Neutral Citation: 1999 ONFSCDRS 92

FSCO A97-001791

BETWEEN:

VIUH KHA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Shemin Manji

Heard:

March 1, 2 and 3, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Jeffrey A. Gauze for Mr. Kha

W. Casey Van Moorlehem for State Farm Mutual Automobile Insurance Company

The Applicant, Viuh Kha, alleged that he was injured in a motor vehicle accident on June 2, 1996. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm denied benefits, alleging that Mr. Kha was not an occupant of the motor vehicle at the time of the accident. The parties were unable to resolve their disputes through mediation, and Mr. Kha 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:

Was Mr. Kha involved in an accident?
Is Mr. Kha entitled to other disability benefits from June 9, 1996 to March 1998?
Is Mr. Kha entitled to payment in the amount of $1,680 for physiotherapy treatments received from June 4, 1996 to August 8, 1996 at Downtown Rehabilitation Centre?
Is Mr. Kha entitled to payment in the amount of $80.99 for prescriptions?
Is Mr. Kha entitled to payment in the amount of $175 for the reports of Drs. Wong and Bendheim?
Is State Farm entitled to an award under subsection 282(11.2) of the Insurance Act on the basis that Mr. Kha has commenced an arbitration that is frivolous, vexatious or an abuse of process?
Is Mr. Kha entitled to his expenses incurred in this arbitration proceeding?
Is State Farm entitled to its expenses incurred in this arbitration proceeding?

Mr. Kha also claims interest on any amounts owing.

Mr. Kha was not involved in an accident.
Mr. Kha is not entitled to other disability benefits from June 9, 1996 to March 1998.
Mr. Kha is not entitled to payment in the amount of $1,680 for physiotherapy treatments received at Downtown Rehabilitation Centre.
Mr. Kha is not entitled to payment in the amount of $80.99 for prescriptions.
Mr. Kha is not entitled to payment in the amount of $175 for the reports of Drs. Wong and Bendheim.
Mr. Kha shall pay State Farm $3,000 pursuant to subsection 282(11.2) of the Insurance Act.
If the parties are not able to agree on expenses, I may be spoken to on this issue.

The Dispute:

On Sunday, June 2, 1996, two vehicles were involved in a collision. The collision occurred on Dufferin Street, north of Dupont Avenue, in the City of Toronto. Prior to the collision both vehicles were travelling northbound on Dufferin Street. One of the vehicles was a 1992 white Honda Civic ("the Honda") and the other vehicle was a four-door 1987 grey Oldsmobile ("the Oldsmobile"). Mr. Kha claims that he was an occupant of the Oldsmobile when it and the Honda collided. He claims that he suffered neck, back and shoulder injuries in the accident and that he is entitled to weekly "other disability benefits" as well as supplementary medical benefits and other expenses.

Mr. Kha has received no benefits from State Farm to date. State Farm contends that Mr. Kha was not an occupant of the Oldsmobile at the time of the accident and therefore not an insured person as defined in section 1 of the Schedule. State Farm contends that, in the alternative, if Mr. Kha was an occupant of the Oldsmobile, he is not entitled to other disability benefits and payment for physiotherapy treatments received at Downtown Rehabilitation Centre because he did not sustain an impairment as a result of the accident.

The Law:

Only an "insured person" is entitled to accident benefits under the Schedule. This term is defined in section 1 of the Schedule as follows:

"insured person", in respect of a particular motor vehicle liability policy, means,

(a) the named insured, any person specified in the policy as a driver of the insured automobile, the spouse of the named insured, and any dependant of the named insured or spouse, if the named insured, specified driver, spouse or dependant,

(i) is involved in an accident in or outside of Ontario that involves the insured automobile or another automobile, or

(ii) is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside of Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse's dependant,

(b) in respect of accidents in Ontario, a person who is involved in an accident involving the insured automobile, or

(c) in respect of accidents outside Ontario, a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at some point during the sixty days before the accident;

[Emphasis added]

"insured automobile" is defined as follows:

"insured automobile", in respect of a particular motor vehicle liability policy, means any automobile covered by the policy;

It is clear that the only possible part of the definition of "insured person" that could apply to Mr. Kha is that in clause (b). Therefore, if I find that Mr. Kha was not involved in an accident involving the insured automobile, he would not be an "insured person" under the Schedule and would not be entitled to any accident benefits under the Schedule.

The parties agree that the vehicle Mr. Kha claims he was in (the Oldsmobile) was an insured vehicle. The issue is whether Mr. Kha was an occupant of the Oldsmobile at the time of the accident.

Was Mr. Kha an occupant of the Oldsmobile?

The burden is on Mr. Kha to persuade me, on a balance of probabilities, that he was an occupant of the Oldsmobile. I find that Mr. Kha has not discharged this burden.

There are no independent witnesses who identify Mr. Kha as an occupant of the Oldsmobile at the time of the accident.

State Farm interviewed and obtained statements from four individuals who applied for statutory accident benefits and claimed that they were in the Oldsmobile at the time of the accident, including Mr. Kha.² One of the individuals who provided State Farm with a statement, a Mr. Loc Minh Bui, said that Mr. Kha was also an occupant of the Oldsmobile. Also, the alleged driver of Oldsmobile, Mr. Vu Van Tien, indicated in a form that he completed at the West Collision Reporting Centre on the day of the accident,³ that Mr. Kha was an occupant of the Oldsmobile.⁴ However, their evidence on other points was inconsistent with that of Mr. Kha and with that of the other alleged occupants of the Oldsmobile. There are so many inconsistencies in the evidence of the alleged occupants that I am not sure who was an occupant of the Oldsmobile at the time of the accident. The inconsistencies in themselves are not significant. However, cumulatively they pose a problem. There are inconsistencies in respect of who was picked up, where the individual(s) was picked up, where the individuals intended to go, where each individual was sitting in the vehicle, whether the Oldsmobile was travelling in the curb or passing lane at the time of the collision, whether damage was sustained to the left or right side of the Oldsmobile and what happened after the collision.

In his testimony, Mr. Kha gave the following account of the accident and the events before and after:

He testified that he was residing in London and had come to visit Toronto, for the first time, with a friend of his, a Mr. Loc Minh Bui. Mr. Kha testified that he and Mr. Bui came to Toronto by bus the day before the accident. He testified that when they arrived in Toronto, around noon, a friend of Mr. Bui, a Mr. Tien, picked them up at the bus station in a blue motor vehicle and took them to his home. Later they went out for a meal and after the meal spent the night at Mr. Tien's home.

Mr. Kha testified that the next day, after they woke up, they decided to go out to eat. Mr. Kha testified that he, Mr. Bui and Mr. Tien left Mr. Tien's home at around 1:00 p.m. in the same vehicle in which Mr. Tien had picked them up the day before. Mr. Kha testified that Mr. Tien told them that before going to eat they were going to pick up two people — a man and a woman. Mr. Kha testified that when they left Mr. Tien's home, Mr. Tien was driving, he (Mr. Kha) was sitting in the back seat behind the driver, and Mr. Bui was sitting next to him in the back seat. Mr. Kha testified that he does not know where the two people were picked up but it took approximately half an hour to get to that location. Mr. Kha testified that both people were picked up from the same location and at the same time. In his examination-in-chief, Mr. Kha testified that the woman sat beside Mr. Bui in the back of the vehicle and the man sat in the front passenger seat. On cross examination, Mr. Kha testified that the woman sat in the front and the man sat in the back beside Mr. Bui. Mr. Kha testified that they were Mr. Tien's friends and that he had never met them before. He did not know why they were joining them.

Mr. Kha testified that after picking up these individuals they were on their way to "Rua Van Restaurant" in Toronto, travelling in the right lane, when the accident occurred. Mr. Kha testified that he was sleeping at the time of the accident and therefore his eyes were closed and he did not see what happened but he heard a bang. Mr. Kha testified that their vehicle then came to a fast stop. Mr. Kha testified that the impact was to the front left side of their vehicle (the side that he was sitting on) and when he opened his eyes after the impact, he saw the other car, a Honda, across the right lane in front of their vehicle.

Mr. Kha testified that he was not wearing a seat belt at the time of the accident. Mr. Kha testified that after the accident, only Mr. Tien got out of the vehicle. Mr. Kha testified that Mr. Tien spoke to the other driver for 15 to 20 minutes and returned to the vehicle and then they all left the scene of the accident together. Mr. Kha testified that, after leaving the scene of the accident, they did not go to the restaurant. Mr. Kha testified that at that point he wanted to return home to London. In his examination-in-chief, Mr. Kha testified that Mr. Tien drove everyone to his home. Mr. Kha testified that at Mr. Tien's home he (Mr. Kha) called someone and that person dropped him and Mr. Bui at the bus station, from where they took the bus back to London. On cross-examination, Mr. Kha testified that after the accident Mr. Tien dropped him and Mr. Bui off at the bus station and they (Mr. Kha and Mr. Bui) took the bus back to London. Mr. Kha also testified that at the bus station, prior to taking the bus to London, he examined the damage sustained by Mr. Tien's vehicle. Mr. Kha testified that he observed damage to the front left side of the vehicle, including the fender and a scratch above the body side moulding.⁵ Mr. Kha testified that the damage was caused by the Honda as it was not there before the accident.

As noted earlier, in his statements to State Farm,⁶ Mr. Bui supported Mr. Kha's claim that he (Mr. Kha) was an occupant of the Oldsmobile at the time of the accident. However, Mr. Bui's version of events is significantly different from Mr. Kha's even though they were allegedly together at all times. Mr. Bui stated that on the day of the accident four (and not three) people left Mr. Tien's home in Mr. Tien's vehicle — Mr. Tien, Mr. Kha, Mr. Bui and a woman. Mr. Bui said that the woman was a friend of Mr. Tien and had spent some time with them the previous evening. Mr. Bui said Mr. Tien was driving, the woman was sitting in the front passenger seat, he (Mr. Bui) was sitting in the back seat behind the front passenger seat near the door and Mr. Kha was sitting beside him to his left. Mr. Bui said that after leaving Mr. Tien's home they went to pick up a friend of Mr. Tien named Long. Mr. Bui said that when they reached Long's home, Mr. Tien and the woman got out of the vehicle and went to get Long. When they returned to the vehicle with Long, he (Mr. Bui) moved to the middle of the back seat and Long sat beside him, in the place that Mr. Bui had just vacated. Mr. Bui said that Mr. Kha continued to sit next to Mr. Bui in the back seat to his left and the woman continued to sit in the front passenger seat.

Mr. Bui stated that, when they left Mr. Tien's home, their plan was, first, to pick up Long and then go to eat somewhere. Mr. Bui did not know where they were going to eat. Mr. Bui said that he did not hear Mr. Tien say which restaurant he was taking them to. Mr. Bui said that, after eating, they were going to Niagara Falls. Mr. Bui said that the accident occurred after they picked up Long. Mr. Bui said that the Oldsmobile was travelling in the left lane and the Honda was travelling in the right lane when the accident occurred. Mr. Bui said that the Honda was attempting to make a lane change (from the right to left lane) when it hit the front right side of the Oldsmobile. Mr. Bui said that Mr. Tien attempted to avoid the impact by braking suddenly, but was not successful. Mr. Bui stated that after the collision both vehicles pulled over to the right near the sidewalk and everyone in the Oldsmobile got out of the vehicle and sat on the sidewalk. Mr. Bui said that after a little while he called a taxi from a public telephone nearby, and the taxi took him and Mr. Kha to the bus station from where they took a bus to London.

Mr. Bui said that when he and Mr. Kha left the scene of the accident, Mr. Tien was still talking to the driver of the Honda.

Ms. Thi Ng Nguyen's version of the events as set out in her statements to State Farm⁷ is different from that of Mr. Kha and Mr. Bui. Ms. Nguyen said that she was picked up by Mr. Tien from a sidewalk, some distance away from her home. She was walking on the sidewalk, returning home after having breakfast at McDonalds. Mr. Tien stopped his vehicle and invited her to go with him to Niagara Falls. Ms. Nguyen said that Mr. Tien was an acquaintance of hers, they played cards together, but she had not seen him in at least a week. Ms. Nguyen said that when she got into the Oldsmobile she sat in the back seat behind the driver, next to the door. Ms. Nguyen said that there were two other men in Mr. Tien's vehicle. She did not know them. One man was sitting in the front passenger seat and the other was sitting in the back seat, next to her to her right. Ms. Nguyen said that after Mr. Tien picked her up they went to pick up another friend of Mr. Tien. Ms. Nguyen said that this friend — another man — was waiting for them on the street when they got to his home. Ms. Nguyen said that when this man got into the vehicle, the man who was sitting next to her moved closer to her. The man who was sitting in the front passenger seat moved to the back seat and sat behind the front passenger seat and Mr. Tien's friend who just joined them sat in the front passenger seat which had just been vacated.

Ms. Nguyen said that the accident occurred after they picked up Mr. Tien's friend. They were travelling in the right lane. The vehicle next to them in the left lane hit the front of their vehicle when trying to make a lane change. Ms. Nguyen said that after the collision both drivers moved their vehicles to the side and everybody got out of their vehicles. Ms. Nguyen said that after she got out of the vehicle she telephoned a friend of hers from a public telephone nearby and asked her friend to come pick her up and take her home. She said that the other occupants of the Oldsmobile also went their own way.

In his statement to State Farm, Mr. Long Van Pham gave yet another version of the events. He said that he knows Mr. Tien and on the day of the accident Mr. Tien came to pick him up at his (Mr. Pham's) house because they had planned to go out. Mr. Pham said that when Mr. Tien arrived, there were four people in the vehicle including Mr. Tien - three men and one woman. Mr. Tien said that he only knew Mr. Tien. Mr. Pham said that when he got into the vehicle he sat in the middle of the back seat. He said that there was a man sitting to his right and a woman sitting to his left. A man was sitting in the front passenger seat and then there was the driver, Mr. Tien.

Mr. Pham said that they were on their way to Niagara Falls, travelling northbound towards the highway, travelling in the inside or curb lane, when the accident occurred. He said that there was a vehicle that wanted to overtake the Oldsmobile. He said that the driver of that vehicle came towards the Oldsmobile diagonally, hitting the front of the vehicle. Mr. Pham said that after the collision both vehicles pulled over near the curb and everyone in the Oldsmobile got out of the vehicle. Mr. Pham said that after he got out of the vehicle he called a friend of his and asked him to come pick him up and take him home. Mr. Pham said that he didn't know what happened to the other occupants of the Oldsmobile after they got out of the vehicle.

The information that Mr. Tien, the alleged driver of the Oldsmobile, provided on the form that he completed at the West Collision Reporting Centre in which he identified by name the seating positions of all of the alleged occupants of the Oldsmobile at the time of the accident is inconsistent with that provided by the four individuals interviewed by State Farm and Mr. Kha's testimony. Mr. Tien indicated that he was the driver and that Mr. Kha and Mr. Bui were sitting with him in the front of the vehicle and Mr. Pham and Ms. Nguyen were sitting in the back. Mr. Pham was sitting on the left side behind the driver and Ms. Nguyen was sitting next to Mr. Pham in the middle of the back seat.

At the hearing, Mr. Kha acknowledged that there were major inconsistencies in the statements provided by the four individuals interviewed by State Farm and in the reporting form completed by Mr. Tien. However, he made no effort to reconcile or explain these inconsistencies. He did not call any of the other alleged occupants as witnesses to explain the inconsistencies between his evidence and theirs. Mr. Kha submitted that I cannot assume because of these inconsistencies that everyone including Mr. Kha is lying. He submitted that he does not know whether the others are telling the truth, however, he (Mr. Kha) is telling the truth. Mr. Kha submitted that no one is saying that an accident did not occur. It is clear from the damage to both vehicles that there was an accident, albeit a minor one. Mr. Kha submitted that there is also no dispute that there were several people in the Oldsmobile at the time of the accident. Mr. Kha submitted that he was one of them and his claim is genuine.

In determining whether Mr. Kha was an occupant of the Oldsmobile at the time of the accident, I am unable to rely on Mr. Kha's evidence alone because I did not find him to be a credible witness.

Mr. Kha's testimony was for the most part consistent with the prior statement he gave to State Farm in August 1996.⁸ However, there were inconsistencies between Mr. Kha's testimony and other statements he made to his health care practitioners and State Farm. While these other statements do not relate to the question of whether Mr. Kha was an occupant of the Oldsmobile at the time of the accident, they indicate that Mr. Kha is not always a truthful person. For example, Mr. Kha initially told his family doctor, Dr. Thomas Wong, and the Downtown Rehabilitation Centre, where Mr. Kha attended for physiotherapy between June 6, 1996 and August 8, 1996, that he attended at the Emergency Department at the Kitchener-Waterloo Hospital immediately following the accident and had x-rays taken at the hospital. Later he denied going to the hospital and at the hearing he testified that he did not attend at the hospital on June 2, 1996. Mr. Kha was not able to explain why the records of Dr. Wong and the Downtown Rehabilitation Centre would indicate that he had advised them that he attended at the hospital on June 2, 1996 when in fact he had not.

In his Application for Accident Benefits dated June 7, 1996 and in the Activities of Daily Living Form, which Mr. Kha also completed on June 7, 1996, Mr. Kha indicated that he had not been employed in the three years prior to the accident and was looking for employment at the time of the accident.⁹ Initially in a statement that Mr. Kha gave State Farm and in his examination-in-chief, Mr. Kha reiterated that he was not employed at the time of the accident, although he indicated that he had worked two years prior to the accident. Later in Mr. Kha's statement to State Farm and on cross-examination, Mr. Kha indicated that he was working at the time of the accident at a farm and had in fact worked at the farm on the Friday before the accident. Mr. Kha testified that the work in the farm involved picking worms (when it rained) and ginseng (when the weather was dry). Mr. Kha acknowledged on cross-examination that the reason he told State Farm that he was not working at the time of the accident was that he was afraid that Revenue Canada would find out that he was being paid in cash and not reporting his income to Revenue Canada.

In addition to the inconsistencies between Mr. Kha's testimony and earlier statements he made to his health care providers and State Farm, when Mr. Kha gave his testimony, I often found him not to be responsive to the questions posed to him.

Mr. Kha submits that I should accept his evidence that he was an occupant of the Oldsmobile at the time of the accident because his evidence is consistent on almost all points with that of Mr. Alan Lau, the driver of the Honda. I do not agree. I note that Mr. Lau did not identify Mr. Kha as being an occupant of the Oldsmobile and their evidence is inconsistent on some very significant points.

Mr. Kha's evidence is that Mr. Tien was the driver of the Oldsmobile at the time of the accident. Mr. Lau testified that he did not believe that Mr. Tien was the driver of the Oldsmobile at the time of the accident. Mr. Lau testified that the written portion of the expired driver's licence that the driver of the Oldsmobile produced to him at the scene of the accident indicated that the driver should be in his late thirties.¹⁰ However, Mr. Lau testified that the driver of the Oldsmobile looked like he was in his twenties. Mr. Lau testified that this caused him to ask the driver for an updated driver's licence with photo identification which the driver was not able to produce.

Mr. Kha testified that there were five people in the Oldsmobile at the time of the accident and one of them was a woman. He testified that there were only two people sitting in the front of the vehicle including the driver, Mr. Tien. Mr. Lau, however, testified that there were no women in the Oldsmobile. He testified that there were three men (including the driver) sitting in the front of the vehicle and two or three men sitting in the back of the Oldsmobile.

Mr. Kha testified that after the accident, only Mr. Tien got out of the vehicle. Everybody else, including Mr. Kha, stayed in the vehicle. Mr. Lau testified that after the accident the three men sitting in the front of the vehicle came out of the vehicle and one of the men was the owner of the Oldsmobile, Mr. Man Chan Luu.¹¹

Mr. Kha's evidence in respect of the nature of the collision between the Oldsmobile and the Honda and damage sustained in the accident by the Oldsmobile is also inconsistent with that of Mr. Lau.

Mr. Kha told Dr. Wong and the doctor who assumed responsibility for Mr. Kha's medical care in March 1997, Dr. Bendheim, that he was involved in a broadside collision. As noted above, at the hearing, he testified that the damage sustained to the Oldsmobile in the accident was to the front left side and included damage to its fender. He testified that the damage shown in the photographs taken of the Oldsmobile at the West Collision Reporting Centre on the day of the accident was the damage that he observed at the bus station following the accident and was caused by the accident. However, Mr. Lau testified that the impact did not happen at an angle, but rather the vehicles touched while side by side and there was no damage to the left front fender and no paint scrape on the Oldsmobile immediately following the accident.¹² I accept Mr. Lau's testimony on this point because it is corroborated by expert evidence to the effect that not all the (property) damage to the Oldsmobile was a result of the collision between the Oldsmobile and the Honda.

Both Mr. Allan Jenkins, an expert in low speed accidents and kinematics (the movement of bodies within a vehicle during a collision) and Mr. Roy Buchanan, an expert in accident reconstruction and traffic collision animation, were of the opinion that although a collision took place between the Oldsmobile and Honda, the physical damage to the front left fender of the Oldsmobile was not a result of the collision. They also testified that the way in which Mr. Kha said the collision occurred was not consistent with the damage to the Honda. They were of the opinion that the damage to the Honda did not occur as a result of the Honda moving into the lane of travel of the Oldsmobile or the Honda making a lane change. They testified that, in their opinion, there would have had to have been greater damage to the Honda if the Oldsmobile was broadsided or if there had been a T-bone or steep-angle type of collision. They testified that in fact, the Honda sustained very minor damage. The damage cannot be seen unless one stands at an angle, at which time one sees the contour of the right rear door with a very slight dent in it. The dent is just below the body side moulding on the door. There is no breakage of paint. There are no other marks, including paint transfers, on the Honda to attribute to the damage to the left front fender of the Oldsmobile. Mr. Jenkins and Mr. Buchanan were of the opinion that the mark on the Honda was more consistent with a collision between two cars in the nature of a glancing blow the vehicles touched but separated as soon as they touched.

Mr. Kha submitted that I should not give much weight to the expert evidence. He submitted that the experts were given insufficient information on which to base their opinions. He submitted that their opinions do not take into account what the occupants say about how the accident happened, as they were not provided with statements of the occupants of the Oldsmobile. Mr. Kha's counsel submitted that what happened was that Mr. Lau was attempting to make a lane change from the left to the right lane. He started to signal and move at a slow speed into the right lane. The Oldsmobile was travelling at 40 km/hr in the right lane. When the Honda moved in front of the Oldsmobile, the driver of the Oldsmobile slammed the brakes hard, to avoid running into the side of the slower moving Honda, and came to an abrupt stop. Mr. Kha's counsel submitted that the braking manoeuvre by the driver of the Oldsmobile was the reason that the Honda sustained very minor damage and was also the reason why Mr. Kha sustained fairly significant injuries in the accident.

I do not accept the scenario proposed by Mr. Kha. While it may explain why the Honda sustained very minor damage and support Mr. Kha's claim that he suffered significant injuries in the accident, it does not explain why the left front damage to the Oldsmobile does not correspond to the damage to the Honda.

Mr. Kha submits that the medical evidence supports his claim that he was involved in a motor vehicle accident on June 2, 1996 and suffered injuries as a result of the accident. I am not able to conclude on the basis of the medical evidence that Mr. Kha was an occupant of the Oldsmobile at the time of the accident. I agree that the medical evidence indicates that Mr. Kha's health practitioners are of the opinion that he sustained soft tissue injuries to his cervical and lumbar spine in a motor vehicle accident on June 2, 1996. Further, Dr. Wong's clinical notes indicate that Mr. Kha consistently complained of back pain from June 1996 to February 1997. And, on May 15, 1997, Dr. Bendheim was of the opinion that Mr. Kha was suffering from chronic low back pain and was unable to work at that time as a result of the motor vehicle accident on June 2, 1996. However, Mr. Kha's health practitioners' opinions in respect of the cause of Mr. Kha's ongoing complaints are based on the information that Mr. Kha provided to them. Mr. Kha advised them that he had been involved in a broadside collision on June 2, 1996 and that the pain he was experiencing was a result of this collision. I do not accept that Mr. Kha was involved in a broadside collision on June 2, 1996 and that he sustained an impairment as a result of that collision. Therefore, I do not accept his health practitioners' opinions that Mr. Kha's impairment or disability from June 1996 was a result of the accident on June 2, 1996.

In conclusion, I am not persuaded that Mr. Kha was an occupant of the Oldsmobile at the time of the accident. Mr. Kha has failed to establish that he was involved in an accident on June 2, 1996. Therefore, he is not an "insured person" under the Schedule and not entitled to statutory accident benefits.

Disposition of other claims:

(a) Is Mr. Kha entitled to other disability benefits from June 9, 1996 to March 1998?

I have determined that Mr. Kha was not involved in an accident and therefore is not entitled to statutory accident benefits. Accordingly, I need not determine this issue. However, even if I had determined that Mr. Kha was involved in an accident on June 2, 1996, I would have found that he would not have qualified for other disability benefits under section 19 of the Schedule.

Section 19(1) provides as follows:

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, suffers a partial or complete inability to carry on a normal life and,

(a) the insured person never met the qualifications for a benefit under subsection 7(1), 15(1) or 18(1), or under Part VI, in respect of the accident;

(b) the insured person received weekly income replacement benefits under Part II or weekly education disability benefits under section 15 as a result of the accident and payment of the benefits ceased under section 11 or 12 or subsection 15(9); or

(c) the insured person received weekly caregiver benefits under Part IV as a result of the accident and there is no longer any person who meets the qualifications set out in subsection 18(5).

[Emphasis added]

First of all, I am not satisfied that Mr. Kha sustained an impairment as a result of the accident. Mr. Kha claims that he suffered neck, head and upper and lower back injuries in the accident. I would have found that Mr. Kha likely suffered these injuries, if I accept the scenario put forward by Mr. Kha in respect of how the collision between the Honda and Oldsmobile occurred. However, for the reasons that I outlined above, I do not accept that scenario. I prefer the evidence of Mr. Lau (the third party driver) in respect of the nature of the collision between the Oldsmobile and the Honda and the evidence of Mr. Jenkins that the accident was of such a minor nature that there would have been virtually no movement experienced by the occupants in either of the vehicles.

Even if Mr. Kha had suffered an impairment, he would not have been entitled to other disability benefits under section 19 of the Schedule because I am not satisfied that he never met the qualifications for a income replacement benefit under subsection 7(1) of the Schedule in respect of the accident. Subsection 7(1)1. of the Schedule provides as follows:

7.— (1) An insured person who sustains an impairment as a result of an accident is entitled to a weekly income replacement benefit if the insured person meets any of the following qualifications:

The insured person was employed at the time of the accident and, as a result of and within two years of the accident, suffers a substantial inability to perform the essential tasks of that employment. [Emphasis added]

Mr. Kha testified that at the time of the accident he had been working at a farm picking worms and ginseng. This indicates that he may have met the qualifications for an income replacement benefit under subsection 7(1) if he had applied for this benefit.

(b) Is Mr. Kha entitled to payment for physiotherapy treatments and prescriptions?

As noted earlier, Mr. Kha attended for physiotherapy treatments at the Downtown Rehabilitation Centre in Kitchener from June 4, 1996 to August 8, 1996. Mr. Kha claims that he has incurred expenses in the amount of $1,680 for these treatments and is seeking payment of these expenses. Mr. Kha also claims $80.99 for medication.

Mr. Kha would be entitled to payment for physiotherapy treatments and medication for that part of the period claimed if he establishes, on a balance of probabilities, that he sustained an impairment as a result of an accident and he incurred expenses for physiotherapy services and medication that are reasonable. As I have determined that Mr. Kha was not involved in an accident on June 2, 1996, he is not entitled to statutory accident benefits. Accordingly, I need not determine these issues. However, even if I had determined that Mr. Kha was involved in an accident on June 2, 1996, I would have found that he would not have been entitled to payment for physiotherapy treatments and medication, under subsection 36(1) of the Schedule, because he did not sustain an impairment as a result of an accident.

(c) Is Mr. Kha entitled to payment for medical reports?

Again, I have determined that Mr. Kha was not involved in a motor vehicle accident on June 2, 1996 and, therefore, is not entitled to any statutory accident benefits. Accordingly, I need not determine this issue.

However, if I had determined that Mr. Kha was an occupant and was involved in a motor vehicle accident on June 2, 1996, I would have found that State Farm would have been required to pay the expenses incurred by Mr. Kha, in the amount of $175, for the reports of Dr. Wong and Dr. Bendheim, under section 57 of the Schedule. Section 57 requires the insurer to pay for all reasonable expenses incurred by an insured person in obtaining a certificate or report for the purpose of the Schedule. I find that the Health Practitioner's Certificate of Dr. Wong dated June 7, 1996 and the Report of Dr. Bendheim dated June 17, 1997 were obtained by Mr. Kha for the purpose of his claim for benefits under the Schedule. I also find that the expenses incurred by Mr. Kha in obtaining these documents are reasonable, i.e. $75 for the Health Practitioner's Certificate and $100 for Dr. Bendheim's comprehensive report.

(d) Is State Farm entitled to an award under subsection 282(11.2) of the Insurance Act?

Under subsection 282(11.2) of the Insurance Act, I may award an amount up to the amount of the assessment fee paid by State Farm under section 14 of the Insurance Act and Ontario Regulation 300/98 against Mr. Kha, if in my opinion he commenced an arbitration that was frivolous, vexatious or an abuse of process.

In my view, Mr. Kha commenced an application that was without merit or frivolous. In this case, there were no independent witnesses. There were major inconsistencies between Mr. Kha's evidence and the statements of the other alleged occupants, between Mr. Kha's evidence and the evidence of the third party driver and between Mr. Kha's evidence and that of the expert witnesses. Mr. Kha only relied on his own evidence in the face of such conflicting evidence. Mr. Kha's uncorroborated evidence was not enough. There were inconsistencies in Mr. Kha's own evidence. These inconsistencies did not relate to the question of whether he was an occupant of the Oldsmobile, however they called into question the reliability of his evidence in general. As the person who has the burden of proof, it was incumbent on Mr. Kha to attempt to explain or reconcile the inconsistencies in the evidence and present other evidence to substantiate his claim that he was an occupant. He failed to do this. He failed to call as witnesses any of the other alleged occupants of the vehicle, to confirm that he was an occupant and to explain the inconsistencies between their evidence and his. I can only presume that none of the other alleged occupants of the Oldsmobile were called because their evidence would not have been favourable to Mr. Kha's case. Accordingly, I find it appropriate in these circumstances to exercise my discretion to award State Farm $3,000 to be paid by Mr. Kha, which is the amount of the assessment fee paid by State Farm.

EXPENSES:

The question of expenses was deferred until all other issues in dispute were decided. Therefore, the issue of Mr. Kha's expenses of this arbitration proceeding may now be addressed.

May 26, 1999

Shemin Manji Arbitrator

Date