Neutral Citation: 1994 ONICDRG 129
File No. A-004436
ONTARIO INSURANCE COMMISSION
BETWEEN:
DALVIR S. NJJJAR
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Dalvir S. Nijjar, was injured in a motor vehicle accident on June 16, 1992. He applied for and received statutory accident benefits from the Co-operators General Insurance Company ("the Co-operators"), payable under Ontario Regulation 6721.
Mr. Nijjar received weekly income benefits of $205.37 per week until December 24, 1992, when they were terminated. He applied for mediation, but the dispute was not resolved. He then applied for arbitration.
Mr. Nijjar claims that he continued to be eligible for weekly income benefits until May 10, 1993. He also claims that the correct amount of his weekly income benefits is $560 per week. The Co-operators maintains that by October 21, 1992, Mr. Nijjar was able to return to work and, therefore, was no longer eligible for weekly income benefits. It also submits that he was only entitled to weekly income benefits of $185.60 per week.
The issues in this hearing are:
Is Mr. Nijjar entitled to weekly income benefits, under section 12 of the Schedule, for any of the period from October 21, 1992 to May 10, 1993?
What is the correct amount of Mr. Nijjar's weekly income benefits, calculated according to section 12 of the Schedule?
Was Mr. Nijjar paid benefits in excess of his entitlement and, if so, should he be required to repay any amount to the Co-operators, according to section 27 of the Schedule?
Mr. Nijjar also claims interest on any outstanding amounts, and his expenses incurred in the arbitration. The Co-operators claims interest on any amount that Mr. Nijjar is required to repay.
Result:
Mr. Nijjar is not entitled to weekly income benefits for any period after October 20, 1992.
Mr. Nijjar has not established his entitlement to more than the minimum amount of $185.60 per week.
Mr. Nijjar was overpaid by $2,243.96. He must repay this amount, together with interest from the date of this decision, calculated according to section 27 of the Schedule.
Mr. Nijjar is not entitled to his expenses.
Hearing:
The hearing was held in North York, Ontario, on January 17 and 18, 1994, before me, David Draper, arbitrator.
Present at the Hearing:
Applicant:
Dalvir S. Nijjar
Applicant's Representative :
Harpal Brar, Brar Paralegal Immigration Services
Insurer's Representative:
Stephen M. Malach, Barrister and Solicitor
Insurer's Officer:
Judy Slauson (on January 17, 1994)
Court Reporter:
E. "Manny" Strauch, Holley and Strauch, Court Reporters
Witnesses:
Dalvir S. Nijjar, applicant
Balraj Kang, co-worker
Gary Little, investigator
Exhibits:
Seventeen exhibits were filed and are listed in Appendix A. In addition to the exhibits, the following documents were before the arbitrator:
Report of Mediator, dated May 25, 1993.
Application for Appointment of an Arbitrator, dated June 8, 1993.
Response by Insurer, dated August 9, 1993.
A letter, dated October 4, 1993, confirming a pre-hearing discussion that took place on September 28, 1993.
Reasons for Decision:
Mr. Nijjar has the onus of proving his claim. He failed to do so. The central problem is that his evidence was not credible. Not only did he rely on documents that he acknowledged were false, but his testimony was inconsistent and implausible.
1. Eligibility
Mr. Nijjar was involved in a motor vehicle accident on June 16, 1992. He applied to the Co-operators and received weekly income benefits under section 12 of the Schedule, which provides:
12(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3). [emphasis added]
The Co-operators paid weekly income benefits of $205.37 from June 24, 1992 until December 24, 1992, when they were terminated. In light of the investigation evidence, however, the Insurer's position is that Mr. Nijjar is not eligible for weekly income benefits for any period after October 20, 1992. Mr. Nijjar claims that he continued to be eligible until May 10, 1993, when he started a full-time job at Springdale Supermarket.
Mr. Nijjar's position is that, at the time of the accident, he was employed as a baker at Cross-Ways Donuts. He testified that 894041 Ontario Limited, which operated as Cross-Ways Donuts, was established in May 1990. Initially, Mr. Nijjar held 25 shares, Mr. Singh also held 25 shares and Mr. O. Kang held 50 shares. In addition to his partnership interest, Mr. Nijjar worked as a baker at Cross-Ways Donuts and received a wage.
According to Mr. Nijjar, the partnership of Cross-Ways Donuts changed on April 23, 1992. Mr. Mand purchased 24 of Mr. Nijjar's 25 shares, and all of Mr. Singh's 25 shares. Mr. O. Kang retained his 50 shares. Mr. Nijjar explained that he retained one share because the company had to have at least one partner who was a Canadian citizen. Mr. Nijjar testified that he continued to work as a baker after the change in the partnership.
Mr. Nijjar had a number of responsibilities at Cross-Ways Donuts, including baking doughnuts, making soup, serving customers, cleaning the shop at the end of the shift, and keeping the payroll book. I accept that his work as a baker was reasonably demanding. He used a heavy mixer and bowl, and had to handle large quantities of flour and other ingredients.
The issue to be determined is whether, as a result of his accident, Mr. Nijjar was substantially unable to perform the essential tasks of his pre-accident employment as a baker for any period from October 21, 1992 to May 10, 1993.
The medical evidence in this case is extremely limited. At the close of the Applicant's case, the only medical evidence that had been presented was a handwritten note from Dr. Finkelstein, dated April 22, 1993, stating:
Dalvir Nijjar is under medical care. It is anticipated that he will be able to do a light job in the near future
This note is not particularly helpful. It does not specify Mr. Nijjar's medical problems, or relate them to his accident. I was concerned about the lack of medical evidence and, therefore, asked Mr. Malach to provide the medical forms that Mr. Nijjar had submitted to the Co-operators. After stating his position that it was not up to the insurer to prove the applicant's case, Mr. Malach provided a medical brief containing three Medical or Psychological Report forms completed by Dr. Finkelstein, and two reports from Pro Action Physiotherapy. I appreciate Mr. Malach's position, but believe that in order to evaluate Mr. Nijjar's claim, I require, at a minimum, the medical forms that he submitted in support of his claim.
Dr. Finkelstein's medical forms do not provide a great deal of information. On July 7, 1992, approximately three weeks after the accident, his diagnosis was cervical and lumbar strain. His estimate of when Mr. Nijjar would be able to return to work, or his normal activities was, "not yet determined".
On September 11, 1992, approximately three months after the accident, Dr. Finkelstein noted that in addition to cervical and lumbar strain, Mr. Nijjar had exacerbation of right knee pain. It is not clear why the knee problem was not included in the original report. Dr. Finkelstein again indicated that he had "not yet determined" when Mr. Nijjar would be able to return to work or normal activities.
Dr. Finkelstein completed a third medical form on October 19, 1992. The diagnosis was cervical strain, lumbar strain and right knee patella femoral disorder. Once again, Dr. Finkelstein indicated that he had "not yet determined" when Mr. Nijjar would be able to return to work or normal activities.
The reports from Pro Action Physiotherapy are also not particularly helpful. They indicate that Mr. Nijjar attended for physiotherapy from July 1, 1992 to February 26, 1993, when he stopped attending without advising the clinic. There is no evaluation of his ability to work. I also note that Mr. Nijjar was referred to Pro Action Physiotherapy by Dr. Malhotra, although the only doctor mentioned during the course of the hearing was Dr. Finkelstein.
In October 1993, the Co-operators was still paying weekly income benefits to Mr. Nijjar. It did not arrange for a medical examination, as it could have under the Schedule, but it retained Northwood & Associates Incorporated to investigate Mr. Nijjar. Mr. Little, the investigator assigned by Northwood & Associates, testified at the hearing. I have no difficulty accepting his evidence. He testified clearly about what he observed, and readily acknowledged what he was unable to see. In addition, his testimony was supported by videotape and photographic evidence.
Mr. Little went to Cross-Ways Donuts and was informed by an employee that Mr. Nijjar usually worked the night shift. Mr. Nijjar returned to Cross-Ways Donuts on October 21, 1992. I note that this is just two days after Dr. Finkelstein's third report, in which he indicated that it was "not yet determined" when Mr. Nijjar would be able to return to work.
On October 21, 1992, Mr. Little observed the Cross-Ways Donuts shop from 10:44 p.m. until 6:36 a.m. the next morning. Mr. Nijjar was the only employee that he saw. He wore a white, full-length apron, and appeared to be performing all of the night shift duties without difficulty, including waiting on customers, clearing and cleaning tables, cleaning ashtrays, making coffee, carrying trays of doughnuts, and stocking the shelves. Mr. Little did not have a clear view of the kitchen, but noticed that Mr. Nijjar spent a great deal of time in the kitchen and regularly washed his hands when he returned to the front of the store. Mr. Nijjar left the store at 6:03 a.m., when it appeared that a woman, whom Mr. Little believed to be Mrs. Nijjar, started waiting on customers.
The Co-operators instructed Mr. Little to return to Cross-Ways Donuts one more time, which he did on October 28, 1992. When he arrived at 10:00 p.m., Mr. Little did not see Mr. Nijjar, or his car. A young man, who was serving customers, was the only employee observed. Based on Mr. B. Kang's testimony at the hearing, I find that he was the employee that Mr. Little saw. At 10:46 p.m., Mr. Nijjar arrived. Mr. B. Kang left at 11:03 p.m. Mr. Nijjar was the only employee seen in the shop after 11:03 p.m. He was wearing an apron and doing essentially the same tasks as on October 21, 1992. Mr. Little discontinued his surveillance at 1:30 a.m.
In my opinion, the videotape evidence supports Mr. Little's testimony. Mr. Nijjar is seen moving around the shop with no obvious restrictions, and he certainly appears to be working. Mr. Brar challenged the accuracy of Mr. Little's evidence and suggested that he simply reported what the Co-operators paid him to find. I find no substance to Mr. Brar's criticisms, which amounted to little more than nit-picking.
For example, Mr. Brar argued that on October 28, 1992, Mr. Little was positioned in front of Cross-Ways Donuts and, therefore, could not have observed Mr. Nijjar entering the premises via the back door, as stated in his notes. Mr. Little explained, quite reasonably, that after watching Mr. Nijjar drive around to the back of the store and appear moments later in the store, he assumed that Mr. Nijjar had entered the store via the back door, which he knew was there.
Mr. Brar also submitted that I should disregard Mr. Little's notes because his entries are dated October 21 and 28, 1992, although the morning entries relate to October 22 and 29, 1992. It is difficult to take such a submission seriously, particularly in light of Mr. Little's unchallenged oral evidence that he started his observations late on October 21 and 28, 1992 and remained into the early hours of the next day.
Mr. Nijjar's explanation of the surveillance evidence was that he went to Cross-Ways Donuts on a voluntary basis when one of the bakers called him for help. He insisted that when he was there, another baker was always in the kitchen doing the baking. He acknowledged that he might have served customers, but only if the baker was too busy. He denied that he carried trays of more than three or four doughnuts, cleared tables, or emptied ashtrays.
Mr. B. Kang testified on behalf of Mr. Nijjar. He is the brother of Mr. O. Kang, the 50% owner of Cross-Ways Donuts. He said that he called Mr. Nijjar for assistance "on quite a few occasions" - five, six or seven times. Mr. B. Kang stated that Mr. Nijjar generally came in for an hour or two, but might have stayed for a full shift "the odd time".
I do not find the explanation provided by Mr. Nijjar and Mr. B. Kang credible, and prefer the evidence of Mr. Little. It is possible, although somewhat implausible, that Mr. Nijjar would have been willing to provide voluntary assistance to the bakers at Cross-Ways Donuts. According to his testimony, his only interest in the company in October 1992 was a 1% share. It is also not clear why Mr. B. Kang would have required assistance. According to his testimony, he had worked at Cross-Ways Donuts for three years, and subsequently purchased the business in December 1992.
In addition to my general concerns about Mr. Nijjar's credibility, his memory was selective about his "help" at Cross-Ways Donuts. He acknowledged being there on the nights that he was observed by Mr. Little, but could not remember whether he was there any other times in October, November, December, January or February. I am not prepared to accept that it was coincidental that Mr. Nijjar was at the doughnut shop, apparently working the night shift, on the only two nights that Mr. Little observed Cross-Ways Donuts.
The videotape shows Mr. Nijjar wearing an apron. He insisted that he wore an apron because it was a company rule that anyone behind the counter had to wear an apron. On cross-examination, Mr. B. Kang was asked if everyone who went behind the counter had to wear an apron. He seemed puzzled by the question and answered that an apron was not necessary unless the person was baking. In my view, however, the most striking aspect of Mr. Kang's evidence was that although he maintained that Mr. Nijjar was not working "as such", he made no reference to any physical restrictions faced by Mr. Nijjar.
Mr. Brar suggested that someone else could have been in the kitchen doing the baking without being observed by Mr. Little. The long periods that Mr. Little observed the shop makes that unlikely, particularly given Mr. Nijjar's testimony that he only served customers when the baker was too busy. In addition, Mr. Kang testified that he "often" went out to the front of the shop when he was baking.
Mr. Nijjar's position certainly would have been stronger if he had been able to provide company records showing that someone else was paid for the night shift on October 21 and 28, 1992. No such records were produced, although it would appear that Mr. Nijjar and Mr. Kang would have access to the company records.
The Co-operators asked Mr. Little to do additional surveillance in April 1993. By this time, Mr. Nijjar had applied for mediation. Mr. Brar submitted that if the Co-operators had been sure that Mr. Nijjar was not eligible for benefits, it would not have arranged for any further surveillance. I draw no such conclusion.
On April 12, 1993, Mr. Little observed Mr. Nijjar and his wife unlock the Springdale Supermarket in the morning. Mr. Nijjar did not deny this. Mr. Little then observed him put on a supermarket smock and perform various duties, including arranging the produce, using the cash register, and bagging groceries. Mr. Nijjar closed the store at 8:35 p.m. In my opinion, the videotape clearly shows Mr. Nijjar working. He appears to be covering and watering the produce, a routine that was obviously familiar to him.
Mr. Little returned to Springdale Supermarket on April 15, 1993. Mr. Nijjar and his wife arrived at 8:44 a.m. The store had already been opened by another man. Mr. Little observed and took pictures of Mr. Nijjar carrying boxes from the trunk of the car into the store. Mr. Nijjar was still at the store at 5:00 p.m., when Mr. Little was instructed to discontinue his surveillance for the day.
Mr. Little made a third visit to Springdale Supermarket on April 21, 1993 at 5:07 p.m. Mr. Nijjar was there and remained until 7:00 p.m.
When Mr. Nijjar was asked about being at the Springdale Supermarket in April 1993, he initially testified that he might have been there looking for a light job. He denied that he worked a full day or received any pay. He then testified that he was checking out the supermarket for Mr. Mand, one of the former partners in Cross-Ways Donuts. I find Mr. Nijjar's explanation incredible, particularly in light of the fact that he acknowledges that he started a full-time job at Springdale Supermarket on May 10, 1993. His insistence that he was not working at the supermarket makes it difficult to believe any of his evidence.
I have no hesitation in concluding that Mr. Nijjar has not established that he was eligible for weekly income benefits for any period after October 20, 1992. The evidence does not support a finding that he was unable to perform the essential tasks of his pre-accident employment after that date. In fact, the evidence strongly suggests that he was working.
2. Quantum
According to section 12, weekly income benefits are calculated based on the applicant's gross weekly income for the four or fifty-two weeks preceding the accident, whichever is greater. The Co-operators paid Mr. Nijjar weekly income benefits of $205.37, apparently based on his earnings in the fifty-two weeks preceding the accident.
However, Mr. Nijjar is basing his claim on his employment income from Cross-Ways Donuts in the four weeks preceding his accident on June 16, 1992. He claims that he earned $700 per week ($100/night x 7 days = $700). His entitlement to weekly income benefits, therefore, would be $560 per week ($700 x 80%).
In support of his claim, Mr. Nijjar provided a payroll book, photocopies of pay slips and his 1992 income tax return, including his T4 slip. The payroll book includes entries for a number of employees for the weeks ending March 1, 1992 to August 9, 1992. Mr. Nijjar is shown as having income in only six weeks in 1992, as follows:
Week ending
Nights worked
Gross pay
Total deductions
Cheque issued
May 17
7
$700
$129.60
$571.40
May 24
7
$700
$129.60
$571.40
May 31
7
$700
$129.60
$571.40
June 7
7
$700
$129.60
$571.40
June 14
7
$700
$129.60
$571.40
June 21
1
$100
$3.92
$96.08
This information is essentially repeated on the pay slips. On his 1992 personal income tax return, he declared a gross income of $3,600 [($700 x 5) + $100 = $3,600)], as reflected on his T4 slip.
The Co-operators asked Mr. Edwards, a forensic accountant with Coopers and Lybrand, to examine certain documents, including the payroll book and the pay slips. Mr. Edwards expressed the following concerns:
The payroll book appears to be brand new, not marked and stained as would be expected of a book that had been used for five months.
The payroll book only includes seven employees, although the business apparently employed many more people.
The payroll book shows calculation errors in some of the employee's pay. [I note that Mr. Nijjar's own income has the same calculation error in five consecutive weeks. If his deductions were $129.60, his net income should have been $570.40, not $571.40.]
The numbers on Mr. Nijjar's pay slips are every other number, which suggests that only one other employee was receiving pay slips.
In my opinion, these are valid concerns which cast serious doubt on the credibility of the documents. It is clear that the payroll book, which was kept primarily by Mr. Nijjar, is not a complete and accurate business record. Mr. Nijjar and Mr. B. Kang both acknowledged that a number of employees were paid cash and not included in the payroll book. For example, Mr. Kang is not listed at all and Mr. Nijjar is not included before the week ending May 17, 1992.
On cross-examination, Mr. Nijjar was asked how anyone could believe that he earned $700 per week. His response was that $100 per night was the going rate for bakers. It is significant, therefore, that none of the other employees listed in the payroll book earned $100 per night, or per shift. The one employee who is described as a baker is listed as earning $10 per hour.
Mr. Nijjar's personal financial records are also inaccurate. Although he acknowledged that he worked at Cross-Ways Donuts throughout 1991, and was entitled to a wage and his partnership share, his 1991 income tax return shows no income at all from Cross-Ways Donuts. He admitted that his income tax return was false, but testified that his partners wanted it this way and did not issue him a T4 slip for his income. This is inconsistent with Mr. B. Kang's testimony that he received a T4 slip in 1991 and 1992.
On November 12, 1993, well after his application for arbitration, Mr. Nijjar filed his 1992 income tax return, together with a T4 slip, declaring gross income from Cross-Ways Donuts in 1992 of only $3,600. This is the amount shown in the payroll book and the pay slips for the six weeks ending May 17, May 24, May 31, June 7, June 14 and June 21, 1992. Mr. Nijjar testified, however, that he worked steadily at Cross-Ways Donuts from January 1, 1992 until the accident on June 16, 1992. If this is true, then the gross income listed in his 1992 income tax return is not.
Once again, Mr. Nijjar explained that the original partners of Cross-Ways Donuts did not issue him a T4 slip. It was only after the change in partners on April 23, 1992, that his income was properly reported. I do not accept this explanation.
Until April 23, 1992, Mr. Nijjar had a 25% interest in the company, and had an obligation to ensure that it operated legally. He also had an obligation to report his personal income accurately to Revenue Canada. I note that his failure to report his income to Revenue Canada was not limited to his wages. According to Mr. Nijjar's letter to the Canadian High Commission, Mr. Mand paid $150,000 for 49 shares of Cross-Ways Donuts, including 24 of Mr. Nijjar's shares. Mr. Nijjar did not include his portion of the purchase price in his 1992 income tax return.
Mr. Nijjar's suggestion seems to be that the new partners adopted a more honest approach to the company's bookkeeping. If that were the case, I would have expected to see a change in the payroll book, which was clearly inaccurate. However, no significant change is seen in the accuracy of the payroll book after April 23, 1992.
On cross-examination, Mr. Nijjar was asked why his income was only recorded from the week ending May 17, 1992, if the partnership changed on April 23, 1992. He responded that part of the new partnership agreement was that he would work for free for two weeks. In my opinion, this is not believable and was simply a weak attempt by Mr. Nijjar to explain away an obvious flaw in his evidence.
I conclude that the evidence provided by Mr. Nijjar about his pre-accident income is unreliable and cannot be used to calculate his weekly income benefits. Therefore, he is entitled to receive only the minimum amount of $185.60 per week.
3. Overpayment
Mr. Nijjar received benefits of $205.37 per week from June 24, 1992 to December 24, 1992. For the reasons set out above, I conclude that he is only entitled to $185.60 per week from June 24, 1992 to October 20, 1992. I conclude, therefore, that he was overpaid by $2,067.34, calculated as follows:
June 24, 1992 - October 20, 1992 (17 weeks)
Weekly income benefits received ($205.37 x 17)
$3,491.29
Entitlement ($185.60 x 17)
3,155.20
$ 336.09
October 21, 1992 - December 24, 1992 (9 weeks + 2 days)
Weekly income benefits received ($205.37 x 9.29)
$1,907.89
Entitlement
Nil
$1,907.89
Total overpayment
$ 336.07
1,907.89
$2,243.96
It was suggested by Mr. Brar that the Co-operators delayed its decision to terminate Mr. Nijjar's weekly income benefits. I find, however, that Mr. Little did not send his initial report to the Co-operators until November 23, 1992. Mr. Nijjar's benefits were terminated, effective December 24, 1992. I do not find that the delay was excessive and conclude that Mr. Nijjar was overpaid "through error or fraud" and, according to section 27 of the Schedule, must repay the overpayment to the Co-operators.
4. Expenses
Mr. Nijjar claims the expenses that he has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, R.S.O. 1990, Chapter I.8, which provides as follows:
282 (11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.
I agree with Mr. Malach's submission that to award expenses in this case would be to reward, or at least condone, behaviour which should not be tolerated. Mr. Nijjar asserted a claim for additional weekly income benefits based on false financial documents and virtually no medical evidence.
Order:
Mr. Nijjar is not entitled to weekly income benefits for any period after October 20, 1992.
Mr. Nijjar has not established his entitlement to more than the minimum amount of $185.60 a week.
Mr. Nijjar was overpaid by $2,243.96. He must repay this amount, together with interest from the date of this decision, calculated according to section 27 of the Schedule.
Mr. Nijjar is not entitled to his expenses.
David R. Draper Arbitrator
Date
APPENDIX A
Exhibit 1
A letter, dated May 17, 1993, from Arshad Qayyum, F.C.A., to whom it may concern.
Exhibit 2
An undated letter from Mr. Nijjar to the Canadian High Commission in London, England.
Exhibit 3
A photocopy of a certified copy of a computer printout from Revenue Canada with respect to Mr. Nijjar for 1992.
Exhibit 4
A T4 slip issued to Mr. Nijjar for 1992.
Exhibit 5
A handwritten note from Dr. S. Finkelstein, dated April 22, 1993.
Exhibit 6
A Direction signed by Mr. Nijjar authorizing Co-operators' legal representative to obtain the clinical notes and records of Dr. Sheldon Finkelstein.
Exhibit 7
Six photographs.
Exhibit 8
A certified copy of Mr. Nijjar's income tax return for 1991.
Exhibit 9
Photocopies of pay slips for Mr. Nijjar.
Exhibit 10
A payroll book.
Exhibit 11
A medical brief containing the following documents:
- Medical or Psychological Report form, completed by Dr. Finkelstein on July 7, 1992.
- Medical or Psychological Report form, completed by Dr. Finkelstein on September 11, 1992.
- Medical or Psychological Report form, completed by Dr. Finkelstein on October 19, 1992.
- Report of Pro Action Physiotherapy, dated May 21, 1993.
Note: the medical brief was provided by Mr. Malach at the request of the arbitrator.
Exhibit 12
A report, dated October 1, 1992, from Coopers & Lybrand to the Co-operators.
Exhibit 13
8mm film of surveillance conducted on October 21, 1992.
Exhibit 14
8mm film of surveillance conducted on October 28, 1992.
Exhibit 15
8mm film of surveillance conducted on April 12, 1993.
Exhibit 16
Photocopies of surveillance documents. I note that although the surveillance was conducted for Co-operators, this exhibit was submitted by Mr. Nijjar.
Exhibit 17
Two photographic contact sheets.