Fadumo Mohamed v. State Farm Mutual Automobile Insurance Company, 2000 ONFSCDRS 112

Financial Services Commission of Ontario

Neutral Citation: 2000 ONFSCDRS 112 FSCO A98-000285

BETWEEN:

FADUMO MOHAMED Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Suesan Alves

Heard: November 1, 2, 3, 4, 1999 and January 14, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto

Appearances: Carmine Tiano for Ms. Mohamed Michael W. Smith for State Farm Mutual Automobile Insurance Company

Issues:

Fadumo Mohamed was injured in a motor vehicle accident on June 11, 1996. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm paid Ms. Mohamed an other disability benefit until December 5, 1997. Ms. Mohamed claims that she should have been paid an income replacement benefit, and that she has ongoing entitlement to that benefit. She also claims a special award and her expenses in respect of the arbitration. State Farm disputes all of Ms. Mohamed's claims. However, the parties agreed that the amount of Ms. Mohamed's weekly benefit is $185, and the quantum issue was withdrawn. The parties were unable to resolve their disputes through mediation, and Ms. Mohamed applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Ms. Mohamed entitled to an income replacement benefit under section 7 of the Schedule?

2. Is Ms. Mohamed entitled to a weekly benefit after December 5, 1997?

3. Is Ms. Mohamed entitled to a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8?

4. Is Ms. Mohamed entitled to her expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c.I.8?

Ms. Mohamed claims interest on any overdue benefits under section 68 of the Schedule.

Result:

1. Ms. Mohamed is entitled to an income replacement benefit under section 7(1)2 of the Schedule.

2. Ms. Mohamed is entitled to an income replacement benefit at the agreed upon rate of $185 per week from June 18, 1996 until such time as State Farm fulfills its obligations with respect to loss of earning capacity benefits under Part VI of the Schedule. State Farm is entitled to a credit for other disability benefits it paid Ms. Mohamed at the rate of $185 per week between June 18, 1996 and December 5, 1997.

3. Ms. Mohamed is entitled to interest on overdue benefits under section 68 of the Schedule.

4. Ms. Mohamed is not entitled to a special award under section 282(10) of the Insurance Act, R.S.O. 1990, c.I.8.

5. The question of expenses was deferred at the request of counsel. If the parties are unable to agree on Ms. Mohamed's entitlement to expenses, the issue of expenses may now be addressed.

EVIDENCE AND ANALYSIS:

Background

Fadumo Mohamed is presently 51 years of age, and lives with her husband and six of their nine adult children. Ms. Mohamed completed two out of three years of a social work program at a college in Somalia, and worked in banking for approximately nine years. In 1990, she immigrated to Canada. She did volunteer work with the Alliance Church and with the Catholic Community Centre assisting new immigrants. This work included the provision of translation and interpreting services for parents at schools, attending support group meetings for women, and assisting newcomers with the completion of various forms.

In 1993, Ms. Mohamed obtained a diploma in child day care management via correspondence courses with International Correspondence Schools. During 1993 and 1994, she worked in a day care centre. In 1994, she quit the day care job in the hope of finding full-time employment at a higher rate of pay, but did not succeed in doing so. She was responsible for most household tasks and generally led a busy, active and social life. She enjoyed cooking, sewing, baking, crocheting, knitting, occasional catering, quilting, and walking. On May 24, 1996, she applied for an Amway distributorship.

On June 11, 1996, Ms. Mohamed was injured in a motor vehicle accident. In this arbitration, she claims entitlement to an income replacement benefit, interest on overdue benefits, a special award and her expenses in respect of the arbitration. State Farm disputes all of her claims.

Benefit Category

The Schedule provides for four types of weekly benefits which may be payable during the 104 weeks post-accident.² Each benefit contains its own criteria for entitlement, amount of the benefit, and whether there is a change in the test for entitlement at the 104-week mark. If a person qualifies for more than one type of benefit, he or she must make an election as to the type of benefit, failing which the insurer is required to pay the person the highest benefit.

Ms. Mohamed sustained injuries in a motor vehicle accident on June 11, 1996, and claimed entitlement to an income replacement benefit based on actual employment as an Amway distributor at the time of the accident. She elected to receive an income replacement benefit. State Farm alleged that Ms. Mohamed was just embarking on the most preliminary stages of self-employment and disputed that she met the qualifications for that benefit. According to the Response, State Farm paid Ms. Mohamed an other disability benefit at the rate of $185 per week.

Ms. Mohamed testified that she had been employed by Canadian Co-op Language School prior to the accident. Her income tax returns indicated that she worked there during 1993 and 1994. It occurred to me that if I accepted State Farm's position — that Ms. Mohamed was not engaged in actual employment at the time of the accident, under section 7(1)1 of the Schedule — she would nevertheless meet the qualification provisions for an income replacement benefit under section 7(1)2 of the Schedule, since she was not employed at the time of the accident, over sixteen years of age and employed within the 156 weeks before the accident.

During the hearing, I sought submissions from counsel as to whether in the context of a first party relationship, it was open to me to find that Ms. Mohamed was entitled to an income replacement benefit under section 7(1)2 of the Schedule, and, if so, whether counsel should be permitted an opportunity to obtain further medical or other evidence which would address Ms. Mohamed's entitlement to benefits as a child care worker. Since counsel for the Applicant had advised that Ms. Mohamed would be instituting further proceedings for supplementary medical and rehabilitation expenses, I suggested that it might be feasible to combine all the issues in one hearing. Before adjourning the hearing that day, I asked counsel to give some further thought to my question, and provide any additional submissions the following day.

In essence, counsel for the Applicant submitted that it was open to me to order the parties to obtain further evidence, while counsel for the Insurer submitted that my role as an arbitrator was limited to dealing with the case which was presented to me. I invited counsel for the Insurer to file Ms. Mohamed's completed application for statutory accident benefits, but he declined to do so. I continued to hear the evidence which the parties wished to adduce. The following findings are based on the evidence adduced at the hearing.

I agree with State Farm that Ms. Mohamed had taken only the most preliminary steps towards self-employment. Ms. Mohamed completed an application for a distributorship on May 26, 1996, thirteen days before the accident, and paid Amway $180 for a kit containing samples of their products. She also paid $3 for insurance. She attended two training sessions and participated in three meetings with the help of her sponsor. She had done some telephone work, distributed some flyers, and sponsored her sister to become an Amway distributor. However, she made no sales and was unfamiliar with the various methods by which the products might be delivered to customers. It is conceivable that Ms. Mohamed's activities could be sufficient to establish self-employment. However, I find Ms. Mohamed made statements which were inconsistent with that status.

At the time of the accident, Ms. Mohamed and her sister were returning from an Amway meeting. Over the course of eight days at the hospital, she identified her employment status as "housewife" to a nurse, a doctor, a social worker and to an occupational therapist.³ She could offer no persuasive explanation for this at the hearing. I accept that Ms. Mohamed experienced a transient period of unconsciousness; however, the medical documentation indicates no amnesia in relation to pre-accident events. In addition, Ms. Mohamed's income tax return for the 1996 year indicates no business employment income and no business loss in relation to any financial outlay. Given the preliminary nature of her endeavours with Amway and her statements to hospital staff and to Revenue Canada, which were not consistent with her claim for self-employment, I conclude that Ms. Mohamed was not employed at the time of the accident.

Based on Ms. Mohamed's testimony, her 1993 and 1994 income tax returns, each of which included T4s from the Canadian Co-op Language School, and upon a report dated January 19, 1999 prepared by McCully & Associates, accountants retained by State Farm, I find that Ms. Mohamed was employed as a part-time child care worker for the Canadian Co-op Language School between September 13, 1993 and June 24, 1994. She therefore meets the qualifications for an income replacement benefit under section 7(1)2 of the Schedule. My finding is consistent with Ms. Mohamed's election to be paid an income replacement benefit.

Essential Tasks

Ms. Mohamed testified that the Canadian Co-op Language School provided care for children between 8:00 a.m. and 3:30 p.m., four days per week, while their parents attended courses in English as a Second Language. There was a program of activities for children at the day care, including drama, music, play, gym, painting, crafts, naps, juice breaks, and lunch. As a child care worker, she was actively involved in taking care of pre-school children at the day care. She put them into groups, set up games, got them juice, supervised their activities, took them into the gym, out on walks, and put them on swings.

The degree of her involvement with the children varied with the age of the children and with the nature of the activity. For example, she simply prepared paint for the children before they painted, while she actively guided and assisted them during crafts. Similarly, in the gym, at times she played the game with the children, such as basketball; at other times, she supervised their play and ensured that none of them were hurt. At mealtimes she supervised the older children, while she fed the infants and one year olds. She also changed diapers. Ms. Mohamed cleaned the areas where the children played, vacuumed, dusted, and put the toys back in place.

Entitlement To Income Replacement Benefits

Ms. Mohamed can succeed in her claim for income replacement benefits by establishing that she sustained impairments which cause or significantly contribute to a substantial inability to perform the essential tasks of her work as a child care worker, or, alternatively, by establishing a partial inability to carry on a normal life within the meaning of section 2 of the Schedule.

On June 11, 1996, Ms. Mohamed sustained significant injuries in a motor vehicle accident. She was aware of the impact, that her head hit the dashboard, and that she then lost consciousness. She regained consciousness, noticed she was bleeding from her nose, and experienced severe neck pain and numbness in her hands and legs while firemen were cutting the vehicle to extricate her. She was taken by ambulance to a hospital where she was x-rayed and multiple injuries were diagnosed. The injury requiring urgent attention was her spinal cord injury and associated fractures of her C5 and C6 vertebrae. She was transferred to The Toronto Hospital. On the following day, Dr. M. Fehlings, a neurosurgeon, performed an anterior decompression, removed the C5-6 disc, and fused the fractured vertebrae in her neck, using chips of bone from her right hip.

Ms. Mohamed was discharged from hospital on June 20, 1996 with incomplete quadriplegia, and a diagnosis of Brown-Sequard Syndrome.⁴ In this syndrome, half of the spinal cord is damaged causing paralysis, loss of vibration and position sense on that side of the body, and sensory deficits such as loss of touch and temperature sensation on the other. Ms. Mohamed had right-sided weakness in her right hand and arm, right leg and right thigh. On the left she had altered sensation, tingling, burning on the whole left side of her body, and difficulty discriminating between hot and cold temperature sensation. Ms. Mohamed was quite perturbed by the altered sensation.

After Ms. Mohamed's discharge, her fracture healed well, and Dr. Fehlings' concern was the extent to which Ms. Mohamed would recover from a neurological perspective. Dr. Fehlings reported that the average recovery period ranges from six to twelve months. Ms. Mohamed had difficulty with right hand strength and walking. She progressed to the point where she is now able to walk fluidly without using her cane for about twenty minutes. After that time, her right leg feels weak and she finds that it drags behind her. She sustained two falls due to her difficulties with balance. She developed headaches, dizziness, problems with balance, and sleep disturbances, all of which are consistent with the usual sequelae of such an injury. In Dr. Fehlings' opinion, as of September 1997, Ms. Mohamed still had residual symptoms consisting of bitemporal headaches and minimal weakness of her right hand, and her right brachialis reflex and right biceps reflex were slightly reduced. In his opinion, she made an excellent recovery and was a candidate for an aggressive therapy program.

Ms. Mohamed also sustained a moderate closed head injury, with associated forgetfulness, increased anxiety and recurrent headaches. She had fractures to her nose and to two of her ribs on her left side; a whiplash type injury superimposed on the cervical fracture; musculoskeletal soft tissue injuries to her right shoulder and low back; a mild C-8 radiculopathy; and temporomandibular joint strain. She complained of headaches, blurry vision in her right eye, difficulty sleeping, decreased sense of smell in her left nostril, dizziness, problems with balance and a left knee injury. She was seen in follow-up by her family physician, Dr. M. Virani. He referred her to a neurologist and an orthopaedic surgeon. Based on their reports, Dr. Virani attributes Ms. Mohamed's recurrent headaches and dizziness to a closed head injury and cerebral concussion. Ms. Mohamed injured her knee after she lost her balance and fell on it in her driveway. Dr. Virani also attributes the injury to the articular surface of the patella of her left knee directly or indirectly to the accident. Dr. F.J. Tyndel, a neurologist who was part of a multidisciplinary DAC in April 1997, listed Ms. Mohamed's multiple diagnoses as post traumatic headache, tension type and cervicogenic, post traumatic vertigo (benign positional vertigo) and post traumatic syndrome consisting of disturbed sleep, partly due to pain, reduced concentration, irritability and fluctuating mood.

While Ms. Mohamed has experienced some improvement in her symptoms, her headaches, dizziness, fluctuating mood and irritability remain. As noted earlier, prior to the accident Ms. Mohamed was a busy, sociable person who enjoyed contact with people. She also spent a great deal of time with her own children. She created a wall of fame in her home, where she displayed their diplomas. All her children are either gainfully employed or in post-secondary studies.

When Ms. Mohamed was discharged from the hospital in June 1996, she had her hospital bed set up in the family room, on the main floor of the house, instead of in her bedroom upstairs, because she wished to be around people and not isolated during her recovery. By September 1996, she found it too noisy in the morning, because her children had returned to school. In September 1997, Ms. Mohamed reported to a rehabilitation consultant that when she has a headache she cannot stand noise of any kind or lights, and her children cannot watch television or listen to their music even in their own rooms. She prefers to be alone and reported feeling nervous and angry much of the time.⁵ Ms. Mohamed and her husband both testified about her continuing irritability, proneness to anger, lack of tolerance for noise, and her inability to manage even with her adult children. Ms. Mohamed expressed regret at how irritated and critical she has become with family members with whom she once enjoyed a close relationship, and the consequent friction which has developed between her and the two youngest children. In the opinion of her family physician, Dr. Virani, Ms. Mohamed is unemployable.

I find that children in a day care setting require a stable, predictable, and nurturing environment where they are able to play and feel safe. That environment cannot be provided by an adult who is unable to control her emotions, particularly anger. In addition, Ms. Mohamed's inability to tolerate noise when she has headaches would either unduly restrict the children, or mean that she would have to leave the day care centre. In my view, no responsible employer would employ someone with such impairments to care for young children. I find that Ms. Mohamed's inability to control her emotions, her angry feelings and the expression of that anger result from the accident, and render her completely unsuitable for work with children in a day care setting. Independent of her physical problems, balance and dizziness, I find that Ms. Mohamed is substantially disabled from working as a child care worker with children in a day care setting as a result of the injuries she sustained in the June 11, 1996 motor vehicle accident.

For these reasons, I find that Ms. Mohamed was entitled to receive income replacement benefits, at the agreed upon rate, between June 18, 1996 and the date on which State Farm fulfils the conditions of Part VI of the Schedule in respect of loss of earning capacity benefits. In light of my findings, and the parties' agreement that $185 is the rate of her income replacement benefit, I do not need to determine whether Ms. Mohamed meets the test of a partial inability to carry on a normal life test. However, for the sake of completeness, I find that she meets this test based on her inability to control her emotions and behaviour. These impairments prevent her from engaging in nurturing and supportive activities with her family, from engaging in social interaction, and from performing volunteer work.

Since State Farm paid Ms. Mohamed an other disability benefit of $185 per week between June 18, 1996 and December 5, 1997, it is entitled to credit those payments against the income replacement benefits to which Ms. Mohamed is entitled.

Interest

Ms. Mohamed is entitled to interest on overdue benefits under section 68 of the Schedule.

Special Award

Ms. Mohamed claimed a special award under section 282(10) of the Insurance Act. Section 282(10) provides:

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. R.S.O. 1990, c. I.8, s. 282 (10); 1993, c. 10, s. 1.

Section 59 of the Schedule obliges an insurer to promptly provide a person who wishes to apply for statutory accident benefits with a written explanation of the benefits available under the Schedule and written information to assist him or her in applying for benefits, including information to assist the person in making any possible elections. I was presented with no evidence that State Farm provided Ms. Mohamed with an explanation of benefits to which she was entitled and the possible ways she might qualify for a weekly benefit. I also have no evidence as to when she retained her former or present counsel. I was not provided with a copy of her application for statutory accident benefits.

The evidence before me suggests that at least by January 1999, when the accountant State Farm retained provided a report documenting Ms. Mohamed's work at the day care centre within the 156 week pre-accident period, State Farm would have been aware of this information. I heard no submissions as to whether Ms. Mohamed or State Farm is responsible for identifying this as an alternate basis for Ms. Mohamed's claim for income replacement benefits. At the hearing, both counsel appeared to be surprised at the possibility that Ms. Mohamed might qualify for income replacement benefits under paragraph 2 of section 7(1) of the Schedule.

In these circumstances, I do not find evidence that State Farm unreasonably withheld or delayed payment of Ms. Mohamed's income replacement benefits. State Farm had some medical opinion evidence which supported its position that Ms. Mohamed was not disabled as a self-employed distributor with Amway. For these reasons, I find that Ms. Mohamed has not established that State Farm unreasonably withheld her income replacement benefits, and conclude that she is not entitled to a special award.

Expenses:

The question of expenses was deferred at the request of counsel. If the parties are unable to agree on Ms. Mohamed's entitlement to expenses, the issue of expenses may now be addressed.

June 22, 2000

Suesan Alves Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 112 FSCO A98-000285

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FADUMO MOHAMED Applicant

and

STATE FARM MUTUAL AUTOMOBILE 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. State Farm Mutual Automobile Insurance Company shall pay Fadumo Mohamed income replacement benefits at the agreed rate of $185 per week from June 18, 1996 until it fulfills its obligation with respect to loss of earning capacity benefits under Part VI of the Schedule. State Farm Mutual Automobile Insurance Company is entitled to a credit for the payments made for other disability benefits at the rate of $185 per week between June 18, 1996 and December 5, 1997.

2. State Farm Mutual Automobile Insurance Company shall pay Fadumo Mohamed interest on overdue benefits under section 68 of the Schedule.

3. State Farm Mutual Automobile Insurance Company is not required to pay Fadumo Mohamed a special award.

4. If the parties are unable to agree upon expenses, that issue may now be addressed.

June 22, 2000

Suesan Alves Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
2. 2Income replacement benefits, educational disability benefits, caregiver benefits, and other disability benefits. After 104 weeks an insurer may pay a fifth type of weekly benefit, a loss of earning capacity benefit, under Part VI of the Schedule.
3. 3The hospital records at Exhibit 3, Tab 3, Page 1, contain no reference to any employer for Ms. Mohamed. The admission summary by the nurse, at page 37, notes her occupation as a housewife; at page 39, a doctor's admission note describes her as a housewife; at page 80, a social worker notes her employment status as a housewife; and the occupational therapist in the pre-discharge consultation at page 88 describes her as a housewife.
4. 4The diagnosis was Brown-Sequard Syndrome, with American Spinal Injury Association Impairment Scale D, (ASIA-D). The ASIA-D indicates motor function is preserved below the neurological level, and at least half of key muscles below that level have a muscle grade of 3 (contraction against minimal resistance), or more.
5. 5Report of Fran Elliot, rehabilitation consultant, PSA Consulting, dated September 22, 1997.