Neutral Citation: 1999 ONFSCDRS 53

FSCO A97-000029

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SAMI BOUASSALI

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

K. Julaine Palmer

Heard:

December 7, 8, 9 and 10, 1998 and January 21, 1999, in Ottawa. Final written submissions were received on March 29, 1999

Appearances:

William A. Garay for Mr. Bouassali

Donna M. Crabtree for Zurich Insurance Company

Issues:

Sami Bouassali was injured in a motor vehicle accident on April 22, 1993 and received weekly income benefits from Zurich Insurance Company until April 26, 1994. In this arbitration, conducted under the Insurance Act, R.S.O. 1990, c.I.8, as amended, Mr. Bouassali disputed the termination.

The issues in this hearing are:

1. Is Mr. Bouassali entitled to weekly income benefits from April 27, 1994 to April 29, 1996, under the provisions of section 12(1) of the Schedule?¹

2. Is Mr. Bouassali entitled to weekly income benefits from April 29, 1996, and ongoing, under the provisions of section 12(5)(b) of the Schedule?

3. Is Mr. Bouassali entitled to a special award, interest, and his expenses of the arbitration?

Result:

1. Mr. Bouassali is not entitled to weekly income benefits from April 27, 1994 to April 29, 1996, except for the period September 3 to 18, 1995, for which he should receive a total of $1,059.21 in weekly income benefits.

2. Mr. Bouassali is not entitled to weekly income benefits from April 29, 1996, ongoing.

3. Mr. Bouassali is not entitled to a special award or interest. I have not determined the issue of expenses.

EVIDENCE AND ANALYSIS:

Background

Mr. Bouassali was injured in a motor vehicle accident on April 22, 1993, while driving his taxi. His head smashed into the windshield, causing undisplaced fractures to his face and subsequent sinus disease. Mr. Bouassali underwent two surgeries in 1995 and 1997 to correct this problem, including obliteration of some of his sinus cavities. He still requires one further operation to rebuild his forehead, with a bone graft from his hip. In addition, Mr. Bouassali suffered musculo-skeletal injury to his neck and back in the accident and complained of headaches and irritability.

Mr. Bouassali returned to driving taxi, part-time, on July 27, 1993, about three months after the accident. Zurich paid him weekly income benefits until April 26, 1994. The parties agree that the correct amount of Mr. Bouassali's weekly income benefit is $494.30, less the 80 percent deduction permitted by section 15 of the Schedule for any income received or available subsequent to the accident. Mr. Bouassali claims $100,750.92 in weekly income benefits from April 28, 1994 to December 4, 1998. He is not claiming for the interval between July 27 and November 9, 1997, except for three weeks when he said he was in too much pain to work. He also does not claim for the period from May 18 to September 13, 1998. During those periods, Mr. Bouassali was out of the country on vacation.

In this arbitration, Mr. Bouassali contended that prior to the accident he worked an average of 15 to 17 hours per day, six or seven days per week. He says that after the accident he has not been able to work such long hours and, accordingly, has suffered an income loss because of a "substantial inability to perform the essential tasks of his ... occupation or employment," as set out in section 12(1) of the Schedule.

After April 29, 1996, Mr. Bouassali claims further weekly benefits, alleging the injuries he received in the accident continuously prevent him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience.

Zurich says that Mr. Bouassali returned to work in July 1993, part-time, and was released by his doctors to work full-time hours at the end of April 1994. Zurich contends that Mr. Bouassali's revenue records are incomplete and understate his true post-accident revenues by fifty percent or more. Zurich says that Mr. Bouassali can perform his essential tasks as a taxi driver and that the test is not whether he can work as many hours as he did before the accident.

The Case Law: What is Substantial Inability?'

Zurich paid Mr. Bouassali weekly income benefits for a year after he was hurt, despite the fact that he returned to work, part-time, after about three months. Mr. Bouassali is claiming further weekly income benefits until April 29, 1996. He is entitled to them only if he can establish, on a balance of probabilities, that he suffered a "substantial inability to perform the essential tasks of his ... occupation or employment" during that time. Past cases have interpreted this language to mean that an impairment must be a "sizable inability, not [just] some inability."² Arbitrators and appeal officers have held that the accident injuries must have caused a "large and important impairment of his ability."³ The inability to perform one's essential tasks must be "relatively great in size of importance."⁴ It is settled law that the test is a functional one and pain, itself, is not compensable unless it is disabling.⁵

An arbitrator must consider the insured person's activities individually, determine "whether they were tasks, and if so, were they essential, and if they were, what actions did they consist of, and finally which of these actions in relation to each was [the insured] ... substantially unable to perform."⁶

In the Chudy and West Wawanosh Mutual Insurance Company⁷ case, Arbitrator Allen held that a return to work creates a rebuttable presumption of the ability to do the job. I agree with her analysis. It applies in Mr. Bouassali's case. I also find it relevant to consider cases where applicants have alleged an ability to do some job tasks but not others. In the Flemming and Wawanesa Mutual Insurance Company case,⁸ involving a real estate agent, Arbitrator Naylor held the regulations "contemplate inability to perform the duties of remunerative work," i.e. "in a manner, at a speed or for a time that renders such performance capable of being remunerative." Arbitrator Naylor found Ms. Flemming could not work the long and unpredictable hours required of a real estate agent. She could only do some parts of her job for a short time, but not on a steady basis.

Arbitrator Makepeace followed Flemming in Rajbir Singh and Wellington Insurance Company.⁹Singh involved a taxi driver, who, like Mr. Bouassali, had returned to work. Mr. Singh's evidence was that he had worked approximately 12 hours a day, seven days a weeks prior to the accident. He returned to work, after two years and eight months, but worked only two days of every five. Arbitrator Makepeace wrote:

I find that Mr. Singh is entitled to weekly income benefits during the period in which he is substantially unable to return to his pre-accident occupation on a reasonably remunerative basis. In Mr. Singh's case, this means that he is entitled to receive weekly income benefits until he is able to work enough hours with sufficient productivity to provide a reasonable return. I accept that Mr. Singh must work a full week, close to 12 hours a day, with few breaks, in order to make a reasonable living.

At the time of the hearing, the "two-days-on, three-days-off" pattern appeared to be working. The Applicant concedes that under section 15 of the Schedule, the Insurer is entitled to reduce his benefits by 80 per cent of any income received by or available to him after the accident.

In this case, not much attention was given to proving Mr. Bouassali's essential tasks. It appears Mr. Bouassali admits he can perform the essential tasks of a taxi driver, but not for the same number of hours per day as before the accident. The difference in his ability, he submits, is "substantial."

Credibility

Little objective medical evidence was presented at the arbitration that supported Mr. Bouassali's claim of substantial disability, apart from Dr. Laframboise's evidence of two distinct periods in 1995 and 1997, corresponding with his two sinus surgeries. Mr. Bouassali's claim that he has been substantially unable to perform his essential tasks as a taxi driver was presented largely through self-generated financial documentation that purported to show his income both before and after the 1993 accident. My findings with respect to the reliability of this documentation are critical to my assessment of Mr. Bouassali's ability to perform his essential tasks. I set out the evidence below, in detail, since a close examination of the evidence has been required to gauge its reliability.

In weighing Mr. Bouassali's evidence, I have followed the recommendation of Mr. Justice O'Halloran of the British Columbia Court of Appeal to test the harmony of his testimony with the preponderance of the probabilities that a practical and informed person would recognize as reasonable in the circumstances.¹⁰

Evidence of Pre- and Post-Accident Hours & Income

Mr. Bouassali submitted he met the substantial inability test because his taxi income has significantly decreased since the accident. I accept that comparing the hours Mr. Bouassali has worked since the accident and his income, compared to his hours and earnings before the accident, may assist in the determination of the extent of Mr. Bouassali's disability. How valuable this evidence is depends on the credibility of the testimony and the authenticity of the records substantiating the hours of work and earnings. In addition, credible testimony or records post-dating the accident do not by themselves prove ability or inability to perform his essential tasks as a result of injuries received in the accident.¹¹

Mr. Bouassali was the only witness who testified about his income. All business records filed were compiled by Mr. Bouassali, himself, or by his bookkeeper, from documents provided by Mr. Bouassali. No witness testified to support Mr. Bouassali's testimony about his hours of work before the accident, his hours since the accident, or his alleged loss of income. At least three other adults live in the same home as Mr. Bouassali.

Mr. Bouassali testified that he worked many more hours per week before the accident than after. He testified in the early 1990s, he owned his own taxi and had no specific work hours. While he attended college, he had a second driver, but after he dropped out of college, he had the taxi 24 hours a day. He testified that at the beginning of 1993 his hours varied widely—one day he would take 12 hours off, and the next day only 4 hours off. He could work from 7:00 a.m. to 2:00 a.m. On Sunday, sometimes he did not work. On Saturday, he often slept during the day, to make up for working 20 hours on Friday. His income for three or four days could be totally different from another three or four day period.

In a statement given to an adjuster on October 15, 1993 Mr. Bouassali contended that he worked "16 to 17 hours daily" before the accident. "My monthly sales averaged about $5000 working 6 to 7 days per week." He confirmed these hours of work in his cross-examination at the arbitration. In his testimony in chief, he stated that at the beginning of 1993, before this accident, on average he worked "around 15, 16 hours" per day.

After the accident, Mr. Bouassali contends he worked much less. He no longer owns his own taxi, but instead rents a taxi from his uncle, paying $300 per week, plus fuel. His uncle pays all other expenses. Mr. Bouassali takes the taxi for one 12-hour shift and his uncle drives the other shift. Normally, a shift runs from 4:00 or 4:30 for 12 hours. Earlier in his recovery Mr. Bouassali rented a taxi from one of his brothers, for $55 a day.

I find Mr. Bouassali's record keeping deteriorated significantly after the accident. Although the basis of his claim here is that he can now work less, he never kept any record of his hours of work, either before or after the accident.¹² Mr. Bouassali admitted, however, that after the accident he was asked to keep income records, so he continued. Until the accident in April 1993 he recorded his charged fares separate from his cash fares. After the accident, he recorded only fares, not the method of payment. Until September 1, 1994 Mr. Bouassali recorded individual fares, including tips, in even dollar amounts (gross revenue) and logged his car wash and fuel expenses daily. Beginning September 1, 1994 Mr. Bouassali recorded only daily total gross revenue, not individual fares. He continued to log his car wash and fuel expenses. When asked why he changed his method of recording, he said he did not remember, so far as the charged or cash fares were concerned. With respect to the change in September 1994, he had no reason. He admitted that he knew he was claiming against Zurich and a third party that he was earning less income after the accident than before.

Before the accident Mr. Bouassali claims to have worked 90 to 119 hours per week on average, that is an average of 15 to 17 hours per day, six or seven days per week. Based on his reported 1992 net business income of $21,420 for eight months, extrapolated to 12 months, the parties agreed that Mr. Bouassali netted about $32,130 per year and would be entitled to $494.30 per week in IRBs.

No one except Mr. Bouassali testified about his hours of work before or after the accident. Other documents in evidence also reflected what Mr. Bouassali told others about his work history, for example, the reports of Dr. Gillen and Dr. Giacone. I place little weight on the fact that Mr. Bouassali is recorded to have stated to doctors and other health professionals as well as the adjuster that he worked 16 to 17 hours per day, 6 or 7 days per week. The repetition of this statement only proves consistency of the claim, not the accuracy of the information. By the time of the arbitration hearing, in testimony in chief, the figure had changed to an average of 15 to 16 hours per day. I doubt that Mr. Bouassali averaged 15 to 17 hours per day, six or seven days per week before the accident, although I have no doubt that on days when the taxi business was brisk, he worked as long as that. However, in my view whether I am persuaded that Mr. Bouassali worked this much before the accident is not determinative of the issues before me.¹³

Reliability of Post-Accident Income Figures

After the accident, Mr. Bouassali no longer recorded his charged fares separately from cash fares. For charged fares, a voucher would be collected for each trip. These vouchers were cashed at the Capitol Taxi office, usually weekly. Mr. Bouassali testified that charged fares could account for a substantial portion of his daily revenues. Copies of charge vouchers would be documentary evidence that would independently confirm a proportion of Mr. Bouassali's post-accident income.

In 1993 and the first eight months of 1994, Mr. Bouassali recorded fares, including tips, in even dollar amounts. He testified that he would sometimes combine fares, so that a five dollar fare followed by a four dollar fare might be recorded as nine dollars. He also testified that his records were not "perfect" and that he sometimes missed recording a fare. Sometimes he would record a fare that was not actually paid until later. Sometimes a trip taken late on one shift would be recorded as being taken the next shift. However, Mr. Bouassali did testify that, in general, his records by the week's end accurately reflected his income and expenses for the week. He testified that he kept the records to prepare his income tax return.

When Mr. Bouassali testified in-chief about the accuracy of his recording methods, his evidence created the impression that it was tailored to minimize the effect of the surveillance, which he had reviewed prior to the hearing. Zurich's surveillance on some days showed that Mr. Bouassali had taken more fares than were recorded by him. Subsequently, Zurich's investigator, as well as Mr. Bouassali's legal assistant, separately retraced the same trips, related to two days of surveillance, and found that the meter readings on the retraced routes (excluding tips) far exceeded the amount of revenue recorded by Mr. Bouassali for that date.

Mr. Bouassali also retraced some of the routes, during the night shift before the final day of hearing. He recorded his meter readings, which generally were somewhat lower than those of Zurich's investigator, and his own legal assistant.

Mr. Bouassali's counsel submitted that I should deduce from this evidence that "the fares are always different" even for the same trip. On the contrary, disregarding the initial fare on exhibits 26 and 27, the impression that these exhibits convey is that the fares are remarkably similar. The evidence collected by Mr. Bouassali's legal assistant essentially confirmed the evidence of Zurich's investigator. Even Mr. Bouassali's recording of the meter readings was not significantly different from the other two readings.

However, Mr. Bouassali's contemporaneous business records show than on Monday, January 24, 1994 he received six fares and grossed $67. According to his testimony, this amount included any tips he received. Zurich's investigator, on the other hand, observed Mr. Bouassali take 13 fares from 5:35 p.m. until he lost track of him at 4:48 a.m., near the end of the shift. Subsequent investigation established these fares were worth approximately $125. Mr. Bouassali's legal assistant recorded the fares at $128.80. Both these figures are exact meter readings, without tips. Even Mr. Bouassali, doing the routes himself in the middle of the night, totaled $101.30 in gross revenue. I accept that a reasonably accurate account of the earnings for these trips would be between $101.30 and $128.80, without tips.

Mr. Bouassali was closely observed on January 24, 1994 from 5:35 p.m. when he started work until 4:48 a.m. I find he began his shift by fuelling his vehicle, then took 13 fares. I accept that the investigator lost sight of him four times during the night—from 7:31 to 8:36 p.m., from 9:05 to 10:27 p.m., from 1:30 to 2:02 a.m., and from 4:07 to 4:19 a.m. On each occasion when Mr. Bouassali was lost from view in the downtown area, he was later relocated in the downtown area of Ottawa. The taxi was not in Mr. Bouassali's driveway when the investigator checked at 5:01 a.m. Mr. Bouassali arrived home in the taxi at 5:47 a.m. In my view, this evidence supports the conclusion that Mr. Bouassali had a working day of 12 hours that day. I draw this conclusion even though I accept that during the four periods when he was not observed, Mr. Bouassali could have been taking rest breaks or not driving. I do not accept that $67, including tips, is a reasonably accurate reflection of Mr. Bouassali's earnings on January 24, 1994.

Two weeks earlier, on Tuesday, January 11, 1994, Zurich's investigator observed Mr. Bouassali begin work at 5:44 p.m. by fuelling his vehicle, then attending at a garage until 7:50 p.m. He observed him take 10 fares from 8:15 p.m. to 3:10 a.m. The investigator lost track of him for an hour between 3:10 a.m. and 4:10 a.m. Mr. Bouassali returned home at 4:50 a.m. Mr. Bouassali recorded that he took six fares on that date, for gross revenue of only $50. The day prior he recorded five fares and the day after eight fares. Since his expenses for that day were $61.70, Mr. Bouassali's records show that he lost $11.70 on that shift. I find on January 11, 1994 Mr. Bouassali had a working day of approximately 11 hours, although about two hours of that shift were spent at a garage. I find that he took at least ten fares during that shift. The fares on this date were not retraced by either the insurer's investigator or Mr. Bouassali's legal assistant. Mr. Bouassali was also surveilled on Monday, January 17, 1994 from 8:46 p.m. until 4:08 a.m. The investigator observed Mr. Bouassali take seven fares during his period of observation. The investigator lost sight of Mr. Bouassali from 9:22 to 10:06 p.m. and from 10:42 p.m. to 12:12 a.m. During the latter period, the investigator checked Mr. Bouassali's residence at 11:50 p.m., but the taxi was not there. On both occasions, the investigator lost contact with Mr. Bouassali's vehicle in downtown Ottawa and re-established surveillance of him in the downtown area. Sometime after 4:08 a.m. Mr. Bouassali returned home, since the taxi was there when the investigator checked at 6:17 a.m. Mr. Bouassali recorded taking eight fares during this shift. In my view, this evidence supports the conclusion that Mr. Bouassali worked at least 7½ hours that day. I draw this conclusion even though I accept that during the two earliest periods when he was not observed, Mr. Bouassali could have been taking rest breaks or not driving, and that he might have returned home by approximately 4:15 a.m.

On February 8, 1994, Mr. Bouassali completed an Earnings Statement for the two-week period January 17 to 31, 1994. In that report, he claimed he worked four to six hours per day and 64 hours over the two weeks. He claimed he grossed $1,083 and netted $248.90 in income. This period of reporting includes January 17 and 24, 1994 when Mr. Bouassali was under surveillance. I find that for at least those two days, Mr. Bouassali under-reported his hours of work.

When similar surveillance was conducted more than four years later, on Tuesday, March 3, 1998 during a day shift, the investigator observed Mr. Bouassali from 7:20 a.m. until 4:47 p.m. The investigator observed him take 16 fares, which subsequently were retraced to $101.80 without tips. Mr. Bouassali's legal assistant retraced the fares at $99.70. Mr. Bouassali recorded in his notebook that he grossed $76 that day and claimed car wash and fuel expense of $14. Mr. Bouassali did not record the number of fares. The investigator did observe Mr. Bouassali use a car wash. During that day the investigator lost sight of Mr. Bouassali for 42 minutes in the morning, from 8:20 to 9:02 a.m. The investigator lost Mr. Bouassali's taxi in the downtown traffic and picked it up again in the downtown area. I find that $76 is not a reasonably accurate reflection of Mr. Bouassali's earnings on that day. I find that a reasonable amount for the trips observed would be approximately $100, without tips. Further, I find it reasonably probable that Mr. Bouassali would have taken additional fares during the period when he was not observed from 8:20 to 9:02 a.m., since this was during the morning rush hour.

In my view, Mr. Bouassali's record of post-accident income is not credible. The surveillance evidence seriously undermines his claim. Mr. Bouassali testified that he knew he was claiming ongoing weekly income benefits from Zurich after his return to work. He knew Zurich would deduct a percentage of his post-accident income from his weekly payments. He alone controlled the accuracy of his record of earnings. On two days, more than four years apart, when the accuracy of his record keeping was tested by almost continuous surveillance, I have found his records show that he substantially under-reported his gross revenues. On a third day, although his routes were not retraced, he reported four fewer fares than it was observed that he took and recorded a loss in his books for the day.

I do not accept Mr. Bouassali's contention that any single day's revenue record does not necessarily reflect his activities on that day i.e. that the records must be looked at on a weekly basis to be accurate. In my view, this excuse was developed by Mr. Bouassali in anticipation of Zurich's surveillance evidence which he knew did not follow him for six or seven days continuously. While I accept that any single day's activities might be slightly modified at the beginning or end of the record, and that two small fares might be combined, I find that Mr. Bouassali kept a record of his daily income and expenses which he has held out as being substantially accurate and intended to be viewed that way. I find that as Mr. Bouassali's understanding improved of how his post-accident income could be independently verified, his records became less complete and informative, beginning with the failure to separate charges and cash fares and ending with only a bald statement of the gross revenues for the day. I accept that a taxi driver may not keep perfect records. Perfection is not the standard that is expected. Mr. Bouassali did, however, collect GST on all his fares to remit to the federal government. He had an obligation to remit accurate sums. He also regularly filed personal income tax returns. Quite apart from any dealings with Zurich, he understood his obligation to keep track of his earnings and his expenses. He certified that the information given on his income tax return and the documents attached to it were correct, complete, and fully disclosed all his income. The information in the income tax returns is based on the daily records Mr. Bouassali kept, which I have found to be unreliable. Mr. Bouassali understood that by minimizing his post-accident income he would maximize his claims against Zurich and the tortfeasor. Mr. Bouassali knew that he alone controlled the completeness and accuracy of his records and that independent verification would be very difficult. I find that he succumbed to the temptation to understate his earnings after the accident rather than report them honestly.

For these reasons, I conclude that Mr. Bouassali's evidence of his post-accident income fails the test of being in "harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions."¹⁴

The conclusion that Mr. Bouassali's evidence of his post-accident income fails to meet an acceptable standard of credibility, impacts severely on his other testimony. In a case like this, where the claim is based primarily on subjective pain complaints, credibility is particularly important.

Even if Mr. Bouassali often worked more than 84 hours per week before the accident, in my view, his restriction to a maximum 12-hour shift after the accident does not translate into a "substantial inability to perform the essential tasks of his occupation or employment." Mr. Bouassali's ability to work up to a maximum 12-hour shift is not a sizable or major disability. I heard no evidence of any essential or key task that he could no longer perform. The surveillance evidence casts doubt on the veracity of Mr. Bouassali's statements that he cannot work 12 hours.

Mr. Bouassali's subjective opinion and testimony of how long he is able to work is tarnished by his lack of credibility in presentation of his post-accident income. His own views about his limitations "no matter how sincerely held, are not determinative."¹⁵ I find Mr. Bouassali is restricted to a maximum 12-hour work shift by his arrangement with his partner on the taxi, his uncle, John Khoury. I find that if he had his own cab 24-hours-a-day, as prior to the accident, he would be capable of working as many hours as he cared to, as he did before the accident.

I find Mr. Bouassali is capable of working a 12-hour shift as a cab driver, with normal and reasonable breaks, as are available to him in a job of this nature. I do not find that after April 27, 1994 the injuries he received in the accident substantially impaired him from performing his essential tasks. I find that he was able to sit, drive, make conversation with his passengers, make change and give receipts, clean his cab windows, and generally perform the regular duties of a cab driver. I find he was able to assist with the packages and luggage of his passengers.

I also find that the nature of his occupation enables him to make reasonable and practical modifications that enable him to carry out his essential tasks. For example, Mr. Bouassali expressed dissatisfaction that no investigation video could show how he must readjust his seating position in his cab from time to time to be as comfortable as possible. In my opinion, this ability to vary his position shows Mr. Bouassali is able to cope reasonably with the minor residual discomforts resulting from the 1993 accident. The Schedule compensates for substantial functional impairments, not less serious impediments such as those remaining for Mr. Bouassali.

The exception to Mr. Bouassali's substantial ability to perform his essential tasks occurred in the period immediately prior to and after the September 7, 1995 surgery on his sinuses. Mr. Bouassali did not work from September 3 to 18, 1995, inclusive and I find during this time he was substantially unable to perform the essential tasks of a taxi driver and that he should receive weekly income benefits during that period. For 15 days this is calculated as $1,059.21.¹⁶

Medical Evidence

For the sake of completeness, although my conclusion on Mr. Bouassali's entitlement is already plain, I will review the medical evidence about his disability.

Zurich does not dispute that Mr. Bouassali sustained facial bone fractures in the accident and that he had headaches caused by the subsequent sinus infection. However, Zurich says the headaches were not so severe as to disable Mr. Bouassali from returning to full-time work in May 1994.

Mr. Bouassali underwent the first sinus surgery on September 7, 1995. He did not work from September 3 to 18, 1995, inclusive. He also did not work from February 7 to 26, 1997 before his second sinus surgery, performed on February 27, 1997. Mr. Bouassali testified that during this latter period he suffered from disabling head pain. He also had to attend for pre-operative testing. After the surgery, he did not return to work until May 1, 1997. Dr. Georges Guy Laframboise, Mr. Bouassali's treating specialist, testified that a period of one to two months of convalescence after the surgery would be appropriate for Mr. Bouassali's case.

Since his return to work after the second surgery in May 1997, Mr. Bouassali has had two long periods off work. He did not work for 3½ months, from July 26 to November 10, 1997, or for 4 months, from May 17 to September 13, 1998. He is not claiming Zurich should pay him weekly income benefits for this time, except for three weeks in the summer of 1997, when he says he could not work because of pain. Mr. Bouassali spent about six weeks in 1997 and about three months in 1998 in the Middle East.

Dr. Martin Gillen, a physiatrist, was retained by Mr. Bouassali as a medical-legal expert. Dr. Gillen reviewed Mr. Bouassali's history and performed a detailed clinical assessment of him on September 9, 1998. Dr. Gillen concluded that Mr. Bouassali suffered multiple facial fractures and lacerations. This was associated with a "probable head injury component." Dr. Gillen also accepted that Mr. Bouassali had been diagnosed with "fairly diffuse spinal column pain" that he felt was a thoracic facet dysfunction with associated cervical and myofascial components, and what appeared to be post-concussional or post-traumatic headaches. He believed that Mr. Bouassali had developed a persistent chronic pain syndrome.

Based on what Mr. Bouassali told him about his pre-accident work hours, Dr. Gillen concluded that Mr. Bouassali was performing at about one-quarter of his reported pre-accident level of productivity. Dr. Gillen admitted on cross-examination that his analysis of Mr. Bouassali's ability to work was only as accurate as the information Mr. Bouassali provided to him. Because of my conclusions about the credibility of Mr. Bouassali's testimony about his post-accident hours and income, I give little weight to Dr. Gillen's assessment about Mr. Bouassali's ability to work.

Zurich's representative testified that she knew that Mr. Bouassali had returned to work, part-time, about three months after the accident. The rehabilitation caseworker engaged by Zurich coordinated supplemental investigations relating to Mr. Bouassali's recovery, in addition to those arranged by his own treating practitioners. Based on Mr. Bouassali's neurologist's recommendation, the caseworker arranged a neuropsychological examination by Dr. Clare Stoddart, Ph.D., who ultimately concluded, in January 1994, that Mr. Bouassali's neuropsychological tests showed no clear evidence of cerebral dysfunction. Dr. Stoddart reported that Mr. Bouassali performed well on measures of executive skills considered sensitive to frontal lobe functioning. She did not feel he required further neuropsychological assessment.

By March 1994, according to Zurich's representative, the last barrier to Mr. Bouassali's full-time employment appeared to be his vision problems. Mr. Bouassali continued to report a burning sensation in his eyes and intermittent headaches. Mr. Bouassali was examined by Dr. James Mount, a specialist in neuro-ophthalmology, in February, April, June, November, and December 1994, according to the OHIP records filed in the arbitration. Two reports from Dr. Mount dated April 14, 1994 and June 6, 1994 were filed by the Applicant. In addition, Zurich filed a handwritten report from Dr. Mount, apparently dated April 24, 1994 (although the rehabilitation consultant's report, dated three days earlier on April 21, 1994, details her subsequent contact with Dr. Mount and his office).

In April 1994, Dr. Mount diagnosed defective vision in Mr. Bouassali's left eye, which he felt could be compatible with an injury to Mr. Bouassali's optic nerve.¹⁷ Such an injury was ruled out by a CT scan in May 1994. Dr. Mount concluded that Mr. Bouassali's visual acuity and field was adequate to qualify as an automobile driver. According to his report, he had some difficulty in interpreting the field study findings due to inconsistent behaviour and hoped to repeat some tests in about four months' time. From the OHIP records, it would appear the studies were repeated in November 1994 and reviewed with Mr. Bouassali in December, but no records relating to those examinations were filed.

Zurich's rehabilitation consultant, in her report of April 21, 1994, details her contact with Dr. Mount and her understanding that he felt Mr. Bouassali's visual complaints should not limit his ability to drive taxi full-time. She forwarded a "sign back" letter to Dr. Mount, but only the draft copy, not a signed copy, was filed. The rehabilitation consultant next met with Dr. Max della Zazzera, Mr. Bouassali's family doctor, on May 3, 1994 to determine his opinion about Mr. Bouassali's return to full-time taxi driving. He returned a "sign back" letter to her on May 10, 1994 that supported Mr. Bouassali's return to work on a full-time basis. The pertinent portion of that letter reads as follows:

You advised me that your last appointment with Mr. Bouassali was in September 1993 at which time he presented to you with an allergic reaction. He has had miscellaneous complaints since that time not related to the accident. Following review of all medical reports from the treating specialists you are of the opinion that Mr. Bouassali has reached his pre-accident status. For this reason you support his return to his occupation as a Taxi Driver on a full-time basis.

Zurich's representative testified that these reports, coupled with the surveillance evidence, brought her to the conclusion that Mr. Bouassali was performing the essential tasks of his occupation and was capable of working full-time. Zurich terminated weekly income benefit payments to Mr. Bouassali effective April 27, 1994.

On November 22, 1995, Dr. della Zazzera responded to a letter from Mr. Bouassali's lawyer to explain his position in May 1994.¹⁸ Dr. della Zazzera indicated that he had only seen Mr. Bouassali once in recent months, in May 1995, about his sinus pain. Before that, he had last examined him in January 1994. Dr. della Zazzera wrote:

It is more accurate to say that my opinion was that Mr. Bouassali had reached his pre-accident status based on reports from the treating specialists and the fact that the patient had not brought to my attention any postaccident symptoms since August 1993.

From a cursory review of the medical brief forwarded to him, Dr. della Zazzera summarized that Mr. Bouassali's headaches seemed to have subsided to his pre-accident frequency, but could have been exacerbated by his head injury related to the accident. The doctor felt the neuropsychologic assessment¹⁹ did reveal dysfunction, but since there was no pre-accident assessment, no objective measures existed for comparison. Dr. della Zazzera felt that the trauma could explain Mr. Bouassali's visual symptoms and the fluctuation in visual acuity. With regard to Mr. Bouassali's lower back, Dr. della Zazzera wrote:

I am not aware if his symptoms are ongoing and persisting. I presume they are not or are minimal, otherwise he would have raised this issue with me.

Dr. della Zazzera concluded by saying that depending on the degree of Mr. Bouassali's subjective symptoms, he would not be able to perform in the same manner as he had prior to his motor vehicle accident.

According to the OHIP records provided, between May 10, 1994 and May 5, 1995 the only medical services billed to OHIP for Mr. Bouassali were the visits to Dr. Mount in June, November and December 1994. Mr. Bouassali did not receive any medical treatment for which OHIP paid from December 21, 1995 to March 21, 1996. The OHIP records provided end in March 1997. Although different interpretations of lack of medical treatment are possible, and Dr.Gillen enumerated several of these at the hearing, in my view, Mr. Bouassali's pattern of treatment suggests that if he perceives he has a significant problem, he pursues not just medical, but specialist consultations.

At the hearing, Mr. Bouassali testified that his prescription glasses help his vision and he is supposed to wear them, but he does not. He testified that his eyesight is not much of a problem and that he can live with his occasional neck pain. He stated that if he had no other problems except his eyes and neck, he could not work at 100 percent, but he could survive. No opinion was before me that connected any failure to wear prescribed lenses with his ongoing headaches. Mr. Bouassali testified, however, that he must change position every 10 or 15 minutes, whether standing or sitting to avoid pain in his low back. He testified that most of the pain in his face has gone away since the second sinus operation in May 1997, but he still feels a sensation of occasional facial numbness or pressure, not pain, in his face. Mr. Bouassali testifed that before the accident he only experienced "normal" headaches which were controlled within one to two hours by Tylenol. He testified that he mostly slept well before the accident, although he had seen the doctor about insomnia. Since the accident, he has some problem awakening with pain. He denied any problems with memory or concentration before the accident. He testified that he has become more impatient since the accident. He testified that he may have suffered from depression since the accident, but he has not received any treatment.

Mr. Bouassali claims he continues to suffer from headaches. He has had consultations with at least three neurologists since the accident. He failed to follow through with medication recommended or prescribed by some of the neurologists to attempt to control these headaches, preferring Tylenol no.2 or 3 for pain relief. As early as October 1993, Dr. Giacone warned him about the rebound effect of longterm use of Tylenol with codeine for head pain. Dr. McIlraith advised him to eliminate caffeine, eat every two hours, and keep to a regular sleep pattern in March 1996, as well as to limit Tylenol with codeine to one or two days per week. Until recently Mr. Bouassali has continued to smoke, despite consistent advise that this is especially to be avoided by those with sinus problems. Mr. Bouassali's failure to follow through on many of the recommendations of these specialists, as well as significant periods where he has not sought any medical treatment whatsoever, tend to enhance my view that the headaches are not generally as serious as he has claimed.

Some expert evidence before me connected some of Mr. Bouassali's medical complaints with stress. In order to be successful in a claim under the Schedule, it is not necessary that accident-related injuries be the sole cause of symptoms, but they must be major contributing factors. If stress is causing or exacerbating some of Mr. Bouassali's complaints, then in my view, the source of the stress is not closely linked to the accident. Mr. Bouassali consulted a urologist in 1996 and again in 1998, about significant problems no one has associated with the accident. Since the summer of 1998 he has suffered stress because his new wife has not yet joined him in Canada.

In my view, Mr. Bouassali's ongoing complaints do not cause sufficient disability to meet the "substantial inability" test. The degree of disability is not sizable or a "large and important impairment of his ability."²⁰ He has continued to work at the same job as he performed before the accident, since the end of April 1994, the time frame with which this arbitration is concerned.

Based on the medical and psychological evidence filed at the hearing and Mr. Bouassali's own testimony about his symptoms, I find that he has not proven that since April 27, 1994 he has suffered from physical, psychological or mental injury from the accident that would substantially disable him from carrying out the essential tasks of a taxi driver.

Weekly Benefits from April 29, 1996, ongoing

Since I have found that Mr. Bouassali has not met the onus of proof of entitlement to weekly benefits on the basis of a substantial inability to perform the essential tasks of his own occupation, in the ordinary case I would not need to consider whether he meets the more stringent test of section 12(5)(b) of the Schedule of proving that "the injury continuously prevents the insured from engaging in any occupation or employment for which he or she is reasonably suited by education, training, or experience" for the period after April 29, 1996.

However, I do find that Mr. Bouassali was disabled from engaging in any occupation for which he was reasonably suited during the period February 7 to 26, 1997 as a result of disabling head pain before his sinus obliteration surgery, performed on February 27, 1997. Mr. Bouassali did not return to work until May 1, 1997. Dr. Laframboise testified that a period of one to two months of convalesence after the surgery would be appropriate for Mr. Bouassali. I accept Dr. Laframboise's opinion and find that Mr. Bouassali was disabled from engaging in any occupation for which he was reasonably suited during the period February 7 to April 30, 1997.

However, in order to be eligible for weekly benefits after the end of April 1996, Mr. Bouassali must present evidence that the injury continuously prevented him from engaging in any occupation or employment for which he is reasonably suited by education, training or experience. Only a few cases before the Commission have considered the meaning of the words "continuously prevented." Dictionary meanings of the word 'continuous' define it as 'uninterrupted' or 'without interval or break.'²¹ In the Applicant's additional written submissions he referred to the case of Fowlie v. Co-operators Group Ltd., [1986] O.J. No. 1962. In Fowlie, the Court concluded that Mrs. Fowlie's disability fell within the definition of "continuously prevented" because her condition was subject to "flare-ups," the onset and duration of which could not be predicted. Mrs. Fowlie's situation is not comparable to Mr. Bouassali's. In this case there is no evidence of disabling flare-ups. Similar comments apply to the case of Earl v. Lang, [1997] O.J. No. 739, where the unpredictability of Mrs. Earl's very few good days led the Court to conclude she was disabled within the meaning of section 12(5)(b) of the Schedule.

Zurich submitted for consideration Mr. Justice Steele's decision in Newton v. The General Accident Assurance Company, [1988] I.L.R. & 1-2296 (Ont. S. Ct.), which involved interpretation of the language of Schedule 'C' to the Insurance Act, R.S.O. 1980, c.218, as amended. In that case, Mr. Newton returned to his job after receiving accident benefits for 104 weeks. A year later his leg gave out due to knee injuries suffered in the accident and he was unable to work at heavy labouring jobs. Justice Steele held that the language of Schedule 'C' required him to look at Mr. Newton's ability to work at the end of the 104-week period. He wrote:

In my opinion, if, at the end of the 104-week period, an insured is able to pursue employment for which he is reasonably suited, there is no obligation upon the insurer to continue such payments. If at some later time the injuries from the motor vehicle accident should preclude the insured from continuing in such employment, there is no obligation upon the insurer to recommence the payments. The word "continuously" in paragraph (c) reinforces this view.

In the Newton case, the language being interpreted prescribed that "no payments shall be made for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury continuously prevents" a person from engaging in any occupation for which he is reasonably suited. In the present case, the language is somewhat modified. This Schedule prescribes no weekly benefit is required to be paid "for any period in excess of 156 weeks unless it has been established that the injury continuously prevents the insured from engaging in any occupation" for which he is reasonably suited. The requirement to look strictly at the time when weekly benefits end under the "own occupation" test is no longer there, but the necessity for continuity of disability remains.

In my view, Mr. Bouassali's three month disability in the spring of 1997, although a significant period, does not meet the test of continuity. This period of disability was a temporary interruption in a life in which he was otherwise substantially able to carry out the essential tasks of his job as a taxi driver. In my opinion, the Schedule does not provide for compensation for such occurrences when they happen in the post-156 week period.²²

Special Award:

I do not find that Zurich unreasonably withheld or refused to pay weekly income benefits to Mr. Bouassali after April 27, 1994. Accordingly, no special award, under section 282(10) of the Act is payable.

EXPENSES:

If the parties cannot agree on entitlement to expenses of the arbitration, either party may apply to the Registrar for an appointment for me to determine the issue.

March 31, 1999

K. Julaine Palmer Arbitrator

Date

Neutral Citation: 1999 ONFSCDRS 53

FSCO A97-000029

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

SAMI BOUASSALI

Applicant

and

ZURICH 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. Mr. Bouassali's claim for further weekly income benefits is dismissed.

March 31, 1999

K. Julaine Palmer Arbitrator

Date

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. ...

The trial Judge ought to ... say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents On or Between June 22, 1990 and December 31, 1993, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
2. 2Steele and Zurich Insurance Company, (OIC A-001024, December 3, 1992).
3. 3Lee and UnifundAssurance Company, (OIC P-000078, September 14, 1993).
4. 4Whitney and Cooperators General Insurance Company, (OIC P-00100, July 10, 1996 ).
5. 5Downs and Allstate Insurance Company of Canada, (OIC A-00064, July 18, 1991).
6. 6Simpson and Royal Insurance Company of Canada, (OIC P-00386, August 22, 1996).
7. 7Chudy and West Wawanosh Mutual Insurance Company, (OIC A96-000924, January 23, 1997).
8. 8Flemming and Wawanesa Mutual Insurance Company, (OIC A-000406, April 28, 1992)
9. 9Rajbir Singh and Wellington Insurance Company case, (OIC A-004139, June 24, 1994). In the Singh case, Arbitrator Makepeace was not asked to deal with the change in eligibility under section 12(5) of the Schedule.
10. 10In Hopaluk v. Transx Ltd., (1998) 1998 CanLII 17669 (MB CA), 164 D.L.R. (4th) 82 the Manitoba Court of Appeal considered the question of the credibility of the witnesses heard by the trial judge. The court cited comments of the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, where Mr. Justice O'Halloran wrote as follows:
11. 11Arbitrator Allen also makes this clear in the Chudy case, cited above, at page 12: "Her time off work does not automatically prove an incapacity to perform a job."
12. 12The single exception in evidence relates to a two-week period from January 17 - 31, 1994 (Exhibit 9.7).
13. 13My reasoning for this conclusion is set out after the discussion of the surveillance evidence, on pp. 14-15, in the paragraph beginning: "Even if Mr. Bouassali...."
14. 14Justice O'Halloran in the Faryna case, cited above.
15. 15See Bertsouklis and Liberty Mutual Fire Insurance Company, (OIC P-006499, May 28, 1996), at p.6.
16. 16$494.30 x 2 + (494.30 divided by 7) = $1,059.21.
17. 17In medical parlance, Dr. Mount's diagnosis was a left-side amaurotic pupil with homonymous incongruous hemianopsia. He thought this condition could be compatible with chiasmatic injury, later ruled out by the CT scan.
18. 18The letter from Mr. Bouassali's lawyer, to which Dr. della Zazzera responded, was not in evidence.
19. 19Presumably Dr. della Zazzera is referring to the report of Arthur G. Blouin, C.Psych. dated December 14, 1993 addressed to him. Dr. Blouin found cognitive functioning in the low average to below average range. On memory tests, Mr. Bouassali performed within average levels. Dr. Blouin felt the neuropsychological test pattern indicated left sided sensorimotor deficits, suggestive of mild right hemisphere dysfunction. Dr. Blouin advised that because of Mr. Bouassali's cultural background the test results should be interpreted with caution. He recommended neurological follow-up and management of his headaches.
20. 20Lee and Unifund Assurance Company, (OIC P-000078, September 14, 1993).
21. 21In the case of Maas and State Farm Mutual Automobile Insurance Company, (OIC A-015935, October 16, 1996) Arbitrator Seife adopted the Oxford dictionary definition of "continuously: unbroken, uninterrupted, connected through space or time." In the case of Lanctot and Zurich Insurance Company, (OICA97-000486, January 18, 1999), (under appeal), Arbitrator Joachim found an Applicant entitled to six weeks of benefits after ear surgery to repair damage caused by the accident, three years and one month after the accident. Mrs. Lanctot was not otherwise entitled to section 12(5)(b) benefits.
22. 22Although my conclusion with respect to Mr. Bouassali's entitlement for the period in 1997 is based solely on interpretation of the language of the Schedule under consideration, this lack of compensation in the 1990-93 Schedule can be contrasted with the provisions of section 32 of the 1994 Schedule which followed, entitled Temporary Supplement to Benefits. Under the subsequent scheme, a person entitled to receive weekly loss of earning capacity benefits could receive a temporary supplement for up to one year, if he is unable, as a result of the accident, to engage in employment that was used to determine his residual earning capacity.