Neutral Citation: 1996 ONICDRG 26
ONTARIO INSURANCE COMMISSION
BETWEEN:
Majid Bigdeli
Applicant
and
Security National Insurance Company
Insurer
DECISION
Issues:
The Applicant, Majid Bigdeli, was injured in a motor vehicle accident on August 23, 1993. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.1 Weekly income benefits were terminated by the Insurer on October 11, 1993. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is the Applicant entitled to weekly income benefits pursuant to section 12 of the Schedule after October 11, 1993?
Is the Applicant entitled to supplementary medical and rehabilitation benefits pursuant to section 6 of the Schedule for a one-year membership at the YMCA and housekeeping expenses of approximately $100?
Is the Insurer entitled to a repayment pursuant to section 27 of the Schedule?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is not entitled to weekly income benefits after October 11, 1993.
The Applicant is not entitled to the supplementary medical and rehabilitation benefits claimed.
The Insurer is not entitled to a repayment pursuant to section 27 of the Schedule.
Hearing:
The hearing was held in North York, Ontario. The hearing opened on October 23, 1995 and at the request of the Applicant and with the consent of the Insurer, I adjourned the hearing to October 24. The hearing resumed on October 24, October 25 and December 14, 1995.
Present at the Hearing:
Applicant:
Majid Bigdeli
Applicant's
John Cuddy
Representative:
Barrister and Solicitor
Insurer's
Alexander M. Voudouris
Representative:
Barrister and Solicitor
Before:
William J. Renahan
Arbitrator
The proceedings were recorded by Paul Warner of Victory Verbatim.
Witnesses: Majid Bigdeli, Larry Silverberg, Dr. Patcai, Dr. Kachooie and Dr. Rosenbluth.
Exhibits: The Insurer filed six exhibits which included two document briefs. The Applicant filed two exhibits which included one document brief.
Background:
On the evening of August 23, 1993 Mr. Bigdeli was driving his Honda Civic motor vehicle through an intersection when his vehicle was struck on the left side. Mr. Bigdeli said that the force of the collision drove the driver's door in ten inches. He was taken to hospital by ambulance. The emergency department record indicates that after three hours in the hospital, Mr. Bigdeli was discharged with a diagnosis of soft tissue injuries.
At the time of the accident, Mr. Bigdeli was 30 years old. Nine months before the accident, he had opened his own take-out pizza business. On September 17, 1993, four weeks after the accident, he advertised to sell the business. He was unable to sell it. He sold his equipment and abandoned the premises. Mr. Bigdeli claims that he was physically unable to continue to operate the business because of the injuries he sustained in the accident. The Insurer claims that Mr. Bigdeli was not disabled from operating his business and that he closed the business because it was losing money.
Preliminary Issues:
At the resumption of the hearing on October 24, 1995, the parties advised me of the names of the witnesses they intended to call and the times they were expected. Mr. Cuddy, counsel for the Applicant, indicated that he wished to call a number of witnesses including Dr. Hadian and Mr. Resa. Mr. Voudouris, counsel for the Insurer, objected to calling these two witnesses because the Applicant had not complied with section 38.2 of the Dispute Resolution Practice Code.
Section 38.2 of the Dispute Resolution Practice Code provides as follows:
If a party intends to call an expert witness to present evidence at a hearing, that party must serve and file a document setting out the following not less than 10 days before the first day of the hearing, or on such terms as the arbitrator considers appropriate:
(a) the name and qualifications of the expert witness;
(b) the subject matter of the testimony to be presented; and
(c) the substance of the facts and opinion to which the witness will present.
[emphasis in original]
At the time of the pre-hearing discussion in this case, the rule of practice provided that similar information be filed not less than seven days before the hearing. At the hearing, I ruled that the evidence of Dr. Hadian and Mr. Resa was expert opinion and was inadmissible because of the Applicant's failure to comply with the Practice Code.
I gave brief reasons at the time of the ruling which I expand upon now.
There were two pre-hearing discussions in this matter. At the first meeting on April 24, 1995, the parties agreed to the exchange of certain documents. After the pre-hearing discussion, the arbitrator who conducted the meeting wrote to the parties and their counsel in a letter dated May 1, 1995, as follows:
It is the policy of the Ontario Insurance Commission that the parties must disclose to each other the names of the witnesses they intend to call to testify at least seven (7) days before the hearing.
Under the Dispute Resolution Practice Code, a party who intends to call an expert witness to testify at the hearing must notify the other party and the Registrar's Office of the substance of the expert testimony no later than seven (7) days before the hearing.
At the request of counsel for the Insurer, a teleconference took place on September 14, 1995 to deal with further production requests and outstanding productions. Mr. Cuddy did not indicate at either pre-hearing conference or at any time prior to the hearing that he intended to call Dr. Hadian and Mr. Resa as witnesses.
Mr. Cuddy submitted that Dr. Hadian's testimony was necessary to identify his clinical notes and records, give evidence that he was Mr. Bigdeli's family doctor and give his diagnosis and prognosis. Mr. Cuddy submitted that Mr. Resa would testify as to the activities involved in operating a pizza store and testify that the profits of a pizza store are not apparent in the first year of operation.
Mr. Cuddy agreed that it was not necessary for Dr. Hadian to identify his records or give his diagnosis since it was in the records. I invited further submissions, but heard no submissions as to what Dr. Hadian's prognosis was. I heard no particulars of the substance of the facts and opinion to which Dr. Hadian would present. In the absence of any information on what Dr. Hadian might say, I was unable to determine whether Dr. Hadian's evidence was relevant or whether it added anything to the evidence to be given by Dr. Kachooie and Dr. Daei. I was unable to determine whether the Insurer would be prejudiced by the Applicant's failure to comply with the notice provisions set out in section 38.2, and whether any prejudice could be rectified. I ruled that Dr. Hadian would not be allowed to testify.
I was not satisfied that Mr. Resa's testimony was necessary to explain the activities of a pizza store when Mr. Bigdeli could provide that testimony. Mr. Resa's testimony that the profits of a pizza store are not apparent in the first year of operation is not relevant to Mr. Bigdeli's case as it could not help his case if it was true. If the evidence was true, it would tend to establish that the amount of any weekly income benefit to which Mr. Bigdeli was entitled would be the mimimum amount prescribed by the Schedule. I ruled that Mr. Resa would not be allowed to testify.
Background:
Mr. Bigdeli was born in Iran on November 5, 1963. In 1985 he graduated from a military university with a degree in military science. He came to Canada in 1990 and successfully claimed refugee status.
Prior to the accident, Mr. Bigdeli exercised regularly by jogging and lifting weights at a gym.
After the accident, Mr. Bigdeli was treated by Dr. Hadian, his family doctor, by Dr. Kachooie, a physiatrist, and by Dr. Daei, a psychologist. The Insurer arranged for Mr. Bigdeli to be seen by Dr. Patcai, a physiatrist, Dr. Ridgley, a psychologist, and Dr. Rosenbluth, a psychiatrist.
Applicable Law:
Section 12 of the Schedule provides:
12.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).
The Schedule does not compensate for pain resulting from the accident unless the insured is substantially unable to perform his essential tasks because of the pain.2
Essential Tasks of Employment:
Mr. Bigdeli owned and operated a take-out pizza business. He said that he opened the premises between 9:00 a.m. and 10:00 a.m. and that he closed the store between midnight and 1:00 a.m., seven days a week. He had employees he could call on from time to time. Some worked on an hourly basis when he was busy in the store and others delivered pizzas and were paid for each delivery. Mr. Bigdeli described the more physically demanding aspects of his work. He made dough by pouring 25 pounds of water and 40 to 50 pounds of flour into a dough mixer. After 15 minutes of mixing, the dough was removed by two people and put onto a table where it was cut into small pieces and pressed into round shapes. When the time came to make pizza pies, Mr. Bigdeli took the round pieces of dough and pressed and stretched them into shape. He said this was the hardest part of the job. Once every two or three days he grated cheese by pressing three or four pound blocks through a grinder. He said that all aspects of this work had to be done quickly in order to be productive. This work strained the arms, shoulders and fingers. The work was also physically demanding because of the long hours he worked.
Pre-accident Condition:
I heard a great deal of conflicting evidence on whether Mr. Bigdeli was tortured in Iran. The Insurer introduced immigration documents to prove that Mr. Bigdeli was tortured and argued in the alternative that if Mr. Bigdeli is disabled, his present complaints are due to that torture. In his evidence, Mr. Bigdeli minimized the effects of any abuse he suffered in Iran.
In view of my decision that Mr. Bigdeli is not substantially disabled from performing the essential tasks of his employment, I do not have to consider the Insurer's alternative argument that any disability was due to pre-existing health problems. However, the medical witnesses were questioned at the hearing on the basis that Mr. Bigdeli underwent some abuse in Iran and I have considered their evidence in light of the answers they gave to those questions. I therefore summarize what Mr. Bigdeli said about the treatment he received in Iran.
He said that he was blindfolded, slapped, detained and underwent a mock execution in Iran. He said that everyone goes through the same thing and that his immigration lawyer put his own impression on the file. Mr. Bigdeli did not advance his claim for accident benefits on the basis that he was psychologically vulnerable to injury on account of his experiences in Iran. He said that he was very healthy before the motor vehicle accident.
Hospital:
Following the motor vehicle accident, Mr. Bigdeli was taken to hospital by ambulance. The ambulance attendant recorded that he was alert and conscious at the scene. He recorded that Mr. Bigdeli said that he had lost consciousness for ten seconds. The hospital emergency department records indicate that Mr. Bigdeli was alert and orientated and that he denied losing consciousness. Mr. Bigdeli explained that he said this at the hospital because he was anxious to get back to his store. He also said that he did not return to the store for one week. The hospital records indicate that Mr. Bigdeli was registered at 11:21 p.m. and discharged at 2:15 a.m. with a diagnosis of soft tissue injuries.
Return to work:
Mr. Bigdeli said that for the first month following the accident he could not move due to pain. Later he said that he returned to the store, one week after the accident but only to meet with customers who had replied to his advertisement to sell the store. Later he admitted that he returned to the pizza store to check on sales and staff but only for a few hours a day. When asked in cross-examination whether he worked four hours a day at the store, he replied "maybe." When asked whether he worked ten hours, he said he did not remember. When asked whether he took orders, he replied "maybe". When asked whether he served customers, he replied "could be". When shown surveillance videotape and asked whether that was him, he replied "could be". When the videotape showed Mr. Bigdeli putting toppings on pizzas and serving customers, Mr. Bigdeli answered that putting toppings on pizzas is one-tenth of pizza making.
The investigation report commissioned by the Insurer indicates that surveillance was conducted on October 12, 13 and 14, 1993 and that Mr. Bigdeli worked a full day and night on the 12th and 14th and a full night on the 13th. The video is focused on three windows measuring approximately eight feet square. The store consists of a room in front where the pizzas are prepared and the customers are served, and another room in back. The food preparation counter faces the window and is slightly below waist level. Mr. Bigdeli is seen putting toppings on the pizza with both hands and serving customers. At most times he is the only employee in the store. At times there is another employee who appears to be the driver. Mr. Bigdeli is seen bending over at the waist to retrieve something from below the counter and reaching above his shoulders to retrieve something. He looks down for prolonged periods while preparing the pizza. He walks quickly and quickly turns his head to the left to talk to a customer. He also cradles one telephone between his right shoulder and head while holding another telephone in his left hand.
Medical Evidence:
Mr. Bigdeli said that for about one year he experienced pain in his ribs and back. He said that his shoulder still bothers him when he does weight lifting. His most serious problem has been headaches. For the first year after the accident he had headaches daily. For the second year he had headaches two times per week. At present, he gets headaches about once a week.
Mr. Bigdeli jogged regularly before the motor vehicle accident. He testified that he no longer jogs because of the injuries he sustained in the accident. Dr. Haight operated on Mr. Bigdeli's nose before the accident to ease a breathing problem. On January 17, 1995, Dr. Haight wrote to Dr. Hadian that Mr. Bigdeli had noted in the past year or so that his breathing through his nose is a problem when he jogs. When asked to explain why Dr. Haight might make such a comment when Mr. Bigdeli denied that he jogged, Mr. Bigdeli replied 'I answered you properly."
Mr. Bigdeli saw his family doctor, Dr. Hadian, on August 25, 1993, the day after the motor vehicle accident. The Insurer introduced Dr. Hadian's notes and records. The notes and records are largely illegible to me and were not referred to by Mr. Cuddy. Mr. Bigdeli did not dispute the Insurer's assertion that the last reference to the motor vehicle accident in Dr. Hadian's notes and records was December 28, 1993, when he complained of left shoulder pain.
Dr. Hadian referred Mr. Bigdeli to Dr. Kachooie, a specialist in physical medicine and rehabilitation, on November 24, 1993. Dr. Kachooie diagnosed a closed head injury and whiplash with a pinched nerve in the neck. Dr. Kachooie testified that when he saw Mr. Bigdeli in November 1993, Mr. Bigdeli was totally physically and emotionally disabled and could not return to work because of his injury.
Dr. Kachooie saw Mr. Bigdeli on three other occasions up to January 31, 1995. In January 1995, he found that Mr. Bigdeli had dramatically improved and was capable of light duty at a flexible job. Dr. Kachooie found Mr. Bigdeli's history unremarkable. Although the two communicated in Farsi, Dr. Kachooie did not ask Mr. Bigdeli about his experiences in Iran. He said he does not talk to his patients about torture because it is a waste of time and because it is stressful to both them and him. Upon being informed that Mr. Bigdeli said that he was blindfolded, slapped, detained and underwent a mock execution in Iran, Dr. Kachooie was adamant that a history of torture was irrelevant to his findings. Dr. Kachooie said that these events cause stress and not pain.
Dr. Kachooie also said that Mr. Bigdeli's ability to work on October 12, 13 and 14, 1993 did not change his opinion that he was totally physically and emotionally disabled. On viewing the surveillance videotape, Dr. Kachooie admitted that Mr. Bigdeli's movements were not too restricted, although he thought that Mr. Bigdeli turned his entire body to talk to a customer to avoid turning his neck and he thought Mr. Bigdeli might have cradled the telephone between his head and right shoulder to relieve pain on the left side of his neck. Dr. Kachooie said that he would not change his opinion that Mr. Bigdeli was totally disabled unless it was demonstrated to him that Mr. Bigdeli could work for a full month.
Dr. Kachooie referred Mr. Bigdeli to Dr. Daei, a psychologist. Dr. Daei treated Mr. Bigdeli for severe psychological depression. Mr. Bigdeli denied any psychological and emotional difficulties before the accident. Dr. Daei was unaware that Mr. Bigdeli underwent abuse in Iran, that he had been treated by a psychiatrist for difficulties adjusting to Canada, and that he returned to work one week after the accident.
The Insurer arranged for three doctors to examine Mr. Bigdeli.
On November 21, 1994, Dr. Patcai, a physiatrist, examined Mr. Bigdeli. He found no physical evidence of a pinched nerve in the neck, or any evidence that Mr. Bigdeli could not work 14- hour days, seven days a week. Dr. Patcai found that Mr. Bigdeli had some limitation of movement and that he was not using his left arm. In his reporting letter to the Insurer, Dr. Patcai recommended surveillance in order to determine if Mr. Bigdeli's actual level of activity was higher than that claimed.
Dr. Ridgley, a psychologist, attempted to examine Mr. Bigdeli on December 9, 1994. Dr. Ridgley found Mr. Bigdeli uncooperative. Mr. Bigdeli refused to respond to some questions and was unwilling to undergo further testing. Dr. Ridgley found Mr. Bigdeli to be "defensive, vague and irritated." Mr. Bigdeli told Dr. Ridgley that his questions were annoying him. When
Dr. Ridgley asked for further detail, Mr. Bigdeli replied with annoyance with answers like "I already told you that." Dr. Ridgley was unable to obtain enough information to make a psychological diagnosis.
The Insurer arranged for Mr. Bigdeli to see Dr. Rosenbluth, a psychiatrist, on October 12, 1995. Dr. Rosenbluth concluded that Mr. Bigdeli was an unreliable historian because of contradictions, evasive responses and false reporting. It was therefore not clear to him whether Mr. Bigdeli suffered from any psychiatric disorder. He found no evidence of any significant disabling psychiatric syndrome.
Analysis:
Mr. Bigdeli was not a believable witness. He was vague, evasive and in cross-examination often answered questions with questions. He was defensive and at times angry. At times he took a position which was inconsistent with other evidence and when he was confronted with the inconsistency, he either denied there was an inconsistency or changed his position. When his new position was attacked as being inconsistent, he changed his position again. Mr. Bigdeli was capable of giving consistent evidence. He did testify as to the essential tasks of operating a pizza store and that evidence was clear, consistent and credible.
Mr. Bigdeli continually changed his position when questioned on how much work he did after the motor vehicle accident. He originally denied that he worked in the pizza store at all after the accident. As he was confronted with more evidence and questions which contradicted this position, he gradually changed his testimony to coincide with the new evidence until he admitted that he worked making pizzas and serving customers. As well, I find he gradually exaggerated his injury to the different experts who examined him. He told the ambulance attendant that he was unconscious for ten seconds. At the hospital emergency department he denied losing consciousness. He told Dr. Kachooie that he was unconscious for about one-half hour. Although the emergency department records indicate that he was discharged at 2:15 a.m., he told Dr. Kachooie that he was kept in hospital overnight. He told Dr. Patcai that he lost consciousness for an hour or more and he told Dr. Rosenbluth that he was unconscious for several hours.
I do not accept Mr. Bigdeli's testimony that he could not perform the essential tasks of his employment after October 11, 1993.
I place little weight on Dr. Kachooie's opinion in this matter. At the hearing Dr. Kachooie was told that Mr. Bigdeli was blindfolded, slapped, detained and underwent a mock execution in Iran. Dr. Rosenbluth is a psychiatrist and has worked with a number of victims of torture at the Canadian Centre for Victims of Torture. I accept his opinion that it is not unusual for a victim of torture to be psychologically vulnerable to further injury. Although Dr. Kachooie had no information to assess the extent of the abuse Mr. Bigdeli underwent, he dismissed torture as irrelevant to his complaints of headaches, anxiety and depression. Without knowing the extent of abuse Mr. Bigdeli underwent, Dr. Kachooie demonstrated partiality by dismissing torture as irrelevant to Mr. Bigdeli's complaints.
As well, Dr. Kachooie said that Mr. Bigdeli was totally physically and emotionally disabled when he first saw him in November 1993. Even if I accept Dr. Kachooie's testimony that the videotape demonstrated that Mr. Bigdeli turned his whole body to avoid turning his neck and that he cradled the telephone between his right shoulder and head to relieve stress on the left side of his neck, in my view, the videotape falls far short in demonstrating total physical and emotional disability. However, when questioned about the videotape evidence, Dr. Kachooie refused to reassess his opinion that Mr. Bigdeli was totally physically and emotionally disabled. Dr. Kachooie again demonstrated a lack of impartiality.
Dr. Daei was unaware of Mr. Bigdeli's history and psychological treatment. Without knowledge of this history, Dr. Daei's opinion that Mr. Bigdeli suffered psychological depression because of the motor vehicle accident is of little value.
I place little weight on the evidence of Dr. Patcai. By recommending surveillance, I find Dr. Patcai went beyond his duty to report his physical findings and opinion. In my opinion he demonstrated an interest in assisting the Insurer.
Dr. Ridgley did not have enough information to make a psychological diagnosis and Dr. Rosenbluth found no evidence of any significant disabling psychiatric condition.
The medical evidence does not help Mr. Bigdeli establish his claim that he was substantially unable to perform the essential tasks of his employment after October 11, 1993.
I am not satisfied that Mr. Bigdeli suffered a substantial inability to perform the essential tasks of his employment after October 11, 1993.
Amount of weekly benefit:
In general, a person who suffers a substantial inability to perform the essential tasks of his or her employment is entitled to a weekly benefit of 80 per cent of his or her gross weekly income to a maximum of $600 per week.
Under section 12(7) of the Schedule, the following rules apply to the calculation of gross weekly income:
- A person's gross weekly income shall be deemed to be the greatest of,
i. his or her average gross weekly income from his or her occupation or employment for the four weeks preceding the accident,
ii. his or her average gross weekly income from his or her occupation or employment for the fifty-two weeks preceding the accident,
iii. $232.
. . .
Business expenses which cease as a result of the accident shall be deducted from a person's income from self-employment before calculating his or her gross weekly income.
In the present case, it was not clear whether the claim was based on Mr. Bigdeli's income in the four weeks before the accident or the 52 weeks. Mr. Bigdeli abandoned his leased property and if it could be said that his business expenses ceased as a result of the accident, it appears that all his business expenses would have ceased. In this case, his "gross weekly income" less all his business expenses amounts to what can be referred to as his net income.
Mr. Bigdeli said that he made $2 per hour in the summer. I assume he was referring to his net income. If he worked 100 hours per week in the four weeks before the accident, his "gross weekly income" would be $200 per week. This is less than the minimum of $232 specified in section 12(7) of the Schedule. Accordingly, even if I were to accept Mr. Bigdeli's evidence, he has not established that he is entitled to more than the minimum weekly benefit based on his gross weekly income for the four weeks preceding the accident.
In MichaelMcNamara and Zurich Insurance Company, April 26, 1994, OIC File No. A-000881 (under appeal), Arbitrator Makepeace said:
While it is not necessary in every case for the Applicant to produce source documents or third-party documents in support of his claim, the unexplained gaps and discrepancies in the accounting evidence presented by the Applicant in this case are troublesome. I recognize that a self-employed owner of a small business may not enjoy the accounting expertise to which a large company has access. However, it is not unreasonable to require self-employed applicants to put forward a coherent account of their financial affairs, supported by evidence of sufficient quantity and quality. The onus of proof rests on the Applicant.
. . . In the absence of reliable evidence of pre- and post-accident income, the minimum benefit of $185.60 per week is a fair and reasonable benefit.
I agree with these comments. In the present case I found unexplained gaps and discrepancies in Mr. Bigdeli's evidence of his business income in the 52 weeks preceding the accident.
Larry Silverberg, a chartered accountant, testified that he visited Mr. Bigdeli at his store about four times before the accident. After the accident he prepared an interim statement of income for the period February 1, 1993 to July 31, 1993. He also prepared a statement of income for the month of September 1993. Mr. Bigdeli said that the landlord removed all his business records and that he went to his food supplier to try to recreate his business records from copies of suppliers' invoices. Mr. Silverberg said that he used cancelled cheques and what Mr. Bigdeli told him to create the statement of income. He said that he had no reason either to doubt or to accept Mr. Bigdeli's figures. He said he did not recall looking at supplier invoices. No cancelled cheques were submitted at the hearing. A number of supplier invoices for food were submitted. However, those invoices do not correspond with the figures in the statement of incomes. The cost of food on the financial statement for the six month pre- accident period ending July 31, 1993 is $24,678. The invoices for food delivered up to July 31, 1993 total approximately $6,300. I heard no explanation for this discrepancy. The cost of food on the financial statement for the post-accident month of September 1993 is $1,416. Two invoices for food delivered in September 1993 total $1,818.68. Again, I heard no evidence to explain the discrepancy.
I heard no explanation why Mr. Bigdeli gave cancelled cheques to his accountant and submitted copies of suppliers' invoices at this hearing.
Mr. Bigdeli claims that his business was successful, however in a letter he sent to his landlord in June 1993, he asked for a rent reduction because he is "not able to pay the full amount of rent because of the tough economical situation of the business." At the hearing, Mr. Bigdeli explained that this was a ploy suggested by his friends to save money. I heard no credible evidence that Mr. Bigdeli's business generated gross weekly income greater than $232. In my view the statement he expressed in the June 1993 letter to his landlord is probably true. I am not satisfied that Mr. Bigdeli's average gross weekly income in the 52 weeks prior to the motor vehicle accident was greater than $232. Accordingly, his weekly income benefit was correctly calculated as $185.60.
Supplementary medical and rehabilitation benefits:
I heard no evidence concerning Mr. Bigdeli's claim for a one-year membership at the YMCA or concerning housekeeping expenses of approximately $100. I therefore make no award for such benefits.
Under section 6 of the Schedule an Insurer is liable to pay section 6 benefits to a maximum of $500,000 for a period of ten years upon proper proof of entitlement.
Repayment:
Under section 27(1) of the Schedule an insurer is entitled to a repayment where it establishes that benefits were paid on account of error or fraud. I heard no evidence of error or fraud on the part of Mr. Bigdeli with respect to the weekly income benefits that were paid to him up to October 11, 1993. I therefore make no award for repayment.
Expenses:
Under section 282(11) of the Insurance Act an arbitrator has jurisdiction to award the insured such expenses of the arbitration proceeding as may be prescribed by regulation. I am not exercising my discretion in favour of Mr. Bigdeli because he made no effort to tell the truth in these proceedings. He said what he thought would best serve his interests, regardless of whether it was true. He took the position that he could not work after the accident on account of his injuries. As he was confronted with evidence and allegations that he did more work than he was willing to admit, he grudgingly admitted that the evidence or allegation was true and formulated a new position based on that admission. He refused to concede many matters that were contrary to his interests, even when the concession was clearly warranted, by giving answers such as "maybe" or "could be."
Order:
Mr. Bigdeli is not entitled to weekly income benefits pursuant to section 12 of the Schedule after October 11, 1993.
Mr. Bigdeli is not entitled to supplementary medical and rehabilitation benefits pursuant to section 6 of the Schedule for a one-year membership at the YMCA and housekeeping expenses of approximately $100.
The Insurer is not entitled to a repayment pursuant to section 27 of the Schedule.
Mr. Bigdeli is not entitled to his expenses incurred in respect of the arbitration.
February 14, 1996
William J. Renahan Arbitrator
Date
Footnotes
- Prior 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.
- Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064; Lillian Baldassarra and Wellington Insurance Company, March 13, 1995, OIC File No. A-005088.