Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 54

FSCO A11-003909

BETWEEN:

MR. ANDREW HILL

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Fred Sampliner

Heard: December 10, 11, 12, 13,, 2012 and February 27, 28, 2013, in Hamilton and Mississauga, Ontario

Appearances: Sara Jones and Rob Findlay for Mr. Hill

Darrell March for Jevco Insurance Company

Issues:

Mr. Andrew Hill was seriously injured in a motorcycle accident on July 19, 2007. He applied for and received income replacement benefits from Jevco Insurance Company (“Jevco”), payable under the Schedule.¹ Jevco terminated this benefit on March 8, 2010. The parties were unable to resolve their disputes through mediation, and Mr. Hill applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Hill entitled to continuing income replacement benefit after March 8, 2010?

2. Is Mr. Hill entitled to a special award?

3. Is Mr. Hill entitled to interest on any overdue benefits?

4. Is either party entitled to their expenses of the arbitration?

Result:

1. Mr. Hill is entitled to income replacement benefits from March 8, 2010 to September 21, 2012.

2. Mr. Hill is not entitled to a special award.

3. Mr. Hill is entitled to interest on the awarded benefits.

4. Mr. Hill is entitled to his expenses of the arbitration.

EVIDENCE AND ANALYSIS:

The Accident and Initial Surgery:

Mr. Mr. Andrew Hill was 26 years old, married with three children, working full-time as a salesman at Jensen Tire at the time of the accident. On July 19, 2007, a car turned suddenly in front of Mr. Hill’s motorcycle. As he struck the front car, a van following him crashed into his motorcycle from behind. The impact sent Mr. Hill flying over the handlebars. Witnesses reported that Mr. Hill stood up, walked to the roadside and immediately collapsed. The ambulance attendants reported that Mr. Hill did not lose consciousness, but was suffering intense back pain.

Mr. Hill was taken to Joseph Brant Hospital, where radiology images showed a burst compression fracture at L1. The next day he was transferred to the Hamilton Health Sciences Centre, and placed under the care of Dr. Brian Drew, an orthopaedic surgeon. Dr. Drew successfully operated on Mr. Hill that day. The soft tissue were laterally excised at the T12, L1 and L2 levels, where the surgical team removed broken pieces of bone, affixed metal rods along each side of the affected areas of the spine using screws, cement and a bone graft from Mr. Hill’s right hip. Mr. Hill is lucky he had no neurologic involvement that compromised his spinal cord.

Dr. Drew’s notes, his clear testimony, the hospital records and technical drawings explicitly illustrate Mr. Hill’s condition and surgeries. Dr. Drew anticipated that the stabilizing effect of the implanted hardware would receive support from bone and tissue growth around the injury site.

Mr. Hill was released home from the hospital to recuperate on July 27, 2007. He was initially confined to the first floor of the home he shared with his in-laws. He had a hospital bed, walker, commode and attendant help. Mr. Hill later participated in physiotherapy treatment.

In early 2008, Dr. Drew’s examinations revealed that the implanted hardware was stable, but there was little, if any, bone growth around the implants. The imaging also showed that the graft taken from Mr. Hill’s right hip and implanted around the spinal injury had re-absorbed into his body. Apparently, the electrical stimulator Mr. Hill was using to promote bone growth was ineffective.

Mr. Hill was still dealing with considerable pain, and was taking strong prescription medications. There was Amitryptyline for sleep and mood disorder, and narcotics; Oxycocet, Percocet and Oxycotin for pain relief. Both his family physician, Dr. Katherine Gray, and Dr. Calum Massaraella, a pain specialist, monitored his condition.

Mr. Hill argues he continues to suffer a complete inability to engage in any employment suitable to his education, training and experience.² He claims he is entitled to ongoing income replacement benefits until he completes a retraining program in computer repair skills. The parties agree on $400 as the quantum of his benefit.

Jevco maintains that Mr. Hill’s attempts at work, his activities and its expert opinions support that he is capable of returning to the same level of light duty sedentary work he had at Jensen Tire before the accident.

Pre-Accident Job:

Jenson Tire (“Jenson”) was owned by the aunt and uncle of Mr. Hill’s wife. They initially hired Mr. Hill in 2003 as a tire installer, where he acquired a forklift operator’s licence and wheel installer certificate. In 2006, Mr. Hill switched to the sales department after a 6-month layoff following a work-related repetitive strain injury to his right arm. This work injury healed and does not impact his 2007 accident injuries.

Mr. Hill’s job duties at Jenson involved answering phones, greeting customers in the showroom, displaying inventory and occasionally retrieving tires from the warehouse. Mr. Hill had sold computer equipment and software at another company for approximately four years prior to joining Jensen, and he was proficient in entering data on a computer and preparing paperwork. There is no dispute his sales job at Jensen was primarily light sedentary work.

Dr. Drew released Mr. Hill to resume his pre-accident sales job at Jensen in early 2008 on a part-time basis. Mr. Hill was anxious to resume work, and in February 2008 he began working 3 days per week with reduced flexible hours and ergonomic equipment. A family member drove him back and forth to work because Mr. Hill did not have a drivers’ licence until June 2008 and his spouse did not drive either. Gradually Mr. Hill increased his hours through the spring, and he was working full-time by June 2008.

Mr. Hill’s family physician, Dr. Gray, referred him to a psychologist for depression and stress in May 2008. At the same time, Mr. Hill’s occupational therapist notes he was suffering increased pain and fatigue after his work days. Mr. Hill had pain block injections and continued with the strong narcotic medication to control his symptoms.

Follow-up appointments with Dr. Drew and a CT scan during the summer of 2008 showed a deteriorating situation with his back. There was a broken screw at L2 and no bone or tissue growth to fuse the site. Based on studies that cigarettes stunt growth, Dr. Drew attributes the lack of regeneration to Mr. Hill’s smoking habit. Mr. Hill left Jensen in August 2008 due to his increasing pain level from the broken hardware, and his in-laws told him they would not keep the job open.

Second Back Surgery:

Dr. Drew advised Mr. Hill he needed a second surgery, and the operation took place in late September 2008. Dr. Drew removed the two original rods and four screws. Two of the original screws had broken. The screw breakage demonstrated that the lack of bony fusion/tissue growth placed more pressure than the hardware could bear.

Dr. Drew replaced all four original screws with larger ones, added two more screws, installed new fixation rods and again laid foundation material to prompt bone and tissue re-growth. The excellent illustrations, notes and Dr. Drew’s evidence describe the surgery and post-operative progress. Mr. Hill was released home from the hospital at the end of October 2008.

Dr. Drew’s subsequent diagnostic imaging and last visit with Mr. Hill in October 2009 clearly showed that Mr. Hill’s spine had not fused. No expert disputes Dr. Drew’s opinion that Mr. Hill has reached maximum medical recovery and that there is little chance of future bone union.

Dr. Drew released Mr. Hill for all activities subject to his pain tolerance. He cautioned him to avoid lifting, pulling, twisting and repetitive activities, and there is no dispute that Mr. Hill is limited to light, primarily sedentary, activity.

Suitable Employment:

Mr. Hill’s position is that his education, training, experience and interest suit him for a computer service technician. There is no evidence he was employed in this position before the accident.

Mr. Hill bases his position on the opinion of Maria Ross, an occupational therapist he retained to prepare a vocational and rehabilitation report in March 2010. She conducted aptitude tests in 2010 and functional tests the following year. Ms. Ross found Mr. Hill made consistent physical effort, but it was significantly better on the second testing day after he had a good sleep. Ms. Ross testified that his abilities remained unchanged at the light sedentary level as of her last appointment in May 2011.

Mr. Hill had finished tenth grade at the time of the accident, and Ms. Ross’s recommendations were for Mr. Hill to complete high school and train for a computer service technician. Her recommendations were accepted by Jevco, and he commenced GED classes at the Academy of Learning (“Academy”) for 5 days during the first week. He did not meet Ms. Ross’ goal of completing his high school requirements by April 2011 because his attendance dropped off after the initial academic week. I understand Mr. Hill finished the high school courses in late summer 2012, and is presently enrolled in computer repair courses.

Ms. Ross contends the computer service technician training at the Academy holds the greatest likelihood of success because of the flexible course hours and Mr. Hill is motivated to complete this technical training. She opines that this job offers a better opportunity for competitive employment to support his family, and he cannot resume employment until he completes that training. However, Ms. Ross concedes Mr. Hill had full-time office duties pre-accident and post-accident, but considers computer repair more appropriate.

Ms. Ross does not present a reasonable explanation for limiting Mr. Hill’s employment to computers. She tendered no salary comparisons or market studies to support that Mr. Hill’s job prospects are better in computer work than his pre-accident experience in office or sales positions, and no information to support that computer repair is more flexible in accommodating his disability. Therefore, I reject her unsubstantiated opinion limiting Mr. Hill’s suitability to computer repair work, and that he is not employable without further training.

Jevco retained WorkAble Centres in August 2009 to determine his entitlement to income replacement benefits. At that time Mr. Hill had not fully recovered from his second back surgery, and the evaluation resulted in continuation of his income replacement benefits.

Mr. Timothy Bolton conducted a two day office work simulation with Mr. Hill. He had an obvious right leg limp walking to the WorkAble office, reporting each day he had taken one Oxycontin and two Percocet pills beforehand. He performed sedentary office work with breaks over 3-½ hours and finished with increased pain. The second day Mr. Hill was able to perform office work for 2 hours and 40 minutes with breaks and increased pain. This occurred about two months prior to his final appointment with Dr. Drew in which he was released for all activity.

The psychological/vocational tests were administered by Dr. Kerry Lawson. He recommended Mr. Hill’s suitability for general office positions, retail sales and telemarketing, ranging in pay between $20,000 and $30,000. The weakness in Dr. Lawson’s report is his failure to consider Mr. Hill’s 4-year pre-accident computer sales experience and personal interest in computers or specifically address Mr. Hill’s motivation for hands-on technical work. Otherwise, I accept Dr. Lawson’s recommended jobs because his pre-accident experience and pay scale directly relate to them.

Based on Mr. Hill’s interest in computers and aptitude for technical work, I find that a computer service technician is reasonably within the range of suitable positions that are commensurate with Mr. Hill’s pre-accident computer experience, personal interest and tested technical aptitude. I find that computer repair services, telemarketing/call center agents, collectors, retail sales, file and general office clerk positions are reasonably suited to Mr. Hill’s pre-accident education, training, experience and rate of compensation.

Mr. Hill’s Evidence:

Mr. Hill is 31 years old and presently lives with his family in a comfortable new Beamsville home purchased in March 2012. He drives his kids back and forth to school, takes his wife to work, goes with his wife on household errands and attends classes once or twice a week at the Academy.

Mr. Hill completed his high school equivalency courses at the Academy in the fall 2012 and is now engaged in computer training at the Academy. Before he worked at Jensen, Mr. Hill worked four years in computer sales, and he stated he has five computers for his family at home, which he is able to dismantle and re-assemble to working order.

Mr. Hill testified that his main problem with resuming sedentary light work is the daily unpredictability in intensity of his back and right hip pain. The resulting fatigue, he says, interferes with his ability to regularly sit and concentrate for more than half an hour. He has continued taking 6 narcotic pain pills per day along with medication to help maintain concentration and mood stability. Mr. Hill testified he hasn’t been employed since he left sales work in June 2008.

Jevco conducted surveillance in June 2009 that shows Mr. Hill using a commercial truck. He is seen driving a pickup truck, owned by his father-in-law under the business logo “Boy’s Tire”, and he parks it at his home. He washes the truck’s cargo deck, body panels, hood and windshield and cleans the interior bending and twisting his upper and lower body, and loads items into the storage lockers at his shoulder height. The surveillance on another day shows Mr. Hill attending at the Boy’s Tire office in January 2010 from 8 o’clock in the morning to around 4 pm, and on another day in early February 2010 from 8:30 a.m. to about 3 p.m.

In his evidence at the hearing and during a June 2010 insurer examination under oath, Mr. Hill explained that his father-in-law allowed him to regularly drive the company truck for personal use because he did not have a car at this time. He helped his father-in-law open the tire business beginning in September 2009 by setting up his business computer system and showing him how to prepare work orders, bills and accounting. Mr. Hill drove to visit customers, accompanied his father-in-law on business, carried equipment, handed him tools, and continued to troubleshoot computer glitches until March 2011.

Mr. Hill said he needed something to do rather than sit around the house. His assertion that he did not work at Boy’s Tire until September 2009 is supported by surveillance in April, June and July 2009 where Mr. Hill is not seen engaged at the office for any length of time.

In his evidence, Mr. Hill was unable to estimate the number of days, hours or specific times he was at Boy’s Tire. However, there is evidence from Ms. Maria Ross, his occupational therapist, who he told in early 2011 that he worked for his father-in-law weekdays from 8:30 a.m. to 5:00 p.m. without pay, but was given time off to pick up his children at school and rest when needed. Mr. Hill told Jevco’s lawyer at a June 2010 examination under oath he could handle all the work duties at Boy’s Tire on good days, but he had bad days when he needed help. Mr. Hill’s examination and Ms. Ross’ evidence about his experience at Boy’s Tire are detailed and relatively consistent. I rely on this consistent evidence as better than Mr. Hill’s vague statements at the hearing.

I am also satisfied that Mr. Hill did not receive employment income from Boy’s Tire.

He previously reported his post-accident work resumption and income at Jensen Tire to Jevco for purposes of set-off against his income replacement benefits. His Jensen earnings disclosure adds credibility to his statement to Maria Ross in 2011 about his job duties and lack of pay at Boy’s Tire in addition to his candid admissions at the examination under oath. Thus, I accept Mr. Hill’s evidence that his father-in-law loaned him and his wife unspecified lump sums of money as a favour from his relatives.

In August 2010, Mr. Hill had a rollover accident driving his camp trailer to Lake Erie, which he reported to another insurer. He testified he was not injured and there is no evidence Mr. Hill sought medical attention, made claims for accident benefits, filed a lawsuit in tort or received subsequent treatments or health evaluations in respect of that accident. Without evidence of injury, treatment or claims, I find that Mr. Hill’s 2010 accident is not a significant contributing factor to the disability determination in this proceeding.

Mr. Hill stopped working with his father-in-law in the 2011 winter due to their disagreements. His separation from Boy’s Tire coincides with his eldest daughter’s move in February 2011 to Milton to attend an out-of-town high school. Kayla began living with her aunt in Milton during school weekdays from March 2011 to June 2012. She was scheduled to resume high school near their Beamsville home in January 2013.

Mr. Hill testified he was driving an hour each way to drop his daughter off in Milton at the beginning of the school week and picked her up before the weekend start. In addition to his twice weekly trips to Milton, Mr. Hill drove to Hamilton and back to attend hour-long GED preparation classes at the Academy starting in October 2011. During the summer of 2012, Mr. Hill testified he once drove two hours each way to have dinner at Pigeon Lake.

I rely on Mr. Hill’s evidence of his regular commuting to Milton and sedentary classes at the Academy during the period from October 2011 to June 2012. This evidence is sufficient, on balance, to undermine his testimony that he cannot regularly remain seated to perform sedentary work more than 30 minutes. His 2012 one-day summer drive to Pigeon Lake is evidence that Mr. Hill’s sitting tolerance continues to improve.

Although Mr. Hill is quite candid about the traumatic and painful events in his life, his current assertion of his sitting tolerance is not accurate. While I do not accept Mr. Hill’s statement of his limited ability to tolerate sedentary work, I agree he continues to suffer from back pain that requires him to take prescription medication that affects his concentration.

The Orthopaedic Opinions:

The testimony of Mr. Hill’s orthopaedic surgeon, Dr. Drew, presents a clear picture of his back condition after the two surgeries, but no disability opinion. Dr. Drew stated he could not correct Mr. Hill’s spinal curvature. His back and right hip pain/thigh discomfort are realistic consequences of the surgeries, and there is little chance of a future bone fusion.

Dr. Drew acknowledges that Mr. Hill has made good efforts to recover. As of Mr. Hill’s last visit during the fall of 2009, Mr. Hill told Dr. Drew he was frustrated with no work and “going stir crazy” at home as well as struggling with limited family finances. Mr. Hill’s muscles had healed around the surgical site, helping it to stabilize, but his diminished back pain required continued pain medication.

There is no dispute that Mr. Hill’s hardware may cause him future problems, and if there is a failure it will have serious consequences for his health. He must be cautious with his activity.

Dr. Brett Dunlop, another orthopaedic surgeon who examined Mr. Hill to prepare a medical/legal opinion in March 2011, found Mr. Hill was forthcoming in his responses and provided good effort during the physical examination. In testimony, Dr. Dunlop agreed with Dr. Drew’s surgical outcome that Mr. Hill is not technically restricted. Mr. Hill suffers no neurological harm from activity, but explained that his permanent forward “kyphotic” bend from the injury has a direct relationship to the degree of chronic back pain, according to his tolerance.

Dr. Dunlop opined that Mr. Hill was not competitively employable in 2011 on information he worked in a sheltered environment for his father-in-law. Dr. Dunlop agrees he did not know Mr. Hill’s specific job duties at the tire companies before or after the accident, and that this information is important to determining Mr. Hill’s work ability. As a result, I reduce the weight of Dr. Dunlop’s opinion that Mr. Hill is not competitively employable.

Dr. Louis Weisleder is an orthopaedic surgeon who was retained in August 2009 by Jevco as part of WorkAble’s team assigned to determine Mr. Hill’s disability entitlement. Dr. Weisleder agrees Mr. Hill put forth valid maximal efforts during the functional tests with the WorkAble team, and did not over-report or dramatize his symptoms. He testified that scar tissue forming from a burst fracture at the T12/L1 junction such as Mr. Hill’s can cause significant pain that varies his day-to-day abilities based on his personal tolerance.

Dr. Weisleder’s report recommended that Dr. Drew continue to oversee Mr. Hill’s recovery until there was a stable fusion of the bones, and should not work until his sitting tolerance increased above an hour. He testified that after reviewing the surveillance he was sufficiently impressed to question Mr. Hill’s limited sitting tolerance, and requested an opportunity to re-assess him. In his evidence, Dr. Weisleder did change his opinion, but stated he was not given the opportunity to re-evaluate Mr. Hill after August 2009.

Mr. Hill’s activities at Boy’s Tire, his distance driving and classroom attendance are important factors that occured after Dr. Weisleder’s examination. Given those missing factors, I accord modest weight to Dr. Weisleder’s opinion that Mr. Hill is not capable of sitting for an hour.

Analysis and Conclusion:

I rely on Mr. Hill’s evidence that he regularly sat for one-hour commutes to Milton and one hour in Hamilton for classes through 2011. The experts did not consider these important demonstrated factors, and they bear more weight than the clinical opinions of Dr. Dunlop and Dr. Weisleder because they were unaware of them. Dr. Drew has no opinion about whether Mr. Hill could sit for an hour and resume suitable employment after March 8, 2010, and his opinion carries no weight in my findings.

The expert opinions are helpful to understand the nature of Mr. Hill’s condition, but not necessarily determinative of his disability outcome. In that respect, I am mindful of comments in Pisani and Simcoe & Erie General Insurance Company and Canadian General Insurance Company³ made by a Director’s Delegate: “[t]he determination of disability cannot be done with absolute precision, particularly in cases involving limitations based on pain. Although entitlement to weekly income benefits must be based on the test established in the Schedule, there is scope for the arbitrator to consider all of the evidence and reach a result that is fair in the particular circumstances of the case.”⁴

In my view, Mr. Hill’s completion of high school during the fall of 2012 makes him more competitive in the employment marketplace. Mr. Hill’s basic school credential combined with his increased and regular ability to sit for more than an hour throughout the previous year persuades me he is able to resume the sedentary duties in the identified office jobs.

While the parties did not provide Mr. Hill’s high school certificate or graduation date, counsel submitted his high school requirements were complete in the fall of 2012. Based on that submission, I reasonably infer Mr. Hill could commence suitable office employment commensurate with his pre-accident experience by September 21, 2012. As a result, I find that Mr. Hill is entitled to income replacement benefits ($400 per week) from March 8, 2010 to September 21, 2012, plus interest according to section 46 of the Schedule.

Special Award:

Jevco requests a dismissal of Mr. Hill’s special award claim on the basis it duplicates his claims in a Superior Court lawsuit. His November 2012 amended statement of claim in that proceeding struck out all claims for accident benefits under the Schedule and “special damages”, but his claims of $1,000,000 for general, exemplary, punitive and aggravated damages against Jevco and its adjusters as a result of their handling practices remain before the Court. The statement makes no mention of a special award claim under subsection 282(10) of the Insurance Act, instead alleging breach of good faith and fair dealing.

Mr. Hill’s lawsuit pleading speaks to the common law and makes no mention of a special award. The unassailable fact that special awards are statutory creatures available only to arbitrators under the 1990 Insurance Act establishes that this remedy cannot be granted to Mr. Hill in Court.

Based on the clear wording of his Court pleading, I find that Mr. Hill does not have a claim under subsection 282(10) of the Insurance Act in his lawsuit. I reject Jevco’s argument for dismissal or delay respecting Mr. Hill’s claim for a special award claim in this arbitration.

Mr. Hill claims that his income replacement benefits were unreasonably delayed or withheld by Jevco, and that the March 8, 2010 benefit termination was unreasonable. He claims to have suffered considerable economic hardship as a consequence of Jevco’s actions. Mr. Hill presented no documentary evidence to support his contention he suffered severe economic hardship. However, it is not disputed that he was the sole financial support for his family following the benefit termination.

Ms. Sharon Hanks presented the Insurer’s evidence concerning Mr. Hill’s claim. Jevco retained Vanler Insurance Adjusters (“Vanler”) at the inception of Mr. Hill’s claim, and Ms. Sharon Hanks was the senior adjuster from Mr. Hill’s initial hospitalization until August 2010.

Ms. Hanks admits that Jevco’s payment of Mr. Hill’s income replacement benefits was sometimes late, and the adjusting records confirm that his varying post-accident income from Jensen did cause difficulty with calculating and issuing regular payments before the second surgery. Ms. Hanks testified that she authorized late payment interest in accordance with the Schedule when those situations occurred and that cheques were couriered to Mr. Hill or his lawyer’s office.

The parties introduced hundreds of pages of benefit explanations without summarizing or identifying the specific alleged late payments. After a cursory review, I am not prepared to take the inordinate amount of this Tribunal’s time resource to analyze the mountain of paper in order to ascertain the facts. Mr. Hill fails to meet his burden of proof, and I find that Jevco did not unreasonably delay payment of Mr. Hill’s income replacement benefits.

Ms. Hanks testified that although Jevco initially agreed with Dr. Weisleder’s September 2009 recommendation to continue paying income replacement benefits, it sent him the June 2009 video for review some months later. Mr. Hill’s refusal to attend Jevco’s March 1, 2010 re-examination request with Dr. Weisleder led to their issuance of a notice to terminate his benefits as of March 8, 2010.

Jevco’s termination was based on an insurer’s right to conduct an examination to determine the insured’s eligibility under section 35(7) of the Schedule. Arbitration precedent establishes that an insurer’s examination right is not unlimited, requiring consideration of the circumstances, but it is the insured’s burden to prove the request is unreasonable.

In this case, a relatively short five months elapsed between WorkAble’s original insurer examination in August 2009 and Dr. Weisleder’s re-assessment request in January 2010. While case law shows that an insured’s privacy should not be intruded upon by examinations without a reasonable time passage, I agree with the precept that an insurer may establish the insured’s health has changed in effective rebuttal.⁵

Ms. Hanks agreed in her evidence that Jevco had the June 2009 surveillance at the time they scheduled the August 2009 WorkAble assessment, but did not provide it to them. She likewise admits that Jevco did not send all available surveillance to Dr. Weisleder. Based on this evidence, I accept that Jevco strategically withheld surveillance from its August 2009 assessment that was significant and relevant to WorkAble’s ability to conduct a complete assessment so that it could justify a second insurer examination request.

Condoning Jevco’s strategy by ruling its re-examination request reasonable, effectively undermines case precedent limiting insurer’s examination rights. Consequently, I find that Jevco’s request for Dr. Weisleder’s to re-examine Mr. Hill in 2010 was not reasonable.

Mr. Hill attended an examination under oath by Jevco’s counsel in June 2010, where he provided details about his activities with his father-in-law at Boy’s Tire. Ms. Hanks testified that she accepted the plausibility of Mr. Hill’s explanation for being at his father-in-law’s business, but she pointed out this showed he had not previously been candid with WorkAble’s assessors about his activities.

Ms. Hanks clearly stated she recommended re-instatement of Mr. Hill’s benefits, which Jevco did not accept. I rely on Ms. Hanks’ evidence and the internal memoranda in Jevco’s adjusting file in finding that the Company primarily relied on the June 2009 surveillance to terminate Mr. Hill’s income replacement benefits.

An insurer that relies on surveillance to terminate benefits should have support from reliable medical opinion, or the surveillance itself should overwhelmingly demonstrate that the insured is actually able to perform his or her tasks.⁶ Here the surveillance shows Mr. Hill fairly active outdoors, using a truck of a tire company. I cannot expect Jevco to obtain video footage of him inside an office, but the surveillance of him active with a company involved in a business similar to his pre-accident employment persuades me it was reasonable to principally rely on it in the absence of a clinical opinion. I find Mr. Hill is not entitled to a special award.

EXPENSES:

Mr. Hill is entitled to his expenses of the arbitration under subsection 282(11) of the Insurance Act based on my finding he is partially successful, the lack of novelty in the issues, and that there were no non-compliance issues, no obstructive hindrances, no improprieties, no vexatious or unnecessary conduct with the parties.

I suggest the parties resolve the quantum in accordance with the Regulations, but they will have to approach another arbitrator for an assessment under Rule 79 of the Dispute Resolution Practice Code if they have a dispute.

April 30, 2013

Fred Sampliner

Arbitrator

Date

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2013 ONFSCDRS 54

FSCO A11-003909

BETWEEN:

MR. ANDREW HILL

Applicant

and

JEVCO INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Jevco shall pay Mr. Hill $400 per week from March 8, 2010 to September 21, 2012, together with interest under the Schedule.

2. Mr. Hill’s claim for a special award is dismissed.

3. Jevco shall pay Mr. Hill his expenses of the arbitration.

April 30, 2013

Fred Sampliner

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Subsection 5(2)(b) of the Schedule
3. 3(OIC P-003939 and P-005693, December 11, 1995) Appeal
4. 4Pembridge Insurance Company and Lesniak (FSCO P06-00021, December 20, 2007), Appeal, Edwards and State Farm Mutual Automobile Insurance Company (OIC P-001707, February 26, 1996), Appeal, Puopolo and Wellington Insurance Company (OIC P-006445, July 25, 1996)
5. 5Smith and Progressive Casualty Insurance Company of Canada (FSCO A01-001267, December 13, 2001)
6. 6Belier and Alpina Insurance Company Limited (OIC A-003051, February 22, 1994)