Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 34

Appeal P-004660

OFFICE OF THE DIRECTOR OF ARBITRATIONS

RUSTOM TAGIRAN

Appellant

and

SIMCOE & ERIE GENERAL INSURANCE COMPANY

Respondent

Before:

Susan Naylor, Director’s Delegate

Counsel:

Rustom Tagiran (in person)

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 arbitration order dated August 15, 1994 is confirmed.
The Respondent’s claim for an assessment against Mr. Tagiran is denied.
Mr. Tagiran is not entitled to his appeal expenses.

February 26, 1996

Susan Naylor

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE PROCEEDINGS

Rustom Tagiran was involved in an automobile accident on August 30, 1992. He received weekly income benefits and other benefits under his automobile policy. Simcoe & Erie General Insurance Company (Simcoe & Erie) paid weekly income benefits at the minimum rate of $185.60 until December 28, 1992. Mr. Tagiran claimed that his benefits should be paid for a longer period, and at a higher amount. After a two-day arbitration hearing, the arbitrator found that Mr. Tagiran was not entitled to any additional benefits. She held that Mr.Tagiran had failed to meet the test for eligibility for weekly income benefits. This required a finding that Mr. Tagiran suffered a substantial inability to perform the essential tasks of his job as a taxi driver as a result of injuries sustained in the accident.¹ She declined to award Mr. Tagiran his arbitration expenses.

Mr. Tagiran appealed the arbitrator’s order on the basis that she ignored and/or did not weigh fairly all the evidence. He sought to introduce new evidence, call additional witnesses, and have a re-hearing before another arbitrator.

In a letter dated June 7, 1995, the Director of Arbitrations refused to permit Mr. Tagiran to introduce additional oral and documentary evidence on the appeal. She ordered that the appeal proceed on the record, without further evidence or oral submissions.

Mr. Tagiran was represented by counsel at the arbitration stage. He represented himself on appeal. The appeal proceeded on the basis of the Notice of Appeal and the Response, the arbitration exhibits, the arbitrator’s decision and the transcript of the hearing. Counsel for Simcoe & Erie filed written submissions but Mr. Tagiran did not. In his Notice of Appeal, Mr. Tagiran checked off the boxes marked “care benefits” and “lump sum award”. Simcoe & Erie objected to Mr. Tagiran’s right to include these issues in the appeal, because they were not part of the arbitration. My jurisdiction on appeal is set out in section 283 of the Insurance Act. It is limited to the benefits that were in issue before the arbitrator. Mr. Tagiran did not claim care benefits at the arbitration, and therefore, may not do so on appeal.

A lump sum award, or “special award”, is in a different category. Subsection 282(10) of the Insurance Act directs an arbitrator to award a lump sum to an insured, where the arbitrator finds that the insurer has unreasonably withheld or delayed payments. The amount of the award, up to a prescribed maximum, is within the arbitrator’s discretion. It has been held that an arbitrator may make a special award even though it was not claimed at the outset of the proceeding or identified as an issue at the pre-hearing discussion, provided that the parties are given notice that a potential order is under consideration, and a fair opportunity to address it.²

Subsection 283(7) of the Insurance Act makes subsection 282(10) applicable on an appeal. It confers a discrete authority on an appeals adjudicator to make a special award in his or her own right. Therefore, the adjudicator may consider making a special award even though it was not a subject at arbitration. This may be at the request of the insured or at the adjudicator’s own initiative, provided always that the requirements of procedural fairness have been met. For this reason, I am prepared to consider Mr. Tagiran’s claim for a special award.

II. WEEKLY INCOME BENEFITS - ENTITLEMENT

Mr. Tagiran was driving his taxicab at the time of the accident. He developed pain in his low and mid back and his neck, and was diagnosed early on as suffering from a musculoskeletal strain of the cervical, thoracic and lumbar spine. Since then, he has complained about chronic low back pain and other, less troubling, pain in his neck and chest.

In May, 1993, tests showed that Mr. Tagiran had a central herniated disc at the L5, S1 level of his lumbar spine. He believes that the herniated disc is the source of his back pain, and that it was caused by the accident. Mr. Tagiran claims that his medical condition precludes him from returning to work as a taxicab driver. His family doctor, Dr. Teow, supports his claim. Mr. Tagiran claims that the arbitrator erred in failing to accept his evidence and that of Dr. Teow.

The medical evidence before the arbitrator shows that Mr. Tagiran had experienced low back pain for seven years before the accident, and had been diagnosed by two rheumatologists as suffering from ankylosing spondylitis, an arthritis of the sacroiliac joint. He also had a history of pain in the area of his cervical spine and chest. The arbitrator did not accept that the disc herniation was caused by the accident or, if it was, that it was the source of Mr. Tagiran’s back pain. She attributed Mr. Tagiran’s back pain to his pre-existing condition and did not accept that he was unable to work as a taxidriver.

The arbitrator based her findings on her evaluation of the weight of the medical evidence and on her assessment of the credibility of Mr. Tagiran’s testimony. The arbitrator found that the weight of the medical evidence did not support Mr. Tagiran’s claim. She preferred the opinions of the specialists about the cause and significance of Mr. Tagiran’s back pain to that of Dr. Teow, a general practitioner. Specifically, the arbitrator accepted the opinions of the two neurologists, Dr. Lambert and Dr. Moddel, that Mr. Tagiran’s disc herniation would not require surgery, over Dr. Teow’s view to the contrary. The arbitrator accepted the opinion of Dr. Moddel, the insurer-appointed neurologist, that the disc herniation was not caused by the accident, because there was no acute onset of pain at that time and that it was not the source of Mr. Tagiran’s back pain because of the absence of neurological signs and symptoms.

The arbitrator noted that, of ten medical reports filed, only Dr. Teow’s report concluded that Mr. Tagiran was disabled from work. In her view, the strength of Dr. Teow’s report was diminished because he was not aware of Mr. Tagiran’s history of low back pain or of the diagnosis of ankylosing spondylitis. Moreover, while he found that Mr. Tagiran should not engage in lifting or excessive bending, he did not relate these restrictions to Mr. Tagiran’s work requirements.

The arbitrator also held that she could not rely upon Mr. Tagiran’s own testimony about his injuries and their effect on his ability to work. In particular:

(a) he did not tell any of his doctors or his therapists after the accident about his prior, long-standing, back problems;

(b) he was untruthful about not having worked since the accident;

(c) his evidence as to his pre-accident income was untrustworthy, casting further doubt on the reliability of his evidence overall.

Prior appeal decisions have established that it is not my role on appeal to re-evaluate the evidence before the arbitrator and substitute my own view of the weight to be attributed to it. The arbitrator has the benefit of observing and hearing the witnesses in person, of assessing the credibility of their testimony, and of viewing the medical reports in the context of the evidence as a whole. Because of this advantage, the arbitrator’s findings of fact should not be interfered with unless he or she has ignored material evidence or arrived at unsupported conclusions.

There was ample evidence to justify the arbitrator’s reluctance to place weight upon Mr. Tagiran’s testimony and documentation. The arbitration record showed that the professionals who were not informed about his medical history included his own family doctor, Dr. Teow, Dr. Tountas, an orthopaedic specialist, Dr. Michael Hall, the insurer’s orthopaedic specialist, Dr. Colin Lambert, a neurologist, and therapists at four rehabilitation centres.

In assessing the credibility of Mr. Tagiran’s testimony as a whole, the arbitrator took into account inconsistencies and contradictions in the documents and testimony he presented about his pre-accident earnings. There is ample evidence to support the arbitrator’s inferences in this regard.

In concluding that Mr. Tagiran was untruthful about his employment situation, the arbitrator preferred the testimony of Nabil Dabagh, a fleet cab operator, to that of Mr. Tagiran. Where there is conflicting testimony, the arbitrator must assess its reliability, and may accept the evidence of one witness over another as more credible. The arbitrator was entitled to exercise her judgement in this regard and did so appropriately in this case.

The arbitrator considered the medical opinions before her. In evaluating them, she properly took into account such factors as the reliability of the information upon which they were based and the relative expertise of the professionals involved. There is no basis to interfere with her findings. Therefore, Mr. Tagiran’s appeal concerning the duration of his benefits fails.

III. THE AMOUNT OF BENEFITS

Mr. Tagiran also appealed the arbitrator’s order that limited his entitlement to the minimum amount of weekly income benefits. The arbitrator was not satisfied that his gross weekly income for the four weeks before the accident was more than $232, the deemed minimum amount.

The arbitrator found that the documents presented to substantiate Mr. Tagiran’s earnings were self-generated, contradictory, inconsistent and incomplete. Examples included:

(a) two markedly divergent income statements and draft tax returns for the same period, apparently based upon information supplied by Mr. Tagiran from his memory;

(b) discrepancies between the income statements and Mr. Tagiran’s run sheets;

(d) incomplete and sporadic run sheets for the four weeks before the accident.

The cumulative deficiencies in the documentary evidence combined with the arbitrator’s adverse findings on credibility proved fatal to Mr. Tagiran’s claim. It is for a claimant to prove his or her earnings, with credible evidence. The arbitrator found neither Mr. Tagiran’s testimony nor his documents to be credible. There was abundant evidence to support the arbitrator’s findings.

Mr. Tagiran requested a new hearing before an adjudicator who would conduct the hearing “firsthand and without bias”. I infer from this that he was somehow dissatisfied with the hearing he received. I reviewed the arbitration record and find any such concerns without foundation. Mr. Tagiran’s real complaint is that the arbitrator came to a conclusion he did not agree with, not that the arbitrator conducted an improper hearing, ignored important evidence or arrived at an unsupported conclusion. Therefore, Mr. Tagiran’s request for a new hearing is denied.

There is no basis upon which to make a special award under subsection 282(10) of the Insurance Act, as applied by subsection 283(7). Mr. Tagiran did not advance any grounds for a special award; moreover, I have found that he is not owed any additional benefits.

IV. EXPENSES

Mr. Tagiran appealed the arbitrator’s order denying him his arbitration expenses. The arbitrator refused to award expenses because Mr. Tagiran had given false testimony.

An order for expenses under s. 282(11) of the Insurance Act is in the discretion of the arbitrator. The arbitrator’s decision will only be disturbed on appeal where there are compelling reasons for doing so. The role of an appeals adjudicator is to determine whether the arbitrator exercised his or her discretion in a reasonable manner, considered appropriate principles, and took into account relevant details while disregarding irrelevant particulars.

I am satisfied that the arbitrator exercised her discretion appropriately in this case, and see no reason to interfere with it.

I decline to award Mr. Tagiran his appeal expenses. In appeal cases,³ expenses have been denied where the appellant’s dissatisfaction with the result forms the only basis for the appeal. There is no reason to order otherwise in this case.

Counsel for Simcoe & Erie requested an award against Mr. Tagiran under the provisions of subsection 282(11.2) of the Insurance Act, as applied to appeal proceedings by subsection 283(7). This requires my finding that the appeal was not merely unsuccessful but was frivolous, vexatious or an abuse of process. Mr. Tagiran’s appeal was misguided and, in its unfounded suggestion of bias, inappropriate. However, in all the circumstances, it does not warrant an award under ss. 282(11.2).