Neutral Citation: 1995 ONICDRG 109

File No. A-002780

ONTARIO INSURANCE COMMISSION

BETWEEN:

Alladin Alishah

Applicant

and

Allstate Insurance Company of Canada

Insurer

DECISION

BACKGROUND:

Mr. Alishah was involved in an automobile accident on July 6, 1990. He was stopped on Highway 401, waiting for traffic ahead of him to move when his car was rear-ended by another vehicle. As a result of the impact, he hit his forehead, and the side of his head on the steering wheel.

On July 19, 1990, Mr. Alishah applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under Ontario Regulation 672¹. Allstate paid weekly income benefits under section 12 of the Schedule, at the rate of $530.32 from July 13, 1990 to January 25, 1992, and at the rate of $313.25 from January 26, 1992 to July 24, 1992, when they were terminated.

Mr. Alishah disputes the termination of his weekly income benefits. He also disputes the amount of weekly benefits paid to him and claims he is entitled to $600.00 per week. Allstate denies Mr. Alishah's entitlement to weekly income benefits after July 24, 1992. It also claims repayment of weekly income benefits paid to Mr. Alishah in excess of $313.25 per week during the period July 13, 1990 to January 25, 1992.

The parties were unable to resolve their disputes through mediation. Mr. Alishah applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. What is the correct amount of weekly income benefits to which Mr. Alishah is entitled under section 12(4) of the Schedule?

2. Is Mr. Alishah entitled to weekly income benefits under section 12(1) and section 12(5)(b) of the Schedule, for any period of time after July 24, 1992?

3. Has there been an overpayment of weekly income benefits to Mr. Alishah? If so, what is that amount?

The Applicant also claims interest on any amounts owing, and his expenses incurred in the arbitration.

Allstate denies that Mr. Alishah is entitled to his arbitration expenses and seeks an order against him for the return of the assessment fee it paid in respect of this arbitration.

Result:

1. The correct amount of Mr. Alishah's weekly income benefits is $330.11.

2. Mr. Alishah is not entitled to weekly income benefits after July 24, 1992.

3. Mr. Alishah must repay Allstate the amount of $16,233.06, plus interest in accordance with section 27(4) of the Schedule.

4. Mr. Alishah must pay Allstate $1000.00, being the amount assessed against the Insurer in respect of this arbitration.

Hearing:

The hearing was held in North York, Ontario, on October 13 and 17, 1994, before me, Asfaw Seife, arbitrator.

Present at the Hearing:

Applicant:

Alladin Alishah

Applicant's Representative:

Audrey Newman

Barrister and Solicitor

Insurer's Representative:

Ian D. Kirby

Barrister and Solicitor

Insurer's Officer:

Mary Darwent

Witnesses:

Alladin Alishah

The Applicant

Renuka Alishah

The Applicant's Wife

Dr. Kyle Baumanis

Clinical Psychologist

Dr. Seggane Musisi

Psychiatrist

Dr. Alex Donskoy

Family Physician

Babara Sever

Personnel Manager- Premdor Inc.

Bradley Barber

Claims Manager- Allstate Insurance

Dr. Frank Kenny

Clinical Neuropsychologist

Exhibits:

Exhibit 1

Applicant's Document Brief, containing 29 tabs.

Exhibit 2

Insurer's Document Brief, containing nine tabs.

AMOUNT OF WEEKLY INCOME BENEFITS:

Weekly income benefits are based on 80 per cent of an applicant's gross weekly income from employment or occupation, up to the limits set out under section 12(4) of the Schedule. The gross weekly income is determined in accordance with the rules set out in section 12(7).

Section 12(7) provides that an applicant's gross weekly income from his or her occupation or employment is deemed to be the greatest of:

1. his or her average gross weekly income for the four weeks preceding the accident; or

2. his or her average gross weekly income for the 52 weeks preceding the accident; or

3. $232.00.

Mr. Alishah claims that he was continuously employed during the entire 52-week period preceding the accident. He testified that from September 12, 1986 until June 8, 1990, he worked for Premdor Inc., a door manufacturing company. He also testified that he worked at Fair Lady Lingerie, a women's clothing factory, from 1988 until April, 1990, on a part-time basis. In addition, during the time of his employment with Fair Lady Lingerie and Premdor, Mr. Alishah claimed he worked part-time for a Mr. Ravi Rawana, selling lingerie at flea markets. He claimed this employment continued up to one week before the accident.

During the week preceding the accident, Mr. Alishah claims he was employed by Kiss Fashion, a clothing manufacturing company owned by Mr. Rawana.

Mr. Alishah claims that based on his earnings from his employment for both the four and 52 weeks preceding the accident, he is entitled to a weekly income benefit of $600.00, the maximum under the legislation.

Allstate initially paid Mr. Alishah weekly income benefits at the rate of $530.32 from July 13, 1990 to January 25, 1992, based on information received from Mr. Alishah regarding his earnings for the four weeks preceding the accident.

Subsequently, Allstate investigated Mr. Alishah's claimed employment. It concluded that Mr. Alishah's only verifiable employment during the 52 weeks preceding the accident was with Premdor Inc. It concluded that Mr. Alishah was not employed with Fair Lady Lingerie and Kiss Fashion during the periods of time in question.

Allstate reduced the amount of weekly income benefits to $313.25. Mr. Alishah was paid at this rate until the termination of his benefits on July 24, 1992. This amount was based on Mr. Alishah's earnings from Premdor during the 52 weeks preceding the accident.

Income for the 52 Weeks Preceding the Accident.

1. Premdor Inc.

It is not disputed that Mr. Alishah had been employed by Premdor, from September 12, 1986 until June 8, 1990, when his employment was terminated. T4 slips issued by Premdor, income tax returns, Mr. Alishah's Record of Employment when he left Premdor as well as the Employer's Confirmation of Income completed by Premdor, were filed in evidence. Ms. Barbara Sever, the Human Resources Manager for Premdor also testified at the hearing confirming Mr. Alishah's employment and earnings from Premdor.

Mr. Alishah was employed at Premdor for 48 of the 52 weeks preceding the accident. Based on the documentary evidence regarding his employment income from Premdor, which is not disputed by the parties, I find that Mr. Alishah's average gross weekly income was $412. 64.

2. Fair Lady Lingerie:

Mr. Alishah testified that starting 1988, until April or May of 1990, he worked "part-time" at Fair Lady Lingerie, as a fabric cutter, for 40 to 45 hours per week. He testified this was in addition to his 40-hour work week at Premdor. He stated his hours at Fair Lady Lingerie were from 4:30 p.m to 12:00 midnight. Sometimes he worked on the weekends, for 10 hours or more. He testified that only he and Mr. Rawana, who he said was a co-owner of the company, worked at night and weekends.

Mr. Alishah testified that he was paid $8.00 per hour at Fair Lady Lingerie, and earned an average weekly income of over $320.00. He said he was sometimes paid commission. However, when he was questioned by the Insurer's counsel about proof of this income, Mr. Alishah contradicted this statement by saying, "I got no money from Fair Lady Lingerie -just gas money"... "the only payments I ever received from them (Fair Lady Lingerie) were three cheques, one of which bounced." In fact, Mr. Alishah stated that he loaned the owners of the company $10,000.00, when the company had financial difficulties. He said he gave all of the money in cash to Mr. Rawana, a "good friend" he had known for a long time. He said he never got his money back. Mr. Alishah stated that even though the company did not pay him his salary, he continued working for it because they owed him money.

3. Flea Market:

Mr. Alishah testified that in addition to his full-time employment at Premdor and his "part-time" job at Fair Lady Lingerie, which together total over 85 hours per week, he worked part-time, on weekends, selling lingerie at flea markets in Wasaga Beach and Cambridge. He stated that he was personally employed by Mr. Rawana, who paid him $600.00 per week, plus commission for selling lingerie.

Mr. Alishah testified that he received cash from Mr. Rawana for working both at the Fair Lady Lingerie factory and selling clothing at flea markets. Mr. Alishah declined to reveal the specific amount saying that "that is between me and him".

Mr. Alishah admitted that he had no record of his earnings from his alleged employment with Fair Lady Lingerie or Ravi Rawana. He never reported this income to Revenue Canada. He did not attempt to call Mr. Rawana or any other witness to appear before this arbitration hearing to corroborate his evidence.

I find Mr. Alishah's testimony regarding his employment and earnings from Fair Lady Lingerie and selling at flea markets for Mr. Rawana unsubstantiated and contradictory for the most part. Accordingly, I find that Mr. Alishah has not established with credible evidence his claimed employment and earnings from Fair Lady Lingerie or his flea market work during the 52 weeks preceding the accident.

Income for the Four Weeks Preceding the Accident:

Mr. Alishah testified that:

1. From June 8, 1990 to June 28, 1990 (three weeks before the accident), he was employed by Mr. Ravi Rawana, selling clothing for Mr. Rawana at a flea market in Cambridge, Ontario. He said Mr. Rawana paid him $600.00 per week, plus an undetermined amount of commission, for his services.

2. From June 28, 1990 to July 6, 1990 (the week immediately preceding the accident), he was employed by Kiss Fashion Inc, a company owned by Mr. Rawana. Mr. Alishah stated that Kiss Fashion manufactured T-shirts, sweat shirts and baby clothes. His job was cutting fabric for the garments, and doing other things that Mr. Rawana wanted him to do. Mr. Rawana paid him $600.00 for the week, "plus commission of $200 or more".

I do not accept Mr. Alishah's testimony concerning his alleged employment during this period of time for the following reasons:

Mr. Alishah testified that all payments he received from Mr. Rawana and Kiss Fashion for both jobs were in cash. He stated he kept no record of the payments and did not report them to Revenue Canada. He had no written employment contract with Kiss Fashion or Mr. Rawana.

When questioned by the Insurer's counsel during cross-examination, Mr. Alishah was unable to provide the address of Kiss Fashion, or even the street where the factory was purportedly located. I find it significant that Mr. Alishah made no attempt to call Mr. Rawana or any other independent witness to corroborate his claims at this hearing, since he knew that the existence of Kiss Fashion and any income he claims he received from Mr. Rawana were issues in this arbitration.

The only person Mr. Alishah called to testify about his employment with Kiss Fashion was his wife. Mrs. Alishah testified that she, as well as her husband, had worked for their "good family friend", Mr. Rawana, on a cash basis. She stated that she has seen her husband working at the Kiss Fashion factory, located "somewhere around Morningside and Tapscott". She was unable to provide the address of the company, nor any useful information regarding the alleged payments Mr. Alishah received from Mr. Rawana. She did not testify about Mr. Alishah's alleged flea market work.

CONCLUSION:

The documentary evidence that Mr. Alishah filed in support of his claim regarding his employment and income for the four weeks preceding the accident consists of: 1) an Employer's Confirmation of Income signed by Ravi Rawana, dated July 16, 1990, showing that Mr. Alishah earned $600.00 in the week immediately preceding the accident, and 2) a T-4 slip for $600.00, purportedly issued by Kiss Fashion.

There are serious discrepancies between Mr. Alishah's testimony and the documentation he himself submitted.

The Employer's Confirmation Form shows Fair Lady Lingerie, not Kiss Fashions, as Mr. Alishah's employer during the week preceding the accident. The address of this company is shown as 680 Progress Ave., Scarborough, Ontario, Unit 5. Mr. Alishah denied that this was the address of Kiss Fashion. The Application for Accident Benefits, signed and submitted by Mr. Alishah himself also lists Mr. Alishah's employer at the time of the accident as Fair Lady Lingerie.

However, Mr. Alishah was adamant that at the time of the accident, his employer was Kiss Fashion, not Fair Lady Lingerie. Mr. Alishah was sure that in the week immediately preceding the accident he was working for Kiss Fashion, located somewhere "around Morningside and Tapscott". He was sure because there was a sign at the door that said "Kiss Fashion". He stated that Fair Lady Lingerie had gone out of business in "April or May" 1990. He denied attending at 680 Progress Avenue for work after April or May 1990.

With regard to the T-4 slip, Mr. Alishah testified that it represents his earnings from Kiss Fashion for the week preceding the accident. The T-4 slip, as originally printed, is a 1989 form; however, the year 1989 was crossed out and in its place "1990" is inserted in ink. Mr. Alishah testified that this form was prepared by Mr. Rawana and given to him after the accident. He could not explain the alteration or why the amount of commissions he said he received was not entered in Box P of the form. The box for "Employer Number" in the T-4 was also left blank. Mr. Alishah did not offer an explanation regarding the discrepancy between the various documents.

Both the Employer's Confirmation of Income and the T-4 were allegedly prepared by Mr. Rawana. Mr. Alishah has not called Mr. Rawana to give evidence at this arbitration hearing. Although Mr. Alishah testified that he knew other people who worked at Kiss Fashion, he did not call any of them to testify on his behalf to lend credence to his claim.

Mr. Alishah has admitted that he has made no written record of his income from his alleged employment with Kiss Fashion or Mr. Rawana. He has no proof of an employment contract. He did not produce bank statements or any other documentary evidence to lend credibility to his income claim.

I find the documentary evidence Mr. Alishah has adduced no more reliable or trustworthy than his own testimony.

Therefore, on the evidence before me, I conclude that Mr. Alishah did not have any income from employment during the four weeks preceding the accident. I find that Mr. Alishah's only income from employment during the 52 weeks preceding the accident was from his employment at Premdor.

Accordingly, I find that the correct amount of his weekly income benefits is 80 per cent of his average gross weekly income of $412.64, which is $330.11.²

ENTITLEMENT TO WEEKLY INCOME BENEFITS:

In order to establish entitlement to weekly income benefits under section 12(1) of the Schedule, Mr. Alishah must prove, on a balance of probabilities, that as a result of the injuries he sustained in the accident, he suffered from a substantial inability to perform the essential tasks of his occupation or employment.

In addition, in order for Mr. Alishah to be entitled to weekly income benefits for any period in excess of 156 weeks, he must establish that the injury continuously prevents him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience. [Section 12(5) of the Schedule]

Essential Tasks:

The evidence shows and I find that from 1986 until June 8, 1990, Mr. Alishah was employed as a carpenter by Premdor Inc. His essential tasks before the accident included pushing a wagon containing doors, lifting doors and placing them on a bench, cutting holes on doors using cutting machines, planing doors, cutting glass with a machine, screwing door frames, and taking measurements.

I find that the primary physical requirements of this job include static forward bending, lifting heavy and awkward loads, pushing, pulling, carrying heavy loads, reaching, and frequent gripping of objects. The ability to concentrate and use fine motor skills is also required.

Mr. Alishah also testified about his essential tasks at Fair Lady Lingerie. In my discussion of the issue of quantum, above, I have found Mr. Alishah has not established his employment with this company; accordingly, I have not considered Mr. Alishah's alleged employment duties at Fair Lady Lingerie in determining his pre-accident essential tasks.

MEDICAL EVIDENCE:

Mr. Alishah was the only occupant and driver of his automobile. He was wearing his seat belt. Mr. Alishah states that his car was struck twice by the other vehicle. He did not lose consciousness; he was able to get out of his car and talk to the other driver.

At the scene of the accident, Mr. Alishah complained of dizziness. He was transported by ambulance to Centenary Hospital for further assessment. At the hospital, significant abdominal and neck injuries were ruled out. Mr. Alishah's chief complaint while at the hospital was pain and stiffness throughout the length of the spine but particularly in the cervical region. He also complained of pain along the muscles of the right shoulder. The hospital records show that Mr. Alishah denied any numbness or loss of muscle power in the upper or lower extremities. There was no loss of consciousness or amnesia with respect to the accident. The orthopaedic surgeon at the hospital, Dr. Paul Salo, concluded that Mr. Alishah had suffered a whiplash injury to his neck . He was provided with a soft cervical collar and a prescription for pain killers. X-rays of his cervical spine, chest, right rib, sternum, skull and lumbar spine were all normal.

On July 9, 1992, Mr. Alishah saw Dr. Wolgelernter, his family doctor since January, 1985 with complaints of headache, neck, lower back and chest pain. Dr. Wolgelernter did not testify at this hearing; however his clinical notes were filed in evidence. The record shows that after his initial visit following the accident, Mr. Alishah saw Dr. Wolgelernter only two more times - July 11, and July 18, 1990.

Mr. Alishah testified that he did not want to see Dr. Wolgelernter any more "because he was sending me back to work. He would not send me to a specialist. I was passing blood from my bowels."

On July 19, 1990, Mr. Alishah began to see Dr. Alex Donskoy, a family physician. Mr. Alishah testified that he was not referred to Dr. Donskoy by anyone. He found him "when I was going downstairs from my lawyer's office. I saw the doctor's name. I said both are in the same building. I was not happy with Dr. Wolgelernter so I went to see Dr. Donskoy."

I find it significant that Mr. Alishah left Dr. Wolgelernter, his family doctor of six years, when he told him to return to work. I also find it noteworthy that within a day of leaving Dr. Wolgelernter, Mr. Alishah went to see a lawyer, and by pure coincidence, found another doctor (Dr. Donskoy), who was willing to support his case. Dr. Donskoy asked him no questions about his former family doctor or medical history.

Since Mr. Alishah started seeing Dr. Donskoy, he has been examined, treated and assessed by more than 28 health care providers, including a physiotherapist, a masseuse, a chiropractor, an occupational therapist, two orthopaedic surgeons, three psychologists, two psychotherapists, a psychiatrist, a neurosurgeon, a neuropsychologist, an ophthalmologist, a specialist in colorectal surgery, and a urologist. He has had numerous tests done, including blood tests, x-rays, ultrasound, EMG, EKG, ultrasound, and CT scan, none of which demonstrated any objective basis for his complaints.

Mr. Alishah testified that despite the treatments he has received, his symptoms have shown little improvement over the years. He stated that his lower back is still sore, he can bend a little, but cannot lift heavy objects. His neck is still stiff; it produces a clicking sound when he moves it. His knees are unstable, causing him to fall. His left shoulder still troubles him when the weather changes. He cannot concentrate, and has constant headaches. He continues to experience dizziness every day. His hands tremble and he has cramps in his feet.

Mr. Alishah also testified about suffering from depression, nervousness, "seeing things" and "hearing noises", sleep disturbances such as nightmares, and walking and talking in his sleep. In addition to the medications prescribed for him, he said he has consumed alcohol in order to alleviate his pain and deal with his sleep and nerve problems. He has had blackouts. He testified his major complaints at the time of the hearing were the headache, dizziness, nervousness and inability to concentrate. He attributes all of these problems to the accident.

Since the summer of 1992, Mr. Alishah has been treated only by Dr. Donskoy and Dr. Musisi, his psychiatrist. Currently he is taking medication for high cholesterol and high blood pressure, neither of which is caused by the accident. He takes sleeping pills, only as required. He is taking no other medication for his physical or psychological complaints.

Mr. Alishah testified that he has been unable to return to his pre-accident employment, or to engage in any other suitable employment, because of the physical and psychological injuries he claims he sustained from the accident.

At the hearing, under cross-examination, Mr. Alishah denied ever being off work for any injuries, prior to the accident of July 6, 1990. However, Barbara Sever, the personnel manager at Premdor, testified that Mr. Alishah's employment records at Premdor showed that he was off work on worker's compensation benefits for a total of 36 days in 1986, 1987 and 1988 for injuries to his forehead, left side and back. Mr. Alishah did not report these injuries to any of the doctors who saw him after the accident.

Dr. Donskoy; Dr. Kyle Baumanis, a clinical psychologist; Dr. Frank Kenny, a neuropsychologist; and Dr. Seggane Musisi, a psychiatrist, testified at the hearing. Their clinical notes, records and reports were filed as exhibits. The clinical notes and records of all of the other physicians and health care facilities treating or assessing Mr. Alishah were also filed.

After reviewing the extensive medical records and the oral testimony of the doctors, I conclude that all the medical opinion indicates that Mr. Alishah sustained soft tissue injuries to his neck, left shoulder, and lower back, with associated pain and headaches, as a result of the motor vehicle accident. However, the medical professionals differ in their opinions as to whether Mr. Alishah has sustained psychological or mental injuries from the accident, and whether he is substantially disabled from returning to work beyond July 24, 1992, because of injuries sustained in the accident.

Dr. Donskoy's Evidence:

Dr. Donskoy first saw Mr. Alishah on July 19, 1990. At the time of the hearing, Dr. Donskoy had seen Mr. Alishah over 125 times. He continues to see him twice a week, on average.

Mr. Alishah's worst complaints when he first saw Dr. Donskoy were neck and left shoulder pain. Initially, Dr. Donskoy's diagnoses were: head contusion, strain of neck, lower back, right shoulder, bruised chest, rectal bleeding, anxiety, headache and dizziness. He sent him to Premier Treatment Centre, for physiotherapy, massage, and psychological and occupational counselling. Because of his persistent complaint of headaches, dizziness and anxiety, Dr. Donskoy referred Mr. Alishah to Dr. A. Birnbaum- a neurologist and Dr. Musisi, a psychiatrist. Dr. Donskoy testified that by July 1992, Mr. Alishah's physical symptoms had shown some improvement; however, he thought Mr. Alishah continued to suffer from a combination of physical and psychological disabilities. In his Medical and Psychological Report dated September 2, 1992, submitted to Allstate approximately one week after the termination of weekly income benefits, Dr. Donskoy diagnosed Mr. Alishah's condition as posttraumatic stress disorder.

In his report, Dr. Donskoy's stated that Mr. Alishah was "unfit for any work", because he suffered from headaches, dizziness, lack of concentration, fatigue, and difficulty sleeping, all of which he attributed to the accident. Dr. Donskoy was also of the view that Mr. Alishah had sustained a "serious concussion" in the accident, which he felt was responsible for his symptoms.

At the hearing, Dr. Donskoy testified that by 1992-93, Mr. Alishah's neck, back and shoulder had improved considerably; however, he still felt that Mr. Alishah would only be able to return to modified work not involving prolonged twisting, bending of the lower back, repetitive neck movements, and lifting of any kind.

Dr. Musisi's Evidence:

Dr. Musisi first saw Mr. Alishah on June 3, 1991. He has seen him about once a month since that time, except during the period of seven months, when the doctor was on sabbatical.

Mr. Alishah made the same complaints to Dr. Musisi as to Dr. Donskoy. In addition, he told Dr. Musisi that he experienced frequent nightmares, sleepwalking, and sleep talking, and that he felt constantly sad, tense and irritable. He told him about ongoing financial problems and that he has been drinking alcohol excessively to counteract the pain and sleeplessness. He also told him that for some time he was even afraid of highway driving, but that he had subsequently gone back to driving.

Dr. Musisi found Mr. Alishah's cognition and judgment were intact, he was not suicidal, nor "endogenously depressed". Although Mr. Alishah was not anxious during the interview process, Dr. Musisi felt Mr. Alishah was "quite concerned about what the accident had done to his life and what trouble it has put him through".

Dr. Musisi diagnosed Mr. Alishah as suffering from posttraumatic stress disorder, caused by the trauma of the accident. He stated that this is a psychiatric disorder and the diagnosis was made in accordance with the criteria established in the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition ("DSM-IV"), which he described in his testimony³. He also noted that Mr. Alishah "has been abusing alcohol."

Dr. Musisi prescribed various medications for Mr. Alishah and arranged psychotherapy sessions to help him with his symptoms.

Dr. Musisi testified that Mr. Alishah's symptoms did not improve with the passage of time. In his report dated August 5, 1992, issued two weeks after Allstate terminated Mr. Alishah's weekly income benefits, Dr. Musisi reported that Mr. Alishah continued to complain bitterly about his poor financial situation as his insurance payment had been stopped and his welfare had not recommenced. Dr. Musisi stated:

Failure to settle the case and certainly continued litigation perpetuates the symptoms. It is therefore my feeling that this patient will continue to have his disability as long as he views the case as unsettled and that he is getting unfair treatment at the hands of the insurance company. On the other hand, a quick and fair settlement of the case with its immediate closure will enhance resolution of the symptoms and will promote the necessary psychological rehabilitation for this patient.

Dr. Musisi reiterated this concern in his testimony at the hearing. He stated that Mr. Alishah "is pre-occupied" with his insurance claim, that "he is consumed by it", and will not get better unless the case is resolved.

In his notes of Mr. Alishah's visit on October 7, 1993, Dr. Musisi wrote:

Mr. Alishah came in for review. He has no job. He is on welfare. Now his lawyer tells him he has no case. He feels distressed. He has had nightmares. Unfortunately, he has continued to abuse alcohol. Now, he plans to contact legal aid. He is not willing to attend ASYR [Addiction Services of York Region].

On June 23, 1994 Dr. Musisi noted:

Alladin was in better spirits today. He settled one of his cases-the one with Canada Life. Now, he has two to go:

(1) The case with his former employer Fair Lady Lingerie- he hopes to settle this next month.

(2) the big one with Allstate Insurance Co. about the MVA- he feels this could settle next year.

Dr. Musisi did not feel that Mr. Alishah was exaggerating his symptoms for the purposes of secondary gain - that is, a financial settlement with the insurance company. He was of the view, however, that Mr. Alishah would not be able to work until he has settled his insurance claim.

Dr. Baumanis' Evidence:

Dr. K. Baumanis is a clinical psychologist who treated Mr. Alishah at Premier Treatment Centre from early January 1991 until May 13, 1991, at Dr. Donskoy request. In his testimony at the hearing, Dr. Baumanis stated that in his opinion, Mr. Alishah did not suffer from any form of depression that would debilitate him from returning to his pre-accident duties. He described Mr. Alishah's condition at the time he examined him to be "mildly depressed and anxious, but not to a debilitating degree".

In his report dated December 20, 1991, Dr. K Baumanis said the following about Mr. Alishah:

We did not see him as particularly depressed. At most, he gets somewhat anxious at times. He is frequently seen joking and laughing with clinic staff, and generally behaves in a rather uninhibited and frequently quite up-beat manner. We did not see him as being in need of anti-depressants, or additional treatment of an individual type. Our view is that Mr. Alishah is a passive-aggressive personality and if treated with individual psychotherapy or confronted he simply becomes more passive, with a tendency to cloud treatment issues with rather inappropriate and repetitive "stories".

A steady theme of this was that, should his benefits be terminated, he will then go out and "sell dope". Another repetitive story is to the effect that if treatments do not work on him, he will return to Guyana, kill snakes, extract their fluid and put same on his back.

There is more than a light hint to Mr. Alishah's presentation that he may be malingering.

Dr. Baumanis recommended a neurological assessment to rule out any brain damage. This was subsequently performed by Dr. Baumanis and Dr. Weber, with negative results.

Dr. Kenny's Evidence:

Dr. Frank Kenny is a neuropsychologist. He conducted a psychological assessment of Mr. Alishah on May 26 and June 2, 1992, at Allstate's request. Dr. Kenny testified that he administered certain psychological tests designed to assess Mr. Alishah's psychological complaints. These tests suggested that Mr. Alishah was feigning his complaints. Mr. Alishah was then given two tests specially designed to detect conscious attempts at feigning impairment. Both test results were highly positive for deliberate feigning.

Based on the test results obtained, Dr. Kenny concluded that Mr. Alishah was feigning memory and motor impairment, exaggerating his mental state and consciously feigning symptoms for the secondary gain of securing insurance money.

Dr. Kenny concluded that Mr. Alishah was not disabled because of the accident, but was malingering. He disagreed with Dr. Donskoy's finding that Mr. Alishah had suffered a serious concussion at the time of the accident, saying that such a finding cannot be made in the circumstances of this case, where there was no loss of consciousness, no posttraumatic amnesia, and a lack of any physical pathology to justify the finding. Dr. Kenny also rejected the diagnosis of posttraumatic stress disorder because, in his view, Mr. Alishah did not exhibit the essential elements required to make such diagnosis.

Dr. Kenny agreed that Mr. Alishah "probably does need psychiatric treatment for his long standing personality disorder, marital and psychosocial conflicts, and perhaps other problems". Dr. Kenny was of the view, however, that the motor vehicle accident was not responsible for any of these problems.

Other Significant Medical Evidence:

In March 1993, Mr. Alishah was examined by Dr. Weber, a neurologist, at Dr. Donskoy's referral. Dr. Weber concluded that Mr. Alishah was suffering from posttraumatic vascular headaches or posttraumatic migraine. Dr. Weber concluded that this condition was the result of the whiplash force to the head and neck as well as direct blows to the vertex and left temple which Mr. Alishah received at the accident.

With regard to functional restrictions imposed by this condition, Dr. Weber stated: "all I can say is his symptoms are genuine, that the pathology is real and organic, but how disabling that pathology is, is a question mark and subjective..." as "some people are incapacitated and can't work -others work through their symptomatology."

Dr. Weber detected no significant abnormality on the EEG test to suggest a structural cerebral lesion.

CONCLUSION:

I do not find Mr. Alishah's testimony reliable. His claims about his pre-accident employment earnings were largely contradictory and unsubstantiated. He was not honest in dealing with his doctors. I find that he deliberately withheld from his doctors important medical information. At the hearing, he insisted that the car accident was responsible for the rectal bleeding he reported at the time of the accident, contrary to clear medical documentation that the cause for this condition were haemorrhoids which pre-existed the accident.

Mr. Alishah's claims that more than four years after the accident, and after the intensive medical care over the years, he still suffers from back, neck, and shoulder pain severe enough to prevent him from engaging in any employment. I find this claim highly exaggerated.

I find Dr. Donskoy's and Dr. Musisi's evidence no more trustworthy than Mr. Alishah's own evidence.

Dr. Donskoy's findings are based entirely on Mr. Alishah's reported complaints. I find it troublesome that Dr. Donskoy did not ask Mr. Alishah any questions about his former family doctor or medical history. Dr. Donskoy testified he believes all of his patients, that he "never had a fraudulent claimant as a patient." It is my view that the evidence strongly suggests that Dr. Donskoy knew that Mr. Alishah's former family doctor had told him to return to work, but that Dr. Donskoy was unwilling to consider any opinion that suggested Mr. Alishah could return to work.

Dr. Donskoy diagnosed Mr. Alishah with posttraumatic stress disorder; however, at the hearing he candidly admitted that he was not familiar with the essential criteria for making such a diagnosis.

I have similar concerns with respect to Dr. Musisi's evidence. Dr. Musisi, like Dr. Donskoy, received all of the information about Mr. Alishah's medical history from Mr. Alishah himself. Dr. Musisi denied knowledge of Mr. Alishah's former family doctor who examined him just after the accident. He said that he did not know that Mr. Alishah had taken psychotherapy treatments and had been treated by a psychologist prior to being referred to him. Mr. Alishah did not tell him about seeing any other specialists or taking any medication. He did not tell him about the injuries he sustained at work prior to the accident.

Dr. Musisi, like Dr. Donskoy, accepted without question Mr. Alishah's statement of his medical history. He did not request or receive any medical records created prior or during his treatment of Mr. Alishah.

On the other hand, I find Dr. Baumanis' and Dr. Kenny's evidence believable. They arrived at their conclusions after reviewing medical reports of other doctors, and assessing Mr. Alishah using objective and scientific psychological tests.

I accept Dr. Weber's conclusion that in March, 1993, Mr. Alishah suffered from posttraumatic migraine as a result of the accident; however, based on the evidence before me, I am unable to conclude that this condition has had any adverse effect on Mr. Alishah's ability to perform his essential tasks.

Based on the totality of the evidence, I find that Mr. Alishah sustained soft tissue injuries to his neck, back and shoulder as a result of the car accident. I also find that Mr. Alishah suffered from emotional difficulties usually associated with pain from such injuries. I find, however, that by July 24, 1992, approximately two years after the accident, these physical injuries had largely resolved and no longer posed a substantial limitation to his ability to return to work.

With regard to the psychological or mental injury claimed by Mr. Alishah, I find that the evidence is not capable of establishing, on a balance of probabilities, that any such injuries were caused by the accident or that Mr. Alishah is unable to substantially perform his pre-accident duties or engage in other suitable employment, because of these injuries.

REPAYMENT OF WEEKLY BENEFITS PAID TO MR. ALISHAH:

Repayment of benefits is governed by section 27 of the Schedule. Section 27(1) states:

A person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud.

This section requires that benefits must be repaid when they have been paid to the person through error or fraud.

The onus to prove that benefits were paid through error or fraud rests with the Insurer.

In Dana B. Levenson and The General Accident Assurance Company of Canada, February 18, 1992, OIC File No. A-000260, Senior Arbitrator Susan Naylor (as she then was) stated:

The Concise Oxford Dictionary defines "error" as follows;

1. A mistake. 2. the condition of being wrong in conduct or judgement. 3. a wrong opinion or judgement 4. the amount by which something is incorrect or inaccurate in a calculation or measurement.

There is therefore a number of meanings in ordinary usage that may be attributed to the word used. However, some assistance is provided by the statutory context in which the words appear. Subsection 27(2) and (3) provide for repayment of benefits in circumstances where there is no "error" but where the recipient is disqualified from payment or where deductible payments have been received, in which case repayment is required to the extent of the deduction.

These provisions suggest that the requirement of "error" in section 27(1) requires more than an error of judgement or "being wrong" on the part of the insurer in paying benefits. Otherwise, the broader wording of Section 27(2) and (3) would be redundant. It is not sufficient therefore to establish merely that an applicant has received benefits to which he or she is subsequently adjudged not to be entitled. To give meaning to the terminology of the section, the stipulation that benefits be paid "through error" in order to be recoverable must require that responsibility for the payment be attributable in some material way to the actions of the applicant. [Emphasis added]

I agree with Senior Arbitrator Naylor's interpretation of section 27(1) and adopt it for the purposes of this case.

Mr. Bradley Barber, Claims Manager for Allstate has testified how Mr. Alishah's weekly income benefits were calculated. He stated that initially, Mr. Alishah was paid $ 614.00 per week on the basis of information obtained from Mr. Rawana, by telephone call, that Mr. Alishah was employed by Fair Lady Lingerie during the week preceding the accident and that he was paid $780.00 for that period. Mr. Bradley testified that the Insurer acted in good faith and relied on the information supplied by Mr. Alishah and Mr. Rawana.

Mr. Bradley testified that a subsequent investigation conducted by the adjuster revealed that Fair Lady Lingerie had been shut down prior to the accident and that Mr. Alishah was not employed there in the week preceding the accident. The adjuster spoke to Mr. Rawana again over the phone. Mr. Rawana advised that he was the owner of Fair Lady Lingerie and confirmed that it was not in operation at the time of the accident. However, he advised that Mr. Alishah had been employed by the company prior to its closure on a part-time basis, earning $300 per week. The adjuster then recalculated Mr. Alishah's gross weekly income on the basis of income from his employment at Premdor and Fair Lady Lingerie, for the 52 rather than the four weeks preceding the accident, as this was more advantageous to Mr. Alishah. According to this calculation, Mr. Alishah's weekly income was fixed at $ 530.32. The amount of his benefits was adjusted retroactively, and he was paid at this rate until January 25, 1992.

Mr. Bradley testified that the Insurer conducted a further investigation of the case, and determined Mr. Alishah was never employed at either Fair Lady Lingerie or Kiss Fashion. His weekly income benefits were then reduced to $313.25, based on his income from Premdor only. He was paid at this rate until the termination of his weekly income benefits on July 24, 1992.

Having reviewed the totality of the evidence, I find that the Insurer acted reasonably in relying on Mr. Alishah's claimed income to initially set his benefits. I am satisfied that the Insurer has made all reasonable inquiries and investigations to confirm statements made on the Application for Accident Benefits and the Employer's Confirmation of Income. The Insurer gave Mr. Alishah ample opportunity to provide accurate and reliable information regarding his employment earnings.

One of the purposes of the statutory accident benefits scheme is to ensure that benefits are paid in a timely fashion. In my opinion, section 27(1) should not be interpreted in a manner that would discourage the early payment of claims; rather, it should be viewed as a deterrent to advancing erroneous and fraudulent claims.

Mr. Alishah has provided contradictory information regarding his income, both in the documentation he submitted to the Insurer and in his testimony at the hearing. It was open to Mr. Alishah to call Mr. Rawana, a person he knew very well for a long time and one he considers a good friend, to testify on his behalf at the hearing. He did not choose to do so.

I find that, on the balance of probabilities, Mr. Alishah has deliberately misled the Insurer about his employment, for the purpose of receiving a higher amount of weekly income benefits than he was otherwise entitled to.

The total amount of weekly income benefits paid to Mr. Alishah during the period of his disability is not in dispute. The Insurer has paid Mr. Alishah a total of $51, 128. 99 from July 13, 1990 to July 24, 1992, a period of 105.71 weeks. Earlier in this decision, I have found that the correct amount of Mr. Alishah's weekly income benefits is $330.11, and that Mr. Alishah is not entitled to such benefits after July 24, 1992.

Based on weekly income benefits of $330.11, Mr. Alishah should have been paid $34, 895.93 only. The amount of overpayment is therefore $16,233.06. [$51,128.99 - (105.71 x $330.11) = $16,233.06]

Accordingly, I order that Mr. Alishah repay Allstate the amount of $16, 233.06, plus interest under section 27(4) of the Schedule.

ARBITRATION EXPENSES AND ORDER AGAINST MR. ALISHAH:

In his submissions, counsel for the Insurer asked that I deny Mr. Alishah his expenses for the arbitration. He also asked for an award of $1000.00 against Mr. Alishah, under section 282 of the Insurance Act, R.S.O. 1990, c.I.8., as amended, by section 33 of the Insurance Statute Law Amendment Act, S.O. 1993, c.10, which provides:

282.-(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.

Under section 282(11) of the Act, the arbitrator has discretion to award to an insured person his or her expenses incurred in respect of an arbitration proceeding. The arbitrator's discretion is exercised taking into account the individual circumstances of each case, and having regard to the intent and purpose of the dispute resolution scheme of the Act.

The dispute resolution scheme is designed to facilitate the applicant's access to relatively inexpensive, speedy and informal adjudication of disputes. The use of the process to advance frivolous and vexatious claims seriously undermines the effectiveness of the process, and must be discouraged.

I find Mr. Alishah's claim regarding the amount of his weekly income benefits to be entirely without merit, and his use of the arbitration system to advance a baseless claim to be an abuse of process.

Accordingly, I order Mr. Alishah to pay $1000.00 pursuant to section 282(11.2) of the Insurance Act, being the amount assessed against the Insurer in respect of this arbitration.

Mr. Alishah is not entitled to his expenses incurred in the arbitration.

ORDER:

1. The correct amount of Mr. Alishah's weekly income benefits is $330.11.

2. Mr. is not entitled to weekly income benefits after July 24, 1992.

3. Mr. Alishah must repay Allstate the amount of $16,233.06, plus interest in accordance with section 27(4) of the Schedule.

4. Mr. Alishah must pay Allstate $1000.00, being the amount assessed against the Insurer in respect of this arbitration.

August 16, 1995

Asfaw Seife Arbitrator

Date

Appendix "A"

Diagnostic criteria for 309.81 Posttraumatic Stress Disorder

A. The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.

(2) the person's response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganized or agitated behaviour

B. The traumatic event is persistently reexperienced in one (or more) of the following ways:

(1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.

(2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.

(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucination, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.

(4) intense psychological distress at exposure to internal or external cures that symbolize or resemble an aspect of the traumatic event.

(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.

C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma

(2) efforts to avoid activities, places, or people that arouse recollections of the trauma

(3) inability to recall an important aspect of the trauma

(4) markedly diminished interest or participation in significant activities

(5) feeling of detachment or estrangement from others

(6) restricted range of affect (e.g., unable to have loving feelings)

(7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)

D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:

(1) difficulty falling or staying asleep

(2) irritability or outbursts of anger

(3) difficulty concentrating

(4) hypervigilance

(5) exaggerated startle response

E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.

F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Specify if:

Acute: if duration of symptoms is less than 3 months

Chronic: if duration of symptoms is 3 months or more

Specify if:

With Delayed Onset: if onset of symptoms is at least 6 months after the stressor

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2The Insurer's calculation of the weekly income benefits at $313.25 was based on the average gross weekly income for 52 weeks in which Mr. Alishah was employed at Premdor. In fact, Mr. Alishah was employed by Premdor for only 48 of the 52 weeks preceding the accident. This accounts for the difference between my calculation and that of the Insurer.
3. 3Diagnostic Criteria for Posttraumatic Stress Disorder - Attached as Appendix "A"