Neutral Citation: 1995 ONICDRG 187

File No.: A-007185

ONTARIO INSURANCE COMMISSION

BETWEEN:

JOHN NEHMATALLAH

Applicant

and

SIMCOE & ERIE GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, John Nehmatallah, was injured in a motor vehicle accident on November 9, 1990. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Benefits were paid intermittently from the time of the accident and terminated around June 19, 1994. 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:

1. Is Mr. Nehmatallah entitled to weekly income benefits under section 12(1) of the Schedule?

(a) Is Mr. Nehmatallah entitled to weekly income benefits for the period January 20, 1993 to July 31, 1993?

(b) Is Mr. Nehmatallah entitled to weekly income benefits after June 19, 1994?

Mr. Nehmatallah received weekly income benefits for 67 weeks during the period November 16, 1990 to June 19, 1994 and claims section 12(1) benefits until he has received benefits for 156 weeks. He does not claim benefits under section 12(5)(b).

(c) Is Mr. Nehmatallah precluded from receiving benefits pursuant to section 16(2) of the Schedule because he worked in excess of 90 days after the two-year anniversary of the accident?

2. What is the correct amount of weekly income benefits to which Mr. Nehmatallah is entitled?

Mr. Nehmatallah also claims interest on overdue benefits under section 24(4) of the Schedule and his expenses of the arbitration under section 282(11) of the Insurance Act.

Result:

1. Mr. Nehmatallah is not entitled to weekly income benefits under section 12 (1) of the Schedule.

2. Mr. Nehmatallah is entitled to his expenses incurred in respect to the arbitration.

Hearing:

The hearing was held in Windsor, Ontario, on October 2, 3 and 4, 1995, before me, Beth Allen, arbitrator. I heard final oral submissions from both parties on October 20, 1995.

Present at the Hearing:

Applicant: John Nehmatallah

Applicant's Representative: Anthony Soda Barrister and Solicitor

Insurer's Representative: James J. Mays Barrister and Solicitor

Insurer's Officer: Trish Doyle

Witnesses:

For the Applicant: Lorie Nehmatallah Dr. Ravishankar Shenava Scott Graham

For the Insurer: Dr. Judith Shapiro Henry Hotz Trish Doyle

Exhibits: Exhibits are listed in Schedule "A".

Introduction

The main issue before me is whether as a result of the accident Mr. Nehmatallah suffers from a psychological disability which renders him substantially unable to perform his pre-accident employment duties. His claim for benefits is not based on physical injury.

The accident occurred on November 9, 1990. Mr. Nehmatallah received weekly income benefits, intermittently, at varying amounts for 67 weeks, from about November 16, 1990 until about June 19, 1994. He claims entitlement to benefits for the period January 20, 1993 to July 31, 1993. He also seeks ongoing benefits after the benefit termination date until he has received a total of 156 weeks of benefits.

Mr. Nehmatallah makes his claim for accident benefits under section 12(1) of the Schedule. This section provides that an insured who, as a result of an accident, suffers a physical, psychological or mental injury is entitled to accident benefits if he or she is substantially disabled from performing the essential tasks of his or her employment. Since Mr. Nehmatallah received benefits intermittently from about November 16, 1990 to June 19, 1994, he has received benefits beyond the three-year anniversary of the accident (156 weeks) referred to in section 12(5)(b) of the Schedule. Mr. Nehmatallah does not claim benefits under section 12(5)(b) of the Schedule. According to his interpretation of this provision, since he received only 67 weeks of benefits, he submits that he continues to be entitled to section 12(1) benefits after the final benefit termination date. Hence, Mr. Nehmatallah produced no evidence to support a claim under section 12(5)(b) of the Schedule.

My ultimate decision is that Mr. Nehmatallah is not entitled to section 12(1) benefits because I do not find that he suffered a disability as a result of his accident. It is therefore not necessary for me to determine the interpretation of section 12 (5)(b). For the same reason, it is not necessary for me to decide the issue whether under section 16(2) of the Schedule Mr. Nehmatallah is disentitled to benefits for working in excess of 90 days after the two-year anniversary of the accident.

Reasons for Decision

The Accident

Mr. Nehmatallah's Account of the Accident:

John Nehmatallah was driving alone when he was involved in a motor vehicle accident. There were no witnesses to the accident. Neither party submitted into evidence a police report or any other official report of the accident. At the hearing Mr. Nehmatallah provided the following account:

The accident occurred around 3:00 a.m., November 9, 1990. At the time Mr. Nehmatallah was living in Leamington, Ontario and was travelling home from Chatham, Ontario. It was a clear, cold night. His car began to vibrate so that he was forced to slow down and pull off the road onto the shoulder of the highway. The right front tire blew off the car and a portion of it struck the passenger's side above the windshield. Mr. Nehmatallah lost control of the car. The car veered across the road. Mr. Nehmatallah claims that the car then became airborne and landed on the driver's side in a ditch. Mr. Nehmatallah's head hit the driver's side window.

Mr. Nehmatallah testified that after the impact, the car engine and the dashboard caught fire. The car filled with smoke. Mr. Nehmatallah had to climb up and out of the passenger side window. He fell into the ditch. The car then exploded.

Mr. Nehmatallah testified that he crawled to a house about 200 feet from his car. On cross-examination he indicated that he crawled and walked to the house. He testified in chief that all he remembers is that a woman answered the door. The next thing he recalled was awakening around 6:00 or 7:00 a. m. in Leamington District Memorial Hospital. In cross-examination Mr. Nehmatallah denied saying that he had lost consciousness after the accident. The hospital records do not record a loss of consciousness.

At the hospital an injury to Mr. Nehmatallah's eye was sutured. He was treated for superficial abrasions and pain, and x-rays were taken. He spent several hours at the hospital and was released around lunch time on the same day.

The Accident as Documented in Medical Evidence:

There are numerous inconsistencies in the descriptions of the accident in the medical records documenting the accident. I will point out a number of instances where accident descriptions as reflected in medical documents diverge from Mr. Nehmatallah's testimony at the hearing:

The earliest report of the accident, the emergency record from Leamington District Memorial Hospital dated November 9, 1990,² contains no description of the accident or its cause. It does not record the car becoming airborne, catching fire or exploding. Furthermore, the first mention of the car exploding is recorded in Dr. Ng's report dated March 29, 1991³, almost six months after the accident. According to Dr. Ng's clinical notes, Mr. Nehmatallah had visited him about six times before March 29, 1991. The explosion was not mentioned again in medical records until about three years later in Dr. Ross' report dated April 4 and 11, 1994.⁴

Dr. Shenava, Mr. Nehmatallah's psychiatrist, reports on September 13, 1993⁵ that he first saw Mr. Nehmatallah on April 29, 1993. His comment on the accident was restricted to "something went wrong with the car and it ended up in a ditch". Dr. Shenava reviewed the relevant clinical notes and records (not before me at the hearing) and confirmed he had recorded no description of the accident. In his testimony, Dr. Shenava's description of the accident was detailed. He indicated that in giving this evidence he relied on his recall of details given by Mr. Nehmatallah during visits in 1993.

I also note that the reports vary on whether Mr. Nehmatallah experienced a loss of consciousness. Dr. Ng's clinical note dated November 12, 1990⁶ and Dr. Shenava's June 8, 1993 report record no loss of consciousness as a result of the accident. Dr. Ross' reports of April 4 and 11, 1994 and Dr. Clifford's report dated June 21, 1994⁷ both record a loss of consciousness. Mr. Nehmatallah's testimony was inconsistent on this point. The medical evidence about how Mr. Nehmatallah got to the nearby house after the accident was also inconsistent. The emergency record and Dr. Ross' report note that Mr. Nehmatallah was able to walk to the nearby house. Both Dr. Clifford's report and Dr. Shapiro's report dated August 11, 1995⁸ indicate that he crawled to the house. Mr. Nehmatallah's testimony on this point was inconsistent.

On the whole, accounts provided in 1994 and 1995, four and five years post-accident, give far more vivid descriptions of the accident. These descriptions tend to be very similar to Mr. Nehmatallah's testimony at the hearing. The car is consistently described as having become airborne, catching fire and exploding. The most recent medical report, dated August 14, 1995, was prepared by Dr. Friars who conducted a work capacity evaluation of Mr. Nehmatallah. This report records that the car exploded several times, the last explosion destroying the car.

In cross-examination, Mr. Nehmatallah attributed the discrepancies in the descriptions of the accident to incomplete reporting by doctors and medical personnel. In some cases he denied providing some of the details recorded, or stated that he could not remember whether he provided certain details. He also attributed his lack of consistency to poor memory associated with his psychological condition.

Findings on the Accident:

I do not accept that the accident occurred as described by Mr. Nehmatallah at the hearing. I find that the account became increasingly embellished over time - from virtually no description of the accident in the emergency records to a claim in Dr. Friars' report, prepared almost five years after the accident, that the car exploded several times.

In coming to this conclusion I took into account that Mr. Nehmatallah had to rely on the accuracy of various doctors and medical staff who recorded the references to the accident. I recognize that under these circumstances some recording errors are bound to result. What I find remarkable, however, is that the most colourful and dramatic aspects of the accident were not recorded until three years post-accident. I find particularly significant the omission in earlier reports of the fire and the explosion of the car. The fire and explosion episodes strike me as alarming and memorable aspects of the accident, both from the perspective of Mr. Nehmatallah's recollection and for recording purposes. Further, Dr. Shenava was purportedly treating Mr. Nehmatallah for accident - related psychological problems. He diagnosed post-traumatic stress disorder ("PTSD") arising from the accident, yet his records contained scant reference to the accident.

I also note that Mr. Nehmatallah was treated only for physical injuries in the emergency unit immediately post-accident. He was released only hours after his arrival there. The emergency records contain no reference to loss of consciousness or reactions of psychological shock or trauma by Mr. Nehmatallah.

These considerations lead me to believe that the accident was not likely as traumatic or eventful as Mr. Nehmatallah described at the hearing. He appears to have exaggerated his account to justify his claim of psychological damage as a result of the accident.

Mr. Nehmatallah's Disability Claim - Post-Traumatic Stress Disorder

Mr. Nehmatallah claims that he suffers from PTSD as a result of the accident and that he has experienced symptoms of this disorder.

He testified that he suffers from nightmares in which he relives the accident. He indicated that these nightmares began the day of the accident and have continued to the present. In cross-examination he stated that the nightmares began one month after the accident. He also indicated that he developed a driving phobia about one month after the accident. Mr. Nehmatallah claimed that after the accident, he often avoided driving and would only drive as an attempt to challenge the phobia.

Ms. Lorie Nehmatallah, who married John Nehmatallah in April 1991, testified on behalf of her husband. She confirmed the evidence of her husband's post-accident psychological problems. She testified that a once energetic and outgoing man developed difficulties coping with stress. He became anti-social and short-tempered. Ms. Nehmatallah testified that marital problems developed between them. Mr. Nehmatallah also distanced himself emotionally and physically from his infant son, born on June 15, 1993.

The Insurer disputed Mr. Nehmatallah's evidence that after the accident he suffered from the symptoms of PTSD. For instance, the Insurer pointed to Dr. Ng's records where Mr. Nehmatallah did not complain about nightmares until about two-and-a-half years post-accident.

The Insurer submitted that Mr. Nehmatallah's post-accident conduct was inconsistent with that of a person suffering from a driving phobia. Mr. Nehmatallah was involved in risky post-accident driving. He was caught speeding on November 26, 1990 - 17 days after the accident. He was also caught driving post-accident while his licence was suspended.⁹ The Insurer also questioned Mr. Nehmatallah about his 1991 income tax return¹⁰, the year after the accident, where he claimed 15,540 kilometres of car travel expenses. The Insurer argued that Mr. Nehmatallah did not avoid driving as would be expected of a person suffering from a driving phobia.

Medical documents reveal that Mr Nehmatallah did not complain of psychological problems until nearly three years after the accident. His first post-accident visit to his family doctor, Dr. Ng, was on November 12, 1990. He was treated for pain associated with headaches and for other physical problems that are not the subject matter of this arbitration. For more than one year, from June 1991 to October 1992, Mr. Nehmatallah did not see Dr. Ng or any doctor except an orthopaedic specialist to whom he had been referred by Dr. Ng. He resumed seeing Dr. Ng in October 1992 for physical problems.

The first suggestion in Dr. Ng's notes of a non-physical complaint related to the accident is a reference made in an entry dated November 6, 1992¹¹where it is reported that Mr. Nehmatallah is "still scared when he arrives at the intersection [of the accident]" (my parentheses). The first indication of a psychological problem is in a note dated March 22, 1993, where Dr. Ng prescribed the anti-depressant Elavil to Mr. Nehmatallah. In a further entry dated April 6, 1993, Mr. Nehmatallah reports that he still has nightmares from the accident. On April 6, 1993 Dr. Ng provided a diagnosis of post-traumatic anxiety neurosis. On this date Dr. Ng referred Mr. Nehmatallah to see psychiatrist Dr. Shenava.

Dr. Shenava's Evidence:

Mr. Nehmatallah first visited Dr. Shenava on April 29, 1993, almost three years after the accident. Dr. Shenava testified on behalf of Mr. Nehmatallah as an expert witness and a treating psychiatrist. He has practised psychiatry in Canada for about 14 years. He indicated he has only treated seven or eight PTSD patients. He usually refers this type of patient to a psychologist as his practice cannot accommodate the time-consuming treatment required by these patients. He referred Mr. Nehmatallah to a psychologist but Mr. Nehmatallah indicated that he could not afford psychologists' fees.

In his report dated June 8, 1993¹², Dr. Shenava diagnosed Mr. Nehmatallah's psychological problem as PTSD. He concluded in this report, having seen Mr. Nehmatallah on four occasions, that the "accident has caused significant psychological and family stresses". He recommended medication and long-term psychotherapy.

Dr. Shenava discussed the basic features of the disorder as presented in the DSM-IV Draft Criteria. According to the DSM-IV Draft Criteria¹³, a person suffering PTSD:

1. has experienced an event or events involving death or serious injury and responds with intense fear, helplessness or horror;

2. persistently re-experiences the traumatic event through recurring dreams, flashbacks of the event or feelings that the event is recurring;

3. has an inability to recall important aspects of the trauma and persistently avoids activities, places or people that arouse memory of the trauma;

4. experiences difficulty falling or staying asleep, difficulty concentrating;

5. experiences clinically significant impairment in social, occupational and other areas of functioning;

6. who has delayed onset, experiences these symptoms at least six months after the event

Dr. Shenava explained his diagnosis in a letter dated February 2, 1994.¹⁴ He indicated that he made the diagnosis of PTSD in 1993, but felt that the condition actually arose within a few months after the accident. According to Dr. Shenava, the condition went undiagnosed and untreated until 1993. He pointed out that the symptoms of the condition would tend to decrease in intensity over time even if the disorder went untreated.

In cross-examination, Dr. Shenava testified that he relied on the accuracy of Mr. Nehmatallah's information in coming to his diagnosis. He admitted that, apart from certain non-verbal cues he might have observed, he had no way to test the accuracy or truth of Mr. Nehmatallah's information.

Dr. Shenava testified that he has seen Mr. Nehmatallah 20 times in 30 months, each session lasting about ten minutes. He testified that he did not treat Mr. Nehmatallah's PTSD, only his depression. He estimated that, as it stands now, with continued treatment for his depression, Mr. Nehmatallah should be able to return to work within six to twelve weeks.

Dr. Shapiro's Evidence:

Dr. Shapiro, a psychologist testifying as an expert witness on behalf of the Insurer, disagreed with Dr. Shenava's diagnosis of Mr. Nehmatallah.

Dr. Shapiro has been engaged in private practice in psychology from 1985 to 1991. She obtained a doctorate in psychology in 1988. In 1991 she began a consulting practice, 25 to 30 percent of which involved conducting psychological assessments of insurance claimants for insurance lawyers and carriers. She testified that 100 percent of her consulting practice involves services to insurance lawyers and carriers.

Dr. Shapiro interviewed Mr. Nehmatallah for about one-and-a-half hours on August 11, 1995. She stressed that this is the normal duration of her interviews with claimants. On this day Mr. Nehmatallah also underwent several hours of testing by a psychometrist. Dr. Shapiro concluded that Mr. Nehmatallah suffers from somatoform pain disorder - the conversion of mental distress to physical symptoms - and a mixed personality disorder with histrionic dependent features.

Dr. Shapiro's opinion was that these disorders did not result from the accident. She explained that prior to the interview with Mr. Nehmatallah, she had briefly reviewed his medical history from medical records provided by the Insurer. She observed that the many physical complaints contained in his pre-accident medical history suggest that his psychological condition existed pre-accident. She testified that such a personality disorder generally develops in late adolescence rather than in adulthood and that a single car accident could not cause this type of condition.

While accepting the DSM-IV criteria for PTSD, Dr. Shapiro discounted PTSD as the appropriate diagnosis for Mr. Nehmatallah's problem. She stressed that the event giving rise to this disorder must be a very significant event involving loss of life or serious injury. She suggested that Mr. Nehmatallah's account of the accident might not be trustworthy because in answer to direct questions on other topics he omitted important information from his background - his previous accident, his post-accident admission to a psychiatric facility and his serious marital problems.

Findings on Mr. Nehmatallah's Disability:

I accept the expert evidence that PTSD develops as a result of a person experiencing a very terrifying and traumatic event, that a victim of this disorder would normally seek to avoid activities associated with the event and that the condition is most acute shortly after the accident. However, since I find that Mr. Nehmatallah was not likely to have experienced the trauma claimed, he has failed to convince me that he suffers from PTSD.

I find very persuasive the Insurer's evidence about Mr. Nehmatallah's conduct after the accident. Applying the DSM-IV criteria for PTSD, it would seem that a person traumatized by involvement in an accident as a driver should avoid driving. Mr. Nehmatallah did not dispute that he claimed over 15,000 kilometres of automobile expenses on his income tax return for the year after the accident. This is a considerable amount of driving for a person who ought to be avoiding it. I find it particularly persuasive that Mr. Nehmatallah was caught speeding 17 days after the accident. A person with a driving phobia is not likely to be speeding so soon after an accident.

Furthermore, I do not place a great deal of weight on Dr. Shenava's evidence. He did not treat Mr. Nehmatallah until about three years post-accident. At this time he made a retroactive diagnosis of PTSD, relying principally on the accuracy of Mr. Nehmatallah's report of the accident in coming to his assessment. He did not note the details of the accident in his records in 1993 when he first saw Mr. Nehmatallah, but at the hearing he provided an account of the accident very similar to Mr. Nehmatallah's. He stated that he relied on his memory of discussions with Mr. Nehmatallah to provide the details at the hearing. Therefore, I do not find Dr. Shenava's evidence in support of Mr. Nehmatallah's claim very helpful.

I am also not prepared to accept Dr. Shapiro's diagnosis of Mr. Nehmatallah's psychological condition. I do not find her diagnosis to be particularly reliable since she interviewed Mr. Nehmatallah once for only an hour-and-a-half. Further, I am not satisfied as to the impartiality of some of her medical findings since her practice is to a great extent involved with providing services to insurance lawyers and carriers. Her analysis at times seemed to lack a firm objective basis and the detachment required of an expert witness.

I also note that according to the records of his family doctor, Dr. Ng, Mr. Nehmatallah did not complain of psychological problems until almost three years post-accident, although he had visited Dr. Ng on many occasions. Expert evidence indicates that the symptoms of PTSD are most acute shortly after the traumatic event, and yet Mr. Nehmatallah did not complain at that time.

Mr. Nehmatallah's Employment History

Mr. Nehmatallah claims that because of PTSD he is no longer capable of undertaking the tasks and responsibilities of his pre-accident job as a real estate agent.

Mr. Nehmatallah started a full-time real estate course around April 1989 and finished the first part of the course in about August 1989. After completing the first part of the course, he was required to work for a fully licenced real estate broker for two years. Within this two year period Mr. Nehmatallah was required to complete three additional courses and examinations. A failure to complete the courses and pass the examinations within the required time would result in his real estate licence being revoked. Mr. Nehmatallah, therefore, had until about September 1991 to complete the final requirements of the program.

From January 8, 1990, Mr. Nehmatallah worked in Leamington for Century 21.¹⁵ He worked for Century 21 for about one year before the accident.

Mr. Nehmatallah described his tasks and responsibilities as a real estate agent. He listed homes, set up "for sale" and "open house" signs, took out advertisements in newspapers, negotiated sales agreements, personally attended at open houses and voluntarily attended informational courses and seminars. He worked six days a week, about ten hours a day. He spent 40 to 50 percent of his work day driving.

Mr. Nehmatallah testified that before the accident, he was among the most successful sales agents in his office. He worked on a commission basis. He stated that before the accident he had reached one million dollars in sales and earned commissions on a 70 / 30 basis - he received 70 percent of the commission and 30 percent went to the company.

Scott Graham, an administrator with Century 21 during Mr. Nehmatallah's employment there, testified on behalf of Mr. Nehmatallah. He confirmed that Mr. Nehmatallah was a successful real estate agent until late 1990. However, he indicated that Mr. Nehmatallah was actually earning commissions on a 75 / 25 split basis by late 1990.

Mr. Nehmatallah admitted that he enjoyed a special advantage as a real estate agent. His brother, the owner of a company called Dura Craft Homes Ltd. ("Dura Craft"), was the builder of 80 percent of the homes Mr. Nehmatallah had sold. He had an exclusive listing arrangement with Dura Craft. Whether Mr. Nehmatallah or another real estate agent sold a Dura Craft home, Mr. Nehmatallah would receive a commission.

Mr. Nehmatallah temporarily ceased working after the accident. He returned to work with Century 21 about two months later. He continued to work for Century 21 for about seven months - from the beginning of January 1991 until he resigned on July 30, 1991¹⁶. Mr. Nehmatallah claims that he left work because he could no longer cope psychologically with the responsibilities of the job. He was no longer a success at this work.

Mr. Nehmatallah testified that "he could be a real estate agent but he could not make any house sales" after he returned to work. He had difficulty dealing with people. He arrived late for work, missed meetings, neglected to do open houses and did not follow up on counter-offers. The number of his listings dropped. His house sales dropped. In about July 1991 Mr. Nehmatallah attempted one of his three remaining real estate courses. He failed it.

After he left Century 21, Mr. Nehmatallah worked for his brother, first selling Dura Craft homes on site for a few months and then as a construction supervisor. Mr. Nehmatallah's evidence is contradictory as to whether he quit the last job in late 1991 or in 1992. He testified at one point that he did not work during 1992 and later testified that he did. However in 1992 income tax documents¹⁷ he reported business income and expenses.

In January 1993 Mr. Nehmatallah registered a company which entered into an agreement, dated January 19, 1993,¹⁸ with an American computer software company to produce software. The American company did not produce the product as agreed and the deal fell through. Mr. Nehmatallah testified that he has not worked since early 1993.

The Insurer argued that it was not the accident that prevented Mr. Nehmatallah from continuing as a real estate agent. The Insurer pointed out the following facts:

Mr. Nehmatallah's driver's licence was suspended on September 26, 1990¹⁹ and remained under suspension at the time of the November 9, 1990 accident. His driver's licence remained suspended until January 1992 as a result of Mr. Nehmatallah being caught driving on January 7, 1991 and March 1, 1991²⁰ while suspended. It was suspended again and reinstated by mistake in September 1992, but suspended again after this. Therefore, Mr. Nehmatallah did not hold a driver's licence at the time of the accident, before the accident, or when he returned to work as a real estate agent in 1991 and thereafter. He failed to disclose this in his examination-in-chief. Mr. Nehmatallah risked driving without a driver's licence for many months at a job where 40 to 50 percent of his time involved driving.

Mr. Nehmatallah also lost his real estate licence. As noted earlier, Mr. Nehmatallah worked as a real estate agent until about July 30, 1991. He had until September 1991 to complete the final real estate licence requirements. He failed the first of three remaining required courses in about July 1991. His real estate licence was revoked in September 1991 and was never reinstated. He could not operate as a real estate agent from this date without a real estate licence. Mr. Nehmatallah did not admit this in his examination-in-chief.

In addition to the obvious stress created by driving without a licence and by the impending revocation of his real estate licence, Mr. Nehmatallah experienced other post-accident stressors not related to the accident. Some of these were: the robbery of his house in 1991, the death of a close relative in 1992, the birth of a child in 1993, very serious, ongoing marital problems in 1992 and 1994 and his general financial problems.

Findings on Mr. Nehmatallah's Ability to Work as a Real Estate Agent:

Mr. Nehmatallah has failed to convince me that his automobile accident on November 9, 1990 caused a disability which has prevented him from performing his job as a real estate agent. I believe that at a certain point Mr. Nehmatallah could no longer work as a real estate agent, but there is no evidence that the accident caused this. I accept that a number of other difficulties prevented him from being a real estate agent after the accident.

Most important of these is the loss of Mr. Nehmatallah's real estate licence in about September 1991. He blamed accident-related psychological problems for his failure to complete the real estate program. However, when he was questioned about what prevented him from working as a real estate agent, he failed to admit the loss of this licence. He only admitted this when counsel for the Insurer confronted him with the evidence. Mr. Nehmatallah also failed to admit that he had no driver's licence at the time of the accident and for a considerable time thereafter. Again, he only admitted this under cross-examination.

I find that Mr. Nehmatallah's failure to volunteer this information seriously contributes to the untrustworthiness of his evidence as a whole.

Mr. Nehmatallah testified that he suffered from anxiety and depression after the accident. The Insurer provided evidence of a number of possible non-accident related sources for these emotional problems. I accept that Mr. Nehmatallah might have reasonably suffered emotional stress as a result of such problems as the death of a close relative, serious ongoing marital strife, his inability to financially support his family, a home robbery and a new-born child. However, I am not persuaded that the accident significantly contributed to Mr. Nehmatallah's psychological problems or prevented him from working as a real estate agent.

Conclusion

Mr. Nehmatallah does not meet the disability requirements as set out in section 12(1) of the Schedule. He has failed to prove that as a result of the accident he suffers from a disability that prevents him from undertaking the duties of his pre-accident employment. I therefore conclude that Mr. Nehmatallah is not entitled to accident benefits under the Schedule from the date of the accident to the present.

Amount of Entitlement

Mr. Nehmatallah claims that the amount of his weekly income benefits was not correctly calculated by the Insurer. He submitted that, for those periods during which he was paid benefits, he is entitled to the difference between what he was paid and the amount to which he was actually entitled. Further, for the period January 20, 1993 to July 31, 1993 and for the period after the final benefit termination, he claims to be entitled to a benefit amount greater than that assessed by the Insurer.

However, in view of my decision on the entitlement issue, I do not find it necessary to determine the amount of entitlement issue.

ENTITLEMENT TO EXPENSES AND ASSESSMENT OF COSTS

Mr. Nehmatallah claims entitlement to an award of his expenses incurred in the hearing. An arbitrator has the discretion under section 282(11) of the Insurance Act to award expenses. This section provides:

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.

Past arbitration cases have provided guidelines for the exercise of this discretion. In McCormick, Senior Arbitrator Naylor indicated that it is appropriate to award an applicant his or her expenses unless it is found that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."²¹

In this case I exercise my discretion to grant Mr. Nehmatallah his expenses of the arbitration. The medical evidence revealed that Mr. Nehmatallah did sustain some injury as a result of the accident.

Order:

1. Mr. Nehmatallah is not entitled to weekly income benefits under section 12(1) of the Schedule.

2. Mr. Nehmatallah is entitled to his expenses incurred in respect to the arbitration.

December 14, 1995

Beth Allen Arbitrator

Date

Schedule "A"

Exhibits:

Exhibit 1 Invoice from Computer Integrated Devices, dated January 19, 1993

Exhibit 2 Bound brief of medical records and notes (7 tabs):

Tab 1 Records from Leamington Memorial Hospital

Tab 2 Typed transcripts of clinical, notes and records of Dr. Ng

Tab 3 Clinical notes and records of Dr. Bernstein

Tab 4 Clinical notes and records of Dr. Jeun

Tab 5 Clinical notes and records of Dr. Varkey

Tab 6 Psychological Assessment by Judith Shapiro, dated August 11, 1995; Work Capacity Evaluation by Dr. Friars, dated August 14, 1995

Tab 7 Clinical notes and records of C.A. Scott and Associates

Exhibit 3 Bound brief of medical reports (4 tabs):

Tab 1 Reports by Dr. Clifford, dated June 21, 1994 and July 12, 1994

Tab 2 Ontario Automobile Insurance Form 4 medical report by Dr. Ng, dated December 8, 1992; reports by Dr. Ng, dated March 29, 1991; June 5, 1993; July 27, 1993; March 31, 1994; and December 2, 1994.

Tab 3 Report of Dr. Ross

Tab 4 Reports of Dr. Shenava

Exhibit 4 Motor Vehicle Accident Report, dated September 14, 1987

Exhibit 5 Century 21 Erie Shores Realty Inc. employment records with cover letter, dated December 6, 1994

Exhibit 6 Statement of Driver's Record (Ontario), dated March 21, 1991.

Exhibit 7 Bound brief of Applicant's Revenue Canada, income tax document's (8 tabs):

Tab 1 Income tax summary for 1987

Tab 2 Income tax summary for 1988

Tab 3 Income tax T1 General for 1989

Tab 4 Income tax Notice of Assessment and T1 General for 1990

Tab 5 Income tax Notice of Assessment and T1 General for 1991

Tab 6 Income tax Notice of Assessment and T1 General for 1992

Tab 7 Income tax T1 General for 1993

Tab 8 Comparative Tax Summary and Notice of Assessment 1994

Exhibit 8 Excerpt from DSM-IV Draft Criteria March 1, 1993, page 239

Exhibit 9 Curriculum Vitae of Dr. Judith P. Shapiro

Exhibit 10 Letter from Dura Craft Homes, undated

Exhibit 11 Ontario Automobile Insurance Application for Additional benefits, undated with related invoices attached

Exhibit 12 Statement by John Nehmatallah, dated April 29, 1994

Exhibit 13 Notice of Suspension of Drivers Licence, dated September 7, 1990

Exhibit 14 Curriculum Vitae of Dr. Ravishankar Shenava

Exhibit 15 Correspondence from C.A. Scott & Associates (12 pieces): Letters dated January 19, 1995; December 19, 1994; January 31, 1995; December 19, 1994; November 25, 1994 (2 letters); October 21, 1994; October 20, 1994; November 7, 1994 (handwritten); August 5, 1994; August 23, 1994; August 23, 1994; September 6, 1994.

Exhibit 16 Correspondence from Tricia Doyle, dated November 16, 1994

Exhibit 17 Mutual of Omaha Insurance Company, Claim Payment Record, dated July 11, 1991

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Benefits Schedule — Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Exhibit 2, tab 1, page 2.
3. 3Exhibit 3, tab 2 page 1.
4. 4Exhibit 3, tab 3, page 2.
5. 5Exhibit 3, tab 4, page 1 of report.
6. 6Exhibit 2, tab 2, page 10.
7. 7Exhibit 3, tab 1, page 1.
8. 8Exhibit 2, tab 6, page 4.
9. 9Exhibit 6.
10. 10Exhibit 7, tab 5, page 15.
11. 11Exhibit 3, tab 1, page 13.
12. 12Exhibit 3, tab 4, page 1 of report.
13. 13Exhibit 8, excerpt from American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, ed 4, Washington, DC, American Psychiatric Association.
14. 14Exhibit 2, tab 4, page 1 of the letter.
15. 15Drummond Real Estate and Insurance Inc. became Century 21 Drummond Realty Inc. in about April 1990 and then Century 21 Erie Shores Inc. in about March 1991 ("Century 21").
16. 16Exhibit 5, page 12.
17. 17Exhibit 7, tab 6; see T1 General, Statement of Income and Expenses and Notice of Assessment.
18. 18Exhibit 1.
19. 19Exhibit 13.
20. 20Exhibit 6.
21. 21Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, Commission File No. A-00139, page 24.