Financial Services Commission of Ontario / Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 154
FSCO A13-013344
BETWEEN:
ABDI HASSAN
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Charles D. Matheson
Heard: In person at ADR Chambers from June 1-4, 2015
Appearances: Ms. Olga Kanevsky for Mr. Abdi Hassan Ms. Jennifer Beresford for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Mr. Abdi Hassan, was injured in a motor vehicle accident (“MVA”) on July 25, 2011. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 State Farm terminated his entitlement to any benefits on or about December 21, 2012. The parties were unable to resolve their disputes through mediation, and Mr. Hassan 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:
Did Mr. Hassan sustain an injury or impairment that would remove him from within the Minor Injury Guidelines (“MIG”) as within the meaning of the Schedule?
Is Mr. Hassan entitled to receive medical benefits for the multidisciplinary treatment plans consisting of physiotherapy, chiropractic therapy and massage therapy, as submitted by East Sheppard Rehabilitation Company Ltd. (“East Sheppard”) for the following:
a) $2,200.00 for OCF-18, dated December 21, 2012;
b) $1,257.00 for OCF-18, dated March 12, 2013;
c) $2,374.16 for OCF-18, dated April 26, 2013?
Is Mr. Hassan entitled to payments for the costs of the examination of $2,000.00 for a psychological assessment, dated May 2, 2013, as submitted by Nor Med Assessment Services (“Nor Med”)?
Is State Farm entitled to the repayment of $135.60 for an erroneous payment?
Is Mr. Hassan entitled to any interest for overdue payments of benefits?
Is State Farm liable to pay Mr. Hassan’s expenses in respect of this Arbitration, or is Mr. Hassan liable to pay State Farm’s expenses in respect of this Arbitration?
The issues stated here are the final issues in dispute as the counsel for the Applicant withdrew the claim for seven different $200.00 administrative fees charged by East Sheppard and Nor Med for different pre-screening assessment costs, during the closing arguments.
Result:
Mr. Hassan suffered from a minor injury as within the Minor Injury Guidelines as within the meaning of the Schedule.
Mr. Hassan is not entitled to receive medical benefits for the treatment plans consisting of physiotherapy, chiropractic therapy and massage therapy, as submitted by East Sheppard Rehabilitation Company Ltd. for the following:
a) $2,200.00 for OCF-18, dated December 21, 2012;
b) $1,257.00 for OCF-18, dated March 12, 2013;
c) $2,374.16 for OCF-18, dated April 26, 2013.
Mr. Hassan is not entitled to receive the payment for the psychological assessment by Dr. Mills of $2,000.00 for a psychological assessment, dated May 2, 2013, as submitted by Nor Med Assessment Services.
State Farm is entitled to receive $135.60 from the Applicant, forthwith.
Mr. Hassan is not entitled to any interest as there are no overdue payments.
The issues of legal expenses shall be determined by a separate Hearing should the parties not come to an agreement of same after this award is issued.
EVIDENCE AND ANALYSIS:
MOTION
On the first day, a Motion was brought by the Applicant. The Motion was:
a) Should the 34 page affidavit of Dr. Anna Bodnar be excluded from these proceedings?
b) Should there be an adjournment until Dr. Bodnar returns to the country?
Motion Arguments
The Applicant argues, in part, that the affidavit is inadmissible for the following reasons:
The affidavit was served late which is in contravention of Rule 39 of the Dispute Resolution Practice Code (“DRPC”);
The late service prevents the Applicant from properly preparing for this evidence;
The late service prevents the Applicant from directly cross examining Dr. Bodnar on the 34 pages of the affidavit and the cross examination would be critical;
The affidavit raises allegations of wrong doing on the part of Nor Med, with nobody to counter the claims being made;
Dr. Bodnar was not a primary caregiver and was just an assessor. The primary caregiver is Dr. Mills, who is going to give direct testimony at this Hearing;
If I find that the affidavit is admissible, an adjournment is requested until Dr. Bodnar can be called as a witness to this Arbitration.
The Insurer argues, in part, that the affidavit is admissible for the following reasons:
The deadlines for submitting documents to opposing counsel were consented to twice by the parties, leaving the final day for submissions to be 7 calendar days before the Arbitration;
The affidavit speaks directly to the treatment being sought, namely the pre-screening costs of the psychological assessment as well as the psychological assessment itself;
The affidavit does speak to the reasonableness of the treatment plan in question as it pertains to the Minor Injury Guidelines;
The Applicant’s own service provider had care and control of these records and the Insurer had been asking for them for more than a year. Counsel for the Insurer did not receive the records until 8 p.m. on the last day for submissions as the law clerk rather than the lawyer received the documents;
The documents were then sent the next day to opposing counsel, including the permission form to use the electronic signature of Dr. Bodnar;
There is no need for any adjournment in any outcome of this motion.
Evidence and Analysis of the Motion
The deadline for the exchange of documents, on consent of the parties, has been extended twice. The last agreed to deadline for exchanging documents was now 7 days prior to this Arbitration. The Applicant is relying on Rule 39 of the DRPC, which reads as follows:
EVIDENCE
39.1 Subject to Rule 39.2, all documents, reports (including experts’ reports) and assessments to be introduced at a hearing by either party must be served on the other party at least 30 days before the first day of the hearing. 39.2 In extraordinary circumstances, a party may seek an arbitrator’s permission to serve a document, report or assessment on the other party for use at a hearing less than 30 days before the first day of hearing. 39.3 The hearing arbitrator will determine the relevance, materiality, and admissibility of evidence submitted at the hearing, but will not admit evidence at a hearing that:
(a) would not be admissible in a court by reason of any privilege under the law of evidence; or (b) is not admissible under the Insurance Act; or (c) was not served on the opposing party in accordance with Rules 39.1 and 39.2, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.
If I substitute the “7 days” instead of the existing “30 days”, as contemplated by the parties, and read the entire Rule, I find that Rule 39.3(c) allows for late service of “all documents…to be introduced at a hearing” only in “extraordinary circumstances”.
I have no evidence as to when the documents in question were received by the Insurer, and no evidence as to how the affidavit was generated by a person who was not in the country at the time, nor do I have evidence before me that would suggest an extraordinary circumstance for serving the other side the next day. I have no evidence as when the document was received by Applicant’s counsel.
I am now compelled to give meaning to the Rule as it was changed on consent of the parties.
Therefore, I remain unpersuaded that an extraordinary circumstance arose and now find and order that the affidavit shall be excluded from this Arbitration.
HEARING
I shall look at question one first, as this issue of the whether or not Mr. Hassan sustained an injury or impairment that would remove him from within the Minor Injury Guidelines as within the meaning of the Schedule as a result of the accident, is the most critical question to be answered, as the treatment plans in dispute require that they are necessary and reasonable treatments, which would only occur if the Applicant was deemed to be outside the MIG.
Agreed to set of facts as determined from both counsel’s opening statements:
The Applicant was involved in an accident, dated July 25, 2011;
The Applicant did seek benefits via the Insurance Act;
The Insurer paid up to the MIG limits, for Medical/Rehabilitation treatment;
The Applicant underwent an Examination Under Oath (“EUO”) on June 20, 2012, where the Applicant made several statements that he had no pain in his neck, arms or back after he completed the treatments from his first two service provider clinics. There was no evidence to the contrary;
The Applicant attended two clinics prior to going to East Sheppard, namely Vitality Rehabilitation and Wellness Clinic in Kitchener and then Activia Clinics in Hamilton;
The Applicant underwent surgery on his left eye for a detached retina.
Evidence and Analysis of the Hearing
Applicant’s counsel relies on a three pronged approach to prove that the Applicant suffered impairment or injuries which remove him from within the MIG, which are as follows:
A chronic pain assessment report provided by Dr. Naguib Milad, dated October 22, 2014, along with his testimony as a witness;
A psychological assessment provided by Dr. Mills (Psychologist), dated 30 April 2013, along with his testimony as a witness;
The clinical notes and records of Dr. T.A. Aderibigbe (general practitioner), which commence in December 17, 2008 until January 21, 2014, along with his testimony as a witness.
The Applicant himself was difficult or evasive during his testimony. He could not remember the names of his interpreters, the names of any doctors unless prompted by his counsel, names of his clinics, or the different therapies he underwent. Further, he testified that he would only sign documents he understood, but under cross examination, the Applicant clearly displayed that he did not understand the vast majority of the medical language used in the reports and assessments he apparently signed.
On the face of the testimonies of the expert witnesses and their reports, it would appear plausible that a person suffering from chronic pain could indeed be suffering from post-stress disorder, which would explain the relapse of pain issues and up and down mood swings of a patient trying to move on with his life, after a motor vehicle accident.
In this case, all three expert doctors, on which the Applicant’s case is built, relied upon the Applicant to tell them the truth about all the subjective background information and/or peripheral information surrounding the accident and the Applicant himself. The doctors admitted there was no back checking or cross referencing of the facts as they were given by the Applicant.
To further complicate matters, the two expert doctors relied on their own communications with the Applicant without the aid of an interpreter. In fact, Dr. Mills did not even speak to or see the Applicant before writing his psychological assessment report. The credibility issue is exemplified and demonstrated when Dr. Mills was asked if he knew of the eye surgery at the time of his report and, whether or not this fact would have altered his findings. Dr. Mills seemed surprised at the discovery of the eye surgery and admitted that his findings in his assessment report would have been affected.
As a further example of the inaccurate information being disseminated by the Applicant, I use Dr. Aderibigbe’s CNRs to show that the Applicant told each assessor different facts about his daily life and facts about the accident.
Dr. Milad states in his report that the Applicant saw his family doctor days after the accident, when in fact the family doctor’s CNRs indicate the first visit post-MVA was September 15, 2011. He suggests that the pain killers the Applicant was taking were strong, when in fact they were over the counter strength Advil or Tylenol. Further, Dr. Milad states in his report that the Applicant is a non-smoker and light alcohol consumer. The CNRs shows he smokes 8 or more cigarettes a day and consumes no alcohol, which is different again from what Dr. Mills reports in his assessment.
Further, Dr. Milad does not take into account the recreational drugs that the Applicant consumes, as were reflected in Dr. Aderibigbe’s CNRs.
The Applicant failed to tell any assessor that he had surgery on his left eye after he admitted to his family doctor on February 13, 2012 that the “MVA back pain is resolved”. A short four months later, he had the eye surgery and the insomnia and the anxiety began.
The Applicant recognized that he was feeling better and was fully recovered as he stated in his statements made during his June 20, 2012 EUO, which occurred a mere 3 weeks after the surgery, where he again failed to tell anyone at the EUO that he still was having issues due to the MVA.
To further reinforce the lack of credibility of the Applicant, during his testimony, he was at best evasive as he could not consistently recount some of the basic events of the accident. He was unable to explain why different stories were told to each of the doctors. The Applicant couldn’t remember basic activities in any of the clinics he sought treatment, let alone the name of the clinic which he visited more than 20 times. The Applicant could not even tell us which of his friends interpreted for him while at the clinics; even though the doctors and their staff stated that they did not use an interpreter.
Both Dr. Mills and Dr. Aderibigbe agree that a relapse can occur in some instances; however, neither doctor offered any evidence as to how that happens in general or how or why it happened in this instant case.
In regards to Dr. Milad’s chronic pain assessment report, as exemplified during cross examination, the report contains numerous errors on its face which brings the very validity of the report into question.
It comes as no surprise that the assessment of the Insurer’s psychologist, Dr. Scapinello, disagreed with Dr. Mills’ findings, including methodologies to reach their respective diagnoses.
The Applicant did not tell either psychologist, Dr. Mills or Dr. Scapinello, of his eye injury or the resulting surgery.
Dr. Scapinello, who did do the interview of the Applicant, for the purposes of writing his assessment, dated January 5, 2014, also testified that his associate found an unwillingness of the Applicant to complete the questions during the assessments. Even when helped and prompted the Applicant refused to answer some test questions. Dr. Scapinello did have an interpreter present for the testing as well as the interview. The tests were inconsistent with Dr. Aderibigbe’s notes as the Applicant indicated he had suicidal thoughts and also liked to drink to excess, which were not listed in the CNRs.
Dr. Scapinello testified that he did not interpret the incomplete or inconsistent portions of the testing because the inconsistency was on the verge of invalidity.
Dr. Scapinello concluded that the Applicant may have had issues but the issues did not cross the severity line for a diagnosis. Throughout the test and the interview, Dr. Scapinello noted that the Applicant was not in pain during his short window of interaction, as the Applicant did not display the classic signs of guarding or wincing when moving. The interview lasted for about an hour and the testing lasted for about two consecutive hours prior to the interview.
Dr. Scapinello, in his testimony, questioned if the degree of headaches and insomnia was so severe, why didn’t Dr. Aderibigbe prescribe prescriptions to relieve either the depression or insomnia? Why was there not a referral to other professionals to help resolve these issues?
Dr. Scapinello noted that he did not think the Applicant was suffering from post-stress disorder (“PSD”), as he exhibited no evidence of arousal when speaking of the accident. There was no avoidance of the issue of the accident coupled with no evidence of struggling to recount the accident. The one and only time he exhibited all of these symptoms was when the Applicant was asked about events which happened in a refugee camp where he lived for a time before coming to Canada.
In my view, there is a credibility issue. The Applicant had omitted or consistently altered information to each of the medical health professionals, causing their respective assessment reports to be inaccurate or incomplete.
Neither of his doctors could explain the circumstances to which the reoccurrence of the Applicant’s symptoms could happen, after an extended period of several months where the Applicant admitted he was better and had no pain. The secondary causation or the reasons for a relapse of the Applicant’s symptoms were not explained or evidenced.
In review of the evidence, and for the above reasons, I find that the Applicant has not satisfied his burden of proof by evidencing that he did suffer from an injury or impairment as a result of this motor vehicle accident, which would remove him from within the MIG. As a result, I find that the Applicant suffered from a minor injury as within the meaning of the Schedule.
Therefore, based on the above determination of the MIG, I find that the Applicant failed to prove that the treatment plans and the cost of examination, as defined in questions 2 and 3 above, were necessary or reasonable in the circumstances.
Therefore, I also find that as a result of my determination from above, there is no entitlement to any interest owed to the Applicant.
In regards to the erroneous payment of $135.60, the Insurer admits that an erroneous cheque was issued to the Applicant and subsequent letters for repayment for same were requested without a response. The Applicant, during his testimony, did admit to receiving the cheque, but did not understand what the payment was for nor did he get the subsequent “request for repayment letters” from the Insurer, which were interpreted for him.
Therefore, I now find that an erroneous cheque in the amount of $135.60 was indeed issued by the Insurer and now I order that the Applicant repay $135.60 back to the Insurer, forthwith.
EXPENSES:
If the parties are unable to come to an agreement on the expenses of this Arbitration on their own, the parties shall request a separate Hearing for same.
July 17, 2015
Charles D. Matheson Date Arbitrator
Financial Services Commission of Ontario / Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 154
FSCO A13-013344
BETWEEN:
ABDI HASSAN
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Hassan suffered from a minor injury as within the Minor Injury Guidelines as within the meaning of the Schedule.
Mr. Hassan is not entitled to receive medical benefits for the treatment plans consisting of physiotherapy, chiropractic therapy and massage therapy, as submitted by East Sheppard Rehabilitation Clinic for the following:
a) $2,200.00 for OCF-18, dated December 21, 2012;
b) $1,257.00 for OCF-18, dated March 12, 2013;
c) $2,374.16 for OCF-18, dated April 26, 2013.
Mr. Hassan is not entitled to receive the payment for the psychological assessment by Dr. Mills of $2,000.00 for a psychological assessment, dated May 2, 2013, as submitted by Nor Med Assessment Services.
State Farm is entitled to receive the $135.60 from the Applicant, forthwith.
Mr. Hassan is not entitled to any interest as there are no overdue payments.
The issues of legal expenses shall be determined by a separate Hearing should the parties not come to an agreement of same after this award is issued.
July 17, 2015
Charles D. Matheson Date Arbitrator
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.