Idin Golizadeh v. Motor Vehicle Accident Claims Fund, 2017 ONFSCDRS 118

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 118

Appeal P15-00030

OFFICE OF THE DIRECTOR OF ARBITRATIONS

IDIN GOLIZADEH

Appellant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Respondent

BEFORE:

David Evans

REPRESENTATIVES:

Steven Sieger for Mr. Idin Golizadeh

Andrew Choi for the Motor Vehicle Accident Claims Fund

HEARING DATE:

December 6, 2016

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

1. The appeal of the Arbitrator’s order dated April 10, 2015, is dismissed, and the order is affirmed, other than with respect to arbitration expenses. In that regard, paragraph 6 thereof is rescinded and replaced with the following:

2. 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.

3. If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 20, 2017

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Golizadeh appeals Arbitrator Conroy’s decision of April 12, 2015, in which he found that Mr. Golizadeh was only involved in an “accident” with respect to the soft tissue injuries he sustained in an incident outside a bar, that the Minor Injury Guideline (MIG) applies to his claims for medical benefits, and that he is not entitled to his claims for income replacement benefits (IRBs) or further medical benefits.

However, the Arbitrator followed established Court of Appeal case law in determining what injuries were related to an “accident,” and he had evidence to support his other findings.

II. BACKGROUND

Mr. Idin Golizadeh claimed accident benefits due to impairments suffered in an incident on December 2, 2012. For instance, he claimed IRBs on the basis that he could no longer work as an automobile detailer due to the injuries arising from the incident.

The first issue was whether the whole incident or only part of it was an “accident.” An incident, to be an “accident” for the purposes of claiming accident benefits under the 2010 SABS, has to involve the use or operation of a motor vehicle that directly causes an impairment.¹ In this case, while Mr. Golizadeh was standing outside a bar, a vehicle stopped beside him. Its driver first threw a rock or piece of concrete at Mr. Golizadeh’s face, causing significant eye injury. Then, the driver and his passenger left their vehicle, punched and kicked him, and retreated. Finally, the retreating vehicle hit him.

The Arbitrator relied on the Court of Appeal’s decisions in Downer v. The Personal Insurance Company, 2012 ONCA 302, and Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19, to find these were two separate incidents, only one of which was an accident. The first – the throwing of an object and subsequent assault that left Mr. Golizadeh blind in one eye – was an intervening event and accordingly not an accident. Only the second – the contact with the departing vehicle that the Arbitrator found caused soft tissue injuries to Mr. Golizadeh’s neck, left leg and knee, left hip, and lower back – was an “accident.”

Regarding the IRB claim, the Arbitrator found that Mr. Golizadeh had not proven he was working as an auto detailer prior to the accident. The Arbitrator noted the absence at the hearing of the alleged employer, Mr. Mowlai, who “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.”² The Arbitrator noted that the 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. The lack of employment records, along with information obtained by the Fund’s investigator suggesting that the business was sold prior to the date of the accident by Mr. Mowlai, led the Arbitrator to find that Mr. Golizadeh’s evidence lacked credibility that he was working at the time of the accident.³

As discussed below, some of the investigation was carried out the day before the hearing started.

Turning to the medical evidence, the Arbitrator found that Mr. Golizadeh was not unable to perform his pre-accident employment. The Arbitrator noted Mr. Golizadeh’s 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.” However, the only viva voce evidence in this regard was that of Mr. Golizadeh. While Dr. Rod’s report was in evidence, the Arbitrator noted that Mr. Golizadeh “would have been well served by Dr. Rod’s presence in order to have him expand on the information contained in his report.”⁴

The Arbitrator preferred the evidence of the Fund’s experts, Dr. Saplys, an orthopedic surgeon, and Dr. Derry, a psychologist. They testified that neither Mr. Golizadeh’s soft tissue injuries nor his self-reported depression resulted in a substantial inability to perform his pre-accident employment tasks.

The Arbitrator did not specifically deal with Mr. Golizadeh’s medical/rehabilitation claims in his reasons other than as follows: “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.” Accordingly, in the results portion of his decision, the Arbitrator noted in para. 3 that the MIG applies and in para. 4 that Mr. Golizadeh’s “entitlement to Medical/Rehabilitation Benefits shall be restricted to the limits of the Minor Injury Guideline.” The order itself simply states: “The Applicant’s claim for Medical Benefits as claimed in the Application for Arbitration is denied.”

Given these findings regarding the IRBs and the MIG, the Arbitrator found that Mr. Golizadeh was not entitled to interest and that the Fund did not unreasonably withhold or delay payment, so no special award was payable.

Finally, while the Arbitrator stated in the body of his reasons that, if the parties were unable to resolve the issue of expenses, they could make an appointment for their determination before him, his order states: “The Respondent is entitled to its appeal [sic] expenses.”

III. ANALYSIS

With respect to the primary issue of whether Mr. Golizadeh was in an accident, I find that the Arbitrator had evidence before him to support his conclusion that the eye injury and its aftereffects were not caused by an accident. Accordingly, only the treatment and impairment issues arising out of the soft tissue injuries to his neck, left leg and knee, left hip and lower back area could be considered for accident benefits. This decision conforms with the Court of Appeal decisions in Downer and Martin, which involved similar facts.

As for the Arbitrator’s conclusion that he was not persuaded Mr. Golizadeh even worked at the detailing shop before the accident, these rested on the information obtained from the investigator and on his weighing of the documentary evidence supporting the claim.

On the first point, the Arbitrator found that the investigation affected Mr. Golizadeh’s credibility, 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.”

Regarding the investigative evidence, Mr. Golizadeh sought at the arbitration hearing to have it all excluded because the instruction letter from counsel was not produced. However, the Arbitrator correctly ruled that this letter was privileged and was not required to be produced. Therefore, there was no reason to exclude the rest of the surveillance evidence.

On appeal, Mr. Golizadeh argues that all the investigative evidence should now be excluded, given that some of it was obtained the day before the hearing. He submits that it was too late to give the necessary 30-day pre-hearing notice required in Rule 40.1, and further he was not even provided with notice but discovered it himself while cross-examining the investigator.

Unfortunately, Mr. Golizadeh did not make those points to the Arbitrator, so there is no ruling to be appealed from.

I note that there was a breach of Rule 40.1(b) of the Dispute Resolution Practice Code. It requires a party intending to rely on any portion of surveillance evidence to provide at least 30 days before the hearing “copies of all videotapes, photographs, investigative reports, notes and summaries taken or prepared in connection with the issues in dispute.” The Fund should have advised right at the beginning of the arbitration hearing that its investigator had conducted further investigation, even if that risked the exclusion of all of it due to late notice.

However, even if the surveillance evidence were excluded, the Arbitrator still had the second point to support his conclusion about the pre-accident work, namely his finding that the documentary evidence was insufficient to find that Mr. Golizadeh was working at the shop before the accident, based on his weighing of the evidence. It is not my role to weigh the evidence, and there was some evidence to support his conclusion. Accordingly, I have no basis to intervene.

Turning to the application of the MIG, while the Arbitrator did not specifically set out why he concluded the MIG cap applied, the medical evidence supported that conclusion. The SABS-2010 in s. 3(1) defines a “minor injury” as meaning one or more of a sprain, strain, whiplash-associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury–in other words, a soft tissue injury. A cap of $3,500 for med/rehab benefits set in s. 18(1) applies to an insured who sustains “an impairment that is predominantly a minor injury,” with an exception in s. 18(2) for those with pre-existing conditions in certain circumstances. The Arbitrator found that Mr. Golizadeh suffered only soft tissue injuries in the accident, and there was no evidence of a pre-existing condition. While Mr. Golizadeh refers to case law suggesting chronic pain means an impairment is no longer predominantly a minor injury, the Arbitrator did not accept that Mr. Golizadeh suffered chronic pain as a result of the accident. In any event, regarding Mr. Golizadeh’s self-reported depression and pain, both Dr. Derry and Dr. Saplys provided viva voce evidence that these were “clinically associated sequelae” of the physical injuries sustained in the accident. Accordingly, there was evidence to support the Arbitrator’s conclusion that the MIG applied, and it was up to the Arbitrator to determine the weight to be given to the respective experts’ evidence.

Mr. Golizadeh submits that the Arbitrator erred in not specifically dealing with his medical benefits claim. However, the Fund submits that, since it paid an initial $2200 for a treatment plan, and then another $2,320.49 for prescription medications, it already paid more than the $3500 cap, so there was nothing further for the Arbitrator to consider.⁵ I find that, while it would have been preferable for the Arbitrator to specifically deal with the claim, there is no error, given the circumstances showing that nothing was owing in light of the MIG cap.

The Arbitrator’s findings with respect to the IRBs and the MIG also support his finding that no interest is owing and no special award is payable, since no benefits were payable.

The only error I find is that the Arbitrator’s expenses order contradicts his reasons, as noted above. Accordingly, the order will be amended to show that both the entitlement to and the quantum of arbitration expenses remain to be determined.

Otherwise, the appeal is dismissed and the order is affirmed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 20, 2017

David Evans Director’s Delegate

Date

Footnotes

1. 1As defined in s. 3(1) of The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Mr. Mowlai had not been found at the time of the hearing; he has since been located.
3. 3The Arbitrator also mentioned “the fact that the shop was found to be closed,” but both sides agreed that the shop had closed shortly after the accident, making that fact irrelevant.
4. 4Dr. Rod was ill at the time of the hearing.
5. 5In passing, I note that Mr. Golizadeh submits that the mere fact the Fund paid more than the cap means that the cap does not apply. He provided no case law to support that proposition, and I find it without merit because it would discourage insurers from taking a reasonable approach to making payments without fear that such payments would automatically increase their liability.