Alladin Alishah v. Allstate Insurance Company of Canada, 1996 ONICDRG 61

Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 61

Appeal P-002780

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ALLADIN ALISHAH Appellant

and

ALLSTATE INSURANCE COMPANY OF CANADA Respondent

Before: Susan Naylor, Director's Delegate

Counsel: Yiadom A. Atuobi-Danso (for Alladin Alishah) Ian Kirby (for Allstate)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal is dismissed and the arbitration order, dated August 16, 1995, is confirmed.

2. Mr. Alishah is not entitled to his appeal expenses.

April 26, 1996

Susan Naylor Director’s Delegate

Date

REASONS FOR DECISION

I. THE NATURE OF THE APPEAL

Alladin Alishah was involved in an automobile accident on July 6, 1990. He applied for and received accident benefits under an automobile insurance policy issued by Allstate Insurance Company of Canada (Allstate). Mr. Alishah received weekly income benefits at a rate of $530.32 from July 13, 1990 to January 25, 1992. His benefits were then reduced to $313.25 until July 24, 1992, when they were terminated.

Mr. Alishah claimed a higher rate of benefits on an ongoing basis. After a two-day arbitration hearing, the arbitrator ruled that Mr. Alishah was entitled to benefits only until July 24, 1992, at the rate of $330.11 a week. The arbitrator ordered Mr. Alishah to repay $16, 233.06, the difference between the total benefits he received and the amount of his entitlement. The arbitrator also ordered Mr. Alishah to pay $1,000 to Allstate, the amount it was assessed as a party to the arbitration.

Mr. Alishah appealed the arbitrator's orders. The appeal proceeded on the basis of the record, including the written submissions of the parties.

In a letter dated March 6, 1996, I dealt with certain preliminary matters, including Mr. Alishah's request for an order allowing him to present new evidence and for a re-hearing of the evidence. The request was denied for the reasons set out later in this decision.

II. THE AMOUNT OF MR. ALISHAH'S BENEFITS

A. The Dispute

The formula for calculating weekly income benefits in this case is set out in section 12(7) 1. of the Statutory Accident Benefits Schedule- Accidents before January 1, 1994, Ontario Regulation 672, R.R.O. 1990, (the Schedule). Benefits are based upon an applicant's average gross weekly income from employment or self-employment for either the four, or the fifty-two weeks before the accident, or upon a deemed minimum income of $232, whichever is more favourable to him or her.

Mr. Alishah claimed to be entitled to $600 benefits a week, based on his income for both the four and the fifty-two weeks before the accident. The arbitrator accepted that Mr. Alishah worked full-time as a carpenter at Premdor, a door manufacturing company, until he was terminated on June 8, 1990, a month before the accident. The arbitrator calculated Mr. Alishah's benefits based on his average gross weekly income of $412.64.

At the arbitration hearing, Mr. Alishah claimed that he had three other jobs:

i. as a fabric cutter employed part-time by Fair Lady Lingerie Inc., a women's clothing factory. Mr. Alishah claimed that he worked there nights and weekends from 1988 until April/May, 1990, and averaged $320 a week, plus commissions;

ii. selling lingerie at flea markets in Wasaga Beach and Cambridge, where he worked until a week before the accident. Mr. Alishah testified that he earned $600 a week, plus commissions.

iii. as a fabric cutter employed by Kiss Fashion Inc., a clothing company, for the week before the accident. Mr. Alishah claimed he earned $600 a week, plus commissions, for the week's work.

The arbitrator did not accept Mr. Alishah's evidence about his employment or earnings from these jobs, on the following grounds:

1. There were virtually no records relating to Mr. Alishah's employment or earnings;

2. The income was not declared to Revenue Canada; all the jobs were allegedly paid in cash;

3. The documents produced to corroborate Mr. Alishah's week's work at Kiss Fashion Inc. (an Employer's Confirmation of Income and an incomplete T4 slip in the name of Kiss Fashion Inc., both prepared by a Mr. Ravi Rawana) were inconsistent with Mr. Alishah's testimony;

4. Mr. Rawana was not called to testify, although he was the owner or co-owner of both companies and hired Mr. Alishah to sell his wares at the flea-market;

5. No other witnesses, except Mr. Alishah's spouse, were called to corroborate his evidence;

6. Mr. Alishah gave contradictory testimony about his earnings.

Mr. Alishah's counsel put forward two reasons why the arbitrator's order was incorrect:

1. The arbitrator did not have the benefit of certain evidence, which Mr. Alishah felt strengthened his claim. He sought an order allowing him to introduce other documents and call additional witnesses.

2. The arbitrator ignored or did not give any weight to Mr. Alishah's evidence about his employment, and in particular, disregarded the lengthy delay between the insurer's initial confirmation of Mr. Alishah's employment and its subsequent conclusion that he had not worked at either Fair Lady Lingerie Inc. or Kiss Fashion Inc.

B. New Evidence

Mr. Alishah sought an order allowing him to introduce documents that were not before the arbitrator and to call new witnesses, to provide additional proof of his work activities. The documents in question are:

1. A lease, dated April 22, 1990, between Cambridge Flea Market and Fair Lady Lingerie Inc, signed by Mr. Alishah as tenant;

2. A purchase order issued by Fair Lady Lingerie Inc. with a list of merchandise written in ink;

3. A handwritten list of lingerie items and prices, described in Mr. Alishah's submissions as a price list;

4. A second handwritten list of lingerie items with prices, also described as a price list;

5. A pass in Mr. Alishah's name, described in his submissions as a building access card.

Mr. Alishah also wanted to call five co-workers. The proposed witnesses did not include Mr. Ravi Rawana, the owner of the businesses.

There is a broad discretion to entertain new evidence on appeal. However, in both the courts and the Commission's dispute resolution system, the admission of new evidence has been circumscribed, in order to bring some closure to the adjudication process. For the most part, evidence that was not before the arbitrator will not be allowed on appeal unless the following conditions are met:

(i) the party could not have obtained the evidence by due diligence before the hearing;

(ii) the evidence must be reasonably capable of belief;

(iii) the evidence must relate to a potentially decisive issue, and if believed, when taken with the other evidence adduced at the hearing, be reasonably expected to have affected the result or be an important influence upon it.

In this case, the evidence Mr. Alishah wanted to introduce did not meet the criteria for the admission of new evidence.

Firstly, I was not satisfied that Mr. Alishah could not have obtained the evidence before the arbitration hearing, with reasonable effort. In his submissions, Mr. Alishah's counsel contended that Mr. Alishah was unable to contact his co-workers after a diligent search. He also contended that Mr. Alishah forgot about the existence of certain documents, because of the length of the time which had elapsed between the end of his employment and the hearing, and that Mr. Alishah stumbled upon them, by luck. However, there was no evidence of any efforts made by, or on behalf of, Mr. Alishah to locate his co-workers before the arbitration hearing, or of the circumstances surrounding the discovery of the documents. Parties are expected to marshall their evidence and proceed to an arbitration hearing, fully prepared to prove their case. Mr. Alishah had the benefit of counsel at the arbitration to assist him in this regard.

However, even if I accepted Mr. Alishah's position, he had a more serious hurdle to face.

The central issue at the arbitration was Mr. Alishah's income from employment in the four and the fifty-two weeks before the accident. The arbitrator held that Mr. Alishah failed to substantiate his earnings with credible evidence. The documents Mr. Alishah sought to introduce may have been corroborative of a connection with Fair Lady Lingerie Inc. and the Cambridge flea market. However, they did not substantiate the amount of his earnings from any of the ventures. Similarly, the evidence of his co-workers would have been unlikely to contribute to this inquiry.

This was particularly so, given Mr. Alishah's evidence that his earnings from Fair Lady Lingerie Inc. and the flea market "were between him (Mr. Rawana) and me." (Decision, page 8)

Mr. Alishah's claim failed at arbitration because of the paucity of evidence in regard to his earnings. The evidence that Mr. Alishah sought to introduce would not, taken with the other evidence adduced at the hearing, reasonably be expected to have any effect on the result. Therefore, Mr. Alishah's request to introduce new evidence and to have a re-hearing to call additional witnesses is denied.

C. The Evidence Before the Arbitrator

Mr. Alishah submitted that the arbitrator ignored, or failed to give weight to, the evidence presented on his behalf about his employment and earnings.

An applicant's income from employment must be established through credible evidence. The arbitrator considered Mr. Alishah's testimony to be contradictory and unreliable. Mr. Alishah provided virtually no records in relation to his employment. The few documents he furnished were incomplete and inconsistent with his own testimony.

The arbitrator made his findings after a two day hearing. He had the advantage of observing and hearing the witnesses, assessing the credibility of their testimony and evaluating the strength of the documents presented in the context of the evidence as a whole. Because of this advantage, the arbitrator's findings of fact should not be disturbed unless it is shown that he ignored material evidence or arrived at unsupported conclusions. In this case, the arbitrator considered the evidence presented and set out the reasons why he did not accept Mr. Alishah's account of his employment or his earnings. He was entitled to reach this conclusion, based on the evidence before him.

Mr. Alishah complained that Allstate's agents initially confirmed his earnings with Mr. Rawana and changed their minds after two years. His counsel described this delay as "an unreasonable exercise of discretion which should be the subject of review on appeal." However, the arbitrator found that the insurer acted properly. In his view, Allstate acted reasonably in initially basing Mr. Alishah's benefits upon his stated income, in the interest of prompt payment of benefits. He held that Allstate gave Mr. Alishah ample opportunity to furnish supporting documents. The arbitrator concluded that Mr. Alishah,

"deliberately misled the Insurer about his employment for the purposes of receiving a higher amount of weekly income benefit than he was otherwise entitled to."

(Decision, page 27)

In reaching this conclusion, the arbitrator accepted the testimony of Allstate's claims manager about its investigation. There is no basis to interfere with the arbitrator's finding about this, especially in the absence of a transcript and any specific allegations of error.

Therefore, Mr. Alishah's appeal regarding the amount of his benefits is dismissed.

III. ENTITLEMENT TO WEEKLY INCOME BENEFITS

Mr. Alishah also appealed the arbitrator's findings about his entitlement to benefits after July 24, 1992. The arbitrator determined that Mr. Alishah did not suffer a substantial inability to perform the essential tasks of his pre-accident work as a carpenter with Premdor, or to do other suitable employment. He characterised Mr. Alishah's work as physical, requiring lifting and carrying heavy loads, forward bending, reaching and gripping, as well as powers of concentration and fine motor skills. No issue was taken with this description.

The evidence indicates that Mr. Alishah suffered soft-tissue injuries to his neck, back and shoulder in the accident, with associated pain and headaches. He has been examined, treated and assessed by numerous health practitioners. The medical evidence indicates that there is no clear physical basis to explain the extent of his ongoing problems. The appellant's position is that his condition has been complicated by mental and psychological problems, arising out of the accident. He has been diagnosed as suffering from post-traumatic stress disorder, with secondary alcohol and marital problems, depression, anxiety and problems sleeping. It is argued that Mr. Alishah's mental condition, in combination with his ongoing physical problems, prevents him from returning to work.

Essentially, the issue boils down to Mr. Alishah's credibility and a conflict in the medical evidence. Mr. Alishah's claim is supported by a family practitioner, Dr. Donskoy, who started seeing him after the accident, and has seen him approximately 125 times over a four year period. Mr. Alishah's claim to benefits on the basis of his mental and psychological state is supported by Dr. Musisi, a psychiatrist, who has treated him from time to time since June, 1991.

The findings of these doctors have been challenged by two psychologists. Dr. Baumanis, a clinical psychologist, treated Mr. Alishah between early January 1991 and May 1991, at Dr. Donskoy's request. Dr. Kenny, a clinical neuropsychologist, assessed Mr. Alishah in early summer, 1992, at Allstate's request. Based on the tests they performed, Dr. Baumanis and Dr. Kenny believe that Mr. Alishah is exaggerating his mental and psychological problems, for secondary gain.

All four doctors testified at the arbitration hearing.

It is claimed that the arbitrator erred in preferring the opinions of Dr. Baumanis and Dr. Kenny to those of Dr. Donskoy and Dr. Musisi. Mr. Alishah submits that his doctors are in a better position to assess his condition and his ability to work because they, and particularly Dr. Donskoy, have had the benefit of assessing him over a lengthy course of time.

The fact that a family doctor, or other health professional, has treated an applicant over a significant period of time is a consideration in evaluating the weight to be given to the health practitioner's opinion. However, the strength of the opinion may be qualified, to the extent that it is based upon subjective findings or because the close, caring relationship that may have developed between doctor and patient may have affected the practitioner's objectivity.

The arbitrator found that the opinions of Dr. Donskoy and Dr. Musisi depended heavily upon Mr. Alishah's reported complaints and stated history. He found that they accepted Mr. Alishah's account of his medical history "without question", and did not seek any previous medical records to confirm it. Because their information came almost entirely from Mr. Alishah, the arbitrator considered the evidence of Dr. Donskoy and Dr. Musisi to be "no more trustworthy" than Mr. Alishah's own testimony.

The arbitrator's findings on credibility were crucial to his decision. He did not find Mr. Alishah's testimony to be credible and rejected Mr. Alishah's assessment of his own condition as unreliable. His reasons included the following:

1. Mr. Alishah's contradictory claims about his pre-accident earnings compromised his overall evidence;

2. Mr. Alishah deliberately withheld information about his pre-accident medical history from his doctors;

3. In his testimony, Mr. Alishah greatly exaggerated the effect of his injuries on his ability to work.

The arbitrator found it significant that, after Mr. Alishah's family doctor of 6 years advised him to return to work shortly after the accident, he started seeing Dr. Donskoy instead.

In evaluating the strength of the medical opinions, the arbitrator quite properly considered the reliability of the information on which they were based. There is no suggestion that he ignored important evidence or incorrectly stated it; essentially, the appellant's complaint is that the arbitrator did not accept his evidence or that of his doctors. His appeal goes to the weight of the evidence, a matter within the judgement of the arbitrator. On the material before me, I find no basis to interfere with the arbitrator's assessment of the evidence and his findings of fact. Mr. Alishah's appeal as to his entitlement to benefits is therefore denied.

IV. REPAYMENT OF BENEFITS

The arbitrator ordered Mr. Alishah to repay Allstate a total of $16, 233.06, together with interest. This sum represented the difference between the benefits Mr. Alishah received up until July 24, 1992, and the benefits to which he was found entitled. The arbitrator made his order under section 27 of the Schedule, which provides for repayment where it is shown that benefits have been paid "through error or fraud".

The arbitrator ordered the benefits to be repaid on the grounds that Mr. Alishah had deliberately misled Allstate about his employment and income.

Mr. Alishah disputed the repayment order on the basis that the arbitrator erred in disregarding his alleged income from the three other jobs. Mr. Alishah has not succeeded in having this income included. Therefore his appeal in respect to the repayment order also fails.

V. THE INSURER'S ASSESSMENT

The arbitrator denied Mr. Alishah his arbitration expenses. He also ordered Mr. Alishah to pay $1,000, the amount the insurer was required to pay to the Commission in order to participate in the arbitration.

Under section 282(11.2) of the Insurance Act, an arbitrator has the discretion to order an applicant to pay an amount, to a maximum of the insurer's assessment, "if an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious, or an abuse of process."

The arbitrator found Mr. Alishah's claim with respect to the amount of his weekly income benefits to be "entirely without merit", and considered Mr. Alishah's use of the arbitration system to advance a "baseless claim" to be an abuse of process.

Mr. Alishah advanced no grounds why I should interfere with this ruling, and I find no reason to do so. Therefore, Mr. Alishah's appeal of this order is denied.

VI. APPEAL EXPENSES

I decline to award Mr. Alishah his appeal expenses. His appeal was entirely unsuccessful. In appeal cases, expenses have generally been denied where the appellant's dissatisfaction with the arbitrator's view of the evidence forms the only real basis for the appeal. This was such a case.

April 26, 1996

Susan Naylor Director’s Delegate

Date