Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 100

FSCO A13-005199

BETWEEN:

DANNY BASSON

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

Before: Richard Feldman

Heard: October 6, 7, 8 and 9, 2014, at the offices of the Financial Services Commission of Ontario in Toronto. All written submissions were received by March 27, 2015.

Appearances: Martin Zatovkanuk and Jason Schwarz for Mr. Basson

Be Nazeer Damji for Royal & SunAlliance Insurance Company of Canada

The Applicant, Danny Basson, was involved in a motor vehicle accident on April 26, 2011. He applied for statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.¹ Dispute arose concerning the Applicant’s entitlement to certain accident benefits. The parties were unable to resolve their disputes through mediation, and Mr. Basson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is the Applicant entitled to receive a medical benefit in the total amount of $4,785.35 for services provided by Mackenzie Medical between May 2, 2011 and May 28, 2012?
Is the Applicant entitled to receive weekly income replacement benefits (“IRBs”) from May 2, 2011 onwards (less amounts paid by Royal) and, if so, at what weekly rate?
Is the Applicant entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?
Is the Insurer liable to pay the Applicant’s expenses in respect of the arbitration under subsection 282(11) of the Insurance Act?

The Applicant’s claims are dismissed.
The issue of the expenses of this proceeding is deferred.

Overview

According to the Applicant, on the evening of April 26, 2011, he was a seat-belted, driver-side, rear-seat passenger in a vehicle that was struck by another vehicle on the front passenger side. He testified that, as a result of the collision, parts of his body struck the door to his left. He was shaken and waited inside the vehicle. He took a taxi home from the scene of the accident and then sought medical attention a few days later (the records disclose that he attended a medical clinic on April 30, 2011). He then visited Mackenzie Medical Rehabilitation Centre (“Mackenzie”) on May 2, 2011 where he was assessed and received treatment from May through September 2011 (approximately two to three times per week initially and then gradually with decreased frequency).² The Applicant testified that this treatment helped a little, but not much.

The Applicant’s primary reported complaints immediately following the accident included: low back pain, mid-back pain, neck pain, pain in his left shoulder and tension-type headaches. It appears that the Applicant sustained relatively uncomplicated soft-tissue injuries; there is no evidence of any bone fractures or any complete tears of muscles, tendons or ligaments or complete dislocation of any joints. Many assessors (including his own) diagnosed the Applicant with a grade I or II whiplash associated disorder as well as other soft-tissue injuries.

Mackenzie submitted various treatment plans to the Insurer, seeking funding for proposed assessments and treatment. Based upon the documents initially received by the Insurer (including the Disability Certificate of Dr. Edgar, chiropractor, dated May 2, 2011), the Insurer took the position that the Applicant had sustained an impairment that was predominantly a “minor injury” as defined in the Schedule. The Insurer initially denied the plans submitted by Mackenzie because they were submitted on a Form OCF-18 (not a Form OCF-23). The Insurer required that the treatment/assessment plans be submitted on a Form OCF-23 (the form that is supposed to be used, at least initially, for a person who appears to have sustained a minor injury) or that evidence be provided that the Applicant’s impairment fell outside of the minor injury protocol. Mackenzie never responded to this request for evidence but it did eventually (in August 2011) submit a Form OCF-23 to the Insurer. The Insurer then paid the maximum amount payable for assessment and treatment of a minor injury.³ The Insurer has maintained its position that the Applicant’s impairment is predominantly a “minor injury” and has refused to pay for the cost of any additional assessment or treatment.

The Applicant testified that, prior to this accident, he was working at Global Employment Agency (“Global”) for Mr. Elias Mawuena. According to the Applicant’s testimony, his job consisted of clerical work, running errands for Mr. Mawuena and training employees in the use of equipment (primarily forklifts). According to the Employer’s Confirmation Form completed by Mr. Mawuena, the Applicant worked for him for 28 weeks prior to the accident (from September 14, 2010 to April 26, 2011) and earned gross income of $560.00 per week. The Applicant testified, however, that the actual arrangement between him and Mr. Mawuena was much less formal: that he was paid an hourly wage; that the number of hours varied from week to week; that no records were kept concerning his hours or his pay; and that he received a cash payment each week of about $400.00 from Mr. Mawuena. Global did not issue T4 forms to the Applicant prior to the death of Mr. Mawuena, in late 2012. The income earned by the Applicant for his work at Global Employment Agency in 2010 and 2011 was not reported by him to Canada Revenue Agency.⁴ After the accident, the Applicant did not return to his job at Global Employment Agency.

Mr. Basson applied for and received income replacement benefits from the Insurer in the amount of $392.00 per week from May 3, 2011 through September 16, 2011 (a total of $7,672.00). These benefits were terminated effective September 16, 2011 on the basis of a number of insurer examinations which concluded that the Applicant failed to satisfy the relevant test of disability to qualify for income replacement benefits (i.e., he did not, as a result of the accident, suffer a substantial inability to perform the essential tasks of his pre-accident employment).

On November 14, 2011, the Applicant began employment as a forklift operator for Globetrotter Logistics Inc. (“Globetrotter”) and worked there, full-time, until November 9, 2012. The Applicant claims that his performance at work was adversely affected by pain in his back and shoulder and, in November 2012, he was “let go” by Globetrotter due to his poor work performance.

The Applicant testified that he did not work again (after November 9, 2012) until May or June 2014, when he started working one day per week at Ocean Fish.

Credibility of the Applicant

In cases such as this, where the main issue is the extent to which pain is allegedly limiting an applicant’s ability to function, credibility is crucial.

It is critical that an applicant fairly and accurately report any relevant pre-accident medical history and his or her pre- and post-accident level of function. Treating and assessing medical professionals rely upon an applicant to accurately report his or her relevant medical history and symptoms. The opinion of such medical professionals will often only be as reliable as the information provided by the applicant.

In a case where income replacement benefits are claimed, it is also crucial that the applicant accurately report his or her income and the essential tasks of his or her pre-accident employment as well as details of any post-accident employment and income.

Important factual inconsistencies, misrepresentations or material non-disclosure of relevant facts by an applicant, suspicious circumstances and lack of corroboration can all be fatal to an applicant’s claims. Unfortunately, such is the case here.

While I will also touch upon some of these credibility issues subsequently in relation to specific claims of the Applicant, I think it important at the outset to highlight some of the more glaring factual inconsistencies and suspicious circumstances surrounding his claims.

Reports concerning pre-accident medical history

The Applicant was involved in a previous motor vehicle accident in 2003. According to the records and reports of numerous medical professionals who examined the Applicant,⁵ he either denied being involved in any prior accidents (i.e., before April 26, 2011)⁶ or reported that he had fully recovered from the 2003 accident well before 2011⁷ and had no history of any other medical problems.

Contrary to what the Applicant apparently told numerous medical assessors, he testified before me that following the 2003 accident, he experienced pain in his left shoulder, neck, lower back and left knee, that this pain continued from 2003 right up to the time of the 2011 accident and, on a 10–point pain scale,⁸ the pain had only improved from 8-10 out of 10 in 2003 to 4-6 out of 10 in 2011.

It is difficult to reconcile the Applicant's reports to various medical assessors that he had absolutely no relevant pre-accident medical history with his testimony at this hearing concerning this issue. These inconsistencies create doubts as to the reliability of the Applicant as a historian.

Details of pre-accident employment and income

In June 2011, the Applicant submitted to the Insurer an Employer’s Confirmation Form (OCF-2), signed by himself and Mr. Mawuena. It indicated that he had been employed at Global Employment Agency as an “employment consultant” and that his job was to “train employees, solicit employment, escort new employees to their new job, counselling employees”. This form also indicated that the Applicant was paid gross weekly income of $560.00 per week and had been employed for 28 weeks (representing total gross income of $15,680.00 over the period of employment).

The Applicant apparently reported to Dr. Ramlochan that he had been employed at Global Employment Services / Global Immigration Services for five years as a forklift operations trainer and worked 40 – 50 hours per week, transporting new employees to various locations and providing them with personalized instruction on how to use various types of forklifts and loaders present within the facility. The Applicant testified that about half of his time as an employee at Global was devoted to tasks that were not physically demanding (such as clerical work and using his vehicle to drive around, running errands for Mr. Mawuena).

On cross-examination, Mr. Basson admitted that, because he was not paying child support, his driver’s licence was suspended around the time of the 2011 accident.⁹ If part of Mr. Basson’s job at Global was to use a motor vehicle to transport new employees and to run errands for Mr. Mawuena, presumably the loss of the ability to legally drive a vehicle might well have been a factor in his not returning to work at Global.

The Applicant also testified that he was not provided with T4 forms by Global so he did not report his income to Canada Revenue Agency. Mr. Mawuena died in late 2012 and, according to the Applicant, in or about the summer of 2014, the uncle of Mr. Mawuena collected the business records from Global and provided the Applicant with T4 statements for 2010 and 2011. The T4 form for 2010 shows employment income of $6,720.00¹⁰ and the T4 form for 2011 shows employment income of $8,960.00¹¹. These T4 forms bear no date and no signature from the issuer certifying the accuracy of their contents.

The Insurer raised at the hearing as a “preliminary issue” a defence to the Applicant’s IRB claim based on the fact that the income upon which he was basing his claim had not been reported to Canada Revenue Agency. The Applicant then advised the Insurer for the first time that, in September 2014 (just a few weeks before the commencement of this hearing), he had filed revised tax returns for 2010 and 2011 with Canada Revenue Agency (based upon the T4 forms he had recently received from Global). The conclusion of this hearing was delayed to permit the Applicant time to provide documentary evidence to substantiate this allegation. Ultimately, the Insurer withdrew this as a preliminary issue but asked that I consider the circumstances surrounding the late reporting of this income when considering the credibility of the Applicant.

I agree with the Insurer that some of the circumstances surrounding the Applicant’s employment at Global tend to raise questions about his pre-accident employment and income. On the whole, however, the information concerning the Applicant’s pre-accident employment and income is fairly consistent and does not give me nearly as much concern as the failure of the Applicant to accurately report details of his post-accident employment and income.

Post-accident employment and income

According to his revised income tax returns, the Applicant's income in 2010 was $24,070 ($6,720 in employment income from Global and the rest largely from Employment Insurance benefits) and in 2011 was $22,676 ($7,031 in employment income from Globetrotter Logistics Inc., $8,960 in employment income from Global and $6,685 in RRSP income).

The Applicant claims that, as a result of his accident-related impairments, he suffered a substantial inability to perform the essential tasks of his pre-accident employment (at Global). Prior to the summer of 2014, the Applicant provided little information to the Insurer concerning details of post-accident employment or income. Shortly before the hearing (in June 2014), the Applicant produced a printout from Canada Revenue Agency of his reported income for 2012 and 2013.

Having produced his 2012 tax information, the Applicant could not deny having worked for most of 2012 for Globetrotter Logistics Inc. He admitted on cross-examination that his job as a forklift operator at Globetrotter was a more physically-demanding job than the one he had done at Global and that he worked at Globetrotter, without interruption, from November 2011 through November 2012. His reported income from employment in 2012 was $54,672.¹²

Although Mr. Basson claims that he was “let go” by Globetrotter because of poor performance (related to his impairments), the Record of Employment issued by Globetrotter suggests otherwise (i.e., the reason given in the Record of Employment is "shortage of work") and Mr. Basson did not call anyone from Globetrotter as a witness at this hearing to testify as to the reason his employment was terminated.

At the hearing, the Applicant testified that he did not work at all between November 2012 (when he was “let go” by Globetrotter) and May or June 2014, when he began working one day per week cleaning fish. When confronted with his reported employment income for 2013 (total earnings as shown on T4s) of $21,495¹³, Mr. Basson stated that he could not recall working in 2013 and could not identify his employer.

With respect to his job cleaning fish, Mr. Basson stated that he started that job in May or June 2014. He stated that he works one day per week, for twelve hours. It involves standing the entire time (with some breaks) while scrubbing fish to remove the scales. He testified that he is paid $180.00 per day ($15.00 per hour for 12 hours). He produced a “pay stub” to verify this (Exhibit 14 -- entitled "Advice Slip"). A careful review of this document, however, shows that it is not issued by “Ocean Fish", the place where the Applicant testified he cleans the fish. Rather, it is issued by Temporary Measures Inc., an employment agency. It confirms that, at least recently, the Applicant has been earning $180.00 per week, as stated by the Applicant. It also reveals (under the heading, “Year to Date Totals”) that, up to August 2014, the Applicant had already earned gross employment income in 2014 from Temporary Measures Inc. in the total amount of $19,844.44.

The Applicant then admitted that he had done various jobs through this employment agency both in 2013 and in 2014. He did not dispute the accuracy of the figures in the Advice Slip from Temporary Measures Inc. (Ex. 14). Mr. Zatovkanuk, counsel for the Applicant, advised me that he had previously requested that the Applicant produce any documentation concerning his post-accident earnings and that, like myself and counsel for the Insurer, Mr. Zatovkanuk was only seeing this document for the first time, on the fourth day of this hearing.

Thus, although the Applicant disclosed (for the first time) at the hearing that he had done some work in 2014 (cleaning fish), the document he produced to verify his weekly income from that job also inadvertently disclosed substantial employment income for 2014 that the Applicant had not intended to reveal. I find that the Applicant's disclosure of his post-accident employment and income has been untimely, unreliable and incomplete.

Ultimately, what emerged from this hearing is a picture of a person who has demonstrated the ability to do numerous, physically-demanding jobs for significant periods of time post-accident and who has been less than forthcoming with details of those jobs or the income earned therefrom.

Causation

For the reasons set out above, I have serious reservations about the credibility of the Applicant. I find that I cannot rely upon him to accurately report his pre-accident medical condition, the level of functional impairment that has resulted from his reported pain or his history of post-accident employment and income. Nevertheless, I do believe the Applicant when he says that he has been experiencing pain over the last few years, primarily in his back and left knee. I am not satisfied, however, that Mr. Basson has proven that his ongoing symptoms were caused by the 2011 accident.

Dr. Efala, orthapaedic surgeon, was retained by and examined the Applicant in August 2013. Dr. Efala makes the following diagnoses:

degenerative disc disease of the cervical spine
left C6 nerve root radiculopathy
lower back pain, not yet diagnosed
myofascial injuries of the left shoulder
possible left knee osteoarthritis

Dr. Efala testified that there may have been pre-existing arthritis in the Applicant’s left knee that could have been aggravated by the accident. This conclusion, however, is based (at least in part) on the Applicant’s report to Dr. Efala that he immediately felt pain in his left knee after the April 2011 accident. There is no record of the Applicant having complained of this, however, until December 2012. If the pain in the left knee is related to a meniscal tear, Dr. Efala testified that that is not likely related to the 2011 accident. On cross-examination, Dr. Efala conceded that the Applicant’s knee complaints are not likely related to the 2011 accident.

With respect to back and neck pain, the Applicant suggests that there is physical evidence to support his subjective complaints, as revealed in a CT scan of his cervical spine (dated March 31, 2013). The report related to this CT scan concludes that this imaging reveals degenerative changes in several locations, including degenerative disc changes with “C6-7 level .... small left paramedian disc herniation compressing the left C7-9 nerve root.”

Dr. Lexier, orthopaedic surgeon, was retained by the Insurer within a few months of the accident and he examined the Applicant in August 2011. He also had the opportunity to review and testify about the conclusions contained in Dr. Efala's report. Dr. Lexier testified that he disagrees with Dr. Efala's diagnosis of “left C6 nerve root radiculopathy” (as well as Dr. Efala’s conclusion that this is related to the 2011 accident) for the following reasons:

a CT scan does not have contrast and is not as accurate as an MRI
sensory change (as noted by Dr. Efala) is the weakest evidence of nerve root involvement and there was no other neurological evidence to support this conclusion
if there truly was nerve root impingement because of disc herniation at C6-7, the loss of sensation would have been found at the C7 root level (not the C6 root level, as found by Dr. Efala)
the neurological testing done closer in time to the accident was normal and there were no complaints of radiculopathy at the time of the insurer examinations in August 2011
it is highly unlikely that a C6-7 prolapse and radiculopathy would be caused by this type of accident¹⁴ and, even if they were, the symptoms would be immediate (and would not appear, for the first time, months or years later), severe and so disabling that the Applicant would not have been able to work as a forklift operator for one year post-accident.

Based upon all of the foregoing, with respect to the C6-7 level disc herniation, I prefer the opinion of Dr. Lexier. He saw the Applicant closer in time to the accident and had access to documentation that was not provided to Dr. Efala. I find that the Applicant has failed to prove, on a balance of probabilities, that this disc prolapse was caused by the 2011 accident. Similarly, I find that the Applicant has failed to prove, on a balance of probabilities, that his left knee impairment was caused by the 2011 accident.

Of course, it is possible for a person with pre-existing degenerative disc or other conditions to have those conditions worsened or made symptomatic as a result of a motor vehicle accident. Given my assessment of the Applicant's credibility, however, it is impossible for me to rely upon his subjective complaints or to conclude that any pain he may have experienced after August 2011 (i.e., more than four months post-accident) was caused or exacerbated by the April 2011 accident.

Minor Injury

The Insurer has maintained its position that the Applicant’s impairment is predominantly a minor injury. Pursuant to the Minor Injury Guideline (“MIG”) that was in place at the time of this accident, an insured person's impairment comes within the MIG if the impairment is predominantly a “minor injury” unless, based on compelling evidence provided by his or her health practitioner,¹⁵ the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the Schedule or is limited to the goods and services authorized under the MIG. A “minor injury” is defined in the MIG as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is meant to be interpreted to apply where a person sustains any one or more of these injuries. A minor injury does not include: a bone fracture; any complete tear of muscles, tendons or ligaments; or, complete dislocation of any joint.

The Applicant advances two alternative arguments as to why his impairments do not fall within the MIG. First, he argues that he had a pre-existing medical condition that prevented him from achieving maximal recovery from the minor injury if he was subject to the $3,500 limit referred to in section 18(1) of the Schedule or if he was limited to the goods and services authorized under the MIG. In the alternative, he submits that the chronic pain he developed after the accident takes him out of the MIG (because chronic pain is not a clinically associated sequela).

With respect to the first argument (pre-existing condition), I find that the Applicant has failed to adduce compelling evidence from his health practitioner that he had a relevant pre-existing medical condition that would exclude him from the MIG. Dr. Mascarenhas, general practitioner, examined the Applicant in July 2011 and diagnosed cervical strain (WAD I/II) and lumbar strain. He concluded that the Applicant sustained an impairment that was primarily a minor injury and that there was no compelling evidence of a pre-existing medical condition. He examined the Applicant again in October 2013 and came to essentially the same conclusion.

With respect to the Applicant’s pre-accident medical condition (i.e., prior to April 26, 2011), given my findings concerning his credibility, I am not prepared to rely exclusively upon his testimony concerning this issue, especially where his testimony contradicts what he previously reported to numerous medical practitioners. The Applicant failed to provide any reasonable explanation for these contradictions. The medical records related to the issue of the Applicant's pre-accident medical condition are, at best, equivocal. The Applicant's family physician(s) could reasonably be expected to possess reliable, first-hand knowledge concerning the Applicant's pre-accident condition but the Applicant did not call his previous or current family doctor to testify at these proceedings. The evidence, such as it is, of a pre-existing condition is far from compelling. Even if there had been persuasive evidence of a pre-existing medical condition, that is not enough to take a person out of the minor injury protocol. There must be compelling evidence provided by the insured person's health practitioner that the presence of that pre-existing medical condition will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit referred to in section 18(1) of the Schedule or if he or she is limited to the goods and services authorized under the MIG. There is no such compelling evidence in this case.

With respect to the second argument (chronic pain), it is arguable that certain types of chronic pain that develop from what originally appeared to be a minor injury might take a person out of the MIG. However, on the facts of this case, given both the Applicant's poor credibility and the fact that he has failed to prove that much of his ongoing pain was caused by the 2011 accident, this argument also fails.

On the facts of this case, I find that the impairment the Applicant sustained as a result of the 2011 accident is predominantly a "minor injury".

Medical / Rehabilitation Benefits

As explained above, I have found that the impairment the Applicant sustained as a result of the 2011 accident is predominantly a “minor injury” and that he has failed to adduce compelling evidence from his health practitioner that he had a relevant pre-existing medical condition that would exclude him from the MIG.

Since the Insurer has already paid the maximum amount required under the MIG (give or take 80 cents), no other medical/rehabilitation benefits are payable under the Schedule in this case.

Income Replacement Benefits

A person who is employed at the time of the accident is entitled to income replacement benefits (“IRBs”) if he can prove that, as a result of and within two years of the accident, he suffers a substantial inability to perform the essential tasks of that employment. No IRBs are payable for the first week of the disability. The Insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

Dr. Ramlochan, chiropractor, conducted a functional capacity evaluation of the Applicant and a “job-site” analysis in August 2011. Dr. Ramlochan found that the Applicant's performance on functional testing was inconsistent, unreliable and invalid. Dr. Ramlochan's overall conclusion was that the Applicant did not, as a result of the 2011 accident, suffer a substantial inability to perform the essential tasks of his employment.

Dr. Lexier, orthopaedic surgeon, conducted an orthopaedic assessment of the Applicant in August 2011. From an orthopaedic and musculoskeletal perspective, Dr. Lexier concluded that the Applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

Based upon these reports, the Insurer terminated IRBs effective September 16, 2011.

Within two months of IRBs being terminated, on November 14, 2011, the Applicant began employment as a forklift operator for Globetrotter. He worked there, full-time, until November 9, 2012. The fact that the Applicant began a physically-demanding job within a couple of months of the assessments by Dr. Ramlochan and Dr. Lexier and was able to continue to do that job for one year suggests to me that Dr. Ramlochan and Dr. Lexier got it right -- by September 2011, the Applicant could have performed the essential tasks of his pre-accident employment.

The Applicant maintains that he had to stop working for Globetrotter on November 9, 2012 because he could not do the job as quickly as his employer demanded. There is no evidence from Globetrotter to support this but, even if it is true, that does not mean that the Applicant, between November 10, 2012 and April 26, 2013, could not have performed the essential tasks of his less-physically-demanding, pre-accident employment.

Dr. Efala examined the Applicant in August 2013. This was more than 104 weeks post-accident. Based upon the Applicant's subjective reports of severe pain in his back, neck, shoulder and left knee and his assertion that he had to stop working at Globetrotter because of this pain, Dr. Efala concluded that the Applicant could probably not do any work that involved prolonged standing or sitting or frequent lifting or bending. Dr. Efala, however, was provided with virtually no documentation concerning the Applicant and he had no reason to doubt what he was being told by the Applicant. Dr. Efala also specifically stated during his testimony that he was offering no opinion with respect to the Applicant's entitlement to post-104-week IRBs.¹⁶ The Applicant has adduced no medical opinion that explicitly states that the Applicant meets the disability test for post-104-week IRBs.

Had Mr. Basson provided me with credible evidence concerning both his alleged impairment and his alleged loss of income, he may have been awarded at this hearing income replacement benefits for the period from September 17, 2011 to November 13, 2011 and/or from November 10, 2012 to April 26, 2013. To be entitled to any IRBs after April 26, 2013, he would have to have established a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. The Applicant's selective and inconsistent reporting of symptoms, employment and income, however, completely undermines his credibility and precludes my awarding any IRBs to him for any period of time.

Despite the Applicant’s failure to provide important details about post-accident employment and income, the evidence is clear that the Applicant was able to do a much more physically-demanding job for one year post-accident (at Globetrotter) as well as numerous other jobs (for which few particulars have been provided). The onus is upon the Applicant to adduce sufficient evidence to: (1) prove, on a balance of probabilities, that he is entitled to IRBs; and (2) permit calculation of the amount of any such benefits. Significant post-accident income from employment is often important both because it speaks to the issue of an applicant’s ability to work and also because post-accident income will usually affect the quantum of IRBs payable to an applicant.

According to his revised income tax returns, the Applicant's income from employment was about: $7,000 in 2010; $16,000 in 2011; $55,000 in 2012; $21,000 in 2013; and $20,000 by August of 2014. In 2012, the Applicant was able to work full-time as a forklift operator (and we have only his word for it that he was not performing adequately at this job) and in 2014 he could stand for 12 hours at a time, cleaning fish. This all speaks to substantial functional ability, not inability, even if the Applicant has been experiencing some lingering pain (which may, or may not, be related to the 2011 accident).

For the foregoing reasons, the Applicant's claim for income replacement benefits is denied.

Special Award

The Applicant indicated at the pre-hearing conference that he would be seeking an order for a special award. He undertook at the pre-hearing conference to provide particulars of this claim at least 90 days before hearing. He failed to do so.

At the beginning of this hearing, the Insurer moved that this claim be struck due to the failure of the Applicant to comply with his undertaking. After considering the submissions of both parties, I granted the Insurer's motion and struck the Applicant's claim for a special award. Even had I not so ordered, however, this issue would be moot since there can be no special award where all of the Applicant's claims have been dismissed.

EXPENSES:

With respect to expenses, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request to me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

May 7, 2015

Richard Feldman Arbitrator

Date