Syed Zoozan v. Markel Insurance Company of Canada, 2009 ONFSCDRS 130

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 130

FSCO A08-000608

BETWEEN:

SYED ZOOZAN

Applicant

and

MARKEL INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before: Jeffrey Rogers

Heard: April 27, 28, 29 and 30, and June 24, 25 and 26, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. J.A. Michael Wolfe, solicitor for Mr. Zoozan Mr. George R. Wray, solicitor for Markel Insurance Company of Canada

Issues:

The Applicant, Syed Zoozan, was injured in a motor vehicle accident on January 24, 2006.

He applied for and received statutory accident benefits from Markel Insurance Company of Canada ("Markel"), payable under the Schedule.¹ Disputes arose about his entitlement to further benefits. The parties were unable to resolve their disputes through mediation, and Mr. Zoozan 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:

1. Is Mr. Zoozan entitled to receive weekly caregiver benefits of $144, for services provided by Quraltain Zoozan, from January 24, 2006 to January 23, 2008, pursuant to section 13 of the Schedule?

2. Is Mr. Zoozan entitled to receive a medical benefit of $2,189.80 for treatment at FITPAC, as set out in treatment plan dated July 29, 2007, pursuant to section 14 of the Schedule?

3. Is Mr. Zoozan entitled to attendant care benefits of $298.12 per week, for services provided by Quraltain Zoozan, from September 2, 2006 to January 23, 2008, pursuant to section 16 of the Schedule?

4. Is Mr. Zoozan entitled to payment of $100 per week, for housekeeping and home maintenance services provided by Quraltain Zoozan, from July 20, 2006 to January 23, 2008, pursuant to section 22 of the Schedule?

5. Is Mr. Zoozan entitled to payment for the cost of the following examinations, pursuant to section 24 of the Schedule?

Conducted by FITPAC:

a) $3,504.46 for a Neuropsychological Assessment dated August 26, 2007;

Conducted by Pathokinetic Healthcare:

b) $1,263.72 for a follow-up In-Home Assessment, dated June 8, 2007;

c) $963.72 for a Worksite Assessment, dated June 8, 2007;

d) $263.72 for completion of a Form 1, dated March 4, 2007;

e) $1,363.72 for a Functional Abilities Assessment, dated February 27, 2008; and

f) $777.28 for a follow-up In-Home Assessment, dated February 24, 2008.

6. Is Markel liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Zoozan?

7. Is either party liable to pay the other’s expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

8. Is Mr. Zoozan entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

Result:

1. Mr. Zoozan is not entitled to receive weekly caregiver benefits of $144, for services provided by Quraltain Zoozan, from January 24, 2006 to January 23, 2008.

2. Mr. Zoozan is entitled to receive a medical benefit of $2,189.80 for treatment at FITPAC, as set out in treatment plan dated July 29, 2007.

3. Mr. Zoozan is not entitled to attendant care benefits of $298.12 per week, for services provided by Quraltain Zoozan, from September 2, 2006 to January 23, 2008.

4. Mr. Zoozan is not entitled to payment of $100 per week, for housekeeping and home maintenance services provided by Quraltain Zoozan, from July 20, 2006 to January 23, 2008.

5. Mr. Zoozan is entitled to payment for the cost of the following examinations:

Conducted by FITPAC:

a) $3,504.46 for a Neuropsychological Assessment dated August 26, 2007;

Conducted by Pathokinetic Healthcare:

b) $1,263.72 for a follow-up In-Home Assessment, dated June 8, 2007;

c) $963.72 for a Worksite Assessment, dated June 8, 2007;

d) $263.72 for completion of a Form 1, dated March 4, 2007;

e) $1,363.72 for a Functional Abilities Assessment, dated February 27, 2008; and

f) $777.28 for a follow-up In-Home Assessment, dated February 24, 2008.

6. Mr. Zoozan is entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

7. Markel is liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.

8. If they are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS

Background

On January 24, 2006 Mr. Zoozan was driving a tractor-trailer in Defiance County, Ohio when he was involved in a serious accident. At the time he was a long-haul trucker. As he was entering an intersection to make a left turn, a car slammed into the right side of the tractor with sufficient force to move his rig a considerable distance and cause it to jackknife. The two vehicles ended up in a field adjacent to the roadway. The driver of the car was pronounced dead at the scene and the passenger, a 10-year old girl, sustained serious injuries. Mr. Zoozan suffered a fracture to his left hand along with soft tissue injuries.

Law enforcement officers attending at the scene concluded that Mr. Zoozan caused the accident. Mr. Zoozan was first taken by ambulance to Defiance Regional Medical Centre. The Emergency Report notes that he complained of "pain mostly in his left hand, his left shoulder, neck and back."² A fracture of the distal metacarpal to the left little finger was diagnosed. Mr. Zoozan’s hand was put in a cast. He was given some painkillers and released into police custody. He was then escorted to jail and told that he was charged with vehicular manslaughter, vehicular assault and first degree murder.

At a court appearance the following day the charge of first degree murder was reduced to third degree murder and Mr. Zoozan was released on bail. Bail was posted by his brother who, along with Mr. Zoozan’s wife, had driven all night from Mississauga to Ohio after Mr. Zoozan called and informed them of his predicament.

Mr. Zoozan returned to Ohio on July 24, 2006 for his trial on the following day. He pleaded "no contest" and was convicted on charges of vehicular manslaughter and vehicular assault. He was sentenced to 6 months in jail, with 3 of the 6 months suspended. On August 28, 2006,

Mr. Zoozan brought a motion for early judicial release. The motion was successful. Mr. Zoozan was released. He immediately returned to Canada. ³

Mr. Zoozan is married and has two children, born on March 9, 2004 and July 12, 2005. At the time of the accident, his first child was just under two years old and the second was about six months old. His wife did not work outside of the home and did not attend school. He says that at the time of the accident, in addition to being the only breadwinner for the family, he was the primary caregiver for his children and did the majority of the housework. His position is that, as a result of the physical injuries he sustained in the accident and their psychological sequelae, he required assistance with self-care and was unable to return to his pre-accident caregiving and housekeeping. He claims the related benefits to the two-year anniversary of the accident.

Preclusion of housekeeping benefits by criminal conviction

Markel’s position is that Mr. Zoozan is precluded from entitlement to housekeeping benefits because of his conviction for a criminal offence arising from the accident. Section 30(2)(c)(i) of the Schedule provides that an insurer is not required to pay a housekeeping benefit and other listed weekly benefits, "in respect of a person who, at the time of the accident…was engaged in an act for which the person is convicted of a criminal offence…"

"Criminal offence" is defined as follows in section 30(5):

30(5) In this section,

"criminal offence" means,

(a) operating an automobile while the ability to operate the automobile is impaired by alcohol or a drug,

(b) operating an automobile while the concentration of alcohol in the operator’s blood exceeds the limit permitted by law,

(c) failing to comply with a lawful demand to provide a breath sample, or

(d) any other criminal offence, whether or not the offence is related to the operation of an automobile.

Mr. Zoozan concedes that at the time of the accident, he was engaged in an act for which he was convicted of a criminal offence in the United States. He submits that the definition of criminal offence is overly broad on its face and that the Legislature really intended that criminal offences be limited to convictions in Canada for offences under the Criminal Code. He argues that, because each state in the United States has its own Criminal Legislation, a literal approach leads to the absurd result that a person driving through the United States has varying accident benefits coverage as state boundaries are crossed. He submits that, had the Legislature intended such uncertainty of coverage, it would have stated it explicitly.

The correct approach to statutory interpretation is now well established to be the one formulated by Elmer Driedger in Construction of Statutes and adopted by the Supreme Court of Canada in such cases as Rizzo & Rizzo Shoes Ltd. (Re). ⁴ It is as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Because section 30 operates to exclude coverage, its meaning is also subject to the principle that exclusion provisions must be narrowly construed.

I note first that section 30 does not contain the limitation that Mr. Zoozan suggests. On a plain reading of the section, the exclusion applies to conviction for any criminal offence. In determining the relevant scheme of the Schedule, section 3(2) must be considered. It provides that "[T]he benefits set out in this Regulation shall be provided in respect of accidents that occur in Canada or the United States of America..." With this extraterritorial application being part of the scheme of the Schedule, one would expect the Legislature to clearly limit the definition of criminal offence, if that was intended. The broad definition of criminal conviction is nevertheless retained, without limitation by reference to any offence in any state of the United States.

Although the broad definition does lead to the possibility of different coverage from state to state the concept is not unique to section 30. It is part of the scheme of the Schedule. Section 57 of the Schedule allows an insured person who is injured in another province or territory of Canada, or a jurisdiction in the United State s, to elect to receive the benefits payable under the law of the jurisdiction in which the accident occurred. In my view, limiting the definition of criminal offence is not consistent with the extraterritorial entitlement to benefits incorporated into the scheme of the Schedule. Mr. Zoozan’s suggested approach would lead to the absurd result that an insured person who is injured while engaged in criminal conduct in the United States always has greater entitlement to accident benefits than one injured in the same circumstances in Canada.

I see no basis for limiting the definition of criminal offence as Mr. Zoozan suggests. I find that the exclusion in section 30 applies to Mr. Zoozan. He is therefore precluded from entitlement to the housekeeping and home maintenance benefits he claims under section 22 of the Schedule.

Entitlement to caregiver benefits

(a) Election

Section 36 of the Schedule provides for an election where an insured person may qualify for more than one of the listed weekly benefits. It states as follows:

36(1) Only one of the following benefits may be paid to a person in respect of a period of time:

1. An income replacement benefit.

2. A non-earner benefit.

3. A caregiver benefit.

(2) If a person’s application indicates that he or she may qualify for more than one of the benefits referred to in subsection (1), the insurer shall notify the person that he or she must elect within 30 days after receiving the notice which benefit he or she wishes to receive.

(3) The insurer shall deliver the notice under subsection (2) within 10 business days after receiving the person’s application.

The qualifications for income replacement benefits and caregiver benefits are set out in sections 4 and 13 of the Schedule. Mr. Zoozan’s Application for Accident Benefits indicated that he was employed at the time of the accident.⁵ The Application also contained details of Mr. Zoozan’s caregiving responsibilities.

Upon receiving the application Markel concluded that Mr. Zoozan may qualify for caregiving benefits as well as income replacement benefits and gave him notice that he was required to make an election as provided in section 36(2). Mr. Zoozan testified that on August 22, 2006 he made an election to claim IRBs. Mr. Zoozan agrees that he has never re-elected to claim caregiver benefits. Markel’s position is that Mr. Zoozan is precluded from entitlement to caregiver benefits because he has never elected to claim those benefits. Mr. Zoozan argues that he was not required to make an election because Markel took the position that he was precluded from receiving IRBs by operation of the provision regarding criminal offences in section 30 of the Schedule.

The Schedule does not specifically provide for a re-election but case law has established that an insured person who makes an election under section 36 has the right to make a further election to claim a different weekly benefit, in limited circumstances. The jurisprudence also holds that once an insured person elects to receive one of the listed benefits, there is no right to receive another of the benefits without a re-election.⁶ The question in this case is whether Mr. Zoozan’s application indicated that he may qualify for more than one benefit, within the meaning of section 36(2). More precisely stated, since Mr. Zoozan maintains that he qualifies for caregiver benefits, the question is whether his application also indicated that he may qualify for an IRB.

For the reasons below I find that Mr. Zoozan’s application indicated that he may qualify for an IRB within the meaning of section 36(2). It is noteworthy that Mr. Zoozan’s position on the effect of Markel’s denial of IRBs because of his criminal conviction is contrary to the position he takes regarding its effect on his entitlement to housekeeping benefits. He argues that Markel’s denial meant that he did not qualify for IRBs, but maintained that he was entitled to receive housekeeping benefits, despite Markel’s denial on the same grounds.

I find his position that he has the right to pursue a claim for housekeeping benefits despite Markel’s denial to be in keeping with the scheme of the Schedule. The Schedule separates the question of qualifying for a benefit from the issue of entitlement to receive payment of the benefit. The scheme of the Schedule does not allow an insurer the right, as Mr. Zoozan argues, to bind an insured person by its decision on whether a benefit is payable. As with his claim for housekeeping benefits, he had the right to dispute Markel’s decision and pursue his claim for IRBs. The Schedule requires an insurer to adjust a claim for benefits, based on the information it receives from the insured. The insurer’s obligation to notify the insured person of the requirement of an election is triggered, not by a determination of whether an insured person is ultimately entitled to receive payment of a benefit, but by whether the information in the application indicates that the insured person may qualify for more than one of the listed benefits. Insurers have a duty to adjust a claim, based on the information the insured person provides. The requirement of an election allows the insurer to focus its adjusting obligations in situations where there is possible entitlement to more than one mutually exclusive benefit.

In his decision in Gray and Zurich Insurance Company⁷ Director’s Delegate Draper pointed out a consistent structure in the sections of the SABS-1994 dealing with three different weekly benefits. He noted that the sections raised three separate questions:

1. Who is entitled to claim this type of weekly benefit?
2. For what period are the benefits payable? and
3. What is the amount of the benefit?

He pointed out that, to be entitled to claim the benefits, the insured person must meet certain "qualifications." The qualifications require the insured person to meet certain personal characteristics at the time of the accident and the relevant disability test.

The current version of the Schedule maintains that structure with regard to the three weekly benefits referred to in section 36: IRBs, non-earner benefits and caregiver benefits. Reflecting the language of section 36(2), sections 4(1), 12(1) and 13(1) require the insurer to pay these weekly benefits, if the insured person meets certain "qualifications." The information in

Mr. Zoozan’s application was sufficient for Markel to conclude that he may qualify for an IRB as well as caregiver benefits, thus triggering Markel’s obligation to require Mr. Zoozan to make an election under section 36(2).

Mr. Zoozan’s argument is similar to the ones made in Garcia and State Farm Mutual Automobile Insurance Company⁸ and in Berhe and Security National Insurance Co./Monnex Insurance Mgmt. Inc. ⁹ In Garcia, Arbitrator Bayefsky concluded that the applicant qualified for an income replacement benefit, even though it was later determined that his weekly entitlement was nil. He reasoned that the question of how much was payable was one of quantum, not qualification. Arbitrator Wilson disagreed with this approach in his decision in Berhe, reasoning that it was absurd to find something to be a "benefit," when nothing was payable.

I prefer the approach taken in Garcia. Berhe did not consider the consistency of language between section 36(2) and sections 4(1), 12(1) and 13(1) and it did not consider that the trigger for an election is not the determination of entitlement to receive payment, but the information in the application that shows possible entitlement to the benefits. I find that, because Mr. Zoozan elected to claim IRBs and has never re-elected to claim caregiver benefits, he is precluded from pursuing his claim for caregiver benefits.

Entitlement to caregiver benefits

(b) Primary caregiver

To be entitled to receive a caregiver benefit an insured person must have been the primary caregiver for a person or persons in need of care at the time of the accident. Both Mr. and

Mrs. Zoozan testified that, despite the fact that Mr. Zoozan was the sole breadwinner for their family, he was also the primary caregiver for their young children at the time of the accident. They testified that Mr. Zoozan worked 50 to 70 hours per week before the accident. He did not work on the weekends. According to Mr. Zoozan’s evidence, he did these weekly hours of work over a span of 2 to 3 days or 3 to 4 days. Mrs. Zoozan testified that her husband worked 2 to 3 days a week. The explanation that Mr. Zoozan gave was that he included the hours he slept on the road when he said he worked 50 to 70 hours a week. Both husband and wife testified that, as soon as Mr. Zoozan returned home, he took almost full responsibility for childcare. Mr. Zoozan testified that his wife’s hobby was watching television and he left her free to do so when he was at home.

After receiving Mr. Zoozan’s Application for Accident Benefits, Markel hired Colleen MacDonald, an independent adjuster, to take a statement from him. Mr. Zoozan’s first language is Urdu. Ms. MacDonald attended at his home with an Urdu interpreter and took his statement on May 12 and 17, 2006. A copy of his statement as she wrote it out, initialled on each page by

Mr. Zoozan, along with a typewritten transcript, was filed as Exhibit 11. It is not disputed that the transcript accurately reflects the handwritten version of the statement. I will refer to the transcript for ease of reference.

Page 3 of the transcript indicates that Mr. Zoozan told Ms. MacDonald: "I worked lots of hours each week - between 50 and 70 hours weekly. I always drove to destinations across the border. The hours I worked varied. On average I worked 5 to 6 days each week. I was absent from home and on the road for that entire time frame." Page 4 of the transcript indicates that Mr. Zoozan told Ms. MacDonald: "I drove approximately 10 to 11 hours each day." Page 5 of the transcript indicates that Mr. Zoozan told Ms. MacDonald: "I never refused to take a load because I needed the work." Page 11 of the transcript indicates that Mr. Zoozan told Ms. MacDonald: "Before this accident…[M]y wife was responsible for taking care of the children, cleaning the house, laundry and preparing meals. My wife was home more so she did most of the care of our children. My wife did not work. I worked away from home. I traveled (sic) to the United States so I was absent from home for 2 to 5 days each week. When I was home I did help my wife with childcare, cleaning, cooking and laundry."

Mr. Zoozan agreed that he told Ms. MacDonald that he worked 50 to 70 hours a week before the accident. He denied the accuracy of the other excerpts of the statement that I have noted above. He suggested that there must have been an error in translation because, although the interpreter spoke Urdu, they were from different provinces in Pakistan and there are language differences between the provinces. He agreed that he did not raise the issue of accuracy of the statement before he testified. He also agreed that he sometimes responded to Ms. MacDonald’s questions in English, without using the interpreter.

Mr. Zoozan initialled each page of the handwritten version of the statement and numerous changes in the body of the statement. Ms. MacDonald testified that she used an interpreter she had worked with on many occasions, without incident. She was therefore confident in his competence. She made the arrangements with Mr. Zoozan, directly. They were able to communicate in English. Before taking the statement, she told Mr. Zoozan to simply answer her questions and not to answer any question he did not understand. He did not raise any concerns. She testified that, had there been an issue in translation, she would have expected the interpreter to raise it and she would herself have noted a problem. For example, she would have noticed that an answer might have been unrelated to her question. She noted no problems.

I find the statement to be accurate and, where it differs from Mr. Zoozan’s testimony, I prefer the version he gave when he made his statement for several reasons: First, he does not dispute the accuracy of the statement that he worked 50 to 70 hours a week. He claims that he included time he slept in those hours, but gave no explanation for why he did that. I can think of no reason why he would do that. He admitted that he was not paid for sleeping. He testified that he could only lawfully drive 13 hours a day in Canada and 11 hours a day in the United States and always followed this restriction. Taking that into account, he would have to work 5 to 6 days a week to work 50 to 70 hours a week. The information in the statement that he drove 10 to 11 hours each day is consistent with this calculation and with his evidence that he only drove within the lawful limits.

On the other hand, if he only worked 2 to 3 days a week or 3 to 4 days a week, he would regularly have been working part-time hours, if he kept within the lawful limits. He has never claimed that he was working part-time before the accident. On the contrary, he has consistently claimed that he worked long hours and took every trip he could get because he needed the money. He contrasted his present condition with his pre-accident abilities by testifying that he now works 25 to 30 hours a week, which is less than the full-time hours he worked before the accident.

Second, I doubt that Mr. Zoozan required significant assistance from an interpreter in giving his statement. He was able to make the arrangements with Ms. MacDonald in English and he admits that he sometimes responded directly in English. Despite the availability of an interpreter at the hearing, he chose to testify in English and was able to do so without significant difficulty. I am not satisfied that his English improved between the time of the accident and the hearing. Therefore, I would have expected Mr. Zoozan to be able to note any inaccuracies as the interpreter relayed his statement to Ms. MacDonald in English. He admits that he did not note inaccuracies at the time. In fact, although he must have known that the accuracy of the statement was critical to the outcome of the hearing, he did not mention his theory to Markel until he testified.

Third, the handwritten version of the statement shows that it was carefully taken. The many corrections that Mr. Zoozan initialled indicate that he was engaged in reviewing the statement and corrected any inaccuracies he noted at the time.

Fourth, Mr. Zoozan produced no documentation, such as driver’s logs or trip sheets to corroborate his position and offered no explanation for not doing so. When he gave his statement, he told Ms. MacDonald that his employer kept those records.

I find that, before the accident, Mr. Zoozan usually worked 50 to 70 hours a week and he was away from home 5 to 6 days a week. I appreciate that he also said that he worked 2 to 5 days a week. But the one constant in the statement and the testimony was that he worked 50 to 70 hours a week. Therefore, although he might have only worked 2 days a week on occasion, I find that he was usually away 5 to 6 days a week. I find his statement that his wife did that bulk of the child care before the accident to be accurate. Given that fact, I find that Mr. Zoozan was not primarily responsible for the care of his children and is not entitled to be paid a caregiver benefit.

Disability Test

Entitlement to housekeeping and attendant care

Mr. Zoozan claims housekeeping benefits at the rate of $100 per week for services his wife performed from July 20, 2006 to January 23, 2008. He claims attendant care benefits at the rate of $298.12 per week, for services his wife performed from September 2, 2006 to January 23, 2008. The Schedule requires Markel to pay for someone else to perform those housekeeping services Mr. Zoozan performed before the accident and is subsequently substantially unable to perform as a result of his injuries. He claims payment for dusting, vacuuming, mopping, washing dishes, cleaning the kitchen, groceries and removing garbage for 3 hours per day, four days a week.

Although I do not doubt that Mr. Zoozan made some contribution to these chores before the accident, I find that, given his work schedule, his contribution was much less than he now claims. Since he was usually away from home 5 to 6 days a week, he could not have performed housekeeping activities that required replacement services for 3 hours a day, four days a week. When Colleen MacDonald interviewed him in May 2006, he told her that he helped his wife with cleaning for 2 hours over the weekend, did laundry 2 to 3 times a week and cooked for the family on the weekends. I find that his statement accurately describes his pre-accident housekeeping activities.

In any event, Mr. Zoozan was not available to perform his pre-accident activities between

July 24 and August 28, 2006 as a result of his incarceration, not his injuries. He is not entitled to recover for that period. I find that Mr. Zoozan is not entitled to be paid the attendant care and housekeeping benefits he claims because, by the time of his release from jail, he was independent with regard to self-care and he no longer suffered a substantial inability to perform his limited pre-accident housekeeping activities.

Mr. Zoozan’s chief complaints just after the accident were pain in his left hand, left shoulder, neck and back. A fracture of the distal metacarpal to the left little finger is the only objective injury ever diagnosed. Mr. Zoozan is right handed. He did not have a family doctor so he attended at a walk-in clinic the day after he returned to Canada in January 2006. He testified that the doctor at the clinic removed the cast, took x-rays, put a new one on and told him to come back in 15 days. He did not seek further treatment until about 3 months later.

Mr. Zoozan testified that his lawyer referred him to Prime Health Care Inc. in March 2006. Its records indicate that he first received treatment there on March 30, 2006¹⁰. Mr. Zoozan testified that he continued treatment at Prime until his incarceration in July 2006, without significant improvement in his symptoms.

Prime’s records cast doubt on Mr. Zoozan’s attendance there. They show attendances on July 29, August 10, 16, 19 and 23, 2006, while Mr. Zoozan was incarcerated in Ohio. This discrepancy in Prime’s records, the fact that he was referred there by his lawyer and not a medical professional, the fact that Mr. Zoozan required very little treatment immediately after the accident and his testimony that the treatment was of no benefit, tend to show that Mr. Zoozan formed a relationship with Prime in order to bolster his claim for accident benefits, rather than medical reasons.

When Coleen MacDonald interviewed him in May 2006, Mr. Zoozan told her that his wife helped him to shave, dress, undress and shower for about 2 months after the accident and then he was able to resume those activities, without restriction.¹¹ I find the statement to be accurate. Its accuracy is demonstrated by the fact that Mr. Zoozan was able to take care of himself while incarcerated. He admitted that during his incarceration no one provided attendant care for him. He testified that there was nothing he just could not do, but said that some activities caused pain.

The benefits provided in the Schedule do not compensate an insured person for pain. There is no evidence to support a finding that Mr. Zoozan’s ability to take care of himself diminished after he was released. I therefore conclude that he is not entitled to the attendant care benefits he claims for the period from September 2, 2006 to January 23, 2008.

When Mr. Zoozan gave his statement he said that he had not yet resumed his pre-accident housekeeping and caregiving activities.¹² I find however that, by the time of his release from prison, he did not suffer a substantial inability to return to his limited pre-accident housekeeping activities. Common sense dictates that if Mr. Zoozan, whose most significant injury was to his non-dominant hand, had recovered sufficiently to resume self-care two months after the accident and to do so while in prison, he could also clean, do laundry and cook at his limited pre-accident level.

The theme of equating pain with lack of function was a recurring one in Mr. Zoozan’s testimony. Veena Mehta, an occupational therapist, conducted an In-Home Assessment at Markel’s request on July 20, 2006.¹³ She too reported that Mr. Zoozan told her that he was independent with regard to self-care and she concluded that he demonstrated the physical tolerances to complete his self-care tasks and was substantially able to complete his housekeeping activities. When

Mr. Zoozan was asked about these conclusions in cross-examination, he said he was asked to do things and did them even though he felt pain.

Markel placed Mr. Zoozan under surveillance in September and October 2007. He claims that he still had not returned to his pre-accident housekeeping activities and still required attendant care at that time. The video taken on October 1, 2007 is particularly instructive. It shows Mr. Zoozan working on his uncle’s truck for several hours. It shows him walking around briskly and energetically, with fluid movement. It shows him bending at the waist, without restriction.

It shows him squatting fully to inspect the truck or to sit on a dolly so he could slide under the truck and work for extended periods on his back. It shows him kneeling on the dolly and wrestling with parts and wrenches while working at chest or head level for several minutes. After being engaged in repairs for about an hour and a half, he removed an apparently hefty toolbox from a compartment in the truck at about shoulder height. Even though his right hand was free, he chose to use his left hand, the one he said was still so painful that it restricted all his activities. He then bent fully at the waist to remove tools, did a full squat to sit on the dolly, and continued working under the truck for over an hour. Throughout the truck repairs, Mr. Zoozan showed no signs of limitation or distress. Nevertheless, he testified that he was in pain, after he was done.

This was certainly not the same stiff, guarded, slow-moving Mr. Zoozan I saw at the hearing. This was certainly not a person incapable of dusting, vacuuming, removing garbage, changing linens, preparing meals, and who required assistance bathing and drying himself, as suggested by the Application for Expenses he submitted to Markel for the concurrent period.¹⁴

Mr. Zoozan admitted that he was working on his uncle’s truck on that day. He testified that he did it because he felt obligated to his uncle for giving him free accommodation after he sold his condominium because of the financial difficulties the accident caused. He agreed that since July

2007 he had been doing similar favours for his uncle, as well as driving his uncle’s truck when regular drivers were not available, two or three times a week. Whether or not gratitude was

Mr. Zoozan’s motivation, the video establishes that when motivated to do so, Mr. Zoozan was able to function at a much higher level than he cared to admit for the purpose of the hearing.

I reject the opinions of those who examined Mr. Zoozan and supported his claim of ongoing disability. There is no objective evidence to support that conclusion. All of the opinions in support of ongoing disability, including the ones suggesting limitations based on Mr. Zoozan’s mental status, are founded in Mr. Zoozan’s reports of continuing restriction of his ability to function. For instance, Dr. Joseph Wong, a physiatrist, examined Mr. Zoozan in July 2007. He concluded that it was dangerous for Mr. Zoozan to return to work and he was unable to complete his pre-accident caregiving and housekeeping activities. He testified that any heavy work would have been difficult and anything that required the use of both hands would have been difficult. Nevertheless, Mr. Zoozan had already started driving for his uncle and doing repairs when needed. The video of October 1, 2007 shows Mr. Zoozan doing the very things that Dr. Wong said he could not do. In fact, Dr. Wong himself agreed that, if Mr. Zoozan was doing the things described in the surveillance report¹⁵, Mr. Zoozan was functioning at a higher level than when he examined him.

I conclude that Veena Mehta correctly assessed Mr. Zoozan’s level of function in July 2006.

I accept the opinion of Jeff Ford, an occupational therapist who examined Mr. Zoozan in May 2007 and concluded that he was able to return to his pre-accident housekeeping and caregiving activities, despite unsatisfactory performances on some strength and endurance testing.¹⁶

Mr. Ford’s conclusions that Mr. Zoozan put forth sub-maximal effort is consistent with my overall assessment of the evidence.

Entitlement to treatment and examinations

Markel did not dispute Mr. Zoozan’s entitlement to payment for the treatment and assessments in issue in this arbitration. It admitted that it has not paid these benefits although it approved the treatment. It also admitted that it either approved the disputed assessments or is deemed to have approved them because of failure to respond to Mr. Zoozan’s request to have them conducted. Markel is therefore liable to pay Mr. Zoozan for the treatment and assessments in dispute, plus interest pursuant to section 46(2) of the Schedule.

Special award

Section 282(10) of the Insurance Act requires an arbitrator to order payment of a special award, in addition to benefits and interest to which an insured person is entitled, upon finding that an insurer unreasonably withheld or delayed payment of benefits.

Mr. Zoozan claimed a special award on the grounds that Markel unreasonably withheld payment of all of the benefits in dispute in this arbitration. Since I have found that he is not entitled to the claimed housekeeping, attendant care and caregiving benefits, he is not entitled to a special award regarding those benefits. I find that he is entitled to a special award because Markel has unreasonably withheld payment for the treatment and assessments claimed.

The touchstone definition of unreasonable conduct is found in the decision of Arbitrator Palmer in Plowright and Wellington Insurance Company ¹⁷:

"Unreasonable" behaviour by an Insurer in withholding or delaying payments can be seen as behaviour which was excessive, imprudent, stubborn, unyielding or immoderate.

Chris Selig, the adjuster handling the file at the time, approved the Treatment Plan for the treatment in dispute on September 19, 2007.¹⁸ Section 38(17.2) of the Schedule requires an insurer to pay for approved treatment within 30 days after receiving an invoice for the expenses. He testified that invoices were sent to Markel in March 2008, but he could not recall receiving them. The invoices remained unpaid at the time of the hearing. I find that Markel’s conduct in refusing to pay theses invoices was "excessive, imprudent, stubborn, unyielding or immoderate."

Markel argued that a special award should not be made because there was no proof that it had received the invoice and because Mr. Zoozan received the benefit of the treatment and there was no evidence that the treatment provider was pursuing him for payment. It submitted that the issue of payment was between itself and the service provider. It provided no evidence of a dispute with the service provider or any other reason that it has not paid for the treatment. It offered no explanation for its failure to pay, even after becoming aware that Mr. Zoozan had received the treatment and that an invoice had been sent.

I reject Markel’s submissions. The Schedule requires prompt payment of benefits. The insurer’s obligation to pay does not depend on whether the treatment provider is pursuing the insured person for payment. Even if it chooses not to pursue the insured person for payment, a service provider may decide not to provide further treatment, if an outstanding bill remains unpaid. If anything, the question of pursuing payment might have some bearing on the quantum of a special award, not entitlement to one. It is unlikely that an insurer could avoid liability for a special award where it refuses to pay for treatment it approved and is aware that insured person received. Where the insurer offers no reason for its failure to pay, there is no basis for denial of a special award.

Even if Markel was unaware of the invoice in March 2008, it did not pay after becoming aware of the invoice. I find that the timing of the invoice has no bearing on Markel’s conduct in this case. It did not pay when it became aware of the invoice and it has not paid the invoices that it admits receiving for the disputed assessments.

Mr. Selig admits receiving the invoice for the disputed Neuropsychological Assessment on October 25, 2007 and for the In-Home Assessment, the Worksite Assessment and the Form 1 around June 12, 2007. He could not recall receiving the invoices for the other assessments. Markel made the same submissions on Mr. Zoozan’s entitlement to a special award because of its failure to pay for the assessments as it did on the issue of treatment. I reject them for the same reasons. I find that Markel’s conduct in refusing to pay for the assessments was "excessive, imprudent, stubborn, unyielding or immoderate."

The issue of the quantum of the special award remains to be determined. The parties are encouraged to attempt to resolve this issue on their own. Markel is directed to provide

Mr. Zoozan with a statement, showing the amount upon which the special award is to be calculated, no later than 45 days after the date of this decision. If Markel does not provide the statement or, if the issue remains unresolved 30 days after that statement is delivered, I will resume the hearing to determine the quantum of the special award, at the request of either party.

EXPENSES:

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

September 25, 2009

Jeffrey Rogers Date

Arbitrator

Schedule A

Procedural rulings

• Markel requested that I exercise the discretion conferred by Rule 39.2 to allow it to file a Supplementary Brief of Documents, served April 6, 2009, in breach of Rule 39.1. Rule 39.1 requires that all documents be served at least 30 days before the first day of the hearing. Rule 39.2 provides discretion may be exercised in "extraordinary circumstances." Mr. Zoozan objected on the grounds that "extraordinary circumstances" did not exist.

Markel’s explanation for late service was that settlement discussions were ongoing and hearing preparation was therefore delayed in the hope of limiting cost. Markel further argued that there was no prejudice to Mr. Zoozan because he already had the documents in his possession.

I denied Markel’s request. I ruled that the service requirement of Rule 39.1 is not met by the informal delivery of documents because such delivery does not put the other party on notice that the document will be introduced at the hearing, as Rule 39.1 requires. Prejudice arises from the inability of the party receiving the document to determine in advance the case to be met. I also ruled that, because it is not at all unusual that settlement discussions continue to the eve of the hearing, the reason given for delaying formal service did not constitute extraordinary circumstances.

• Markel also requested that I exercise the discretion conferred by Rule 39.2 to allow it to file a surveillance report and videotape of surveillance, conducted April 21, 2009 and served in breach of Rule 39.1 and the similar requirement of Rule 40, which applies to surveillance. Mr. Zoozan objected.

Markel argued that this evidence should be admitted because there was videotape and surveillance reports that were properly admissible, by virtue of having been served in compliance with the rules. I rejected that argument on the grounds that accepting it would mean that in every case in which there was properly admissible surveillance, a party would have the right to rely on further surveillance, without the reference to the 30-day restrictions.

• Mr. Zoozan requested that I exercise the discretion conferred by Rule 39.2 to allow him to file the adjuster’s log notes, found at Tab 2 of the Supplementary Brief of Documents that Markel served April 6, 2009. I ruled that extraordinary circumstances existed to allow the filing of this document since Mr. Zoozan was unable to serve it as a result of Markel’s failure to produce it earlier.

• At Markel’s request, I made an order excluding Mrs. Zoozan from the hearing during her husband’s testimony.

• The parties filed two briefs of documents which I marked as Exhibits A and B for identification purposes only. I ruled that the record of the hearing would consist of only those documents separately introduced and marked individually as exhibits.

• Because Mr. Zoozan questioned the accuracy of the statement he gave to Markel for the first time in his testimony, I exercised my discretion to allow Colleen MacDonald to testify on the issue, although she had not been identified as a witness.

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 130

FSCO A08-000608

BETWEEN:

SYED ZOOZAN

Applicant

and

MARKEL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Zoozan’s claims for housekeeping and home maintenance benefits, attendant care benefits and care giver benefits are dismissed.

2. Markel shall pay Mr. Zoozan a medical benefit of $2,189.80 for treatment at FITPAC, as set out in treatment plan dated July 29, 2007.

3. Markel shall pay Mr. Zoozan for the cost of the following examinations:

Conducted by FITPAC:

(a) $3,504.46 for a Neuropsychological Assessment dated August 26, 2007;

Conducted by Pathokinetic Healthcare:

(b) $1,263.72 for a follow-up In-Home Assessment, dated June 8, 2007;

(c) $963.72 for a Worksite Assessment, dated June 8, 2007;

(d) $263.72 for completion of a Form 1, dated March 4, 2007;

(e) $1,363.72 for a Functional Abilities Assessment, dated February 27, 2008; and

(f) $777.28 for a follow-up In-Home Assessment, dated February 24, 2008.

4. Markel shall pay Mr. Zoozan interest on the above benefits pursuant to section 46 of the Schedule.

5. Markel shall pay Mr. Zoozan a special award pursuant to subsection 282(10) of the Insurance Act.

6. Markel shall deliver a statement to Mr. Zoozan, setting out the amount upon which the special award is to be calculated, no later than 45 days after the date of this decision.

7. Should Markel not deliver the statement referred to in paragraph 6 of this order, or should the issue of quantum of the special award remain unresolved 30 days after a statement is delivered, either party may request a resumption of the hearing to resolve the issue.

8. If they are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

September 25, 2009

Jeffrey Rogers Date

Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 4, Emergency Report of Defiance Regional Medical Centre, Exhibit B, Tab D-15.
3. 3Exhibit 2, Judgment Entry, Court of Common Pleas of Defiance County, Ohio.
4. 41998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at Page 41.
5. 5Exhibit 12, Application for Accident Benefits, Exhibit B, Tab C-1.
6. 6See for example: RBC General Insurance Company and Antony, (FSCO P03-00023, July 22, 2004) Appeal; Prosser and Progressive Casualty Insurance Company, (OIC A96-000358, May 28, 1997); and Garcia and State Farm Mutual Automobile Insurance Company, (FSCO A06-002625, March 7, 2008).
7. 7(FSCO P98-00047, June 11, 1999).
8. 8See footnote 6.
9. 9(FSCO A06-001646, May 30, 2008) Appeal.
10. 10Exhibit 5, Exhibit B, Tab D-16.
11. 11Exhibit 11, Page 11.
12. 12Exhibit 11, Page 15.
13. 13Exhibit 14, Exhibit A, Tab 3.
14. 14Exhibit 6, Exhibit B, Tab C4.
15. 15Exhibit 10, Exhibit B, Tab 7.
16. 16Exhibit 15, Exhibit A, Tab 5.
17. 17(OIC A-003985, October 29, 1993).
18. 18Exhibit 33, Exhibit B, Tab C-7.