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

Neutral Citation: 2012 ONFSCDRS 144

FSCO A10-003864

BETWEEN:

AHMAD ABBANY Applicant

and

PAFCO INSURANCE COMPANY Insurer

Before: Joyce Miller

Heard: Written submissions were received on August 24, 2012

Appearances: Mr. Abbany, self represented Andrew McKague for Pafco Insurance Company

Issues:

The Applicant, Ahmad Abbany, was involved in a motor vehicle accident on July 14, 2007. He did not apply for statutory accident benefits from his insurer Pafco Insurance Company (“Pafco”), until November 25, 2008. Pafco denied his Application for Accident Benefits on the basis that he failed to comply with the time limits pursuant Section 32 of the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Abbany applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Did Mr. Abbany’s Application for Accident Benefits fail to comply with the time limit set out in section 32 of the Schedule? If so, did Mr. Abbany have a reasonable explanation pursuant to section 31 of the Schedule? If not, should Mr. Abbany’s Application for Accident Benefits be dismissed?

Result:

Mr. Abbany’s Application for Accident Benefits failed to comply with the time limits set out stipulated in section 32 of the Schedule without a reasonable explanation. Accordingly, his Application for Accident Benefits is dismissed.

EVIDENCE:

Mr. Abbany is 48 years old. He has a B.A. in Business Management with a Minor in English. At the time of his car accident he was working in sales.

Mr. Abbany reported his accident to Pafco on July 14, 2007, the same day of the accident. The police report does not note any injuries to the parties in the accident.

Pafco’s adjuster’s log notes, dated July 16, 2007, (two days after the accident) show that the adjuster spoke to Mr. Abbany and advised of his coverage. The notes indicate that Mr. Abbany told the adjuster that he did not have any injuries as a result of the accident. The notes indicate the statement “closing claim.”

After the accident Mr. Abbany went back to work. There is no evidence, medical or otherwise, (not even from his family doctor or any other medical practitioner) of his reporting any injury as a result of his car accident, until he notified the insurer in July 2008, that he would be making a claim for accident benefits as a result of his car accident.

Mr. Abbany did not formally file his Application for Accident Benefits until November 25, 2008.

Mr. Abbany’s family doctor’s medical notes, indicates that he saw his family doctor, Dr. Shaw, on August 17, 2007 wherein he was complaining of a one-day epigastric pain and discomfort.

The next time Mr. Abbany saw Dr. Shaw was on November 2, 2007. Mr. Abbany’s complaints were that three days before, he began to suffer headaches and dizziness. He had diarrhea. He was tired and nauseous. Dr. Shaw noted that Mr. Abbany was suffering from allergies and that the site of his allergy injection was sore and sensitive. Mr. Abbany was referred to an allergist.

On November 23, 2007, Dr. Shaw notes that Mr. Abbany was still suffering from dizziness and nausea and had gone to emergency where he had a CT scan. The clinical notes indicate that Mr. Abbany was told he had an inner ear problem.

On December 7, 2007, Dr. Shaw’s notes indicate that Mr. Abbany was still having dizzy spells and nausea, was being helped by medication. The notes also indicate Mr. Abbany has mild headaches and is not working.

A report dated January 3, 2008, by Dr. L.G. Moodley states that he saw Mr. Abbany on December 6, 2007 in the Urgent Neuro Clinic on a referral from Dr. Abdallah, an ENT surgeon. Dr. Moodley reported that his neurological examination was normal. Dr. Moodley further stated:

I am uncertain of the cause for this gentleman’s symptoms. I do agree with Dr. Abdallah however, that the presentation is not typical of vestibular dysfunction. The patient has quite vague symptoms including fatigue, a general nauseous feeling and hypersomnolence. He appears to have, if anything, I would consider that he has dysfunction of the limbic system. In terms of the etiology, I think this is likely viral or post viral related. [Emphasis added]

Dr. Shaw’s clinical notes of May 8, 2008 indicate that Mr. Abbany went to Lebanon for five months on December 17, 2007 and returned on May 2, 2008.

Dr. Shaw’s notes further indicate that Mr. Abbany was taking medication for his dizziness and had “some improvement.” A hearing test showed a hearing decrease.² The note states that regarding work it “will be in Alberta.”…“Fit enough to seek work.” As well, the note states that Mr. Abbany will be seeing Dr. Abdallah on June 23, 2008, “requesting CT scan (Dr. Abdallah to arrange).”

On July 9, 2008, Dr. Shaw’s clinical notes state – “dizziness - ongoing since 5 Nov 07 - symptoms since started taking Singular - stopped [for] 3 mos - symptoms improved.” … Thinks Singular was making him worse.” Dr. Shaw’s questions this connection and notes in his records “unlikely.”

Most significantly, despite the fact that Mr. Abbany was seeing Dr. Shaw on a regular basis since the time of his car accident on July 14, 2007, it is only on August 12, 2008 that for the first time he mentions to Dr. Shaw that he was in a car accident the year before. Dr. Shaw’s clinical note for that date states:

discuss Dr. Kapoor's report
Would like to see a cardiologist Mother has same heart condition Mom had 70% blockage
Tired, dizzy has asthma
Would like copies of heart tests. Pt states has chest pain radiating to L shoulder few x/wk. [increase] in heartburn.

Car accident last year - symptoms related?

On September 15, 2008, Mr. Abbany self-referred himself for a neurological evaluation with Dr. Lourdes Andaya in Detroit, Michigan. Dr. Andaya’s report states as follows:

Mr. Abbany gives the history that he was in a motor vehicle accident in July 2007, hit on the road and the air bag deflated and hit him on the face. Since that time, he has been experiencing dizzy spells and on one occasion on October 29, 2007, while driving from Chatham to Windsor [woke up] in a wrong direction and claims he was extremely dizzy, does not remember what happened. He has had episodes of this nature about three times. He has been feeling extremely weak and dizzy. He as seen by ENT and had MRI, which was done and was noted to have inflammatory changes only of the sinuses and was treated accordingly. However, he continues to feel dizzy and feel extremely weak.

The report notes that Mr. Abbany told him “He has no known allergies.” Under “Impression” Dr Andaya states: “1. Possible brain injury. 2. Sinus problem”

In a letter dated October 7, 2008, from Mr. Abbany to Dr. Andaya he attributes his physical problems to his July 2007 motor vehicle accident. Mr. Abbany states: “As of this moment, I am giving 100% blame of my symptoms to the accident till a medical report proves otherwise, this is how I want to treat my sudden condition.”

Mr. Abbany goes on to note:

Some doctors are telling me that anxiety could be the problem without saying why I may have it. It seems they are not taking into consideration closed head injuries, whiplash effects or the difference in velocity which occurs in MVA. Any way it all adds up. And the doctor who is suspecting panic attacks and or anxiety is a General Practitioner. No doctor has told me why I had significant…. [Remainder of note is cut off in photocopy]

According to Dr. Shaw’s notes, the next time Mr. Abbany saw Dr. Shaw after his visit on July 9, 2008, was nine months later on March 30, 2009. Dr. Shaw's clinical notes state that Mr. Abbany advised that he “Had severe car accident prior to dizzy spells starting in Nov 07. Also taking Advil Sinus prior to Nov 07”

In his clinical note of March 30, 2009, Dr. Shaw further indicated that Mr. Abbany had self-referred himself to a neurological clinic in Detroit, Michigan. The report dated October 14, 2008 by Dr. Boris Leheta, Diplomate, American Board of Psychiatry and Neurology states in part as follows:

… His main reason for presenting to our office is to evaluate his current myriad of complaints which he believes are all due to a motor vehicle accident that occurred in July of 2007 …. He states he sustained head trauma to the side window with a brief loss of consciousness of unclear duration.

… Upon review of notes from Dr Pankaj Kapoor of July 25, 2008, there is no mention of a motor vehicle accident although he confirms a similar history of a multitude of symptoms including dizziness, lightheadedness, balance problems, vertigo, sense of weakness in his arms and legs with a few episodes of loss of consciousness or near loss of consciousness. A previous evaluation by Dr. Moodley, notes of December 6, 2007, report that the patient’s problems first began quite acutely on October 29th when he had just returned from a meeting that evening and felt fatigued and nauseous. Apparently a bout of diarrhea of three days preceded these symptoms. He reported in the notes that he then felt well enough to return to work but, within a week, he began to experience hypersomnolence, dizziness, pain in the temporal head region. Both of the notes reviewed had no mention of a preceding car accident as is currently related by the patient to me during this evaluation. [Emphasis added]

Dr. Leheta goes on to conclude: “Ahmad Abbany is a 44 year-old male with multisystem complaints. In my evaluation there are no objective findings to support this patient’s subjective complaints.” [Emphasis added]

On April 3, 2009, Mr. Abbany saw Dr. Ashraf Mohamed in Dearborn, Michigan at the Greenfield Pain and Neurology Clinic. In his report, Dr. Mohamed stated that Mr. Abbany’s chief complaint was “Episodes of dizziness, headache and left side weakness.” He goes on to state under “History of Present Illness” as follows:

… The patient apparently was hit on his left side, hit upper and lower extremity and he lost consciousness for two to three minutes at the accident scene. He experienced headache right after the accident. This headache is still there until this moment. He stated that according to the medical record he thought that he experienced bloody discharge from his nose few weeks later after the accident. He also stated that his memory has been lapsing since the accident …

THE LAW

Section 32 of the Schedule creates a three-step process for initiating an accident benefit claim.

First, subsection 32(1) requires an insured person to notify the insurer of his or her intention to apply for a benefit no later than seven days after the date of the circumstances giving rise to entitlement, “or as soon as practicable thereafter.”

Second, subsection 32(2) requires the insurer to promptly provide the person with the appropriate forms and information for the application for benefits.

And third, subsection 32(3) requires the claimant to submit a signed application for the benefits within 30 days of receiving the materials described in s. 32(2).

Subsection 31(1) provides that a person’s failure to comply with the time limit set out in section 32 does not disentitle the person to a benefit if the person has a reasonable explanation.

ANALYSIS AND FINDINGS:

The case of Carruthers and Royal and Sun Alliance Company of Canada³, held that in assessing whether an explanation is a “reasonable explanation,” the explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed. The onus is on the insured person to establish a “reasonable explanation.”

For the following reasons, I find that Mr. Abbany did not have a credible or reasonable explanation worthy of belief for filing his Application for Accident Benefits on November 25, 2008, 16 and one-half months after his car accident.

In his submissions, Mr. Abbany stated:

… I was involved in a serious car accident …My car was [totalled], and I started to experience headaches, fogginess, and sleep disruptions that day. … according to [the] police report I hit my head and left side body against the door, and window of the driver’s seat … I did not see wounds or blood, so I assumed I was fine …

Mr. Abbany claims he did not advise his doctors about his car accident because they did not ask the right questions, and that it took him time to make the connection between his symptoms and the car accident.

I give little, if any, weight to Mr. Abbany’s submissions. The objective evidence indicates numerous contradictions and implausibilities in Mr Abbany’s claim that he was injured in his car accident.

Contrary to Mr. Abbany’s claim, the police report does not indicate that there were any injuries in the accident.

Two days after the accident, Mr. Abbany confirmed with the adjuster that he did not have any injuries as a result of the car accident.

An incident happened at the end of October that triggered dizzy spells and headaches for Mr. Abbany. Until then there were no reports to any medical practitioner regarding these symptoms, although Mr. Abbany claims he had these symptoms immediately after the accident.

Starting in fall of 2008 and into 2009, Mr. Abbany begins to report to his doctors the following contradictory facts:

“[T]he air bag deflated and hit him on the face. Since that time, he has been experiencing dizzy spells…” ( Dr. Andaya)
“He states he sustained head trauma to the side window with a brief loss of consciousness of unclear duration.” (Dr. Leheta)
“The patient apparently was hit on his left side, hit upper and lower extremity and he lost consciousness for two to three minutes at the accident scene. He experienced headache right after the accident. This headache is still there until this moment. He stated that according to the medical record he thought that he experienced bloody discharge from his nose few weeks later after the accident. He also stated that his memory has been lapsing since the accident …” (Dr. Mohamed)

Mr. Abbany submits “The direct causation between the car accident and the symptoms I was having was established by Dr. Moodley …” However, this in fact is contrary to what Dr. Moodley states in his report. In his report he states: “I am uncertain of the cause for this gentleman’s symptoms.”

I do not find it credible or believable that if Mr. Abbany suffered an immediate (as alleged) loss of consciousness, headaches, brain fog, dizziness and whiplash as a result of the accident he would report to the adjuster, two days after the accident, that he had no injuries, and wait until November 25, 2008 to make a claim for accident benefits.

More significantly, if Mr. Abbany suffered these alleged injuries at the time of the accident, it is not credible that he would not seek immediate medical attention, as he seems to have a history of seeing doctors on a regular basis and self-referring to medical examinations. Nor is it worthy of belief that he would not mention the car accident to any medical practitioner, including his family doctor until mid-2008.

Even though he had seen Dr. Shaw on a number of occasions after the accident, the first time Mr. Abbany mentions the car accident to his family doctor is on August 12, 2008, a little over a year after the accident.

Most significantly is the fact that it is Mr. Abbany, and not any doctor, that has attributed his symptoms to his car accident. In his letter to Dr. Andaya on October 7, 2008, Mr. Abbany tells Dr. Andaya that unless another reason can be found for his symptoms then “100% blame” should be attributed to his car accident.

In his submissions, Mr. Abbany claims he suffered “whiplash” as a result of the car accident. Nevertheless, there is no complaint to a medical practitioner of neck pain. Nor is there any evidence that Mr. Abbany was treated for whiplash after the accident.

Accordingly, I find that Mr. Abbany has not presented any credible evidence worthy of belief that his alleged symptoms were caused by his car accident. Given the numerous contradictions in his evidence, I do not find that Mr. Abbany has a reasonable explanation as to why he waited until November 25, 2008 to make an application for accident benefits.

Moreover, there is a considerable time period of 16 and a half months between when Mr. Abbany reported to the insurer that he did not have any injuries as a result of the car accident, and when he made his initial claim for accident benefits. This delay significantly hampered Pafco’s ability to investigate and evaluate the origin of Mr. Abbany’s alleged symptoms. Accordingly, I find this delay in making his claim for accident benefits seriously prejudices Pafco.

For these reasons, I find that Mr. Abbany’s Application for Accident Benefits failed to comply with the time limit set out in section 32 of the Schedule. I further find that Mr. Abbany did not have a reasonable explanation for the delay in his Application. Accordingly, I find that Mr. Abbany’s Application for Accident Benefits is dismissed.

EXPENSES:

If the parties cannot agree on expenses, I can be spoken to within 30 days of this decision.

October 18, 2012

Joyce Miller Arbitrator

Date