Idin Golizadeh v. Motor Vehicle Accident Claims Fund, 2015 ONFSCDRS 70

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

Neutral Citation: 2015 ONFSCDRS 70

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BETWEEN:

IDIN GOLIZADEH

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

REASONS FOR DECISION

Before: Arbitrator Kenneth J. Conroy

Heard: In person at ADR Chambers on December 1, 2 & 3, 2014 and by written submissions completed on January 12 & 22, 2015 and February 5, 2015

Appearances: Mr. Steven Sieger for Mr. Idin Golizadeh

Ms. Marie Sydney for the Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Mr. Idin Golizadeh, claims he was injured in a motor vehicle accident on December 2, 2012 and sought accident benefits from the Motor Vehicle Accident Claims Fund (“MVACF”) payable under the Schedule.¹ The Parties were unable to resolve their disputes through mediation, and Mr. Golizadeh, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.l.8, as amended.

The issues in this Hearing are:

Did an accident occur?
Is the Applicant entitled to an Income Replacement Benefit?
Do the Applicant’s injuries fall within the Minor Injury Guideline?
Is the Applicant entitled to Medical/Rehabilitation Benefits?
Is the Applicant entitled to Interest on overdue amounts claimed?
Is the Applicant entitled to a Special Award on the basis that the MVACF unreasonably withheld or delayed payment of a benefit?

Result:

I have concluded that the throwing of the stone or piece of concrete and punching and kicking did not constitute an accident as defined in the Schedule. I have also concluded that the Applicant’s injuries to his neck, left leg and knee, left hip, and lower back area were the result of an accident involving the use of an automobile.
I have concluded that there is insufficient evidence to support the Applicant’s position that he was in fact employed at the time of the accident and I do not find his evidence credible with respect to his employment or self-employed status. As a result, I do not find that the Applicant is entitled to Income Replacement Benefits.
I have concluded that the injuries reported, as a result of the Applicant’s contact with the vehicle, fall within the Minor Injuries Guideline as identified in the Schedule.
The Applicant’s entitlement to Medical/Rehabilitation Benefits shall be restricted to the limits of the Minor Injury Guideline.
I do not find that the Applicant is entitled to receive Interest as a result of the above findings.
I do not find that the MVACF unreasonably withheld or delayed payment given the above findings.

EVIDENCE AND ANALYSIS:

The Applicant, Mr. Idin Golizadeh, claims that he was injured in a motor vehicle accident in the early morning hours of December 2, 2012.

Mr. Golizadeh’s evidence is that following a period of time at a local licensed establishment, where he met and struck up a conversation with a female patron, he then left the premises and proceeded out to the street where he waited beside the vehicle of a friend. While waiting for his friend to arrive, a vehicle pulled up and stopped beside him. The evidence would suggest that he first encountered the driver and passenger inside the establishment.

The vehicle remained running and the driver, while holding onto the steering wheel with one hand, threw a rock or piece of concrete at the Applicant which struck him in the eye, causing a significant injury to him in the area of his right eye and right side of his face. The Applicant further gave viva voce evidence that, despite efforts to retreat from the driver, the driver and his male passenger exited their vehicle, and as best he could recall, dealt him numerous punches to the head and possibly kicks to his body.

The Applicant gave evidence that, as the assailants got back into their vehicle and proceeded to drive away, his left thigh and hip and leg areas and left foot were struck by the vehicle, forcing him to fall onto the hood of a parked vehicle. He was not certain if he fell to the ground as a result of the impact.

Shortly thereafter, the Applicant’s friend arrived and transported him to the emergency room at Sunnybrook Hospital. The hospital records indicate that only the eye was addressed in the report. He was dissatisfied with the care and thence proceeded with his friend to North York General Hospital. He was then referred to an eye specialist at St. Michael’s Hospital. All of the medical attendances occurred on December 2, 2012.

The triage report of St. Michael’s Hospital, introduced into evidence at the Hearing, indicated that Mr. Golizadeh was “assaulted last night, rock thrown to face, punched and kicked, ran over by car on left leg......pt was intoxicated at the time.....continues to have nausea and dizziness”. The facts disclosed at the Hearing from the various hospital records and notes entered at the time of the Hearing of Dr. Keyvan Pazuki (who was not called as a witness by the Applicant) are not entirely consistent with respect to details of the assault and alleged accident of December 2, 2012. In fact, the incident, as reported on Dr. Pazuki’s notes, suggests that he “was assaulted/ran over by car; hit by drunk people”.

The definition of accident, as set out in the Schedule, is comprised of two distinct components:

There must be an accident involving the use or operation of an automobile; and
The use or operation of an automobile must directly cause an “impairment”.²

The Applicant bears the burden of proof, on the balance of probabilities, to establish by credible evidence that an accident occurred in accordance with the above definition.³

The facts suggest that there were two very distinct and identifiable incidents, the first being the

throwing of a stone or a piece of concrete at the Applicant from the window of the car by the driver of a vehicle. Various explanations and scenarios were offered by the Applicant’s counsel that would place this act within or outside of the definition of accident involving a motor vehicle. The pertinent legislation is section 3(1) of the Schedule previously cited. In that legislation, accident is defined as follows:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

Although there is no doubt that the injuries suffered by the Applicant to his eye, face, and surrounding area were significant and severe, those injuries were not the result of an accident as defined and for which he would be entitled to accident benefits. This incident was an intervening assault and nothing more.

The second incident, namely the contact with the moving vehicle while it was leaving the scene following the physical assault, would be considered an accident for the purpose of accident benefits. The evidence of the Applicant that he was struck by the vehicle was not corroborated. The Applicant’s evidence is that he sustained injuries to his neck, left leg and knee, left hip, and lower back area as a result of the impact. Although such injuries could have been caused by the physical assault and altercation involving punching and kicking, I am prepared to accept that Mr. Golizadeh did come into contact with his assailants’ vehicle as it retreated from the scene, resulting in soft tissue injuries to his lower extremities.

In determining whether an accident occurred, I have considered the Court of Appeal’s

decision in Downer v. The Personal.⁴ The facts are that the plaintiff was assaulted by several assailants while positioned in his vehicle at a gas station. The Court unanimously stated that:

Under the modified causation test…, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.⁵

The Court of Appeal in the Martin⁶ case dealt with assault as an intervening act and stated that an assault constituted an intervening act that could not be said to be part of the “ordinary course of things” associated with the use or operation of the plaintiff’s vehicle, and as well found that part of the injuries only could be attributable to the use of a vehicle.⁷

Prior to the accident, the Applicant indicated that he worked as an auto detailer at Spotless and described the high end cars and services provided at the employer’s place of business. He claimed he was no longer able to work in that capacity following the accident of December 2, 2012. He claims that, as a result of the accident, he suffered multiple impairments and was treated by his family physician, a physiotherapy clinic, and Dr. Rod, who represented himself to be a chronic pain specialist.

Dr. Rod, although not called to give evidence and be cross-examined, represented in his report

that the Applicant suffered from numerous physical injuries that were manifested in limitations on daily living and activities of the Applicant. The Applicant would have been well served by Dr. Rod’s presence in order to have him expand on the information contained in his report. Apart from the report, the only viva voce evidence for the Applicant was that of the Applicant himself. I found the evidence of Dr. Saplys and Dr. Derry for the Respondent to be most persuasive and supportive of the position advanced by the Respondent. In addition, video surveillance produced by the Respondent at the Hearing would suggest that the injuries resulting from the contact with the vehicle are not in fact to the degree claimed by the Applicant and do not render him substantially unable to perform the essential tasks of his alleged pre-accident employment as a car detailer.

Subsequent to the accident, the Applicant did report the assault and accident to the police and gave evidence that charges were brought as a result of the assault and alleged accident. The Motor Vehicle Accident Report did not provide particulars of how the alleged accident occurred.

The Applicant was seen by Dr. Saplys, an orthopedic surgeon, who in viva voce evidence stated that the Applicant’s leg, neck, and back strain were temporary, and he concluded that those specific injuries did not render the Applicant substantially unable to perform the essential tasks of his alleged pre-accident employment as a car detailer. The Applicant was also seen by Dr. Derry, a psychologist, who concluded that the Applicant’s self-reported depression did not result in a substantial inability to perform his pre-accident employment tasks. In my view, the conclusions of Dr. Saplys and Dr. Derry were correct. In addition, I have determined that the Applicant’s injuries, namely to his neck, left leg and knee, left hip, and lower back area, are minor injuries and fall within the definition in Section 2 of the Minor Injury Guideline as set out in the Schedule.

With respect to Income Replacement Benefits, there was much consideration given by me to the issue of the Applicant’s employment or self-employment, as identified in his tax return. Although an Employer’s Confirmation Form was provided to the Respondent, the employer was not present to give evidence which could have supported the Applicant’s evidence that his employment in fact existed and to expand on why no employment records were put into evidence. In addition, the Applicant’s only employment and income verification were hand written figures on scrap paper attached to the Applicant’s submissions, a letter from his alleged employer, Mr. Mowlai, and his self-employed income reported in his tax return.

Given the evidence of the Respondent’s investigator that would suggest that the business was sold prior to the date of the accident by the Applicant’s employer, the fact that the shop was found to be closed, and the lack of employment records, I find the Applicant’s evidence to lack credibility and I conclude that he was not working at the time of the accident as he stated in evidence.

The Applicant failed to satisfy me in a credible manner that he met the test for receipt of Income Replacement Benefits as defined in section 5(1) of the Schedule. As such, it was not reasonably possible to conclude that the Applicant fell into any eligibility categories of section 5(1) of the Schedule.

The Respondent paid significant Income Replacement Benefits to the Applicant. It is incumbent upon the Respondent to put forth a claim for repayment if it so chooses pursuant to section 52 of the Schedule and to take such further proceedings as are required.

EXPENSES:

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

April 10, 2015

Kenneth J. Conroy Arbitrator

Date