Financial Services Commission of Ontario
Neutral Citation: 2000 ONFSCDRS 223
FSCO A00-000241
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
IQBAL SINGH NAHAR
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
November 27 and 28, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Pavan Kumar for Mr. Nahar
Joseph J. Sullivan, Barrister and Solicitor, for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Iqbal Singh Nahar, was injured in a motor vehicle accident on May 3, 1999. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm terminated weekly income replacement benefits on November 9, 1999. The parties were unable to resolve their disputes through mediation, and Mr. Nahar applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Mr. Nahar's examinations and testimony were interpreted between English and Punjabi.
The issues in this hearing are:
Is Mr. Nahar entitled to income replacement benefits pursuant to section 4 of the Schedule after November 9, 1999?
Is Mr. Nahar entitled to a special award pursuant to subsection 282(10) of the Insurance Act?
Is either party entitled to their expenses of the arbitration proceeding pursuant to subsection 282(11) of the Insurance Act?
Result:
The Application for Arbitration is dismissed.
The issue of entitlement to expenses of the arbitration proceeding is deferred.
EVIDENCE AND ANALYSIS:
Overview:
The accident occurred on May 3, 1999, when Mr. Nahar was 26 years old. He was travelling through a green light when another vehicle turned in front of him and the two vehicles collided head on. Mr. Nahar went to hospital by ambulance and was discharged after five hours. Two days later he saw his family doctor, Dr. A.M. Lockhat, who diagnosed lumbar and trapezius muscle strains. Dr. Lockhat prescribed analgesics and physiotherapy.
State Farm paid income replacement benefits until November 9, 1999. It terminated them on the basis of an assessment it commissioned from Dr. C.B. Paitich, an orthopaedic surgeon. The report is dated September 28, 1999. Mr. Nahar was involved in a second accident on October 31, 1999. When asked whether the second accident made his condition worse, he replied that it hurt him and that he had pain and that he got pain again.
Mr. Nahar has not applied for arbitration with respect to the termination of benefits paid as a result of the second accident and the issue I have to determine is whether he is entitled to further income replacement benefits as a result of injuries he received in the first accident of May 3, 1999.
Mr. Nahar has not returned to his work as a machine operator. He claims that he continues to be disabled on account of shoulder and low back pain and that he cannot work because of both motor vehicle accidents.
Mr. Kumar presented very little evidence on behalf of Mr. Nahar. His examination-in-chief of Mr. Nahar, with interpretation, took 21 minutes. He called no other witnesses and presented very little relevant documentary evidence. In his opening and closing submissions, Mr. Kumar made some allegations of fact that were not based on the evidence I heard and I disregarded them.
Test for entitlement to income replacement benefits:
The applicable test for entitlement to income replacement benefits is set out in subsection 4(1) of the Schedule as follows:
The insurer shall pay an insured person who sustains an impairment as a result of an accident an 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 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
Essential tasks of employment:
Dr. Patcai, is a physiatrist, who examined Mr. Nahar for State Farm on January 10, 2000. He reported that Mr. Nahar worked for Royal Laser, a manufacturer which uses lasers to cut metal car and bus parts. Mr. Nahar's job was to load and unload metal parts back and forth from a skid to a table. If the parts were too heavy for him to lift by himself, another worker helped him. Dr. Paitich reported that Mr. Nahar operated a steel cutter and lifted steel weighing up to 100 pounds on a regular and repetitive basis, 16 hours a day, five days a week. Royal Laser reported in its employer's confirmation of income that Mr. Nahar loaded and unloaded sheet metal and cut parts and that in the four weeks prior to the accident Mr. Nahar's gross weekly income was $532, $540, $684 and $1148. Mr. Nahar did not give clear evidence on his employment at the time of the accident. He testified that he worked 16 hours a day and played football every day.
The reported weekly income is too low for someone working 16 hours a day. I do not accept that someone can work 16 hours a day and play football every day. I find that Mr. Nahar worked a normal work week of about 40 hours with some overtime at a job which required the strength and endurance to lift pieces of heavy metal all day long.
Evidence on ability to perform essential tasks of employment:
Mr. Nahar testified that he has pain in his shoulders and low back which is worse when he works. He takes Tylenol no. 3 and sometimes it relieves the pain for a few hours and sometimes it does not. X-rays and a CT scan of the back were normal. Dr. Lockhat referred Mr. Nahar to Dr. Giorgio Ilacqua, a psychologist, who reported to State Farm on March 2, 2000 that Mr. Nahar suffered from mild depression, mild anxiety and symptoms of chronic pain condition. He did not think that his condition warranted psychotherapeutic intervention.
At the urging of Dr. Lockhat, Mr. Nahar found light work in a restaurant in July 2000 but he was fired after about seven days because he could not lift heavy pots.
Since the accident, Mr. Nahar walks with friends and socializes with friends in coffee shops. The only other evidence I heard of Mr. Nahar's activities since the accident is the second motor vehicle accident of October 31, 1999. That accident occurred at 3:20 a.m. while Mr. Nahar and a friend were transporting a mattress on the roof of his car. Mr. Nahar said that he did not help put the mattress on the car.
Analysis:
Dr. Patcai testified that you cannot measure pain and if someone says they have pain he accepts that the person has it. The question is whether I believe Mr. Nahar when he says that he has shoulder and back pain which disables him from doing heavy physical work.
I heard a number of contradictions and exaggerations in the evidence. Mr. Nahar was sure that no doctor examined his back, when it is clear that both Dr. Paitich and Dr. Patcai did. Mr. Nahar testified that he worked at Royal Laser for a year when the confirmation of income forms indicate that he worked there seven months. Mr. Nahar said that he cannot walk properly when Dr. Patcai found that his gait was normal and Dr. Paitich made detailed observations of normal body movement. Mr. Nahar claimed that State Farm has "thrown him out" and "never helped him" when his counsel conceded that State Farm approved the first six treatment plans for physiotherapy and chiropractic treatment and did not fund the seventh treatment plan because Mr. Nahar refused to undergo a DAC assessment (as assessment at a Designated Assessment Centre). Mr. Nahar testified that he never had an x-ray of his back before this accident when the OHIP records indicate that he had a spinal x-ray in August 20, 1997. Mr. Nahar at first denied and then said he did not remember a fall on May 12, 2000 when Dr. Lockhat's report indicated that he did fall and injure himself on that day.
Both Dr. Paitich and Dr. Patcai found inconsistent results in straight leg raising tests. Mr Nahar was not limited by pain in raising his leg from a sitting position but was limited when raising his leg from a supine position. Dr. Patcai testified that both movements have the same effect on the back and therefore each movement should have resulted in the same limitation. In considering the standard of proof in civil cases, Cartwright J.2 quoted with approval a statement by Dixon J. in Briginshaw v. Briginshaw3 as follows:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found . . . No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. . . But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Here the nature of the inquiry and the allegation are fairly serious. Mr. Nahar claimed that he was engaged in physically demanding work and that he suffered injuries in a motor vehicle which prevent him from returning to work. The evidence he adduced to prove that allegation was very unsatisfactory. Mr. Kumar presented his case as if it was a matter of Mr. Nahar giving the correct answers to certain questions. A hearing is not a quiz where the arbitrator adds up the correct answers. I heard very little evidence of Mr. Nahar's work history, his motivation to work, his attempt to work at the restaurant and how his injuries have changed his life. If Mr. Nahar had difficulty expressing himself, a more persuasive friend or family member familiar with Mr. Nahar's story should have testified. In view of the nature of the allegation and the lack of persuasive evidence, I am not persuaded that Mr. Nahar was disabled from performing the essential tasks of his occupation after State Farm terminated income replacement benefits on November 9, 1999.
Special award:
Mr. Nahar claimed that State Farm treated him unfairly. State Farm approved the first six treatment plans Mr. Nahar submitted and Mr. Nahar declined to attend a medical/rehabilitation DAC with respect to his claim that State Farm fund a seventh treatment plan. Under subsection 43(3) of the Schedule, State Farm was entitled to refuse payment of the treatment plan upon Mr. Nahar's failure to make himself available for the assessment. I am not satisfied that State Farm unreasonably withheld or delayed payment of any benefit.
EXPENSES:
If the parties cannot agree on the issue of entitlement to expenses of the arbitration proceeding, either party can make arrangements through the case worker for me to determine the issue by teleconference.
December 13, 2000
William J. Renahan
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 223
FSCO A00-000241
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
IQBAL SINGH NAHAR
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:
The Application for Arbitration is dismissed.
The issue of entitlement to expenses of the arbitration proceeding is deferred.
December 13, 2000
William J. Renahan
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.
- Smith v. Smith, 1952 CanLII 3 (SCC), [1952] 2 S.C.R. 312.
- 60 C.L.R. 336 (Aust. H.C.)