Neutral Citation: 1999 ONFSCDRS 150

FSCO A98-000088

BETWEEN:

ADAR MOHAMUD

Applicant

and

ROYAL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

M. Kaye Joachim

Heard:

July 12, 13, 14, and 15, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Said Mohamud for Ms. Mohamud

Mark Baker for Royal Insurance Company of Canada

The Applicant, Adar Mohamud, alleges that she was injured in a motor vehicle accident on November 14, 1994. She applied for but was denied statutory accident benefits from Royal Insurance Company of Canada ("Royal"), payable under the Schedule.¹ Royal asserts that the accident did not occur as described and that Ms. Mohamud did not suffer any injuries as a result of an accident. The parties were unable to resolve their disputes through mediation, and Ms. Mohamud 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:

Is Ms. Mohamud precluded from proceeding to arbitration because her application for arbitration was filed beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act and section 72 of the Schedule?
Did Ms. Mohamud have a reasonable excuse for failing to file a completed application more than ninety days after receiving an application from Royal?
Did Ms. Mohamud sustain injuries in a motor vehicle accident on November 14, 1994?
If so, is Ms. Mohamud entitled to caregiver benefits?
Is Ms. Mohamud entitled to eight months of attendant care benefits at the rate of $400 per month under Part 10 of the Schedule?
Is Ms. Mohamud entitled to physiotherapy, prescription medication, and transportation expenses under sections 36 and 40 of the Schedule?

Ms. Mohamud also claims interest on any amounts owing.

Ms. Mohamud is not precluded from proceeding to arbitration.
Ms. Mohamud did not have a reasonable excuse for filing a late application.
Ms. Mohamud did not sustain injuries in a motor vehicle accident on November 14, 1994.
Ms. Mohamud is not entitled to any benefits under the Schedule.

Chronology of Events

Ms. Adar Mohamud alleges that she was involved in a motor vehicle accident at approximately midnight on November 14, 1994 at the intersection of Dixon Road and Roxaline Street. The driver of the rented Ford Taurus was her brother, Said Mohamud. Ms. Mohamud was seated in the front passenger seat. Two passengers, Abdullahi Osman and Mohiadin Esse, were seated in the back of the vehicle. The second vehicle involved in the accident was a Chrysler Sprint, owned by Abdishakur Mohamud (no relation to the Applicant or her brother). The passenger in the Chrysler Sprint was Abdulaziz Issa. Mr. Said Mohamud and Mr. Abdishakur Mohamud attended at the collision reporting centre in the early morning hours of November 15, 1994 and completed accident reports in respect of this incident. On November 23, 1994 Mr. Said Mohamud contacted Royal to report that he had sustained a neck injury. He also advised that his sister had been injured. The adjuster, Marguerite Locke, attended at Ms. Mohamud's apartment on December 7, 1994 to help her complete an application for benefits and a disability questionnaire. Mr. Mohamud served as a translator. Ms. Mohamud indicated that she was incapable of caring for the three children under her care, aged 10, 9 and 8. Ms. Locke advised Ms. Mohamud that caregiver benefits would amount to less than the social assistance benefits she was receiving and that she could not claim both. Accordingly, Ms. Locke noted on the application that Ms. Mohamud was only claiming therapy and housekeeping expenses, but not weekly disability expenses.² Ms. Mohamud refused to sign the application at this time. The accident benefit package was subsequently mailed to her on December 16, 1994, and she was advised that her application could not be considered until it was signed. Ms. Mohamud did not sign or return this application.

Ms. Locke began investigating the circumstances of the accident. On February 21, 1995, the Insurer sent out an Explanation of Assessment by Insurance Company denying entitlement to weekly benefits on the basis that the application had not been returned or signed, and no Health Practitioner's Certificate had been provided. The Insurer further stated that there were inconsistencies in the statements taken that led the Insurer to believe that the accident did not occur as described.

Ms. Locke was also dealing with claims from Mr. Said Mohamud and Mr. Osman. In October 1995, Royal settled their claims. In November 1995, Mr. Mohamud contacted Ms. Locke to pursue his sister's claim and on November 14, 1995, Ms. Locke again met with Mr. Mohamud and Ms. Mohamud at Ms. Mohamud's apartment and completed a second application for benefits. On November 20, 1995, Royal sent a second Explanation of Assessment to Ms. Mohamud denying entitlement to caregiver benefits because inconsistencies in statements led the Insurer to believe the accident did not occur as described. The Insurer also denied benefits on the basis that the application had been submitted more than ninety days after the forms were sent, without any explanation for the delay. Ms. Mohamud retained the law firm of Pacevicius, Cord who wrote to Royal on February 1, 1996 disputing its refusal to pay any benefits. Counsel also requested reimbursement for physiotherapy and housekeeping expenses. In response, Royal issued a further Explanation of Assessment on February 13, 1996 again denying caregiver benefits for the same reasons as set out in the November 20, 1995 Explanation of Assessment. It also denied payment for physiotherapy and attendant care benefits on the basis that the accident did not occur as described, and because of a lack of documentation to support the expenses. On November 14, 1996, Ms Mohamud applied for mediation. The Report of the Mediator was issued on February 14, 1997. Ms. Mohamud filed an Application for Arbitration on January 7, 1998.

1. Time Limit for Filing for Arbitration

The applicable limitation period for commencing an arbitration is set out in subsection 281(5) of the Insurance Act:

281—(5) A proceeding in a court or an arbitration proceeding in respect of statutory accident benefits must be commenced within two years after the insurer's refusal to pay the benefit claimed or within such longer period as may be provided in the Statutory Accident Benefits Schedule.

This time limit is extended by section 72 of the Statutory Accident Benefits Schedule:

72—(1) A mediation proceeding under section 280 of the Insurance Act or an arbitration or court proceeding under section 281 of the Act in respect of a benefit under this Regulation shall be commenced within two years from the insurer's refusal to pay the amount claimed...

(2) Despite subsection (1), an arbitration or court proceeding under section 281 of the Insurance Act may be commenced within ninety days after the mediator reports to the parties under subsection 280(8) of the Act.

An insured must file an application for arbitration within two years of the insurer's refusal to pay the benefit. The only circumstance in which an application for arbitration can be filed outside the two year period is if the Application for Mediation is filed within two years and the Application for Arbitration is filed within ninety days of the issuance of the Report of Mediator.

The Insurer argued that it first refused to pay the benefits claimed on February 21, 1995. Alternatively, the Insurer argued that it refused to pay the benefits on November 20, 1995. It argued that the third Explanation of Assessment issued on February 13, 1996 was merely a duplicate of the November 20, 1995, in response to counsel's letter. The Insurer emphasized that the letter from counsel which prompted the third Explanation of Assessment recognized the earlier refusal.

I reject the Insurer's arguments that the time for disputing the Insurer's refusal began to run with either of the earlier Assessments. For reasons which were not explained, the Insurer chose to issue a third Explanation of Assessment on February 13, 1996. This Explanation of Assessment was more comprehensive than the earlier assessments in two ways. First it specifically denied caregiver, physiotherapy and rehabilitation benefits, while the earlier assessment had only denied weekly benefits. Second, it gave additional reasons with respect to the denial of rehabilitation and other expenses.

The issue is not whether Ms. Mohamud or her counsel subjectively understood that the Insurer was denying benefits by November 1995.³ Ms. Mohamud equally understood that the Insurer refused her benefits on February 13, 1996. She also understood that Royal continued to refuse her claim at mediation and ongoing. The issue is when the Insurer refused to pay the benefits claimed. Where, as here, the Insurer issues a more comprehensive Explanation of Assessment, it is this later refusal which triggers the time limitation. Otherwise, Insurers could inadvertently mislead insureds of the time limits. I note that each Explanation of Assessment specifically advised of the right to apply for mediation, which implies that Ms. Mohamud had the right to dispute each refusal.

I conclude that the time for filing an application to dispute the Insurer's refusal to pay for caregiver benefits, attendant care benefits, and physiotherapy expenses expired two years after the February 13, 1996 Explanation of Assessment, on February 13, 1998. Ms. Mohamud's Application for Arbitration was filed within those two years, on January 7, 1998.

2. Reasonable Excuse for Filing a Late Application

59—(3) The person shall submit an application for the benefits to the insurer within ninety days of receiving the application forms.

(4) A failure to comply with a limit set out in subsection (1) or (3) does not disentitle a person to benefits if the person has a reasonable excuse.

Ms. Mohamud met with an adjuster and was provided with an accident benefit package on December 7, 1994. She did not submit a signed application or contact the Insurer again until November 15, 1995, well over ninety days from the date she first received an application from the Insurer. Ms Mohamud offered no explanation for the delay. As will be seen from the discussion below, she had no reasonable excuse for the delay.

3. Was Ms. Mohamud Injured in an Accident on November 14, 1994?

I find that Ms. Mohamud did not sustain any injuries as a result of a motor vehicle accident on November 14, 1994. Both Mr. Mohamud and Ms. Mohamud have made false statements in the past to insurers in support of claims for accident benefits. The evidence of Mr. Mohamud and Ms. Mohamud with respect to the accident of November 14, 1994 is not reliable. Ms. Mohamud's actions after the accident are more demonstrative of an intention to arrange a financial settlement from the accident than of a person suffering genuine injuries following a motor vehicle accident.

False Allegations In Respect of Accident Benefit Claims

Said Mohamud

Mr. Mohamud has been involved in several motor vehicle accidents and made accident benefit claims in respect of each. He used different medical practitioners and different law firms to support his claims. He settled each of his claims. This evidence of multiple claims is not, in and of itself, sufficient to raise an inference that the present accident did not occur as described. However, the use of several different doctors to support the various claims raises an inference that Mr. Mohamud was seeking to conceal his prior medical and accident history. This inference is confirmed by Mr. Mohamud's false statement to an insurer respecting a previous claim for accident benefits.

Following a motor vehicle accident on June 7, 1991, Mr. Mohamud collected weekly disability benefits for the period of June 17 to October 18, 1991. He settled his claim on April 22, 1992. On April 21, 1992 he had another accident. In a signed statement in respect of the second accident, Mr. Mohamud stated that he had not been involved in any other automobile accidents and that he had been working seven days per week as a taxi driver since January 15, 1991. This is demonstrably false, as he had collected benefits for disability between June 17 and October 18, 1991 in respect of the previous accident.

Adar Mohamud

Ms. Mohamud has only been involved in two accidents. In the first accident of November 14, 1994, Ms. Mohamud was one of four people in a rented car at midnight. Three of the four passengers made claims for accident benefits.⁴ Both persons in the other car also made claims. Ms. Mohamud sought medical treatment from Dr. A.R. Chaudhri and legal representation from the law firm of Pacevicius, Cord. In the second accident of April 29, 1996, Ms. Mohamud was one of six persons in a rented car which was involved in a hit and run at 3:00 in the morning. All six persons made accident benefits claims, and went to the same doctor, Dr. Safieh. Five of the six were represented by the law firm of Pignalosa & Associates.

Ms. Mohamud has given inconsistent evidence with respect to her accident benefit claims. She continued to represent to Dr. Chaudhri that she was injured from the first accident until at least January 1997. At the hearing, she claimed that she continued to be unable to perform her care giving activities up until the second accident of April 29, 1996. However, she stated to an occupational therapist in connection with her claim for caregiver benefits arising out of the second accident, that prior to April 1996 she had no limitations in respect of her care giving activities. One of these assertions is false. Either she had recovered from her injuries by the time of the second accident, in which case her assertion at the hearing (and to Dr. Chaudhri) that she was still very limited before the second accident was false, or else she had not recovered, in which case her representation to Axa Insurance in respect of the April 29, 1996 accident was false.

I conclude that neither Said Mohamud nor Adar Mohamud are credible witnesses.

The accident of November 14, 1994

Mr. Mohamud testified that he was travelling approximately 40 kilometres per hour when he failed to yield at a stop sign and struck a car travelling eastbound at approximately 50 kilometres per hour in the curb lane on Dixon Road. The front of the Ford Taurus struck the side passenger door of the Chrysler Sprint in a T-bone accident, both cars stopping immediately on impact and remaining in the curb lane on Dixon Road. I do not accept that the accident occurred as described.

There is reliable evidence that the rented Ford Taurus has been involved in a collision. Mr. Alan Billings, a mechanical engineer with expertise in collision reconstruction and the movement of occupants within a vehicle during an accident, examined the Ford Taurus in August 1995. He studied the front bumper and the impact isolators which are designed to absorb the impact of front end collisions. He concluded, based on the compression marks found on the isolators, that the car had never been involved in a collision involving a speed change of more than 3 to 8 kilometres. He also testified that collisions involving that level of speed change rarely cause bodily injury to the occupants of the vehicles. He testified that it was possible, based on the pattern of damage found on the Ford Taurus and the Chrysler Sprint, that the cars had come into contact with each other in a T-bone accident. However, he stated that based on the positions of the cars after the accident as described by Mr. Mohamud, the cars could not have been travelling more than 20 kilometres per hour before they met.

At its highest, the evidence demonstrates that the Ford Taurus, travelling at 20 kilometres per hour, may have come into contact with another car travelling 20 kilometres per hour. The speed change following the accident, which is what causes the occupants in the vehicle to move forward and back, could not have been more than 3 to 8 kilometres per hour, which was extremely unlikely to cause any injuries.

There are several pieces of evidence which, taken together, are more suggestive of a deliberate attempt to set up a claim for accident benefits, than of a genuine accident resulting in disabling injuries.

The occupants of the Ford Taurus claimed that after the accident, the vehicles remained close together in a T-bone pattern in the eastbound curb lane on Dixon Road. The driver of the Chrysler Sprint stated that the impact pushed his car to the other side of the road (across two eastbound and two westbound lanes).⁵ This is a considerable discrepancy.

Also, the driver and the passenger from the Chrysler Sprint claimed that Said Mohamud drove Mr. Issa (the passenger) home (370 Dixon Road), because of his injuries. Said Mohamud denied driving him home, emphasizing that he did not know these gentlemen. This is not a fact which could easily be confused, since 370 Dixon Road is some considerable distance from the scene of the accident. Further, it it unlikely that Mr. Said Mohamud would take a stranger home, leaving his sister to travel home by taxi with the two male passengers with whom she was barely acquainted.

The occupants of the two vehicles denied knowing each other, despite the coincidence that they all came from the same community, two of them lived in the same apartment complex,⁶ and two of them attended a business administration course at Shaw College at the same time.⁷

The occupants of the Ford Taurus gave no convincing explanation why they were all travelling in the vehicle when it was involved in the accident at midnight. Mr. Mohamud claimed he was playing pool at 2009 Lawrence Avenue West when he decided to pick up his sister from 320 Dixon Road (at Kipling), at 11 o'clock in the evening in order to drive her to a 24-hour variety store at Runnymede and Dundas to pick up bread and milk. A neighbour was asked to watch the children. After picking up these items, Mr. Mohamud decided to check out the restaurant and pool hall at Dundas and Keele, where members of his ethnic community meet. By now it was approximately 11:30 p.m. Mr. Mohamud stopped into the restaurant and pool hall briefly. After remaining a few minutes, he agreed to drive Mohiadin Esse and Abdullahi Osman, to the Dixon Road apartment complex. On the return trip, he drove to Roxaline Street so that Ms. Mohamud could note the telephone number of an apartment for rent there. He stopped briefly on Roxaline and then drove to the intersection of Roxaline and Dixon where the collision occurred.

The midnight ride appears to have no other purpose than to pick up individuals who subsequently became involved in a motor vehicle accident and claimed accident benefits.

Ms. Mohamud's Post-Accident Actions

I find that Ms. Mohamud's actions after the accident are more consistent with someone determined to pursue a financial claim for accident benefits than someone suffering injuries resulting from a car accident.

I find that Ms. Mohamud was not a credible witness. In addition to the false statement referred to earlier, Ms. Mohamud's evidence was vague, confusing and contradictory. She professed difficulty remembering the simplest details, such as the dates of the two accidents in which she was involved, the names of the doctors she visited, or the law firms she retained. She gave little evidence to support her claim, did not identify her pre-accident care giving activities, and was unable to explain how her injuries from the accident affected her ability to perform those activities. Ms. Mohamud appeared unwilling to commit to anything except the fact that she was involved in a motor vehicle accident and that she was entitled to benefits.

In marked contrast to her presentation as an unsophisticated individual, Ms. Mohamud has pursued two separate claims for accident benefits arising out of the accidents of November 14, 1994 and April 29, 1996. She retained separate doctors and separate law firms to represent her and she took some care to ensure that they remained unaware of each other.

After the November 1994 accident, Ms. Mohamud visited Dr. Arif Chaudhri on November 21, 24 and December 7, 1994, to complain of neck, back, chest and right shoulder pain, headaches, dizziness, insomnia and abdominal pain. She attended eight physiotherapy sessions between December 21, 1994 and January 19, 1995. After the Insurer refused to pay these expenses, or any other benefits, Ms. Mohamud sought no further medical treatment for the next nine months. Instead, she began attending courses at Msgr. Fraser College (Islington Campus) from January to June 1995. Her courses required her to be at school from 9:00 a.m. until 3:00 p.m. She never advised the Insurer of this, and the information only came to light when Ms. Mohamud's social assistance file, which she was ordered at the pre-hearing to produce, was delivered, under summons from the Insurer, to the hearing room.

While attending school, Ms. Mohamud received $453 per month from February 1995 to June 1995, from social assistance to pay for child care services. On the first day of the hearing, she produced signed receipts indicating that she had paid $400 per month for child care and $80 for TTC, from December 1, 1994 to August 1, 1995. She claimed these as expenses incurred because of injuries sustained in the accident. Thus, for the period February to June 1995, Ms. Mohamud was pursuing a claim for expenses for the same child care costs for which she had already been paid by social assistance.

Ms. Mohamud claimed to have paid these expenses on the first of the month, in advance, thus explaining the receipt signed on December 1, 1994. Since the accident occurred in mid-November 1994, it would be hard to justify a full month of child care expenses for a half month of disability. However, when interviewed by the adjuster on December 7, 1994, Ms. Mohamud stated that she had not yet hired anyone to help her.

Ms. Mohamud returned to visit Dr. Chaudhri three times in September 1995, filed her application for benefits in November 1995, and visited him once more in January 1996.

In April 1996, Ms. Mohamud was involved in another accident and made another claim for accident benefits to Axa Insurance, claiming an inability to carry out her caregiver abilities, as well as medical and housekeeping expenses. She failed to advise Axa Insurance of her previous accident and represented to them that she was fully functional prior to the accident. She visited Dr. Safieh in respect of this accident.

In September 1996, Ms. Mohamud settled her claim with Axa Insurance but failed to report the $9,000 in settlement funds to social assistance. When her caseworker discovered the funds, Ms. Mohamud submitted three signed receipts to demonstrate that she had spent the money on expenses, so that the funds would not be deducted from her social assistance. One receipt, signed by Gasim Mahumed, indicated that she had paid $2,880 for taxi fares. I find it highly unlikely that she paid $2,880 worth of taxi fares to one individual. Another receipt, signed by Dahir Abdi, indicated that she paid this person $2,000 to help her translate during the mediation. However, on many other occasions Ms. Mohamud used friends to provide translation services and did not indicate that they required payment for this assistance. The third receipt was signed by Maryan Warsame for $3,600 worth of babysitting services. She had earlier represented to Axa that she was incurring housekeeping expenses to Nelpha Abtrujat.

Having settled her case with Axa, Ms. Mohamud was able to turn her attention back to her claim with Royal. She visited Dr. Chaudhri in August, September, and November 1996 and January 1997. It appears from Dr. Chaudhri's report that he was unaware that Ms. Mohamud had been involved in a second motor vehicle accident. Dr. Chaudhri continued to assert in February 1997, that based on Ms. Mohamud's complaints to him, she was disabled from her care giving activities because of injuries related to the first accident.

Conclusion

The false statements made to insurers, the inconsistent statements of persons involved in the accident, the expert evidence, the unreliability of Said and Adar Mohamud's evidence and Ms. Mohamud's actions after the accident all lead me to conclude that Adar Mohamud filed an application for accident benefits for the purpose of financial gain and not because she suffered any injuries arising from a motor vehicle accident. I conclude that, regardless of whether the Ford Taurus was involved in a collision with another car on November 14, 1994, Ms. Mohamud has not satisfied the burden upon her of establishing that she was in the car or that she sustained any injuries in that incident. Accordingly, she is not entitled to any benefits.

Failure to Respond to Summons

The Insurer issued a summons to Dr. Arif R. Chaudhri to attend at the hearing. A copy of the summons, along with conduct money in the amount of $53 and a letter from the Insurer offering to arrange a convenient time for his attendance, was served on Dr. Chaudhri at his office at 1995 Weston Road at 10:35 a.m. on July 6, 1999. Dr. Chaudhri identified himself to the server. I am satisfied that Dr. Chaudhri was properly served with a copy of a summons requiring him to attend the hearing commencing on Monday, July 12, 1999. Dr. Chaudhri did not attend or offer any explanation for his non-attendance.

I am satisfied that Dr. Chaudhri's evidence was relevant to this proceeding. The Insurer had the right to review Dr. Chaudhri's clinical notes and records and cross-examine on the report he submitted in February 1997 in support of Ms. Mohamud's application for benefits.

A person who has been duly summoned and fails, without lawful excuse, to attend at a hearing may face contempt proceedings, under section 13 of the Statutory Powers Procedures Act.

EXPENSES:

The issue of expenses may now be spoken to.

August 5, 1999

M. Kaye Joachim Arbitrator

Date