Neutral Citation: 1994 ONICDRG 145
File No. A-003598
ONTARIO INSURANCE COMMISSION
BETWEEN:
MOHAMED MUSSA
Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Mohamed Mussa, was injured in a motor vehicle accident on February 18, 1992. He received statutory accident benefits from the Allstate Insurance Company of Canada ("Allstate") payable under Ontario Regulation 6721.
Weekly income benefits were terminated by Allstate on August 18, 1992. Mr. Mussa disputed the termination of his benefits. Allstate claimed reimbursement for its expenses in connection with missed medical appointments. The parties were unable to resolve their disputes through mediation.
Mr. Mussa requested an adjournment at the hearing. I did not grant the adjournment and proceeded to determine the issues before me, which were:
Is Mr. Mussa entitled to weekly income benefits from August 19, 1992 onwards?
Is Allstate entitled to be reimbursed for its expenses in connection with the missed medical appointments?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
Mr. Mussa is not entitled to weekly benefits from August 19, 1992 onwards.
I make no order with respect to reimbursement for missed medical appointments.
Mr. Mussa is not entitled to his expenses related to the arbitration.
Hearing:
The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on January 17, 1994, before me, Frederika Rotter, Senior Arbitrator.
Present at the Hearing:
Applicant: Mohamed Mussa
Applicant's Representative: Thanh (David) Gian Barrister and Solicitor
Insurer's Representative: Ian Kirby Barrister and Solicitor
Witnesses: Brad Barber Claims Manager, Allstate
The proceedings were interpreted by Ismail Ahmed, a Somali interpreter.
Documents Before the arbitrator
Exhibits:
Exhibit 1 Report of Dr. Michael C. Hall, dated May 21, 1992
Exhibit 2 Report of Dr. Michael C. Hall dated June 5, 1992
Exhibit 3 Assessment from Metro Orthopaedic and Rehabilitation Centre dated July 31, 1992
Exhibit 4 Assessment from Metro Orthopaedic and Rehabilitation Centre dated February 22, 1993
Exhibit 5 Letter to Allstate Insurance from Hal Scher of J. Michael Lacroix Consultants dated November 11, 1992
Exhibit 6 Report of Hal Scher of J. Michael Lacroix Consultants dated November 19, 1992
Other documents before the arbitrator:
Report of Mediator, dated November 20, 1992
Application for the Appointment of an Arbitrator, dated July 25, 1993 Response by Insurer, dated August 17, 1993 Production Order, dated October 5, 1993
Pre-hearing letter dated October 7, 1993
Cases and authorities considered:
Dung Ngoc Nguyen v Allstate, December 30, 1993, OIC File No. A-004485
Evidence and Findings:
Mr. Mussa was involved in an accident on February 18, 1992. Allstate paid him weekly income benefits in the amount of $288.50, until August 18, 1992, when it determined that Mr. Mussa was no longer substantially disabled from performing the essential tasks of his employment.
Mr. Mussa, through his agent Mr. Gian, filed an application for the appointment of an arbitrator on July 25, 1993. Allstate filed its response on August 17, 1993.
Adjournment Request
A pre-hearing discussion in this case was held on October 5, 1993, chaired by arbitrator Mackintosh. Neither Mr. Mussa nor his representative Mr. Gian attended at the pre-hearing, although they had both been sent a Notice of Pre-hearing Discussion. The pre-hearing letter, prepared by arbitrator Mackintosh and sent to both parties and their representatives, indicates that the pre-hearing arbitrator and Allstate's counsel waited for the Applicant or his representative for half an hour after the time scheduled for the pre-hearing. They then commenced the pre-hearing discussion, which was concluded some twenty minutes later, with neither the Applicant nor his representative having participated.
In the absence of the Applicant and his representative, the pre-hearing arbitrator made orders for the production of medical records and documentation required by Allstate. The Applicant was required to provide written consents for the release of certain medical records, by no later than October 22, 1993. The hearing was scheduled to commence on January 17, 1994.
The records in the arbitration file show that Mr. Mussa and his representative Mr. Gian were sent copies of the production order, as well as copies of the Notice of Hearing, advising them of the date and time of the hearing.
On January 11, 1993 Mr. Kirby wrote to Mr. Gian regarding his failure to comply with the production order made. A copy of this letter was forwarded to arbitrator Mackintosh. The letter indicates that Mr. Kirby had unsuccessfully attempted to contact Mr. Gian on a number of occasions, with respect to the production order. The executed consents were only returned to Mr. Kirby the week of January 11 - too late for the Insurer to obtain the records it required in time for the hearing.
Mr. Gian arrived late for the hearing. He stated that he was not able to have the consents executed as had been ordered because of difficulties communicating with his client. He did not have a correct address for Mr. Mussa, and Mr. Mussa did not have a telephone. Further, he had trouble communicating with Mr. Mussa because of Mr. Mussa's difficulties with English.
Mr. Gian requested an adjournment of the hearing, on behalf of his client. He indicated that the week before, Mr. Mussa advised him that he wished to withdraw his application for the appointment of an arbitrator. However, Mr. Mussa had changed his mind on the hearing day, and now wished an adjournment.
I declined to adjourn the hearing. No reasonable grounds for an adjournment were presented. I heard no explanation why neither Mr. Gian nor his client were prepared to proceed with the hearing. It was not disputed that both had received the Notice of Hearing as well as the pre-hearing letter and production order, and were aware that the hearing was scheduled to proceed.
Neither Mr. Gian nor his client gave any reasonable explanation for their failure to attend at the pre-hearing discussion. Mr. Gian did not satisfy me that he made any reasonable efforts to contact his client, after the pre-hearing, in order to secure his compliance with the production order in a timely fashion. He gave no explanation for his repeated failure to communicate with counsel for the Insurer, to discuss with him the status of this case.
Mr. Gian's irresponsible conduct in this case is very similar to his conduct in the case of Dung Ngoc Nguyen v Allstate (December 30, 1993, OIC File No. A-004485). In that case, in similar circumstances, Senior Arbitrator Naylor declined to grant an adjournment, and proceeded with the hearing that had been scheduled.
In this case, moreover, Mr. Mussa was present at the hearing and failed to give any reasonable explanation for his own lack of co-operation and irresponsible conduct. He did not dispute that he had failed to attend at four medical examinations arranged by the Insurer. He did not explain his failure to attend at the pre-hearing, nor his inaction after receiving the pre-hearing letter and production order. He did not explain his own failure to communicate with his legal advisor after receiving correspondence from the Commission.
The Claim:
Mr. Mussa withdrew from the hearing after I declined to adjourn it. Mr. Gian remained. In Mr. Mussa's absence, I received evidence and submissions from the Insurer, regarding this claim.
Mr. Barber, Allstate's Claims Manager, testified that Mr. Mussa received weekly income benefits from February 25, 1992 to August 18, 1992. He also received certain medical and rehabilitation benefits.
Allstate terminated the weekly income benefits after it received reports from its independent medical examiner Dr. Hall, indicating that Dr. Hall felt that Mr. Mussa could return to work by the third week of July, 1992. In his reports (Exhibits 1 and 2) Dr. Hall commented that he felt that Mr. Mussa was not cooperating in the examination, and was engaging in a "pretence" that he was "more disabled than in fact was the case".
The Insurer also filed reports from Metro Orthopaedic and Rehabilitation Centre (Exhibits 3 and 4), which indicate that Mr. Mussa was discharged from his rehabilitation program on July 8, 1992, because of a lack of compliance. He was re-admitted on July 22, 1992, at the request of his family doctor, but discharged again when he stopped attending after two sessions - having failed to show up for three appointments.
Finally, the Insurer filed the reports of Hal Scher, Ph. D, C. Psych., who had examined Mr. Mussa at its request. Dr. Scher, in his report, concluded that Mr. Mussa was being deliberately evasive and unco-operative during the examination, and that he was consciously exaggerating his distress, in an attempt to receive compensation.
Mr. Gian was present while the Insurer's evidence was presented. Mr. Gian presented no evidence and made no submissions in support of Mr. Mussa's claim for ongoing benefits.
In reviewing the evidence, including Mr. Mussa's conduct in connection with the arbitration hearing, I am struck by a pattern of behaviour which I would characterize as uncooperative and irresponsible. In the circumstances, Mr. Mussa cannot succeed in his claim for additional benefits, having presented no evidence to support it.
Having regard to the conduct of both Mr. Mussa and his counsel, I conclude that in this case, Mr. Mussa should not be awarded his expenses related to the arbitration hearing.
Order:
Mr. Mussa is not entitled to weekly benefits from August 19, 1992 onwards.
I make no order with respect to reimbursement for missed medical appointments.
Mr. Mussa is not entitled to his expenses related to the arbitration.
Frederika Rotter Senior Arbitrator
Date