Neutral Citation: 1999 ONFSCDRS 130

FSCO A97–000873

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ABDIKARIM AHMED

Applicant

and

CANADA LIFE CASUALTY INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

John Wilson

Heard:

May 17, 18 and 19, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Don Williamson and Roland Spiegel for Mr. Ahmed

Yvonne Diedrick and Debbie Ghate for Canada Life Casualty Insurance Company

Issues:

The Applicant, Abdikarim Ahmed, was injured in a motor vehicle accident on September 25, 1995. He applied for statutory accident benefits from Canada Life Casualty Insurance Company ("Canada Life"), payable under the Schedule.¹ Canada Life refused to pay weekly income replacement and other benefits. The parties were unable to resolve their disputes through mediation, and Mr. Ahmed applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Was Mr. Ahmed an occupant of the vehicle insured by Canada Life which was involved in a motor vehicle accident on September 25, 1995?

2. If yes, is Mr. Ahmed entitled to supplementary medical expenses for services provided in the amount of $4,634.13 by Westend Chiropractic, for services provided by Dixon Rehabilitation Centre in the amount of $11,700.00, and for services provided by D.N. Physiotherapy in the amount of $1,997.14, claimed pursuant to section 36(1)(b) of the Schedule?

3. Is Mr. Ahmed entitled to receive a weekly income benefit from October 2, 1995, and ongoing, pursuant to section 7 of the Schedule on the basis that he suffers a substantial inability to perform the essential tasks of his employment?

4. In the alternative, is Mr. Ahmed entitled to receive other disability benefits from October 2, 1995, and ongoing, pursuant to section 19 of the Schedule?

Result:

1. Mr. Ahmed was an occupant of the vehicle insured by Canada Life, which was involved in a motor vehicle accident on September 25, 1995.

2. Mr. Ahmed is entitled to reimbursement for supplementary medical expenses for 24 sessions of active physiotherapy at Dixon Rehabilitation at $75.00 per visit plus one assessment at $150.00 and for 24 sessions of chiropractic at Westend Chiropractic at $37.35 per session plus one initial visit at $79.00 and a Health Practitioner's Certificate at $75.00.

3. Mr. Ahmed is not entitled to receive a weekly income replacement benefit pursuant to section 7 of the Schedule.

4. Mr. Ahmed is not entitled to receive other disability benefits pursuant to section 19 of the Schedule.

EVIDENCE AND ANALYSIS:

The Applicant, Mr. Ahmed, is a young man of Somali origin, who resides in Etobicoke. Mr. Ahmed had been diagnosed and treated for a mental disorder identified as "psychosis" prior to the accident and continued to receive treatment after the accident. There has been no suggestion at the hearing that his disorder affected his ability to instruct counsel or to proceed with the hearing of this arbitration.

On September 25, 1995, at about 3:00 p.m., a Volvo driven by Michael Baum, of Sundridge Ontario, was backing away from the gas pumps at a service station at the corner of Annette and Dundas Street in Toronto. At the same time, a Ford Taurus, driven by Abdulaziz Ali was pulling into the service station lot. The two vehicles came into contact, with the Ford Taurus receiving some damage to the right rear door.

Mr. Ali was not alone in the car. In a statement made to the insurance adjuster, dated October 25, 1995, he identified three passengers in addition to himself. These were Abdirahman Saed, Daher Abdulle, and Addik-Aim Karim. The statement identified Abdirahman Saed as being female.

On November 16, 1995, Mr. Ahmed made a statement to the Insurer that he was in the Ford Taurus, owned by Abdulaziz Ali, on September 25, 1995, and was sitting in the rear passenger seat at the point of impact.

The driver of the vehicle, Mr. Ali, later revised his statement and acknowledged that he had omitted to name Mr. Ahmed, who indeed had been a passenger in his car on the day of the accident.

The Insurer declined to pay Mr. Ahmed any accident benefits, and indicated in its Response to an Application for Arbitration:

No benefits owing, as applicant not in insured vehicle at the time of the accident.

Issue 1: Was Mr. Ali a passenger in the car at the time of the collision?

Mr. Ahmed testified at the hearing that he was in the car at the time of the accident. He stated that he was seated in the rear right seat and was thrown against the glass of the window, and then against a baby seat by the impact of the collision. He confirmed this in cross-examination and also stated that he was knocked unconscious for an hour or so. He felt that it was a "big impact."

In re-examination, the Applicant was shown the statement made by Mr. Ali to the insurance investigators. This indicated that Mr. Ahmed was not in the car. When asked about the name of the "woman" listed in the vehicle, he affirmed that this was not a woman's name but rather a man's name. The interpreter confirmed this by interjecting that it would be like calling a woman "Roger."

Counsel for the Applicant pointed out the similarities between the name in the original statement to the Insurer, and Mr. Ahmed's full name.

Given the fact that the driver of the vehicle was Somali and spoke Somali as his first language, and there is no evidence that the insurance adjustor had any familiarity with the Somali language, I find that the reference to a "woman" in the car is probably due to an error in the transcription of the account by the adjustor, and not due to the fact that Mr. Ahmed was not present in the vehicle. I accept that Mr. Ahmed was in the vehicle at the time of the accident.

Issue 2: Is Mr. Ahmed entitled to compensation for supplementary medical expenses incurred at Westend Chiropractic, Dixon Rehabilitation, and D.N. Physiotherapy?

Section 36 (1) of the Schedule provides:

If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by, or on behalf of the insured person as a result of the accident...

Did Mr. Ahmed suffer an impairment as a result of the accident?

Mr. Ahmed testified that at the time of the accident, he was in the back seat of the Ford, on the right side. He further stated that his head hit the window of the car, and a baby seat that was in the back seat. He claimed to have lost consciousness. He complained of pain in his neck and back. He was not taken to hospital at the time, but went later that day to his doctor, who gave him an injection for "pain" and may have fitted him with a neck collar or similar device.

The Insurer called Dr. H. Hinnawi, who was the Applicant's physician both prior to and immediately after the accident. Dr. Hinnawi testified that he had been treating Mr. Ahmed on an ongoing basis for "psychosis." As part of his treatment, Mr. Ahmed received periodic injections of an injectable neuroleptic, Halperidol, or Haldol.

Dr. Hinnawi confirmed that he did see the Applicant on the day of the accident, and that his notes reveal no complaint of accident related injuries. In addition he recalled that Mr. Ahmed had no apparent restriction of movement. At this visit, Dr. Hinnawi described the Applicant as being disturbed, agitated and out of control. During that visit, Dr. Hinnawi administered an injection of Halperidol, but stated that he did not inject or prescribe any pain killers. Dr. Hinnawi denied that he had fitted Mr. Ahmed with a neck collar or similar device.

Dr. Hinnawi's notes did not indicate whether the visit took place before or after 3:00 p.m., the time of the accident, but Mr. Ahmed testified that he saw Dr. Hinnawi after the accident and received his injection after the accident.

A letter from Dr. A. Mossanen of the Dixon Rehabilitation Centre, dated October 20, 1995, summarizes Mr. Ahmed's complaints after the accident:

Now he is complaining of insomnia, headache, anorexia, and constipation. His brother states that the patient may sit from four to six hours on a chair, smoke constantly, and not respond to anyone. These sentiments and emotional reactions have been aggravated since his accident.

Dr. Hinnawi, Mr. Ahmed's primary care physician, whom he saw on a frequent basis, testified that the dizziness, and headaches that Mr. Ahmed complained of were most probably linked to side-effects of the Halperidol which was administered on an ongoing basis. Dr. Hinnawi reiterated that his observations of the day of the accident and three subsequent appointments revealed no evidence of motor-vehicle related injuries presented by Mr. Ahmed. The headaches and the dizziness pre-dated the automobile accident. If any injuries were suffered by Mr. Ahmed, they were "minor to moderate."

Dr. E.P. Urovitz, an orthopaedic surgeon, examined the Applicant on February 9, 1998, at the request of the Insurer. Dr. Urovitz concluded at the time:

At most, the claimant may have sustained a mild head injury without neurological sequelae as well as minor myofascial strains to the neck and lower back in the accident in question, which occurred more than two years ago.

In testimony at the hearing, Dr. Urovitz reiterated his conclusions and added that he would expect such uncomplicated soft tissue injuries to resolve within a period of about 8 to 12 weeks.

Dr. Morton, a chiropractor from Westend Chiropractic, a treatment provider, testified at the hearing that, in the accident, Mr. Ahmed had suffered physical injuries to his neck, including whiplash. Although Dr. Morton's evidence may be coloured by his interest in the outcome of this hearing, his evidence that there were some physical manifestations of the accident is not in conflict with the opinions of Dr. Urovitz and Dr. Hinnawi.

Dr. Hinnawi testified that Mr. Ahmed was out of control and experiencing an acute psychotic episode prior to the date of the accident. He had not taken his injections consistently and needed to be stabilized. This is consistent with the chronic nature of Mr. Ahmed's condition and with his difficulties with "compliance." Dr. Hinnawi also linked many of the post-accident symptoms directly to the side-effects of the Halperidol that he administered to the Applicant.

I find that Mr. Ahmed suffered minor myofascial strains to the neck and lower back as a result of his involvement in the car accident. His later complaints of headaches, insomnia, dizziness and emotional problems are directly related to his pre-existing diagnosis of psychosis, and the side-effects of its drug treatment.

I find as well that, on the basis of the evidence before me, the accident did not precipitate a worsening of Mr Ahmed's pre-existing condition, which according to his family physician, was out of control at the time of the accident.

Were the supplementary medical expenses reasonable"?

Section 36 of the Schedule provides that the insurer shall pay all reasonable supplementary medical expenses incurred by an insured person as a result of an accident.

Drs. Hinnawi and Urovitz both testified that Mr. Ahmed received physiotherapy in excess of his requirements. Dr. Morton, on the other hand, claimed that the physiotherapy and chiropractic treatments given by Dixon and Westend were reasonable and necessary.

According to the billing records referred to at the hearing and the testimony of Dr. Morton himself, Mr. Ahmed received treatment at Dixon Rehabilitation and Westend Chiropractic from October 1995 to March 1996. Dr. Morton testified that the Applicant's sensitive mental state slowed the progress of therapy, since he reacted adversely to procedures involving restraint or the use of electrical devices, and these had to be discontinued.

Both Drs. Hinnawi and Urovitz testified that a relatively minor injury such as that sustained by Mr. Ahmed, should have resolved itself within at most a two month period, even without intervention. Both also testified that the resolution of Mr. Ahmed's physical problems should not have been affected by his mental state.

Dr. Morton testified that Mr. Ahmed was referred to his clinic and to Dixon Rehabilitation, where his clinic was situated, by the Applicant's former lawyer, and not by Dr. Hinnawi.

Dr. Morton admitted that he did not enquire as to Mr. Ahmed's previous medical history, nor to his physical and mental capacity. His only contact with Dr. Hinnawi was a telephone call much later, which Dr. Morton characterized as primarily a "sales call."

Dr. Mossanen, a neurologist involved with Dixon Rehabilitation, stated in a letter dated October 20, 1995 ( Tab "1" of Exhibit "1") that Mr. Ahmed was a "poor historian," yet Dr. Morton did not request Dr. Hinnawi's clinical notes before commencing treatment. Dr. Morton testified that the goal of treatment was to return a person to his pre-accident activities, yet he appears to have made no efforts to find out what Mr. Ahmed's pre-accident capabilities were, other than interviewing Mr. Ahmed himself.

Dr. Urovitz, who testified on behalf of the Insurer, examined Mr. Ahmed some two years after the accident. He had the benefit of the notes and records of the treating physicians, as well as the notes from Dixon Rehabilitation and other treating facilities. He testified that at most, Mr. Ahmed bumped his head in the accident and that such uncomplicated injuries should have resolved in 6 to 12 weeks even without treatment.

In his report dated February 9, 1998, Dr. Urovitz stated:

In addition, given the history as provided by the claimant and from (what) could be gleaned from the documentation provided, it would appear to me that the treatment that was provided at the time of the original accident would appear to be excessive.

Specifically, Dr. Urovitz stated at the hearing that it would have been reasonable to treat Mr. Ahmed for one to two months with chiropractic and active re-conditioning. He added that this would imply treatment about three times per week.

When asked specifically about the treatment received by Mr. Ahmed, Dr. Hinnawi testified that some 47 sessions of chiropractic and physiotherapy would not be reasonable within a five week period for a person with mild or moderate injuries.

Dr. Hinnawi's and Dr. Urovitz's testimony was consistent at the hearing, but contradicted Dr. Morton's estimate of the treatment required. Dr. Morton provided treatment to Mr. Ahmed at Dixon Rehabilitation and Westend Chiropractic, and has some interest in a finding that the treatments claimed were reasonable.

No evidence was presented in support of the claim for reimbursement of the amounts billed by D.N. Physiotherapy.

I discount Dr. Morton's opinion on the reasonableness of the treatments provided at Dixon and Westend, and find that Dr. Urovitz's estimate of the therapy required is more convincing. Mr. Ahmed is entitled to be compensated for three sessions per week of active therapy at Dixon Rehabilitation and three sessions per week of chiropractic therapy at Westend Chiropractic Centre, for the eight weeks following his accident. I find that any further physiotherapy or chiropractic treatment beyond this point would have been neither reasonable nor necessary.

Amount of Billings:

The Insurer raised at the hearing the issue of the amounts billed by Dixon Rehabilitation for rehabilitation services. Exhibit "13" is an updated billing statement from Dixon Rehabilitation, commencing October 19, 1995. Item 1 is billed as "Work Cond/Active Rehab" in the amount of $150.00. Item 2 is billed as "Neuro. Assess Rpt" in the amount of $400.00.

Dr. Urovitz was asked in his examination-in-chief to comment on the general range of charges for such services, and stated that active therapy is usually billed in the range of $50.00 to $75.00 per visit, and an initial assessment, such as in item 2, above, is billed in the range of $150.00. The Applicant presented no evidence on this question. I accept Dr. Urovitz's opinion on the normal range of charges for these services, and find that the charges for physiotherapy services, invoiced by Dixon Rehabilitation, were not reasonable.

I find that the Applicant is entitled to be reimbursed for active therapy at $75.00 per visit, for up to three sessions per week, and for any medical assessments at $150.00 per visit. He is entitled to reimbursement of the chiropractic expenses at the rate billed by Dr. Morton, for three visits per week, plus the higher rate for the initial visit and report preparation.

Issue 3: Is Mr. Ahmed entitled to receive a weekly income replacement benefit from October 2, 1995 and onwards?

Section 7 of the Schedule creates an entitlement to income replacement benefits for a person who sustains an impairment as a result of an accident and who was employed at the time of the accident or at some point in the 156 weeks before the accident.

Was Mr. Ahmed Employed?

Section 5 of the Schedule defines employment:

For the purpose of this Regulation, a person is employed if, for salary wages, other remuneration or profit, the person is engaged in employment, including self-employment, or is the holder of an office, and "employment" has a corresponding meaning.

Mr. Ahmed stated at the hearing that he worked at the Safari Restaurant, at Albion and Islington, an establishment catering to the Somali community. His job consisted of waiting on tables, washing dishes, and sometimes buying supplies for the owner. He claimed to have started work in 1992 and worked full time, every day of the week, until the accident. He would come in the morning, and stay until about 9:00 p.m. He would be paid from $300.00 to $400.00 per week, and would be allowed to eat at no cost in the restaurant. He stated that after the accident, he could not work due to headaches, but that he continued to attend at the restaurant to eat.

Mr. Mohammed Hassan, a member of the Somali community in Toronto, testified that he had seen Mr. Ahmed in the Safari Restaurant from about 1991 or 1992. Mr. Hassan stated that he spent about an hour a day at the Safari, most days. Mr. Ahmed could be seen dishwashing and waiting on tables. He did not see the Applicant at the Safari after October 1995.

On cross-examination Mr. Hassan admitted that he had never seen Mr. Ahmed paid, but that he remembered being served by him. He speculated that it was possible that the Applicant worked at the restaurant in exchange for meals.

Mr. A. Farah, another member of the Toronto Somali community, testified that he began frequenting the Safari Restaurant in 1991, and went there three to four times per week. He also stated that he saw Mr. Ahmed working there, but didn't know the hours that he worked and didn't know whether he was paid or not. He commented that he didn't know if the Applicant volunteered to work at the restaurant without pay, but thought it highly unlikely.

Mr. Ahmed testified that he was a refugee claimant at the time of the accident, and did not have a work permit. He did not file bank records, pay slips or income tax returns in support of his claim that he had employment income. He testified that he was paid cash.

These factors in themselves are not determinative of whether Mr. Ahmed was employed or not. As Arbitrator Makepeace stated in Zehr and The Guarantee Company of North America (OIC A-001963, July 30, 1993), "...income may include cash payments that are not specifically identified as "salary," and payments in kind, including food."

Dr. Hinnawi testified that Mr. Ahmed's mental health was such that he would have been unlikely to have been able to hold down a job prior to the accident. He was easily distracted and might work for five minutes, and then walk away.

Dr. Hinnawi indicated that on March 3, 1995, he completed a general welfare assistance form (Exhibit "6") on behalf of Mr. Ahmed, that stated Mr. Ahmed would be unable to undertake any work or occupation because of his psychosis. This was at a time when Mr. Ahmed now claims to have been working full-time at the Safari.

When asked about another statement made to Dr. Aziz in support of a subsequent application for general welfare, Mr. Ahmed replied that he told the doctor that he didn't work, and that it was "not a continuous job." He further qualified his description of work at the Safari by stating that it was an "on call" job and that he was not always paid for all the time he worked.

In cross-examination, Mr. Ahmed conceded that he had applied for welfare in 1995, stating that he was unemployed, and was on welfare at some point in 1995, although not at the time of the accident, and that he did not report any Safari Restaurant income to welfare.

Dr. Hinnawi stated, that in his experience, the Somali community in Toronto is very supportive of its members. Mr. Ahmed, a person with some disability, clearly enjoyed the support of other members of the community. He lived at times with his brother, and with others, and clearly spent much time socializing with members of his community at the Safari restaurant. On the evidence, I find that it is highly improbable that Mr. Ahmed worked full time at the restaurant as he claimed. No doubt he spent a lot of time there. As a refugee claimant with no work permit, he had time on his hands.

Mr. Ahmed's recall of the circumstances surrounding his activities at the Safari may be affected by his psychosis, his ongoing drug therapy, or his acknowledged memory difficulties. Whatever the reason for his inconsistencies, I do not find his account of employment at the Safari Restaurant credible or convincing.

From the evidence at the hearing, and the statements made to physicians and welfare, it is clear that Mr. Ahmed represented himself consistently as unemployed, prior to the accident. I find that this description accurately reflects his status prior to the accident.

I accept that Mr. Ahmed may have helped out from time to time on an informal basis at the Safari Restaurant, where he was well-known and spent much of his time. If he sometimes received free meals from the restaurant, or even money from the proprietor, I find it was representative of the generosity of members of the Somali community to others in need, rather than evidence of an employment relationship between Mr. Ahmed and the proprietor of the Safari Restaurant. It did not constitute wages" or other remuneration.

I conclude that there was no convincing evidence that Mr. Ahmed was employed prior to the accident, nor at any time in the 156 weeks prior to the accident. He is not eligible for Income Replacement Benefits pursuant to section 7 of the Schedule.

Issue 4: Is Mr. Ahmed entitled to receive other disability benefits from October 2, 1995, and ongoing, pursuant to section 19 of the Schedule?

Section 19 (1) of the Schedule provides:

An insured person who sustains an impairment as a result of an accident is entitled to a weekly disability benefit if the insured person, as a result of, and within two years of the accident suffered a partial or complete inability to carry on a normal life...

Section 19 (2) sets the level of this benefit at $185.00 per week.

A claim under this section involves an analysis of Mr. Ahmed's normal life; his activities prior to the accident, whether, after the accident, he was significantly restricted in those activities, and whether such restrictions were due to the accident.

"Activities of a normal life" are those activities that the Applicant actually engaged in before the accident. As Arbitrator Jones noted in J.P. and Wawanesa (OIC A96-001312, August 11, 1997):

When considering what activities J.P. engaged in before the accident, one cannot simply take a "snapshot" of the person's activities on the day or week before the accident. The activities must be assessed over a reasonable time period which depends very much on the facts of the case.

From the evidence at the hearing, I have found that Mr. Ahmed spent a large part of his time socializing at the Safari Restaurant prior to the accident. It was an important, if not a principal part of his normal life. Mr. Ahmed testified that he spent seven days a week at the restaurant. After the accident, both Mr. Hassan and Mr. Farrah testified that they no longer noticed Mr. Ahmed at the restaurant. Very little other evidence of Mr. Ahmed's activities outside of the restaurant was presented.

I have found that the restaurant management likely indulged Mr. Ahmed, and let him eat there from time to time. Both Mr. Hassan and Mr. Farrah testified that the management of the Safari changed, with the owner, Mr. Abdi-Aziz Alisheikh, moving to the United States in 1996. This fact alone may account for some change in Mr. Ahmed's activities in the post-accident period.

Dr. Morton, the chiropractor who testified on behalf of Mr. Ahmed, admitted on cross-examination that he had no knowledge of Mr. Ahmed's pre-accident condition or activities.

Dr. Hinnawi, who treated Mr. Ahmed prior to the accident and was familiar with both Mr. Ahmed and his extended family, testified that Mr. Ahmed's psychosis, which was often left untreated, seriously impaired his ability to function in society and to hold employment.

Dr. Hinnawi stated that prior to the accident, Mr. Ahmed was often talking to himself, and was often dishevelled. From the information gleaned from Mr. Ahmed's brother, who brought him in on the day of the accident, and from his examination of Mr. Ahmed on that day, he testified that Mr. Ahmed was out of control for the three days prior to the accident.

Prior to the accident, Dr. Hinnawi believed that Mr. Ahmed could not engage in work due to his mental condition.

When asked if there was any difference seen in Mr. Ahmed's physical and mental state before and after the accident, Dr. Hinnawi answered in the negative.

I find that any disability that may have interfered in Mr. Ahmed's ability to carry on a normal life, post-accident, was directly related to his chronic psychosis. He was restricted in his activities before the accident, and he remained restricted afterwards.

On the basis of the evidence presented at the hearing, I find that Mr. Ahmed did not suffer a partial or complete inability to carry on a normal life as a result of the accident, and is not entitled to receive other disability benefits pursuant to section 19 of the Schedule.

EXPENSES:

The parties may now speak to the issue of expenses.

July 12, 1999

John Wilson

Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 130

FSCO A97–000873

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

ABDIKARIM AHMED

Applicant

and

CANADA LIFE CASUALTY INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Canada Life shall pay to Mr. Ahmed $3,000.70, plus interest in accordance with the Schedule, pursuant to section 36 of the Schedule, for physiotherapy treatments and chiropractic treatments at Dixon Rehabilitation and Westend Chiropractic, respectively.

2. The issue of expenses may now be spoken to.

July 12, 1999

John Wilson

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.