Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 151

FSCO A04-000863

BETWEEN:

JIBRIL JAMA

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Eban Bayefsky

Heard:

April 18, 19, 20 and 21, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Michael Rubin for Mr. Jama

Patrick C. Ho for Dominion of Canada General Insurance Company

The Applicant, Jibril Jama, was injured in a motor vehicle accident on October 6, 2003. He applied for and received statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.¹ Dominion terminated weekly income replacement benefits on January 28, 2004. The parties were unable to resolve their disputes through mediation, and Mr. Jama 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. Jama entitled to receive a weekly income replacement benefit, at a rate of $168.05 per week, from January 28, 2004, onward, pursuant to section 4 of the Schedule?
Is Dominion liable to pay a special award pursuant to section 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Jama?

Is Mr. Jama liable to repay Dominion weekly income replacement benefits, in the amount of $1,140.30, for the period January 28 to March 14, 2004, pursuant to section 47 of the Schedule?
Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Mr. Jama is not entitled to further weekly income replacement benefits.
Dominion is not liable to pay a special award.
Mr. Jama is liable to repay Dominion weekly income replacement benefits for the period January 28 to March 14, 2004 in the amount of $1,140.30.
If required, the parties may now make submissions on the issue of expenses.

Issue 1: Entitlement to Income Replacement Benefits

Section 4(1) of the Schedule states, in part, that a person is entitled to income replacement benefits if, as a result of an accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment. Mr. Jama maintains that, as a result of the injuries he sustained in the accident, he was prevented from performing his pre-accident job as a retail security guard/private investigator. Dominion maintains that Mr. Jama left his job as a retail investigator not as a result of the accident, but due to his poor work performance. Dominion argued that Mr. Jama only sought medical assistance in connection with the accident after he had been terminated from his employment and that this, along with various weaknesses and inconsistencies in the medical evidence, undermines his claim that he had been disabled by the effects of the motor vehicle accident.

(i) Mr. Jama's pre-accident employment situation

On September 1, 2003, approximately five weeks before the accident, Mr. Jama began working as a "retail investigator" for Tuff Control Systems Limited, an agency providing security guards/private investigators to various business establishments. Mr. Jama reported to Dominion that he worked part-time, but averaged approximately forty hours per week, at a salary of $9.00 per hour. Mr. Jama testified that his employer assigned him to different retail locations and that his job involved monitoring shoppers, standing for at least seven hours per day and constant walking. He also testified that the "major thing" in his job was chasing and arresting suspected shoplifters when required. He said that he needed to be physically fit for this aspect of the job. He stated that he had participated in six arrests, five with co-workers before the motor vehicle accident, and one by himself after the accident.

Mr. E. LeBlanc, Mr. Jama's district supervisor, testified that Mr. Jama's job involved being on his feet for eight hours per day monitoring customers and arresting suspected shoplifters. Mr. LeBlanc testified that restraining and/or tackling suspects were not requirements of the position. Mr. LeBlanc stated that employees are trained on how to "grab and take in" suspects, but are told to "back off if a suspect becomes physical or violent. He said that employees are also trained to chase suspects to the end of the property, but that this was not a requirement of the job. Mr. LeBlanc stated that an employee would not be fired or receive a poorer performance rating if they did not restrain a suspect. He said that the employer, in fact, commends employees for backing off situations where they could get injured. He said that the employer's expectation is simply for employees to try to arrest suspects if it were safe, but that this was ultimately the employee's decision.

Mr. Jama testified that, other than one warning his supervisor gave him, he had a good work record. However, Mr. LeBlanc testified that Mr. Jama's work performance was generally not satisfactory in the brief time he was employed with Tuff Control Systems. Mr. LeBlanc stated that Mr. Jama had arrived late for some of his shifts, had missed shifts, had failed to call in to say he would not be coming in, and had "fraternized" with store employees during his shifts. Mr. LeBlanc testified that Mr. Jama would have received training on the importance of good attendance, of proper notice of non-attendance and of not fraternizing with store employees while on duty as an undercover retail investigator. Mr. LeBlanc confirmed that Mr. Jama had received warnings on September 8, 2003 for "talking to client staff...for 1 hr" and on September 14th for notifying the employer after the start of his shift on September 9^th that he would not be able to come in and for not notifying the employer at all that he would miss his shift on September 11^th. The September 14^th warning was a "final warning" that he would be terminated from his employment if he did not give the employer more notice of his absence from work.

(ii) Mr. Jama's post-accident employment situation

In the October 6, 2003 accident, Mr. Jama was injured when the car he was driving was rear-ended. He testified that he was "shocked" at the time, but that he "did not feel any pain." Mr. Jama was able to drive his car to a collision-reporting centre after exchanging information with the driver of the other car. Mr. Jama said that he had a "heaviness" in his neck, shoulders and back, which developed into pain later that night. He stated that he called his employer that day and stated that he was willing to work, despite the accident. Mr. LeBlanc confirmed that Mr. Jama had informed him of the accident, but had said that he had not been injured. Mr. Jama testified that he continued to work over the next two weeks, despite the fact that his pain was increasing. He testified that he needed to keep working because his job was his only source of income. Mr. LeBlanc testified that Mr. Jama never said he could not work due to the motor vehicle accident.

On October 15, 2003, Mr. Jama's duty supervisor, Mr. A. Singh, completed a "Store Detectives Procedures Notice" regarding Mr. Jama's failure to check in at the beginning of his shift and giving less than two hours notice of a shift cancellation. Mr. Singh reported that Mr. Jama called in at 11:45 a.m. to say that he could not make his 11:00 a.m. shift, that his knee hurt and that he would go to his doctor and send a note. Mr. Jama testified that he said he would go to his doctor to see how bad his knee was, but did not recall saying that he would send a note.

The same day, Mr. Singh completed another Procedures Notice indicating that Mr. Jama had failed to report a major incident, namely, that Mr. Jama had apparently hurt his knee on October 14, 2003 while making an arrest and causing him to miss his October 15^th shift. Mr. Jama testified that he had informed his employer the same day of his knee injury. He testified that, in the incident, he had run and caught a suspected shoplifter and had "got him down." However, the person fought back and Mr. Jama had to let him go since he could not defend himself. Mr. Jama said that "back up was coming" since he had called the police and that the police had dealt with that person. Mr. Jama said that he was not as "fit" as he thought he was.

Mr. Jama said that he told his employer the same day about this incident. He said that he tried to work two days later, but found going up and down the stairs "challenging," and that it was at that point that he called his supervisor to say that he could not do the job and was getting more pain. Mr. Jama testified that he had hurt his knee in the arrest, and that even though it was minor at the time, he did tell his employer that he could not work.

On October 18, 2003, Mr. Singh completed a third Procedures Notice indicating that Mr. Jama had again failed to check in at the beginning of his shift despite having been spoken to about this by Mr. LeBlanc.

On October 19, 2003, Mr. Singh filled out yet another Procedures Notice indicating that Mr. Jama had not worked his shift, that Mr. Jama had not called or sent a message that he was not feeling well and that Mr. Jama had said that he had paged Mr. Singh, but that Mr. Singh had not received a page. Mr. Jama testified that he had paged Mr. Singh and had also called his supervisor to say that he could not work his shift due to back pain. Mr. Jama also said that he had left a message saying that he would not make it in to work. Mr. Jama also stated that he had phoned one of his supervisors and had said he could not do his job because of the physical demands.

Mr. LeBlanc testified that he had spoken to Mr. Singh in the evening of October 19^th, that he had decided at that point to terminate Mr. Jama's employment and that he would communicate this to Mr. Jama the following morning.

Mr. LeBlanc said that he spoke to Mr. Jama on the morning of October 20^th. Mr. LeBlanc could not recall whether it was by phone or in person. Mr. LeBlanc said that Mr. Jama was upset and that Mr. Jama had said that he was being fired due to the motor vehicle accident. Mr. LeBlanc testified that, at that point, Mr. Jama did not say either that his doctor had said that he could not work or that he would be providing a note from his doctor to this effect. Mr. Jama said that he did not know he had been fired until approximately a week later, when he received a Record of Employment from his employer indicating that he had been dismissed by the company. Mr. LeBlanc said that within an hour of speaking with Mr. Jama on the morning of October 20^th, he informed the Human Resources ("HR") department that Mr. Jama had been fired, because they would need to send out a Record of Employment. Mr. LeBlanc stated that the company had not fired Mr. Jama earlier (specifically on October 15^th) because, despite the final warning, they would give Mr. Jama one more chance.

On October 20, 2003, Mr. LeBlanc completed a "Termination of Employment Report" indicating that Mr. Jama had been released by the employer on the following basis: "Breach of Policy and Procedures, unreliable missed shifts. Substandard performance." Mr. LeBlanc further reported that Mr. Jama should not be rehired on the following basis: "False apprehension, missed shifts no timely check in." On the same day, Ms. L. Palarchio, the employer's HR Coordinator, completed a Record of Employment for Mr. Jama indicating that Mr. Jama had been terminated by Tuff Control Systems. The employer's current HR Coordinator, Ms. N. D'Amato, testified that the Record of Employment would likely have been sent to Mr. Jama in his next pay period. On November 12, 2003, in response to a letter from Mr. Jama's lawyer seeking Mr. Jama's reinstatement, Ms. Palarchio reported that, on October 20th, Mr. Jama had "phoned HR to report that he would be unable to work because of an injury related to his Motor Vehicle Accident" and that "HR told Jibril that a doctor's note would need to be submitted." Ms. Palarchio also stated that "immediately following this conversation, HR informed the district supervisor" but that the "decision to terminate Jibril Jama had already been made." Mr. LeBlanc testified that HR would not have known that Mr. Jama had already been fired when Mr. Jama called regarding his inability to work due to the motor vehicle accident.

At the hearing, Mr. Jama conceded that he had been fired due to his performance. He confirmed that he took no further action in respect of his wrongful dismissal claim.

Mr. Jama testified that, by October 19, 2003, he felt he could no longer do his job due to the physical demands of the position and his increasing back pain. He noted his attempt to arrest a suspect in the two weeks following the accident and his need to let the person go because of his pain and the physically demanding nature of the arrest. He said he felt it was "not fair" to either himself or the company to continue working, and that he felt he would re-injure himself. Mr. Jama testified that he told his employer on October 19^th of his problems and that they said he needed to give proof that he could not work. He said he went to his doctor the following day (the first time he had sought medical attention since the accident) and faxed a doctor's note indicating that he could not work for the next four weeks. Mr. Jama also testified that, on October 20th, he called his employer to say he was with his doctor and that they told him to fax the doctor's note concerning his condition.

Mr. Jama testified that Dr. Charlebois's notes that day on the sites of his pain (namely, from the right neck and shoulder down the right side of his back to his low back) were accurate. Mr. Jama confirmed that Dr. Charlebois's notes indicated that he had no other complaints, and that no knee or leg problems were present.

Dr. Charlebois prescribed Tylenol 3 to be taken intermittently by Mr. Jama. Dr. Charlebois also referred Mr. Jama to therapy. Mr. Jama went to Mega Rehabilitation Centre, where he received treatment for the next three months.

Mr. Jama testified that he was much better by the end of his therapy on January 29, 2004, but that he was not able to return to work since he was just starting to improve and was not able to do the things that he was required to do. Mr. Jama testified that he continued to do exercises at home and to take Tylenol 3 for his pain. He said that he was getting better but still had intermittent pain and could not do the requirements of his job. He also said that he was depressed.

Mr. Jama testified that in April 2004, he enrolled in an accounting and payroll programme at CDI College, because he felt he needed to retrain himself to do a non-physically demanding job. Mr. Jama finished the programme in November 2004. He has since applied for a number of positions, but has not yet obtained a new job. Mr. Jama stated that he continues to take Tylenol 3's, but only when he needs them. He said that he continues to feel that he is unable to return to his previous work as a security guard due to his back pain and due to his not being sufficiently fit to meet the physical demands of the job.

(iii) Mr. Jama's pre-accident medical condition

Mr. Jama testified that, aside from a broken ankle in the "early 90s" that "healed ten years ago," he was in good health prior to the accident. He confirmed his reports to three health practitioners after the accident (on December 11 and 19, 2003 and August 10, 2004) that, aside from his right ankle injury, he had had no medical problems before the accident. In the first of these reports, he stated that he had broken his ankle "five years ago" and that it had healed uneventfully. In the second report, he stated that he had broken his ankle in 1994. In the third report, he stated that he had broken his ankle in 1994 or 1995 and that it had resolved without any residual problems.

Mr. Jama began seeing his current family physician, Dr. Charlebois, in May 2001. In an undated document containing a diagram of the sites of Mr. Jama's complaints, Dr. Charlebois noted the following: "pain in low back when he lifts heavy stuff," "when he walks [right] calf fatigue" and "[right] ankle broken 4 years ago, still pain, can't play soccer, muscles not tight." Given Mr. Jama's testimony and post-accident reports of the date he broke his ankle, given the date on which Dr. Charlebois began to treat Mr. Jama and given Dr. Charlebois's notation that Mr. Jama broke his ankle "4 years ago," I find that this report was likely prepared in 2001, but at the latest in 2002.

In May 2001, Dr. Charlebois referred Mr. Jama to Dr. A. Kaminker, an allergy and immunology specialist, in connection with a "4 to 5 months history of pruritis [itching]." Among other things, Dr. Kaminker reported that a "review of systems reveals intermittent low back pain which is triggered by lifting," that "[Mr. Jama] states he receives physiotherapy" and "feels quite well in general." I find that this report further suggests that Dr. Charlebois's undated report concerning Mr. Jama's back, leg and ankle problems was prepared in May 2001.

On January 29, 2003, Dr. Charlebois noted that Mr. Jama had back pain, that he had fallen from a tree and that "on lifting 2-3 hrs after back bothers him." An x-ray the same day of Mr. Jama's lumbosacral spine showed "mild residual changes of old vertebral epiphysitis involving the lower dorsal and upper lumbar vertebral bodies" and that "L1-L2 disc space is also slightly narrowed." X-rays were also taken of Mr. Jama's ankles, which only showed an "old fracture" of his left ankle. Mr. Jama testified that his back pain at that time was "just a muscle problem," that he was only "curious" about whether there was a problem, and that his muscles only hurt "for eight days." In Dr. Charlebois's records, a February 25, 2003 report on Mr. Jama's medical history notes "leg pain," "swollen ankles" and "back pain - recurrent."

(iv) Mr. Jama's post-accident medical condition

On November 6, 2003, two and a half weeks after his initial consultation with Mr. Jama, Dr. Charlebois completed a Disability Certificate in which he reported the "anticipated duration" of Mr. Jama's condition to be "more than 12 weeks." Dr. Charlebois reported Mr. Jama as saying he was unable to do the essential tasks of his job, specifically that he could not do the amount of walking required because of his back pain. Dr. Charlebois reported that it was "unknown" whether, prior to the accident, Mr. Jama had "any disease, condition or injury that affected his ability to perform" his pre-accident employment duties.

On December 8, 2003, at the request of Dominion, Mr. Jama underwent an in-home assessment by Ms. T. Bielawski, an occupational therapist. Ms. Bielawski reported that Mr. Jama complained of intermittent low back pain, intermittent neck stiffness and tightness and intermittent right knee stiffness and tightness. Mr. Jama stated that these symptoms had improved 40%-50% "since the collision."

On December 11, 2003, at the request of Dominion, Mr. Jama underwent an independent medical examination at Worklab Inc. by Dr. R. Zarnett, an orthopaedic surgeon. Dr. Zarnett reported as follows:

As a result of the motor vehicle accident of October 6, 2003, Mr. Jibril Jama has complaints of neck pain, back pain and right knee pain. Given the mechanism of the injury and the amount of damage incurred to the vehicle [$600], it is unlikely that Mr. Jama suffered more than mild soft tissue strains. I would expect his soft tissue injuries to fully recover.

Other than Mr. Jama's reported discomfort, the examination today did not demonstrate any significant abnormalities to suggest an ongoing impairment. Mr. Jama appeared to have a full range of motion of the cervical spine and his right knee. Range of motion of the lumbar spine was self-limited. There was no spasm in the affected areas. There was no evidence of inflammation and no evidence of neurological deficit.

It would be important that Mr. Jama resume a normal lifestyle and activities as soon as possible so as not to become deconditioned and pain-focused. He should be reassured that returning to these activities will not be harmful to him.

Based on the examination today, I would see no reason that Mr. Jama could not return to the essential tasks of his occupation as a regional investigator. The Functional Abilities Evaluation may demonstrate whether any validated modifications or restrictions are necessary.

In my opinion, Mr. Jama can resume his pre-accident level of functioning immediately. It would appear that Mr. Jama suffered myofascial strains to his neck and back and a contusion to his right knee. I would classify these as mild soft tissue injuries. Mr. Jama has not, as yet, reached maximal medical recovery.

I would expect his symptoms to fully resolve over the next four to six weeks. I have not identified any pre-existing conditions which will delay his recovery.

As part of the same assessment, Mr. Jama underwent a functional abilities evaluation by Dr. D. Stevens, a chiropractor and certified ARCON evaluator (ARCON being a device used to objectively measure a person's functional ability). Dr. Stevens reported as follows:

Any conclusions are made with the understanding that the results of today's testing are unreliable as described in section 1.1, and as such there is a possibility that this evaluee may have been demonstrating symptom magnification or otherwise self-limiting. It should be noted that the results of today's testing may or may not represent this evaluee's maximum effort on the date of testing.

According to today's testing, the evaluee demonstrated (overall) a Sedentary level of strength (ability to handle loads of up to 11 lbs) on an occasional basis (0-33% of the workday).

Based upon the generally unreliable results of today's test and due to the lack of specific job site requirements, I am unable to render definitive conclusions or recommendations regarding this evaluee's return to work.

(emphasis in original)

At the hearing, Dr. Stevens testified that pain, actual physical disability and the evaluator's experience could interfere with the reliability of ARCON test results. He was unable to state why Mr. Jama demonstrated sub-maximal effort on some of the tests. However, he said that Mr. Jama's pain may have interfered, and probably did interfere, with the reliability of the test results. Dr. Stevens acknowledged that, in the absence of a job-site analysis, he could not comment on whether Mr. Jama could perform the essential duties of his job as a retail investigator. Dr. Stevens further acknowledged that Mr. Jama might be disabled from performing the physical demands of his pre-accident job even if he were minimally impaired, and that it could be a problem to put Mr. Jama in a potentially violent arrest situation.

On December 16, 2003, Dr. Charlebois reported that Mr. Jama suffered from low back, neck, right shoulder and right knee pain. Dr. Charlebois reported that Mr. Jama could not sit or stand in one place for over half an hour and was "still suffering from the effect of trauma which is interfering with his normal living ability. "

On December 19, 2003, at the request of Dominion, Mr. Jama underwent a medical and rehabilitation designated assessment centre ("DAC") assessment by Dr. D. Hytman, a chiropractor, to determine the reasonableness and necessity of a November 2003 treatment plan from Mega Rehabilitation Centre. Dr. Hytman reported as follows:

Today's examination did not reveal any significant objective physical findings in relation to the claimant's motor vehicle accident. There was, however, some inconsistency to testing and the claimant presented with pain focused behaviours (i.e. hypersensitivity, some self-limiting). The claimant suffered uncomplicated soft tissue injuries due to a relatively minor rear end collision. These types of injuries typically resolve within 8 weeks from the date of loss. I believe that a brief course of active and passive therapy would have been sufficient for the claimant. It is therefore my opinion that the treatment plan in dispute is neither reasonable nor necessary.

On March 4, 2004, Dr. Charlebois completed another Disability Certificate in which he reported that, as a result of his back pain, Mr. Jama was substantially unable to perform the essential tasks of his pre-accident employment, namely, sitting, walking or running after and holding shoplifters.

Mr. Jama underwent a functional and musculoskeletal assessment in August 2004. At that time, he complained of continuous low back pain, and intermittent neck, shoulder and right knee pain. Mr. Jama told the functional assessor, Ms. A. Balaban, an exercise physiologist, that he had developed knee pain the day after the accident and that this, and his other symptoms, worsened over the next ten days. Ms. Balaban reported as follows:

Mr. Jama attempted all tasks as requested throughout the entire course of the evaluation. His functional performance was consistent throughout the evaluation....His pain behaviour was also appropriate....Mr. Jama's performance during this evaluation was consistent with the following functional limitations: [decreased strength and endurance capacity of the neck/shoulder muscles, the right side greater than the left, of the thoracolumbar paraspinal muscles and of the lower extremity muscles].

Based on the objective observations made during this evaluation, Mr. Jama can perform most activities of normal living, however, heavier household tasks, e.g., lifting a full laundry basket, would still be beyond his capabilities at this time. It is also apparent that he would have significant difficulty performing the essential tasks of his employment as a Private Investigator.

...Mr. Jama's work as a Private Investigator is physically demanding as he is often required to move from a standing position to a full run or to physically restraining a person within a matter of a few moments; this is high intensity activity. Therefore, it would be prudent to provide Mr. Jama with a comprehensive work hardening program....

The musculoskeletal assessor, Dr. M. Shedletzky, a chiropractor, reported as follows:

All lumbar spine movements were combination movements. The extent of the injury has altered the neck/low back ranges of motion so that there are no pure movements. The pins and needles/numbness [in Mr. Jama's right leg and toes] suggest a lower lumbar disc radiculitis. This needs to be addressed otherwise the condition will get worse with time. The right sacroilitis also requires proper therapy or this will get progressively worse. There are many musculoskeletal problems (e.g., fixations, subluxations, and muscle imbalances) that have not been properly addressed. If these problems are not addressed in a timely fashion they will likely lead to permanent disabilities. He is not able to perform his handyman activities or ADL's and most likely will not for the foreseeable future. The shoulder and neck radiculitis are getting worse and degenerative.

...Mr. Jama was very cooperative and quite sincere and honest. I would hope he is seeing a psychiatrist for his depression, mood swings, anxiety and pains. His disc prolapse/herniation needs to be addressed by an orthopedic surgeon as does further investigation for his knee.

At the hearing, Dr. Shedletzky testified that Mr. Jama did not exhibit any signs of malingering when he tested him. Dr. Shedletzky stated that he could tell if people were telling the truth "just by putting my hands on them." He said that Mr. Jama's condition likely worsened given the absence of therapy between the date of Dr. Steven's examination and his own assessment. Dr. Shedletzky noted that Dr. Hytman's report suggests that there were some objective physical findings, although not "significant" ones. Dr. Shedletzky stated that Mr. Jama's body was consistent with his reports of the accident and injuries. Dr. Shedletzky indicated that home exercise would not have improved the imbalance and compensations in Mr. Jama's musculature. Dr. Shedletzky testified that, as of August 2004, Mr. Jama could not do the heavier duties of his position as a retail investigator, such as standing or walking for several hours at a time or effectively pursuing and physically restraining someone. Dr. Shedletzky stated that Mr. Jama would injure himself if he tried to "take someone down."

Dr. Shedletzky acknowledged that, despite the reference in his report to restrictions in "pure" range of motion, he erred in not recording that "globally" (that is, with both pure and combination movements), Mr. Jama was, in fact, "much better." Similarly, Dr. Shedletzky stated that he was simply stating that it was "possible" Mr. Jama had disc pathology, not that he, in fact, had it.

(v) Findings on Mr. Jama's entitlement to income replacement benefits

I find that Mr. Jama is not entitled to income replacement benefits. Mr. Jama bears the onus of establishing, on a balance of probabilities, that, as a result of the October 2003 motor vehicle accident, he was rendered substantially unable to perform the essential duties of his pre-accident employment.² I find that Mr. Jama has failed to discharge this onus. I find that Mr. Jama lacked credibility on a number of important points and that this significantly undermined his claim that he had been prevented from performing his pre-accident employment as a result of the accident. I further find, on a balance of probabilities, that from at least January 28, 2004 (the date Dominion terminated his income replacement benefits), Mr. Jama was capable of performing the essential tasks of his pre-accident job as a retail investigator.

I find that Mr. Jama misrepresented his pre-accident medical condition and employment situation, the nature of his injuries and the reasons he discontinued his employment. At the hearing, Mr. Jama attempted to explain that, when the doctors asked him about his pre-accident medical history, he thought they were asking him about whether he had had any physical problems affecting his functional ability. I do not find that this explains the following inconsistencies, which, as discussed more below, I find directly relevant to Mr. Jama's claim that he had been substantially disabled by the effects of the motor vehicle accident.

Mr. Jama attempted to maintain (both at the hearing and to a number of health practitioners after the accident) that he had had an ankle injury at least eight years before the accident which had fully healed, and that he had had no other medical problems prior to the accident. However, Mr. Jama gave a number of responses as to when he had injured his ankle, ranging from the early 1990s, to 1994 or 1995, to 1997 or 1998. Dr. Charlebois's notes from 2001 or 2002 also establish that, at least four years after Mr. Jama's ankle injury, he was still suffering from pain and physical restrictions. Further, on three or four occasions from May 2001 to February 2003, Mr. Jama was noted as having low back pain (either intermittent pain aggravated by lifting or recurrent pain). Mr. Jama had also received physiotherapy for his back pain in 2001 and, despite his testimony that his muscles only hurt "for eight days" in January 2003, Mr. Jama was reported as having recurrent back pain approximately a month later.

Mr. Jama significantly understated his performance record at work. While he testified that, aside from a single warning from his supervisor, he had had a good work record, Mr. Jama received no less than two formal warnings and had breached company policy no less than seven times (including failing to work several shifts) in only seven weeks of employment with Tuff Control Systems. Mr. Jama continued to breach various company policies following both the September 14^th "final warning" and the October 6^th accident. In light of these problems, I do not accept Mr. Jama's testimony that, despite his increasing pain, he continued to work after the accident because his job was his only source of income.

I find that Mr. Jama misrepresented the nature and extent of his accident-related injuries. From one month after the accident, Mr. Jama began to report to the relevant health practitioners that he had injured his right knee in the accident, as well as his neck, shoulder and back. However, Mr. Jama only testified that he had injured his neck, shoulders and back in the accident. He also confirmed that Dr. Charlebois had not noted any knee pain in Mr. Jama's initial visit to him two weeks after the accident. Approximately nine days following the accident, Mr. Jama reported to his duty supervisor that he had hurt his knee in an attempted arrest at work the previous day (October 14, 2003) and that he would see his doctor about this. Mr. Jama did not see his doctor until October 20^th (after two more missed shifts) and did not report a knee injury at that time. I find that Mr. Jama likely did not injure his knee in either the attempted arrest or the motor vehicle accident. I find that he misrepresented the extent of his accident-related injuries and that this significantly undermines his claim that he suffered disabling neck, shoulder and back pain.

I find that Mr. Jama misrepresented the extent to which his accident-related injuries prevented him from performing the essential tasks of his job. I find that his job required significant standing and walking, as well as occasional running. While he received training on how to restrain suspected shoplifters, I do not find that this was an essential task of his job as a retail investigator. I accept the evidence of Mr. Jama's district supervisor, Mr. LeBlanc, to the effect that an employee had the discretion to decide whether to attempt to physically restrain a suspect and that failure to do so would not be grounds for discipline. I reach this conclusion in part on the basis that, following the October 14^th incident, Mr. Jama's duty supervisor, Mr. Singh, completed a Procedures Notice, not in relation to Mr. Jama's failure to restrain the suspect, but in connection with his failure to report the injury he allegedly received in the course of the arrest. I also note that all of Mr. Jama's previous arrests had been made with the assistance of a co-worker and that in the October 14^th situation, Mr. Jama sought and ultimately received the assistance of the police. I find that Mr. Jama was not required, as a condition of his employment, to physically restrain suspected shoplifters, particularly if he were alone and the situation had, or could become, violent (as it apparently did on October 14th).

I do not accept Mr. Jama's contention that he experienced increasing neck, shoulder and back pain after the accident which culminated in his being unable to work by October 19, 2003. I find that he left his job, not as a result of the accident, but due to the confrontational nature of his job coupled with his poor performance. Mr. Jama continued to perform his job for more than a week after the accident. In the attempted arrest on October 14^th, Mr. Jama was able to run, catch and temporarily restrain a suspected shoplifter. While Mr. Jama was not able to hold the suspect, Mr. Jama had called the police and the police were apparently able to deal with the person. I have rejected Mr. Jama's claim that he injured his knee in the arrest. While Mr. Jama said that his back pain prevented him from performing his work, he also stated that he was not sufficiently "fit" to perform what was a "physically demanding" job. Despite what was supposed to be a difficult and violent incident (superimposed on his worsening accident-related injuries) and his evidence that he continued to complain to his employer about his inability to work, Mr. Jama did not see his doctor until almost a week after the attempted arrest, at which point he did not mention either his knee injury or the October 14^th incident. He testified that, upon returning to work after the attempted arrest, he simply found walking up and down stairs to be "challenging." He also felt it would be "unfair" to both himself and his employer to continue working. I find that Mr. Jama was able to perform the essential requirements of his job, but chose not to do so due to the confrontational nature of the position.

Similarly, I find that Mr. Jama ultimately visited his family doctor on October 20^th, some two weeks after the accident and almost a week after the attempted arrest, not because of the motor vehicle accident, but because of his continuing performance problems at work and his de facto or impending dismissal. At the hearing, Mr. Jama conceded that he had been dismissed due to his poor performance and that he had not pursued his initial claim that the employer had fired him due to his motor vehicle accident. While the facts surrounding Mr. Jama's dismissal are somewhat unclear, I find that he had either already been dismissed at the time he visited Dr. Charlebois on October 20, 2003 or that he was about to be dismissed or significantly disciplined for his repeated violations of company policy.

I find it significant that Mr. Jama continued to breach company policies following both the September 14^th "final warning" and the October 6^th motor vehicle accident, despite his claim that his employment was his only source of income and was, therefore, crucial to him. I find that, if his accident-related symptoms had, in fact, been deteriorating (particularly after the allegedly violent encounter on October 14^th), Mr. Jama would have sought medical attention much earlier, particularly since he had told his supervisor that he was going to see his doctor and send a note about his alleged knee injury.

Given his earlier performance problems (within two weeks of beginning at Tuff Control Systems), his formal warnings and his three absences immediately prior to seeing his family doctor on October 20^th, as well as Mr. LeBlanc's evidence that he had advised Mr. Jama of his dismissal on the morning of October 20^th, I find it reasonable to conclude that Mr. Jama was either already aware that he had been discharged or that he was about to be dismissed or severely reprimanded at the time he saw Dr. Charlebois on October 20^th.

I, therefore, find that Mr. Jama visited Dr. Charlebois concerning his accident-related injuries, not because his condition was in fact worsening, but as a pretext for avoiding a job he did not enjoy and for which he felt himself unsuited, and to avoid being dismissed outright. In this regard, I find significant that Mr. Jama did not complain to Dr. Charlebois about the very injury he said had arisen in the October 14^th incident, namely, his injured right knee. I further find significant that Mr. Jama testified both that his employer had advised him on October 19^th to give proof of his inability to work and that he had called his employer on October 20^th from his doctor's office, when they advised him to fax a note concerning his condition. Given the employer's November 12, 2003 letter to Mr. Jama's lawyer to the effect that Mr. Jama had spoken to the Human Resources department on October 20, 2003 and had been advised to submit a doctor's note concerning his disability, I do not accept Mr. Jama's evidence that he had spoken to his employer on October 19^th about his medical condition. I find it more likely that he had gone to Dr. Charlebois on October 20^th after Mr. LeBlanc had advised him of his dismissal, or to avoid significant and imminent disciplinary action.

Finally, I find that, had he not been dismissed from his job for poor performance, Mr. Jama would have been capable of returning to his previous employment in late January 2004 when his therapy concluded. While Mr. Jama testified that he had only started to improve, he also stated that he was much better by the end of his therapy. Given Mr. Jama's ability to return to work following both the accident and the attempted arrest, and given the questionable circumstances under which Mr. Jama ultimately left his employment, to the extent that he experienced physical restrictions as a result of the accident, I find that Mr. Jama's three months of therapy would have enabled him to return to his previous duties.

As noted, I find that Mr. Jama's lack of credibility also weakens the medical opinions upon which he relied. Specifically, I find that the available medical evidence does not establish, on a balance of probabilities, that Mr. Jama suffered a substantial inability to perform the essential tasks of his pre-accident employment.

Mr. Jama relied on the opinions of three medical practitioners: his family doctor, Dr. Charlebois; the functional abilities assessor, Ms. Balaban; and the chiropractic assessor, Dr. Shedletzky. Regarding Mr. Jama's family doctor, I find that Dr. Charlebois's opinions relied heavily on Mr. Jama's own reporting of his injuries and disability. I note and agree with Dominion's rejection of Dr. Charlebois's initial Disability Certificate (dated November 6, 2003) on the basis that it simply "provide[d] the patient's subjective opinion" and did not contain Dr. Charlebois's own view "based on [his] medical knowledge and information." I also find significant that Dr. Charlebois was unable to state whether, prior to the accident, Mr. Jama had suffered from a condition that might affect his working ability. As noted above, Dr. Charlebois's pre-accident notes contain references to recurrent back pain aggravated by lifting, and continuing ankle and leg pain and restrictions. Mr. Jama also complained about not being sufficiently "fit" to perform the physically challenging job of retail investigator (although Mr. Jama attempted to raise this in relation to his post-accident condition). I find that Dr. Charlebois's opinion was further weakened by his failure to address these pre-existing problems and whether they bore on Mr. Jama's ability to do his job before the accident occurred.

Despite Dr. Charlebois's initial response to Dominion (on December 2, 2003) that he would be unable to provide the required opinion and that "to do justice to this patient [Dominion] should get an independent assessment...," he provided a further report on December 16, 2003 to the effect that Mr. Jama was still suffering from the "effect of trauma" and that this was "interfering with his normal living ability." In Dominion's arbitration brief, this report is accompanied by the undated document/diagram (addressed above) in which Dr. Charlebois notes the sites and general nature of Mr. Jama's pain complaints. I have already determined that this document was likely prepared in May 2001 or at some point in 2002. However, assuming that Dr. Charlebois prepared this document on December 16, 2003, I find that it raises the following problems.

First, the diagram does not reflect the comments Dr. Charlebois made in his December 16^thwritten report about Mr. Jama's neck, shoulder and back pain. Secondly, the diagram notes that Mr. Jama broke his right ankle "4 years ago," which would have put Mr. Jama's ankle injury in late 1999, a date significantly at odds with Mr. Jama's other evidence on the issue. Thirdly, the diagram states that Mr. Jama's back pain occurs when he "lifts heavy stuff," not as indicated in Dr. Charlebois's written report that it is "continuous [and] interferes with his sleep and is debilitating." Finally, the diagram contains significantly different markings on the sites of Mr. Jama's pain than the diagram from Dr. Charlebois's October 20^th examination. If the second diagram were in fact made on December 16^th, it would have indicated that Mr. Jama's neck, shoulder and back pain had significantly improved since October 20^th and that he had since developed right knee and leg problems.

Even if I were to consider Dr. Charlebois's December 16^th written report on its own, I find that it does not establish that Mr. Jama suffered from the requisite degree of disability as a result of the motor vehicle accident. A significant component of the report continues to be Mr. Jama's own statements concerning the effect of the accident on his daily activities. The evidence of neck and shoulder pain is limited and is only said to affect Mr. Jama's ability to concentrate. The report of knee pain and related limitations do not take into account the absence of these issues at the time of Dr. Charlebois's initial October 20^th assessment, nor was Dr. Charlebois aware of Mr. Jama's alleged knee injury in the October 14^th arrest. Dr. Charlebois simply concludes that Mr. Jama's complaints interfere with his normal living ability, not that he is substantially disabled from performing the essential tasks of his pre-accident employment. Therefore, whether considered alone or in conjunction with the undated diagram, I find that Dr. Charlebois's December 16^threport does not support Mr. Jama's claim.

Similarly, I do not find Dr. Charlebois's March 2004 Disability Certificate helpful. It continues to be based to a large degree on Mr. Jama's own complaints, which, based on the numerous discrepancies and misrepresentations discussed earlier, I find to be unreliable. Dr. Charlebois repeats his initial view that Dominion should "get an independent assessment," which I find suggests that Dr. Charlebois did not feel capable of providing a proper opinion on Mr. Jama's condition. Contrary to his initial Disability Certificate, Dr. Charlebois now states that Mr. Jama did not have any pre-accident medical problems that affected his ability to do his job. I find that this report does not help to clarify the nature and extent of Mr. Jama's physical condition or limitations.

As noted, Mr. Jama also relied on the opinions of Ms. Balaban and Dr. Shedletzky. While Ms. Balaban found Mr. Jama's testing to be reliable, I find that her report is also significantly weakened by Mr. Jama's lack of credibility. Ms. Balaban was under the impression that Mr. Jama had developed knee pain the day after the accident and that this, along with his other symptoms, significantly worsened over the next week and a half. I have already found that Mr. Jama likely did not injure his knee in the accident or in the attempted arrest. Ms. Balaban was under the impression that Mr. Jama had had no pre-accident medical problems and, in particular, that his ankle injury had long since resolved. I have found that Mr. Jama had back complaints directly related to his functional abilities and that his ankle continued to give him problems. Further, Ms. Balaban's comment that Mr. Jama would not be capable of doing "heavier household tasks" such as "lifting a laundry basket" is very similar to the pre-accident evidence that Mr. Jama's back pain was aggravated by heavy lifting.

Ms. Balaban's primary finding was that Mr. Jama demonstrated "decreased strength and endurance capacity" in his neck, shoulders, back and legs. Ms. Balaban concluded that Mr. Jama should participate in a work hardening programme, not because his job was dangerous or because he might be injured, but because it was "high intensity activity." I find that these comments are consistent with Mr. Jama's own evidence that he was not sufficiently "fit" to perform the job of retail investigator, and further suggest that he had not been rendered substantially disabled from performing the job. Therefore, even if Mr. Jama performed reliably during the assessment, I do not find that Ms. Balaban's report supports Mr. Jama's claim.

I find that Dr. Shedletzky's report contained a number of problems. First, there is no discussion of Mr. Jama's pre-accident medical and employment situation, nor of the nature or course of Mr. Jama's condition following the accident. Dr. Shedletzky appears to have been unaware of any of the relevant pre- and post-accident medical and employment evidence. While Dr. Shedletzky testified that he could tell whether someone was telling the truth simply by "putting his hands on them," he also confirmed that his report did not set out the methods by which he would test against self-limitation. I note that the chiropractic DAC assessor in mid-December 2003, Dr. Hytman, noted "some inconsistency" and "some self-limiting" in Mr. Jama's testing. Even if, as Ms. Balaban reported, Mr. Jama performed reliably during the assessment, I find that Dr. Shedletzky's report shed little light on the source, nature or extent of Mr. Jama's disability. While Dr. Shedletzky reported that Mr. Jama suffered from numerous physical deficiencies, and while he testified that Mr. Jama could not do the more demanding aspects of his job as a retail investigator, he also stated that "globally" Mr. Jama was "much better." Taken together with his tenuous knowledge of Mr. Jama's pre- and post-accident history (including Mr. Jama's general credibility problems), I find that Dr. Shedletzky's testimony does not further Mr. Jama's claim that the accident rendered him substantially disabled from performing his pre-accident job.

Given the numerous problems in Mr. Jama's own evidence, as well as the medical evidence upon which he relied, I do not find it necessary to review Dominion's medical evidence in significant detail. I acknowledge that both of Dominion's principal medical reports, by Dr. Zarnett and Dr. Stevens, had certain limitations. For example, while Dr. Zarnett reported that Mr. Jama could return to the essential tasks of his pre-accident job, he also stated that Dr. Stevens' functional abilities evaluation might demonstrate that certain work modifications or restrictions were warranted. Dr. Stevens then reported that, due to both Mr. Jama's unreliable testing and the lack of specific job site requirements, he was unable to provide an opinion on Mr. Jama's ability to return to work. Dr. Stevens confirmed this view at the hearing. Based on these difficulties, I am unable to find that Dominion's evidence disproves Mr. Jama's claim of substantial disability. Nevertheless, for all of the reasons set out above, I find that Mr. Jama has not discharged the onus on him of establishing that the accident rendered him substantially unable to perform the essential tasks of his pre-accident employment.

Issue 2: Special Award

Given that Mr. Jama has failed to establish his entitlement to income replacement benefits beyond the date Dominion terminated benefits, I find that there is no basis upon which to consider his request for a special award.

Issue 3: Repayment

Dominion sought a repayment from Mr. Jama in the amount of $1,140.30. Section 47(1) of the Schedule states, in part, that a person shall repay any benefit paid to them "as a result of an error on the part of the insurer...." Section 47(2) states, in part, that if a person is required to repay an amount to an insurer under this section, the insurer shall "give the person notice of the amount that is required to be repaid...."

By an Explanation of Benefits dated January 12, 2004, Dominion terminated Mr. Jama's income replacement benefits effective January 28, 2004. Dominion's Claims Service Representative, Ms. N. Bryan, testified that Mr. Jama continued to receive benefit cheques from January 29 to March 14, 2004. Ms. Bryan stated that benefit cheques are sent through an automatic payment system and that she only learned of the continuing payments once she reviewed the monthly "stats sheet." Ms. Bryan stated that she does not always review this sheet and that she did not notify Dominion's data processors that payments continued to be made beyond the terminat ion date. By letter dated March 9, 2004, Ms. Bryan notified Mr. Jama of the error and stated that there was "an over-payment in the amount of $1,104.30 for the period of January 29 to March 14, 2004" (emphasis added). Ms. Bryan set out Mr. Jama's obligation pursuant to section 47 of the Schedule to repay this amount and stated that Mr. Jama could "forward [his] cheque, made payable to The Dominion of Canada General Insurance Company in the amount of $1,140.30 by return post in order to avoid interest payments" (emphasis added). Dominion confirmed its request for a repayment of $1,140.30 in its May 27, 2004 Response to the Application for Arbitration and at the November 9, 2004 pre-hearing conference. Ms. Bryan testified that Dominion has not received any repayment.

I find that Dominion notified Mr. Jama of the date upon which his benefits were to be terminated. I find that, due to an error on the part of Dominion, Mr. Jama continued to receive payments beyond this date, until March 14, 2004. I find that Dominion duly notified Mr. Jama of the error in their letter of March 9, 2004. While Dominion stated two slightly different amounts in this letter (namely, $1,104.30 and $1,140.30), I find that this was remedied in Dominion's Response to the Application for Arbitration and at the pre-hearing conference. At no time did Mr. Jama dispute the overpayment on the basis that Dominion had failed to properly notify him of the repayment amount. I, therefore, find that Dominion complied with section 47(2) of the Schedule and that Mr. Jama is liable to repay Dominion the $1,140.30 in income replacement benefits he received from January 28 to March 14, 2004.

EXPENSES:

The parties did not address the issue of expenses. If required, they may now make submissions on this issue, in accordance with the procedure set out in Rule 79 of the Dispute Resolution Practice Code.

October 27, 2005

Eban Bayefsky Arbitrator

Date