Neutral Citation: 2002 ONFSCDRS 9

FSCO A02-000375

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RAJINDER SANDHU

Applicant

and

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S

Insurer

REASONS FOR DECISION

Before:

Susan Sapin

Heard:

Written hearing on October 23, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Written submissions filed by David José for Non-Marine Underwriters, Mbrs. of Lloyd's

No submissions were received from Mr. Sandhu

Issues:

The Applicant, Rajinder Sandhu, a 55-year-old taxi driver, was involved in a motor vehicle accident on December 8, 2000, when his taxi was sideswiped by another vehicle. He applied for statutory accident benefits from Non-Marine Underwriters, Mbrs. of Lloyd's ("Lloyd's"), payable under the Schedule,¹ on December 20, 2000. Lloyd's refused to pay income replacement benefits (IRBs) on the basis that Mr. Sandhu was not substantially disabled from returning to work, but paid his medical and rehabilitation benefits until the first week of March 2001. On October 17 and December 24, 2001, Mr. Sandhu and Lloyd's mediated their differences. The mediation was unsuccessful and Mr. Sandhu 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. Did Mr. Sandhu sustain an impairment within the meaning of section 2 of the Schedule as a result of the accident?

2. Is Mr. Sandhu entitled to IRBs of $400 per week from December 8, 2000 and ongoing under section 4 of the Schedule?

3. Is Mr. Sandhu entitled to a medical benefit of $1,298.50 under section 14 of the Schedule for treatment provided by Metro Orthopaedic Rehabilitation Inc. as follows:

$ 85

Obus low back support

$350

therapeutic massage, active rehab and chiropractic treatment

$350

therapeutic massage, active rehab and chiropractic treatment

$350

therapeutic massage, active rehab and chiropractic treatment

$163.50

Medical care transportation

4. Is Mr. Sandhu entitled to housekeeping expenses of $5,040 under section 22 of the Schedule?

5. Is either party liable to pay the arbitration expenses of the other under section 282(11) of the Insurance Act?

Result:

1. Mr. Sandhu suffered an impairment as a result of his motor vehicle accident and was substantially disabled from performing the essential tasks of his employment up until March 15, 2001.

2. Mr. Sandhu is not entitled to an IRB from December 8, 2000 and ongoing in accordance with section 33 of the Schedule, because he failed to provide reasonable information to the Insurer to permit it to calculate the amount of an IRB.

3. Mr. Sandhu is not entitled to the medical benefit claimed under section 14 of the Schedule.

4. Mr. Sandhu is not entitled to housekeeping expenses under section 22 of the Schedule.

5. Mr. Sandhu is not entitled to his expenses of the arbitration, and must pay Lloyd's expenses, fixed at $500.

EVIDENCE AND ANALYSIS:

Reasons for written hearing:

A pre-hearing was scheduled for July 8, 2002. Mr. Sandhu did not attend, and his representative advised that he was unable to locate him. The pre-hearing was rescheduled to August 1, 2002, to give Mr. Sandhu's representative the opportunity to locate his client. A Notice of Rescheduled Pre-hearing was sent to Mr. Sandhu's last known address.

Mr. Sandhu did not attend the reconvened pre-hearing, and his representative's motion to be unconditionally removed from the record was granted by the pre-hearing arbitrator, who also ordered that the arbitration proceed by way of written submissions, to be converted to an oral hearing if Mr. Sandhu, now self-represented, came forward to participate.

A Notice of Hearing dated September 5, 2002 was sent to Mr. Sandhu's last known address, setting out the timetable for the written hearing as follows:

a) Initial submissions from Claimant, Mr. Rajinder Sandhu, due on September 23, 2002;

b) Response from Insurer due on October 8, 2002; and

c) Reply from the Claimant, Mr. Rajinder Sandhu, due on October 22, 2002.

As October 22, 2002 came and went with no word from Mr. Sandhu, I proceeded with the written hearing on the basis of written submissions and documentary evidence filed on behalf of Lloyd's, being satisfied that every effort was made to give proper notice to Mr. Sandhu in accordance with the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended, and Rule 37 of the Dispute Resolution Practice Code (the "Code" (Fourth Edition).

Entitlement to IRBs — Disability:

In order to be entitled to IRBs, Mr. Sandhu must establish, on a balance of probabilities, that he suffered an impairment in the accident, as a result of which he was substantially unable to complete the essential tasks of his employment as a taxi driver. I find these essential tasks to be prolonged sitting, getting in and out of the taxi, and lifting luggage in and out of the trunk.

A Disability Certificate completed by Dr. T.P. Singh, Mr. Sandhu's family doctor, on December 15, 2000 describes Mr. Sandhu's injuries as a Whiplash-Associated Disorder Grade II with injuries to the low back and neck. It also notes that Mr. Sandhu suffered headaches and insomnia as a result of the accident.

Although Dr. Singh checked off the box marked "yes" in answer to the question "Can the Applicant return to work," I find this to be an error, as on the next page, Dr. Singh listed "prolonged sitting, turning of neck from side to side (taxi driver) lifting, and repetitive bending" as medical restrictions that prevent him from returning to work.

The February 14, 2001 report of Dr. E.P. Urovitz, an orthopaedic surgeon who examined Mr. Sandhu the same day on behalf of Lloyd's, states categorically that Mr. Sandhu was substantially disabled from his essential tasks as a taxi driver because his back pain prevented him from engaging in the prolonged sitting required.

As Dr. Urovitz felt that Mr. Sandhu required a four-week pro-active program of back mobilization exercises before being able to return to work, I find, on a balance of probabilities and on the evidence before me, that Mr. Sandhu was disabled from employment at least until March 15, 2001.

Entitlement to IRBs — Quantum:

I am unable, on the evidence provided, to determine the amount of IRBs to which Mr. Sandhu would be entitled. An Employer's Confirmation of Income form dated December 20, 2000 submitted to Lloyd's by Mr. Sandhu indicates an annual self-employment income of $40, 560 in the year before the accident. Three Revenue Canada tax assessments which appear to be for the 1999 taxation year show three different annual incomes of $870 (pre-bankruptcy), $0 (post-bankruptcy), and $17,792. No tax return for the 2000 year was ever provided. None of the evidence provided explains the discrepant 1999 tax returns, and I find they suggest that the amount stated as Mr. Sandhu's 2000 income on the Employer's Confirmation of Income form is unlikely to be accurate.

I find that Lloyd's advised Mr. Sandhu in January 2001 that it required supporting documentation in the form of taxi run sheets for the year before the accident in order to have an accountant calculate an IRB. To date, no original or supporting documents have been provided.

There is, therefore, no reliable information upon which I or Lloyd's could determine an IRB amount.

Section 33 of the Schedule requires insured persons to provide their insurer with any information reasonably required to assist it in determining the person's entitlement to a benefit and provides that the benefit is not payable for any period before the person complies with this requirement. I find that accurate tax documents and supporting documents such as taxi run sheets are reasonably required to assist an insurer in determining the IRB to which an insured person may be entitled.

I find that Lloyd's is not required to pay an IRB to Mr. Sandhu because Mr. Sandhu has not established what income he earned in the 52 weeks before the accident or the last fiscal year of his business as required by section 6 of the Schedule, and he has not provided information reasonably required to permit Lloyd's to calculate an IRB. As no IRB is payable for the period during which that information is not provided, Mr. Sandhu is not entitled to an IRB for the period he was disabled from work — December 8, 2002 to March 15, 2001.

Medical benefits

Lloyd's refused to pay for two Treatment Plans dated March 8 and April 26, 2001 from Metro Orthopaedic Rehab Clinics, the last two of six. Lloyd's relies on a July 9, 2001 report of a multidisciplinary assessment conducted by a Medical Rehabilitation Designated Assessment Centre (Med rehab DAC) which concluded that the physiotherapy, massage and chiropractic treatment recommended in the two plans were not reasonable or necessary. The DAC noted that "the nature of the injuries suggest an 8-10 week therapeutic program which would have been reasonable...." and that, at eight weeks post-accident, the most appropriate therapeutic intervention was for Mr. Sandhu to progress to an independent-based program utilizing home-based stretches for his shoulder and lower back. It further noted that Mr. Sandhu exhibited self-limiting behaviours during functional testing, that he declined to participate in some tests due to pain, and that he did not put forth maximal effort in others.

As there was no medical evidence on behalf of Mr. Sandhu before me, and as he did not testify, there is no evidence to rebut the presumption that the nature of his injuries was such that 8 to 10 weeks of treatment should have been reasonable. I have no evidence to permit me to determine whether his poor performance on functional tests was due to pain or some other factor. I have no reason not to accept the evidence of the DAC that treatment was not reasonable or necessary. Consequently, I accept this evidence and find that the two Treatment Plans were not reasonable or necessary.

Housekeeping expenses

Mr. Sandhu claims housekeeping expenses of $5,040 from January 11, 2001 to March 12, 2002, the date of his Application for Arbitration, and an unspecified amount thereafter.

Lloyd's paid housekeeping expenses of $160 for the period December 8, 2000 to January 11, 2001 in accordance with the recommendations of an in-home occupational therapy assessment prepared on behalf of Mr. Sandhu by J & K Rehab Centre on December 14, 2000. I accept the conclusions found in this report. There is no evidence that Mr. Sandhu required any housekeeping assistance beyond January 11, 2001.

EXPENSES:

Both parties claim their expenses of the arbitration proceeding. Rule 75 of the Code sets out the criteria by which an arbitrator may award expenses to either party. An important factor in determining expenses is whether a party complied with the rules of procedure of the dispute resolution process, in particular, personal participation in the process, ongoing disclosure of necessary and relevant information, and compliance with undertakings. Due to Mr. Sandhu's disregard of these requirements, I decline to award expenses in his favour and order him to pay Lloyd's arbitration expenses, fixed at $500.

January 10, 2002

Susan Sapin Arbitrator

Date

Neutral Citation: 2002 ONFSCDRS 9

FSCO A02-000375

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RAJINDER SANDHU

Applicant

and

NON-MARINE UNDERWRITERS, MBRS. OF LLOYD'S

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The arbitration is dismissed. Mr. Sandhu is not entitled to Income Replacement, Medical or Housekeeping benefits under the 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, 303/98, 114/00 and 482/01.

2. Mr. Sandhu shall pay to Non-Marine Underwriters, Mbrs. of Lloyd's, its expenses of the arbitration, fixed at $500.

January 10, 2003

Susan Sapin Arbitrator

Date

Footnotes

1. 1The 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, 303/98, 114/00 and 482/01.