Neutral Citation: 1994 ONICDRG 72
File No. A-004660
ONTARIO INSURANCE COMMISSION
BETWEEN:
RUSTOM TAGIRAN
Applicant
and
SIMCOE & ERIE GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Rustom Tagiran, was injured in a motor vehicle accident on August 30, 1992. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. Weekly income benefits were terminated by the Insurer on December 28, 1992. The Applicant disagreed with the termination of his weekly income benefits and also contended that the appropriate rate should be more than the $185.60 paid by the Insurer. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8., as amended.
The issues in this hearing are:
Is the Applicant entitled to weekly income benefits for any period after December 28, 1992?
What is the correct rate for weekly income benefits?
The Applicant also claims interest on any outstanding amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is not entitled to any further weekly income benefits.
The correct rate for weekly income benefits is $185.60.
The Applicant is not awarded his expenses of the hearing.
Hearing:
The hearing was held in North York, Ontario, on April 19 and 20, 1994, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant:
Rustom Tagiran
Applicant's Representative:
Deepak B. Paradkar Barrister and Solicitor
Insurer's Representative:
Ralph D'Angelo Barrister and Solicitor
Insurer's Officer:
Tricia Doyle
Witnesses:
Rustom Tagiran, Dr. Garry Moddel, Nabil Dabagh
The Applicant was assisted, from time to time, by Azmi Hamouda, an interpreter in the Arabic language.
Exhibits:
The parties filed two document briefs and eight other exhibits.
Evidence and Findings:
The Applicant, Rustom Tagiran, now aged 28, testified that he was driving a taxicab on August 30, 1992, when his vehicle was hit from behind by a car at the intersection of Dufferin and Eglinton in Toronto. Mr. Tagiran testified that the impact was very severe and his chest hit the steering wheel of the car. He testified that he was not wearing a seatbelt at the time of the accident.
Immediately after the accident, Mr. Tagiran drove himself and his passenger to Toronto General Hospital. He stated that he felt he had injured his neck and his back in the accident. He felt dizzy. Mr. Tagiran stated that they took x-rays of his neck and back at the hospital, gave him some pain killers and sent him home.
Mr. Tagiran testified that in the five to six years prior to the accident, he had suffered from mild back pain. He explained that he had been diagnosed with a type of arthritis called ankylosing spondylitis. He had been treated for this condition by his family doctor, Dr. L.S. Johnson, and by Dr. Mary J. Bell, a rheumatologist at the Sunnybrook Health Science Centre. He had undergone physiotherapy for this condition and had been prescribed medication. Mr. Tagiran testified that prior to the accident, he was feeling better, so he returned to work. He testified that his condition was not affecting his ability to work.
Mr. Tagiran gave brief evidence about his job duties. He said that he worked 12 hour shifts as a taxi driver, usually at night, which he considered to be very dangerous. He said that he was required to watch passengers, watch the cars, and watch the traffic. Mr. Tagiran testified that he could not return to work after the accident. He stated that he could not even do tasks at home such as cleaning and cooking, or any of the sports which he enjoyed prior to the accident, such as jogging, biking and swimming.
Mr. Tagiran testified that before the accident of August 30, 1992, he had chest pain and this increased after the accident. He testified that he felt numbness sometimes at night, after the accident. By the end of November 1992, he was undergoing a program of physiotherapy and felt his neck was improving. His back, however, continued to cause him pain. Mr. Tagiran testified that six months after the accident, his neck was better, but his back had become worse. He testified that he felt pain in the middle of his back, whereas prior to the accident, he had experienced low back pain, with which he could cope.
Mr. Tagiran testified that before he came to the hearing he took pain medication, and that he usually took six or seven Advil each day. When he was asked why he could not work, he explained that he could not drive a 12 hour shift. He testified that he had been attending physiotherapy and it was helping his back somewhat, but he still felt pain in his back. Mr. Tagiran testified that he was still attending physiotherapy three times each week at the time of the hearing.
After the accident, Mr. Tagiran moved from Scarborough to downtown Toronto. He also changed family doctors. He began to see Dr. S.W. Teow. His first visit to Dr. Teow was on December 21, 1992.
Mr. Tagiran admitted at the hearing that he had never told Dr. Teow about his prior back problems. He explained that Dr. Teow had never asked him about it. Mr. Tagiran agreed that it is important to tell your family doctor about your prior health history, but emphasized that he was back to work before the accident. Mr. Tagiran testified, further, that when he was examined, at the request of the Insurer, by Dr. Michael Hall, an orthopaedic surgeon, he did not tell Dr. Hall about his prior medical history either. Mr. Tagiran explained that he had no translator with him on that occasion and that he honestly could not understand most of the questions. He stated that he believed Dr. Hall asked him if he had ever been injured in another accident before this motor vehicle accident. He told him he had not.
Mr. Tagiran testified that he was earning $500 to $550 each week, after expenses, at the time of the accident. He submitted an unaudited statement of income for the period April 1, 1992 to August 30, 1992. The income statement and report of the accountant was dated October 7, 1992. He also submitted a draft income tax return for 1992 showing gross business income and net business income in figures which matched the income statement. This document was dated February 12, 1994. In addition, Mr. Tagiran submitted 24 run sheets, from various days between April 16, 1992 and August 21, 1992. At least two run sheets were undated. The run sheets totalled approximately $6,000 in gross revenue.
Mr. Tagiran also testified emphatically that he had not worked at any job in any capacity since the motor vehicle accident of August 30, 1992. Mr. Tagiran testified that he changed apartments downtown in May 1993. He testified that he stated in his application for an apartment that he was currently working for Dabagh Taxi Ltd. Mr. Tagiran asserted that he asked his friend, Nabil Dabagh, to provide him with a letter confirming his employment so that he could be assured of obtaining an apartment. He stated, however, that the contents of the letter were false. A copy of the letter was filed as an exhibit.
Nabil Dabagh was summoned by the Insurer to give evidence. Mr. Dabagh testified that he has been a cab fleet operator since 1990 and owns 11 cabs. He testified that he uses Diamond Taxi as a dispatch service. Mr. Dabagh testified that Rustom Tagiran has worked for him. He stated that Mr. Tagiran last worked for him on December 20, 1993. He obtained this date from checking back in his records. Mr. Dabagh testified that prior to the date in December, Mr. Tagiran had not worked for him for approximately three to four months.
Mr. Dabagh confirmed that he was the author of the letter dated April 22, 1993, on the letterhead of Dabagh Taxi Ltd. He stated that at that time Rustom Tagiran was working for him. Mr. Dabagh did not have a good recollection of how long before that date Mr. Tagiran had started. He thought that perhaps he had been working on and off for him. Mr. Dabagh also stated that Mr. Tagiran had recently asked him if he had any vacant cabs. He had replied that his cabs were all full at the present time. Mr. Dabagh stated that he did not know whether Mr. Tagiran was inquiring on his own behalf, or for other reasons. Mr. Dabagh had no information on the amount that Mr. Tagiran earned.
On cross-examination, Mr. Dabagh stated that he did not think that Mr. Tagiran had worked for him in the period from August until December 1992. He also recalled that in December 1993, Mr. Tagiran had worked for two days only. Mr. Dabagh did not have a good recollection of how frequently Mr. Tagiran worked during the period from April 22 until September 1993. He thought he might have worked one or two days a week, but he was not sure.
Issue # 1
Is the Applicant entitled to weekly income benefits for any period after December 28, 1992?
The Medical Evidence
In order to be eligible for weekly income benefits, the Applicant must bring evidence to prove, on a balance of probabilities, that after December 28, 1992, he continued to be substantially unable to perform the essential tasks of his occupation as a taxi driver, as a result of injuries he sustained in the accident.
In this case, I heard evidence that Rustom Tagiran injured his neck and back in the motor vehicle accident, but I also heard that the Applicant had a significant back problem before the accident, that was causing him pain. I must therefore determine whether the complaints that the Applicant continues to make result from the motor vehicle accident or the previous condition, or some combination of both.
Pre-existing Condition
The reports of Dr. Louise Perlin and Dr. Mary Bell, rheumatologists, both pre-date the accident. Dr. Mary Bell's report of January 21, 1992, indicated that she saw Mr. Tagiran for an assessment of a seven year history of back pain:
He presented with a 7 year history of back pain, a 4 year history of intermittent chest pain and a 1 year history of lower cervical spine pain. He reports that his back pain was gradual in onset and localized primarily to the left lower lumbar spine with radiation into the posterior thigh, buttock and calf. Pain was aggravated by rest and relieved by movement and there was an accompanying night pain. Chest pain has been intermittent in nature, described as "painful breathing" with accompanying shortness of breath over the last 4 years. The cervical spine was located to the lower lumbar spine and he described primarily as stiffness.[sic]
Dr. Bell diagnosed bilateral sacroiliitis consistent with the diagnosis of ankylosing spondylitis. Dr. Bell recommended a program of physical therapy at Sunnybrook Health Science Centre so that Mr. Tagiran could learn a program of exercise to be carried on throughout his lifetime.
Dr. Louise Perlin reported that she assessed Mr. Tagiran for Dr. Johnson on April 28, 1992. Dr. Perlin recorded a seven year history of lower back pain radiating to the buttocks and posterior thighs, intermittent right chest pain, and mild morning neck stiffness. Dr. Perlin recorded that Mr. Tagiran told her that he was in physiotherapy and learned a regular exercise program which he continued until about three months before the examination. Dr. Perlin reported:
As a result of these symptoms Mr. Tagiran has not worked at his cab driver job or any other employment for a year and he is hoping to obtain government financial assistance.
Dr. Perlin found slightly restricted right neck lateral rotation and lateral flexion of the neck limited to 15 degrees on each side with mild stress pain. She found thoracic spine rotation at the thoracolumbar junction limited to about 40 degrees with stress pain radiating to the anterior ribs, which were tender on compression as well. She found stress pain with flexion of the lumbar spine and back flexibility restricted to 29 centimetres from the floor.
Dr. Perlin concluded that Mr. Tagiran "describes fairly typical inflammatory type back and thoracic area pain with restricted mobility as documented above and probably involvement of the costovertebral joints with resultant chest symptoms". She felt that the clinical findings, radiologic evidence as reported by Dr. Bell, and HLAB 27 positivity, were all compatible with the diagnosis of ankylosing spondylitis.
In view of the reports of Dr. Bell and Dr. Perlin, I accept that Mr. Tagiran had a significant, symptomatic pre-existing condition at the time of the accident.
Post-accident Condition
After the accident, the examining physician at the Toronto Hospital Emergency Services Department indicated that on his examination, Mr. Tagiran was tender over the cervical spine and thoracic spine. It was the doctor's impression that Mr. Tagiran had suffered a musculo-skeletal strain and that he should see his family doctor in the coming week. The nursing notes indicate that Mr. Tagiran was complaining of a frontal headache and lower back pain. Three views of Mr. Tagiran's cervical spine were taken and two of his thoracic spine and no fractures were seen.
It appears that following the accident, Dr. L.S. Johnson, his family doctor, examined Mr. Tagiran on September 1, September 9, September 22, November 9, December 2 and December 14, 1992. He saw him two more times, on February 15 and March 29, 1994. In September 1992, Dr. Johnson diagnosed Mr. Tagiran as suffering a myofascial strain to the thoracic and lumbar spine. He expected Mr. Tagiran would return to work within eight weeks of the accident.
After his move downtown, Mr. Tagiran was seen by Dr. S.W. Teow, a general practitioner, on December 21, 1992, and each month, at least once, from January until December 1993.
Dr. Teow, a general practitioner, reported that a CAT scan done in May 1993 revealed a herniated disc at L5-S1 and facet joint arthritis. Dr. Teow concluded that:
It is my opinion that his main problem is his central herniated disc as he did not complain of pain in the sacroiliac joints. The central herniated disc is the direct result of his automobile accident. The disc herniation is permanent and it has caused him to be totally disabled....The facet joint syndrome is also the result of his back injury....This syndrome is permanent and there is no treatment for it. He will continue to have chronic pain and stiffness in his back. The facet joints will continue to deteriorate. Mr. Tangiran's [sic] injuries are very severe and permanent. Obviously his injuries and complications will result in large economic loss as well as limitations in his daily activities.
Dr. Teow's report also indicates that at his examination of Mr. Tagiran on February 10, 1994, he recommended that Mr. Tagiran refrain from lifting and excessive bending. Dr. Teow's report does not address the question of whether sitting to work as a cab driver creates difficulty for Mr. Tagiran.
Dr. Teow is the only medical practitioner who considers that Mr. Tagiran is unfit to work. Dr. Colin D. Lambert, the neurologist to whom Dr. Teow referred Mr. Tagiran in August 1993, reported that he had an entirely normal neurological exam and concluded that Mr. Tagiran had pain of soft tissue origin. Dr. Lambert wrote,
He shows no sign of nerve root irritation at this time. A CT scan of the lumbar spine, from May 1993, was made available and this showed a central herniated disc at L5, S1. I could not find any corresponding features in the history or examination to suggest that this required surgical intervention. In fact, the recent emergence of pains in the rib cage and sternal area, clearly indicate that the focus of attention is no longer specifically the back.
It is apparent from his report, and Mr. Tagiran's evidence, that Dr. Lambert had no knowledge of the previous diagnosis of ankylosing spondylitis and the previous history of back and chest pain.
Dr. G. Moddel, who testified at the hearing, examined the Applicant at the request of the Insurer on March 14, 1994. Dr. Moddel's report records that the Applicant complained that
...Pain is located in the middle of his back and tends to increase with bending and moving. He says the pain can radiate up into his shoulders and down into his legs. He finds that he can only sit for about 10-15 minutes at a time. He says that after that the pain becomes so severe that he has to get up and move around. He denies any persistent numbness or weakness of his legs and he denies bladder or bowel complaints...He states that prior to the accident, he occasionally would have some soreness in his back but he had never had the particular problems that he is having at this time. He states that he was always in good health.
Dr. Moddel also concluded that the neurologic examination revealed no abnormalities. Dr. Moddel indicated that in his view, the central disc herniation at L5-S1 was not causing Mr. Tagiran any significant problems. From the history as related by Mr. Tagiran and the treatment following the accident, Dr. Moddel concluded that the accident could not have precipitated the disc abnormality. Dr. Moddel found that the Applicant had none of the classic signs of symptomatic disc herniation after the accident, and could sit quite well with his legs extended.
Dr. A.A. Tountas, orthopaedic surgeon, examined Mr. Tagiran on January 5 and March 2, 1993 after a referral from Dr. Teow. His report is clear that Mr. Tagiran denied having any problems with his back in the past. Dr. Tountas concluded that Mr. Tagiran's symptoms were related to cervical and lumbar muscle strain and he suggested anti-inflammatory medication, muscle relaxants, and physiotherapy. In Dr. Tountas' view, the x-rays of the lumbar spine showed evidence of pre-existing bilateral sacroiliitis. Dr. Tountas' reports are silent regarding any restrictions on Mr. Tagiran for lifting and about his ability to work.
Of the ten medical reports filed in this proceeding, only the report of general practitioner Dr. S.W. Teow concludes that the Applicant is disabled from work. Dr. Teow attributes the disability to the central herniated disc at L5-S1. It is not clear from Dr. Teow's report what work he understands Mr. Tagiran might be disabled from. Dr. Teow's only restriction is that Mr. Tagiran should have "absolutely no lifting and excessive bending".
It is clear that Dr. Teow knew nothing of the diagnosis of ankylosing spondylitis made by two rheumatologists prior to the motor vehicle accident. He knew nothing of the Applicant's lengthy history of back, chest, and neck pain.
Dr. Teow's views do not accord with the views of the specialist, Dr. C. Lambert, neurologist, to whom he referred his patient. Contrary to Dr. Teow's view that there was a high probability of a discectomy in Mr. Tagiran's future, Dr. Lambert indicated that Mr. Tagiran would not require surgical intervention. Dr. Lambert specifically commented on the "recent emergence of pain in the rib cage and sternal area" and noted that the focus of attention is no longer specifically Mr. Tagiran's back. Clearly, from the report and from Mr. Tagiran's own evidence, Dr. Lambert had no knowledge of the long standing complaints of chest pain.
The Insurer paid weekly income benefits to Mr. Tagiran, but terminated them on December 28, 1992, based on the report of Dr. Michael Hall of November 11, 1992. This was the second occasion on which Dr. Hall had examined Mr. Tagiran. He had previously examined him on September 28, 1992. According to the report of Dr. Hall, and as admitted by Mr. Tagiran, the Applicant told him he had not had any problems with his neck or back prior to the motor vehicle accident. At his first examination, Dr. Hall was convinced that Mr. Tagiran was experiencing genuine back discomfort, based on his consistent inability to flex forward to a normal extent and in the manner in which his movements were actually performed. However, by mid November 1992, Dr. Hall found that the Applicant's flexion was inconsistent, as between flexion from a standing posture and flexion while seated. Dr. Hall also noted a considerable restriction in the Applicant's degree of rotational movement which he attributed to voluntary inhibition of movement.
Thus, I find a tangled web of medical opinion with Dr. Teow being the sole proponent of the Applicant's "total disability". I am not satisfied, on the basis of the evidence before me, that the L5-S1 disc herniation was caused by the motor vehicle accident of August 30, 1992, nor, in any event, that the herniation is the source of the Applicant's back pain. I find it more probable that after December 28, 1992, Rustom Tagiran's ongoing complaints are related to his pre-existing condition of ankylosing spondylitis. In addition, the Applicant has failed to convince me that he suffers a substantial inability to perform his essential tasks.
Apart from Dr. Teow's opinion as to Rustom Tagiran's ability to work, I have only the Applicant's evidence that he cannot substantially perform his essential tasks as a taxi driver. He stated that he cannot drive 12 hours in a shift. However, I find difficulty in placing any great weight on Mr. Tagiran's evidence, because of the unreliability of his testimony in other aspects of this hearing. Some examples follow.
It is of little importance to the issues before me whether or not the Applicant was wearing a seatbelt at the time of the motor vehicle accident. However when this question was asked, it appears from the reports provided to me, that approximately half the time the Applicant responded that he had been wearing a seatbelt and approximately half the time he had responded that he had not. Although the Applicant attempted to attribute his lack of language skills to the inconsistency in the recorded responses, I find that as a taxi driver it should not be difficult to answer such a question. I observed that Mr. Tagiran, in his testimony, had rather a soft voice. It is possible that his answer was misunderstood by some medical personnel, but that does not account for the inconsistency in the recorded responses.
I have difficulty with the Claimant's failure to mention his pre-existing condition to anyone, after the motor vehicle accident. Not even his own family doctor, Dr. Teow, appears to have known about this condition.
Dr. Teow did not testify at the hearing, so I have no evidence as to the effect that this information would have on his view of the Applicant's condition. Dr. Moddel, however, did state that the symptoms described by Dr. Bell and Dr. Perlin in their reports of January and April 1992 were consistent with symptoms of disc herniation, which may not have been diagnosed until the May 1993 CT scan.
If the medical evidence in this case appears inconsistent, this is in my view, largely due to the fact that Mr. Tagiran has given doctors inconsistent responses to their questions, particularly regarding his pre-accident history.
Mr. Tagiran testified at the hearing that he had not worked since the accident. Based upon Mr. Dabagh's evidence, I find that Mr. Tagiran has been untruthful. I do not accept his explanation that the letter of April 1993 was a sham. I accept that in April 1993 he was working as a taxi driver for Mr. Dabagh.
In addition, the evidence Mr. Tagiran has presented regarding his pre-accident income has proven to be unreliable for reasons set out in the section entitled "Wage Loss". This further influences me in my view that I cannot place much credence in Mr. Tagiran's evidence.
In the result, the Applicant has not satisfied me on a balance of probabilities, that he was substantially disabled from performing the essential tasks of his occupation or employment as a taxi cab driver, after December 28, 1992.
ISSUE # 2
Wage Loss
What is the correct rate for weekly income benefits?
The Applicant bases his claim for weekly income benefits on the unaudited report of the firm of chartered accountants. The Applicant claims that, after expenses, he earned $537 per week in the four weeks preceding the accident. This would result in a weekly income benefit payable of $429.60, pursuant to the provisions of section 12(4) of the Schedule.
Mr. Tagiran testified that the accountants prepared their report, marked Exhibit 4, based upon information he supplied to them about his income and expenses. That information was supplied from his memory. In fact, two markedly different accountants' reports, both dated October 7, 1992, were provided at the hearing.
The report on which the Applicant relied was submitted to the Insurer in 1994. Previously, in the fall of 1992, the Applicant had submitted another report (marked Exhibit 6) which indicated income over a 22 week period in 1992 of $873 per week. Mr. Tagiran explained that the report which had been submitted in the fall of 1992 was a "mistake". The discrepancy between the accountants' reports is more than $12,000 in gross income.
Mr. Tagiran also testified that the accountants' report was based on his run sheets. However, the income from the run sheets filed at the hearing totals only approximately $6,000, far below the $22,300 in gross income claimed by the Applicant in Exhibit 4.
Mr. Tagiran admitted that the draft 1992 income tax return, dated February 12, 1994, had not been filed with Revenue Canada. He also confirmed that he had not remitted any GST for GST collected from his fares, and that he had no receipts or invoices to substantiate the expenses which he claimed.
The accountants' report indicates vehicle lease costs of $3,685, fuel costs of $1,760, car wash costs of $150, interest and bank charges of $60, and promotion expense of $217 over the period April 1 to August 30, 1992. Mr. Tagiran provided no documentary evidence of his expenses. In fact, he did not even supplement the accounting report by any oral testimony about the expenses he claimed in his income statement for 1992.
Mr. Tagiran testified that the run sheets which he provided at the hearing were filled out on the dates noted on each sheet at the time each trip was made. As Senior Arbitrator, F. Rotter stated in the case Jagdishar Singh and Kingsway General Insurance Company, January 29, 1993, OIC File No. A-000890,
The run-sheets are clearly documents which the Applicant has created himself and are, in themselves, no more reliable or trustworthy than the Applicant's uncorroborated testimony.
The run sheets as submitted do not form a complete, or even nearly complete, record of the four week period prior to the accident on which the Applicant seeks to base his claim for loss of income. Even if I were to accept the run sheets submitted at the hearing as authentic, without any satisfactory evidence of the Applicant's expenses and of his earnings on the days other than those recorded on the run sheets, I am unable to make any determination about his income in the four weeks before the accident.
Mr. Tagiran has provided inadequate evidence which cannot lead me to any reliable finding as to either his revenue or his expenses for the four week period prior to the accident in 1992. The Applicant provided two accountants' reports, covering the same period showing vastly different sums for both income and expenses. He admitted at the hearing that these reports were based on his "memory". The Applicant did not even establish, to my satisfaction, on a balance of probabilities, the number of days each week in the four weeks preceding the accident that he actually drove a cab. Accordingly, I conclude that the Applicant has failed to establish that his gross weekly income exceeded the deemed statutory minimum of $232 per week. Therefore the Applicant was entitled to benefits of $185.60 per week, the amount that the Insurer paid.
In addition, I find that, despite his emphatic denial, the Applicant did earn income after the accident. Although I believe it is unlikely that the Applicant did drive the taxi during the period August to December 1992, I find that he has driven, at least occasionally, since that date. This finding clearly impacts the Applicant's credibility as a witness and also has implications with respect to his evidence on the extent of his disability.
Expenses and Costs to Insurer
In an arbitration proceeding, it is very important that evidence be credible and worthy of belief. Mr. Tagiran's evidence has been proven to be inconsistent, contradictory, and false in numerous aspects. The Insurer asks that costs be awarded to them in the sum of $1,000, pursuant to the amendments to the Insurance Act, R.S.O. 1990, c.I.8, section 282(11.2) which state as follows:
(11.2) If an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14.
In the past, arbitrators have commented favourably on the statement made by Senior Arbitrator Naylor in Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139, as to the underlying criteria for awarding expenses to applicants in proper cases. In the McCormick case, Senior Arbitrator Naylor commented as follows:
The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.
Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.
The Director of Arbitrations approved this statement of the principles guiding an award of expenses in the appeal decision in Vito Luigi Calogero v. The Co-Operators General Insurance Company (O.I.C. File No. P-000251, issued February 13, 1992).
Expenses have been denied to applicants in cases where they have lied to the arbitrator, made false declarations, or submitted fraudulent claims.
In this case, I have found that Mr. Tagiran gave false evidence and it is my decision to exercise my discretion by not awarding him any costs of this proceeding.
The Applicant testified several times during the course of the hearing that he had difficulty communicating in English at the time of the accident and that his ability to speak English had improved in the last two years, since he had met his Canadian girlfriend. He testified that he did not answer truthfully with respect to his previous health history, on occasion, because he concentrated on the fact that prior to the accident he was able to work and, in his view, after the accident he was not. I appreciate that, in the Applicant's mind, there may be a direct link to his condition today and the motor vehicle accident of August 1992. However, for the purposes of compensation under section 12 of the Schedule, I believe that he has not established any entitlement to weekly income benefits after the end of December 1992. Accordingly, even though the Applicant has given false evidence at this hearing, I do not believe his claim can be classed as "frivolous, vexatious or an abuse of process" for which the penalty of costs of up to $1,000 in favour of the Insurer should be exacted.
Order:
The Applicant is not entitled to any further weekly income benefits.
The correct rate for weekly income benefits is $185.60.
The Applicant is not awarded his expenses of the hearing.
August 15, 1994
K. Julaine Palmer Arbitrator
Date