. Champaigne was referred by that doctor for x-rays as well as to Dr. Cheung, a neurologist, in addition to receiving chiropractic care, physiotherapy and massage therapy. Dr. Dubé duly noted Mr. Champaigne's various complaints. Nonetheless, Mr. Champaigne testified that Dr. Dubé ignored every one of his complaints, that the Applicant "tried for over a month to get through to the idiot and he didn't do nothing for me. He failed as a doctor and he failed as a human being."

Mr. Champaigne brought a family friend, Karen Huhtala, as a witness the last time he saw Dr. Dubé. I do not accept the Applicant's evidence that Dr. Dubé "basically cursed and kicked us out of his office." Dr. Dubé's notes indicate he asked to see Mr. Champaigne alone, as he could not help him if his friend answered all the questions. Mr. Champaigne denied Dr. Dubé asked to see him alone, as he had already walked out "because I wanted to hit him."

The Applicant testified that he complained to the College of Physicians and Surgeons regarding Dr. Dubé, but he did not pursue the complaint because "I've been too busy just trying to get healthy and trying to live my life to get ahead of that." I do not accept the latter explanation. I am persuaded that the real reason for dropping the complaint was that there was no valid basis to it.

Failure to try to find alternative employment

Mr. Champaigne has not worked since October 2003 and started receiving social service benefits in June 2004. He has done nothing to look for work since January 2004. He has not applied for any jobs. He has not sent out any resumes. He has not gone on any interviews or registered with Employment Canada or any employment agencies. When asked whether he has done anything to try to identify suitable employment for himself since January 2004, he said that he had been attempting to get a vocational assessment with the Co-operators.

Mr. Champaigne testified that he has not registered for any courses, although he had talked to the Canadian School of Business at Laurentian University. He did testify that he would "like to get into political science so I could help change this process." He submitted a treatment plan for a paralegal course that he then withdrew.

Mr. Champaigne had prior experience running a pool company. Nonetheless, Mr. Champaigne testified that he could not work selling pools, as he was not "a real salesman type," that when he ran his company, he directed people what to do rather than do the actual sales. He further stated that he was not physically able to do sales work because "when I'm in pain or say I get dizzy and I want to vomit on their feet or something like that, it's not usually a good thing."

Mr. Champaigne had also worked for a number of years as a stage hand and as a grip, setting up lights. He testified that he had been called to do this work after January 2004, but had not taken the work because "Nobody wants to work with you. You're walking over top of their heads with a five pound wrench fifty-seven feet in the air and you drop that wrench on them, they die. Nobody wants to take that chance."

I find it inconsistent with the preponderance of probabilities that Mr. Champaigne, who was able to continue extremely physically demanding work shortly after the August 2002 accident (albeit with assistance for a period of time) is unable, with his Canadian high school education and significant work experience, including running his own company, to even contemplate looking for any other type of employment solely, in his submission, as a result of injuries sustained in the August 22, 2002 accident.

(h) the Post 104 week test

At 104 weeks of disability, the IRB entitlement test changes. At that point, to be entitled to weekly benefits, an insured must establish, on a balance of probabilities, that he or she suffers a complete inability to engage in any employment for which one is reasonably suited by education, training or experience.

Mr. Champaigne submits that the post-104 week test begins August 21, 2004. He submits that his only experience, training and education was that of a truck driver.

However, in addition to his experience as a delivery person, Mr. Champaigne was also a member of the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts (IATSE), working on productions during the summer (with replacement labour taking over his delivery duties). Mr. Champaigne had also operated in the past a part-time swimming pool business.

(i) Summary regarding IRB Entitlement

I am persuaded that Mr. Champaigne is, underneath the usually benign exterior of a 43-year old Grade 12 graduate, an extremely angry, frustrated and bitter individual.

I am persuaded he is a man in physical pain. He has an undisputed, solid work history for more than two decades following high school graduation. I am persuaded that for nine years he built up a cargo transport business based significantly on his physical strength. I am persuaded that his livelihood, his self-esteem and, in significant measure, his life, centred on that physical power.

I am persuaded that Mr. Champaigne had degenerative changes pre-existing the August 22, 2002 accident. It is reasonable to presume that the very physical demands of his pre-accident work contributed to those changes. I am persuaded that these pre-existing changes contribute to Mr. Champaigne's ongoing functional pain.

I am persuaded that Mr. Champaigne sustained cervical, shoulder and low back injuries, as well as some measure of complaints of dizziness, in the August 22, 2002 motor vehicle accident. I accept the opinion of Dr. Ogundimu that the August 2002 accident probably exacerbated the Applicant's cervical degenerative disc disease. I am persuaded that Mr. Champaigne tried to mitigate his loss and continue his business largely on the basis of continued physical exertion. I am persuaded that this continued exertion contributed to greater pain. I am persuaded that Mr. Champaigne, reasonably, sought to relieve that pain by seeking medical assistance and by hiring assistants.

I am persuaded, based on Mr. Champaigne's own records of decreasing assistance in the weeks before the June 2003 work accident, that there was a measure of improvement in his condition.

Nonetheless, the CBI Designated Assessment Centre FAE conducted in May 2003 found that Mr. Champaigne did not demonstrate the ability to perform the lifting, carrying, pushing and pulling demands of his job as a Delivery Person. The May 30, 2003 Physical Demands Analysis prepared by Ms. Cook for the Insurer commented on temporary modified work being available in terms of reduced hours and a helper to do physical duties. Co-operators paid Mr. Champaigne IRBs up to June 16, 2003. I find that what changed on June 16, 2003 was not a material improvement in the Applicant's continuing impairment from the August 2002 accident, but rather a further injury in an accident at work.

WSIB paid Mr. Champaigne for six weeks while he was off work. That income allowed him to keep his truck on the road with a different driver and kept his business alive. I am not persuaded that this accident was caused or contributed to by the August 2002 accident. I am persuaded that the six-week absence from work was a result of the acute low back injury phase of the June 2003 work place accident for which, pursuant to section 59 of the Schedule, Co-operators is not required to pay the Applicant benefits.

Mr. Champaigne returned to work at the end of July 2003. I am persuaded that return materially contributed to a greater measure of pain. I am persuaded that the Applicant had continuing neck and back pain as a result of both accidents. I am persuaded that he continued to endeavour to try to mitigate his loss by keeping his business running.

Mr. Champaigne's own records show that he did not hire replacement labour in the four weeks prior to the October 2003 accident, which I again find consistent with a measure of improvement in his condition. I am persuaded, as set out below, that Mr. Champaigne suffered a relatively modest compensable loss of income between July and October 2003, when I find that he was again endeavouring to mitigate his loss.

Mr. Champaigne's October 2003 work accident caused a leg injury. I am not persuaded, based on the contemporaneous injury reports, that the August 2002 accident injuries, specifically any bouts of dizziness, contributed to this accident. I am persuaded that Mr. Champaigne's disability from October 31, 2003 into January 2004 was due to the acute stage of his work place leg injury and that the Co-operators, pursuant to section 59 of the Schedule, is not required to pay the Applicant benefits for this period.

I am persuaded that as a result of his belief that Co-operators was responsible for the October 2003 accident (notwithstanding that it was work-related and he was not insured with Co-operators at the time of that accident), Mr. Champaigne withdrew his claim for WSIB disability benefits. I am persuaded that this ill-considered decision (and the absence of benefits which would have been available from WSIB) contributed, if not lead directly, to the financial demise of the Applicant's business in January 2004.

I am persuaded that Mr. Champaigne needs someone to blame for losing the life he knew. Mr. Champaigne has found the Co-operators. I am persuaded that Mr. Champaigne's present occupation has become in very large measure this litigation. I am not persuaded that this has been a healthy or productive pursuit.

I am persuaded that Mr. Champaigne has mistaken expectations as to the benefits to which he is convinced he is entitled, based on misunderstandings of what is offered under the Schedule to victims of motor vehicle accidents. He has taken considerable time pursuing claims not falling within the Schedule. He has spent considerable time arguing not what the law is, but what he believes it should be. I am persuaded that this is a case where the facts have, to a significant degree, been massaged by the Applicant to fit his perspective of what the law should allow. This is a case where evidence has been carefully, if not entirely effectively, orchestrated.

Mr. Champaigne has not been fully forthright in documenting or testifying as to the relevant history, including his pre-accident medical history, the significance of his post-August 2002 work-related accidents, the extent of his disabilities and the use of replacement labour. I am persuaded that his information and answers, at times, have been tailored to maximize Co-operators' exposure to pay disability benefits.

I am, however, persuaded based on the totality of the documentary and oral evidence before me, that Mr. Champaigne has continuing pain and a measure of continuing disability. I am persuaded that this litigation has played a significant role in his failure to return to any form of employment. Nonetheless, I am persuaded that the continuing injuries sustained by the Applicant arising from the August 22, 2002 motor vehicle accident, documented by numerous medical practitioners (and specifically the contemporaneous notes of Ms. Borosch detailing continuing neck complaints since the August 22, 2002 motor vehicle accident) are not merely a material, but a substantial contributing factor to what I find is Mr. Champaigne's ongoing substantial functional inability to continue, on an ongoing sustained basis, the extremely physically taxing, requisite, full essential duties of his specific pre-accident employment, which are, in addition, subject to deadline pressures.

I find that Mr. Champaigne's acute phase of his October 2003 accident ended with the treatment provided pursuant to Mr. De Angelis' November 10, 2003 treatment plan (which was directed solely at injuries sustained in the work accident and which was paid by WSIB) and with the start of Mr. De Angelis' February 13, 2004 treatment plan, which addressed cervical impairment.

Accordingly, I find that Mr. Champaigne is entitled to IRBs from February 13, 2004 until the eve of the two-year anniversary of his first accident, namely until August 21, 2004.

Mr. Champaigne has made no effort to try to return to or to meaningfully explore any alternative employment. He has a variety of skills from knowledge of the pool business and the movie industry, to shipping and receiving. He has some managerial experience. I am persuaded that this litigation, and the hope for monetary compensation, is the predominant reason for his failure to contemplate any form of employment. I am not persuaded, based on my concerns regarding his credibility enumerated in pages 35 to 53 above, as to the legitimacy of his pain complaints related to the August 2002 accident to the extent that they disable the Applicant from any employment for which he is reasonably suited by education, training or experience. Accordingly, I am not persuaded that Mr. Champaigne has met the post 104-week disability test.

3. The Quantum of Mr. Champaigne's weekly IRB

The Schedule is a statutory contract of insurance. Unlike tort compensation, it does not purport to put accident victims back to where they would have been, but for the accident. Rather, it provides limited compensation to victims of motor vehicle accidents on a no-fault basis.

The parties agree that Mr. Champaigne was self-employed at the time of the August 22, 2002 motor vehicle accident. They also agree that Mr. Champaigne's base IRB, looking solely at subsection 6(1) of the Schedule, is $331 a week.

The parties disagree on two aspects of the IRB calculation, namely (1) the method pursuant to subsection 6(2) of the Schedule by which the Insurer may calculate and deduct post-accident employment income from the weekly $331 IRB and (2) what, if any, losses from self-employment Mr. Champaigne has incurred which may be added to the $331 weekly IRB, in accordance with subsection 6(5) of the Schedule.

Regarding the deduction of post-accident income, the Applicant submits that a week by week analysis is appropriate. This appears to involve a cash basis of accounting, that is, revenues and expenses are recorded when they are received and when they are paid. The Insurer submits that an accrual basis accounting is appropriate, that is, revenues and expenses being recorded in the period they are earned and incurred, and revenues being matched to the corresponding expenses that were incurred to generate those revenues.

Precisely matching expenses to revenues may require looking at a significantly longer period than a week. For example, a major truck repair bill, although incurred in a specific week, may benefit the business over the course of months, if not years.

Mr. John-Paul Strasler, an accounting expert testifying for the Insurer, provided strong evidence as to the greater accuracy of the accrual method of accounting. However, accuracy is not the sole concern of the Schedule. Timeliness is also important, especially when an insured person is endeavouring to maintain one's business, as Mr. Champaigne was until January 2004.

In an arbitration hearing when a business is long defunct, the parties may have the luxury of fine tuning to the exact penny the precise amount to which an insured is entitled. However, when there is an ongoing struggle to continue an existing enterprise, a less accurate, more "down and dirty" approach may have to suffice. Any accounting error favouring the insured can be remedied by section 47 of the Schedule, which allows for repayment to an insurer, including deductions being made from future weekly benefits. Considering that an error in an insurer's favour may result in loss of an insured's business and/or livelihood, a liberal accounting approach, at first instance, would seem to be appropriate.

I agree with the appeal decision in Pafco Insurance Company and Howden (FSCO P00-00028, June 22, 2001), that:

Decisions have not established a single method of attribution. Rather, the approach is flexible, depending on the facts. In my view, that is as it should be. The accrual method does not meet all situations and can give rise to harsh results.

Rather, the question is whether the method of accounting reasonably reflects one's "earning picture."

In this specific case, in an endeavour to balance on the one hand matching revenues and expenses, and on the other hand reasonably reflecting Mr. Champaigne's earnings picture, I find that there are six earning periods to be considered. Dealing first with the question of post-accident income (and not losses from self-employment), I make the following findings:

(a) August 29, 2002 (one week after the August 22, 2002 car accident) to June 15, 2003 (the day prior to the first work accident)

While the Applicant has claimed varying overall amounts during the course of this hearing, he has been fairly consistent for this specific period. In Exhibit 1, $2,304.36 is claimed. Exhibit 17 has a slightly lower amount, $2,287.60. In final submissions, the amount was $3,763.57 (excluding alleged loss of further contracts). The $3,763.57, however, appears to include post-accident replacement labour and truck expenses.

Co-operators concedes Mr. Champaigne's disability for this period as a result of the August 2002 accident. However, it now submits that during this period, taken as a whole, Mr. Champaigne's average weekly net post-accident income exceeded his $331 weekly IRB, and hence, he is not entitled to any IRB benefit. Co-operators, however, had earlier paid the Applicant $1,147.21 in IRBs for this period, plus interest of $439.34. Repayment is not sought in this hearing.

I am persuaded that at this late juncture of inquiry, the greater accuracy of the accrual method makes it a more appropriate approach for this time period. I find that the IRB payable is zero. However, as set out below, I find that the Applicant is entitled to the $2,382.55 claimed for replacement labour.

(b) June 16 to July 28, 2003 (the period during which Mr. Champaigne received WSIB benefits)

Mr. Champaigne, in his final submissions, claimed IRBs of $3,291.29 (excluding alleged loss of further contracts) for this six-week period.

As set out above, I find that during this period the Insurer, pursuant to section 59 of the Schedule, is not required to pay benefits as a result of the June 16, 2003 work place accident, as the Applicant was entitled to receive, and did receive, WSIB benefits for the period June 16 to July 28, 2003. WSIB, by letter dated November 6, 2003, calculates Mr. Champaigne's entitlement to a weekly Loss of Earning Benefit of $417.48, based on his 2002 T1 and personal home expenses.

(c) July 28 to October 30, 2003 (between the second and third accidents)

Mr. Strasler did not provide calculations for this period. Rather, he looked at the period September 13, 2003 (when he says that replacement labour expenses ceased) and October 31, 2003 (the date of the third accident). Mr. Strasler's opinion was that post-accident income from September 13 to October 31, 2003 eliminated any IRB entitlement during this period.

The Applicant, in final submissions, claimed $1,204.92 for the thirteen-week period July 31 to October 29, 2003, based on a week-by-week cash basis of accounting. This being the best evidence I have as to post-accident income and expenses during this specific period, I allow same (being three weeks of $331, one of those weeks including an additional $211.92 representing the excess of expenses over income). I find this reasonably reflects the Applicant's earnings picture.

(d) October 31, 2003 (the date of the third accident) to January 16, 2004 (the date Mr. Champaigne's business ceased to operate)

I accept, based on the contemporaneous January 26, 2004 WSIB note to file of Ms. Laframboise, that the plates were taken off of the Applicant's truck on January 16, 2004 and that his contract ended. I take, then, January 16, 2004 as the date that Mr. Champaigne's business ceased to operate. Mr. Champaigne claims $4,796.28 in IRBs (excluding alleged loss of further contracts) for this eleven-week period.

As noted above, I find during this period, pursuant to section 59 of the Schedule, Co-operators is not required to pay benefits as a result of the October 31, 2003 work accident, as Mr. Champaigne was entitled to receive, and was approved to receive WSIB benefits. Given that his earlier WSIB benefit was based on his 2002 T1, I am persuaded that Mr. Champaigne would have been entitled to approximately the same Loss of Earning Benefit of $417.48 per week.

(e) January 17 to August 21, 2004 (the end of 104 weeks of disability)

I have found that Mr. Champaigne has met the pre-104 week disability test from February 13 to August 21, 2004 as a material, and as a substantial consequence of his August 22, 2002 motor vehicle accident.

As Mr. Champaigne's business had ceased to operate as of January 16, 2004, there is no post-accident income to be considered during this period.

Mr. Champaigne, however, submits that after January 16, 2004, he is entitled to $647.12 a week (or $33,650.24 a year) in addition to the weekly IRB of $331 as an incurred business loss from self-employment under subsection 6(5) of the Schedule. This additional amount is calculated on the basis of hiring replacement labour nine hours a day, five days a week, at $17.98 an hour.

I find that this claim is not supported by subsection 6(5). Mr. Champaigne has testified, and I accept, that his business ceased January 16, 2004 and has never resumed. Thus, the amounts claimed are not incurred business losses; rather, they are hypothetical expenses, which have not been paid and which are not owed. I find that the applicable weekly IRB for this period is $331.

The Applicant's assertion, however, supports the finding that his claim for accident benefits following the October 2003 work accident was primarily for the purpose of claiming benefits under the Schedule. This prevents the Applicant from taking advantage of the subsection 59(2) exception to the requirement that he must look to workers' compensation with regard to that accident.

(f) ongoing from August 22, 2004

I have found that Mr. Champaigne does not meet for this period the post-104 week disability test of suffering a complete inability to engage in any employment to which he is reasonably suited by education, training or experience. Accordingly, he is not entitled to any further IRBs.

(g) loss of profit

Mr. Champaigne claims, in addition to a weekly base IRB of $331 and a further weekly sum of $647.12 after January 16, 2004 for hypothetical replacement labour expense, an additional amount based on the evidence of Mr. Morin, the terminal manager at the Apex Sudbury division. Mr. Morin testified that there had been a branch increase in freight at Apex of 19% in 2003 over 2002 (Mr. Champaigne had testified as to a 27% increase). Mr. Morin further testified that the volume of Mr. Champaigne's route had, overall, increased over the years and that a driver's pay is directly related to what is delivered.

Mr. Morin further stated that Mr. Champaigne moved more weight in 2003 (the year after the first accident) than in 2002, notwithstanding his June and October 2003 accidents and notwithstanding Mr. Morin's assertion to Co-operators on January 26, 2004 that as a rule, replacement drivers do not complete the same number of deliveries in a day as a regular driver.

The Applicant also filed very brief, essentially identical statements from three brokers who stated that they each received additional freight from Mr. Champaigne's route after the August 22, 2002 accident, due to the Applicant's injuries.

There are two difficulties with Mr. Champaigne's claim.

The first is factual. A 19% increase in freight for the entire branch does not automatically equal a 19% increase to each driver, or an average increase of 19% amongst the existing drivers (the Applicant arguing that Mr. Morin testified that he was one of the best drivers). Rather, a 19% increase in freight can, in theory, simply mean that 19% more drivers were hired. I heard no evidence as to how the branch increase in freight translated into increased earnings per driver.

The Applicant asked, in final submissions, that I order Apex to give its records to Co-operators and that Co-operators hire an accountant to calculate Mr. Champaigne's loss. The time for such production requests is prior to the start of the arbitration hearing, not during final submissions. To order further production would require the hearing to be reopened for further documentary and oral evidence. I declined to do so.

The second difficulty with this further claim is its legal basis. The Applicant's argument is that the allegedly lost 19% increase in income is recoverable under subsection 6(5) of the Schedule. In this regard, the Applicant relies on his interpretation of both the arbitration decision of Welsh and Economical Insurance Company (FSCO A01-000916, August 16, 2002) and the appeal decision of Director Draper in Welsh and Economical Mutual Insurance Company (FSCO P02-00024, October 7, 2003).

In Welsh, the applicant was claiming two types of business losses. The first were losses accruing as a result of hiring people to do the work previously done by Mr. Welsh. The second were opportunity losses represented by Mr. Welsh's inability to build his business during a robust economy. Regarding the latter, Arbitrator Killoran held that:

As ruled in Jambor and Dominion of Canada General Insurance Company,² the purpose of the statutory accident benefits scheme as it relates to weekly income benefits, is to compensate for an actual, concrete loss of income from employment or self-employment as a result of an accident. This scheme does not compensate applicants for lost opportunity or loss of potential income. This type of loss can only be compensated for by an award of damages in a civil tort action.

Arbitrator Killoran further referred to the decision of then Senior Arbitrator Naylor, who ruled in Bress and State Farm Insurance that:³

... I have no jurisdiction to award benefits or compensation for losses that do not fall within the existing statutory no-fault benefits scheme. I have no jurisdiction to award income replacement benefits on any other basis, regardless of whether the legislation works unfairly in individual cases, or whether it fails to compensate an applicant to the full extent of his or her loss. I have no jurisdiction therefore to award compensation for loss of potential or future business profits, or for future economic loss.

Mr. Welsh appealed Arbitrator Killoran's decision. Director's Delegate McMahon confirmed in an interim appeal decision (FSCO P02-00024, April 23, 2003) that Mr. Welsh was:

... not seeking to challenge the Arbitrator's rejection of his argument concerning the characterization of his additional labour costs, or the rejection of his lost opportunity theory. However, he submits that the Arbitrator erred in concluding that the provision for an increase in the level of IRBs, to account for post-accident losses, is subject to the $400 cap.

Accordingly, Director Draper, in his October 7, 2003 decision, does not address the question of additional labour costs or loss of opportunity. Rather, regarding IRB quantum, he determined only that under the pertinent legislation, business losses can increase an IRB to more than $400 a week.

Mr. Champaigne argues that the alleged increase in profit is not merely a loss of opportunity, but rather an actual, concrete, measurable and recoverable business loss contemplated by Arbitrator Killoran in Welsh. He submits that there is evidence before me that there were actual cargos sitting for him to transport which he was unable to move as a result of his accident injuries.

I find that the Applicant has mistakenly focussed on Arbitrator Killoran's use of the word "concrete" in isolation to the overall concept of IRBs set out consistently in Jambor, Bress and Welsh. The Schedule starts with the premise that IRBs are retrospective. Subject to anything specifically to the contrary, an IRB is fixed based on an insured's pre-accident income or an insured's contract of employment in place at the time of the accident.

Subsection 6(5) provides an exception for self-employed persons to the extent an insured incurs "losses from self-employment." The legislation contemplates that, unlike an employed person, a self-employed person is at risk of not merely losing income, but also incurring business losses (i.e., expenses exceeding revenue) during the insured's absence.

Like a self-employed person, an employee may well expect that after an accident his or her income could be expected to increase. Indeed, a person employed at the time of the accident may have a contractual agreement that his or her salary with that same employer was to increase at a specific future date. The loss of such future wage increase is actual, concrete and measurable. Rightly or wrongly, it is not recoverable under the Schedule. Likewise, the case law is consistent that future business profits, or future economic loss (which is what Mr. Champaigne is really claiming) is not compensable under the Schedule. Accordingly, I find that Mr. Champaigne's claim for loss of anticipated future profit fails.

4. Medical Expenses

(a) Mr. De Angelis= May 9, 2003 treatment plan for an enhanced one-year membership at the YMCA

Section 14 of the Schedule provides that the insurer shall pay for all reasonable and necessary medical expenses, as further specified, incurred by or on behalf of an insured person as a result of the accident.

As noted, Mr. De Angelis is a physiotherapist. He prepared several treatment plans which Mr. Champaigne submitted to Co-operators. Only his treatment plan of May 9, 2003 is still in dispute in this proceeding.

In this plan, Mr. De Angelis recommended a one-year membership at the YMCA at a cost of $1,200, to allow Mr. Champaigne access to its exercise machines, pool, whirlpool and sauna. Mr. De Angelis was of the opinion that this treatment would reduce the Applicant's pain, increase his mobility and assist his return to work and activities of normal life.

Mr. De Angelis' plan was assessed by the Sudbury Regional Hospital DAC (the "Sudbury DAC") in September 2003. The consensus report of Dr. Graham, physiatrist, and Ms. Connors, physiotherapist, indicates Co-operators had approved part of the proposed treatment.

The Sudbury DAC indicated that Mr. Champaigne had attended physiotherapy, chiropractic and massage therapy treatment which provided only temporary relief. It was felt that Mr. Champaigne was now in the chronic phase of his recovery and that the focus should be on providing and monitoring an active home/gym exercise program of mobility, strengthening and general aerobic conditioning. Thus, the DAC approved a six-month gym membership, but without the sauna and whirlpool, which they found to be passive heat modalities that were not rehabilitative.

A separate treatment plan of Mr. De Angelis for continued physiotherapy was deemed reasonable and necessary. The Co-operators submitted that only $342 had not been paid in regard to the disputed May 9, 2003 treatment plan.

On cross-examination, Mr. De Angelis agreed that the purpose of the sauna and whirlpool was to apply moist heat to temporarily relieve pain. He agreed there were other ways to apply heat. He further agreed that having a sauna or a whirlpool was a convenient way to obtain this relief, but was not absolutely necessary. Mr. De Angelis also agreed he would recommend to patients who did not have the time to go to the gym that they use moist hot packs or take hot showers.

On the basis of the Sudbury DAC report and the concessions made by Mr. De Angelis, I am not persuaded that the enhanced sauna and whirlpool portion of the May 9, 2003 treatment plan was reasonable and necessary.

The Sudbury DAC opined that a six-month gym membership was reasonable. It did not comment as to whether a twelve-month membership was reasonable or unreasonable. Dr. Graham was of the view that a gym membership might facilitate a self-directed exercise program for stretching, strengthening and aerobic fitness.

The 2005 South Muskoka DAC supported a six-month monitored gym program pursuant to a subsequent treatment plan. The report does not address what was reasonable and necessary in 2003. Based on the unchallenged opinion of Mr. De Angelis regarding the reasonable length of the gym membership in 2003, I am persuaded that a one-year, non-enhanced gym membership is reasonable and necessary, and allow same.

(b) Ms. Borosch’s March 26, 2003 treatment plan for massage therapy

Ms. Borosch prepared a March 2003 treatment plan for Mr. Champaigne for $663 for Swedish massage therapy techniques and passive and active stretching exercises, to reduce the Applicant's headaches and neck and back pain. Her treatment plan indicated that Mr. Champaigne had already returned to work.

This plan was also reviewed by the Sudbury DAC. Their opinion was that the proposed therapy promoted treatment dependency, provided only temporary relief (and, hence, was not rehabilitative) and, therefore, were not reasonable or necessary.

In her decision in Violi and General Accident Assurance Co. of Canada (FSCO A98-000670, August 20, 1999), Arbitrator Alves held that:

The premise of the DAC report [in Violi] is that the treatment claimed must promote recovery to be reasonable and necessary . . . Pain relief is one of the reasons people frequently consult medical practitioners, and I find the relief of pain in and of itself to be a legitimate medical and rehabilitative goal. For these reasons I reject the premise in the DAC's report that treatment which relieves pain but which does not also promote recovery, is unreasonable and unnecessary.

I agree with Arbitrator Alves that relief of pain, by itself, is a legitimate medical and rehabilitative goal. I am persuaded that at the time in question, Mr. Champaigne was suffering pain and that Ms. Borosch's plan for addressing that pain was reasonable and necessary. Accordingly, the claim is allowed.

(c) Dr. Michlowski’s November 21, 2003 and January 26, 2004 treatment plans for chiropractic treatment

As noted, Dr. Michlowski is a chiropractor. He, too, has submitted several treatment plans on behalf of Mr. Champaigne. Two of those treatment plans are in dispute in this proceeding.

Dr. Michlowski's November 21, 2003 treatment plan was for $865.05, for 28 chiropractic adjustments and a claims form. The treatment plan of January 26, 2004 was for $443. In this plan, Dr. Michlowski recommended further chiropractic treatment to reduce pain and increase range of motion and strength.

Co-operators relies on both the prior Sudbury DAC report conducted in September 2003 and a February 26, 2004 report of the Work Able Centres Ltd. Medical/Rehabilitation DAC. The latter addressed Dr. Michlowski's November 21, 2003 treatment plan as well as Mr. De Angelis' November 10, 2003 treatment plan (which was subsequently paid by WSIB).

Ms. Hunter, a physiotherapist with the Work Able DAC, was unable to justify further physiotherapy, chiropractic or massage therapy given the lack of significant objective findings. Dr. Baryshnik, a neurologist, could find no abnormal neurologic findings. The most pertinent opinion might have been that of Dr. D. Bereznick, a chiropractor, but he declined to assess the Applicant in the presence of the Applicant's sister, Ms. Champaigne.

Dr. Michlowski states in his November 21, 2003 treatment plan that Mr. Champaigne had to make a living and that, after the last treatment, the patient had less pain and was able to work harder and longer. Dr. Michlowski's goal was to keep Mr. Champaigne working with as little pain as possible. The chiropractor noted that when Mr. Champaigne drove, it was often difficult for him to turn his head and that unloading his truck took longer due to neck and left shoulder pain. Dr. Michlowski also noted that the Applicant's dizziness made driving and working difficult.

In his January 26, 2004 treatment plan, Dr. Michlowski states that constant work aggravated Mr. Champaigne's symptoms, and he recommended time off work. It does not appear from these treatment plans that Dr. Michlowski was aware that Mr. Champaigne had been continuously off work following the work accident of October 31, 2003.

The January 26, 2004 treatment plan indicated that Mr. Champaigne had improved 60% to 70% in the use of his joints and muscles, but still had recurring dysfunction with elapsed time between treatments. However, Dr. Baryshnik states that when seen February 26, 2004, Mr. Champaigne was complaining of pain everywhere and described a slow worsening of his pain situation. The latter was consistent with the Applicant's position at this arbitration hearing.

Exhibit 3 indicates that Mr. Champaigne had 65 adjustments with Dr. Michlowski between September 5, 2002 and the February 2004 DAC assessment. At the time of the latter assessment, the Applicant was attending weekly for adjustments. Given that notwithstanding the extensive treatment provided by Dr. Michlowski, the Applicant's condition was, in fact, worsening even once he stopped working in October 2003, I am not persuaded that the treatment in either the November 2003 or the January 2004 treatment plans was either reasonable or necessary. Accordingly, I dismiss this claim.

5. Rehabilitation Expenses

(a) a rehabilitation worker/assistant to help locate and co-ordinate treatment as a result of injuries sustained on August 22, 2002

Section 15 of the Schedule provides the entitlement criteria for rehabilitation expenses. It mandates, amongst other things, that an insurer shall pay for reasonable and necessary measures undertaken to reduce or eliminate the effects of any disability or facilitate the insured's reintegration into one's family, the rest of society and the labour market.

Mr. Champaigne seeks payment for a rehabilitation worker or assistant to help locate and co-ordinate his treatment. The Applicant, however, has not provided any evidence as to whom he seeks to hire, what expertise that person might have, what time period is contemplated, what the cost would be of such services or what specific duties would be performed.

At one point in his evidence, Mr. Champaigne indicated that he had no idea why this claim was being made or if the claim was still being advanced, although at another point he indicated that he wanted someone to help him access doctors and benefits. However, he could not remember if he had ever submitted a treatment plan, as required by section 38 of the Schedule.

Having failed to provide any particulars of this claim, I find that the Applicant has failed to meet his onus of establishing that such expenses are reasonable and necessary. Accordingly, I dismiss this claim.

(b) $1,000 for a driver’s helper, Mr. Tyler Vincent, from August 30 to September 27, 2002

Mr. Strasler, the Insurer's accounting expert, testified that his instructions were to accept the subcontractor expenses submitted by Mr. Champaigne. Co-operators did not argue that these expenses were not incurred. Rather, it argued first that these expenses are not properly claimed as rehabilitation expenses, and in the alternative, if they are rehabilitation expenses, they cannot be claimed as no treatment plan was submitted.

The Applicant submits that he only took a few consecutive days off work after the August 2002 accident. After that, he worked Monday to Thursday, taking off Fridays (on the recommendation of Dr. Michlowski) to recuperate, which allowed him to work his four-day shift the following week. Initially, Mr. Champaigne testified that he also took Fridays off to seek chiropractic and physiotherapy treatment. He subsequently testified that physiotherapy was on Thursdays.

Dr. Michlowski's records show that of the 40 chiropractic appointments between August 22, 2002 and June 15, 2003, only one took place on a Friday. Most are noted as taking place on a Thursday, the time not being noted. Of the 40 massage appointments with Ms. Borosch during the same period, only three are on a Friday. Most are on Thursday, again, the time not being noted.

The Applicant further submitted that he was required to have his truck available five days a week. Hence, he needed someone to drive on Fridays. This was not disputed by the Insurer, and I accept same.

In the case of DesRoches and Economical Mutual Insurance Company (FSCO A97-000312 and A97-000814, November 10, 1999), Mr. DesRoches sought payment of the labour cost of having someone finish the construction work on his house, which he argued he was unable to do because of his accident-related injuries.

In the circumstances of that case, I held that Mr. DesRoches' claim for replacement labour was not covered by the rehabilitation provisions of section 40 of the 1994 Schedule.⁴ Following Zettler and Pilot Insurance Company (OIC A-000674, March 31, 1998), I was persuaded that section was applicable if the labour being requested assisted Mr. DesRoches in resuming the completion of his house; the provision was not intended simply to compensate for or replace functions once performed by the insured person.

Given Mr. DesRoches' position that he was presently and in the foreseeable future unable to partake in any work on the house, I could find no rehabilitative purpose in allowing payment of the claimed replacement labour.

The facts of this case are different, and fall into the type of entitlement situation contemplated in DesRoches. Subsection 15(3) of the Schedule specifically provides entitlement for measures to reintegrate an insured person into the labour market that are reasonable and necessary to enable the person to engage in employment that is as similar as possible to the employment in which the person engaged before the accident.

Co-operators concedes that Mr. Champaigne was disabled from the essential tasks of his pre-accident employment during the period of this replacement labour claim, when, to his credit Mr. Champaigne was mitigating his loss in working four days out of five. As a result of his post-accident income, Co-operators was spared paying significant IRBs.

When Ms. Jalbert, Co-operators' adjuster, was asked by her counsel whether the hiring of replacement drivers in this case rehabilitated Mr. Champaigne into, amongst other things, the labour market, she responded that it was the Co-operators' position that it allowed his business to continue to operate. I am persuaded that it also allowed Mr. Champaigne to continue working, and continue to mitigate his loss, as required under the Schedule. Section 56 provides that an insured shall make reasonable efforts to return to the employment in which he or she was engaged at the time of the accident.

Given Mr. Champaigne's contemporaneously documented pain and other symptoms, and his commitment to ongoing treatment, I find that it was eminently reasonable, and I am persuaded necessary, to hire someone to take his place one out of five work days during the work so that Mr. Champaigne could work the other four days.

The Insurer relies on the decision in Zehr and the Guarantee Company of North America (OIC A-001963, July 30, 1993) under OMPP.⁵ The applicability of the decision is limited, as there was no specific rehabilitation section under that legislation, simply paragraph 6(1)(f) which provided entitlement for "other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident."

In any case, Zehr looked at the rehabilitative aspect of the replacement labour which kept the farm going during the insured's disability. The Arbitrator noted that the hired farm workers were not helping Mr. Zehr perform the heavy farm work or supplement his work. I find the factual situation different in this case. Specifically I find that the workers hired by Mr. Champaigne, as required by section 15 of the Schedule, reduced his disability by allowing him a reasonable, periodic break while he endeavoured to mitigate his loss and continue in the labour market, during a period disability is conceded. This, in turn, as again required by the Schedule, facilitated his reintegration towards work as similar as possible to that in which he engaged prior to the August 2002 accident.

Section 38 of the Schedule provides that before expenses in respect of a rehabilitation benefit may be payable are incurred, the insured person shall submit an application for the benefit, and that such application shall include a treatment plan. The Insurer submits that these claims are not payable as no treatment plan was ever submitted. However, the Insurer's letter of December 20, 2002 which rejected these claims did not provide as a basis for denial the absence of such a plan. Instead, the Insurer denied the claim for replacement labour on the basis that this was not a rehabilitation benefit but rather an expense to be included in the IRB calculations.

Section 33 of the Schedule provides that the insurer shall provide information to the insured person to assist the person in applying for benefits. The Insurer submits that it was not necessary to advise Mr. Champaigne of the need for a treatment plan as he was an experienced claimant and should have known of that requirement.

Following the "red line" principles of Smith, I am not persuaded that it should make any difference whether the insured person is an "experienced" claimant; the same requirements apply to all. I find that the Co-operators had an obligation, under subsection 32(2) of the Schedule, to provide Mr. Champaigne with information to assist him in applying for benefits, and that if one of the reasons for denying the claim was the absence of a treatment plan, that should have been clearly stated so that the error could be remedied.

Accordingly, I allow this claim.

(c) $227.61 for a truck rental from Budget on August 23, 2002 and September 13, 2002

The reasonableness or necessity of this claim was not explained, nor how it was recoverable under section 14 of the Schedule. Accordingly, the claim fails.

(d) $1,382.55 for replacement drivers Mr. Dan Paquin, Mr. Ron Sarazin and those provided by Transport Placement Services from August 23 to September 13, 2002

I allow this claim, for the same reasons as section 5(b) above.

6. Housekeeping

Pursuant to section 22 of the Schedule, Mr. Champaigne seeks $800 for housekeeping and/or home maintenance services provided between August 22 and December 31, 2002 by Josh Boric, Shawnda Loney, Paulette Michel and Lucy Harnett.

Mr. Champaigne testified that he did not have any documentation supporting this claim. He indicated that he paid cash and did not get a receipt. He believed that he had submitted statements to Co-operators, but could not remember.

On cross-examination, Mr. Champainge testified that in the weeks following the August 2002 accident he had the ability to pull a skid with a 1,000 pound item on a palette jack, but did not necessarily have the ability to push a vacuum cleaner.

A November 5, 2002 letter from Ms. J. Murdoch, an occupational therapist, to the Insurer's adjuster, stated that the Applicant's sister, Ms. Champaigne, had declined an OT assessment as her brother had returned to all the activities of daily living around the house. In a letter dated December 6, 2002, Ms. Champaigne wrote the Insurer saying that her brother had returned to the majority, but not all, of his household activities. In his sworn evidence, the Applicant denied that he had returned to all daily activities around the house. Although he indicated that he had declined the OT assessment because he wanted a work assessment, Mr. Champaigne could not answer why he did not also have a home assessment done.

Dr. Dubé's October 8, 2002 Disability Certificate states that Mr. Champaigne did not suffer an impairment that substantially prevented him from performing his pre-accident housekeeping and/or home maintenance activities. A further Disability Certificate, date stamped October 23, 2002, likewise checked off that Mr. Champaigne did not suffer an impairment that substantially prevented him from performing his pre-accident housekeeping and/or home maintenance activities.

Dr. St. Martin's November 21, 2002 Disability Certificate ticked off the "not applicable" selection, regarding housekeeping. His further Disability Certificate, received by the Insurer on December 19, 2002, also checked off a box that housekeeping impairment was not applicable.

Mr. Champaigne agreed that Dr. St. Martin did not suggest that he should not or could not do housekeeping and further agreed that in November 2002 Dr. St. Martin did not suggest any restrictions that would prevent him from carrying on with his normal routine.

Given the lack of any supporting documentation or independent evidence for the housekeeping claim, as well as the lack of medical support of both general practitioners who were seeing him at the relevant time, I am not persuaded as to the merit of this claim.

7. Special Award

Subsection 282(10) of the Insurance Act provides that if an arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which the insured person is entitled under the Schedule, shall also award a lump sum special award.

Mr. Champaigne's submissions spent considerable time listing Co-operators' alleged faults in adjusting this file. These include its alleged dealing with Dr. Dubé behind his back, performing an inadequate job evaluation, failing to provide relevant documents and information, not co-operating with his representative, not providing notices in plain language, not informing him of the benefits to which he was entitled, sabotaging his efforts in obtaining benefits and generally not adhering to its obligations under the Schedule or providing the consumer protection required by the Supreme Court of Canada decision in Smith and Co-operators 2002 SCC 30, [2002] 2 S.C.R. 129.

The Applicant seeks the maximum special award in this case, given his submission that Co-operators has shown "a depraved indifference to human life."

The appeal decision in Leitgeb and Allstate Insurance Company of Canada (OIC P-012407, November 16, 1995), held that:

The focus of the arbitration . . . is on the applicant's entitlement to benefits, or the proper amount of the benefits. The basis for ordering a special award arises out of that inquiry. The special award provision does not expand the arbitration into a generalized inquiry into the insurer's conduct.

Regarding the IRBs found payable in this case, Co-operators relied in significant measure on what I have found to be a flawed Disability DAC. The FAE opined that Mr. Champaigne did not demonstrate the ability to perform the lifting, carrying, pushing and pulling demands of his job (although they were of the view that he performing those tasks at work). Dr. Finklestein's opinion that disability was limited to objective, organic, anatomical impairment where function would cause harm, injure or worsen an insured's condition was inconsistent with the Commission case law emanating from the decision in Quattrocchi.

Nonetheless, given the conflicting evidence regarding the existence and the significance of both pre and post August 2002 symptoms and accidents, as well as the difficulty in determining the Applicant's appropriate IRB quantum in light of his post-accident income and the Applicant's varying calculations, I am not persuaded that any delay in IRB payments was unreasonable.

With regard to the one-year gym membership, Co-operators did pay part of that claim. I have found that the sauna and whirlpool portion of the claim was not warranted. Although I found a twelve-month membership reasonable, I am not persuaded that the Insurer unreasonably relied on the opinion of the Sudbury DAC that a six-month gym membership was reasonable. Likewise, I am not persuaded that it was unreasonable, in the circumstances of this case, for the Insurer to rely on the Sudbury DAC regarding Ms. Borosch's massage therapy treatment plan.

Regarding the workers hired by Mr. Champaigne, I am of the view that this was an eminently reasonable and recoverable claim. However, this is not a universally shared view, given the recent decision in Pilot Insurance Company and Ms. G (FSCO P06-00004, August 28, 2006) (under appeal). Given the lack of consensus in the case law, the failure of the Insurer to pay this claim is not unreasonable. Accordingly, I find that the claim for a special award fails.

EXPENSES:

Having determined all issues in dispute except that of legal expenses, should the parties not agree on entitlement to or the amount of such expenses, they may request an appointment to determine same, in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – October 2003).

March 14, 2007

Lawrence Blackman Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 48

FSCO A03-001344

BETWEEN:

JERRY CHAMPAIGNE

Applicant

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

(a) Mr. Champaigne was not an insured person of Co-operators at the time of the October 31, 2003 accident;

(b) in accordance with section 59 of the Schedule, Co-operators is not required to pay benefits as a result of the October 31, 2003 accident;

(d) the October 31, 2003 accident was not caused by the August 22, 2002 accident.

Mr. Champaigne is entitled to income replacement benefits totalling $1,240.92 for the period July 31, 2003 to October 30, 2003 and $331 per week from February 13, 2004 to August 21, 2004.
Pursuant to section 14 of the Schedule, Co-operators shall pay Mr. Champaigne:

(a) a one-year YMCA gym membership without the sauna and whirlpool portion, less whatever monies the Co-operators has paid; and,

(b) entitled to $663 for a treatment plan dated March 26, 2003 for massage therapy from Ms. D. Borosch (Kawa), massage therapist.

Pursuant to section 15 of the Schedule, Co-operators shall pay Mr. Champaigne:

(a) $1,000 for a driver's helper, Mr. Tyler Vincent, from August 30 to September 27, 2002; and,

(b) $1,382.55 for replacement drivers from August 23 to September 13, 2002.

Co-operators shall pay Mr. Champaigne interest on overdue payment of benefits in accordance with subsection 46(2) of the Schedule.
The issue of the legal expenses of this arbitration, 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).

March 14, 2007

Lawrence Blackman Arbitrator

Date

Footnotes

Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
(FSCO A-003703, August 14, 1995).
(OIC A-000191 and OIC A-000192, March 23, 1992).
The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended.
Ontario Regulation 672 (the "No-Fault Benefits Schedule”), enacted under the Insurance Act, R.S.O. 1990, c. I.8.