Neutral Citation: 2003 ONFSCDRS 94

FSCO A02–000614

BETWEEN:

ABDALLA ALI

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Eban Bayefsky

Heard:

April 14, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Ali, representing himself

Pamela A. Brownlee for Royal & SunAlliance Insurance Company of Canada

The Applicant, Abdalla Ali, was injured in a motor vehicle accident on May 21, 2001. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (hereinafter "Royal"), payable under the Schedule.¹ Royal terminated weekly income replacement benefits on January 27, 2002. The parties were unable to resolve their disputes through mediation, and Mr. Ali 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. Ali entitled to receive a weekly income replacement benefit from January 28, 2002 to May 2, 2002, with interest, pursuant to section 4 of the Schedule?
Is Mr. Ali entitled to payments for the cost of assessments at Total Care Management (in the amount of $1,500) and Major Assessment (in the amount of $360), pursuant to section 24 of the Schedule?
Is Mr. Ali liable to repay income replacement benefits (in the amount of $8,349.40), pursuant to section 47 of the Schedule, based on collateral benefits that were reasonably available to Mr. Ali?
Is either party liable to pay the other its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Mr. Ali is not entitled to weekly income replacement benefits.
Mr. Ali is not entitled to the cost of assessments at Total Care Management and Major Assessment.
Mr. Ali is not liable to repay income replacement benefits to Royal.
Mr. Ali shall pay Royal its expenses of the arbitration, fixed at $750.

Background

The hearing in this matter commenced on February 18, 2003. Ms. Grace Bach participated on behalf of Royal, represented by Ms. Brownlee. Mr. Ali did not attend and no one appeared on his behalf (although he had previously been represented by Mr. Alexander Nterekas, who had since sought to withdraw as Mr. Ali's representative). Following submissions from Ms. Brownlee, I made orders (contained in correspondence dated February 19, 2003) regarding Mr. Ali's representation, the continuation of the hearing and the issue of costs. Specifically, I stated that the hearing would reconvene by telephone conference on February 28, 2003 to address Mr. Alexander Nterekas' earlier request to withdraw as Mr. Ali's representative, that, subject to the resumption on February 28, 2003, the hearing would continue on April 14-16, 2003, peremptory to Mr. Ali (with no further adjournments being permitted except in extreme and unforeseeable circumstances), and that I would address the issue of costs at the conclusion of this proceeding.

Ms. Brownlee participated in the telephone resumption on February 28, 2003. Neither Mr. Ali nor Mr. Nterekas could be contacted. However, I was advised by Mr. Nterekas' office that he had sent correspondence to Ms. Brownlee and the Commission (attaching earlier documentation) concerning his request to withdraw as Mr. Ali's representative. After hearing submissions from Ms. Brownlee and reviewing Mr. Nterekas' materials, I indicated in correspondence dated February 28, 2003 that I was prepared to grant Mr. Nterekas' request to withdraw as Mr. Ali's representative. In the same letter, I confirmed that the hearing would proceed on April 14-16, 2003 and that these dates were peremptory to Mr. Ali (with no further adjournments being permitted except in extreme and unforeseeable circumstances). I also stated that if Mr. Ali intended on retaining a new representative, he was to do so immediately and advise the Commission and Ms. Brownlee of the person's name and address immediately. A settlement discussion occurred in this case by telephone on March 20, 2003. Mr. Ali and Ms. Brownlee participated. Ms. Brownlee stated at the hearing on April 14, 2003 (and I accept) that, at her request, the arbitrator presiding at the settlement discussion advised Mr. Ali that it was imperative that he retain a representative immediately as the matter would be proceeding on April 14, 2003. The matter did not settle.

The hearing resumed on April 14, 2003 as scheduled. Ms. Bach participated on behalf of Royal, represented by Ms. Brownlee. Mr. Ali attended without a representative. As previously requested, a Somali interpreter, Ms. Halima Jama of All Languages Ltd., attended to assist with translation. Mr. Ali asked that each statement be translated, although it quickly became apparent that this was unnecessary given that Mr. Ali responded to relatively complicated questions in English before the interpreter had had a chance to translate them. As Ms. Brownlee pointed out in the course of the hearing, none of the medical assessors on this file raised any concerns about Mr. Ali's ability to understand English (the Designated Assessment Centre (the "DAC") specifically noting Mr. Ali's statement that he had resided in Canada for ten years and that he regarded himself as "fluent in English"). Nevertheless, the whole of the proceeding was conducted through an interpreter.

At the commencement of the hearing, Mr. Ali said that he expected his lawyer to be present. Mr. Ali denied receiving any of the correspondence concerning Mr. Nterekas' withdrawal as his representative. I confirmed that Mr. Ali's address was the address to which all of the correspondence had been sent. None of the correspondence had been returned to the Commission. I did not accept that Mr. Ali had not received the relevant correspondence.

Mr. Ali said that he wanted an adjournment in order to retain a new representative and that he was not ready to proceed. After hearing submissions from Ms. Brownlee, I denied Mr. Ali's request for an adjournment based on the various letters to Mr. Ali (both from the Commission and from Mr. Ali's previous representative, Mr. Nterekas), his failure to attend at the first day of the hearing and his participation in the recent settlement discussion (during which he was advised to retain a new representative in light of the impending hearing). I was satisfied that Mr. Ali had been given ample notice both of his need to retain a new representative and of his need to proceed on April 14, 2003. I denied Mr. Ali's adjournment request and gave him the option of withdrawing the arbitration or putting forward his case. Mr. Ali stated that he wished to continue with his case. I then confirmed the issues in the hearing, including the Insurer's request for a repayment of benefits, in the amount of $8,349.40. Mr. Ali stated that he understood that the Insurer was seeking a repayment of these benefits.

The hearing proceeded with Mr. Ali giving brief testimony under oath. He said simply that he had not worked from January 28 to May 2, 2002 due to pain and that he was requesting lost income for this period. He said that he had experienced pain and suffering from the date of the accident to May 2, 2002 and that he wanted to be paid for this. He said that he had nothing else to add in support of his claims, including calling any witnesses or providing any documentation.

Ms. Brownlee had no questions for Mr. Ali and called no witnesses. The Insurer's Brief of Documents and 5 pages from Mr. Ali's Maritime Life Assurance Company file (his disability insurance carrier) were entered into evidence. Mr. Ali had no comments on this material and made no submissions, although at one point during Ms. Brownlee's submissions, Mr. Ali denied that he had made an application for benefits to Maritime Life (despite being shown his application form with the details of the accident and acknowledging his signature at the bottom). Mr. Ali's only other points were that he did not receive anything from Maritime Life, and that he could not understand why the Insurer wanted him to pay money back and why they were not taking care of him after his accident.

Ms. Brownlee briefly reviewed the medical documents on file and submitted that Mr. Ali was not entitled to either income replacement benefits or the cost of the two medical assessments.

Ms. Brownlee also submitted that, while Maritime Life did not appear to have paid Mr. Ali any benefits, they were available to him and should be deducted and repaid, pursuant to sections 7 and 47 of the Schedule.

Findings

I find that Mr. Ali is not entitled to income replacement benefits ("IRBs") from January 28 to May 2, 2002 or to the cost of the two medical assessments. I also find that the Insurer is not entitled to a repayment.

Mr. Ali was a service agent at Avis car rental where he cleaned cars and prepared them for rental. He was injured in a motor vehicle accident on May 21, 2001. He claimed to have suffered back and neck injuries in the accident. Aside from two days back at work shortly after the accident, Mr. Ali did not return to employment until May 2, 2002. The Insurer initially terminated benefits on September 4, 2001, based on an Insurer Examination ("IE") by Dr. P. Robert, an orthopaedic surgeon. Mr. Ali asked to be assessed by a Disability DAC and the Insurer, therefore, continued to pay him IRBs. The Insurer subsequently terminated benefits on January 27, 2002, based on the DAC report.

Mr. Ali underwent a Functional Abilities Evaluation ("FAE") on August 10, 2001. The assessor, Ms. Kirsten Orpana, a certified kinesiologist, found that Mr. Ali "demonstrated adequate functional ability to perform his pre-accident duties as a service agent as per the completed job description." Ms. Orpana stated that Mr. Ali "would be suited to have a self-directed comprehensive home exercise program geared towards his subjective complaints."

Dr. Robert concluded that Mr. Ali was "capable of performing his pre-accident duties as a service agent for a car rental company...without restrictions or limitations." Dr. Robert also found that Mr. Ali did "not require any further treatment, either in the form of various modalities of physical medicine, or any pharmacological agents." Dr. Robert stated that, while not medically necessary, the FAE's recommendation of a home exercise programme might help motivate Mr. Ali to perform his activities of daily living and employment.

The DAC stated that "overall, based on the client's pain responses and poor effort demonstrated, the results of functional testing cannot be considered reliable in determining his true abilities at this time." The DAC indicated that "based on functional testing alone, it cannot be determined wheather [sic] the client is substantially unable to perform the essential tasks of the employment he was engaged in at the time of the accident." However, the DAC stated that "[i]t is the unanimous conclusion of the Designated Assessment Centre that Mr. Ali does not suffer from a substantial impairment that disables him from the essential tasks of his pre-accident employment as a service agent."

Mr. Ali underwent a Medical and Rehabilitation DAC assessment in February 2002. On March 18, 2002, this DAC reported that the treatment plan completed by Dr. L. Hoyte, a chiropractor with Mega Rehabilitation Centre, was not reasonable and necessary and that Mr. Ali should have progressed to an independent home exercise programme. The DAC stated that no further treatment was recommended.

The only evidence Mr. Ali offered was his testimony that he was unable to work due to the pain and suffering he experienced as a result of the motor vehicle accident. Mr. Ali is not entitled to income replacement benefits simply on the basis that he may have experienced pain following the accident. Pursuant to section 4 of the Schedule, in order to be entitled to IRBs, Mr. Ali must show that he suffered a "substantial inability to perform the essential tasks" of his pre-accident employment as a result of the accident. Based on the FAE, the IE and the disability DAC, none of which was challenged by Mr. Ali, I find that Mr. Ali did not suffer a substantial inability to perform the essential tasks of his job of a service agent at a car rental agency. Even if the DAC was not as clear as it could have been, I find it essentially consistent with the FAE and IE reports. In any event, I do not find that Mr. Ali has discharged the onus on him of establishing that any pain he experienced as a result of the accident substantially disabled him from performing his pre-accident job.

Regarding Mr. Ali's claim for the cost of the two medical assessments, he provided no evidence of the nature of these charges or whether they were reasonable and necessary. He provided no evidence that he had, in fact, incurred the costs claimed. Based on the IE and the med-rehab DAC, and in the absence of any evidence to the contrary from Mr. Ali, I find that Mr. Ali is not entitled to the costs of the two medical assessments, pursuant to section 24 of the Schedule.

Regarding the Insurer's request for a repayment of benefits, the Insurer concedes that Mr. Ali did not receive any benefits from his disability insurance carrier, Maritime Life Assurance Company. However, the Insurer submits that, pursuant to section 7(1)1(ii) of the Schedule, the benefits are deductible since they were available to Mr. Ali. Section 7(1)1(ii) states that weekly IRBs are to be reduced by "payments for loss of income that are not being received by the person but are available to the person...under any income continuation benefit plan, unless the person has applied to receive the payments for loss of income."

The Insurer further submits that Mr. Ali must repay the benefits that were available to him pursuant to section 47(1)(c) of the Schedule, which states that a person shall repay "any income replacement...benefit...to the extent of any payments received by the person that are deductible from those benefits..." or, alternatively, pursuant to section 47(1)(a), which states that a person must repay "any benefit...that is paid to the person as a result of an error on the part of the...insured person...." The Insurer submits that the only reason Mr. Ali did not receive benefits from Maritime Life was that he did not provide them with sufficient information to assess his claim, and that the Insurer should not have to pay Mr. Ali full benefits given this "error." Maritime Life confirmed on July 26, 2001 that they could not assess Mr. Ali's claim since they did "not have sufficient medical evidence...which would allow [them] to render a decision as to the severity of [Mr. Ali's] condition and treatment." Maritime Life asked for further information. I received no evidence as to the outcome of this request.

I do not find that Mr. Ali is required to repay benefits pursuant to section 47(1)(c) of the Schedule. Even if the Maritime Life benefits were "available" to Mr. Ali within the meaning of section 7(1)1(ii), section 47(1)(c) is clear that they would only need to be repaid if Mr. Ali had, in fact, received them. That did not occur here. I note as well the decision of Saqui and Allstate Insurance Company of Canada (OIC A-011612, April 30, 1996), which found that an applicant did not have to repay a portion of his IRBs in relation to long-term disability benefits that might have been available to him, but that he did not receive (an appeal of this decision was dismissed on other grounds; OIC P96-00051, January 13, 1997). Even if Mr. Ali's claim with Maritime Life had proceeded to a final determination, it is far from clear that he would have succeeded in obtaining benefits. I, therefore, find that he is not required to repay a portion of his IRBs pursuant to section 7(1)1(ii) or 47(1)(c).

I am also not prepared to find that Mr. Ali's inconclusive claim with Maritime Life constitutes an "error" for the purposes of section 47(1)(a) of the Schedule. Pursuant to the appeal case of Lunn and State Farm Mutual Automobile Insurance Company (OIC P-013860, April 30, 1997), "if the insured person materially contributed to the overpayment, it must be repaid" and pursuant to Saqui, the Insurer bears the onus of establishing its entitlement to a repayment. Other than the July 2001 letter from Maritime Life and Mr. Ali's statement that he did not receive any benefits from them, I have no evidence about whether or why he failed to pursue his claim with Maritime Life. While it might be unreasonable to expect the Insurer to fully establish these points, I find that I would need significantly more direct evidence to find that Mr. Ali materially contributed to any overpayment, such that he committed an "error" for which he should have to repay the Insurer a portion of his IRBs. This is particularly true in light of the fact that, even if Mr. Ali's disability claim had proceeded to a final determination, he may not have received any benefits. I, therefore, deny the Insurer's request for a repayment.

EXPENSES:

The Insurer sought its expenses of the arbitration. The Insurer submitted that Mr. Ali has shown a complete lack of interest in pursuing his claim and that the Insurer should be entitled to its expenses regardless of its success on the repayment issue. The Insurer sought its expenses for 3 days (24 hours) of counsel's time (at $150 per hour), for a total of $3,600, in relation to its preparation and attendance on February 18 and April 14, 2003. Mr. Ali had no submissions on this point.

Having regard to the criteria set out in Rule 75 of the Dispute Resolution Practice Code on the awarding of expenses, I find that Mr. Ali should pay the Insurer $750. Mr. Ali was unsuccessful in his claim for IRBs and medical benefits. However, the Insurer was unsuccessful in its claim for a repayment. Mr. Ali's failure to attend on February 18, 2003 and February 28, 2003, and his lack of responsiveness to the various letters on this file tended to hinder the proceeding. However, only one adjournment was required and Mr. Ali did proceed with his hearing on April 14, 2003. Even if Mr. Ali had withdrawn his arbitration, the Insurer may well have proceeded with its request for a repayment, which was a significant issue independent of Mr. Ali's entitlement to IRBs in 2002. Mr. Ali offered little evidence in support of his claim. However, the medical evidence as a whole did not suggest that his case was manifestly unfounded, frivolous, vexatious, fraudulent or an abuse of process. I am cognizant of the costs incurred by the Insurer in responding to this claim. However, I must balance this with the fact that Mr. Ali proceeded with his case on his own and did not unduly prolong or obstruct the proceeding. In all of the circumstances, I find that an appropriate award of expenses is $750.

June 12, 2003

Eban Bayefsky Arbitrator

Date