Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 104

Appeal P05-00033

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JIBRIL JAMA

Appellant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Respondent

Before:

David Evans

Representatives:

Michael Rubin for Mr. Jama

Christina Polano for Dominion

Hearing Date:

April 27, 2006

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Jama's appeal is dismissed, and the arbitrator's order dated October 27, 2005, is confirmed.

2. If the parties are unable to agree on appeal expenses, the matter may be resolved in accordance with Rule 79 of the Dispute Resolution Practice Code.

June 22, 2006

David Evans Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Jama appeals the arbitrator's decision dated October 27, 2005 that he is not entitled to weekly income replacement benefits ("IRBs") from January 28, 2004 onward and that he is liable to repay Dominion the IRBs paid for the period January 28 to March 14, 2004.

II. BACKGROUND

Mr. Jama was hired on September 1, 2003 as a "retail investigator" for Tuff Control Systems Limited. He was in a motor vehicle accident on October 6, 2003. He stopped working on October 20, 2003, the day he saw Dr. Peter Charlebois, his family physician. He claimed IRBs from Dominion pursuant to s. 4 of the SABS-1996,¹ relying on a disability certificate completed by Dr. Charlebois on November 6, 2003. He also undertook some therapy. Mr. Jama testified at the arbitration hearing 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.

As set out over a number of pages in the decision, the arbitrator found that Mr. Jama misrepresented his pre-accident medical condition and employment situation, the nature of his injuries and the reasons he discontinued his employment. First, the arbitrator considered Mr. Jama's pre- and post-accident employment status. He noted that, in the short period of time Mr. Jama had worked for Tuff, he received several work-related notices and warnings and that at the arbitration hearing, he significantly downplayed those problems in his work record. The arbitrator concluded that Mr. Jama left his job "not as a result of the accident, but due to the confrontational nature of his job coupled with his poor performance."

Second, the arbitrator considered Mr. Jama's pre- and post-accident medical status. He noted that Mr. Jama had been seeing Dr. Charlebois since May 2001 and that Mr. Jama had complained of many of the same musculoskeletal symptoms before and after the accident. The arbitrator found that Mr. Jama also misrepresented the nature and extent to which his accident-related injuries prevented him from performing the essential tasks of his job. The arbitrator found that Mr. Jama was able to perform the essential requirements of his job, but chose not to do so. He found that Mr. Jama visited Dr. Charlebois on October 20, 2003 "as a pretext for avoiding a job he did not enjoy and for which he felt himself unsuited, and to avoid being dismissed outright." The arbitrator discounted Dr. Charlebois's initial disability certificate of November 6, 2003 because he found it simply provided the patient's subjective opinion but not an informed view based on medical knowledge. He also found Dr. Charlebois's opinion was further weakened by his failure to address Mr. Jama's pre-existing problems and their bearing on his ability to do his job.

The arbitrator also considered and rejected other reports because they were based on information provided by Mr. Jama who, the arbitrator found, lacked credibility. The arbitrator found that the medical evidence did not establish that Mr. Jama suffered a substantial inability to perform the essential tasks of his pre-accident employment. In the alternative, the arbitrator found 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."

The arbitrator concluded that, given the numerous problems in Mr. Jama's own evidence, as well as the medical evidence upon which he relied, he did not find it necessary to review Dominion's medical evidence in significant detail. Accordingly, he found that Mr. Jama had "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."

III. ANALYSIS

The appeal turns mainly on a technical argument relating to the information (or lack thereof) that Dominion relied on to terminate benefits.

On January 12, 2004, Dominion sent notice to Mr. Jama that it was terminating IRBs effective January 28, 2004.² At the hearing, Dominion relied on two insurer's examination ("IE") reports from Worklab Inc., both dated December 11, 2003. Mr. Jama submits that the date stamps on those two IE reports in the Insurer's Brief of Documents are dated January 13, 2004. Therefore, when Dominion sent out its Notice of Termination on January 12, 2004, it did not have any basis for that notice. He submits that in those circumstances the onus was on Dominion to prove that Mr. Jama was not disabled. Mr. Jama submits that it failed to meet that onus because the arbitrator found that he was "unable to find that Dominion's evidence disproves Mr. Jama's claim of substantial disability." Mr. Jama submits that the termination was therefore ineffective and benefits should be restored.

Whether or not, where Mr. Jama has had the opportunity of a full hearing and an exhaustive decision on the merits, his submission has any legal basis, I find it has no factual basis. First, the date stamps are faint and nearly illegible. Second, although the termination letter of January 12, 2004 does not specifically refer to the IE reports, the attached Explanation of Benefits Payable of the same date states in Part 2: "Income Replacement Benefits terminated effective January 28, 2004 based on report from Worklab Inc. Copy enclosed."³ This suggests that the insurer was indeed basing its termination on the IEs. Third, the arbitration file contains an insurer's brief of documents that was prepared for the pre-hearing, and it contains faxed copies of these same IE reports at tabs 3 and 4. The tops of the faxed pages indicate that the fax was sent by "WORKLAB INC." from its fax number (Worklab's fax number appears on the bottom of the cover pages of both reports) on "JAN-08-2004." I see no merit in remitting the case to the arbitrator simply to confirm what I find is apparent: Worklab faxed the reports to Dominion on January 8, 2004. Dominion therefore did have a basis for its termination notice, and the date stamps on the mailed copies of the reports are irrelevant.

In light of my finding, Mr. Jama's main submission with respect to onus fails. The ultimate legal onus lay with him to prove he was disabled, and the arbitrator was within his jurisdiction to determine that Mr. Jama failed to ever shift the secondary, tactical or evidentiary burden to the insurer. Ultimately, the arbitrator based his decision on the preponderance of evidence, and the question of onus was not particularly important in light of his findings about the weakness of Mr. Jama's evidence.

Mr. Jama also submits that the arbitrator had no jurisdiction to consider anything other than Mr. Jama's medical status on January 28, 2004, the date benefits were terminated. He therefore exceeded his jurisdiction by considering why Mr. Jama stopped working. I disagree. That was one of the factors the arbitrator relied on in assessing Mr. Jama's credibility, which was an important element of the arbitrator's decision. Furthermore, as noted above, the arbitrator did consider whether Mr. Jama could have returned to work at the end of his therapy on January 29, 2004. He wrote that, "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."

Finally, Mr. Jama submits that the arbitrator exceeded his jurisdiction by discounting Dr. Charlebois's disability certificate because there was no medical evidence before the arbitrator to establish that Mr. Jama was able to do the essential tasks of his employment. However, that was not the issue. As already noted, the issue was whether or not Mr. Jama established that he was unable to do those tasks. He did not succeed because the arbitrator found the disability certificate to be unconvincing. I find no error in the arbitrator's consideration of that certificate.

In conclusion, I find no error of law in the arbitrator's decision. Accordingly, the appeal is dismissed.

IV. EXPENSES

If the parties are unable to agree on appeal expenses, the matter may be resolved in accordance with Rule 79 of the Dispute Resolution Practice Code.

June 22, 2006

David Evans Director's Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Through an error, Dominion kept paying benefits until March 14, 2004, for which it sought and was granted repayment.
3. 3Arbitration Exhibit 4, Tab 21