Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 27

Appeal P-003973

OFFICE OF THE DIRECTOR OF ARBITRATIONS

DHIA Q. HASAN

Appellant

and

SIMCOE & ERIE GENERAL INSURANCE COMPANY

Respondent

Before:

S. Naylor, Director's Delegate

Representatives:

Dhia Hasan (representing himself) Ralph D'Angelo (for the Respondent)

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 order dated May 9, 1994 is confirmed.
Mr. Hasan is not entitled to his appeal expenses.
Mr. Hasan is not liable to pay an award under s. 282(11.2) of the Insurance Act, as applied by s. 283(7).

February 15, 1996

S. Naylor Director's Delegate

Date

REASONS FOR DECISION

I. INTRODUCTION

Dhia Q. Hasan was involved in an automobile accident on August 30, 1992. He received weekly income benefits until February 8, 1993, when his benefits were terminated. Mr. Hasan disputed the termination. After a two-day arbitration hearing, the arbitrator ruled that Mr. Hasan was not entitled to further weekly income benefits. In his order of May 9, 1994, the arbitrator also denied Mr. Hasan's claim for a special award under s. 282(10) of the Insurance Act. The arbitrator granted Mr. Hasan his expenses in respect of the arbitration.

Mr. Hasan appealed the arbitrator's order denying him weekly income benefits. His Notice of Appeal also raised a new issue concerning his entitlement to supplementary medical and rehabilitation benefits. In a letter dated August 9, 1994, the Director of Arbitrations excluded this new issue from the appeal, because it was not raised in the arbitration. The Director of Arbitrations refused to stay the arbitration order, pending the appeal. She determined that the appeal would be dealt with on the record, without the need for oral submissions.

Mr. Hasan was represented by counsel at the arbitration stage. He represented himself on appeal. The appeal proceeded on the basis of written materials: the documents filed by the parties on the appeal, the arbitration exhibits and the arbitrator's decision. Counsel for the Insurer filed written submissions. Mr. Hasan did not file any written submissions.

A transcript of the evidence given at the arbitration hearing was not available. This is a substantial impediment, where, as here, the appellant seeks to challenge the arbitrator's findings about the appellant's credibility.

II. THE APPEAL

The principal issue at arbitration was whether Mr. Hasan met the test for eligibility for weekly income benefits.¹ The arbitrator was not satisfied that Mr. Hasan suffered a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident; his claim was therefore denied.

In Mr. Hasan's opinion, the arbitrator came to the wrong conclusion based on the medical and other evidence. His Notice of Appeal makes reference to the pain he experiences, the duration of his problems and a lack of treatment.

The arbitrator's findings on credibility go to the core of the decision. He did not find Mr. Hasan's testimony credible. He rejected Mr. Hasan's assessment of his own condition as unreliable.

The arbitrator set out the basis of his findings in the decision, including the following:

In his accounts to the doctors and Simcoe & Erie, Mr. Hasan insisted that he had not been involved in any previous accidents. This was untrue. The arbitrator found Mr. Hasan's explanations implausible.
Mr. Hasan tried to avoid going to insurer-arranged medical appointments at Indemed Inc., particularly with Dr. Hall, in order to keep his prior accident from coming to light. The arbitrator did not believe Mr. Hasan's excuses.
Mr. Hasan's testimony was erratic and his recollection patchy; his testimony was not "straightforward and responsive";
Mr. Hasan exaggerated the physical demands of his job and the effect of the accident on his ability to return to work.

In support of his claim, Mr. Hasan relied on the medical reports, except for the report of Dr. Hall. The arbitrator's opinion about Mr. Hasan's credibility affected the weight he was prepared to give to the medical evidence. He held that the opinions of the medical professionals depended heavily upon Mr. Hasan's subjective complaints and history. He concluded that, for this reason, he could not rely upon these reports to any great extent. It is Mr. Hasan's position that the arbitrator erred in not accepting the medical evidence as proof of his disability.

The arbitration exhibits indicate that the doctors who saw Mr. Hasan did not find a clear physical basis for his ongoing problems. The doctors' opinions about the effect of Mr. Hasan's injuries were largely based on Mr. Hasan's representation of his symptoms and history, and his subjective responses on examination. In evaluating the strength of the medical reports, the arbitrator properly considered the reliability of the information on which they rested.

Previous decisions have considered when it is appropriate to intervene on appeal in respect of an arbitrator's findings of fact. As a general principle, findings of fact should not be disturbed unless there is no, or insufficient, evidence to support them. This is especially so in the case of findings of credibility. The arbitrator has the advantage of hearing and seeing the witnesses and is in a position to evaluate the evidence as a whole. The role of the Director, or a delegate on appeal, is a limited one. It is not to substitute his or her own view of the weight to be given to the evidence but to determine whether there is sufficient evidence to support the arbitrator's findings.

The arbitrator clearly set out the basis for his conclusions about Mr. Hasan's credibility. He found that the medical evidence was compromised because it was based to a large extent on Mr. Hasan's own unreliable account. Based on my review of the arbitration record, the arbitrator's findings appear unassailable.

Mr. Hasan pointed to a lack of medical treatment as evidence in support of his claim. The arbitrator specifically dealt with this issue in his reasons. He concluded that Mr. Hasan was not denied therapy recommended by his doctors but chose not to pursue the treatment. The arbitrator was entitled to make this finding, based on his evaluation of the evidence as a whole.

According to the medical evidence, Mr. Hasan's specialists felt that further investigation of his condition was warranted. They recommended a CT scan. For reasons not clear to the arbitrator, the test had not taken place by the time of the hearing. The arbitrator concluded:

In some cases, it might be appropriate to continue paying weekly income benefits until the results of tests are known. Given the many problems with Mr. Hasan's evidence, the time that has passed and the fact that he has not been involved in any treatment for an extended period I am not convinced that this is the case.

In his material, the appellant suggests that he should not have been found ineligible for benefits, before his condition was clarified by a CT scan. However, the arbitrator did not ignore the evidence before him. He considered the medical reports and concluded that Mr. Hasan was not disabled from work as a tailor, based on his view of the evidence as a whole. There is no reason to interfere with the arbitrator's findings or the conclusion he drew. The appeal is therefore denied.

It should be noted, in the event that important, new information about Mr. Hasan's medical condition comes to light through further medical investigation, he is not left without a remedy. Mr. Hasan may apply for a variation of the arbitrator's order under s. 284 of the Insurance Act, in these circumstances.

III. EXPENSES

I am not prepared to award Mr. Hasan his expenses of the appeal. His appeal was based on his disagreement with the weight the arbitrator placed on the evidence. He did not demonstrate any error in the arbitrator's findings. Mr. Hasan did not put forward any convincing reason why he should receive his expenses. In similar instances, appellants have been denied their expenses.²

Simcoe & Erie submitted that Mr. Hasan should have to pay the cost of the insurer's assessment under s. 282 (11.2) of the Insurance Act, as applied by s. 283(7). This requires my finding that the appeal was not merely unsuccessful, but that it was frivolous, vexatious or an abuse of process. While Mr. Hasan's appeal was misguided, I would not characterise it in these terms.