Neutral Citation: 1997 ONICDRG 155

OIC A95-000634

BETWEEN:

MUSTAFA CHAFCHAK

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

DECISION

The Applicant, Mustafa Chafchak, was injured in a motor vehicle accident on November 13, 1993. He applied for and received statutory accident benefits from Kingsway General Insurance Company ("Kingsway"), payable under Ontario Regulation 672.¹ The parties were unable to resolve their disputes through mediation and Mr. Chafchak applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Chafchak entitled to weekly income benefits after February 1, 1995?
What is the correct amount of Mr. Chafchak's weekly income benefit?
Is Kingsway entitled to a repayment of weekly income benefits?

Mr. Chafchak claimed interest on overdue benefits and his expenses in respect of the arbitration.

Mr. Chafchak is not entitled to weekly income benefits after February 1, 1995.
The correct amount of Mr. Chafchak's weekly income benefit is $185.60.
Kingsway is not entitled to a repayment of weekly income benefits.
Since there are no overdue benefits, Mr. Chafchak is not entitled to interest.
Mr. Chafchak is not entitled to his expenses in respect of the arbitration.

Background

On November 13, 1993, at about 2:00 a.m., the Applicant, Mustafa (Steve) Chafchak was injured in a motor vehicle accident. Mr. Chafchak was 40 years of age. He was driving a taxi-cab when a speeding van struck the taxi, causing it to be pushed into a hydro pole.

Mr. Chafchak claimed that he was employed as a taxi-cab driver at the time of the accident, within the meaning of section 12 of the Schedule. Kingsway paid Mr. Chafchak a weekly income benefit until February 1, 1995. Mr. Chafchak claimed that he continued to be entitled to weekly income benefits as a result of his injuries. Kingsway disputed that Mr. Chafchak was employed at the time of the accident and that he was entitled to further weekly benefits.

1. Entitlement to Weekly Income Benefits

Was Mr. Chafchak employed at the time of the accident?

Under the provisions of section 12(2)1.i. of the Schedule, Mr. Chafchak need only establish employment on the date of the accident. Mr. Chafchak's testimony that he was employed as a taxi-cab driver at the time of the accident is corroborated by a letter from Mr. Caverhill, the General Manager of Veteran Cabs, dated December 3, 1993. According to that letter, in the 90 days before the accident, Mr. Chafchak drove an average of 6 shifts per week. I find on the basis of Mr. Caverhill's letter that at the time of the motor vehicle accident, Mr. Chafchak was employed as a taxi driver, within the meaning of section 12 of the Schedule.

Pre-accident condition

I find that prior to the accident Mr. Chafchak suffered from a number of physical, cognitive and psychological or psychiatric problems. There is an overlap between many of these problems and Mr. Chafchak's post-accident complaints, and therefore an issue as to the cause of any disability from which Mr. Chafchak suffers following the motor vehicle accident.

Cognitive problems

Mr. Chafchak has cognitive deficits which are largely developmental in nature. His reading skills are at the pre-literacy level, and his arithmetic skills at the beginning of the 4th grade level. His language skills suggest that he functions at a higher level than is actually the case.² He is not sophisticated about how the body functions.³

Physical problems

Mr. Chafchak complained of pain in his right elbow to Dr. Parla, his family physician, in 1990 and 1991. He saw a chiropractor in about 1991 for a right elbow injury received in a fist fight. In 1991, he was diagnosed as having moderate degenerative arthritis to his right elbow. Mr. Chafchak acknowledged to an orthopaedic surgeon in 1994 and to a psychiatrist in 1995 that he suffered from elbow problems prior to the accident. Following the accident, Mr. Chafchak has otherwise represented to various professionals that prior to the accident he was in good health, suffered from no chronic medical conditions and was taking no medications. I find that these representations were not accurate.

Dr. Parla's clinical notes and records reflect that Mr. Chafchak suffered soft tissue injuries to his neck and low back in a motor vehicle accident in 1979, and was disabled for approximately seven months. In 1989, he complained of back pain and elbow pain after he jumped out of a house during a house fire. The extent to which these injuries resolved is unclear. However, in the four months before this accident, Mr. Chafchak complained of arthralgia or joint pain, and back pain. During this period Dr. Parla prescribed Naprosyn, an anti-inflammatory and pain killing medication which can be prescribed for arthritis.

Prior to the accident Mr. Chafchak's doctors were attempting to assist him in addressing a significant problem with obesity. By his own report, Mr. Chafchak eats, drinks and smokes to excess.⁴ Dr . Parla's clinical notes and records reflect that his efforts to assist Mr. Chafchak with measures to reduce his weight met with little success.

Anxiety problems

I find that prior to the accident Mr. Chafchak had a significant problem with anxiety. His problems in this regard are either ongoing or recurring. Prior to the accident Mr. Chafchak had been diagnosed as suffering from severe anxiety with agoraphobic symptoms, a general anxiety disorder, possible panic attacks, and anxiety with possible psychoses.

Mr. Chafchak's vulnerability to anxiety prior to this motor vehicle accident is documented in the clinical notes and records of his family physician, Dr. Parla, and in the records of the Hotel-Dieu,⁵ Grace and Metropolitan Hospitals in Windsor. In the four months prior to the accident Dr. Parla's clinical notes and records reflect that Mr. Chafchak was afraid that he had cancer, and that he complained of being stressed out due to family discord. His prescription medications over that four month period included Serax, a drug which can be prescribed for excessive anxiety and tension in patients with anxiety neurosis.

According to the reports and records which were filed at the arbitration, following the accident Mr. Chafchak has repeatedly denied that he ever had any psychological or psychiatric problems prior to the accident. These denials begin with the family doctor he selected post-accident, and were repeated to all of the health and rehabilitation professionals whose reports and records are filed as exhibits.

In his testimony, Mr. Chafchak identified Dr. Nassr, whom he saw in 1975 because of severe anxiety and agoraphobic symptoms, as a psychiatrist. In the course of a psychiatric assessment arranged by Kingsway, Mr. Chafchak denied that he had any psychological or psychiatric problems prior to the accident, then went on to state that a family member had suffered a nervous breakdown. These facts suggest that despite his cognitive problems, Mr. Chafchak's repeated denial of pre-existing psychological or psychiatric problems was not due to a lack of familiarity with such concepts.

Post- accident condition

Following the accident on November 13, 1993, Mr. Chafchak was taken to Hotel Dieu Hospital by ambulance. He had fractures of his thumb and two fingers of his left hand,⁶ lacerations to his right wrist, and to his face. The lacerations on his face and behind his left ear were sutured by the attending emergency room physician. The laceration to his forehead was sutured by a plastic surgeon. Mr. Chafchak complained of bilateral hip and buttocks pain, pain in his left knee, and generalized aches and dizziness. He was sent home with written instructions for persons who may have suffered a head injury. Mr. Chafchak returned to the hospital later that day, and Dr. Pepin, an orthopaedic surgeon, performed a closed reduction of the fractures to his left thumb and fingers.

On November 17, 1993, Mr. Chafchak went to see Dr. Y. Oozeer, a family physician. This was the first occasion on which Dr. Oozeer saw Mr. Chafchak. Before this Mr. Chafchak's family physician for approximately 18 years had been Dr. Parla. Dr. Parla retired from practice; however the evidence does not establish when this occurred. Mr. Chafchak's physicians anticipated that his fractures and soft tissue injuries would heal within a three to six month time frame. Mr.Chafchak's fractures healed acceptably. Mr. Chafchak claims that he continues to be substantially unable to perform his essential tasks as a taxi-cab driver as a result of the injuries he sustained in the motor vehicle accident on November 13, 1993.

Mr. Chafchak testified that he continues to suffer from headaches and dizziness. He testified that he has really bad back pain, right and left knee pain, his hips are swollen, he has arthritis from his back down to his legs, and he needs to use a cane. He has pain in his left wrist and thumb, and in his right and left elbows. He states that he cannot do anything with his right wrist. He also has pain in his left shoulder and right ankle. He testified that his left knee was broken in the accident and that he now has arthritis in that knee. There was no evidence to support Mr. Chafchak's claims of a fracture to his left knee or left ankle.⁷

Following the accident, Mr. Chafchak became concerned that he may have broken his right wrist in the motor vehicle accident. Dr. Pepin, the orthopaedic surgeon who treated Mr. Chafchak's left hand following the accident investigated his complaints of a right wrist fracture. Dr. Pepin concluded that the x-rays showed triangular ununited ulnar styloid tips close to both of Mr. Chafchak's wrists. Since these were present in both forearms and symmetrical, Dr. Pepin concluded that these were developmental problems caused when Mr. Chafchak's bone centres failed to unite, not old fractures or the result of trauma.⁸ I accept Dr. Pepin's opinion in this regard.

Mr. Chafchak attended a rehabilitation program at the Accident Injury Management Clinic. His attendance and participation in this program was generally poor. He was discharged on May 25, 1994, due to his lack of effort and because he was not benefitting from the treatment regime. Mr. Chafchak's testimony that he did everything he was asked to do in the rehabilitation program is not borne out by the reports and records of this clinic.

During the rehabilitation program Mr. Chafchak saw a psychologist, Dr. Clyne. Dr. Clyne diagnosed Mr. Chafchak as suffering from a post-traumatic stress disorder, which is an anxiety disorder. She attributed this to the motor vehicle accident. She was unaware of Mr. Chafchak's pre-accident history of anxiety disorders.

Dr. Pepin, Mr. Chafchak's treating orthopaedic surgeon found his signs and symptoms so out of keeping with his expected level of disability on June 22, 1994, that he predicted that Mr. Chafchak would probably never return to any form of gainful employment.

In July 1994, Dr. Rai, a psychiatrist, diagnosed Mr. Chafchak as suffering from adjustment disorder, chronic pain syndrome, depression and possible paranoid disorder. He, too, was unaware of Mr. Chafchak's pre-accident history. His notes as to Mr. Chafchak's psychiatric history state "never in my life" and as to medical history "no difficulties."

In April 1995, Mr. Chafchak began seeing Dr. McFarlane, another family physician. As of August 1995, Dr. McFarlane was of the opinion that Mr. Chafchak was unable to return to his pre-accident employment because his back pain interferes with prolonged sitting, his wrist injury affects prolonged gripping, pulling and pushing and his knee injury limits use of his leg in repetitive or prolonged pressure on the pedals. This opinion reflects Mr. Chafchak's subjective reports of pain. There is no indication from Dr. McFarlane's clinical notes and records that he was aware of Mr. Chafchak's pre-accident history. Mr. Chafchak's complaints of injury following the motor vehicle accident were of left leg pain; there was no evidence before me that prior to the accident Mr. Chafchak used his left leg to operate a motor vehicle.

In September 1996, Dr. Oozeer, Mr. Chafchak's family physician stated that Mr. Chafchak continues to have pain over the lower back and into his legs, left forearm and hand as well as his left elbow. In his opinion Mr. Chafchak suffers from chronic pain syndrome and is totally disabled from performing his pre-accident employment. According to Dr. Oozeer, Mr. Chafchak's disability is due to the pain he is experiencing as well as his pain focussed behaviour. In Dr. Oozeer's opinion, this is as a direct result of the November 1933 accident.⁹ Although Dr. Oozeer followed Mr. Chafchak over a three year period, he too, was unaware of Mr. Chafchak's pre-accident history.

Dr. Bartol, an orthopaedic surgeon who examined Mr. Chafchak on behalf of Kingsway reported that prior to the accident Mr. Chafchak had no history of back or hand problems. In his opinion much of Mr. Chafchak's physical limitations were due to his obesity. He also noted seven non-physiological findings suggestive of extreme magnification of symptoms. According to Dr. Bartol there were only two possible explanations. One was malingering; however he was unsure that Mr. Chafchak's cognitive abilities would permit him to conceive of such a scheme. The more likely explanation in Dr. Bartol's opinion was a significant underlying psychological contribution.

Dr. Steinberg, a psychiatrist who examined Mr. Chafchak at Kingsway's request, concluded that Mr. Chafchak's complaints and apparent limitations are best explained by a combination of two factors. The first factor is a combination of Mr. Chafchak's pre-accident medical problems, including developmental cognitive defects, obesity, personality style, past alcohol abuse, psychiatric disturbance, including personality disorder. The second factor is malingering, that is to say the conscious and deliberate fabrication or exaggeration of physical and psychological complaints and limitations.

Dr. Steinberg reviewed Dr. Bartol's report. He opined that the most likely explanation for Mr. Chafchak's behaviour during the course of Dr. Bartol's examination was malingering. Dr. Steinberg felt that Mr. Chafchak could conceive of malingering. In his opinion Mr. Chafchak's pre-accident medical records would be required for an accurate assessment of the level of his pre-accident abilities and symptoms.

Conclusion

Most of Mr. Chafchak's complaints are subjective and are not supported by any objective evidence. At first blush, much of the medical opinion evidence appears to support Mr. Chafchak's position that he is substantially disabled. Some of these opinions attribute Mr. Chafchak's disability to the motor vehicle accident. Except for Dr. Bartol's report, none of the opinions on which Mr. Chafchak relies distinguish between his pre and post-accident complaints and condition, or comment on the respective roles played by his pre-accident condition and the motor vehicle accident in any ongoing disability.

The accuracy of any opinion evidence is highly dependent on Mr. Chafchak providing an accurate history to health practitioners who see him. I find that all of the medical opinions on which Mr. Chafchak relies are of limited value because none of the medical practitioners had an accurate pre-accident history. In these circumstances, I am not prepared to place any weight on the medical opinions which attribute Mr. Chafchak's disability to the motor vehicle accident.

It is conceivable that with a full history, the medical evidence would indicate that Mr. Chafchak was a thin-skulled individual and this motor vehicle accident significantly contributed to his disability. If this were the case and those opinions were accepted, then Mr. Chafchak would be entitled to continue to receive weekly income benefits. It is equally conceivable that with full access to Mr. Chafchak's medical history, the medical practitioners could conclude that there is little difference between Mr. Chafchak's pre and post accident-condition, or attribute his condition to some cause other than the motor vehicle accident. I conclude that Mr. Chafchak has failed to establish on a balance of probabilities that any disability from which he suffers is the result of the motor vehicle accident. As a result, Mr. Chafchak has failed to establish that he was entitled to weekly income benefits after February 1, 1995.

2. Quantum

Kingsway paid Mr. Chafchak a weekly income benefit of $220 per week between November 21, 1993 and February 1, 1995. Both parties allege that the amount Kingsway paid was incorrect. Mr. Chafchak contends that he was entitled to $417 per week, while Kingsway contends that Mr. Chafchak failed to establish that he was entitled to more than the minimum benefit of $185.60 per week.

Under the provisions of section 12 of the Schedule, Mr. Chafchak is entitled to be paid a weekly income benefit which is 80% of the greatest of his income in either the 4 weeks or in the 52 weeks before the accident, or a deemed minimum amount of $185.60.

The onus of establishing the amount of his pre-accident income and expenses in the 4 weeks and 52 weeks before the accident rests with Mr. Chafchak. He must do so by providing credible and reliable evidence. Mr. Chafchak tendered trip records in support of his gross earnings in the period immediately before the accident, oral and documentary evidence of the average earnings of taxi cab drivers in Windsor in 1993, oral evidence as to his expenses, and GST and income tax returns with respect to his pre-accident net income.

Income tax and GST returns

A summary of Mr. Chafchak's 1993 income tax return shows his net income from employment as $6,000. His GST remittance, stamped in February 1994, was based on $6,000 in sales. I find that the Schedule requires this income to be averaged over 52 weeks. The net income contained in these documents yields an average net weekly income of $115.38, 80% of which is $92.30. This amount is less than the statutory minimum weekly income benefit of $185.60.

Evidence from the industry

On December 3, 1993, about three weeks after the motor vehicle accident, Mr. Caverhill, the general manager of Veteran Cab Company wrote to Kingsway's adjuster that he interviewed Mr. Chafchak, and told him that "he must produce sheets to verify his income." Mr. Caverhill went on to explain in his letter that Mr. Chafchak had difficulty with both spoken and written English, in light of which he "was not surprised to learn that Mr. Chafchak had never kept any documentation relative to his income or expenses during the eight years that he has driven a taxi." Mr. Caverhill stated that most full-time drivers net between $250 - $300 a week. On this basis he asked Kingsway's adjuster to do what he could to assist Mr. Chafchak.

Mr. Zahid Syed testified that he has been a taxi-cab driver in Windsor since 1982. He operates three cabs; he drives one himself and leases the other two cabs to four drivers. Mr. Syed testified that he knew Mr. Chafchak as another driver, but did not eat with him or go gambling or drinking with him. In Mr. Syed's opinion, in 1993 the average taxi driver would net between $500 to $600 a week. He stated that in 1993 the casino had just opened in Windsor, and the novelty attracted a lot of tourists to the city. At that time there were only 190 cabs in the city to meet the demand.

Counsel for the Applicant averaged the gross income which Mr. Chafchak claims to have made in his "trip records" as $148.60 per day. Counsel for the Insurer averaged these amounts as $125.25 per day. When these figures were put to Mr. Syed, he scoffed that those amounts were "peanuts." In his opinion, Mr. Chafchak's claimed gross income was not at all excessive.

The problem with the evidence of net income attributed to the "average" taxi driver by Mr. Caverhill and Mr. Syed, both of whom work in the taxi business in Windsor, is that the average net income as estimated by Mr. Syed is double that estimated by Mr. Caverhill. There is the further problem in attributing either amount to the Applicant since there was little evidence to support that Mr. Chafchak's earnings were likely to be "average." Mr. Chafchak acknowledged that he became addicted to gambling while he was a boy, and that he would knock off work early in order to gamble.

Trip Records

Mr. Chafchak provided a series of sheets of paper which he testified contain a listing of the amounts he received per trip during his shifts between August 30, 1993 and November 10, 1993. Mr. Chafchak testified that he recorded each fare at the time he earned it.

He was asked to explain how it was that there were no sheets prior to the August 30, 1993. Mr. Chafchak explained that he began to keep these records after he was warned that the supervisor from City Hall was enforcing the requirement that drivers keep proper trip sheets. Mr. Chafchak testified that he memorized the street names in the City of Windsor. Although he was unable to read or write the street names, he was able to write numbers so he kept a record of his fares for each trip. He explained that he would round off the fares he received, so that he would round down $5.05 and record it as $5.00, he would round up $5.85 to $6.00, and round up $6.95 as $7.00. In his way of recording numbers, $1.00 meant $10.00, and $2.00 meant $20.00.

Despite Mr. Caverhill's statement three weeks following the accident that Mr. Chafchak had no documentation of either his income or expenses, I was given no explanation for the existence of these trip records as documentation of Mr. Chafchak's actual earnings particularly when Mr. Chafchak testified that he recorded those figures on the dates on which he earned the fares. I am therefore not prepared to give any weight to this documentation.

Expenses

Mr. Chafchak provided no documentary evidence with respect to his expenses. He testified that his expenses were $250 per week to rent the taxi plates, and about $120 per week for gas. His father, Mike Chafchak, from whom he leased the plates testified that the amount his son paid was $250; he also stated that he believed the amount was $235. He did not produce any books or records at the hearing.

Mr. Syed testified that he knows Mr. Chafchak as well as his brothers. Mr. Syed testified that each of the Chafchak brothers has said that to him that they rented the plates from their father at $45.00 per shift. If this is the case, then six shifts per week would amount to $270.00 per week in plate lease charges. Mr. Chafchak provided no evidence as to whether the expenses for the plates and the gas were ceasing expenses within the meaning of section 12 of the Schedule.

Because of the gaps and conflicts in the evidence tendered by the Applicant, I am not satisfied that Mr. Chafchak has established that he is entitled to more than the minimum benefit of $185.60.

3. Repayment

Kingsway alleges that it overpaid Mr. Chafchak by $34.40 per week, the difference between $220 per week paid to Mr. Chafchak and the minimum weekly income benefit of $185.60. Section 27(1) of the Schedule provides that "A person must repay to the insurer any benefit received under this Schedule that is paid to the person through error or fraud." Counsel for Kingsway submitted that Mr. Chafchak's various misrepresentations of his income amount to error within the meaning of the Schedule.

In the case of Levenson and General Accident Assurance Company,¹⁰ Senior Arbitrator Naylor found that a number of meanings can be attributed to the word "error." However, in the context of sections 27(2) and (3) of the Schedule she concluded that the Insurer must establish that responsibility for the payment was attributable in some material way to the actions of the Applicant. I agree with and adopt these conclusions.

Kingsway bears the onus of establishing that it is entitled to a repayment of these benefits. I was provided with no evidence as to how Kingsway calculated the amount of $220 per week as Mr. Chafchak's weekly income benefit. Kingsway did not rely upon Mr. Chafchak's trip records, GST payments or his income tax return. If the amount of the weekly income benefit was calculated on the basis of Mr. Caverhill's estimated earnings of the average taxi driver, it was clear from his letter that Mr. Chafchak had no records and that he could not establish the amount of his earnings. I find that Kingsway has not established that it relied on any misrepresentations made by Mr. Chafchak when it paid him a weekly income benefit of $220 per week.

I cannot therefore find that Mr. Chafchak was responsible for any "error" within the meaning of section 27 of the Schedule. Despite my findings that Mr. Chafchak was entitled to the minimum benefit amount of $185.60, Mr. Chafchak is not required to repay the amounts Kingsway paid in excess of that amount.

4. Expenses

I exercise my discretion to deny Mr. Chafchak's expenses in respect of the arbitration because of his repeated misrepresentations of his pre-accident medical history and because of the questionable trip records which he tendered at the hearing.

Order:

Mr. Chafchak is not entitled to weekly income benefits after February 1, 1995.
The correct amount of Mr. Chafchak's weekly income benefit is $185.60
Kingsway is not entitled to a repayment of weekly income benefits.
Mr. Chafchak is not entitled to interest.
Mr. Chafchak is not entitled to his expenses in respect of the arbitration.

August 18, 1997

Suesan Alves

Arbitrator

Date

APPENDIX A

Hearing:

The hearing was held in Windsor, Ontario, Ontario, on September 30, October 1, and 2, 1996, before me, Suesan Alves, Arbitrator.

Present at the Hearing:

Applicant:

Mustafa Chafchak

Mr. Chafchak's Representative:

Rodney M. Godard

Barrister and Solicitor

Kingsway's Representative:

Myron L. Sidenberg