Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2007 ONFSCDRS 113

FSCO A05-001642

BETWEEN:

AHASANUL MAZUMDER

Applicant

and

SECURITY NATIONAL INSURANCE CO./ MONNEX INSURANCE MGMT. INC.

Insurer

REASONS FOR DECISION

Before:

David Muir

Heard:

May 7, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Tania Astorino for Mr. Mazumder

Cameron Stark for Security National Insurance Co./Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Ahasanul Mazumder, claims to have been injured in a motor vehicle accident on December 1, 2003. He applied for and received statutory accident benefits from Security National Insurance Co./Monnex Insurance Mgmt. Inc. ("Security National"), payable under the Schedule.¹ Security National terminated weekly income replacement benefits finally on August 24, 2004. The parties were unable to resolve their disputes through mediation, and Mr. Mazumder applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

A court reporter was present at this hearing. No transcript of the proceeding was produced prior to the release of these reasons.

The issues in this hearing are:

Is Mr. Mazumder entitled to be paid income replacement benefits from August 25, 2004 to December 1, 2005, pursuant to section 4 of the Schedule?
Is Mr. Mazumder entitled to be paid for a treatment plan dated April 14, 2005 ($1,947) pursuant to section 14 of the Schedule?
Is Mr. Mazumder entitled to be paid a benefit for transportation to and from medical appointments ($1,709) pursuant to section 14 of the Schedule?
Is Mr. Mazumder entitled to be paid $100 per week for housekeeping and home maintenance benefits from December 1, 2004 to December 1, 2005 pursuant to section 22 of the Schedule?
Is either party entitled to be paid their expenses pursuant to section 282(11) of the Act?

In addition, Security National had raised a repayment issue which it indicated at the outset of the hearing it would not formally withdraw however, as a consequence of the failure on the part of Mr. Mazumder to produce a number of documents, Security National advised at the outset of the hearing that it would likely be unable to substantiate its claims in this regard.

Security National paid income replacement benefits from December 8, 2003 to August 24, 2004, from January 1, 2004 at the maximum rate. Mr. Mazumder was working much of that time at two jobs. The issue of repayment clearly arises out of the evidence, however because of Mr. Mazumder's failures to produce documents related to his employment and income during this period there is no basis for calculating the quantum of benefits which he may owe to Security National. Despite this conclusion the consequences of this and other failures on the part of Mr. Mazumder to produce relevant documents pursuant to undertakings and Orders made in the course of the pre-hearing comprises a significant sub-text to this matter.

Result:

The application for arbitration is dismissed.

EVIDENCE AND ANALYSIS:

At the time of the accident Mr. Mazumder, a married father of two, was employed full time as a worker in a chicken processing plant, and as a busperson/server in a busy Toronto restaurant, Millie's Bistro.

Prior to the accident his work week was long. He worked at the chicken processing plant for 40 to 50 hours per week and in the Bistro on weekends, often both lunch and dinner for about 15 to 20 hours each weekend.

Mr. Mazumder continued to work full time after the accident, which occurred while driving to Ottawa to deliver a friend to the airport for an overseas flight. Mr. Mazumder completed the journey to and from Ottawa that day. He sought no medical attention at the time. Within days of the accident he quit working in the chicken processing plant and began to drive a taxi full time 5 to 6 days per week 10 hours per day. He also continued to work at Millies' on the weekends.

Mr. Mazumder testified that he felt fine after the accident and had no pain for the first week or so. He testified that he began to experience symptoms within weeks of the accident but thought they would abate. He did attend a walk-in clinic on January 3, 2004 for a cold. He did not mention the car accident because, he said, he was not asked about it. There is no evidence that his symptoms affected his ability to perform his activities of daily living in any respect until April or May 2004 when, Mr. Mazumder testified, that he felt unable to continue working because of pain. He was vague about how and when he first began to experience this pain.

It is not clear when Mr. Mazumder stopped working. He claimed in an employer's confirmation of income in respect of the taxi driving which he completed, that his last day worked was April 30, 2004. He then testified firstly that he stopped driving the cab at the end of May, then agreed that it may have been early June. Later still he agreed that in fact he may have continued to work at the Bistro until June 25.

Banking records produced by Mr. Mazumder for the period January 1, 2004 to September 15, 2004 record incoming revenue into a bank account that Mr. Mazumder claims is a joint account used by both his wife and brother. The total deposited in this almost nine month period was approximately $75,000.² No background documentation of any of these transactions was ever provided despite requests from Security National. Mr. Mazumder testified that some of these deposits were from his taxi driving business. Some of these are noted after April 30, 2004. A $1,000 deposit on September 15, 2004 from DMPrecision Engineering was said to be a loan. Mr. Mazumder testified that he had done work for this firm prior to the accident. He testified that the firm was owned by a friend of a friend. Despite repeated requests, no documentation to substantiate this loan was ever provided by Mr. Mazumder.

Mr. Mazumder first testified that he has not returned to any employment since he ceased working in April/May/June 2004 and he receives social assistance benefits. Later he testified that he does drive a car on occasion and has driven a taxi on occasion. How often he has done so was left unclear.

At about the same time as he stopped working Mr. Mazumder testified that he moved out of the family home. He lived alone for about 18 months in a basement apartment, then returned home to his wife and two children.

Mr. Mazumder testified that he attended his family physician on May 13 complaining of "back pain after car accident on December 1st" and headaches when waking up. He saw his family doctor periodically over the next few months with continuing reports of back pain and then back pain and neck pain.

Several disability certificates were completed by Mr. Mazumder and his family physician. The first is dated May 31, 2004. In it Dr. Thenganatt described Mr. Mazumder's injuries as neck strain, headaches and back pain (thoracic and lumbar spine area). The doctor indicates that Mr. Mazumder while substantially unable to perform his pre-accident work activities, is able to perform modified work because she writes: "working only few³ hours since the accident (every week)". In same certificate Dr. Thenganatt indicates that Mr. Mazumder can not perform his pre-accident housekeeping activities because he is "unable to carry anything heavy (groceries), unable to vacuum".

On March 28, 2005, Dr. Thenganatt reported in a further disability certificate that Mr. Mazumder was unable to perform his pre-accident activities because of pain. In August 2005 Dr. Thenganatt reported that Mr. Mazumder was unable to work because of "difficulty moving his neck, difficulty in sitting down for prolonged periods of time, difficulty in bending". Mr. Mazumder was also said to be unable to perform his housekeeping tasks because of his difficulty in bending.

Despite these difficulties Mr. Mazumder and his family physician seem slow in responding to his injuries. No therapy was sought for some period of time. Mr. Mazumder's treating physicians did not testify at the hearing. Mr. Mazumder did testify that he attended at a physiotherapist in July 2004 but decided against treatment because he did not wish to pay for it. He did not explain why no treatment plan was submitted to Security National after his visits to his family physician. Mr. Mazumder did retain a lawyer to represent him in June 2004, and an application for accident benefits was submitted, but it was not until Mr. Mazumder saw Dr. Kachooie in February 2005, almost 15 months post accident that a treatment plan for a course of physiotherapy was submitted to Security National.

Dr. Kachooie provided a disability certificate dated February 16, 2005. He also referred Mr. Mazumder to a chiropractor, Dr. Moazami, who recommended a course of treatment in a treatment plan dated February 18, 2005. This plan was denied by Security National and was referred to a Med-Rehab DAC which found the treatment as proposed not reasonable or necessary but did recommend two sessions with a kinesiologist. Mr. Mazumder did not take these sessions, because he said: "no one called me".

A subsequent treatment plan submitted by Mr. Mazumder and Active Therapy Works was submitted to Security National in April 2005. It was denied and a subsequent Med-Rehab DAC concluded that it was not reasonable or necessary. Mr. Mazumder gave few details about this treatment but testified that it helped him somewhat in that he was better able to move his shoulders and neck. In addition Mr. Mazumder claims a transportation expense incurred between the end of October 2004 and the end of May 2005. No evidence was tendered with respect to this claim other than Mr. Mazumder testifying that he preferred to take a cab rather than public transportation.

Mr. Mazumder also testified that in the Fall of 2005 he underwent a course of treatment which included acupuncture and this, in particular, helped with his pain for a day or so. He frankly testified that it was not a permanent cure but it did alleviate the pain - indeed he felt "nothing" for a period after each session. He ceased this treatment when he received a bill from the treatment provider. There is no evidence that a treatment plan was submitted for this treatment. It is not an issue in dispute in this arbitration.

As indicated above, Mr. Mazumder testified that he became unable to perform his pre-accident work duties 6 to 7 months post accident.

The work in the chicken processing plant was light to moderately heavy work. Mr. Mazumder had two jobs there and rotated between them daily. One of his jobs was to eviscerate and clean small chickens. This required him to stand for extended periods, with little lifting. I heard no evidence that this job would have required any significant bending or lifting. The other job required him to remove cleaned chickens from a conveyer belt, weigh them and pack them in boxes to a maximum of 25 pounds. These boxes were then lifted from the line to a pallet and stacked to a height of 5 boxes.

Although he quit this job for reasons unrelated to the car accident, Mr. Mazumder testified that he would have been unable to perform this work once his symptoms appeared because of the lifting involved in the packing part of the job.

Mr. Mazumder also testified that he felt unable to continue to work at Millie's Bistro primarily because of his inability to lift and carry the plates of food. No evidence was given with respect to the weights he might be required to carry except that when required to carry several plates of food he would use a large tray. The position would have required him to be on his feet for extended periods of time, walking, and carrying plates and on occasion trays of food.

Although not directly relevant to the claim Mr. Mazumder testified that he could not perform his taxi driving duties because of his inability to turn his neck, his inability to sit for long periods of time and his inability to lift and carry packages and luggage.

Mr. Mazumder also testified that he was unable to perform his household duties. These were quite limited. He helped his wife with gardening by renting a garden tiller to prepare the soil at the beginning of the season. He also cut the grass. He testified that he helped with the cooking by preparing the mid day meal. He was unable to explain how he would have done that when he was employed 6 to 7 days per week over the lunch hour at the chicken processing plant and Millie's.

The invoices submitted for housekeeping are dated from May to October 2005 when Mr. Mazumder testified he lived in a basement apartment on Mason Street. The forms used to submit these expenses have the address of the family home and not where Mr. Mazumder lived. Mr. Mazumder was quite vague about where the housekeeping services were provided but thought that none were provided at Mason Street. He did not provide any details about the services that were provided, if any were, in the family home.

Income Replacement Benefits:

The medical evidence in support of the claim is very limited. Mr. Mazumder relied primarily upon disability certificates which appear to do little more than report what he told the medical practitioners. Mr. Mazumder claims that he cannot work because of pain in his back, shoulders and neck. The resolution of this dispute turns to a significant degree, as it so often does, on the strength of Mr. Mazumder's testimony that he is unable to return to his pre-accident activities because of his reported pain.

There are many questions which arise from the somewhat unusual circumstances of Mr. Mazumder's claims. Most remained unanswered after a consideration of the materials relied on as well as the evidence of Mr. Mazumder. After carefully considering all of his evidence I find that Mr. Mazumder has not established that he was substantially prevented from performing the essential tasks of his pre-accident employments because of the pain he was experiencing.

While it is to his credit that Mr. Mazumder missed no time from work following the accident and in fact worked for somewhere between 5 and 7 months until he claims that he could no longer continue, it must be said that such a scenario is somewhat unusual.

Mr Mazumder was very vague about when he began to experience symptoms. It is as if the pain came on suddenly towards the end of April and he found himself unable to function. It is clear that Mr. Mazumder sought no medical attention for accident related issues from the date of the accident until mid-May 2004.

The difficulty is compounded by the vagueness respecting when he ceased working at his two post accident jobs. Was it April 30 or some time in May or on June 25? Was it before or after his visit to his family physician where for the first time he complains of back pain? I recognise that these events occurred some time ago but this is Mr. Mazumder's life, he ought to remember something of what happened in those weeks and months. Documentary support of his difficulties maintaining his busy schedule as a taxi driver and at Millie's would have assisted, but were not forthcoming.

Further questions arise in respect of the bank deposits. The existing documentation supports the inference that Mr. Mazumder was earning considerable income, well past the time he says he stopped working. The account is in his name but Mr. Mazumder claims that he shared it with his wife and brother. No evidence corroborating this assertion was tendered. Neither his wife or brother were called as witnesses. Despite requests to provide supporting background documentation, no documents supporting the various deposits was ever provided to Security National. In particular, I note his claim that the $1,000 received from DMPrecision Engineering was a loan. Mr. Mazumder's explanation of this deposit was not persuasive particularly given his failure to provide any documentation to support it.

I have also considered the fact that despite suddenly feeling unable to work at his two jobs, Mr. Mazumder did little to remedy his situation other than attending his family physician. Even when approved for two sessions with a kinesiologist in March 2005 he took no steps to follow up. To the extent that he suffered injuries in the December 2003 accident, Mr. Mazumder has failed, as suggested by Security National, to participate in his rehabilitation. Although not relied on to support a bar to claiming benefits for a period of time, it does support the submission that Mr. Mazumder is exaggerating his problems.

Accordingly, I have concluded largely on the basis of Mr. Mazumder's evidence that he was not substantially prevented by his complaints of pain from performing the essential tasks of his employment at the chicken processing plant or at Millie's Bistro. To the extent that it is relevant I am also not persuaded that he was unable to perform the essential tasks of a taxi driver.

Housekeeping and Home Maintenance Benefits:

There is no entitlement to housekeeping benefits. The services, if they were provided, were likely provided at Mr. Mazumder's family home. During much of the claim period he likely did not live in the family home, although in and of itself this fact does not defeat the claim. The difficulty is in determining what services might have been provided. The service provider was not called to give evidence. To his credit Mr. Mazumder did not claim to know what services were provided. I also do not accept his evidence respecting the duties he performed prior to the accident. If he is to believed about the hours he worked outside the home prior to the accident he would not have been able perform his primary task, preparing the mid-day meal for his family.

Medical Benefits:

The evidence in support of this claim is limited to Mr. Mazumder's vague assertion that the treatments provided by Active Therapy Works helped him to be able to move his neck and shoulders. I find that he his not entitled to this benefit.

There is a related claim for transportation. I heard no evidence with respect to this claim, other than on cross-examination when Mr. Mazumder stated that he preferred to travel by cab rather than take transit. There is no evidence about what this transportation was for. I note that the claim does not appear to correspond to the period during which Mr. Mazumder was attending at Active Therapy Works. In any case, having found that the treatment was not reasonable or necessary it follows that there was no need for transportation.

EXPENSES:

The parties made no submissions regarding expenses. I leave it to them to resolve. If unable to do so they may make an appointment with me pursuant to sections 75 to 79 of the Dispute Resolution Practice Code.

June 8, 2007

David Muir Arbitrator

Date