Financial Services Commission of Ontario

Neutral Citation: 2006 ONFSCDRS 23 FSCO A04-001021

BETWEEN:

DHARAM PAUL Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA Insurer

REASONS FOR DECISION

Before: Rosemary Muzzi Heard: August 22, 2005, at the offices of the Financial Services Commission of Ontario in Toronto. Appearances: Mr. Paul, self-represented Stuart Aird for Allstate Insurance Company of Canada

Issues:

The Applicant, Dharam Paul, was injured in a motor vehicle accident on May 21, 1992. He applied for statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule¹ on May 17, 1994. Allstate paid him no benefits. Instead, Allstate contended that Mr. Paul's claims were invalidated by his failure to submit his Application for Accident Benefits (Application) in a timely manner, as required by section 22 of the Schedule.

Section 22 states that an insured person is to give initial notice of a claim to the insurer, in writing, within 30 days from the date of the accident or as soon as practicable thereafter and to furnish to the insurer a completed application for benefits within ninety days. Section 22(2) says that a failure to comply with a time limit does not invalidate a claim if the claimant has a reasonable excuse and so long as there is compliance within two years of the date of the accident.

The parties were unable to resolve their disputes through mediation, and Mr. Paul applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

By preliminary issue decision dated July 21, 2005, Arbitrator Lee found that Mr. Paul's claim was not invalidated by his failure to submit his Application in a timely manner. The Arbitrator concluded that, through no fault of his own, the Application form was never delivered to Mr. Paul. In early 1994, Mr. Paul sought legal counsel to assist in the advancement of his claims and his Application was delivered to Allstate within two years. The Arbitrator then considered all of the circumstances and concluded that Mr. Paul had a reasonable excuse for not meeting the time requirements of section 22 and could proceed with the arbitration of his claims.

The issues in this hearing are:

1. Is Mr. Paul entitled to weekly income replacement benefits (IRBs) from May 28, 1992 until August 24, 1994?
2. If Mr. Paul is entitled to them, what is the amount of weekly IRBs to which he is entitled?
3. Is Mr. Paul entitled to a medical benefit in the amount of $1,200.42 for prescription medications?
4. Is Mr. Paul entitled to interest on the overdue amounts?
5. Are the parties entitled to their expenses of this arbitration?

Result:

1. Mr. Paul is entitled to IRBs from May 28, 1992 until June 7, 1994.
2. Mr. Paul is entitled to $144 per week from May 28, 1992 until July 3, 1992. Thereafter, he is entitled to $464 per week until June 7, 1994.
3. Mr. Paul is entitled to $1,200.42 for prescription medications.
4. Mr. Paul is entitled to interest on all overdue amounts in accordance with section 24(4) of the Schedule.
5. The parties should work out their expenses of the arbitration process, failing which either of them may apply to the Commission for an assessment.

EVIDENCE AND ANALYSIS:

Mr. Paul claims both IRBs and medical benefits because he says he was left unable to work until late August 1994 and required prescription medication to treat the injury and pain.

Allstate argues that Mr. Paul has failed to prove his claims. It contends that his medical evidence does not support his claims: his most recent medical evidence having been provided by two doctors who did not actually treat him for injuries arising from the accident; and, his best medical evidence (from his former physician now deceased) failing to disclose a history of pain complaints arising from the accident. Allstate also contends that Mr. Paul's delay in advancing his case is inconsistent with a valid claim of disability. Finally, Allstate asserts that the 13 years that have elapsed since the date of the accident has disadvantaged Allstate to the extent that it has been unable to properly assess and test Mr. Paul's evidence.

I am satisfied based on the evidence before me that Mr. Paul is entitled to the claims he makes. I set out my reasons for this conclusion below.

Income Replacement Benefits:

Entitlement

Specifically, Allstate argues that Mr. Paul is not entitled to IRBs because he failed to prove that it was the May 1992 accident that caused him to suffer a substantial inability to work for as long as he claims. Allstate notes that Mr. Paul had been in a car accident in 1990 which caused him some injury and for which, in fact, he had been prescribed the same medication for which he makes the current claim. It also states that Mr. Paul's family doctor's clinical notes do not indicate that Mr. Paul made complaints of pain from September 1, 1992. Instead, the notes suggest that Mr. Paul was visiting his doctor on a regular basis on account of depression and other personal problems.

Section 12 of the Schedule sets out the requirements for the payment of weekly income benefits. It requires an insurer to pay benefits to an insured person who sustains physical, psychological or mental injury as a result of an accident during the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her occupation or employment.

I am satisfied that Mr. Paul was injured as a result of the accident and suffered a substantial inability to perform the essential tasks of his employment for a period of time. Furthermore, I find that the evidence shows that Mr. Paul was prepared to and capable of working full-time beginning in June 1994 and, in fact, was working. Therefore, June 1994 marks the end date for his income replacement benefits claim. I make these specific findings based on the following evidence.

Mr. Paul's own evidence regarding his inability to work was internally consistent. He was adamant that the accident was not minor in nature, claiming that he and the other driver had to be cut out of their cars. He said that he was left bruised all over and with serious back problems. Mr. Paul's evidence about the effects of the accident was consistent - he suffered a lot of pain for a long period of time. He had to give up his part-time job as a general labourer at an auto body shop immediately. Within weeks, he was unable to perform his full-time duties as a general helper and delivery person for a clothing manufacturer.

I agree that the medical evidence in this case is limited. No insurer's examinations were ever conducted in this case. Mr. Paul's family doctor, Dr. Lyne, who treated him pre- and post-accident, passed away several years ago. Dr. Fielden's and Dr. Kular's reports fail to persuade because neither of these practitioners examined Mr. Paul or treated him post-accident. Nevertheless, there is sufficient medical evidence to support Mr. Paul's claims. Dr. Lyne's notes² were available for review and are very helpful. While it is clear that Mr. Paul consulted Dr. Lyne frequently during this time for numerous health and other personal issues, the notes also clearly document treatment as well as other pertinent details of Mr. Paul's circumstances. I am persuaded that Dr. Lyne's record-keeping provides corroboration for Mr. Paul's claims.

It is clear from the notes that Mr. Paul saw Dr. Lyne the day after the accident complaining of myriad limitations on account of pain. While Dr. Lyne's notes do not disclose specific reports of pain on the visits after September 1, 1992, Mr. Paul's prescription medication receipts run from June 1992 right through to April 1994³. The prescriptions are for three different types of medication: Toradal, Voltaren and Tylenol 2. These medications are used to relieve inflammation and pain and their prescription is consistent with Mr. Paul's physical complaints. All these medications were prescribed by Dr. Lyne. Furthermore, Dr. Lyne's notes also show that, following Mr. Paul's failed return to work in February, 1994, he recommended that Mr. Paul follow a course of physiotherapy, which he did from April 21, 1994 until July 6, 1994⁴.

All of this evidence satisfies me that Mr. Paul was injured and substantially unable to perform the tasks of his employment as a result of the May 1992 accident.

Insofar as the duration of his disability is concerned, I am satisfied that Mr. Paul was able to return to work as of early June 1994. Mr. Paul himself admitted that he obtained full-time work at a pizza parlour at this time and, had he not been laid off would have continued to work. Significantly, Dr. Lyne also appears to have kept track of Mr. Paul's employment status. On September 15, 1992, Dr. Lyne noted that Mr. Paul's last day worked was July 3, 1992. Dr. Lyne completed a disability certificate dated September 1, 1992⁵ in which he confirmed that Mr. Paul was still disabled and concluded that he was unable to say when Mr. Paul would be able to return to work. Moreover, Dr. Lyne's disability certificate, which accompanied Mr. Paul's May 1994 Application for Accident Benefits, indicates that Mr. Paul was disabled from May 21, 1992 until the date of the certificate⁶. On June 14, 1994, Dr. Lyne noted that Mr. Paul had been working since June 8 at Pizza 2 for 1. On June 21, 1994, the doctor confirms "Dharam has been working".

Quantum

Section 12(4)(b) of the Schedule states that the weekly benefit under subsection will be "...80 per cent of the insured person's gross weekly income from his or her occupation or employment, less any payments for loss of income, except Unemployment Insurance benefits".

Allstate argues, should I find in favour of Mr. Paul, that the amount of Mr. Paul's IRB changes over the course of his claim given the changing circumstances. I agree with Allstate that Mr. Paul's IRB must change over the course of his claim. Mr. Paul had both a full-time and part-time job at the time of the accident. Directly following the accident, Mr. Paul only left his part-time employment, where he earned an average of $180 per week⁷. He continued to work full-time, where he earned $400 per week, until July 3, 1992. Therefore, for the first five weeks of his claim period, from May 28, 1992 until July 3, 1992, Mr. Paul is entitled to only $144 per week.

For the rest of the period, from July 4, 1992 until June 7, 1994, Mr. Paul is entitled to $464 per week. He did not work either full-time or part-time from during these weeks.

Medical Benefits:

Section 6(1)(a) of the Schedule states that the insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period for medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physiotherapists.

For the reasons already outlined, I am satisfied that Mr. Paul required prescription medication as indicated to treat the pain and inflammation caused by the accident of May 1992. I find that these expenses of $1,200.42 were reasonable in the circumstances and should be paid by Allstate.

INTEREST:

In light of my findings that amounts are overdue, interest is payable on those amounts in accordance with section 24(4) of the Schedule.

EXPENSES:

The parties did not argue the issue of expenses before me. The parties should attempt to resolve their claims for the expenses of this arbitration process by reviewing Rules 75 to 79 of the Dispute Resolution Practice Code. If the parties are unable to resolve the issue of expenses, either party may request within 30 days of receipt of this decision, an appointment before me to determine expenses.

February 7, 2006

Rosemary Muzzi Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.1.8, as amended, it is ordered that:

1. Allstate shall pay Mr. Paul IRBs of $144 per week from May 28, 1992 until July 3, 1992 and $464 per week from July 4, 1992 until June 7, 1994.
2. Allstate shall pay Mr. Paul $1200.42 for prescription medications.
3. Allstate shall pay Mr. Paul interest on all overdue amounts in accordance with section 24(4) of the Schedule.
4. The parties should work out their expenses of the arbitration process, failing which either of them may apply to the Commission for an assessment.

February 7, 2006

Rosemary Muzzi Arbitrator

Footnotes

1. 1The 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.
2. 2Exhibit 1, Tab 16
3. 3Exhibit 2
4. 4Exhibit 1, Tab 15
5. 5A copy of the certificate itself is found at Exhibit 1, Tab 18
6. 6Exhibit 1, Tab 14
7. 7See Exhibit 1, Tab 25 where the Employer's Confirmation of Income indicates that Mr. Paul earned an average of $180 per week in the 4 weeks preceding the accident.