Amjad S. Mughal v. TD Home and Auto Insurance Company, 2015 ONFSCDRS 64

Financial Services Commission of Ontario

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

Neutral Citation: 2015 ONFSCDRS 64

FSCO A12-001509 and A13-001791

BETWEEN:

AMJAD S. MUGHAL Applicant

and

TD HOME AND AUTO INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Jessica Kowalski

Heard: May 12, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Arvin Gupta for Mr. Mughal Rachel Pano for TD Home and Auto Insurance Company

The applicant, Amjad Mughal, was involved in two motor vehicle accidents, one on August 12, 2010 and a second on May 31, 2011. He applied for and received statutory accident benefits from TD Home and Auto Insurance Company (“TD”), payable under the Schedule.¹ TD disputed Mr. Mughal’s entitlement to the benefits claimed. The parties were unable to resolve their disputes through mediation. Mr. Mughal applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O., c.I.8, as amended.

Issues

The August 12, 2010 accident:

1. Is Mr. Mughal entitled to income replacement benefits in the amount of $788.41 per week from August 19, 2010 to August 12, 2012?

2. Is Mr. Mughal liable to repay $42,402.58 in income replacement benefits paid to him by TD?

The May 31, 2011 accident:

1. Is Mr. Mughal entitled to a weekly non-earner benefit in the amount of $185.00 per week from November 29, 2011 to date and ongoing?

Result

1. Mr. Mughal is not entitled to income replacement benefits.

2. Mr. Mughal is not entitled to a non-earner benefit.

3. Mr. Mughal is not liable to repay the income benefits paid to him to date.

Parties’ positions

Mr. Mughal’s position

Mr. Mughal submits that, as a result of the August 12, 2010 accident (“August 2010 accident”), he:

• suffered headaches, neck and back pain, and pain in his right shoulder

• experienced dizziness, sleep difficulties and anxiety

• was unable to return to his pre-accident employment as an assessment co-ordinator because of pain

• was prescribed heavy painkillers, including Percocet, to treat his pain.

Mr. Mughal says that he enjoyed substantial improvement in his condition by the time of the accident on May 31, 2011 ("May 2011 accident"). He claims that he was well enough to work, although he had not returned to his pre-accident employment. He claims that the May 2011 accident caused a return and exacerbation of pain in his back, neck, head and shoulders, and caused pain in his right wrist, and all of which left him completely unable to carry on a normal life.

TD’s position

TD submits that:

• neither accident caused Mr. Mughal’s ongoing pain complaints, and that he has a long-standing and pre-existing history of the complaints he has attributed to both accidents. Furthermore, any impairments from medication are attributable to a brain tumor discovered approximately two months after the August 2010 accident

• Mr. Mughal did not report his employment income on his income tax returns

• Mr. Mughal materially misrepresented his claim for IRBs by misrepresenting his employment and by producing fraudulent pay stubs.

TD seeks repayment of IRBs paid to Mr. Mughal in the amount of $42,402.58.

EVIDENCE and ANALYSIS

For the reasons that follow, I find that Mr. Mughal failed to prove, on a balance of probabilities, that he was entitled to income replacement benefits (“IRBs”) or non-earner benefits (“NEBs”). I find that Mr. Mughal has an extensive pre-existing history of the same pain complaints, none of which I find were caused by the August 2010 or May 2011 accidents. I find that Mr. Mughal has failed to prove that the accidents aggravated pre-existing pain conditions or that they caused new impairments that left him substantially unable to perform the essential tasks of his pre-accident employment or completely unable to carry on a normal life. I find that Mr. Mughal’s use of prescription painkillers did not increase following the accidents, and that, contrary to his testimony, he was using prescription narcotics and painkillers that he attributed to these accidents well before even the August 2010 accident.

With respect to TD’s claim for repayment, I find that TD has failed to adduce sufficient evidence of misrepresentation or fraud on the part of Mr. Mughal and has therefore failed to meet its onus to prove a claim for repayment.

Income Replacement Benefits (“IRBs”)

For Mr. Mughal to be entitled to IRBs, he must prove, on a balance of probabilities, that he suffered a substantial inability to perform the essential tasks of his pre-accident employment.

I find that Mr. Mughal failed to prove that he was substantially unable to perform the essential tasks of his pre-accident employment as a result of the August 2010 accident.

In his application for accident benefits ("OCF-1")², Mr. Mughal declared he was employed at the time of the August 2010 accident as an assessment co-ordinator at Genesis Health Assessments Inc. (“Genesis”). He says he co-ordinated assessments for persons involved in accidents, including motor vehicle and workplace accidents. Beyond that, Mr. Mughal gave no description about the specific tasks involved in his job, and no evidence of what tasks he could not perform after that accident or why.

On August 30, 2010, Mr. Mughal submitted an employer’s confirmation form (“OCF-2") completed and signed by Deenadayal Reddy. According to Mr. Mughal, Mr. Reddy owns and operates Genesis, and is the director of Reddy’s Physio Rehab Inc. (“Reddy’s”), where Mr. Mughal sought treatment following the accidents. The OCF-2 declared that that Mr. Mughal was employed from May 5, 2010 to August 12, 2010 as an assessments co-ordinator. According to the OCF-2 and Mr. Mughal’s testimony, Mr. Mughal earned $1,331.80 during each of the four weeks immediately preceding the accident, worked between 40 and 50 hour per week and his injuries prevented him from returning to work.

After the August 2010 accident, Mr. Mughal complained of back pain, neck pain, right shoulder pain, anxiety and difficulty with sleep. As a result, he says he was prescribed heavy painkillers including Percocet and that the pain left him unable to work. He claims he did not use Percocet before the August 2010 accident.

On August 23, 2010, chiropractor Jimmy Feng of Reddy’s declared in a disability certificate ("OCF-3") that Mr. Mughal was substantially unable to perform the essential tasks of his employment for an estimated duration of nine to 12 weeks because of pain.

I find, however, that Mr. Mughal’s pain complaints long pre-date the August 2010 accident and that Mr. Mughal’s family doctors had prescribed Percocet and Tylenol #2 and #3 in the years and months before then.

The medical records in evidence date back to 2001. They disclose almost a decade of pain complaints before the August 2010 accident that mirror his post-accident complaints. According to the clinical notes and records of two of Mr. Mughal’s family doctors, Drs. Shaikh and Singh, Mr. Mughal had ongoing complaints of headaches, back, neck and shoulder pain, dizziness, anxiety and issues with sleep, among other things, for years before that accident.

According to Dr. Shaikh’s records, Mr. Mughal:

• complained of dizziness as far back as 2005

• was using extra strength Tylenol and narcotics (Tylenol #2 and Percocet) for pain

• was prescribed Percocet at least twice in the two months immediately before the August 2010 accident (on July 13 and August 5, 2010).

According to Dr. Singh’s records:

• Mr. Mughal was involved in an accident in April 2001, following which he complained of back pain, neck pain, headaches and an inability to sleep

• from 2001 through 2005, Mr. Mughal complained of neck pain back pain, headaches and dizziness.

From 2001 through 2009, Dr. Singh was recommending extra strength Tylenol for Mr. Mughal and prescribing Tylenol #2 and #3 for pain. On May 16, 2003, Dr. Singh wrote in his notes that Mr. Mughal had “chronic pain.”

In April 2008, Mr. Mughal was involved in a motor vehicle accident in Calgary. He saw Dr. Singh with the same complaints as with the August 2010 accident and the May 2011 accident: neck, back and shoulder pain, dizziness and headaches as well as knee pain. Dr. Singh prescribed Tylenol #3. On May 1, 2009, more than a year before the August 2010 accident, Dr. Singh noted that Mr. Mughal was complaining of ongoing neck pain, pain in both shoulders, and lower back pain. He wrote that Mr. Mughal “has been going through a lot of aches and pain.”

In addition to treatment for his various aches and pains, Mr. Mughal was also using Percocet following hemorrhoid surgery in December of 2009.

I find that Mr. Mughal’s complaints of sleep difficulty were also not related to the August 2010 accident. A report from the Malvern Sleep Clinic dated August 23, 2006 described chronic insomnia dating back to Mr. Mughal’s childhood, and Mr. Mughal conceded during his cross-examination that he had had difficulties with sleep dating back to his youth. Mr. Mughal complained of difficulty with sleep to Dr. Singh from at least 2001 onwards (as noted above, the period from which his records are in evidence) and to Dr. Shaikh beginning in 2006.

In the course of assessing Mr. Mughal’s various pain complaints, he was referred for an MRI, which disclosed a non-malignant tumor on his pituitary gland. He was prescribed medication to shrink the tumour before surgery could be considered.

After a visit to Dr. Singh the day after the first accident, Mr. Mughal’s OHIP summary discloses medical treatment until December 29, 2011 that deals almost exclusively with his brain tumour and ongoing pre-accident concerns with anxiety and fertility issues, and not with accident-related complaints. X-rays of his spine (cervical, thoracic and lumbar) showed only some degenerative disc narrowing and very mild and mild osteoarthritis.

I find that Mr. Mughal was also not prescribed any new medication for pain complaints after the August 2010 accident that differed from his pre-accident medication. He continued to be prescribed the same medications he was using before that accident to treat fertility and other concerns unrelated to the accident, and continued to use Lorazepam for pre-existing issues with anxiety. New medications that Mr. Mughal was prescribed after that accident related to treatment of the brain tumour. At the same time that Mr. Mughal testified he had difficulties with sleep, he also testified that his medication for the tumour caused sleepiness. To the extent that those medications caused drowsiness or sleepiness that might have interfered with Mr. Mughal’s ability to work, I find that they were not prescribed to treat accident-related concerns and therefore that any related inability to work was not accident-related.

Mr. Mughal testified that by 2011 he was able to return to work, but that he did not return to his pre-accident employment at Genesis because his position had been filled. Instead, he testified that he was arranging commercial cleaning contracts (for plazas and commercial premises) for which he earned commission. He did this work both before and after the May 2011 accident.

He reported income to the Canada Revenue Agency ("CRA") before and after both accidents as follows:

2009: other income of $4,620.00

2010: gross business income of $5,760.00 / net business income of $5,350

2011: gross business income of $7,200.00 / net business income of $6,320.00

2012: gross business income of $9,120.00 / net business income of $7,506.00

To the extent that he says he did not report his income from his employment at Reddy’s because he was paid in cash and never received a T4 slip, that income is not subject to an IRB calculation by operation of section 64.1 (now 4(5)) of the Schedule, which requires income to be reported to form part of the calculation of an income replacement benefit.

Mr. Mughal testified that, because he was paid in cash and because he never received a T4 slip, he reported his employment income as “business income”. I find this improbable. First of all, Mr. Mughal continued to report business income in each of the years after the first accident, in moderately increasing amounts. His evidence was that he was arranging the cleaning contracts, but that he never returned to Genesis. The income reported in 2010 as business income is different than what Mr. Mughal says he earned from his employment at Genesis. On the evidence before me, I find it more likely than not that the 2010 income was income from the cleaning business and not from his employment at Genesis.

In summary, apart from the discovery of the brain tumour, I find nothing in Mr. Mughal’s post-August 2010 accident history that differs from his pre-accident history of complaints, or that would prevent him from working because of that accident. I am not persuaded that the August 2010 accident aggravated any of Mr. Mughal’s existing conditions, and therefore find that Mr. Mughal was not impaired as a result of that accident or unable to complete the essential tasks of his pre-accident employment because of that accident.

Non-earner benefits (“NEBs”)

An insurer is required to pay a NEB to an insured person who sustains an impairment as a result of an accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an IRB.³

A person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.⁴ There is a deductible period of 26 weeks after an accident during which an NEB is not payable.

As a result of the May 2011 accident, Mr. Mughal says he experienced pain to his wrists, right shoulder, neck and back, as well as headaches and sleep difficulty. He testified that, although his health had improved about 70% after the August 2010 accident, the May 2011 accident caused decline.

I find no basis whatsoever on which to find that Mr. Mughal suffered a complete inability to carry on a normal life as a result of the May 2011 accident.

First, Mr. Mughal’s own chiropractor at Reddy’s, Dr. Frederick Levenston, completed a disability certificate on October 4, 2011 in which he certified that Mr. Mughal did not suffer a complete inability to carry on a normal life after the May 2011 accident. There is no disability certificate that says otherwise.

Second, Mr. Mughal gave very limited evidence about his activities before and after the May 2011 accident. No one other than Mr. Mughal testified about his life before and after that accident. No family members or friends, including Mr. Mughal’s wife⁵, gave evidence on his behalf.

On Mr. Mughal’s evidence, I find that, before the May 2011 accident, Mr. Mughal:

• was ready to return to his pre-accident employment or other work

• continued to operate a business in which he set up commercial cleaning contracts and for which he was paid commission

• did housekeeping and groceries

• occasionally played squash and went to the gym.

After the May 2011 accident, I find that Mr. Mughal:

• continued to operate his business setting up cleaning contracts

• returned to doing housekeeping and groceries

• continued to occasionally play squash and go to the gym.

By his own testimony, I find that Mr. Mughal did not consider his pain to be significant.

He testified during cross-examination that he sometimes had pain after playing squash or going to the gym, but that his pain was fleeting. By the time of the hearing, Mr. Mughal testified that he was “now o.k.” and in “excellent health.” He testified that his headaches were not a big deal, that they were possibly associated with years of alcohol use, or to his sleep difficulties, all of which pre-date both the August 2010 accident and the May 2011 accident.

The medical evidence also does not support a complete inability to carry on a normal life. Mr. Mughal gave conflicting reports to assessors regarding his alleged post-accident impairments. He told Dr. Franks, a physiatrist who examined him for entitlement to NEBs in November 2011⁶ that his wife was helping him with dressing or showering and that he could no longer cook or clean. Dr. Franks concluded, meanwhile, that Mr. Mughal’s complaints of extreme pain were not supported and were inconsistent with his behaviour during the assessment.⁷

Although Mr. Mughal testified that before the August 2010 accident he helped his wife with cleaning and groceries, he told another assessor that that he did no such things. On May 18, 2010, orthopaedic surgeon Dr. Tountas authored a report following his examination of Mr. Mughal in relation to his 2008 accident in Calgary. According to Dr. Tountas’ report, Mr. Mughal told him that at that time (approximately three months before the August 2010 accident) he was unable to help his wife in the house other than with very light tasks and that he was “stressed that his wife stopped working because he cannot do anything at home and she has to do everything for him.”

Mr. Mughal testified that, after the August 2010 accident, he did not return to any of his housekeeping tasks because of pain in his neck, shoulder, back and right knee. On March 21, 2011, however, he told orthopaedic surgeon Dr. Esmat Dessouki (who conducted an insurer orthopaedic examination) that he was responsible for housekeeping tasks that included laundry, garbage removal, vacuuming, mopping, sweeping, washing dishes, cleaning the bathroom and changing the bed linens. Mr. Mughal also told Dr. Dessouki that he did the groceries, shopped alone and prepared the meals.

I find that Mr. Mughal has failed to adduce evidence of any impact of the May 2011 accident on his pre-accident activities. The evidence that he has presented belies any claim of an inability to carry on a normal life following that accident. Mr. Mughal has failed to show any evidence of a decline in his daily activities following that accident. Mr. Mughal continued his cleaning business after both accidents. He has failed to prove that the accident had impaired his day-to-day function or that it caused any decline in activity. With the exception of the brain tumour, there is no evidence in Mr. Mughal’s medical records that his complaints following the May 2011 accident were any different from his complaints before that accident (or before even the August 2010 accident). I therefore find that Mr. Mughal is not entitled to NEBs.

Material Misrepresentation and Repayment

Having raised the issue of repayment pursuant to s.52 of the Schedule, the onus shifts to TD to prove that Mr. Mughal wilfully misrepresented his income and employment situation or committed a fraud in order to claim IRBs.

For the reasons that follow, I find that TD has failed to meet its burden to prove material misrepresentation. As noted above, TD has failed to adduce sufficient positive evidence of material misrepresentation or fraud. TD has raised a number of questions regarding Mr. Mughal’s pre-accident employment and income, but has adduced insufficient evidence beyond speculation that could contradict Mr. Mughal’s evidence.

In certain circumstances, the Schedule permits an insurer to seek repayment of benefits it has paid to an insured person. Section 52 (now 53) states that:

52(1) Subject to subsection (3), a person is liable to repay to the insurer,

(a) any benefit described in this Regulation that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud;

Subsection (3) states that if the insurer does not give the insured person notice within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount, unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

TD submits that:

• Mr. Mughal wilfully misrepresented his income

• There is doubt that Mr. Mughal was employed at Genesis at the time of or before the accident

• Mr. Mughal created the pay stubs that he submitted to TD in support of his claim

After receipt of Mr. Mughal’s OCF-1⁸ dated August 18, 2010, TD began paying IRBs in the amount of $788.41 per week starting August 19, 2010. In total, TD submits that it paid $42,402.58 in IRBs.

Mr. Mughal’s OCF-2⁹ is dated August 30, 2010. It purports to be completed and signed by Genesis’ director, Deenadayal Reddy. It states that Mr. Mughal was employed from May 5, 2010 to August 12, 2010 as an assessments co-ordinator at Genesis and earned $1,331.80 in each of the four weeks immediately preceding the accident.

No employment file

As part of its response to Mr. Mughal’s application for arbitration, TD requested a copy of Mr. Mughal’s complete employment file. TD made unsuccessful attempts thereafter for production of the employment file, with the result that it had to bring a motion for an order that the employer, Genesis, and/or Mr. Reddy, its director, produce the file. TD delivered a notice of motion on January 23, 2014 for a motion returnable February 7, 2014.

Two days before the return of the motion (by letter dated February 5, 2014), Mr. Reddy wrote the following to counsel for TD:

This is to confirm that I have received your Motion Record, and I am writing to confirm that I have conducted a review of my records, including all Employment and Pay role records, and I do not have any documents pertaining to Mr. Mughal’s employment at Genesis Health Assessments Inc. [sic]

Mr. Reddy did not attend the motion. By order dated February 10, 2014, Arbitrator Muzzi ordered that Mr. Reddy, operating as Genesis and Reddy’s, produce the complete employment file pertaining to Mr. Mughal within 30 days.

Following receipt of that order, Mr. Reddy wrote to Arbitrator Muzzi (by letter dated February 27, 2014). He wrote that he had spoken with counsel for TD by phone during the summer of 2013, at which time he claims he indicated that he had given all the documents in his possession to Mr. Mughal’s lawyer. Mr. Reddy included a copy of the February 5, 2014 letter.

It appears that Mr. Reddy did not at any point deny that Mr. Mughal worked for him or suggest that he did not. If Mr. Reddy said anything more to TD, it was not in evidence. There is no evidence that Genesis was so large an organization that Mr. Reddy would not know whether Mr. Mughal worked there. The cash payments suggest that there would not be an employment file, but both are insufficient to find that Mr. Mughal did not, in fact, work there.

The pay stubs

On September 3, 2010, TD’s independent adjuster, Crawford (Canada) Inc. (“Crawford”), received what purport to be four pay stubs representing Mr. Mughal’s income for each of the four weeks before the accident. The pay stubs are date-stamped as having been received by Crawford on September 3, 2010.

Mr. Mughal testified that he never received pay stubs from Genesis, that he was paid in cash or personal cheques, and never received a T4 slip. When shown the pay stubs during his cross-examination, Mr. Mughal denied that he prepared them. The pay stubs likely came either from Mr. Mughal or Mr. Reddy, or both working in concert. However, I have insufficient evidence to make any finding about who sent them to Crawford, or who created them, whether they were prepared by Mr. Mughal, Mr. Reddy, both or neither.

The pay stubs contain discrepancies. In two of them, Genesis’ business name appears in upper case font and in the other two it is typed in lower case.¹⁰ In one July pay stub, there are two periods that follow the date and in the other, there is only one period.¹¹ The pay stubs also show vacation pay, and source deductions for EI, CPP and “Tax”, which are unusual if Mr. Mughal was paid in cash.

TD submits that Mr. Mughal created the pay stubs and himself provided them to Crawford. However, TD gave no evidence how Crawford came into possession of the pay stubs. There is no covering letter, document, or adjuster’s note documenting the sender as Mr. Mughal or Mr. Reddy or Genesis. According to counsel for TD, Crawford sent a letter to Mr. Mughal dated August 17, 2010, in which it advised Mr. Mughal that if he was applying for an IRB, his employer would be required to complete an OCF-2 and that Mr. Mughal might be required to submit other proof of income. There is no other evidence regarding the pay stubs, how they came into Crawford’s possession or from whom, and whether or when Crawford specifically requested pay stubs as proof of income on behalf of TD.

TD also argues that Mr. Mughal lied about his start date of May 5, 2010 at Genesis. TD relies on Dr. Tountas’ report following his May 11, 2010 examination of Mr. Mughal (in relation to Mr. Mughal’s 2008 accident in Calgary) where Dr. Tountas wrote that Mr. Mughal, who had been working as a cement finisher at the time of the Calgary accident, reported that he had not been able to find work following that accident, notwithstanding that the assessment took place six days after Mr. Mughal allegedly started training at Genesis.

I find that the best person who could speak to the authenticity or origin of the pay stubs – as well as to Mr. Mughal’s employment and the OCF-2 – was Mr. Reddy himself. He was not called to give evidence and I heard no reason why.

The two letters from Mr. Reddy (dated February 5 and 27, 2014) do not deny that Mr. Mughal worked at Genesis. Mr. Reddy refers to Mr. Mughal’s “employment” at Genesis. He does not say that Mr. Mughal did not work there. He does not deny that Mr. Mughal was paid. In the circumstances, I cannot find that the non-existence of a file for paid-in-cash work means that Mr. Mughal never worked at Genesis as he says.

There was also no evidence before me regarding Mr. Reddy’s conversations with counsel for TD regarding the employment file. TD’s adjuster Crawford had the pay stubs since September 3, 2010. It had ample time to consider their irregularities. If TD felt the pay stubs were peculiar, there is no evidence that it followed up with either Mr. Mughal or the employer. It was not until January 20, 2014, approximately five months after it received Mr. Mughal’s income tax returns and more than three years after it received the pay stubs, that TD gave Mr. Mughal notice that his IRB “may be in overpayment.”¹² TD gave no evidence that it put the issue of the pay stubs to Mr. Reddy for his comment. TD gave no evidence about what, if anything, Mr. Reddy had to say regarding Mr. Mughal’s employment, his hours worked, or what and how he was paid. As set out above, TD did not call him to give evidence about the pay stubs, the OCF-2, or about Mr. Mughal’s employment.

I have no evidence to find that Mr. Reddy did not sign or prepare the OCF-2 and there was nothing before me to contradict Mr. Mughal’s testimony that he asked Mr. Reddy to complete the form.

I am not persuaded that Mr. Mughal’s comment to Dr. Tountas on May 11, 2010 as part of his claim relating to the Calgary accident is sufficient evidence to support a finding that Mr. Mughal intended to mislead TD.

TD also argues that Mr. Mughal under-reported his income to the CRA and therefore his landlord in order to preserve his wife’s rent subsidy in rent-geared-to-income housing. Whatever motivated Mr. Mughal’s alleged misrepresentation of his income, whether it was done in an effort to preserve his wife’s rent subsidy, to deceive the CRA, or to deceive TD aside, I am unable to make findings on what I find to be mere speculation.

In the same way that TD submits that Mr. Mughal failed to prove his claim for NEBs in part because he called no witness to give evidence regarding his activities before compared with after the May 2011 accident, TD has failed to adduce critical evidence to challenge Mr. Mughal’s assertions regarding his employment. I have insufficient evidence to find that Mr. Mughal prepared the pay stubs, that Mr. Reddy prepared the pay stubs, or that they did so in concert in order to deceive TD. For the reasons set out above, I find that TD has failed to adduce positive, sufficient evidence that, on balance of probabilities, Mr. Mughal materially misrepresented his employment or income to TD. The claim for repayment must therefore fail.

EXPENSES

The parties made no submissions with respect to expenses. In the event that they are unable to resolve the issue of expenses, they may bring the issue before me in accordance with rule 79 of the Dispute Resolution Practice Code.

March 26, 2015

Jessica Kowalski Date Arbitrator

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

Neutral Citation: 2015 ONFSCDRS 64

FSCO A12-001509

BETWEEN:

AMJAD S. MUGHAL Applicant

and

TD HOME AND AUTO 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:

1. The application for arbitration is dismissed.

2. The claim by TD Home and Auto Insurance Company for repayment of income replacement benefits is dismissed.

March 26, 2015

Jessica Kowalski Date Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended; The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Dated August 28, 2010.
3. 3ss.12(1) of the Schedule.
4. 4ss.3(8) of the Schedule.
5. 5Although he referred to her as his wife, Mr. Mughal emphasized that he and Adibak Azi had only performed a cultural marriage ceremony but were not legally married. They lived together “on and off” and separated frequently. For ease of reference, Ms. Azi is referred to as Mr. Mughal’s wife, in the same way Mr. Mughal referred to her.
6. 6Dr. Franks’ report is dated November 28, 2011.
7. 7Dr. Franks opined that “it was obvious there was a significant discrepancy between [Mr. Mughal’s] interpretation of pain symptoms and pain behaviour or lack of pain behaviour.”
8. 8The application for accident benefits.
9. 9The Employer’s Confirmation form.
10. 10“GENESIS HEALTH ASSESSMENTS INC.” and “Genesis Health Assessments Inc.”
11. 11“July 2010..” and “July 2010.”
12. 12According to the date stamp, Mr. Mughal’s IRBs for 2009 through 2012 were faxed to TD on August 20, 2013. TD’s notice regarding repayment is dated January 14, 2014.