Neutral Citation: 2001 ONFSCDRS 17

FSCO A99-001104

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

MOHAMED MUSSA

Applicant

and

TTC INSURANCE COMPANY LIMITED

Insurer

REASONS FOR DECISION

Before:

David Leitch

Heard:

November 22 and 23, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Mussa represented himself

Jeffrey A. Gauze for TTC Insurance Company Limited

Issues:

The Applicant, Mohamed Mussa, was injured in a motor vehicle accident on September 21, 1998. He applied for and received statutory accident benefits from TTC Insurance Company Limited payable under the Schedule.¹ Disputes arose which the parties were unable to resolve through mediation and Mr. Mussa applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Mussa entitled to non-earner benefits under section 12 of the Schedule as a result of the accident?
Is Mr. Mussa entitled to additional housekeeping expenses under section 22 of the Schedule as a result of the accident?
Is Mr. Mussa entitled to additional medical benefits under section 14(2)(g) of the Schedule for transportation to and from treatment sessions?
Was this arbitration frivolous, vexatious or an abuse of process and is Mr. Mussa therefore obliged to pay a penalty to the Insurer under section 282(11.2) of the Insurance Act?
Is either party entitled to an award of expenses incurred in respect of the arbitration proceeding under section 282(11) of the Insurance Act and the Expense Regulation?

Result:

Mr. Mussa is not entitled to non-earner benefits.
Mr. Mussa is not entitled to additional housekeeping expenses.
Mr. Mussa is not entitled to additional transportation expenses.
Mr. Mussa is not obliged to pay a penalty to the Insurer under section 282(11.2) of the Insurance Act.
Mr. Mussa is not entitled to an award of expenses. The Insurer is entitled to an expense award in the amount $1,250.

Th conduct of the hearing:

The hearing did not commence on Monday, November 20, 2000, as scheduled. On that day, the Insurer's representative, Mr. Paul Ballantine, and Insurer's counsel appeared but no one appeared for Mr. Mussa. Through the Somali interpreter, Mr. Yassin Mohammed, I initiated a telephone conference with Mr. Mussa from the hearing room during which Mr. Mussa informed me and the Insurer that he had the flu and would not be able to attend either that day, a Monday, or the next. I, therefore, adjourned the hearing to Wednesday of the same week. On that Wednesday, Mr. Mussa appeared, unrepresented, and through the same interpreter, Mr. Mohammed, stated that he was ready to proceed. The interpreter was then sworn in, as was Mr. Mussa. Mr. Mussa gave evidence and was cross-examined. The hearing continued the next day, again with the same interpreter in attendance. Mr. Mussa entered a doctor's report² into evidence and viewed and commented on video surveillance entered into evidence by the Insurer. He called no other witnesses and neither did the Insurer. Both parties made submissions. During the course of the Insurer's submissions, Mr. Mussa complained that he was not going to be able to remember and respond to every point made on the Insurer's behalf. I suggested he take notes; he did not do so.³

In summary, apart from the initial adjournment from Monday to Wednesday of the same week due to his illness, Mr. Mussa made no requests for an adjournment. Representing himself, he presented oral and documentary evidence and made submissions. He viewed and commented on the video surveillance presented by the Insurer. Though he appeared to speak some English, he did not raise any concerns about the quality of the interpretation services provided by Mr. Mohammed. Mr. Mussa obviously felt at a disadvantage at the submission stage of the hearing but this perceived disadvantage was the result of his own decisions to represent himself and to not take notes. In my view, the hearing was conducted in a procedurally fair manner.

The Evidence:

Mr. Mussa testified that about two years prior to the hearing, he was injured while riding as a passenger in a TTC streetcar. He was not sure of the date of the accident. He testified that he signalled his stop, got up from his seat and was walking towards the door when the streetcar suddenly braked, causing him to fall and strike his chest on the corner of a seat. He testified that he felt intense pain and could not breathe. An ambulance was called and he was taken to the St. Joseph Hospital, accompanied by two TTC officers. X-rays taken at the hospital revealed no broken bones but Mr. Mussa testified that the pain continued to be intense, especially when he coughed, and that he could not move for a week. He testified that since the accident, he has seen many doctors and taken medicine for ongoing pain.

On cross-examination, Mr. Mussa testified that he injured the left side of his chest and that "later on," he also developed pain in his left, non-dominant, hand which lasted two or three months. He stated that he consulted his family doctor, Dr. R. B. Ramproopsingh, about two days after the accident and that, on this doctor's recommendation, he started a program of physiotherapy at the Orthopaedic and Sports Medicine Clinic. Mr. Mussa agreed with records from that clinic⁴indicating that he attended 20 times between September 28 and November 12, 1998, all paid for by the Insurer.⁵ He testified that treatment focussed on his left shoulder and back and included vibration, massage and different machines. Mr. Mussa also testified that he had two appointments with a specialist who prescribed medicine but he could not say what medications were prescribed by this specialist or in what quantities.

Mr. Mussa testified that after the accident, he could not get out of bed or dress without assistance for three weeks and that a friend named Jamma came to live in his apartment to help him. After that, he testified, he still needed help with cooking and housekeeping so Jamma arranged for a relative of his (Jamma's) to provide these services. Mr. Mussa testified that this person (a woman) came every day and that he wrote out the times she worked for him in a document that, he stated, "should be in my house." However, Mr. Mussa did not produce this document on the next day of the hearing.

Mr. Mussa testified that he started going to a local restaurant for meals about three months after the accident and that he started to do his own housekeeping around five or six months after the accident. He testified that he still owes Jamma most of the $1,190 claimed in respect of housekeeping services provided up to March 16, 1999.⁶ In fact, the Insurer paid $560 in respect of this claim⁷ but Mr. Mussa denied receiving this amount, saying that it "went to" his representative at the time.

Mr. Mussa testified that he took a taxicab to and from his 20 physiotherapy treatments at a cost of $10 each way and that he obtained a receipt each time.⁸ The Insurer denied the resulting claim for $400 but paid $80 to cover the cost of TTC transportation to and from these appointments.⁹

Mr. Mussa denied that he had ever had chest pain or broken any ribs prior to his streetcar accident. He acknowledged being in an accident in 1992 and that he sometimes still feels pain in the right leg and right lower back as a result. However, he stated that this was "no big problem." He could not recall the names of the lawyers who represented him in respect of the 1992 accident

The video surveillance was conducted over three days: October 23 and 28 and November 4, 1998. Mr. Mussa did not contest that he was the person shown in the surveillance video but challenged the date of the last day of surveillance in which he is shown travelling to and from his physiotherapy clinic by TTC, not by taxicab.

The Ambulance Report¹⁰ and hospital records¹¹ are consistent with Mr. Mussa's testimony at the hearing regarding the accident and resulting chest injury. The hospital records also indicate that on December 12, 1998, Mr. Mussa returned to the outpatient clinic complaining of ongoing left upper arm and chest pain as a result of a fall three months before. A Disability Certificate¹²completed by Dr. Ramroopsingh following his examination of Mr. Mussa on October 9, 1998, identifies "chest wall contusion" as the primary diagnosis and "low back pain" as the secondary diagnosis. It also indicates that Mr. Mussa was prevented from carrying on substantially all his normal pre-accident activities due to his inability to bend, lift, twist and carry.

On October 23, 1998, when interviewed by an Insurer representative,¹³ Mr. Mussa made the following statement:

Today, I can walk a little bit better but I still have the pain in my chest. I can't do heavy stuff but I can cook. I can't vacuum. I can shop for a few things, a little bit at a time. I can do my laundry.

This conflicted with the information Mr. Mussa supplied the Insurer when he completed an "Activities of Normal Life" form on two separate occasions. The form in question, OCF-12, lists various activities of normal living and asks the person completing it about his/her ability to perform each activity before and after the accident. On November 3, 1998 and April 9, 1999, Mr. Mussa indicated that he could do shopping, meal preparation, cleaning, laundry and home maintenance before the accident but none of these activities, even "partially" or "with help," after the accident. On both occasions, Mr. Mussa indicated that he could do all the other activities listed on the form completely before the accident and "partially" after the accident.

Mr. Mussa was examined by Dr. L. Todd Walters at the request of the Insurer on December 9, 1998.¹⁴ In addition to his "primary complaint ... of left sided chest wall pain," Mr. Mussa complained to Dr. Walters of "significant pain of the left elbow." Dr. Walters concluded that "on the basis of today's assessment, there does not appear to be any impairment to preclude this gentleman from participating in his full pre-accident activities."¹⁵

With respect to Mr. Mussa's ability to perform household activities, Dr. Walters made the following entry in his report:

He states initially following the accident he had someone come in to help [him] with housekeeping and look after him but he is currently able to perform most activities. He notes he his [sic] having someone come in to clean the house. He states this is because of left elbow pain. He is right hand dominant.¹⁶

Mr. Mussa entered into evidence a report written "to whom it may concern" by Dr. Ramroopsingh dated October 12, 1999. The important parts of this report read as follows:

As a result of the above mentioned accident [on a TTC "bus" in September, 1998], Mr. Mussa suffered from:

Chest wall pain
Lumbar pain

He said that he suffered significant chest wall pain.

Chest pain: Tender over sternal area to the left anterior chest but no bruise, crepitus or subcutaneous emphysema. There no evidence of fracture nor bony abnormality. There were no rales or wheezes.

Back: Tender lumbar sacral region, neurologically normal. Range of motion slightly diminished.

Mr. Mussa was last seen on October 06, 1999. He still had mild residual symptoms (back). He should avoid vigorous exercises, but could return to pre-accident activities, pacing himself. He should continue observing the proper back hygiene. There will likely be intermittent flare-ups, with or without stresses and strains. However, these should become less troublesome with time.¹⁷

The Insurer also submitted into evidence Dr. Ramroopsingh's clinical notes and records.¹⁸ They contain a report written by Dr. W. K. Cheng dated August 20, 1999 which makes the following observation about Mr. Mussa's ongoing back pain: "Apparently he also had a right hip injury and back injury in a car accident 6 years ago and he is taking Codeine, on and off, for it."¹⁹ With respect to Mr. Mussa's chest problems, Dr. Cheng's report states: "Mr. Mussa has post-traumatic chest wall pain that, by his own admission, has improved quite a bit but he still has some pain."²⁰

Dr. T. K. Pain, another doctor whose report dated August 1, 2000 appears in Dr. Ramroopsingh's clinical notes and records, expressed the opinion that Mr. Mussa's "chest pain is probably due to Teitze's syndrome to the left 4^th and 5^th costal cartilage."²¹ However, this doctor provided no opinion about the cause of Teitze's syndrome. To the extent that a trauma might have triggered or aggravated such a syndrome, it should be noted that Dr. Ramroopsingh's clinical notes and records also contain a report written by Dr. R. Ikeman on October 24, 1996 in which this doctor noted that Mr. Mussa "fractured a couple of left ribs" in a 1992 motor vehicle accident.²² There is further reference to previous left rib fractures in a 1997 x-ray report.²³The Insurer entered into evidence Mr. Mussa's OHIP records from January 1996.²⁴ They indicate that OHIP paid for no treatment on Mr. Mussa's behalf between December 16, 1998 and April 4, 1999.

Analysis and Conclusions:

Issues 1 and 2: non-earner benefits and housekeeping expenses:

In order to qualify for non-earner benefits under section 12 of the Schedule, Mr. Mussa must establish that as a result of the accident, he suffered a complete inability to carry on a normal life and that this inability lasted for more than 26 weeks. A person's inability to carry on his/her normal life is defined by section 2(4) of the Schedule to mean "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." Since the adverse health effects from his September 21, 1998 accident were immediate, Mr. Mussa is only eligible for this benefit if the evidence proves, on the balance of probabilities, that he remained unable to engage in substantially all of the activities in which he ordinarily engaged before the accident beyond March 21, 1999.

In order to qualify for housekeeping expenses under section 22 of the Schedule, Mr. Mussa must establish that as a result of the accident, he suffered a substantial inability to perform the housekeeping services he normally performed before the accident. The Insurer has already paid for the first eight of the seventeen days in respect of which Mr. Mussa originally claimed housekeeping expenses. Mr. Mussa is only eligible for expenses in respect of the additional days if the evidence proves, on the balance of probabilities, that he remained unable to perform his own housekeeping tasks on those days, the first of which fell on December 14, 1998.²⁵

The only evidence about Mr. Mussa's pre-accident activities is contained in the two "Activities of Normal Life" forms he completed on November 3, 1998 and April 9, 1999. They identify shopping, meal preparation, cleaning, laundry and home maintenance as pre-accident activities. However, even if these were activities in which Mr. Mussa ordinarily engaged prior to the accident, his own testimony at the hearing was that he resumed these activities within three to six months after the accident. This is consistent with the documentary evidence which confirms that the last day for which he claimed housekeeping expenses was March 16, 1999.²⁶ However, Mr. Mussa's statements to the Insurer representative on October 23, 1998 and to Dr. Walters on December 9, 1998 indicate that he had resumed some of these activities before the dates he made those statements.

There is no medical evidence to contradict Dr. Walters' opinion that by December 9, 1998, Mr. Mussa could resume his pre-accident activities. It is true that Dr. Ramroopsingh's Disability Certificate had indicated that Mr. Mussa was unable to carry on substantially all his normal pre-accident activities but this opinion was based on an examination on October 9, 1998. It is also true that Dr. Ramroopsingh's subsequent "to-whorn-it-rnay-concem" report stated that Mr. Mussa could return to pre-accident activities but this opinion was based on an examination on October 6, 1999. The only inference I am able to draw from these documents is that in Dr. Ramroopsingh's opinion, Mr. Mussa was able to resume his pre-accident activities sometime between October 1998 and October 1999.

In my view, Mr. Mussa's failure to seek OHIP-paid medical attention between December 16, 1998 and April 4, 1999 corroborates Dr. Walters' opinion that Mr. Mussa had recovered from any accident-related impairment and was able to resume his pre-accident activities by December 9, 1998.

Based on this evidence, taken as a whole, I reject both Mr. Mussa's claim for non-earner benefits and his claim for additional housekeeping expenses.

Issue 3: transportation expenses:

Despite Mr. Mussa's doubts about the last date of video surveillance, I accept and rely upon the Insurer's surveillance evidence as proof that Mr. Mussa travelled to and from his November 4, 1998 physiotherapy appointment by TTC and that he was capable of using that means of transportation by October 23, 1998, at the latest. I further accept the Insurer's argument that these findings should affect, adversely, my view of the authenticity of all the taxi receipts submitted by Mr. Mussa. Moreover, all or most of these receipts appear, implausibly, to have been made out by the same person and to refer to the same cab number.

It may be that Mr. Mussa was required to travel to his earlier physiotherapy appointments by taxicab but I find his evidence in relation to this issue, both oral and documentary, unreliable. I, therefore, reject his claim for transportation expenses beyond those he received from the Insurer.

Issues 4 and 5: expenses and penalty:

Each party's claim for expenses must be determined in accordance with section 282(11) of the Insurance Act and the Expense Regulation and Schedule. The Insurer's claim for a penalty must be determined in accordance with section 282(11.2) of the Insurance Act. In applying both the Expense Regulation and section 282(11.2) of the Insurance Act, I must address the issue whether this arbitration was, as the Insurer maintains, "frivolous," "vexatious" or "an abuse of process."

In the case of Imalele and Zurich Insurance Company,²⁷ the arbitrator defined and applied these terms as follows:

In my view, in order for a proceeding to be found frivolous, it must relate to a claim which is trivial or inconsequential. Mr. Imalele's claim in this matter cannot be so described as it related to substantial ongoing income replacement benefits and medical/rehabilitation expenses. Similarly, in order for me to make a finding that the application is vexatious, I must determine that it was designed primarily to inconvenience the Insurer and cause it to go to unnecessary expense. I cannot agree that this was the Applicant's motivation in applying for arbitration in the present circumstances. In order for me to find a proceeding to be an abuse of process, I must have evidence of a course of conduct on the part of the Applicant which demonstrates a wilful disregard for the arbitration process. I find I have not been provided with sufficient evidence to make a finding that Mr. Imalele's conduct amounted to an abuse of process. The claim may have been without merit, but I cannot infer from the evidence provided to me that Mr. Imalele wilfully disregarded the procedures laid down by the Commission in the course of his conduct of the arbitration proceeding.²⁸

I agree with and adopt these definitions and, applying them to the present case, I reject the Insurer's submission that this arbitration was frivolous, vexatious or an abuse of process. The amounts claimed by Mr. Mussa were not trivial or inconsequential; he clearly commenced the proceeding in order to recover these amounts, not to inconvenience or harass the Insurer, and he eventually complied with all the requirements of the arbitration process. I note that the pre-hearing had to be resumed when Mr. Mussa initially failed to satisfy his production obligations but, with the intervention of the pre-hearing arbitrator, he subsequently agreed to sign the required authorizations in favour of the TTC. Similarly, Mr. Mussa failed to appear at the hearing on the day it was scheduled to commence but, with my intervention, he proceeded with the hearing later the same week.

In Allison and Markel Insurance Company of Canada,²⁹ a Director's Delegate observed that an order against an insured person under section 282(11.2) of the Insurance Act is "in the nature of a penalty" and that "[i]t can only be made if the arbitrator finds that the application for arbitration was frivolous, vexatious or an abuse of process and in no other circumstances. The discretion of the arbitrator is limited to determining whether an amount should be levied in these specific circumstance, and, if so, how much." [emphasis in the original].³⁰ Since I have found that this arbitration was not frivolous, vexatious or an abuse of process, I have no jurisdiction to impose a penalty on Mr. Mussa under section 282(11.2) of the Insurance Act.

That having been said, I also find that Mr. Mussa's claims were "manifestly unfounded" within the meaning of the Expense Regulation. His claim for non-earner benefits was defeated by his own evidence; his claim for housekeeping expenses was defeated by his own prior inconsistent statements and by the absence of medical evidence of disability during the relevant periods, and his claim for transportation expenses was supported by evidence which was, at best, unreliable. I further note that Mr. Mussa gave incorrect or incomplete evidence about his pre-accident health in two respects: he denied prior injuries to his left ribs and he understated the ongoing low back symptoms caused by his 1992 motor vehicle. This evidence gave a misleading picture of Mr. Mussa's pre-accident health in the two areas of his body identified by Dr. Ramroopsingh as having been injured in the accident.

I, therefore, reject Mr. Mussa's claim for expenses and allow the Insurer's claim for expenses in the amount of $250 for the first day of the hearing and $500 for each of the other two days, for a total of $1,250.

February 12, 2001

David Leitch Arbitrator

Date