Neutral Citation: 1996 ONICDRG 56

File No.: A-013688

ONTARIO INSURANCE COMMISSION

BETWEEN:

Haileselassie A. Bahita

Applicant

and

GAN Canada Insurance Company

Insurer

DECISION

Issues:

The Applicant, Haileselassie A. Bahita, was injured in a motor vehicle accident on July 27, 1993. He applied for and received weekly income benefits from GAN Insurance Company of Canada ("GAN"), payable under Ontario Regulation 672¹ from August 3, 1993 until January 3, 1994. Mr. Bahita seeks reinstatement of weekly income benefits from January 4, 1994 onwards.

At the commencement of this proceeding, I was advised that issues about expenses resulting from the accident under section 6 of the Schedule and a repayment issue were settled.

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:

1. Is Mr. Bahita entitled to a reinstatement of weekly income benefits from January 4, 1994 onwards on the basis that he is substantially unable to perform the essential tasks of his occupation or employment pursuant to section 12(1) of the Schedule.

2. Is Mr. Bahita entitled to a special award under section 282(10) of the Insurance Act?

The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing. The parties have agreed that interest would not be payable for the period July 6, 1995 to December 4, 1995,² on any amounts found to be owing.

Result:

1. Mr. Bahita is not entitled to weekly income benefits from January 4, 1994 onwards.

2. Mr. Bahita is not entitled to a special award under section 282(10) of the Insurance Act.

3. GAN Canada Insurance Company shall pay Mr. Bahita his expenses in respect to the arbitration pursuant to Schedule 1 of the Dispute Resolution Practice Code .

Hearing:

The hearing was held in North York, Ontario, on December 4, 1995, before me, Fern Kirsch, Arbitrator.

Present at the Hearing:

Applicant:

Haileselassie A. Bahita

Applicant's Representative:

Altor Shields

Barrister and Solicitor

Insurer's Representative:

Larry J. Kielbowich

Barrister and Solicitor

Insurer's Officer:

Trisha Doyle

The proceedings were recorded by Dianna Lem of Professional Court Reports. An Amharic interpreter assisted Mr. Bahita in the proceeding.

Witnesses:

Haileselassie A. Bahita

Exhibits:

16 exhibits were filed in this proceeding

Other Documents before the Arbitrator

Application for Arbitration, February 8, 1995

Response of Insurer, dated March 8, 1995 Mediation

Report, dated December 30, 1994

Pre-hearing letter, dated May 9, 1995

ENTITLEMENT TO BENEFITS:

Background:

Mr. Bahita is 35 years old and arrived in Canada in 1990. Prior to moving to Canada, Mr. Bahita worked in Ethiopia as a payroll clerk performing accounting work. He completed grade 12 in Ethiopia. In Canada Mr. Bahita was initially employed as a kitchen helper for twenty months, and then later as a part-time taxi cab driver. At the time of the accident on July 27, 1993, Mr. Bahita was working as a taxi cab driver.

Law:

GAN paid Mr. Bahita weekly income benefits from August 3, 1993 until January 3, 1994. In this proceeding Mr. Bahita seeks reinstatement of his weekly income benefits from January 4, 1994 onwards.

In order for Mr. Bahita to recover weekly income benefits from January 4, 1994 onwards, he must establish that he sustained physical, psychological or mental injury as a result of the motor vehicle accident, and that as a result of the injury he is substantially unable to perform his essential tasks as a taxi cab driver, under section 12(1) of the Schedule.

GAN submits that no further benefits are owing to Mr. Bahita. It states that he was able to return to work in December 1993.

The Applicant's essential tasks of his occupation or employment:

Mr. Bahita testified that as a taxi cab driver he drove from ten to eleven hours per day, seven days a week, during the night shift hours of 4:00 p.m. until 4:00 a.m. Mr. Bahita stated that while on duty he sat behind the wheel of his taxi, either driving customers to their destinations, or searching for potential customers. Occasionally during his shift, he might stop his taxi at a "post" for about one-half hour at a time, in order to wait for a fare. He testified that he was required to stay in the taxi at all times so he could hear his radio for fares. He testified that he rarely left his taxi except during two one-half hour breaks, which he needed to clear his head, so he could concentrate while driving.

I find that Mr. Bahita's essential tasks prior to the accident, consist of driving a motor vehicle for ten to eleven hours a day, seven days a week.

I must now determine the nature and extent of Mr. Bahita's physical, psychological or mental injury, sustained in the motor vehicle accident.

The Accident: July 27, 1993

Mr. Bahita was driving eastbound on College Street. He was approaching an intersection when another car struck his vehicle causing him to lose control of his car. Mr. Bahita's car hit a pole. Although Mr. Bahita was wearing his seat belt, his left leg and chest hit the inside of his car.

Mr. Bahita was pulled from his car, and taken by ambulance to St Michael's Hospital, where he remained for four to five hours. He stated that at that time his chest, ribs, back and neck were hurting. The ambulance report³ noted that he did not suffer a head injury, lose consciousness or have amnesia. Mr. Bahita was alert and in moderate distress. X-rays were taken at the hospital. Mr. Bahita was then released and advised to see his family doctor for some internal bruising.

Mr. Bahita testified that he returned to the emergency department of St. Michael's Hospital two or three days later vomiting black blood. This is confirmed in the Emergency report from the hospital dated July 30, 1993. A stool test was taken at this time. Mr. Bahita was again advised to see his family physician.

In the months following the accident, Mr. Bahita testified that he attended the office of Dr. Blumenstein, his family doctor every two to four weeks. During these visits he complained of pain in his left leg and in his chest, buzzing and ringing in his ears, and pain in his lower back and in his neck.

Mr. Bahita also stated that he had painful headaches which started at the rear of his head and came forward to the front of his head. He also complained that his sleep patterns had changed, testifying that whereas before the accident he slept between six and seven hours per night, after the accident, his pain caused him to awaken after an hour or two of sleep. This ongoing pain caused Mr. Bahita to be depressed, anxious, and unable to concentrate.

Analysis and Findings:

In order for Mr. Bahita to be entitled to benefits under section 12(1) of the Schedule, I must consider whether he is "substantially" or "sizably" unable to perform his essential tasks as a cab driver as a result of the accident.⁴ The onus is on Mr. Bahita to prove his case on a balance of probabilities.

Mr. Bahita submits that his injuries continue to render him substantially unable to perform his tasks as a taxi cab driver after January 4, 1994. I disagree.

I did not find Mr. Bahita a believable witness. His evidence was often contradictory and unclear. He stated that he continues to experience a number of physical and psychological problems from the car accident, which do not allow him to do his job. I did not find that the evidence supported his position.

Mr. Bahita testified that since the accident he continues to experience pain in his chest, especially when he coughs or sneezes. He stated that the pain is not as bad now as it was immediately after the accident, but he expressed concerns that if he coughed or sneezed he might be distracted while driving, thereby causing him to have another accident.

He testified that he continues to experience pain in his left leg, especially when walking in the winter time but he confirmed that this does not prevent him from driving. Mr. Bahita testified that he tried driving his friend's car in order to simulate driving a taxicab, but he noted that the seatbelt hurt him. He did not make any reference to pain experienced in his left leg or knee during this time. Initially Mr. Bahita testified that he attempted driving his friend's car on only one occasion, but later during cross-examination he testified that since the accident he has driven his friend's car two to three times per month for up to 50 miles at a time. I found this testimony contradictory.

Nevertheless, Mr. Bahita expressed concerns that the pain from the leg would alter his ability to concentrate while driving a taxi cab. In addition, he testified he experiences pain when he bends his knees. I find there was no evidence that this pain interfered with his ability to drive his friend's car.

Mr. Bahita stated that he continues to experience pain in his neck. He stated that initially after the accident he was only able to move his head to the left or right for a few seconds. He stated that he can now turn his head left and right but still has difficulty bending his neck forward. He stated that the pain is less pronounced now than it was just after the accident. He testified that the pain in his neck interferes with his driving a taxi as it causes a severe headache. When his head hurts it distracts him from his driving, which may result in an accident.

I heard little evidence about the frequency or type of the headaches that Mr. Bahita has experienced since January 4, 1994.

Mr. Bahita testified that the buzzing and ringing in his ears with associated pain which he experienced after the accident, occurs only occasionally now, for a few seconds. Nevertheless, he testified that although the ringing and buzzing in his ears does not cause him pain, it continues to cause him to lose concentration. He expressed concerns that this loss of concentration would cause him to have a motor vehicle accident. It was clear from his testimony that Mr. Bahita's main concerns were not his physical injuries, but the fact that any residual pain or discomfort from the injuries might distract him while driving, thereby causing him to have an accident.

Mr. Bahita also stated that he was unable to sleep more than one to two hours at a time, which caused him to be depressed. He stated that if he could not sleep well, he could not drive well.

Mr. Bahita claimed that his personality and the way he feels towards people has changed. This change has caused him to relate to people differently. I heard very little evidence on this point.

Mr. Bahita stated that he is not yet "mentally ready" to drive his cab. He feels he must be free from all physical pains, otherwise any pain will cause him to lose his concentration thereby resulting in an accident.

The medical evidence does not support his belief, nor does the psychological evidence support any form of accident related syndrome.

Mr. Bahita saw three family physicians after the accident. He saw Dr. Ephram on one occasion, and was prescribed Tylenol. Mr. Bahita then went to see Dr. Blumenstein. Dr. Blumenstein also examined him and prescribed ear drops for the pain in his ears, as well as Tylenol.

Dr. Blumenstein referred Mr. Bahita to Dr. B. Hands, an Ear Nose and Throat specialist. Dr. Hands saw Mr. Bahita on September 21, 1993 and December 29, 1993.⁵Dr. Hands released Mr. Bahita to go back to work despite the ringing in his ears, stating that this would not cause him a problem when driving.

Dr. Hands referred Mr. Bahita to Dr. O. Smith, an otolaryngologist who saw Mr. Bahita in February 1994, for sharp pain in his right ear. Dr. O. Smith noted on examination that "his [Mr. Bahita's] head and neck exam is completely within normal limits."⁶

At the request of GAN Dr. L. Mascarenhas, a physiatrist, examined Mr. Bahita on September 29, 1993, and reported that Mr. Bahita's physical examination was "essentially unremarkable from a neurological or orthopaedic perspective. He had full range of motion accompanied by myofascial symptomatology." He did suggest that Mr. Bahita should commence physiotherapy, and stated that he felt that "this gentleman is capable of working once he receives appropriate therapy."⁷

On the recommendation of Dr. Blumentstein, Mr. Bahita commenced physiotherapy at Active Physiotherapy Rehabilitation Group-College Street Physiotherapy Centre ( "College Physiotherapy"), which he attended from October 1993 until November or December 1993. The final reporting form of College Physiotherapy notes that "Mr. Bahita has made good progress and is capable of returning to his former work."⁸

He was discharged from physiotherapy at this time.

After Mr. Bahita finished his physiotherapy, he reatttended at Dr. Blumenstein's office and asked to see another specialist. Dr. Blumenstein did not recommend further treatment and advised him to go back to work. College Physiotherapy also released him back to work in or about November or December 1993.

Mr. Bahita stated that he switched family doctors and started seeing Dr. Chaudhri about two years ago.⁹ This would have been about the time that Mr. Bahita completed his physiotherapy with College Physiotherapy, when Dr. Blumenstein had released him to start working again. Mr. Bahita gave no reason for the change of doctors. It appears from the timing that he may have changed family doctors due to Dr. Blumenstein's opinion that he could work.

Mr. Bahita confirmed that after he completed his physiotherapy he did not take any further treatment for the next 4 to 5 months.

Mr. Bahita testified that he subsequently started seeing Dr. Shahidi, a chiropractor, in March or April of 1994¹⁰ on his own volition. Dr. Shahidi appears to have provided Mr. Bahita with chiropractic adjustments.

In turn, Dr. Shahidi referred Mr. Bahita for further physiotherapy to Target Rehabilitation ("Target") in order to improve his physical conditioning. Mr. Bahita commenced this program on July 1994, and completed it October 18, 1994. Target noted in its report of July 7, 1994, that Mr. Bahita had "slight neck pain with flexion, extension, rotation, lateral flexion or lying in the prone position... ." It also noted "tenderness in the neck shoulder girdle, lumbar spine... no knee effusion...tenderness in the patella."¹¹ Target recommended neck and back stretching and strengthening exercises and general muscle toning. Accordingly, Mr. Bahita attended an exercise/conditioning program at Target Rehabilitation on a daily basis.¹² Target eventually released Mr. Bahita to go back to work on October 18, 1994.

The report of Dr. Chow of Target dated November 4, 1994¹³ indicated that when Mr. Bahita was last assessed on October 18, 1994, he had mild neck and back pain. It concluded that he could return to work from a "physical point of view."

At the request of GAN, Mr. Bahita attended at Riverfront Medical Evaluations Limited on August 10, 1994 and was examined by Dr. Zeldin. Dr. Zeldin reported that in his opinion, "the patient is long since over the significant physical sequelae of his injury and he has been and is physically able to return to....his occupation."¹⁴

GAN also requested that Mr. Bahita see Dr. Mock, an oral pathologist for an assessment. Dr. Mock initially saw Mr. Bahita on October 13, 1994 when he assessed Mr. Bahita's temporomandibular joint ("TMJ")¹⁵ complaint. In his later report dated November 3, 1994, Dr. Mock stated that Mr. Bahita's "jaw problems were not the primary source of his disability." Dr. Mock went on to suggest that Mr. Bahita attend for a psychiatric or psychological assessment.

Dr. Chaudhri referred Mr. Bahita to Dr. Tracy Halpen, a psychologist, in March or April 1995, in order to deal with Mr. Bahita's depression and his problems sleeping and concentrating.

Dr. Halpen stated in her reports¹⁶ that Mr. Bahita presented as depressed and anxious. She stated that Mr. Bahita advised her that when he drove he was easily startled. She noted that he was especially nervous at night when he saw lights from cars coming at him.

Dr. Halpen then referred Mr. Bahita to a psychotherapist, Fahima Aghamohseni. Mr. Bahita continues to see the psychotherapist. This is the only therapy he is presently receiving. No evidence was presented on behalf of the Applicant by Ms. Aghamohseni.

By the time Mr. Bahita was assessed by Dr. Judith Shapiro, a registered psychologist, at the request of the Insurer on June 22, 1995, he had been attending psychotherapy for four months. Dr. Shapiro noted in her report¹⁷ that Mr. Bahita appeared to meet the criteria for a Somatoform Pain Disorder in which emotional distress is converted to physical symptoms. Despite this conclusion, she recommended that Mr. Bahita return to work, otherwise his invalid stance would be reinforced.¹⁸

In August 1995 Mr. Bahita attended the Cranio Cervical Rehabilitation Institute ("CCRI"), after a referral from his chiropractor Dr. Shahidi. This institute recommended Mr. Bahita for further physiotherapy, which he never commenced. A detailed review of this report shows that it was a standardized product with little content relevant to the Applicant. Accordingly, I do not place much emphasis on the findings of this report.¹⁹

Mr. Bahita testified that he is unable to drive a taxi as he has not finished his treatment. He maintains that he is unable to sit due to pain in his back and head. He stated that he wishes to be free from all physical pains before going back to driving the taxi cab.

Many cases at the Commission have held that pain alone does not entitle a person to receive benefits under the Schedule, unless the pain is of such a nature as to cause the person to be substantially unable to perform his essential tasks. This is not the case here. I find that the focus of Mr. Bahita's evidence was not so much on the physical injuries themselves, but on the pain which he declared might cause him to lose concentration, resulting in another accident while driving his taxi. However, I heard inconclusive evidence that this pain did or would cause him to lose concentration while driving.

Dr. Halpen, Mr. Bahita's psychologist, treated Mr. Bahita and stated that he was depressed and anxious. She noted that he was more nervous especially at night when he saw lights coming.

Fear of a potential accident, depression and anxiety, do not entitle Mr. Bahita to reinstatement of weekly income benefits, unless the fear, depression and anxiety result from the accident, and are of such a nature so as to substantially disable Mr. Bahita from performing his essential tasks as a taxi cab driver. This is not the case here.

Mr. Bahita must have a sizeable inability to perform his essential tasks. The fact that he may be depressed or anxious or may be startled by ongoing lights or afraid to drive a car, does not mean that he cannot drive a taxicab for a living. In fact, there was little evidence to show that he was unable to drive a taxicab for a living. Mr. Bahita was certainly able to drive his friend's car several times a month up to 50 miles a time without incident. Mr. Bahita did not indicate that he experienced fear while driving his friend's car.

The evidence to support Mr. Bahita's claim that he continues to sustain a physical or psychological injury as a result of the accident such as to render him substantially unable to perform his job was flimsy at best. With the exception of Dr. Halpen, the doctors²⁰ all recommend that Mr. Bahita return to work. The evidence of Target Rehabilitation and Dr. Halpen's is insufficient to assist Mr. Bahita in meeting the burden of proof, for the reasons stated.

Mr. Bahita's own evidence was questionable. None of his friends or co-workers were called upon to verify his testimony concerning his moods or physical ailments. In fact, when questioned about the name of the friend whose car he drives, I found he was evasive.

I find that on the basis of the reports and Mr. Bahita's own testimony, he did not sustain an injury, either physical or psychological which caused him to be substantially unable to perform his essential tasks as a taxi cab driver after January 3, 1994. In all the circumstances of this case, Mr. Bahita has not proven his case on a balance of probabilities.

Mr. Bahita is not entitled to further weekly income benefits for any period after January 3, 1994.

SPECIAL AWARD:

Mr. Shields asks me to consider granting a special award to Mr. Bahita under section 282(10) of the Insurance Act. He claims that the Insurer asked for Independent Medical Examinations which considered treatment measures only, without reference to the disability issues under the Schedule. Mr. Shields claims that this form of request by an Insurer is improper. He states that GAN should be penalized by having to pay Mr. Bahita a special award as a result of this misuse of the Independent Medical examination. I do not agree with Mr. Shield's analysis of this issue.

In any event, a special award can only be granted in cases where benefits are found to be due and owing. As no benefits were found to be owing in this case, no special award may be granted here.²¹ Even if I had found benefits were owing, the evidence was insufficient to justify a special award on the basis requested by Mr. Shields. The request for a special award is denied.

EXPENSES:

Mr. Bahita seeks an award of the expenses he has incurred in this arbitration. Under section 282(11) of the Insurance Act, an arbitrator may exercise discretion in awarding expenses. It has been held that it is appropriate to award an applicant his or her expenses unless it is established that the application for arbitration was "manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings."²²

I choose to exercise my discretion and award Mr. Bahita his expenses as set out in Schedule 1 of the Dispute Resolution Practice Code despite the fact that he was unable to prove his case. If the parties cannot agree on the total amount of expenses, either party may apply to the Ontario Insurance Commission for an assessment of the expenses.

ORDER:

1. Mr. Bahita's request for is reinstatement of weekly income benefits from January 4, 1994 onwards is denied.

2. Mr. Bahita's request for a special award is denied.

3. GAN Canada Insurance Company shall pay Mr. Bahita his expenses in respect to the arbitration pursuant to Schedule 1 of the Dispute Resolution Practice Code.

April 23, 1996

Fern Kirsch Arbitrator

Date

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. 2The arbitration was to commence July 6, 1995 but was adjourned.
3. 3Exhibit 1
4. 4Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024 Sharon Lee and Uni fund Assurance Company, September 14, 1993, OIC File No. P-000078 (appeal decision)
5. 5Exhibit 2
6. 6Exhibit 13
7. 7Exhibit 11, September 19, 1993, pages 6-7
8. 8Exhibit 12
9. 9December 1993
10. 10In fact, the Target Rehabilitation report (Exhibit 4) notes that Mr. Bahita started with Dr. Shahidi in approximately May 1994.
11. 11Exhibit 4, page 2
12. 12Confirmed in report of Dr. Zeldin Exhibit 14, page 2
13. 13Exhibit 3
14. 14Exhibit 14
15. 15Exhibit 5, report dated October 13, 1994
16. 16Exhibit 6
17. 17Exhibit 7, report dated August 1, 1995
18. 18Exhibit 7, p. 12
19. 19Exhibit 9
20. 20Dr. Mascarenhas, Dr. Mock, Dr. Hands, Dr. O. Smith, Dr. Shapiro
21. 21Whitney p. 19
22. 22Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139.