Neutral Citation: 1997 ONICDRG 149

OIC A96-000063

ONTARIO INSURANCE COMMISSION

BETWEEN:

STEPHEN A. TAPAI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Stephen A. Tapai, was injured in a motor vehicle accident on April 6, 1995. State Farm Mutual Automobile Insurance Company ("State Farm"), denied his claim for "other disability benefits" (ODBs) under the Schedule,¹ on the basis that he was not suffering from a partial or complete inability to carry on a normal life. The parties also disagreed about whether Mr. Tapai was entitled to various medical and rehabilitation benefits. They were unable to resolve their disputes through mediation, and Mr. Tapai 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. Tapai entitled to other disability benefits (ODBs) for any period following this accident?

2. Is Mr. Tapai entitled to recover the cost of various medical or rehabilitation expenses as a result of this accident?

Mr. Tapai also claims interest on any amounts owing and his expenses incurred in the hearing.

Result:

1. Mr. Tapai is not entitled to other disability benefits (ODBs) for any period following this accident.

2. Mr. Tapai is not entitled to recover the cost of various medical or rehabilitation expenses as a result of this accident.

3. Mr. Tapai is not entitled to payment of his expenses under section 282(11) of the Insurance Act.

4. Mr. Tapai is required to pay State Farm the amount of $1,000 under section 282(11.2) of the Insurance Act.

Evidence and Findings:

Background:

Mr. Tapai is 40 years old, single, and lives in London with his parents. He was unemployed for approximately three years before this car accident. He has a significant and longstanding medical history. In 1987 he suffered a serious injury to his left shoulder, while at work. He underwent physiotherapy and two sets of surgery, neither of which resolved his complaints. After the second procedure, he was advised to participate in physiotherapy and begin to mobilize his shoulder, but instead he discontinued physiotherapy prematurely and continues (to this day) to wear a sling on his left shoulder. Mr. Tapai has an ongoing dispute with the Workers' Compensation Board regarding his claim for benefits.

In January 1992, Mr. Tapai fell down a flight of stairs and injured his back and left leg. Thereafter he saw several surgeons and chiropractors and tried "hundreds of pills," all to no avail.

Later in 1992 Mr. Tapai consulted with Dr. Nicholas Tower, a psychiatrist, because of work-related stress. Dr. Tower diagnosed a "paranoid state, probably stress induced" and prescribed a "major tranquilliser"² [sic] That same year, Dr. Wong, his family physician, noted depression, extreme agitation, and numerous complaints that doctors were ignoring his left shoulder pain. Dr. Wong opined that Mr. Tapai was "suffering from a severe situational reaction with paranoid features."³

Mr. Tapai testified that before this accident he was doing "bugger all." He was not searching for work. He performed a modest amount of housework and some cooking but enjoyed virtually no social or recreational activities. He was independent in self-care activities. He spent most of his time obtaining medical treatment, pursuing his WCB claim, and encouraging an investigation by the College of Physicians and Surgeons into alleged malpractice by his various physicians. In support of this last pursuit, and before this accident, Mr. Tapai documented his pain in a list entitled "Areas of Pain."⁴ It contains 25 items, including:

Pain in pelvic area and lower back (Pinching and Burning)

Pain between scapulas

My left arm won't rotate

My neck is making crunching and snapping sounds

My back also feels like its caved in

There is also load [sic] snapping sounds coming from my left shoulder when I move my arm

Mr. Tapai admitted in cross-examination that all these problems continued up to and beyond the accident giving rise to this claim. He conceded that his back and shoulder problems, in particular, limited him significantly even before this accident.

The Accident and its Aftermath:

On April 6, 1995, Mr. Tapai was driving on the 401 Highway when he was hit from behind by a transport trailer. He returned home after the accident but attended at St. Joseph's Hospital the next day. Mr. Tapai did not produce the hospital records or any evidence about the amount of damage to either vehicle.

Mr. Tapai testified that as a result of this accident, he sustained injuries to his neck, left shoulder, upper and lower back and both legs. However, he was not able to produce any medical evidence to connect his alleged injuries to this accident. Instead, the medical records submitted by Mr. Tapai at the hearing suggest that most, if not all, of his complaints pre-dated this accident. For example, Mr. Tapai filed an assessment by the Spine & Joint Physiotherapy Centre, performed in September, 1996. Although the assessment records lumbar and mid-thoracic pain, it makes no reference to this accident. And it is impossible to distinguish his complaints from numerous similar ones made in the years leading up to the accident.⁵

Mr. Tapai also relied on the report of the Massage Therapy Clinic dated March 25, 1996, which documents a short period of treatment for neck and back pain. Again, the report makes no reference to this accident, and many, if not all, of the complaints recorded are also seen in Mr. Tapai's pre-accident history. I also place little weight on the Emergency Record of Port Huron Hospital,⁶ where Mr. Tapai attended in October, 1995 for left shoulder, neck and back pain. Although it records that "he has had numerous accidents including being hit by a truck, falling from heights on two separate occasions and being struck by a car," the report does not indicate which injuries arose from which accident. Moreover, the bulk of his complaints relate to his pre-existing shoulder condition and "chronic" lumbar strain.

In May 1995, only one month following the accident, State Farm arranged for Mr. Tapai to be assessed by Dr. Michael Hall. Dr. Hall found that there was no "significant change in his physical state as a result of this accident" or in his "ability to carry on with the activities in which he was engaged prior to the motor vehicle accident." He did not believe that Mr. Tapai required further treatment or investigation, and concluded that "there appears to be a very large psychological element at play in the patient's previous problems..."⁷

Mr. Tapai's family physician later referred him to Dr. John Clifford, a physiatrist, who assessed him in June 1995. Dr. Clifford concluded:⁸

the patient's presentation is quite simply bizarre and it is not possible on the basis of the History alone to distinguish:

• remote injuries from any acute injuries

• symptoms from actual disease

In a later report dated August 22, 1995, Dr. Clifford advised that he saw no evidence of "any obvious organic pathology requiring any aggressive treatment." He also found that Mr. Tapai was "manifesting an element of paranoia" and recommended psychiatric follow-up.

Findings:

1. Other Disability Benefits

In order to recover ODBs, Mr. Tapai must establish that as a result of this accident he has suffered a partial or complete inability to carry on a normal life. The Schedule defines a partial inability to carry on a normal life as an impairment of personal care, mobility or household activities; an inability to communicate or exercise cognitive powers; or an inability to control emotions or behaviour.

Although I reviewed these criteria with Mr. Tapai several times during the hearing, he failed to present any reliable evidence to connect his alleged difficulties to this accident. He admitted readily in cross-examination that he has continued to perform his normal activities in the usual way since this accident. He continues to perform light household work and some cooking. He still manages all self-care activities. And he vigorously pursues medical treatment and his WCB claim, as well as investigations by the College of Physicians and Surgeons and the RCMP of alleged wrongdoing by various professionals.

I find that most if not all of Mr. Tapai's medical difficulties existed well before this accident. I see no reliable evidence that the accident has impaired his ability to carry on a normal life. Consequently, I reject his claim for ODBs.

2. Medical and Rehabilitation Benefits

Although the parties agreed that medical and rehabilitation benefits were listed as an issue at the pre-hearing, Mr. Tapai provided no information to support this claim until the hearing was nearly concluded. He then advised that he possessed various receipts for medication and medical treatment for which he was seeking reimbursement. He had no copies with him at the hearing, and could not explain his failure to comply with the pre-hearing arbitrator's order that he supply the Insurer with particulars in advance of the hearing. Moreover, he presented no medical evidence to support his claim that he required these treatments because of this accident. For all these reasons, I reject Mr. Tapai's claim for reimbursement of these expenses.

Expenses:

I decline to award Mr. Tapai any expenses. His claim had no merit and was unsupported by any credible medical evidence. I further find that Mr. Tapai abused the process of the Commission and put the Insurer to needless trouble and expense. Mr. Tapai refused to comply with numerous production orders made by the pre-hearing arbitrator. He failed to participate in a scheduled teleconference on May 26, 1997. He made innumerable groundless complaints of misconduct by various doctors and individuals at the Commission. As well, he continually alleged that a number of government and police agencies are involved in a conspiracy to subvert his rights; although I accept that Mr. Tapai honestly holds these views, he wasted a great deal of time pursuing them, despite being told by both the pre-hearing arbitrator and myself that we had no jurisdiction to hear such claims.

Section 282(11.2) of the Insurance Act provides that "if an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process, the arbitrator may" order the insured person to pay the insurer an amount up to the amount the insurer paid as a filing fee - in this case, $2,000. For the above reasons, I exercise my discretion to require Mr. Tapai to pay $1,000 to the Insurer.

Order:

1. Mr. Tapai is not entitled to other disability benefits (ODBs) for any period following this accident.

2. Mr. Tapai is not entitled to recover the cost of various medical or rehabilitation expenses as a result of this accident.

3. Mr. Tapai is not entitled to payment of his expenses under section 282(11) of the Insurance Act.

4. Mr. Tapai is required to pay State Farm the amount of $1,000 under section 282(11.2) of the Insurance Act.

August 7, 1997

Deena Baltman Arbitrator

Date

SCHEDULE A

Hearing:

The hearing was held in London, Ontario, on July 14, 1997, before me, Deena Baltman, Arbitrator.

Present at the Hearing:

Applicant: Stephen A. Tapai

State Farm's Representative: Marinus L. Lamers Barrister and Solicitor

State Farm's Officer: Ian O'Quinn

Witnesses: Stephen Tapai

List of Exhibits

Exhibit 1 Spine & Joint Physiotheraphy Centre Assessment report of September, 1996

Exhibit 2 Two EKG reports

Exhibit 3 Massage Therapy Clinic report of March 25, 1996

Exhibit 4 X-ray report of April 2, 1996

Exhibit 5 X-ray report of September 22, 1995

Exhibit 6 Port Huron Hospital Emergency Record, October 6, 1995

Exhibit 7 Dr. Hall's report of May 11, 1995

Exhibit 8 Pre-Accident Medical Brief

Exhibit 9 List entitled "Areas of Pain."

Exhibit 10 Medication List

Exhibit 11 Prescription Receipts

Exhibit 12 Dr. Miller's records (12 pp)

Exhibit 13 Report of Dr. Neil Burden of November 16, 1995

Exhibit 14 Reports of Dr. Clifford dated June 17, 1995 and August 22, 1995

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993, and before November 1, 1996, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94 and 781/94.
2. 2Exhibit 8, Tab 16, p.3
3. 3Exhibit 8, Tab 12, p.3
4. 4Exhibit 9. State Farm also filed a "medication list" prepared by Mr. Tapai, listing numerous anti-inflammatory and painkilling drugs that he used in the years preceding the accident.
5. 5Pre-Accident Medical Brief, Exhibit 8
6. 6Exhibit 6
7. 7Report dated May 11, 1995; Exhibit 7
8. 8Report dated June 27, 1995; Exhibit 14