Neutral Citation: 1996 ONICDRG 121

File No: A-003238

ONTARIO INSURANCE COMMISSION

BETWEEN:

MOHAMED AHMED

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Mohamed Ahmed, was injured in a motor vehicle accident on January 16, 1992. He applied for and received statutory accident benefits from the Insurer, Allstate Insurance Company of Canada ("Allstate"), payable under Ontario Regulation 672.¹

Allstate paid Mr. Ahmed weekly benefits from January 23, 1992 until May 23, 1992. Mr. Ahmed claims weekly benefits from May 24, 1992 onwards. He also claims expenses incurred by him for the services of Frank Malito & Associates Rehabilitation Consultants Inc.

Before the accident, Mr. Ahmed attended school (ESL classes), on a part-time basis. Allstate contends that Mr. Ahmed continued attending school after the accident and claims that pursuant to section 16(3) of the Schedule, he was not entitled to weekly benefits from January 23, 1992 to May 23, 1992. Allstate seeks to recover the benefits paid.

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

The issues in this hearing are:

1. Is Mr. Ahmed entitled to weekly benefits after May 23, 1992, under section 13(1) of the Schedule?

2. Was Mr. Ahmed precluded from receiving weekly benefits, from January 23, 1992 to May 23, 1992, under section 16(3) of the Schedule, and if so, is he liable to repay the benefits received, under section 27(1) of the Schedule?

3. Is Mr. Ahmed entitled to be reimbursed for the services of Frank Malito & Associates, under sections 6(1)(c) or 6(1)(f) of the Schedule?

4. Is Mr. Ahmed entitled to a special award under section 282(10) of the Act?

5. Is Allstate entitled to an award under section 282(11.2) of the Act?

Mr. Ahmed also claims interest on any amounts owing, and his expenses incurred in respect of the arbitration.

Result:

1. Mr. Ahmed is not entitled to weekly benefits for any period after May 23, 1992.

2. Mr. Ahmed is required to repay to Allstate weekly benefits received by him from January 23, 1992 to May 23, 1992.

3. Allstate is required to pay the outstanding account of Frank Malito & Associates in the amount of $944.10, with interest in accordance with section 24(1) of the Schedule.

4. Mr. Ahmed is not entitled to a special award.

5. Mr. Ahmed is not entitled to his expenses incurred in respect of the arbitration.

6. Mr. Ahmed is required to pay Allstate the sum of $500.00, under section 282(11.2) of the Act.

Hearing:

The hearing was held in North York, Ontario, on September 15 and 22, 1994, February 20 and 21, March 16, May 8 and August 21, 1995, before me, Shemin Manji, arbitrator. I also received written submissions from Mr. Ahmed dated May 23, 1995 and June 21, 1995 and from Allstate dated June 7, 1995.

Present at the Hearing:

Applicant:

Mohamed Ahmed

Applicant's Representatives:

Nick W. Ranieri

Barrister and Solicitor

Joseph G. Caprara

Insurer's Representatives:

Todd J. McCarthy

Barrister and Solicitor

James M. Flaherty

Barrister and Solicitor

Insurer's Officer:

Teresa Kayahara

Witnesses:

Mr. Mohamed Ahmed

Dr. Lorne Wayne Sokol

Mr. Frank Malito

Mr. Hassan Abdi

Ms. Teresa Kayahara

Mr. Kenneth Roy Alderdice

Ms. Catherine Anne Butler

Dr. Michael Clement Hall

Interpretation services in the Somali language were provided to Mr. Ahmed by Mr. Abas S. Ahmed of the Somalia Immigrant Aid Organization.

The proceedings were recorded by Ms. Bonnie L. van der Meer of Farr & Associates Reporting.

Exhibits and other documents before the arbitrator are listed in Appendix A to this decision. The cases referred to by the parties are listed in Appendix B to this decision.

Reasons for Decision:

1. Background Facts;

Mr. Ahmed is 40 years old. He is married and has three children. He arrived in Canada as a refugee on July 26, 1991. Mr. Ahmed did not bring his wife and children with him. They are presently residing in a refugee camp in Mombasa, Kenya. Since his arrival in Canada, Mr. Ahmed has lived in Toronto. He shares an apartment with friends.

Mr. Ahmed testified that he did not start looking for work immediately after he arrived in Canada because he was unable to speak English. Instead, he attended an Adult English as a Second Language ("ESL") course at the S.E.E. School in Etobicoke. Records of the S.E.E. School indicate that Mr. Ahmed enrolled in the course on October 20, 1991. The course was scheduled between 3:30 p.m. and 6:00 p.m., Monday through Thursday. The course concluded on December 12, 1991.²

On January 16, 1992, Mr. Ahmed and a companion were struck by a motor vehicle while they were crossing a street. The impact caused Mr. Ahmed to fall to the ground on his left side. He injured his left knee, neck, lower back and left hand. Mr. Ahmed testified that he was dizzy following the accident and somebody took him home. The next day he went by bus to a hospital on Keele Street. Mr. Ahmed was examined at the hospital, prescribed some medication for the pain, advised to see his family physician and released.

Mr. Ahmed testified that he went to see Dr. Lorne Wayne Sokol three days after the accident because he was in pain. Dr. Sokol was not Mr. Ahmed's family physician before the accident.³ His clinical notes indicate that he saw Mr. Ahmed for the first time on January 21, 1992. Dr. Sokol testified that it was difficult to assess Mr. Ahmed during that visit because of his complaints of pain. He testified that he referred Mr. Ahmed for x-rays of the affected areas, which turned out to be normal.⁴ He asked Mr. Ahmed to return for a follow-up.

Mr. Ahmed saw Dr. Sokol again on January 23 and January 29, 1992, complaining of pain. On January 23, after examining Mr. Ahmed, Dr. Sokol concluded that Mr. Ahmed had sustained a cervical, dorsal and left side paraspinal muscle strain. He also concluded that Mr. Ahmed was depressed and cognitively impaired. Dr. Sokol felt that Mr. Ahmed was unable to perform his normal activities. He prescribed anti-inflammatory medication.⁵ On January 29, Dr. Sokol referred Mr. Ahmed to Dr. Joel Maser, a specialist in internal medicine, for his left knee problems and to the St. Clair-Dufferin Chiropractic Clinic for his back pain.

On February 11, 1992, Mr. Ahmed was examined by Dr. Maser. Dr. Maser found no signs of trauma. He noted that the left knee was tender. Dr. Maser speculated that Mr. Ahmed might have cracked his tibial plateau (shin bone) and he suggested to Dr. Sokol that he might wish to send Mr. Ahmed for a bone scan of the knees, wrists and lower back. In the meantime, Dr. Maser did not feel that there was much that could be offered to Mr. Ahmed ".....other than time and exercise therapy." Dr. Maser was of the opinion that Mr. Ahmed was capable of "maintaining" his studies but was not able to do "a lot" of physical work which demanded "a lot" of standing or walking.⁶

Mr. Ahmed attended for chiropractic treatments at the St. Clair-Dufferin Chiropractic Clinic in March and April 1992.

Mr. Ahmed saw Dr. Sokol again on February 12, March 11 and April 16, 1992 for ongoing complaints of pain. Because Dr. Sokol felt that Mr. Ahmed's symptoms were not improving, following Mr. Ahmed's visit on February 12, 1992, he referred Mr. Ahmed to F.I.T. For Work Centres ("F.I.T."), initially, for an assessment and, then subsequently, for physiotherapy, exercises and group and individual counselling.

On April 14, 1992, Mr. Ahmed underwent a half day assessment at F.I.T. The assessors at F.I.T. concluded that Mr. Ahmed's injuries had resulted in physical and functional deficits which could affect his working potential in Canada. They recommended a full-time six week interdisciplinary functional restoration program with active physical, as well as educational, counselling and pain management components.⁷

On April 23, 1992, at the request of Allstate, Mr. Ahmed was examined by Dr. Michael C. Hall, an orthopaedic surgeon. Dr. Hall concluded that there was little evidence of true impairment. He thought that Mr. Ahmed was fit to continue his normal activities of self care. He also thought that Mr. Ahmed was fit to take up sedentary labour which allowed him to move around and that by May 23, 1992, Mr. Ahmed would be fit to take up manual labour that did not put a particularly heavy strain on his left knee.⁸

Mr. Ahmed did not seek treatment for his accident-related injuries from anyone, including Dr. Sokol, between April 16, 1992 and September 21, 1992.⁹

On September 8, 1992, Mr. Ahmed registered for a semester, in a full-time program at Bathurst Heights Secondary School ("Bathurst Heights"), in North York. Bathurst Heights' records indicate a promising beginning for Mr. Ahmed but as the semester progressed, he missed a lot of classes. Mr. Ahmed stopped attending classes altogether in late September or early October 1992.¹⁰

Mr. Ahmed saw Dr. Sokol on September 21, October 5, November 9, December 7 and December 10, 1992.¹¹ Mr. Ahmed complained on those occasions that he was still in a lot of pain. Dr. Sokol felt that Mr. Ahmed's condition was improving but that he was still not able to return to his normal activities.¹² He referred Mr. Ahmed to Dr. Maser for another consultation.¹³

On January 6, 1993, Mr. Ahmed was again examined by Dr. Maser. Dr. Maser found that his left knee cap (patella) was hyper mobile and with a little pressure could be dislocated laterally. He also noted that the quadriceps muscle was a little weak. Dr. Maser concluded that Mr. Ahmed might require a stabilization procedure for his left knee cap. He asked Mr. Ahmed to undertake an exercise program at home to build up the strength of the quadriceps muscle and to let him know if he wished to proceed with the surgical procedure, if required.¹⁴

In April 1993, Dr. Maser requested x-ray views, a bone scan and an arthrogram of Mr. Ahmed's left knee.¹⁵ At the hearing, Dr. Sokol testified that these investigations showed abnormalities, including degenerative changes, in Mr. Ahmed's knee which were of long standing and not related to the accident.

On March 26, 1993, at the request of Mr. Ahmed's solicitors, a "Job Match Analysis" of Mr. Ahmed was conducted at F.I.T. The assessors at F.I.T. felt that Mr. Ahmed could, most likely, fulfil the requirements of a "sedentary" job. However, because they were not sure if he had the skills, work experience or education generally required for such employment, they concluded that Mr. Ahmed was not functioning at a work-ready level. They recommended that Mr. Ahmed undergo an interdisciplinary functional restoration program with active physical, as well as educational, counselling and pain management components.¹⁶

On April 28, 1993, at the request of his solicitors, Mr. Ahmed was reassessed at F.I.T. The purpose of the assessment, this time, was to determine his level of function with specific reference to his pre-accident activities, which were identified by the assessor at F.I.T. to include home maintenance tasks and full-time studies in English as a Second Language. The assessor concluded that Mr. Ahmed was functioning at a level consistent with resuming studies in ESL, as long as he was not required to walk for more than 10 minutes to and from school. She felt that Mr. Ahmed would benefit from education regarding his soft tissue injuries and persistent pain symptoms, and the relation of his pain to activity, before he resumed his previous responsibilities as a student.¹⁷

Mr. Ahmed saw Dr. Sokol intermittently between January 1993 and June 25, 1993. During those visits he continued to complain of pain and advised Dr. Sokol that he was not able to do much because of the pain.¹⁸

Sometime in February or early March 1993, Dr. Sokol referred Mr. Ahmed to Frank Malito & Associates, Rehabilitation Consultants, for vocational rehabilitation and case management.¹⁹ Mr. Tom Large, a rehabilitation consultant with Frank Malito & Associates, met with Mr. Ahmed sometime in April, May or June, 1993, presumably to assess Mr. Ahmed's rehabilitation potential and to identify the services Mr. Ahmed needed. Mr. Large recommended a work-hardening program, a functional abilities evaluation and vocational training for Mr. Ahmed through the Ontario March of Dimes.²⁰ However, further activity by Frank Malito & Associates was suspended after Allstate advised that it would not pay for its services.²¹

On June 22, 1993, Dr. Sokol referred Mr. Ahmed to the Spine Care Centre in respect of injuries he had sustained in the accident.²² Mr. Ahmed was initially assessed and started a course of "vertebral axial decompression" treatments at the Spine Care Centre on June 25, 1993. However, he only attended for one treatment.²³

Mr. Ahmed did not seek treatment for his injuries from anyone, including Dr. Sokol, between June 25, 1993 and September 21, 1994. Mr. Ahmed saw Dr. Sokol for the last time on September 21, 1994. Dr. Sokol testified that on that day he (Dr. Sokol) felt, for the first time since Mr. Ahmed's accident, that Mr. Ahmed had progressed sufficiently to return to his pre-accident activities.

2. Entitlement to weekly benefits after May 23, 1992

Mr. Ahmed claims weekly benefits after May 23, 1992, under section 13(1) of the Schedule. In order to establish entitlement under this section, Mr. Ahmed must prove that, after May 23, 1992, as a result of the injuries he sustained in the accident, he continued to suffer a substantial inability to perform the essential tasks in which he would normally engage.

In this case, in my view, the preponderance of the evidence does not support Mr. Ahmed's claim that, after May 23, 1992, he continued to suffer a substantial inability to perform the essential tasks in which he would normally engage.

(a) The essential tasks in which Mr. Ahmed would normally engage:

Mr. Ahmed and his friend, Mr. Hassan Abdi, testified about Mr. Ahmed's essential tasks. In determining Mr. Ahmed's essential tasks, I did not find either of their testimony helpful.

I generally found Mr. Ahmed to be evasive and his evidence inconsistent and vague. Where there are discrepancies between his testimony and his earlier statements regarding his pre-accident activities, I have accepted the earlier statements. I find his earlier statements more reliable for two reasons: (a) one would expect that activities that were central to Mr. Ahmed's routine would have been identified by him earlier; and (b) the discrepancies between his testimony and his earlier statements were not explained to my satisfaction.

Mr. Ahmed attributed many of the discrepancies between his testimony and his earlier statements to the absence of a Somali interpreter. I am not persuaded that the earlier statements that Mr. Ahmed made to the various health practitioners who assessed and/or treated him, in particular, F.I.T., should be disregarded for this reason. The F.I.T. Reports of April 22, 1992 and April 2 and April 28, 1993 indicate that although Mr. Ahmed's English language skills were limited, he was able to communicate with the assessors verbally in English.²⁴

I did not find Mr. Abdi's testimony helpful. Although Mr. Abdi and Mr. Ahmed shared an apartment from July 1991 to February 1992, Mr. Abdi hardly spent any time with Mr. Ahmed because he was too busy working. Mr. Abdi testified that he was working five days a week, Monday to Friday, from 6:00 a.m. to 6:00 p.m. He also worked weekends whenever someone at work called in sick. I am not satisfied that Mr. Abdi knew how Mr. Ahmed spent his time while he was at work.

Mr. Abdi and Mr. Ahmed testified that during the time they were residing together, they shared the apartment with another person. Mr. Abdi testified that the other person was a woman by the name of Sadia. Mr. Ahmed testified that the other person was a man by the name of Abdul Wahab. Neither Mr. Abdi nor Mr. Ahmed said anything about the role or responsibilities of the other occupant in the apartment.

For the purpose of determining Mr. Ahmed's entitlement to weekly benefits, I find that his essential tasks are limited to:

1. Personal or self care, including bathing, shaving and dressing;

2. Cleaning and maintenance of the two-bedroom apartment which he shared with at least two other people;

3. Meal preparation and grocery shopping once a month;

4. Attending school part-time; His duties as a part-time student were attending classes, studying and completing assignments. Mr. Ahmed went to school by bus (a half hour ride from his apartment) and walked the equivalent of two city blocks (10 minutes) twice a day (from the bus stop to the school and from the school to the bus stop). During classes he sat for up to one hour at a time without a break.

Mr. Ahmed testified that before the accident his daily activities included praying five times a day. He testified that he is a devout Muslim and prayer was and continues to be a very important priority in his daily activities. He testified that each time he prays, he is required to stand, bend, kneel and bow repeatedly for approximately five minutes. He is also required to attend at Mosque for prayer from 12:00 p.m. to 1:30 p.m. every Friday.

I am not persuaded that prayer was an essential task in which Mr. Ahmed would "normally" engage prior to the accident. He identified prayer as an activity or task in which he would normally engage for the first time at the arbitration hearing. Furthermore, at the hearing, he could not explain why, if prayer was so significant in the context of his daily life, he did not mention this activity to any of the health practitioners who assessed him and/or treated him after the accident.

Mr. Ahmed testified that before the accident, his daily activities also included looking for part-time work. I am not persuaded that Mr. Ahmed was looking for work before the accident. He failed to provide any specific information about his alleged job search activities. Mr. Ahmed testified that he spent two to three hours each day, Monday to Thursday, looking for work and applying at many places. However, I heard few details about his job search activities. He testified merely that his job search activities consisted of going to places, usually "big industries," generally by T.T.C or walking, with a friend or friends, and making applications. He could not recall the names of any of the places where he applied for jobs except one, a restaurant called "Juba restaurant."

I am also not persuaded that Mr. Ahmed was looking for work before the accident because of inconsistencies between his testimony and the documentary evidence adduced at the hearing. Mr. Ahmed testified that a month and a half after he started going to the S.E.E. School, he changed his course schedule from morning to afternoon so that he could look for work in the mornings. However, records of the S.E.E. School do not corroborate Mr. Ahmed's testimony. They indicate that classes at the S.E.E. School began on September 16, 1991 and ended on December 12, 1991. They indicate that Mr. Ahmed enrolled at the school on October 20, 1991 and that from the outset, his classes were scheduled Monday to Thursday, from 3:30 p.m. to 6:00 p.m.²⁵ There was no change in his schedule.

(b) Mr. Ahmed's ability to perform his essential tasks:

Mr. Ahmed testified that before the accident, he had no difficulties performing his scholastic, domestic and self care tasks. He testified that since the accident he has experienced knee and back pain and as a result of this pain, he is unable to stand or sit for long and walk far. He is also unable to lift anything heavy or push anything hard. Mr. Ahmed testified that the knee and back pain has prevented him from returning to school, from working in the apartment, and from performing self care tasks. For example, he must sit when he takes a shower.

I do not accept Mr. Ahmed's testimony in respect of his ability to perform his essential tasks. His testimony on this issue, like his testimony in respect of what constituted his essential tasks, was inconsistent with earlier statements he made to the various health practitioners who assessed and/or treated him after the accident.

On April 14, 1992, Mr. Ahmed reported to F.I.T. that he maintained independence in personal care activities, although, he had adopted some slow, cautious techniques. He also reported that he continued to complete personal home management responsibilities independently.²⁶ In respect of his ability to attend school, Mr. Ahmed reported to F.I.T. that "...he manage(d) to sit for up to one hour, commencing position shifts in his chair after approximately ten minutes." He indicated that "(d)uring school activities...occasionally, he (was) required to stand up and stretch."²⁷

On December 10, 1992, Mr. Ahmed reported to Dr. Sokol that his concentration and memory were not bad. He advised Dr. Sokol that they were probably like before the accident.²⁸

On January 6, 1993, Mr. Ahmed reported to Dr. Maser that "(s)ince (the) accident his knee pain ha(d) improved considerably but the lower back (was) still a little sore at times." He reported that the chief problem rested with his left knee. If he stepped into the bath or climbed stairs or else went for long walks, at times it felt as if the kneecap was going to shift to the side. He also felt that at times his leg was a little unstable. However, he reported that there had been no locking of the knee and he had not fallen.²⁹

Between April 27, 1993 and June 14, 1993, Mr. Ahmed reported to Mr. Large of Frank Malito & Associates that he was doing "moderate" tasks around the house such as cleaning, laundry and cooking.³⁰

Mr. Ahmed attempted to discount the evidence which tended to contradict his testimony by saying that it was false and he was misunderstood. Again, I am not persuaded that Mr. Ahmed was misunderstood and that his prior statements to the various health care practitioners should be disregarded. The preponderance of the medical opinion does not support Mr. Ahmed's testimony.

Dr. Maser was of the opinion on February 11, 1992 that Mr. Ahmed was able to do work that did not involve a lot of physical work and demand a lot of standing or walking. He was also of the opinion that Mr. Ahmed was capable of maintaining his studies.³¹ Dr. Hall was of the opinion on April 23, 1992 that there was little evidence of true impairment and that Mr. Ahmed could continue with normal activities of self care.³² At the hearing, Dr. Hall testified that based on his findings on April 23, 1992, he was of the opinion that Mr. Ahmed was also fit to return to school and to perform his responsibilities at home.

Dr. Sokol disagreed with the findings and conclusions of Dr. Hall. Dr. Sokol was of the opinion that Mr. Ahmed was not able to return to his normal activities until September 1994. He testified that he felt that Mr. Ahmed's complaints were legitimate as they were supported by his (Dr. Sokol' s) findings on examination.

Although Dr. Sokol opined that Mr. Ahmed was not able to return to his normal activities until September 1994, he testified that by March 11, 1992, he felt that Mr. Ahmed could start to increase his activities of daily living, including trying to return to school. Dr. Sokol testified that as of March 11, 1992, he did not believe that it would hurt Mr. Ahmed to return to school. Further, he agreed with the findings of the functional assessments of F.I.T. of March and April 1993.

The results of the F.I.T. assessments of March and April 1993, in my view, indicate that Mr. Ahmed was able to perform many of his essential tasks. They indicate that Mr. Ahmed was capable of sitting, standing and walking sufficiently so that he could return to school on a part-time basis.³³ They indicate that Mr. Ahmed was capable of performing his normal tasks of self care and home management, although he may have had some pain and he may have needed to take periodic breaks when performing some of these tasks.³⁴ In performing his self care and home management responsibilities prior to the accident, Mr. Ahmed had few time constraints or demands and could take as much time as he needed to perform these tasks. Similarly, after the accident, he could take as much time as he needed to perform these tasks as tolerated. In Simpson and Royal Insurance Company of Canada ( April 6, 1994), OIC A-003863 (under appeal), Arbitrator Makepeace made the following comments about a homemaker's entitlement to section 13 benefits:

Whereas the employer generally determines the essential tasks of an employee, and how they will be accomplished, a person who is not working has much more flexibility in deciding what his tasks are and how he will accomplish them. This is especially the case with the division of household chores within a family. In my view, it is appropriate to recognize this flexibility by considering whether the insured person's pre-accident essential tasks could be accomplished with reasonable and practical modifications.

I find the same approach to be applicable in this case. I find that since May 24, 1992, Mr. Ahmed has been substantially able to perform his normal tasks of self care and home management with reasonable and practical modifications.

Mr. Ahmed testified that, in September 1992, on Dr. Sokol's advice, he tried to go back to school. He testified that he enrolled in a full-time program (3 ESL courses and one math course) at Bathurst Heights (9:00 a.m. to 3:00 p.m., Monday to Friday). Mr. Ahmed testified that after school commenced, he missed a lot of classes because of his knee and back pain. He testified that at school he was required to walk up and down the stairs when changing classes and he had problems ascending and descending stairs. Mr. Ahmed also testified that he was required to sit for prolonged periods of time in each class. He testified that he found this difficult to do. He was also unable to concentrate on his studies because of the pain. Mr. Ahmed testified that because of these difficulties he missed a lot of classes and he started seeing Dr. Sokol more frequently (once a week). Dr. Sokol prescribed medication and asked him to massage his knee and back but the medication and massage did not help. Mr. Ahmed testified that he stopped attending school after three months.

It could be argued that Mr. Ahmed's absences from school in September and October 1992 and his failure to complete his courses were evidence of his inability to perform his essential tasks in which he would normally engage. However, aside from the fact that Mr. Ahmed returned to school in September 1992 full-time and not part-time as he had done before the accident, I am not satisfied that his numerous absences from school and the reason why he left school in October 1992 were related to the injuries he sustained in the accident. On October 19, 1992, Mr. Ahmed advised the attendance coordinator at Bathurst Heights that he would provide the school with a doctor's note to justify his absence from school for 7 out of the 14 consecutive days that he missed.³⁵ However, subsequently, he provided no such note to the school.³⁶

The clinical notes and records of Dr. Sokol do not show that the frequency of Mr. Ahmed's visits increased after Mr. Ahmed returned to school in September 1992, as Mr. Ahmed testified. The semester started on September 8, 1992. Dr. Sokol's clinical notes and records show that the first time that Mr. Ahmed saw Dr. Sokol after he returned to school was on September 21, 1992. Mr. Ahmed saw Dr. Sokol again on October 5, 1992.³⁷ Mr. Ahmed had already stopped attending school by then.³⁸

Mr. Ahmed's failure to participate in any treatment or medical rehabilitation program after April 1992 to address his ongoing complaints further suggests that, after the accident, Mr. Ahmed’s disability was not as severe as he claims. Mr. Ahmed did not pursue the treatment recommendations made by F.I.T. in April 1992 or April 1993. In June 1993, Dr. Sokol referred Mr. Ahmed to the Spine Care Centre for assessment and vertebral axial decompression treatments. However, Mr. Ahmed only attended for one treatment and failed to show up for the rest.³⁹

Dr. Sokol suggested, in his testimony, that Mr. Ahmed may not have participated in any treatment after April 1992, in part, because of a lack of funding. I do not accept this suggestion. If treatment had been requested by Mr. Ahmed and denied by Allstate, the expense for the treatment would most likely have been covered by the provision of the Schedule which requires an insurer to pay the expense pending resolution of the dispute.⁴⁰ In any event, Dr. Sokol's suggestion is not supported by the evidence. The evidence indicates that, prior to the arbitration hearing, Mr. Ahmed submitted no request for treatment to Allstate, despite the fact that Allstate advised Mr. Ahmed's solicitors in February 1993 that it was interested in assisting Mr. Ahmed to obtain treatment to address his ongoing symptoms.⁴¹

(c) Conclusion:

Based on a preponderance of the medical evidence and my assessment of Mr. Ahmed's credibility, I find that, as of May 24, 1992, Mr. Ahmed did not, as a result of the injuries he sustained in the accident, suffer a substantial inability to perform the essential tasks in which he would normally engage. I conclude, therefore, that he is not entitled to weekly benefits under section 13 of the Schedule after May 23, 1992.

3. Is Mr. Ahmed precluded from receiving weekly benefits under section 16(3) of the Schedule, and if so, is he liable to repay the benefits received under section 27(1) of the Schedule?

Sections 16(3) and 27(1) of the Schedule provide as follows:

16.-(3) The insurer is not required to pay weekly benefits under section 13 for any week in which the insured person attends school.

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

Allstate relies on statements made by Mr. Ahmed to the various health care practitioners that he saw between January 23, 1992 and May 23, 1992, to support its claim that Mr. Ahmed attended school during this period. Specifically, on February 11, 1992, Mr. Ahmed was seen by Dr. Maser. In his report of February 11, 1992, Dr. Maser wrote: "At this time he is capable of maintaining his studies."⁴² (emphasis added) In his clinical notes of April 16, 1992, Dr. Sokol wrote: "...school ok but (decreased) ability to sit..."⁴³ (emphasis added) In their report of April 22, 1992, Ms. Wilson and Ms. Johnson of F.I.T. wrote under the heading "Social History": "The client states that he is awaiting landed immigrant status in Canada. He is attending classes in English as a second language, and is interested in returning to school to become an electrician." Under the heading "Functional Performance," Ms. Wilson and Ms. Johnson wrote:

Mr. Ahmed indicated that his sitting and standing tolerance is restricted. Currently, he manages to sit for up to one hour, commencing position shifts in his chair after approximately ten minutes. During school activities, he indicated that occasionally, he is required to stand up and stretch.

Since moving to Canada, he reported that he has been attending English as a second language training. Initially, he completed his studies in the evening, recently, he has commenced training full-time (8:30 a.m. to 3:00 p.m.).⁴⁴ (emphasis added)

At the hearing, Mr. Ahmed denied that he attended school during this period. He testified that since the accident, his left knee and back pain has prevented him from returning to school. He testified that he did not attempt to return to school until September 1992. Mr. Ahmed denied that he told Dr. Maser, Dr. Sokol and F.I.T. in February and April 1992 that he was going to school. Mr. Ahmed testified that any statements he made to these health care practitioners related to his school activities before the accident. Mr. Ahmed did not explain why he would advise Ms. Wilson and Ms. Johnson of F.I.T. that he attended school full-time before the accident when in fact he only attended part-time.

Again, I am not persuaded that Mr. Ahmed was misunderstood and that his earlier statements should be disregarded in favour of his testimony. Based on Mr. Ahmed's statements to Dr. Maser, Dr. Sokol and F.I.T., I find that Mr. Ahmed attended school on a full-time basis from January 23, 1992 to May 23, 1992. I also find, based on the report of Dr. Maser, the report and testimony of Dr. Hall and the F.I.T. Report of April 22, 1992, that Mr. Ahmed, albeit with some difficulty, was substantially able to perform his essential tasks as a student during this period.⁴⁵

Accordingly, from January 23, 1992 to May 23, 1992, Mr. Ahmed was not entitled to receive weekly benefits under section 16(3) of the Schedule. Since Mr. Ahmed received weekly benefits during this period, I find that he is liable to repay Allstate the weekly benefits he received because these benefits were paid to him by Allstate as a result of error - an error which is attributable in a material way to Mr. Ahmed's failure to inform Allstate that he was attending school during this period.

(4) Is Mr. Ahmed entitled to be paid for the services of Frank Malito & Associates, Rehabilitation Consultants Inc.?

Mr. Ahmed disputes Allstate's refusal to pay the invoice submitted by Frank Malito & Associates on June 17, 1993 in the amount of $944.10, for services rendered. He seeks payment for the services under sections 6(1)(c) or section 6(1)(f) of the Schedule.

In order to obtain payment of supplementary medical and rehabilitation benefits under section 6(1) of the Schedule, Mr. Ahmed must establish that the expense claimed is a reasonable expense required because of the accident.

Mr. Ahmed submits that, given the referral by Dr. Sokol, his particular situation and Allstate's agreement to pay for the same, he meets this requirement.

The referral letter from Dr. Sokol to Mr. Frank Malito dated April 29, 1993 sets out Dr. Sokol's reasons for the referral:

I have been following the patient for injuries sustained in an [sic] motor vehicle accident (M.V.A.). I have recently discussed the future with special interest directed towards symptoms, limitations, interests, skills and various occupations.

It is my opinion that due to on-going problems with respect to appropriate employment, vocational rehabilitation and case management is required.⁴⁶ [emphasis added]

At the hearing, Dr. Sokol testified that Frank Malito & Associates' involvement would have, also, obviated a great deal of the difficulty Mr. Ahmed had been experiencing with respect to clinical follow-up, failure to attend for treatments and missed appointments. In the circumstances of this case, I am not persuaded that the services of Frank Malito & Associates were a reasonable expense required because of the accident.

Frank Malito & Associates assessment and recommendations as set out in the report to Allstate dated June 14, 1993 were geared essentially towards assisting Mr. Ahmed to enter the workforce. Mr. Ahmed claims that Allstate is responsible for restoring him not just to his pre-accident level of functioning but beyond that, to a level where he is capable of working. Mr. Ahmed also submits that Allstate is responsible for providing vocational training and assisting him in finding suitable or appropriate employment.

I do not accept this position. I find Allstate is responsible only for payment of supplementary medical and rehabilitation benefits to help restore Mr. Ahmed to his pre-accident level of functioning. I agree with Arbitrator Mackintosh in Cowie and The Non-Marine Underwriters, Members of Lloyd's, London, England (June 22, 1995), OIC A-005767, that section 6(1)(c) of the Schedule requires a nexus between the injuries or limitations suffered as a result of an accident and the rehabilitation or occupational training sought. I find, in this case, that Mr. Ahmed has failed to establish the necessary connection between the injuries he suffered and the services provided by Frank Malito & Associates between April and June 1993.

Further, I am not persuaded that a rehabilitation case manager was a reasonable expense required because of the accident in Mr. Ahmed's case. As I stated in R.S. and Royal Insurance Company of Canada, November 30, 1995, OIC A-002869, a case manager may be appropriate, to coordinate an applicant’s care where lengthy treatment or rehabilitation is anticipated, or where a number of different health professionals are involved. Mr. Ahmed had already undergone a number of evaluations to assess his functional abilities. This is not a complex case and I heard no evidence that any lengthy treatment or rehabilitation was anticipated to help restore Mr. Ahmed to his pre-accident level of functioning.

Mr. Ahmed submits that he needed the services of Frank Malito & Associates because he had recently arrived in Canada, had a limited command of the English language and did not understand the medical system in Canada. He indicated that he may have fallen "through the cracks in the medical and insurance systems" because he did not have a rehabilitation caseworker to speak and advocate on his behalf. Again, based on this reason, I am not persuaded that a rehabilitation caseworker or case manager was a reasonable expense required because of the accident. I do not accept Mr. Ahmed’s testimony that he did not understand the medical system in Canada. Further, Mr. Ahmed was prudent enough to retain a law firm to advise him and advocate on his behalf in respect of his claims for statutory accident benefits arising from the accident very shortly after the accident.⁴⁷ He continued to be represented by a law firm throughout 1992 and 1993 and continues to be represented by a law firm to date. I am not persuaded that he needed the additional advocacy services of Frank Malito & Associates. In any event, I am not satisfied that fees for advocacy services are recoverable under section 6(1) of the Schedule.

Although I am not persuaded that the services of Frank Malito & Associates were a reasonable expense required because of the accident, I find, on the basis of Mr. Frank Malito's testimony and Allstate's letter to Mr. Malito dated June 25, 1993,⁴⁸ that, on March 10, 1993, Mr. Jonathan Del Rio of Allstate verbally authorized the provision of some rehabilitation case management services (an initial assessment) for Mr. Ahmed by Frank Malito & Associates. I accept Mr. Malito’s testimony that he would not have proceeded with any work on Mr. Ahmed’s behalf without funding approval from Allstate. I also accept his testimony that the approval given by Mr. Del Rio was unconditional.

Ms. Teresa Kayahara, from Allstate, testified that any funding approval given by Mr. Del Rio was conditional upon Mr. Ahmed attending two independent medical examinations scheduled by Allstate on March 11 and 18, 1993 and the results of these examinations. I prefer Mr. Malito's evidence over Ms. Kayahara’s on this issue because Ms. Kayahara was not present during the discussion between Mr. Malito and Mr. Del Rio on March 10, 1993. Further, since section 23(2) of the Schedule allows an insurer to require that an applicant be examined by a physician of its choice only in respect of claims for weekly benefits, it would have been inappropriate for Allstate to have required an examination of Mr. Ahmed by a physician of its choice as a condition for the payment of supplementary medical or rehabilitation benefits. I agree with Arbitrator Makepeace's opinion, in MacPherson and Pilot Insurance Company (January 31, 1994), OIC A-003688, that section 23(2) of the Schedule not only requires the insured person to have made a claim for weekly benefits; it also requires that the examination requested be in respect of a claim for weekly benefits.

In conclusion, I find that Allstate is required to pay Frank Malito & Associates for its outstanding account, in the amount of $944.10, with interest in accordance with section 24(1) of the Schedule.

(5) Is Mr. Ahmed entitled to a special award?

Mr. Ahmed seeks a special award under section 282(10) of the Act on the basis that Allstate unreasonably withheld or delayed payment of weekly benefits. Mr. Ahmed submits that, before making its decision to terminate weekly benefits in May 1992, Allstate failed to make reasonable inquiry into the tasks in which he would normally engage before the accident and the effect of the injuries he sustained on his ability to perform those tasks.

On the basis of the evidence before me, I do not find that this is a case where Allstate can be said to have unreasonably withheld or delayed payment of weekly benefits. Allstate provided Mr. Ahmed (through his solicitors) with advance notice of its intention to terminate weekly benefits and the reasons for its decision. Before benefits were terminated, Mr. Ahmed was provided with an opportunity to dispute the reasons and to challenge the validity of any assumptions on which the decision was based. He was also provided with an opportunity to submit additional evidence that would substantiate his ongoing disability.⁴⁹ Mr. Ahmed chose not to take advantage of these opportunities before weekly benefits were terminated.⁵⁰ In any event, a special award is based on the amount to which the applicant is entitled at the time of the award. I have concluded that Mr. Ahmed is not entitled to further weekly benefits.Therefore, I cannot make a special award on the basis that Allstate unreasonably withheld or delayed payment of weekly benefits.

Mr. Ahmed also submits that Allstate acted unreasonably in agreeing to fund the services of Frank Malito & Associates and then refusing to pay for those services. The failure of Allstate to pay this claim promptly concerns me. However, I accept that after receiving the report and invoice from Frank Malito & Associates, Allstate had legitimate questions about the reasonableness of the services provided and what services, if any, had been authorized by it. I find, therefore, that Allstate did not unreasonably withhold or delay payment for the services of Frank Malito & Associates.

Mr. Ahmed also submits that Allstate adopted an adversarial approach and did not work as a partner with him in his rehabilitation. While Allstate's approach to Mr. Ahmed's rehabilitation might be characterized as more passive than proactive, I heard no evidence that Allstate refused to pay at any time for any treatment or medical rehabilitation program to help restore Mr. Ahmed to his pre-accident level of functioning. On the contrary, as I noted earlier, Allstate advised Mr. Ahmed's solicitors, in February 1993, that it was interested in assisting Mr. Ahmed to obtain treatment to address his ongoing symptoms. Allstate suggested specific programs in which Mr. Ahmed could participate. It also advised Mr. Ahmed’s solicitors that it would be open to other suggestions.⁵¹ However, none were forthcoming.⁵²

In conclusion, I am not persuaded that a special award is appropriate in this case.

(6) Expenses

Mr. Ahmed seeks an award of the expenses he has incurred in respect of this arbitration. An arbitrator's authority to make an award for expenses in favour of an applicant is found under section 282(11) of the Act. Arbitrators have generally exercised their discretion to award applicants their expenses, regardless of outcome. However, expenses have been denied to an applicant where it has been found that the applicant lacked credibility or provided false or misleading evidence or that the applicant's conduct unreasonably prolonged the proceedings.

Allstate submits that it would be inappropriate to award expenses to Mr. Ahmed because "(t)he case presented flies directly in the face of much of the documentary evidence available and produced before the arbitration." Further, it submits that it would be inappropriate to award expenses to Mr. Ahmed because his conduct unreasonably prolonged the arbitration proceeding.

I agree with Allstate. I do not believe that this is an appropriate case in which to award Mr. Ahmed his expenses. First of all, I found that Mr. Ahmed lacked credibility. He was evasive and less than candid in his testimony and there were numerous inconsistencies in his evidence. Secondly, he unreasonably prolonged the arbitration proceeding. The arbitration hearing had to be adjourned on the first day because Mr. Ahmed failed to show up for the hearing. When he showed up on the rescheduled hearing date, he provided no excuse for failing to show up. For these reasons, I decline to exercise my discretion to award expenses to Mr. Ahmed.

(7) The Insurer's claim for an award:

Allstate seeks an award against Mr. Ahmed, under section 282(11.2) of the Act. Section 282(11.2) provides as follows:

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.

The amount that was assessed against Allstate in respect of this arbitration was $1,000.00, under section 14 of the Act and Ontario Regulation 220/91.

Allstate submits that it is entitled to an award under section 282(11.2) of the Act because Mr. Ahmed’s application for arbitration was frivolous. I do not find that Mr. Ahmed’s arbitration was entirely without merit. I agree with Allstate that Mr. Ahmed’s claim for weekly benefits after May 23, 1992 was without merit. However, I found that he was entitled to be reimbursed for the services provided by Frank Malito & Associates. In the circumstances, I find it appropriate to exercise my discretion to award Allstate $500.00 to be paid by Mr. Ahmed under section 282(11.2) of the Act

Order:

1. Mr. Ahmed is not entitled to weekly benefits for any period after May 23, 1992. Accordingly, his application for weekly Ontario Automobile Insurance Medical Report (Form 4) of Dr. Sokol dated January 23, 1992( Exhibit 10) benefits after May 23, 1992 is dismissed.

2. Mr. Ahmed shall repay to Allstate weekly benefits received by him from January 23, 1992 to May 23, 1992.

3. Allstate shall pay Mr. Ahmed $944.10, for the outstanding account of Frank Malito & Associates, with interest in accordance with section 24 of the Schedule.

4. Mr. Ahmed is not entitled to payment of a special award. Accordingly, his application for a special award under section 282(10) of the Act is dismissed.

5. Mr. Ahmed is not entitled to his expenses incurred in respect of the arbitration. Accordingly his application for expenses under section 282(11) of the Act is dismissed.

6. Mr. Ahmed shall pay Allstate the sum of $500.00, under section 282(11.2) of the Act.

July 15, 1996

Shemin Manji Arbitrator

Date

APPENDIX A - THE RECORD

Exhibits

Exhibit 1

Record of Landing, October 28, 1992

Exhibit 2

Orthopaedic and Arthritic Hospital, X-ray requisition by Dr. Joel Maser dated April 15, 1993 and results of left knee arthrogram dated April 26, 1993

Exhibit 3

Report of F.I.T. For Work Centres (Ms. Ethel Wilson and Ms. Leslie Johnson) dated April 22, 1992

Exhibit 4

Report of Dr. Joel Maser dated February 11, 1992

Exhibit 5

S.E.E. School - 1991/1992 Continuing Education - Adult Basic Education -Attendance Records for Course - Adult English as a Second Language - September 16, 1991 to December 12, 1991

Exhibit 6

Bathurst Heights Secondary School records pertaining to Mr. Mohamed Ahmed

Exhibit 7

O.H.I.P. Summary from September 3, 1991 to June 25, 1993

Exhibit 8

Clinical notes and records of Dr. Sokol

Exhibit 9

Report of F.I.T. For Work Centres (Dr. Kevin M. Rittenberg) dated April 22, 1992

Exhibit 10

Ontario Automobile Insurance Medical Report (Form 4) of Dr. Sokol dated January 23, 1992

Exhibit 11

Ontario Automobile Insurance Medical Report (Form 4) of Dr. Sokol dated October 5, 1992

Exhibit 12

"Full Service Evaluation" Report of Frank Malito & Associates, Rehabilitation Consultants Inc., dated June 14, 1993

Exhibit 13

Report of F.I.T. For Work Centres ( Mr. Ricardo Tarzia and Ms. Heather Sloman) dated April 2, 1993

Exhibit 14

Report of F.I.T. For Work Centres ( Dr. Rittenberg) dated April 5, 1993

Exhibit 15

Report of F.I.T. For Work Centres (Ms. Heather Sloman) dated April 28, 1993

Exhibit 16

Radiologist's Consultation Report (Dr. M. Dang) dated April 16, 1993

Exhibit 17

Radiologist's Consultation Report (Dr. M. Dang) dated April 27, 1993

Exhibit 18

Letter from Allstate (Ms. Anh Mai) to Mr. Barry A. Edson dated May 4, 1992

Exhibit 19

Letter from Allstate (Ms. Anh Mai) to Mr. Edson dated July 2, 1992

Exhibit 20

Letter from Allstate (Mr. Jonathan Del Rio) to Frank Malito & Associates dated June 25, 1993

Exhibit 21

Report of Dr. Michael C. Hall dated April 23, 1992 and Curriculum Vitae of Dr. Hall

Exhibit 22

Letter from Allstate (Ms. Teresa Kayahara) to Advocate Group (Attention: Joseph Caprara) dated February 18, 1993

Exhibit 23

Letter from Dr. Sokol to Mr. Frank Malito dated April 29, 1993

Exhibit 24

Photograph of Mr. Ahmed attending a meeting in 1991 at Mennonite Mission.

Exhibit 25

Clinical notes and records of F.I.T. For Work Centres.

Other documents before the arbitrator, but not marked as exhibits:

Report of Mediator dated February 17, 1993

Application for Appointment of Arbitrator dated March 21, 1994

Response by Insurer dated April 25, 1994

Letter from Arbitrator Janice Mackintosh to the parties dated July 5, 1994, confirming pre-hearing discussions

Submissions from Mr. Ahmed dated May 23 and June 21, 1995

Submissions from Allstate dated June 7, 1995

APPENDIX B - AUTHORITIES

Commission Decisions

1. Allison and Markel Insurance Company of Canada (June 14, 1995), OIC A-001231

2. Beiler and Alpina Insurance Company (February 22, 1994), OIC A-003051

3. Caputo and Wellington Insurance Company (June 23, 1994), OIC A-000697

4. Caringi and The Wawanesa Mutual Insurance Company (February 18, 1993), OIC A-000860

5. Chor Ting Lui and Wellington Insurance Company (April 28, 1993), OIC A-001894

6. Cowie and The Non-Marine Underwriters, Members of Lloyd's (March 9, 1993), OIC A-001159

7. Cowie and The Non-Marine Underwriters, Members of Lloyd s, London, England (June 22, 1995), OIC A-005767

8. D.A.N. and Zurich Insurance Company (February 22, 1994), OIC A-003133

9. Downs and Allstate Insurance Company of Canada ( July 18, 1991), OIC A-000064

10. Dugas and Wellington Insurance Company (February 10, 1994), OIC A-003517

11. Gomez and Pilot Insurance Company (May 10, 1995), OIC A-013080

12. Lee and Unifund Assurance Company (August 28, 1992), OIC A-000078

13. Levenson and The General Accident Assurance Company of Canada (September 29, 1992), OIC A-000260

14. Nguyen and Progressive Casualty Insurance Company (August 3, 1994), OIC A-04698

15. Steele and Zurich Insurance Company (December 3, 1992), OIC A-001024

16. Taves and The Wawanesa Mutual Insurance (August 10, 1993), OIC A-003659

17. Vieira and Commercial Union Assurance Company of Canada (June 19, 1995), OIC A-009200

Court decisions

18. Adams v. Heckler, 580 F. Supp. 315 (1984) U.S.D.C. N.D. Indiana.

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. 21991/1992 Continuing Education, Adult Basic Education, Ministry of Education form (Exhibit 5)
3. 3At the hearing, Mr. Ahmed testified that, prior to the accident, he had been seeing another physician, a Dr. Wong. Mr. Ahmed also acknowledged that after the accident, he saw Dr. Sokol only for his accident-related injuries. He continued to see Dr. Wong in respect of his non-accident related problems.
4. 4Dr. Sokol's clinical notes and records as filed contained no x-ray results. However, the February 11, 1992 Report of Dr. Joel Maser, consultant in internal medicine (Exhibit 4), states that no fractures were found. Further, at the hearing, Dr. Sokol testified that the x-rays were normal.
5. 5Ontario Automobile Insurance Medical Report (Form 4) of Dr. Sokol dated January 23, 1992( Exhibit 10)
6. 6Report of Dr. Joel Maser dated February 11, 1992 (Exhibit 4)
7. 7Report of F.I.T. dated April 22, 1992 (Exhibits 3 and 25) and Report of Dr. Rittenberg dated April 22, 1992 (Exhibit 9 and 25)
8. 8Report of Dr. Hall dated April 23, 1992 (Exhibit 21) and testimony of Dr. Hall
9. 9Clinical notes and records of Dr. Sokol (Exhibit 8). The OHIP Summary (Exhibit 7) shows that Mr. Ahmed saw Dr. Wong on April 24, May 14, August 26 and September 21, 1992 and a J.R. Lee on August 28 and September 4, 1992. However, Mr. Ahmed testified that these visits were not related to the accident.
10. 10Records of Bathurst Heights Secondary School (Exhibit 6)
11. 11Dr. Sokol's clinical notes of all visits except December 7, 1992 appear quite detailed. However, they are of limited value because, for the most part, they are difficult to decipher. I found the notes of his findings on examination illegible. In his testimony, Dr. Sokol discussed the visits very briefly.
12. 12Ontario Automobile Insurance Medical Report (Form 4) of Dr. Sokol dated October 5, 1992 (Exhibit 11)
13. 13Clinical notes and records of Dr. Sokol (Exhibit 8)
14. 14Report of Dr. Maser dated January 6, 1993 (Exhibit 8)
15. 15Orthopaedic and Arthritic Hospital X-Ray Requisition dated April 15, 1993 (Exhibit 2), Radiologist's Consultation Report (Dr. M. Dang) dated April 15, 1993 (Exhibit 16), Bay-Wellesley Nuclear Medicine Diagnostic Services Report of Dr. S. Murray dated April 23, 1993 (Exhibit 8), Orthopaedic and Arthritic Hospital, Results of Left Knee Arthrogram dated April 26, 1993 (Exhibit 2) and Radiologist's Consultation Report dated April 26, 1993 (Exhibit 17)
16. 16Report of F.I.T. (Mr. Tarzia and Ms. Sloman) dated April 2, 1993 (Exhibit 13) and Report of F.I.T. (Dr. Rittenberg) dated April 5, 1993 (Exhibit 14)
17. 17Report of F.I.T. (Heather Sloman) dated April 28, 1993 (Exhibit 15)
18. 18Dr. Sokol's clinical notes (Exhibit 8) appear to provide more information about Mr. Ahmed's visits and about Dr. Sokol's findings but, for the most part, they are illegible and therefore not very helpful. In his testimony, Dr. Sokol provided little detail about Mr. Ahmed's condition during this period except to say that he felt that Mr. Ahmed's complaints were legitimate.
19. 19Letter from Dr. Sokol to Mr. Frank Malito dated April 29, 1993 (Exhibit 23) and testimony of Mr. Malito.
20. 20Report of Frank Malito & Associates dated June 14, 1993 (Exhibit 12)
21. 21Letter from Allstate to Frank Malito & Associates dated June 25, 1993 (Exhibit 20)
22. 22Referral form from Dr. Sokol to Spine Care Centre dated June 22, 1993 (Exhibit 8)
23. 23Spine Care Centre, Progress Note dated July 27, 1993 (Exhibit 8)
24. 24Report of F.I.T. (Ms. Wilson and Ms. Johnson) dated April 22, 1992 (Exhibit 3) and Report of F.I.T. (Ms. Sloman) dated April 28, 1992 (Exhibit 15)
25. 25Records of S.E.E. ( Exhibit 5)
26. 26Ms. Butler, Director of Clinical Services at F.I.T. testified that "home management responsibilities" refer to responsibilities around the home, including cooking, cleaning, making the bed, laundry, taking out the garbage, vacuuming, dusting and grocery shopping.
27. 27Report of F.I.T. dated April 22, 1992 (Exhibit 3)
28. 28Clinical notes and records of Dr. Sokol (Exhibit 8)
29. 29Report of Dr. Maser dated January 6, 1993 (Exhibit 8)
30. 30Report of Frank Malito & Associates dated June 14, 1993 (Exhibit 12). Mr. Large does not indicate in his report when he interviewed Mr. Ahmed. However, he states that the file was referred to him on April 27, 1993 for the purpose, inter alia, of establishing contact with Mr. Ahmed to obtain an update. Presumably, therefore, Mr. Large interviewed Mr. Ahmed after April 27, 1993 and before June 14, 1993, the date of his report.
31. 31Report of Dr. Joel Maser dated February 11, 1992 (Exhibit 4)
32. 32Report of Dr. Michael Hall dated April 23, 1992 (Exhibit 21)
33. 33Report of F.I.T. dated April 28, 1993 (Exhibit 15)
34. 34Report of F.I.T. dated April 2, 1993 (Exhibit 13)
35. 35Records of Bathurst Heights (Exhibit 6)
36. 36Testimony of Mr. Alderdice
37. 37Clinical notes and records of Dr. Sokol (Exhibit 8)
38. 38School records of Mr. Ahmed at Bathurst Heights Secondary School (Exhibit 6)
39. 39Clinical notes and records of Dr. Sokol (Exhibit 8)
40. 40Section 6(7) of the Schedule
41. 41Letter from Allstate to Joseph Caprara dated February 18, 1993 (Exhibit 22) and testimony of Teresa Kayahara
42. 42Exhibit 4
43. 43Exhibit 8
44. 44Exhibit 3
45. 45Report of Dr. Joel Maser dated February 11, 1992 (Exhibit 4) and Report of Dr. Hall dated April 23, 1992 (Exhibit 21)
46. 46Exhibit 23
47. 47Mr. Ahmed testified that he retained a law firm to assist him with his claim for benefits in January, 1992. Ms. Kayahara testified that she became aware that Mr. Edson had been retained by Mr. Ahmed as early as January 18 or 19, 1992. Mr. Ahmed's initial Application for Accident Benefits dated January 18, 1992 was received through the law offices of Barry Edson & Associates.
48. 48Exhibit 20
49. 49Letter from Allstate to Mr. Edson dated May 4, 992 (Exhibit 18)
50. 50Letter from Allstate to Mr. Edson dated July 2, 1992 (Exhibit 19) and testimony of Ms. Kayahara
51. 51Letter from Allstate to Joseph Caprara dated February 18, 1993 (Exhibit 22) and testimony of Teresa Kayahara
52. 52Testimony of Ms. Kayahara