Neutral Citation: 2004 ONFSCDRS 101
FSCO–008445
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ABA M. ALAMIN
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
REASONS FOR DECISION
Before:
John Wilson
Heard:
January 12, 13, 14 and 15, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Ms. Alamin was unrepresented.
Nestor E. Kostyniuk for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, Aba M. Alamin, is a Somali immigrant who was living in Canada, raising a family of six children as an unemployed single parent, when she was first injured in a TTC bus accident on March 21, 1993. She later also applied for statutory accident benefits from Royal & Sun Alliance Insurance Company of Canada ("Royal") arising from another incident, in a taxi-cab which was alleged to have happened on September 14, 1993.
The parties remained unable to resolve their disputes through mediation, and Ms. Alamin applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The hearing process for the benefits arising out of both incidents commenced in 1995, but was delayed repeatedly due to Ms. Alamin's involvement in criminal proceedings, her unstable mental health which resulted in periods of involuntary confinement in a psychiatric facility, her change in counsel, and significant concerns about her overall capacity to retain and instruct counsel and proceed in this matter without the intervention of a litigation guardian.
This matter was set down to be heard concurrently with Ms. Alamin's claim arising from the taxi incident. Hearings commenced, and were adjourned before various arbitrators over the years, but no decision on the merits of the claim was ever made.
Ultimately, a hearing was held, commencing January 12, 2004, in which Ms. Alamin presented her own claim, with some assistance from a member of her religious community. At that hearing I upheld certain of Ms. Alamin's claims for statutory accident benefits from the TTC.
During the entire hearing process, the impecuniosity of the Applicant, ongoing capacity issues, and, especially, the lapse of time between the accident and the various stages of the arbitration proceedings has presented some challenges in fairly hearing and evaluating the evidence in this matter.
While section 4.4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (S.P.P.A.), provides for the completion of a hearing by another tribunal member where the original member of the tribunal becomes unavailable, this matter has been dealt with as a hearing de novo, with only the record of the arbitration proceedings, and evidence referred to and relied upon by the various parties considered in making this decision.1
In the context of this decision, such evidence includes Ms. Alamin's significant medical history, contained in various briefs, the transcripts of the abortive proceedings before Arbitrator McMahon, and reference to Ms. Alamin's criminal process.
As well, viva voce evidence was presented at the hearing by Ms. Alamin, herself, and witnesses for both Insurers.
The issues in this hearing are:
- Is Ms. Alamin entitled to receive weekly benefits and caregiver benefits under section 13 of the Schedule2, on the basis that she has suffered a substantial inability to perform the essential tasks in which she would normally engage?
Result:
- Ms. Alamin is not entitled to receive weekly benefits and caregiver benefits.
EVIDENCE AND ANALYSIS:
Section 13(1) of the pre-1994 Schedule provides for the payment of a benefit to a person who has no eligible income.
The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).
Section 13(2)1. outlines further criteria:
He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks in which he or she would normally engage.
Critical to both these sections is the pre-condition that a claimant must sustain injuries resulting from an accident, which in turn impairs his or her ability to perform essential tasks.
In my previous decision involving Ms. Alamin's claim, I dealt at length with the nature of Ms. Alamin's disabilities. Briefly, the lengthy and complicated record can be summarized as follows:
Records from many of Ms. Alamin's interactions with the medical system over the years were filed as part of this arbitration. A significant portion of these records dealt with the psychiatric aspects of Ms. Alamin's various complaints, including both voluntary and involuntary admissions to psychiatric facilities.
Taken together, the hospital records, together with the comments of the various treating physicians, suggest that Ms. Alamin has long suffered from depression. In all likelihood, given the nature of the medication she seems to have received over the past decade, it is likely that there is some concordance between her current psychiatrist, Dr. Dilkhush Panjwani's current diagnosis and the comments made by one of her treating physicians, Dr. Nestor Fernandez, that schizophrenia has played some role in Ms. Alamin's disabilities both before and after the accident.
All the records and Ms. Alamin's evidence coincide in mentioning consistent reports of pain, usually in the neck, back and legs. Most reports differ, however, in their attribution of this pain.
The psychiatric reports refer to "somatoform disorder", which denotes psychogenic symptoms resembling those of physical disease.
Whatever the cause, I accept that Ms. Alamin's consistent statements about pain were credible, and accurately reflect her appreciation and feeling for her condition after both accidents.
Perhaps the comment that provides the greatest insight into the changes reported by Ms. Alamin after the accident is the note Dr. Antoinette Wertman added to the North York General records during Ms. Alamin's June 1993 hospitalization. It bears further consideration.
Note by GP: Know pt x 18 months. With exaccerbation (sic) of stress/depression her somatic complaints escalate, especially the pains in her head, chest, flank and hips. Her pains are very real to her but they are also very "hysterical" in character and have been investigated with CXR ECG, 24 hr holter (sic), lab work etc. Her pains are often accompanied by "numbness and paralysis" in distant extremities. The only positive finding has been generalized muscle tenderness and spasm which I found several wks ago at which point I initiated "massage therapy" at North Toronto Physio. She states that Elavil does help these muscle pains.
In all likelihood, Ms. Alamin suffered from depression and periodic pain complaints prior to the TTC accident. No doubt family and cultural stresses formed an important element of her ongoing problems. However, it would be wrong to say, as Dr. G.H. Darby does in his November 1993 letter to the TTC, that Ms. Alamin's post-accident symptoms are "unrelated" to the TTC accident.
I will deal first with the period until the reported taxi incident.
A nursing care plan from North York General, dated July 2, stated:
Discussed in rounds Referred to 8N Remains somatically (illegible) but at times able to make connection between physical and stress.
Likewise, Occupational Therapy notes from July 19 Report:3
Cognitive:
Pt had a lot of difficulty with the exercise (projective drawing and cover) She understood the instructions but had difficulty deciding what to draw & spent 2 the time trying to motivate herself to draw. Pt did not follow directions & did both drawings in color & used two sides of the page.
Affective:
Pt presented as a very depressed, tearful, poor eye contact, anxious Pt downcast, appeared slightly dishevelled. Fair eye contact. Pt often winced in pain (stomach). Pt very somatic. Showed 1 energy. Insight: Fair insight. Pt aware of her inability to function due to her depression.
Ms. Alamin continued to see Dr. Wertman in the period between June and September. The notes speak of other unrelated problems, but also show ongoing pain and depression complaints. She was also unable to sleep and distressed about her fate.
The notes from the COTA4 worker also refer to ongoing problems including the continued involvement of the Children's Aid Society with Ms. Alamin's children. There is certainly nothing to suggest that Ms. Alamin's functionality enjoyed a marked increase over this period.
The Taxi incident:
On September 14, 1993, Ms. Alamin reported the incident in the taxi which gave rise to a claim for benefits from Royal. According to Ms. Alamin, the taxi she was riding in on the way home from grocery shopping mounted a curb, severely j ostling her in the process and causing pains and swelling in her leg and back.
Royal, the insurer for the taxi, have long taken the position that the incident complained of by Ms. Alamin did not constitute an accident as defined in the Schedule.
I accept that Ms. Alamin has consistently treated her problems after the taxi incident as arising from the jostling she received as the taxi jolted over the curb. I also accept her sincere belief that this, indeed, was the situation.
Given Ms. Alamin's ongoing history of unresolved somatoform complaints, and her consistent complaints about residual pain in the neck and back, I have considerable doubts that the taxi incident constituted an accident as required by section 13(1) of the Schedule as a precondition to benefits.
Unlike the TTC accident there is no evidence of Ms. Alamin having suffered any specific physical damage or injury from the taxi incident. Rather, the Northwestern Hospital records speak of references to pain, including abdominal pain, which she attributed to the taxi incident.
Dr. J. Kwok, in a follow-up report from the Northwestern fracture clinic dated September 28, 1993, was unable to find anything other than diffused mild tenderness, even though she presented with one crutch. His follow-up report on October 13 was little different.
Dr. Wertman's notes show that following the September incident there are reports of increased depression and inability to cope, as well as the pain in the legs. There is also a notation that due to Ms. Alamin's inability to ambulate, "household is not under control children taking advantage of her."
By October 21, Dr. Wertman's notes indicate "severe depression" and the possibility of a hospital admission.
A November 1, 1993 IME examination by Dr. M.C. Hall notes under the heading "demeanour ":
This is marked by extraordinary behaviour on the patient's part. She is extremely verbal about the way the driver behaved, the agonies that she has been caused and all the damage it has done to her life and to her children. She is quite agitated, throws herself around in the chair a considerable amount with great gestures with her arms, all of which is completely out of keeping with her inability to make movements at other times when requested. It is difficult to get a coherent statement from her. She clearly is not cooperating in the examination.
There is very little other information shedding light on Ms. Alamin's state of mind at the time she reported the taxi incident. It is notable, however, that she was admitted again to North York General, as a psychiatric patient by the end of November. The cluster of notes on her chart in December has, perhaps, some retrospective significance.
A note by Dr. Wertman records Ms. Alamin's belief that uterine problems were due to the taxi bumping incident. She was noted as being paranoid, believing that Dr. Darby was going to give her a fatal injection.
Similar comments were reflected in a telephone call to the department of psychiatry at North York General on October 22, by Dr. Wertman.
Further hospital notes (physician) made November 30 describe her as "35 y.o (symbol for female) acute paranoid reaction with suicidal ideation." the notes further record:
Pt feeling suicidal since March - feels she can't help her children or herself. Feels her body is dead. Has thought of taking all her pills. Repeating "I hate myself" Thought of killing herself all weekend. Presented today demanding to see Dr. Jones & threatened to take all her pills. This pt expressed several times her fear of Dr. Darby and fear that he will give her a "fatal injection". Also that other people in the hospital will hurt her because of her skin color.
There is no question that Ms. Alamin's depression was exerting a strong influence over her life in the autumn of 1993. There is no reason to think that her thought processes were much less disordered at the time of the taxi incident in September than they were when later noted by various physicians and health workers in October, November and December.
Looking back, in a consultation report written in February 1994, Dr. Gerald Jones noted:
As you know, Mrs. Alamin was readmitted to the Inpatient Service at the end of November, and is now attending Day Treatment twice a week. At her request, I took over her care from Dr. Darby. It would seem that part of the problem she had with Dr. Darby was that he did not believe that her two accidents were responsible for her depression, which he attributed more to situational and cultural factors.
In any event, Mrs. Alamin is no better. In addition, she has symptoms which may possibly be attributable to Prozac, including fatigue, headaches, sweating, and dizziness, although she is certainly very prone to physical complaints as the expression of her distress.
(Emphasis added)
As noted earlier, a common current running through Ms. Alamin's medical records is this reference to somatoform complaints. It is clear that when in distress, Ms. Alamin expresses that distress in the form of a physical pain complaint. That is not to diminish the reality of the suffering she expresses. As Dr. Wertman noted, "her pains are very real to her."
Such a characteristic does, however, complicate the way treatment providers and others respond to her pain complaints, and history. Dr. Hall, a specialist in orthopaedic surgery, was clearly taken aback by the absence of physical causes for the pains complained of by Ms. Alamin and found, based on his own expertise in physical medicine, that from an orthopaedic perspective she was not disabled.
He also documented a "most extraordinary extent of complaint that I really cannot associate with the type of accident she describes" and "extraordinary behaviour on the patient's part." It seems quite likely that Ms. Alamin's pain complaints after the taxi incident related to her ongoing mental distress, rather than to any physical injury she received while a passenger in the taxi.
Ms. Alamin's report of the events during that taxi ride must be taken in the context of her observed historical abilities which appear, at the time, to have been influenced by her paranoia and depression, as well as her previously noted propensity to somaticize stress.
Such a conclusion would be reinforced by the evidence of Mr. Ranger, the taxi-driver, and the lack of any contemporaneous accident report. While Mr. Ranger may have had some incentive to minimize an event that could have repercussions for him both as a driver and an employee, the absence of even an exculpating report from him, or indeed any report of an accident taking place, suggests that he had no knowledge of any accident that occurred while driving Ms. Alamin from the shopping centre to her home.
Rather, the evidence appears to suggest strongly that Ms. Alamin's pain complaints following the taxi ride were due to her ongoing and serious mental problems that had not resolved following her discharge from North York General Hospital in July, and I so find.
While I accept that on September 14, 1993 Ms. Alamin travelled in a taxi from a shopping centre to her home, and may, indeed, have experienced some jostling in the course of the short trip, and that Ms. Alamin continued to experience pain symptoms that she attributed to the taxi incident, this is insufficient to create an entitlement to accident benefits from the taxi's insurer.
I find that there is no evidence that events which could be characterized as an accident as understood in the Schedule took place during that taxi ride. I also find that, however severe Ms. Alamin's symptoms may have appeared after September 14, the balance of the evidence appears to link those symptoms to her condition prior to September 14, 1993 and, in particular, the TTC bus accident which took place on March 21, 1993.5
In any event, in the absence of a precipitating incident that meets the definition of an "accident" as used in the Schedule, Ms. Alamin is not entitled to any accident benefits from Royal, the insurer of Mr. Ranger's taxi.
EXPENSES:
I may be spoken to on the issue of expenses, should the parties be unable to agree.
June 30, 2004
John Wilson
Arbitrator
Date
Neutral Citation: 2004 ONFSCDRS 101
FSCO–008445
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
ABA M. ALAMIN
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Ms. Alamin is not entitled to receive weekly benefits and caregiver benefits under section 13 of the Schedule.
June 30, 2004
John Wilson
Arbitrator
Date
Footnotes
- See Berger and Liberty Mutual Insurance Company (FSCO A98-001003, July 18, 2000)
- The Statutory Accident Benefits Schedule — Accidents Before January 1, 1994, Regulation 672 of R.R.O. 1990, as amended by Ontario Regulations 660/93 and 779/93.
- Occupational Therapy Assessment Note July 19
- Community Occupational Therapists & Associates
- See Alamin and The TTC (Markeel Insurance Company of Canada) (FSCO -008446, April 8, 2004)