Neutral Citation: 1994 ONICDRG 42
File No. A-003973
ONTARIO INSURANCE COMMISSION
BETWEEN:
DHIA Q. HASAN
Applicant
and
SIMCOE & ERIE GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Dhia Q. Hasan, was involved in a motor vehicle accident on August 30, 1992. He applied for and received statutory accident benefits from the Insurer, Simcoe & Erie General Insurance Company ("Simcoe & Erie"), payable under Ontario Regulation 6721. Weekly income benefits were paid until February 8, 1993, when they were terminated. Mr. Hasan claims that he continues to be eligible.
The parties participated in mediation, but the dispute was not resolved. Mr. Hasan then applied for arbitration. The issues in this hearing are:
Is Mr. Hasan entitled to weekly income benefits under section 12 of the Schedule for any period after February 8, 1993?
Should Simcoe & Erie be ordered to pay a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8, on the basis that it unreasonably withheld or delayed the payment of no-fault benefits?
Mr. Hasan also claims interest on any outstanding amounts owing, and his expenses related to the arbitration.
Result:
Mr. Hasan is not eligible for weekly income benefits for any period after February 8, 1993.
Simcoe & Erie is not required to pay a special award.
Mr. Hasan is entitled to his expenses related to the arbitration.
Hearing:
The hearing was held in North York, Ontario, on November 30, 1993 and January 19, 1994, before me, David R. Draper, Arbitrator.
Present at the Hearing:
Applicant:
Dhia Q. Hasan
Applicant's
Altor Shields
Representative:
Barrister and Solicitor
Insurer's
Tricia Doyle
Officer:
Supervisor, Accident and Benefits Unit
Insurer's
Ralph D'Angelo
Representative:
Barrister and Solicitor
Witnesses:
Dhia Q. Hasan, Applicant
Ian Gurnell, Independent Adjuster
Exhibits:
Thirty-two 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 March 30, 1993
Application for Appointment of an Arbitrator, dated May 16, 1993
Response by Insurer, dated June 4, 1993
Letter, dated August 9, 1993, confirming a pre-hearing discussion that took place on August 6, 1993
Letter, dated September 23, 1993, confirming a pre-hearing discussion that took place that day
Reasons for Decision:
1. The Background
Mr. Hasan is 30 years old and single. On September 9, 1992, he applied to Simcoe & Erie for accident benefits. His application states that he was involved in a motor vehicle accident on August 30, 1992 and, as a result, was unable to return to work as a tailor at Babylon Company ("Babylon"), where he had worked for the previous six weeks. Mr. Hasan's application was supported by a medical form, completed by Dr. Papadopoulos, a family doctor, on September 11, 1992. Dr. Papadopoulos diagnosed Mr. Hasan as having a severe lumbosacral strain, and indicated that it was "undetermined yet" when he would be able to return to work.
Simcoe & Erie retained Landers-Spiers Insurance Adjusters Ltd. ("Landers-Spiers") to adjust Mr. Hasan's claim. Mr. Hasan's physiotherapist, Mr. Weisz, submitted invoices which were paid by Simcoe & Erie. In addition, Mr. Hasan was paid 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]
Mr. Gurnell of Landers-Spiers quickly arranged for Mr. Hasan to be assessed by Dr. Ernest J. White, an orthopaedic surgeon, on September 25, 1992. A follow-up assessment was arranged with Dr. White on November 16, 1992. Based on Dr. White's recommendations, Mr. Gurnell referred Mr. Hasan to the Canadian Back Institute, where he was assessed on December 17, 1992. Mr. Hasan was also scheduled to be assessed at Indemed Ltd. on December 21, 1992 and January 15, 1993, but did not keep those appointments. Simcoe & Erie continued to pay weekly income benefits, but rescheduled the assessment at Indemed Ltd. for February 5, 1993.
On February 5, 1993, Mr. Hasan saw Dr. Michael Hall at Indemed Ltd. Dr. Hall had previously examined Mr. Hasan on April 23, 1992, with respect to an earlier accident that occurred on March 14, 1992. I find that up until this point, Simcoe & Erie was unaware of Mr. Hasan's previous accident. Dr. Hall concluded:
His complaints have seem steadily to have worsened and his range of motion seems steadily to have diminished from the time of the earlier examinations. I find today that his behaviour is not consistent with that which one finds from somebody who has genuinely hurt his back and I am confident that a very large part, or the entire part, is assumed, and put on for the purpose of the examination. The patient asked that I be fair, and I think I am being very fair in stating this. I do not believe that he will benefit from treatment, I do not believe that he will benefit from prolongation of his purported disability. I believe him fit to return to work as a tailor or to return to his previous employment working in Mac's Milk or some other similar activity. I think his purported disability will be prolonged by any form of treatment.
On February 11, 1993, Mr. Gurnell discussed Dr. Hall's report with Ms. Wallace, the examiner at Simcoe & Erie, and a decision was made to terminate Mr. Hasan's weekly income benefits, effective February 8, 1993.
2. The Position of the Parties
Mr. Hasan's position is that, as a result of his accident on August 30, 1992, he continues to be unable to perform the essential tasks of his previous employment as a tailor at Babylon and, therefore, is eligible for ongoing weekly income benefits. Mr. Shields submitted that, with the exception of Dr. Hall, the medical professionals support his position, and that Simcoe & Erie is engaging in "character assassination". He argued that Simcoe & Erie has acted so unreasonably in refusing to pay Mr. Hasan benefits that in addition to paying his claim, plus interest, it should be ordered to pay a special award.
Mr. D'Angelo submitted, on behalf of Simcoe & Erie, that Mr. Hasan's claim cannot succeed because his evidence was not credible. He asserted that Mr. Hasan actively concealed his previous accident, attempted to avoid seeing Dr. Hall because Dr. Hall knew about the previous accident, and when he could no longer conceal the first accident, he minimized its importance. In addition, he was inconsistent about the accident and about his complaints. Mr. D'Angelo submitted that Mr. Hasan's claim is so frivolous that not only should it be refused, but he should be denied his arbitration expenses.
3. Entitlement to Weekly Income Benefits
(a) Credibility
Mr. Hasan's credibility is central to the decision in this case. His description of his symptoms forms the basis of the various medical reports, and of his claim for accident benefits. After reviewing all of the evidence, I am satisfied that there are valid reasons to question the accuracy of Mr. Hasan's reports, and that Simcoe & Erie is not engaged in "character assassination".
Mr. Hasan insisted that if he had been asked, he would have disclosed that he had been involved in a previous motor vehicle accident. I have no hesitation, however, in finding that he was asked about his previous medical history, including any previous motor vehicle accidents, and that he failed to advise anyone about his accident on March 14, 1992:
The hospital records for August 31, 1992, note that Mr. Hasan was a "healthy" male. Under past medical history, it is noted that he had no health problems.
Mr. Hasan saw Dr. Papadopoulos for the first time on September 1 or 2, 1992, just after the second accident. There is no indication in his reports that Dr. Papadopoulos was aware of Mr. Hasan's previous accident.
Dr. White states in his report of September 25, 1992: "He denied having had any previous motor vehicle accident injuries or any previous problems with his neck or back prior to his motor vehicle accident and he has been healthy and well."
Mr. Hasan signed a written statement, dated October 8, 1992, which states: "I have never been involved in a motor vehicle accident before".
The report of the Canadian Back Institute, dated December 17, 1992, states: "He reports that his general health is good and that there have been no previous serious illnesses or operations."
In cross-examination, Mr. Hasan was asked why he signed the statement that he had not been involved in a previous accident. As I understood his answer, he maintained that he advised Mr. Gurnell that he had not been in a previous accident in which he was a passenger in a taxi. Mr. Hasan was then asked about Dr. White. He testified that he thought that, similarly, he told Dr. White that he was never involved in a taxi accident before. Although I accept that Mr. Hasan faces some language barriers, I do not find his explanation believable.
It is also difficult to ignore the timing and similarity of the two accidents. Mr. Hasan settled his claims from his first accident just six weeks before the second accident, and, according to Mr. Hasan's descriptions, the two accidents were virtually identical.
The first accident occurred on March 14, 1992. At that time, Mr. Hasan did not have a family doctor, but started seeing Dr. H. Obaji, who recorded Mr. Hasan's description of the accident, as follows:
Mr. Hassan [sic] was involved in a rear-end collision on March 14, 1992. He was a front seat passenger, while stopping on a red light someone hit the car from behind hitting his head on the window and falling back on the seat. He felt immediate pain in the neck and low back and vomited right away. He was taken to the Emergency Department of the North Western Hospital where he did X-ray and it was reported normal.
Mr. Hasan received weekly income benefits from the General Accident Assurance Company of Canada ("General Accident") for approximately one month. When his benefits were terminated, Mr. Hasan applied for mediation, claiming that he continued to be unable to return to his pre-accident employment as a manager of a number of convenience stores.
General Accident referred Mr. Hasan for an assessment by Dr. Michael Hall. In his report, dated April 23, 1992, Dr. Hall recorded the accident as follows:
The patient was a passenger in the front seat of a car which when stationary was struck in the rear by a commercial van.
He had his seatbelt on but he says he went forward out of his seat, and struck his forehead on the windshield. He did not cut it. He felt dizzy and vomited. He was a little bit sore in the neck and he had a headache. He did not seek any immediate treatment.
Later the same day he was accompanied by his friend in a cab to the Northwestern Hospital. There he was examined and X-rays were made. At this time he had some backache and he said his whole body felt numb. He was given a prescription for Valium and Tylenol #2.
Dr. Hall concluded that Mr. Hasan should start a "progressive structured exercise program" in about one month and that after approximately one month in such a program, he would be able to return to work.
On July 10, 1992, Canadian General paid Mr. Hasan $6,828.75 in full settlement of his claim for accident benefits arising out of his accident on March 14, 1992. The calculations indicate that this amount represented weekly income benefits of $400.00 a week through July 31, 1992.
Mr. Hasan started work at Babylon on July 20, 1992. His second accident occurred on August 30, 1992, just six weeks after he settled his previous claim. Although Dr. Obaji had coordinated his care after the first accident, Mr. Hasan did not return to see him. Instead, he went to a new family doctor, Dr. Papadopoulos. When Mr. Hasan was asked about this, he testified that he was not dissatisfied with Dr. Obaji, but asked a friend for the name of a "really good doctor".
The records from Dr. Papadopoulos do not include a full description of the accident. Dr. White, however, recorded the following description in his initial report, dated September 25, 1992:
ACCIDENT HISTORY:
He related that on August 30, 1992, at approximately 11:30 p.m., he was a front seat passenger in a taxi cab, with his lap belt and shoulder strap on, and their vehicle was rear-ended when they were about to stop at a traffic light. Your note indicates the damage to the car was relatively minor. However, Mr. Hassan [sic] thought there had been considerable damage to the rear-end of the vehicle. He said "I couldn't get out, the hit was so big". He said the seat belt did not restrain him and he went forwards and hit his forehead on the front window and fell back again onto the seat.
COMPLAINTS AT THE SCENE:
There was no loss of consciousness but he said he felt shaken up and dizzy and he threw up.
The police came to the scene of the accident and he said they told the taxi driver to drive him to the hospital, which was done in the same taxi cab.
On October 8, 1992, Mr. Hasan met with Mr. Gurnell and signed a statement which states, in part:
The taxi almost came to a stop when suddenly the taxi was hit heavily from the rear. I think the other driver wanted to leave but he changed his mind. I think the cab driver called the police on a pay phone. I had been thrown forward into the windshield. I was dizzy and sick. A police car came by and the officer told the taxi driver to take me to the hospital. I was throwing up. The taxi driver made me pay the fare. I don't know who or which police officer took the reports as I stayed in the taxi.
Given the similarities between the two accidents and his reported injuries, I would expect that most people would comment with frustration or irony that the same thing happened again just after they had returned to work. In my opinion, Mr. Hasan's repeated assertions that he had not been involved in any previous accidents seriously undermines his credibility. My views about Mr. Hasan's credibility are also affected by his response to the appointments arranged for him at Indemed Ltd., where he had previously seen Dr. Hall on April 23, 1992. Mr. Hasan's original appointment for Indemed Ltd. was for December 15, 1992, with a doctor other than Dr. Hall. On the morning of the assessment, Mr. Hasan phoned Indemed Ltd. to say that he could not keep the appointment because he was not feeling well. This alone would be of little significance.
However, Mr. Hasan also missed the next appointment, scheduled for January 15, 1992, with Dr. Hall. He called 20 minutes before his appointment to cancel it, stating that he had fallen at his girlfriend's apartment and was in pain. Mr. Hasan was unable to provide any details of the fall. He simply stated that if he said he fell, then he did. In my opinion, it was clear from Mr. Hasan's evidence that there was no fall, and that it was simply an excuse for not attending the appointment. Given his failure to disclose his previous accident up to this point, I accept Mr. D'Angelo's submission that Mr. Hasan was attempting to avoid Indemed Ltd., and particularly Dr. Hall, in order to keep the first accident from coming to light.
In addition to his failure to disclose his previous accident, I found Mr. Hasan's testimony erratic. He claimed to remember certain events clearly, but was unable to recall, or to explain, a number of important events with any clarity. For example, his description of the accident on August 30, 1992, and what happened just after, was very difficult to follow. As a general observation, I did not find his evidence "straightforward and responsive", as suggested by Mr. Shields.
One specific concern is that I believe Mr. Hasan exaggerated both the physical demands of his job as a tailor at Babylon and the impact of the accident on his ability to return to work.
As I understand it, Babylon contracts with various clients to sew. Mr. Hasan testified as if he were actively involved in all aspects of the operation:
Visiting potential clients in order to negotiate contracts.
Unloading material and bringing it into the shop.
Measuring and cutting the material, by hand or using a machine.
Sewing the material, using an electric machine operated with a foot pedal.
Cutting off any loose ends.
Ironing the finished product, using a heavy iron.
Hanging up the finished product.
Bundling up the finished product and taking out to the car for delivery.
When Mr. Hasan was asked about the bundles of finished product, he said that he chose to make big bundles, approximately 40 pounds, because that allowed him to fit more of the finished product into the car. He also said that he could have used a dolly or asked for help, but chose not to, emphasizing that he "ran" when taking up to 30 bundles out to the car.
Mr. Hasan also explained the demands of sewing at some length. On cross-examination, however, he acknowledged that someone else did the sewing, and that the majority of his time was spent ironing: "eight to ten hours". Mr. Hasan described each of the job tasks as physically demanding, but maintained that he was able to work 40 hours a week, or more, starting on July 20, 1992.
I find Mr. Hasan's description of his job duties difficult to accept from someone who had maintained that into July 1992, he was unable to perform the essential tasks of his previous employment as a convenience store manager due to back pain.
Mr. Hasan's explanation was that he had fully recovered from his first accident when he started working at Babylon on July 20, 1992. In support of this position, he submitted a report from Dr. Obaji, dated October 21, 1993, stating that he showed "marked improvement" at his last visit on June 8, 1992. On June 8, 1992, however, Dr. Obaji prescribed Tylenol and Voltaren for Mr. Hasan and wrote a note, stating:
Mr. Dia had accident (?) March 1492, since he is having severe lower back pain, & radiation to l. lower limb & sciatica even numbness. he saw Dr. Veidlinger & Dr. Curkowskji (specialists). He is still having back pain & I hope with the next 2-3 months will be better.
In addition, Mr. Hasan's physiotherapist, Mr. Weisz, reported on June 22, 1992 that Mr. Hasan was receiving daily physiotherapy and was "improving slowly":
Mr. Dhia Hassan [sic] attends daily treatments in my clinic following a car accident dated Mar/14/1992. His therapy includes heat, T.E.N.S. and active exercises. Mr. Hassan [sic] improves slowly, but as of now unable to return back to work due to persistant [sic] neck and back pains.
I have difficulty accepting, therefore, that Mr. Hasan had completely recovered from his first accident and was doing work as physically demanding as he described.
What is of even more concern, however, is Mr. Hasan's assessment of his condition after the second accident. He was asked about his ability to do his job tasks following the accident, and at the time of the hearing. He claimed that he was unable to do any of the tasks. In my view, his response was extreme, and is consistent with the assessment of various doctors that he is overly dramatic in describing his disabilities.
(b) Medical Evidence
Mr. Hasan relies heavily on the medical reports, except for the report of Dr. Hall. In my opinion, however, the medical reports are not as strong as he suggests. They are all based on Mr. Hasan's continuing complaints of pain and numbness, and my overall impression is that the doctors are perplexed by his complaints. None of them seem to feel that an explanation has been found for his ongoing problems.
In his initial report, dated September 25, 1992, Dr. White stated that he found "no clear cut evidence that he [Mr. Hasan] had sustained any serious injuries". He felt that Mr. Hasan was "over-reacting somewhat", perhaps due to concerns that he would "harm" himself with movements. Dr. White reassured Mr. Hasan that he was unlikely to hurt himself, and recommended that he move from passive physiotherapy to a more progressive active exercise program. He felt that Mr. Hasan would be able to return to work in about eight weeks.
As a result of Dr. White's recommendation, Mr. Weisz, the physiotherapist, tried to move Mr. Hasan into a more active exercise program. In his letter to Mr. Gurnell, dated October 10, 1992, he recommended that Mr. Hasan remain in active therapy for "2 - 3 months". It appears from some of the other reports, however, that Mr. Hasan did not feel he was ready for this type of rehabilitation program.
Mr. Gurnell arranged for a follow-up visit with Dr. White on November 16, 1992. Dr. White observed that the "degree of his symptoms seem grossly out of proportion to the objective clinical findings." He stated that he was "unable to explain the degree of his symptoms on any organic basis", and felt that there was "a marked degree of pain amplification and over-exaggeration" possibly "emotionally produced and out of extreme fear of producing harm to himself or reproducing pain." Dr. White expressed concern about Mr. Hasan's behaviour pattern and felt that psychological evaluation might be required. He recommended that Mr. Hasan be referred to a well recognized rehabilitation centre for a full assessment and graduated mobilizing and strengthening fitness program.
Based on Dr. White's report, Mr. Gurnell arranged for an assessment at the Canadian Back Institute. The assessment report, dated December 17, 1992, indicates that there was no "conclusive evidence of neurological deficit, nor specific nerve root irritation. There was evidence of positive non-organic signs." With respect to work, the report states:
The prognosis for return to work is guarded. The limiting factor would appear to be his symptoms. He became particularly agitated when I mentioned the possibility of return to work, as he did not feel he could possibly return whilst he was experiencing such pain. He mentioned on more than one occasion of the fact that certain specialists had advised him that it would be several months before he should return to work, and also that he should not push himself. There is also the question of job availability.
The Canadian Back Institute recommended an active treatment program and suggested that he participate in its Comprehensive Rehabilitation Program. Mr. Shields, on behalf of Mr. Hasan, was quite critical of Simcoe & Erie's failure to arrange for treatment at the Canadian Back Institute. He submitted that if Mr. Hasan had been allowed to participate in that program, he might have been able to return to work.
Mr. Hasan claimed that he wanted to attend the program at the Canadian Back Institute, but could not afford it on his own. Mr. Gurnell testified that Mr. Hasan told him that the assessment had been very painful and made it clear that he was not interested in going to the Canadian Back Institute for treatment.
Although Mr. Gurnell was unable to produce notes or a report to confirm his conversation with Mr. Hasan, I conclude that his version is more consistent with the other evidence. In both Dr. White's second report, dated November 16, 1992, and the Canadian Back Institute report, dated December 17, 1992, Mr. Hasan reported that when his physiotherapist started active exercises, it made him worse. In his report, dated February 5, 1993, Dr. Hall stated that Mr. Hasan had "nothing good to say" about the Canadian Back Institute and that he was not willing to be treated there.
In any event, there is no evidence that Mr. Hasan pursued admission to the Canadian Back Institute, or any other similar program. In December 1992, Simcoe & Erie was still paying for Mr. Hasan's physiotherapy with Mr. Weisz, but Mr. Hasan stopped seeing Mr. Weisz on or about December 23, 1992. Mr. Weisz advised Mr. Gurnell that Mr. Hasan had "plateaued".
Dr. Papadopoulos's notes indicate that Mr. Hasan had an appointment to see him on December 22, 1992, but did not attend.
As set out above, Dr. Hall saw Mr. Hasan on February 5, 1993, and concluded that his complaints were not genuine. In his opinion, there was nothing to prevent Mr. Hasan from returning to work as a tailor at Babylon. This led to the cancellation of Mr. Hasan's weekly income benefits, effective February 8, 1993. Mr. Hasan applied for mediation almost immediately.
Mr. Hasan saw his family doctor, Dr. Papadopoulos, on February 23, 1993, and was referred to Dr. Malcolm, another orthopaedic surgeon. In his report to Dr. Papadopoulos, dated March 3, 1993, Dr. Malcolm stated:
Examination is a little difficult to carry out, primarily because of sensitivity of this man. I really cannot get near him to do any major palpation of his spine. He has gross restriction in lumbar spinal range of motion in all planes. He had gross restriction in straight leg raising, in the sitting and supine positions. He would appear to have a generous sensory alteration involving the whole right lower extremity compared to the left. He has apparent giving way in all muscle groups in the right lower extremity.
All in all this is a very anxious man who may well have good sciatic syndrome, but you cannot get anything of a valid nature from his physical examination. He will continue on his physio.
I am going to arrange for him to have a CT scan. He will be reviewed when it is completed.
Mr. Hasan has not seen Dr. Malcolm again. It is not clear what, if anything, was done about the CT scan immediately following Dr. Malcolm's assessment. It is clear, however, that Mr. Hasan did not participate in any physiotherapy program after he stopped seeing Mr. Weisz on or about December 23, 1992.
On March 29, 1993, Mr. Hasan saw Dr. Hui, who recommended a trial of acupuncture. Mr. Hasan said he did not follow-up on this recommendation because he could not afford it. There is no indication, however, that he asked Simcoe & Erie to fund acupuncture treatment.
Mr. Hasan saw Dr. Papadopoulos on April 6, 1993, complaining that his condition was getting worse. Based on this visit, Dr. Papadopoulos completed another medical form on April 14, 1993, indicating a return to work in "3 - 6 months". The form indicates that Dr. Papadopoulos expected to see Mr. Hasan again on May 12, 1993, but Mr. Hasan did not return. Mr. Hasan did not seek any medical attention from his last visit with Dr. Papadopoulos on April 6, 1993, until his legal representative arranged for an assessment by Dr. Ogilvie-Harris, an orthopaedic surgeon, on July 5, 1993.
In his report, dated July 25, 1993, Dr. Ogilvie-Harris reported that Mr. Hasan walked into his office, sat, stood, dressed, undressed, and climbed on and off of the examining couch without any particular difficulty. Dr. Ogilvie-Harris did not find any spasm, or restrictions in the movement of Mr. Hasan's neck or low back. However, Mr. Hasan complained of tenderness in his neck and low back, and moved his low back slowly and carefully. Dr. Ogilvie-Harris concluded:
On the basis of my history, physical examination, and review of this man's medical information I feel he does have significant on-going problems with regard to his lumbar spine. I feel that he also sustained soft tissue contusions of the cervical spine but these are healing reasonably well.
In regard to the lumbar spine, he still has abnormal spinal rhythm. He still uses protective mechanisms to avoid aggravating the pain in his low back. However, there are no objective neurological signs at this stage. This pattern would be consistent with internal disruption of a disc without pressure on a nerve root.
In view of the persistence of his pain at this stage and also the abnormal spinal rhythm I think further investigations are warranted. I feel he requires a CT scan as an initial investigation. This will show us whether or not there is a significant disc disruption. This has been arranged for him. He is apparently due to have the investigation in October 1993.
The reason for the delay in getting the investigation is because of the lack of available facilities.
At the current time, I would regard him as being disabled in the essential tasks of his occupation. I feel that he suffers substantial inability to perform the essential tasks that are necessary in either of the jobs for which he was trained. As a tailor he would have difficulty lifting, bending, or standing for prolonged periods of time. He had difficulty working some of the machines and lifting the rolls of cloth. Sitting for long periods of time at a sewing machine would significantly aggravate his pain. As a worker in a convenience store he would have difficulty standing all day. He would not be able to stock the shelves or lift any of the goods on a repetitive basis.
At this stage I would recommend an aggressive rehabilitation program with an emphasis on strengthening the muscles of the lumbar spine and stretching them gently. In addition, I would recommend referral to Behavioural Rehabilitation. Certainly he has developed some abnormal behaviour responses and this is directly as a reuslt [sic] of the physical injury to his lumbar spine. This needs to be corrected if he is to function reasonably well.
At this stage I feel that he requires further follow-up and I will arrange to see him again after the CT scan has been performed in approximately November of 1993.
I take Dr. Ogilvie-Harris's opinion seriously. He is a specialist with impressive credentials. As with the other doctors, however, he had to rely heavily on information provided by Mr. Hasan.
The report states that Mr. Hasan was involved in a previous accident in March 1992, "but had no major injuries", "was off work for about a month at that time", and "had recovered completely by the time of his accident of August 1992". For reasons set out above, I find that this minimizes the first accident. Mr. Hasan was off work for four months, and it is not clear that he had fully recovered.
The report also states that, "Over the past year or so he has been to the Emergency Room twice with exacerbations of his back pain." Again, I find that this is an overstatement. He was seen in emergency on the day of the accident and again on November 6, 1992. The second visit, however, was not for back pain. He went to the emergency room complaining of vomiting and diarrhoea, and was diagnosed as having nausea secondary to consumption of Tylenol #3.
Dr. Ogilvie-Harris also seems to have been under the impression that Mr. Hasan had worked as a convenience store manager until the second accident and that sometime later, he started working as a tailor, "but on a minimal basis".
Mr. Hasan did not pursue either a strengthening program or a behavioural rehabilitation program, as recommended by Dr. Ogilvie-Harris. In fact, he did not see a doctor or therapist until a few days before the first day of the arbitration hearing on November 30, 1993, when he says that he returned to see Dr. Papadopoulos. This means that Mr. Hasan received no medical care from April 6, 1993 until the end of November 1993.
Mr. Hasan's evidence about the CT scan was very difficult to follow. He suggested that it was delayed after his visit with Dr. Malcolm because Dr. Malcolm was going on holidays for a few months and said that he was to set it up after he returned. In my opinion, this is unlikely. Mr. Hasan also testified that most doctors were on holidays at that time, and that he asked Dr. Papadopoulos to set it up. Dr. Papadopoulos's clinical notes are difficult to read, but I find no indication of any such request.
Dr. Ogilvie-Harris's report indicates his understanding that Mr. Hasan was scheduled for a CTscan in October 1993. Mr. Hasan testified that it could not be done in October and had to be rescheduled for January 1994. He said that as a result of his recent visit with Dr. Papadopoulos, he was scheduled to go the Toronto East General Hospital sometime in January 1994, but was unclear about the purpose of the visit. This hearing resumed on January 19, 1994, but I heard no evidence that testing had been done by that time.
(c) Conclusion
There was some suggestion by Simcoe & Erie that Mr. Hasan failed to establish that he was involved in a motor vehicle accident on August 30, 1992. I do not agree. Evidence was presented that a damage claim was made with respect to the cab, that Mr. Hasan was seen in the emergency room on the night of the accident, and that he received ongoing treatment for injuries arising out of the accident.
In my opinion, the lack of a police report is not sufficient to refute this evidence. Mr. Hasan provided the name of the owner of the taxi in which he was a passenger and a number for at least one of the police cars at the scene of the accident. In addition, the adjuster's request for an accident report sets out the names of two drivers. I did not hear evidence from any of these potential witnesses that there was no accident.
I accept, therefore, that Mr. Hasan was involved in a motor vehicle accident on August 30, 1992. I am unable to conclude, however, that as a result of his accident, he was unable to perform the essential tasks of his employment at Babylon for any period after February 8, 1993.
I accept that Mr. Hasan is anxious about his condition, but I find no clear evidence that he is suffering from injuries that prevent him from working as a tailor. For the reasons set out above, I do not feel that I can rely on his own assessment of his restrictions, or rely heavily on the medical reports which depend on Mr. Hasan's description of his condition.
Dr. Ogilvie-Harris raises the possibility that Mr. Hasan has "internal disruption of a disc without pressure on a nerve root". Unfortunately, the CT scan that both he and Dr. Malcolm recommended has not been done. In some cases, it might be appropriate to continue paying weekly income benefits until the results of the tests are known. Given the many problems with Mr. Hasan's evidence, the time that has passed, and the fact that he has not been involved in any treatment for an extended period, I am not convinced that this is such a case.
4. Special Award
Mr. Hasan seeks a special award under section 282(10) of the Insurance Act:
- (10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
According to section 282(10), a special award must be based on benefits that have been unreasonably withheld or delayed. The substantive issue in this case was Mr. Hasan's entitlement to weekly income benefits after February 8, 1993. Based on my conclusion that he is not entitled to any additional benefits, I also conclude that no special award can be ordered.
Mrs. Hasan's request for a special award was also based on the submission that Simcoe & Erie unreasonably withheld the payment of benefits to allow him to attend the Canadian Back Institute and for transportation expenses.
As set out above, I do not find that Simcoe & Erie refused to fund Mr. Hasan's attendance at the Canadian Back Institute. Rather, I find Mr. Gurnell reasonably concluded that Mr. Hasan did not want to attend that program.
The issue of transportation expenses was not before me in this hearing and no clear notice was provided that this would be the basis of the application for a special award. Therefore, I am not prepared to make a finding that payments for transportation expenses were unreasonably withheld or delayed.
5. Expenses
Mr. Hasan claims the expenses that he has incurred in this arbitration. An award for expenses may be made under section 222(11) of the Insurance Act, which provides as follows:
222 (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.
The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.
Arbitrators have consistently granted expenses unless the claim was manifestly frivolous or vexatious, or the Applicant's conduct unduly prolonged the proceedings. Although Mr. Hasan's claim was unsuccessful, I was left with the impression that he sincerely believed in the legitimacy of his claim. In addition, his claim was supported by medical evidence, particularly the report of Dr. Ogilvie-Harris. Mr. Hasan retained counsel who presented his case fairly and without delay. I conclude that I should exercise my discretion to award Mr. Hasan his expenses.
If the parties are unable to agree on the amount of the expenses, I remain seized of this matter and either party may apply for an assessment of the expenses.
Order:
Mr. Hasan is not eligible for weekly income benefits for any period after February 8, 1993.
Simcoe & Erie is not required to pay a special award.
Mr. Hasan is entitled to his expenses incurred in respect to the arbitration.
May 9, 1994
David R. Draper
Arbitrator
Date
APPENDIX A
Exhibit 1
Application for Accident Benefits, dated September 9, 1992.
Exhibit 2
Medical or Psychological Report, completed by Dr. F. Papadopoulos on September 11, 1992.
Exhibit 3
Report of Dr. Ernest J. White, Riverfront Medical Services, Ltd., dated September 25, 1992.
Exhibit 4
Report of Robert Weisz, Downsview Physiotherapy & Community Clinic, dated October 10, 1992.
Exhibit 5
Report of Dr. Ernest J. White, Riverfront Medical Services, Ltd., dated November 16, 1992.
Exhibit 6
Rehabilitation Assessment report of Gareth Sneath, Canadian Back Institute, dated December 17, 1992.
Exhibit 7
Report of Dr. Michael C. Hall, Indemed Ltd., dated February 5, 1993.
Exhibit 8
Report of Dr. H. Obaji, dated October 21, 1993.
Exhibit 9
Letter, dated October 27, 1993, from Mr. Hasan's representatives to Dr. Curkowskji, including a response from Dr. Curkowskji, dated November 11, 1993.
Exhibit 10
Letter, dated May 12, 1992, from Dr. O.F. Veidlinger to Dr. H. Obaji.
Exhibit 11
Emergency Services Report of The Toronto Hospital, dated August 31, 1992.
Exhibit 12
Emergency Services Report of The Toronto Hospital, dated November 6, 1992.
Exhibit 13
Medical or Psychological Report, completed by Dr. F. Papadopoulos on April 14, 1993.
Exhibit 14
The clinical notes and records of Dr. F. Papadopoulos.
Exhibit 15
Report of Dr. D. J. Ogilvie-Harris, dated July 25, 1993.
Exhibit 16
Letter, dated March 29, 1993, from Dr. Fred Hui to Dr. Papadopoulos.
Exhibit 17
Letter, dated April 7, 1993, from Robert Weisz.
Exhibit 18
Three cheque stubs from General Accident to Mr. Hassan [sic], dated March 31, 1992, April 9, 1992 and July 10, 1992.
Exhibit 19
Final Release, signed by Mr. Hasan.
Exhibit 20
Handwritten calculations from the General Accident file, dated July 7, 1992.
Exhibit 21
Handwritten note from Dr. H. Obaji, dated June 8, 1992.
Exhibit 22
A handwritten prescription from Dr. H. Obaji, dated June 8, 1992.
Exhibit 23
A letter, dated June 22, 1992, from Robert Weisz, Yorkview Physiotherapy Centre.
Exhibit 24
Report of Dr. Michael C. Hall, Indemed Ltd., dated April 23, 1992.
Exhibit 25
Handwritten statement, signed by Mr. Hasan dated October 8, 1992.
Exhibit 26
Damage appraisal from Mid Ontario Damage Appraisers.
Exhibit 27
Request for accident report form, dated July 19, 1993.
Exhibit 28
Fax from Indemed Ltd. to Mr. Gurnell, sending letters to Mr. Gurnell and Mr. Hasan.
Exhibit 29
Photocopy of a letter from Indemed Ltd. to Mr. Gurnell.
Exhibit 30
File copy of a letter, dated January 13, 1993, from Mr. Gurnell to Mr. Hasan, together with a message slip, dated January 13.
Exhibit 31
Assessment of Claim by Insurer, dated February 11, 1993.
Exhibit 32
Information from the Judicial District of York, sworn on December 2, 1985.