Neutral Citation: 1998 ONICDRG 70
OIC A96-001619
ONTARIO INSURANCE COMMISSION
BETWEEN:
EDWARD ABOU-ASSALY
Applicant
and
GUARDIAN INSURANCE COMPANY OF CANADA
Insurer
DECISION
Issues:
The Applicant, Edward Abou-Assaly, was injured in a motor vehicle accident on June 28, 1994. He applied for and received statutory accident benefits from Guardian Insurance Company of Canada ("Guardian"), payable under the Schedule.1 Guardian terminated weekly income replacement benefits of $397.63 on September 18, 1995. The parties were unable to resolve their disputes through mediation, and Mr. Abou-Assaly applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
- Is Mr. Abou-Assaly entitled to receive a weekly income replacement benefit from September 19, 1995, and ongoing pursuant to section 7 of the Schedule on the basis:
(a) that he was employed at A-16 Auto Parts within the four weeks preceding the accident and, if so,
(b) that he suffers a substantial inability to perform the essential tasks of his employment?
If the answer to question 1(a) is "Yes," what is the proper quantum of the weekly income replacement benefit?
If the answer to questions 1 or 2 is "No," is Mr. Abou-Assaly liable to repay Guardian all or part of the benefits with interest pursuant to section 70 of the Schedule?
Mr. Abou-Assaly also claims interest on any amounts owing and his expenses incurred in the hearing.
Result:
Mr. Abou-Assaly was not employed at A-16 Auto Parts within the four weeks preceding the accident.
Mr. Abou-Assaly is liable to repay Guardian $25,050.69 in benefits plus interest.
Mr. Abou-Assaly is not entitled to his expenses incurred in the hearing.
Hearing:
The hearing was held in Ottawa, Ontario, on October 27, 28, 29, and 30, 1997, before me, David Evans, Arbitrator, with submissions subsequently presented in a teleconference. Other details of the hearing are set out in the Appendix.
Evidence and Findings:
Mr. Abou-Assaly claimed income replacement benefits under paragraph 1 of subsection 7(1) of the Schedule on the basis that he was employed at the time of the accident. For the purposes of calculating his benefit he designated the four weeks before the accident to determine his gross annual income, as he had otherwise not worked from May 1991.
Mr. Abou-Assaly testified that he had been a manager of sewer and water main construction in Beirut and Saudi Arabia for nearly 30 years until he immigrated to Canada in 1990. That summer, he worked as a pipe-layer for a short period (almost five months, according to Mr. Abou-Assaly, or one month, according to the company that hired him). He then worked 18-hour days serving at Burger King and running his landscaping, renovation, and snow-removal sole-proprietor business until he was injured in a motor vehicle accident in May 1991.
Mr. Abou-Assaly testified that for the next three years after that accident the neck and low back pains he suffered as a result of it prevented him from working at his former employment. During this period, social assistance considered him eligible for medical disability benefits — which did not require him to search for work — until his insurer settled his accident-related claims at the end of May 1994. Shortly after the medical disability benefits eligibility ended, Charles Abou Assali, Mr. Abou-Assaly's relative (he and Mr. Assali's father are first cousins), hired him on Wednesday, June 8, 1994, to work at his business, A-16 Auto Parts. Mr Abou-Assaly testified that he worked six days a week at $100 per day including half-day Saturdays at A-16's automobile wrecking lot in Kemptville, a town about 50 kilometres from Ottawa. His main tasks were to dismantle, carry and deliver car parts weighing up to 30 pounds or more. He was paid partly in cash and once by cheque. Mr. Abou-Assaly testified that after working a complete day at A-16 he was injured in an Ottawa motor vehicle accident at 7:00 p.m. on Tuesday, June 28, 1994, and that since then, he has not returned to work other than on a part-time trial basis.
Had Mr. Abou-Assaly been working at A-16 before the June 28 accident?
I found the evidence regarding Mr. Abou-Assaly's job search and why he was hired at A-16 contradictory. Mr. Abou-Assaly testified that his health improved through 1993 and into 1994, but he delayed returning to work as he planned on taking courses in construction engineering in the fall of 1994. As he knew by mid-March 1994 that he could not start his courses for several months, he thought he should look for some work. However, he did not look for work then because work in the construction field was not available in winter. In fact, he did not look for work until he applied at A-16 in June 1994. Mr. Abou-Assaly also testified that he looked for work in his profession at Jobs Ontario on June 12. (Of course, by June 12 he was already working at A-16). In the statement that the adjuster, Sylvie Tremblay, took on June 30, 1994, the following appears: "What happened is a relative, Charles Abou-Assali, went to jail and hired me to look after his business. He owns a junkyard. I was hired permanently." Mr. Abou-Assaly denied that he was hired because Mr. Assali went to jail, testifying that Mr. Assali did not go to jail but was arrested for two days. For his part, Mr. Assali testified that in June 1994, Mr. Abou-Assaly had asked about working at the junkyard. He was considering the request to see what Mr. Abou-Assaly could do when on June 8 certain circumstances forced his absence from A-16, so he asked Mr. Abou-Assaly if he could look after the business. Two days later he returned, and Mr. Abou-Assaly kept on working for him.
Mr. Abou-Assaly testified that Mr. Assali was agreeable to his working for a few months until the courses began and that Mr. Assali wanted to take advantage of his skills, especially in equipment repair. On the other hand, in his testimony, Mr. Assali did not mention knowing that Mr. Abou-Assaly was going to work for only a short period. As for Mr. Abou-Assaly's qualifications, Mr. Assali testified that Mr. Abou-Assaly had been a supervisor of 40 or 50 employees overseas, could observe if somebody was not working and was experienced with driving track loaders and doing construction work. I find this testimony contradictory and does not support Mr. Abou-Assaly's suitability for the work he allegedly spent most of his time performing, namely dismantling automobiles.
The evidence also reveals various inconsistencies about the salary and the period Mr. Abou-Assaly worked. Mr. Abou-Assaly testified that he received one $1200 cheque for the two full weeks he worked and cash payments for the two partial weeks for a total of $1700. However, Ms. Tremblay testified that she understood from Mr. Abou-Assaly that he had received a cash payment for the first few days and a cheque of $1200 for the next two weeks for a total of $1500. In a note dated February 10, 1995, Mr. Assali wrote that Mr. Abou-Assaly earned $1200 for the period of June 12 to 26, paid for by a cheque that was unavailable due to a GST audit, but the note does not refer to other periods of employment. In a letter dated April 19, 1996, Mr. Assali has Mr. Abou-Assaly working from May 8 to May 30, 1994, and not from June 8 to June 28.
Mr. Abou-Assaly testified that on June 24 he received one $1200 cheque dated the same day. He did not cash it until June 30, two days after the accident, because he could only leave work to make deliveries and because he had problems with the bank cashing it. That cheque is the only financial record supporting Mr. Abou-Assaly's $600 weekly salary: no documents supported the cash payments, and Mr. Abou-Assaly testified that, as the company treated the workers as self-employed, it issued no T-4s. Mr. Charles Assali, the employer, testified that he was not able to produce other supporting records ordered at the pre-hearing to be requested, such as A-16's invoices, expense records, payroll records or cheque register, because of PST and GST problems. I note that the cheque, on the other hand, was produced, despite Mr. Assali's note of February 1995 indicating the cheque was unavailable due to a GST audit.
I find Mr. Assali not credible. He contradicted himself regarding his knowledge of the earlier accident. At first he testified that he did not know of the May 1991 accident as he was away in early 1991, then he testified that he knew of that accident because somebody in the family must have told him. Only when he was presented with a police report with his name and date of birth on it did he remember that he was the owner and driver of the car involved in the accident. He also contradicted himself regarding salaries, as he testified that he would pay somebody with a family and experience like Mr. Abou-Assaly more, yet he also testified that he paid all his workers the same, including the two men who had worked for him in February 1994 for 3 and 13 days respectively before they were also disabled by car accidents.
Mr. Abou-Assaly testified that he spent 60 per cent of his time dismantling and carrying car parts, 20 per cent of his time delivering them in his car, and 10 per cent of his time driving a track loader. He also spent 16 hours over 10 days singlehandedly installing 80-pound drywall sheets on 100 square metres of the wrecking lot's building. However, Mr. Abou-Assaly's job appears as "supervisor" in both the Application for Accident Benefits and the Employer's Confirmation of Income, and the latter form lists the job's essential tasks as "supervise workers and assist in any task." Ms. Tremblay, the adjuster, testified that based on Mr. Abou-Assaly's answers to her on June 30, 1994, she felt his main job duties were to answer telephone questions of Lebanese-speaking clients and to direct the employees, with ancillary tasks of occasionally driving the track loader and assisting in removing car parts. Ms. Tricia Morrison, who prepared a physical demands analysis of Mr. Abou-Assaly's job, testified that she obtained a similar job description from Mr. Charles Assali in August 1994. Mr. Assali's letter dated April 19, 1996, which other than omitting the reference to the drywall installation and describing the job in terms very similar to Mr. Abou-Assaly's, appears to contain the first indication that Ms. Morrison's physical demands analysis was not accurate.
Mr. Abou-Assaly testified that the work at A-16 caused him no physical problems, since by May 1993 his neck and low back pains had improved to an occasional light pain in his neck and, although he did not report this fact to social assistance, he could even have performed the A-16 work by the end of 1993.
The medical records, however, show continued problems up to the time of the second accident. In March 1993, Dr. della Zazzera, family physician, certified to social assistance that Mr. Abou-Assaly's unrelieved insomnia, gastritis, painful neck, and chronic myofascial pain rendered him temporarily unemployable for medical reasons for the next two years (that is, until March 1995). Dr. della Zazzera's subsequent clinical notes show that he continued to treat Mr. Abou-Assaly and prescribe for him drugs such as Tylenol #2, Librax and Robaxisol. Dr. Nagamani Natarajan, another physician who treated Mr. Abou-Assaly, advised in a March 1993 letter that Mr. Abou-Assaly's posterior cranial headaches with constant neck pain totally disabled him from lifting and carrying heavy objects and recommended that he be retrained for a more sedentary occupation. Based on Mr. Abou-Assaly's additional complaints to her in September 1993 and April 1994 of his chronic fatigue and inability to carry out normal activities, she diagnosed fibromyalgic syndrome and referred him to a chronic pain clinic.
Dr. Mansour, a family physician who saw Mr. Abou-Assaly seven times from January to June 1994, referred him to a neurologist for his recurrent faintness. The neurologist felt that, as the only abnormality on examination in March 1994 was a significantly reduced range of motion in Mr. Abou-Assaly's neck, his faintness was perhaps related to the significant arthritis in his neck or to his use of Tylenol with codeine. Dr. Mansour also referred Mr.Abou-Assaly to a physiotherapist for his continued neck and low back pains. The physiotherapist testified that Mr. Abou-Assaly showed no significant improvement at the end of five treatments he attended in March and April 1994. Dr. Mansour referred Mr. Abou-Assaly for pains in his wrists and hands to Dr. Jovaisis, the rheumatologist to whom Mr. Abou-Assaly complained of a new onset of mechanical low back pain earlier on the day of the June 28 accident.
I find the health problems set out in the medical records predating the 1994 accident are inconsistent with Mr. Abou-Assaly's being able to perform the kind of heavy labour that he testified he performed at A-16.
Many of the pre-accident medical records were not produced until shortly before the hearing. In this respect, Mr. Abou-Assaly testified that he did not think the referrals to Dr. Jovaisis or the physiotherapist were important enough to tell the insurer, nor did he think it was a "good idea" to advise the insurer of Dr. Mansour's pre-accident treatments, and in any event his complaints to Dr. Natarajan and Dr. Jovaisis in April and June 1994 were of old pains: he described the past as if it were the present. I find these answers unsatisfactory and affect Mr. Abou-Assaly's credibility, especially in light of the fact that in general he did not reveal these continued treatments to other doctors and health care professionals who saw him after the 1994 accident but rather indicated to them that he had completely recovered from the 1991 accident.
Mr. Abou-Assaly claimed that on the day of the accident, he worked the normal hours in Kemptville from 8 a.m. to 6 p.m. I find his testimony inconsistent with the fact that he saw Dr. Jovaisis in Ottawa that same day. Furthermore, although he delayed cashing his $1200 pay cheque because, according to his testimony, he could only leave work to make deliveries, he nevertheless went to see Dr. Jovaisis despite his lack of pain and — since otherwise Dr. Jovaisis would have wondered why he was there — described to him former pains. Thus, although he had difficulties leaving work to cash his first pay cheque in three years, he could leave work and drive 50 kilometres to report non-existent pain. I find the only logical explanation is that Mr. Abou-Assaly was not working on the day of the accident.
In light of the contradictory evidence on Mr. Abou-Assaly's job search, the reason he was hired, his suitability for the job, and the total amount he was paid, and considering the lack of supporting documentation and my findings on the credibility of both Mr. Abou-Assaly and Mr. Charles Assali, I find that Mr. Abou-Assaly was not employed at A-16 at the time of the accident or for the period he alleged. Accordingly, I find that he was not and is not entitled to weekly income replacement benefits.
Repayment
Pursuant to subsection 70(1) of the Schedule, Mr. Abou-Assaly is required to repay to Guardian any benefits he received through error, wilful misrepresentation or fraud. As he was not entitled to benefits, I find that there has been an overpayment. Subsection 70(2) limits his obligation to repay a benefit received through error unless he received notice within twelve months after he received the payment; Guardian sent notice on May 27, 1996. I find that Mr. Abou-Assaly's actions went beyond error; this was not a simple dispute about quantum. Therefore, I find that Mr. Abou-Assaly wilfully misrepresented his employment status to Guardian and is liable to repay the entire amount of weekly income benefits totalling $25,050.69.
Pursuant to subsection 70(5), interest is payable at the bank rate in effect on the fifteenth day after notice was given.
Expenses
Mr. Abou-Assaly applied for arbitration before November 1, 1996. As discussed by Arbitrator Renahan in Pinto and General Accident Asssurance Co. of Canada,2 the general principle in a case like this was expressed by Director's Delegate Naylor in Allison and Markel Insurance Company of Canada:
Applicants are reasonably assured that they will recover their expenses if they are unsuccessful, unless their case is without merit or their conduct is sufficiently serious to disqualify them.3
I have found that Mr. Abou-Assaly's case as presented was without merit. Accordingly, I find that Mr. Abou-Assaly is not entitled to his expenses of the hearing.
Order:
Mr. Abou-Assaly is liable to pay Guardian Insurance Company of Canada the amount of $25,050.69.
Mr. Abou-Assaly is liable to pay Guardian Insurance Company of Canada interest on the amount set out in paragraph 1 pursuant to subsection 70(7) of the Schedule.
Mr. Abou-Assaly is not entitled to his expenses incurred in respect of this arbitration.
May 14, 1998
David Evans
Arbitrator
Date
APPENDIX
Present at the Hearing:
Applicant:
Edward Abou-Assaly
Mr. Abou-Assaly's
Thomas V. Ozere
Representative:
Barrister and Solicitor
Guardian's
Catherine L. Coplea
Representative:
Barrister and Solicitor
Guardian's
Catherine McNeely
Officer:
Witnesses:
Edward Abou-Assaly
Tricia Morrison
Dr. Nagamani Natarajan
Susan Otto
Anne Gunvor Arnold
Charles Abou Assali
Sylvie Tremblay
Exhibits:
Exhibit 1
Applicant's Medical Brief
Exhibit 2
Employment Brief
Exhibit 3
Insurer's Brief
Exhibit 4
Clinical Notes and Records Brief
Exhibit 5
Curriculum Vitae Brief
Exhibit 6
Application Form to the Ontario Association of Certified Engineering Technicians and Technologists
Exhibit 7
Curriculum Vitae of Dr. Natarajan
Exhibit 8
Letter from Dr. Natarajan dated March 24, 1993
Exhibit 9
Motor vehicle accident report of May 13, 1991
Exhibit 10
Two handwritten statements by Mr. Charles Assali
Exhibit 11
Letter dated December 15, 1994, from Ms. Trembaly to A-16 Auto Parts
Footnotes
- The 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.
- (April 10, 1997), OIC A96-001246, upheld in Appeal P97-00031
- Isabel Allison and Markel Insurance Company of Canada (August 21, 1996), Appeal P-001231