Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1996 ONICDRG 179
Appeal P-000984
OFFICE OF THE DIRECTOR OF ARBITRATIONS
MOHAMED K. KHAN
Appellant
and
PILOT INSURANCE COMPANY
Respondent
Before:
Elisabeth Sachs
Counsel:
Vishnu E. Misir, assisted by M. Mobin (for Mohamed K. Khan)
Rudolph Lobl, QC (for Pilot Insurance Company)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal is dismissed and the arbitration order dated January 27, 1993 is confirmed.
Mr. Khan is not entitled to his appeal expenses.
October 23, 1996
Elisabeth Sachs
Director of Arbitrations
Date
REASONS FOR DECISION
I. BACKGROUND
Mohamed K. Khan was a pedestrian who was injured when he was struck by a motor vehicle as he was crossing a road on February 19, 1991. He applied for statutory accident benefits from Pilot Insurance Company ("Pilot") under O. Reg. 672, the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994, (the Schedule). Pilot paid weekly income benefits in varying amounts until April 3, 1992, when they were terminated. Pilot also paid for some, but not all, supplementary medical and rehabilitation expenses claimed by Mr. Khan.
Mr. Khan claimed he was entitled to income benefits at the maximum rate of $600 weekly from the time of the accident and beyond the termination date. Pilot had paid weekly benefits in amounts ranging from the minimum of $185.60 to $465. Mr. Khan also claimed entitlement to medical expenses, as well as payment for a fitness program and vocational rehabilitation training.
After a two day arbitration hearing at which Mr. Khan and six witnesses testified and twenty-seven exhibits, including a production book were filed, the arbitrator found Mr. Khan was entitled to rehabilitation and transportation expenses to attend a treatment centre for a four week period. The arbitrator also found he was entitled to $185.60 weekly until April 3, 1992. That finding meant Mr. Khan had been overpaid by $9,744.47, which the arbitrator ordered be repaid to Pilot.
Mr. Khan appeals the determination of the weekly income benefit amount, the length of his disability, and claims entitlement to ongoing medical and rehabilitation expenses.
II. ISSUES AND ANALYSIS
A. Essential Tasks and Ongoing Disability
Mr. Khan's pre-accident employment was essentially that of a part-time roofing sub-contractor (in the summer months) and a manual labourer doing demolition work. When occupied in the roofing trade, he was required to carry heavy bundles of material. As a labourer, his duties included removal of boilers and metal plates, placed on a dolly. The pieces of scrap metal would then be lifted out of their location. Mr. Khan testified that on occasion he would lift 100 to 150 pounds himself. He reported to his doctor and rehabilitation advisors that he usually lifted 60 to 70 pound loads. His work required prolonged standing and overhead lifting. The evidence indicates that he also drove a truck with a clutch. Mr. Khan did not always work alone in these jobs, but had a helper from time to time.
The arbitrator found that to continue in his line of work, Mr. Khan would "need to regain a very good level of fitness". In reviewing the medical and rehabilitation reports, she concluded Mr. Khan had sustained a back strain and contusion in the accident, noting that the medical experts agreed he required a "vigorous" exercise program. The rehabilitation reports, particularly the clinical notes of F.I.T. For Work Centres, record that Mr. Khan was "not interested in returning to previous job" with a goal to "attain a 'medium' level of work" (Work Fitness Program notes, February 10, 1992, Tab 16, Exhibit 1). A psychological overlay was noted - Mr. Khan focused on pain and expressed a need for bone scans, although the doctors he had seen were not recommending them. The arbitrator concluded Mr. Khan should attend a four week rehabilitation program as suggested by his family doctor. She reserved any decision on whether he would need rehabilitation treatment after that period. As far as I am aware, there has been no referral to her of this issue, and I can only assume any further claims have been resolved by the parties.
Mr. Khan disputes the arbitrator's conclusion that he was entitled to weekly income benefits only to April 3, 1992. He says the arbitrator misapprehended his condition when she concluded the medical evidence, coupled with the fitness assessments, showed he was able to work in early 1992. As support for his position, Mr. Khan refers to the November 17, 1992 report of Dr. Vansen Lee, his family physician. It is to be noted that Dr. Lee (following a consultation with Dr. J. A. Mayer) diagnosed a compression fracture of the body of the L1 vertebrae which was believed to cause continuing pain; a diagnosis not accepted by the other medical experts as having resulted from the motor vehicle accident. Dr. Lee's final report expresses doubt about Mr. Khan's ability to resume work as before, citing as well depression and chronic pain syndrome. This doubt is not evident in the reports of Drs. Conn, Indech and Langer who also examined Mr. Khan. In addition to the oral testimony of Dr. Langer, there were ten medical reports and a series of clinical notes and five rehabilitation reports with clinical notes before the arbitrator. From this, and the oral evidence of Mr. Khan, Ms. C. Morrison of F.I.T., and Mr. Mondesire (who took Mr. Khan to hospital after one of his attempts to work), the arbitrator was required to come to a conclusion about whether Mr. Khan was substantially able to do the essential tasks of his occupation.
Although she acknowledged he had residual pain and discomfort, and that some aspects of his work performance were affected, the arbitrator did not believe Mr. Khan was substantially unable to do his essential tasks within the meaning of section 12 of the Schedule after early April, 1992.
The arbitration hearing was not recorded so no transcript is available of the oral evidence. The record of what was said and accepted or not by the arbitrator is set out in her decision. Any references to oral testimony or cross-examination are outside the record and not before me.
The Director's duty on appeal is to review the documentary evidence and the record to ensure the arbitrator's conclusions have a proper foundation - that is, they have sufficient evidence to support them. Whether I might have come to a different conclusion is not the test.1 The arbitrator had to weigh all the evidence - oral and written - assess its credibility and then accept or reject it. My function is not to re-try the issues or weigh the evidence as if it was being presented anew. Where the arbitrator's conclusions are supportable on a review of the evidence (unless she was clearly wrong) they will not be interfered with on appeal.
There was some conflict in the medical evidence as to Mr. Khan's functional abilities. It was up to the arbitrator to weigh that evidence, consider the credibility of the witnesses including a medical expert, and determine the effect of the contradictions. This she did, and on a review of those same exhibits along with her reasoning as set out in the decision, I cannot say she so misdirected herself that I feel compelled to come to a different result. The appeal on this aspect of the decision fails.
B. Quantum of Weekly Income Benefit
The arbitrator was very concerned about the evidence she received on how to establish the appropriate amount of Mr. Khan's weekly income benefit. Pilot was unsure enough about the financial information it had obtained that it recalculated the benefit level several times and finally engaged a forensic accountant, who testified at the hearing, to review Mr. Khan's income and expense records.
Both of the general contractors Mr. Khan worked for prior to the accident testified. The arbitrator summarizes their evidence over several pages of the decision. Mr. Khan testified that in the year before the accident, he did not file a tax return because he owed Revenue Canada money. Thus the evidence about Mr. Khan's income in the four and fifty-two weeks before the accident came from the oral testimony, receipts for the cash paid to him on an hourly basis, and vouchers for various business expenses.
The arbitrator had difficulty accepting the records of the general contractor for whom Mr. Khan worked full-time in 1991. The contractor admitted Mr. Khan prepared Exhibit 9 (Payment Received list), and that Exhibit 6 (Payments Made 1990-1991) was prepared by his bookkeeper from information supplied by Mr. Khan. The 'Employers Confirmation of Income' form was filled in by someone else, and he signed it. The arbitrator concluded at page 19 of the decision, after noting the problems small contractors may have to keep accurate records, that "the evidence is overwhelming that the financial records in this case were constructed after the accident". She expressed her concern about the receipts for payments allegedly received for work done, as well as the evidence relating to the business expenses incurred in the four weeks before the accident. Since the arbitrator could not rely on the receipts or the business expense evidence, she found Mr. Khan had not shown, in a reliable and sufficient manner, what his income was. She wrote:
At the hearing, the Applicant was invited to admit that the receipts and other records had been prepared after the accident. He refused to do so. He was adamant that the records were produced as stated. Had the Applicant admitted that the records had been produced after the accident, then questions would have been asked with respect to the source of the figures which were used as gross income. It might then have been possible to match the figures with [other documents]...However, no corroborating evidence was presented which was worthy of belief by either general contractor.
...[T]he Applicant's evidence as to the manner in which the documents were produced is totally unworthy of belief. I cannot rely on the figures which he has submitted to me...I cannot give any weight to the Applicant's figures of gross revenue and expenses....
(Decision, p. 20)
I reviewed the financial documents filed at the hearing. I do not agree with Mr. Khan's submission that as his figures were accepted without question by Revenue Canada, they should be adopted by the arbitrator to determine his true income picture. That submission becomes harder to understand in light of the fact that Mr. Khan did not file a 1990 personal income tax return, and the one for 1991 (the year of the accident) was dated October 27, 1992, a few weeks before the arbitration hearing. There is no evidence that the 1991 return, which indicated no amount owing to Revenue Canada, was ever filed.
I find the arbitrator had ample evidence before her to conclude she was not in a position to fix the weekly benefit amount above the minimum. Mr. Khan was self-employed and as such, a calculation for both gross income and business expenses was necessary. While it is possible that some gross income figure may have been ascertainable as the arbitrator said, expenses certainly were not. Mr. Khan did not produce reliable evidence about his financial affairs. There are such inconsistencies in the documentation and significant doubt as to the creation of much of it, that the arbitrator could not rely on it. That has not changed as a result of this appeal.
III. EXPENSES
This appeal was unsuccessful. Although framed as being brought on the basis of the arbitrator's misconstruing the facts resulting in an error in law, what Mr. Khan wanted was for me to find the arbitrator was wrong to conclude his financial evidence was "unworthy of belief" and in denying him further benefits on the basis of facts proven at the hearing. This is not a case where expenses should be ordered.
October 23, 1996
Elisabeth Sachs
Director of Arbitrations
Date