Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 270
FSCO A16-001336
BETWEEN:
IBRAHIM BARBS YAKUBU
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION
Before:
Arbitrator Paulina Gueller
Heard:
In person at ADR Chambers on June 21, July 24-27 and August 2, 2017
Appearances:
Mr. Ibrahim Barbs Yakubu participated
Ms. Savannah Chorney and Ms. Melissa MacLeod, legal counsel for the Applicant
Mr. Darrell March, legal counsel for the Insurer
Issues:
The Applicant, Mr. Ibrahim Barbs Yakubu, was injured in a motor vehicle accident on May 21, 2015 and sought accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule1. The parties were unable to resolve their disputes through mediation, and Mr. Yakubu, through his representative, 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:
Is Mr. Yakubu entitled to receive a weekly income replacement benefit in the amount of $400.00 from May 17, 2016 to date and ongoing?
Is Mr. Yakubu entitled to receive medical benefits for physiotherapy provided by Dr. Sodhi at Active Wellness Centre as follows:
$3,584.30, dated January 29, 2016;
$2,230.58, dated September 15, 2015;
$2,928.86, dated June 1, 2015;
$2,474.05, dated July 23, 2015;
$3,845.62, dated October 21, 2015.
Is Mr. Yakubu entitled to transportation expenses in the amount of $60.75 dated June 15, 2015?
Is Mr. Yakubu entitled to the cost of an examination in the amount of $1,934.45 for an In-Home Assessment, dated June 15, 2015?
Is Wawanesa liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Yakubu?
Is Wawanesa liable to pay Mr. Yakubu’s expenses in respect of the Arbitration?
Is Mr. Yakubu liable to pay Wawanesa’s expenses in respect of the Arbitration?
Is Mr. Yakubu entitled to interest for the overdue payment of benefits?
Result:
Mr. Yakubu is entitled to receive a weekly income replacement benefit in the amount of $400.00 from May 17, 2016 to May 21, 2017 only.
Mr. Yakubu is not entitled to receive a weekly income replacement benefit from May 22, 2017 to the date of this decision.
Mr. Yakubu is entitled to receive medical benefits for physiotherapy provided by Dr. Sodhi at Active Wellness Centre as follows:
$3,584.30, dated January 29, 2016;
$2,230.58, dated September 15, 2015;
$2,928.86, dated June 1, 2015;
$2,474.05, dated July 23, 2015;
$3,845.62, dated October 21, 2015.
Mr. Yakubu is entitled to transportation expenses in the amount of $60.75.
Mr. Yakubu is not entitled to the cost of an examination in the amount of $1,934.45 for an In-Home Assessment, dated June 15, 2015.
Wawanesa is not liable to pay a special award.
Mr. Yakubu is entitled to interest for the overdue payment of benefits pursuant s. 51 of the Schedule.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
Motion: Issues withdrawn:
In my letter issued on June 21, 2017, I directed that on the first day of the Hearing the Applicant withdrew, on consent, the following issues, because they were duplicated in the Application for Arbitration:
Attendant care benefits as described in the Pre-Hearing Letter dated July 28, 2016;
Medical benefits: for physiotherapy provided by Dr. Sodhi at Active Wellness Centre as follows:
$2,474.05, dated July 30, 2015;
$3,845.62, dated October 29, 2015.
On July 24, 2017, when the Hearing resumed, the Insurer raised a motion advising that he consented to the withdrawal of the attendant care benefit, but maintained its request for costs.
The Applicant opposed, submitting that the Insurer did not make a request for costs on the first day of the Hearing, and in any event, the request was made outside the 30-day period. In addition, the Applicant provided me with a letter dated May 15, 2017,2 advising the Insurer that Mr. Yakubu was “willing to withdraw the attendant care benefit claim in exchange for no costs being sought…”, and the Insurer never raised the issues of costs.
I reviewed my notes and I have no record of the Insurer requesting its costs for consenting to the withdrawal of the attendant care benefit on the first day of the Hearing. I also asked the Insurer whether Wawanesa was going to provide me with the transcripts of the first day of the Hearing, but the Insurer advised that it would not. Therefore, I reserved my decision pending the final order.
I have made a further review of my notes, and there is no mention that the Insurer requested costs for consenting to the withdrawal of the attendant care benefit. My letter dated June 26, 2017 does not mention whether the Insurer requested costs and the Insurer did not provide me the transcripts. Therefore, I rely on my notes and clarify that I decided that I allowed the withdrawal of the attendant care benefit without costs, pursuant Rule 70.1(c), 65.1 and 65.6 of the Dispute Resolution Practice Code.
BACKGROUND
On the first day of Hearing, the Applicant advised that his name was wrongly entered in our caseload system. Therefore, I ordered it to be corrected from Babs Ibrahim to Ibrahim Barbs Yakubu. For clarification, I infer that when, a medical report makes reference to Mr. Ibrahim, I understand that the medical assessors were referring to Mr. Yakubu.
Mr. Yakubu was born in Ghana on December 12, 1957. After completing high school in Ghana, he worked at his family’s farm. He immigrated to Canada in 1989 and he worked at DECO Automotive (a subdivision of MAGNA International) for over 25 years. He started as a janitor and after 8 months he was promoted to the warehouse. He has been a machine operator for the last 24 years. At the time of the motor vehicle accident he used to operate 10 different cranes. He is married and has 3 teenage children.
The accident occurred when Mr. Yakubu was driving out of his workplace parking lot; another car T-boned him. He was taken to the hospital by ambulance. The hospital records show that he had no fractures and was released after tests were completed. He took a taxi home. He attended his family doctor the following Monday, and he began treatment shortly thereafter. He also received Short Term Disability through his employer’s benefit program. However Long-Term Disability and CPP were denied.
He testified suffering neck, left shoulder, wrist, chest and lower back pain. When he was receiving physiotherapy he felt better, but the pain has to be measured on a day-by-day basis.
Mr. Yakubu claims that he needs more treatment because he has chronic pain, Post-Traumatic Stress Disorder (“PTSD”), depression and impairment to function based on Dr. Neeru Sharma’s (Registered Psychologist), and Dr. Franco Tavazzani’s (Orthopedic Surgeon) Reports.
The Insurer takes the position that Mr. Yakubu’s injuries fall under the Minor Injury Guideline (“MIG”) limits, and therefore the medical benefits were capped at $3,500.00. The Insurer provided Insurer’s Examination reports from Dr. Anthony Marchie, Dr. Tatiana Dumitrascu and Dr. Silver, supporting its position.
The Applicant’s testimony
Mr. Yakubu testified that before the accident, he used to help with some housekeeping chores like shovelling the snow, cutting the grass, gardening, vacuuming, laundry, and taking his children to soccer. He worked as a “bender crane operator”, explaining that the term “bender” relates to the machine that bends pipes. He received training and after shadowing someone, if a position became available in the workplace, he applied for the job. After a few years with DECO, his employer sent him to Humber College (he did not clarify what the certification was for). He worked continuously from 1991 to 2015. His job involved operating 10 different crane machines, each operating different weight, and he was required to complete a daily quota of pieces. He testified that for 8 hours, he had to stand, stretch his arm to grab the piece, turn his torso and put it into a basket. His average work week was five days or 37.5 hours, but sometimes he used to work seven days of the week.
He also testified that after the accident, he tried to return to work on August 4 and 5, 2015, but despite being on modified duties, he could not continue because he was feeling pain and hurting himself. He has not tried to return to work since because of severe pain.
He testified that he has a pre-existing condition of high blood pressure, gout and a kidney condition related to hepatitis B. However, he stopped taking medication for the kidney condition at least 3 years before the accident. He had 2 episodes of gout during his life, six years ago and three months ago.
He testified that he still has lower back pain and he has continued with physiotherapy and taking pain medication. He would like to recover and resume working as he is the family’s breadwinner.
Ms. Adizaru Joris, Witness for the Applicant
Ms. Joris is Mr. Yakubu’s wife. She stated that she took care of her husband for one year after the accident, helping him to shower, brush his teeth and cooking. She testified that her husband was in good health before the accident, and after the accident he stopped helping with chores at home, taking the children to soccer, his mood has changed and he is always angry.
Applicant’s Expert Witness # 1 Dr. Neeru Sharma
Dr. Sharma testified that from observation and psychometric testing, Mr. Yakubu has severe depression, moderate anxiety and mild hopelessness. She testified that the PTSD diagnosis did not reach the level of a full PTSD, clarifying that Mr. Yakubu had trauma but not complete compared with other people.
She concluded that as a result of the motor vehicle accident on May 21, 2015, under the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Mr. Yakubu would meet the diagnostic criteria for Major Depressive Disorder, Severe and Somatic Symptom Disorder with Predominant Pain and Specific Phobia with symptoms of posttraumatic stress.3 Consequently she recommended psychotherapy sessions to prevent further deterioration.
Applicant’s Expert Witness # 2 Dr. Franco Tavazzani
Dr. Tavazzani, Orthopedic Surgeon with an area of special interest in surgical problems related to the knee and shoulder,4 examined Mr. Yakubu on July 18, 2016 and prepared a paper review on May 15, 2017.
Dr. Tavazzani’s report5 states that:
chronic pain syndrome has been documented to develop in all types of medical illness causing pain. Whether the origin of the pain be traumatic, degenerative, inflammatory, infectious or neoplastic (cancer) in nature, chronic pain syndrome has been documented to be associated with all of these pain-generating conditions. This syndrome has also been shown to occur in patients of almost any age. Risk factors for the development of this condition include poor social interactions, job loss, psychological dysfunction, and general health. The need to recognize the presence of this condition, as well as its impact on patient outcomes and on making management decisions is an important aspect of patient management in virtually all medical specialities.6[sic]
Dr. Tavazzani stated in his report that “Neurologically, there was normal bulk, tone and power in all nerve root distributions … had symmetrically normal sensation and reflexes,7 that Mr. Yakubu was substantially impaired from returning to his pre-injury work activities as he was unable to meet the physical demands of his work and he recommended a chronic pain assessment to explore treatment modalities.”8
By letter dated May 15, 2017, Dr. Tavazzani reported that based on the new reports provided to him, he based his opinion on a “reasonable degree of medical certainty from an orthopedics perspective”, that Mr. Yakubu suffered a complete inability to return to his work-related activities.9
Insurer’s Examinations
The Insurer provided expert reports from a) Dr. Eric Silver, Family physician practicing at the Silver Integrative Medical Centre and Chronic Pain Management;10 b) Dr. Anthony Marchie, Orthopedic Surgeon, reporting his area of interest is in surgical problems relating to the hip, knee, foot and ankle; c) Dr. Tatiana Dumitrascu, Psychologist.
Report by Dr. Silver
The Insurer requested an Insurer’s Examination from Dr. Silver, without requiring the attendance of the Applicant. Dr. Silver‘s report was regarding an OCF-18 submitted by Dr. Anthony Grande, Physiotherapist at Verity Medical Assessment Inc., dated August 2, 2016, proposing a chronic pain assessment. The report is dated September 20, 2016. Dr. Silver found the injuries to be within the MIG. I give little weight to this report because it is chronologically anterior to the Applicant’s reports of Dr. Sharma and Dr. Tavazzani.
Reports by Dr. Anthony Marchie
Dr. Marchie, Orthopedic Surgeon, conducted an Orthopedic Surgery Assessment under s. 44 on August 14, 2015, April 8, 2016 and three paper review reports dated December 21, 2015 and February 8, 2016 and June 12, 2017.11
In his report dated April 22, 2016, Dr. Marchie stated that the Functional Abilities Evaluation (“FAE”) indicated that Mr. Yakubu demonstrated the ability to work at a light level and he would have been able to do all the tasks according to the FAE description of the job except for constant standing. However, his opinion was that no impairment was identified from the musculoskeletal perspective and Mr. Yakubu did not suffer a substantial inability to perform the essential tasks of his pre-accident employment and he would be capable of returning to work on a full-time basis, because there were no physical restrictions.12
In his report dated June 12, 2017, Dr. Marchie concluded that “There is no compelling clinical information related to Mr. Ibrahim’s musculoskeletal status that would alter my previously expressed opinion. Therefore, it remains my opinion that from a musculoskeletal perspective, Mr. Ibrahim dos not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the subject matter vehicle accident.” [sic]
Reports by Dr. Tatiana Dumitrascu
Dr. Dumitrascu, Psychologist, conducted psychological IEs of Mr. Yakubu on August 13, 2015, March 31, 2016 and May 25, 2017. Dr. Dumitrascu states that Mr. Yakubu does not meet the DSM-V criteria for a psychological disorder,
the current psychological testing results were suggesting that he tended to magnify his emotional symptoms (“Structured Inventory of Malingered Symptomatology”) and therefore his symptoms are not of such severity as he had endorsed on psychometric measures. Consequently, his endorsements on the Beck Depression Inventory-II and Beck Anxiety Inventory are not credible. Mr. Ibrahim’s scores on the Clinical Assessment of Depression were within the “mild clinical risk” range suggesting that his self-reported symptoms are situational and not of clinical significance.13[sic]
Does the Applicant suffer from chronic pain as a result of the motor vehicle accident?
Mr. Yakubu attended at his former family doctor, Dr. Rafiqi, on May 25, 2015, four days after the accident, and several times thereafter. In October 2015, Dr. Makinde became his new family doctor. There are several clinical notes in both doctors’ records about lower back and several more entries for follow up regarding his kidney condition.
By letter dated December 1, 2014, Dr. Jasdip S. Sachdeva, Nephrology and Hypertension specialist, wrote a letter to Dr. Rafiqi commenting that Mr. Yakubu has occasional spells of low blood pressure and dizziness.
Two MRIs done in November 2015, (the dates are not readable) for a) “PELVIS REPEAT 3 D sacroiliac joints and MRI hips”, shows that the findings are: “joints appear is normal. There is no evidence of trauma. There is no evidence of sacroiliitis”; b) “SPINE LTD 3 REP 3D “SACRUM AND COCCYX MRI”, the findings are “There are no acute bone or soft tissue abnormalities. There is no abnormal signs. There is normal bonny alignment. The SI Joint are unremarkable. IMPRESSION: No significant abnormality. No acute abnormalities. No evidence of fracture”.14[sic]
Mr. Yakubu was referred by his actual family doctor Dr. Oluyele Makinde to Dr. J.S. Dhaliwal, Psychiatrist. Dr. Dhaliwal’s diagnosis was:
DSM-IV
Axis I; Depression. Pain in perpetuating these symptoms causing more insomnia.
Axis IV: Illness is affecting his social life, and occupation life. Illness is affecting his concentration, focusing, and his ADLs, and threshold for stress is decreased. His functional capacity is affected.
Psychotherapy Counselling … he should and he will need this counselling and psychotherapy, which is very important part of his recovery and his illness.
On October 11, 2016, Dr. Dhaliwal stated:
He remains in improvement section and he is showing lessening of symptoms. Symptoms are still there and not gone. So he is not cured … he is able to handle life better now, especially with pain. Because of treatment the pain seems to be handled better, but is not cured. So he is still suffering from disabling pain, depression, and anxiety. Medication helps lessen the symptoms and he is more hopeful …15
Conclusion:
Medical Benefits:
Do Mr. Yakubu’s injuries fall within the MIG limits?
In the case Ruqia Rahim Ali and Bakidar Ferozuddin and Certas Direct Insurance Company,16 Arbitrator Fadel stated:
MIG places a limit on available benefits if an injury can be classified as minor. Subsections 3(a) and 18(1) of the Schedule state that any injury that is predominantly a “sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequalae” is eligible to a maximum of $3,500 in medical and rehabilitation benefits.
Therefore, the applicant’s must prove that their injuries were predominantly not minor … showing that their chronic pain condition pain exist, and, is not a condition that was contemplated as being included in the MIG as “clinically associated sequalae”.
Dr. Tavazzani’s report stated that Mr. Yakubu “is also presenting with clinical signs and symptoms that are indicative of the development of chronic pain syndrome. Chronic pain is pain that begins with acute pain arising from tissue damage … Evidence-based research suggests that when acute pain does not resolve within a few months, continued activation of nerves that transmit pain (nociceptors) may result in changes in the spinal cord and brain that can eventually lead to the development of chronic pain … He is demonstrating a clinical pattern of pain consistent with this syndrome.”17
Dr. Sharma’s report concluded that as a result of the motor vehicle accident on May 21, 2015, under the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Mr. Yakubu would meet the diagnostic criteria for Major Depressive Disorder, Severe and Somatic Symptom Disorder with Predominant Pain and Specific Phobia with symptoms of posttraumatic stress.18
Also, Mr. Yakubu’s treating psychiatrist, Dr. Dhaliwal, found that the “Illness is affecting his social life, and occupation life. Illness is affecting his concentration, focusing, and his ADLs, and threshold for stress is decreased. His functional capacity is affected.”19
Consequently, on a balance of probabilities, I am persuaded that Mr. Yakubu has provided credible medical evidence to support that he has developed chronic pain as a result of the accident. In all the reports, Mr. Yakubu has maintained his complaint about the psychological consequences of the accident. He has attended to his family doctor regularly and was examined by several experts. I accept Mr. Yakubu’s submissions that he has developed chronic pain as a result of the accident. Therefore, his injuries are not primarily minor in nature.
Is Mr. Yakubu entitled to the medical benefits claimed?
All the treatment plans (OCF-18s) were signed by Dr. Ravin Sodhi, Chiropractor, and Simrandeep Kaur, Physiotherapist, with Active Life Wellness Center. The treatment plans dated June 1,20 July 23,21 September 2,22 and October 21, 2015,23 are for physical rehabilitation and massage therapy. The treatment plan dated December 16, 2015,24 is for a chronic pain treatment. All the treatment plans were denied by the Insurer because Mr. Yakubu was considered to be within the MIG limits. Mr. Yakubu testified that he felt better immediately after receiving physiotherapy.
Dr. Tavazzani recommended a multidisciplinary rehabilitation program to prevent deconditioning and deterioration of Mr. Yakubu’s injuries with a physical therapist or personal trainer and manual treatments with a chiropractor or massage therapist, including a “chronic pain assessment to explore all pain treatment modalities from which he may benefit, and for further comment regarding the diagnosis and prognosis of chronic pain syndrome.”25
I am persuaded that Mr. Yakubu has provided sufficient medical evidence from Dr. Sharma and Dr. Tavazzani that the treatment plans were “reasonable and necessary”, according to s. 15 of the Schedule. Accordingly, I find, that he has entitlement to the five treatment plans claimed.
Transportation Expenses:
Mr. Yakubu claims the amount of $60.75 for transportation expenses related to a taxi he took the day of the accident from the hospital to his home. The Insurer opposed submitting that the expenses were not submitted previously for approval.
Section 38(2) of the Schedule states, in relevant part:
An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,
(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates; or
(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,
(i) drugs prescribed by a regulated health professional, or
(ii) goods with a cost of $250 or less per item
On June 15, 2015, Mr. Yakubu submitted an OCF-626 in the amount of $60.75, for a taxi he took on May 21, 2015 from the hospital to his home. It is reasonable that Mr. Yakubu would not have been able to submit the expense for approval prior to taking the taxi to go home from the hospital the day of the accident. I find the expense is reasonable pursuant to s. 38(2)(b)(ii). Therefore, the Applicant is entitled to it.
Cost of Examinations
The issues at the Hearing include a cost of examination in the amount of $1,934.45 for an In-Home Assessment, dated June 15, 2015. However, Mr. Yakubu did not file the alleged treatment plan OCF-18 at the Hearing. His evidence consisted only in one page which was identified as “Insurer Fax Back” under Exhibit 34.
I find that there is insufficient evidence to support an order for the cost of an In-Home Assessment. In addition, Mr. Yakubu withdrew his claim for attendant care benefits.
Therefore, I find that Mr. Yakubu is not entitled to the cost of the examination for an In-Home Assessment in the amount of $1,934.45.
Income Replacement Benefit
Mr. Yakubu claims income replacement benefits (“IRBs”) from May 17, 2016 to date and ongoing.
With regard to the pre-104-week test, s. 5(1) (c) of the Schedule sets out that an insurer shall pay IRBs if as a result of the accident and within 104 weeks after the accident, the insured person suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.
Mr. Yakubu testified that his employment terminated because he was unable to complete the tasks of his pre-accident job. He returned to work on August 4 and 5, 2015, after his short-term disability ended, to try to work under modified duties, as he could not bend, stretch to properly use the cranes, and he could not stand for prolonged hours as his job required. However, because of the pain, he had to stop working and return home. He never tried to engage again in the job he had been doing for the last 22 years. After that, his employment ended.
Upon weighing all the available evidence, including the expert opinions, his family doctors’ reports, treating psychiatrist, and clinical notes and records from Dr. Sodhi, I find that Mr. Yakubu consistently reported persistent impairments of his psychological and physical capacities.
Dr. Tavazzani concluded that “Mr. Yakubu was substantially impaired from returning to his pre-injury work activities as he was unable to meet the physical demands of his work and he recommended a chronic pain assessment to explore treatment modalities.”27
Dr. Marchie concluded that despite the fact that Mr. Yakubu could work at a light level and was not able to stand for prolonged hours, he would be capable of returning to work on a full-time basis, because there were no physical restrictions. I cannot accept Dr. Marchie’s opinion and find that not being able to stand for prolonged hours is a physical restriction when the job required Mr. Yakubu to do so during his eight-hour shift.
Therefore, I find that as a result of the accident, Mr. Yakubu suffered an impairment directly related to the accident that caused a substantial inability to perform his pre-accident job.
Therefore, I find that Mr. Yakubu meets the test for IRBs pre-104 weeks with respect to his ability to function in his workplace and is entitled to IRBs from May 17, 2016 to May 21, 2017.
With regard to the post-104-week test, s. 6(2) (b) of the Schedule states that “the insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”
The analysis of whether Mr. Yakubu suffers a complete inability to engage in suitable employment must be realistic and fair at the time when considering his educational and employment background, given the functional abilities of Mr. Yakubu to engage in work reasonably suited to his age, nature of work, status, level of remuneration and market considerations.
In case Horne v CIBC Insurance, the Arbitrator stated:28
Arbitrator Seife summarized arbitrators’ comments about the question of “suitable employment” in Wigle and Royal Insurance Company of Canada. Although these comments were written in the context of Bill 68. I find them helpful and applicable to this case. Arbitrator Seife states as follows:
The question of suitable employment in every case is a question of fact: the work must be suitable for that applicant, viewed fairly and realistically in the context of his or her educational and employment background. [My emphasis]
Suitable work is not limited to what the applicant was doing at the time of the accident, provided that is not unrelated to his or her previous experience. However, work is not necessarily suitable because an applicant has done a stint of it in the past. If the job is substantially different in nature, status, or remuneration it may not be an appropriate alternative. [My emphasis]
In deciding suitable employment, one must consider such factors as the nature and status of the work compared with what the applicant did before, the hours of work and level of remuneration, the applicant’s employment experience and length of time spent in different jobs, his or her age, and his or her qualifications and technical training and know-how. [My emphasis]
The primary focus is on an applicant’s functional limitations; however, job-market considerations are relevant in determining suitable employment.
Mr. Yakubu testified that before the accident he was healthy. He completed high school and worked at his family’s farm before immigrating to Canada. He has no language barrier and he testified that his previous employer sent him to Humber College to obtain some sort of certification. He also managed to operate 10 different cranes with variable weights. Over the past 25 years he has been receiving training and shadowing others to apply for other positions and being promoted. I find that he has been developing a variety of skills and knowledge.
I also took into consideration that he tried to return to work only once, three months after the accident. However, he did not provide evidence as to why his employment ended. In addition, all the expert reports and clinical notes and records from the family doctor, and Dr. Dhaliwal and Dr. Sodhi, show that he was feeling better and all the witnesses’ evidence is that his limitations are only psychological, that there are no physical limitations.
I accept the Insurer’s submissions that Mr. Yakubu failed to provide positive evidence that his injuries will limit him or that he has functional limitations to engage in any other work-related activity. Consequently, I find that Mr. Yakubu has not met the test of complete inability to engage in any employment post May 21, 2017. Therefore, at this time, I find he has no entitlement to the post 104 IRBs from May 22, 2017, to the day of this decision.
Interest
The Insurer shall pay interest on the overdue amount pursuant Section 51 of the Schedule.
Special Award
The Insurer would be liable to pay a special award if I find that it unreasonably withheld or delayed payments of the benefits owed pursuant s. 282(10) of the Insurance Act:
If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
Director’s Delegate Feldman, in the case of State Farm and Ansari,29 stated:
To be successful in this type of claim, an applicant must prove not just an insurer was wrong to have withheld or delayed a payment to which an applicant was entitled – an applicant must prove that an insurer has unreasonably withheld or delayed payments ...
Mr. Yakubu submitted30 that Wawanesa treated him as a “Fraudulent Claimant”, and “unwarranted medical and assessments to intentionally limit his access to medical treatment and rehabilitation”, and because the Insurer mistreated him he is entitled to a special award.
I find that the Insurer has been adjusting Mr. Yakubu’s file timely and fairly based on the information the Insurer had. Right after the accident, Mr. Yakubu’s injuries appeared to have fallen under the MIG. He only provided evidence of having chronic pain pertaining to psychological issues in March of 2017, almost two years after the accident.
I find that Mr. Yakubu failed to prove that the Insurer unreasonably withheld any payments. Therefore, I do not find that a special award is warranted.
EXPENSES:
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
October 19, 2017
Paulina Gueller
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 270
FSCO A16-001336
BETWEEN:
IBRAHIM BARBS YAKUBU
Applicant
and
WAWANESA MUTUAL 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. Yakubu is entitled to receive a weekly income replacement benefit in the amount of $400.00 from May 17, 2016 to May 21, 2017 only.
Mr. Yakubu is not entitled to receive a weekly income replacement benefit from May 22, 2017 to the date of this decision.
Mr. Yakubu is entitled to receive medical benefits for physiotherapy provided by Dr. Sodhi at Active Wellness Centre as follows:
$3,584.30, dated January 29, 2016;
$2,230.58, dated September 15, 2015;
$2,928.86, dated June 1, 2015;
$2,474.05, dated July 23, 2015;
$3,845.62, dated October 21, 2015.
Mr. Yakubu is entitled to transportation expenses in the amount of $60.75 dated June 15, 2015.
Mr. Yakubu is not entitled to the cost of an examination in the amount of $1,934.45 for an In-Home Assessment, dated June 15, 2015.
Wawanesa is not liable to pay a special award.
Mr. Yakubu is entitled to interest for the overdue payment of benefits pursuant s. 51 of the Schedule.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
October 19, 2017
Paulina Gueller
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Applicant’s Exhibit 1.
- Exhibit 8, Dr. Neeru Sharma report, dated March 27, 2017, page 10.
- Exhibit 9, Dr. Franco Tavazzani’s report, page 1.
- Exhibit 9, Dr. Franco Tavazzani report (undated) and addendum dated May 15, 2017.
- Ibid., page 3.
- Ibid., page 7.
- Ibid., page 9.
- Exhibit 9, Dr. Tavazzani letter dated May 15, 2017, last page.
- Exhibit 42, Dr. Eric Silver’s report dated September 20, 2016, page 13.
- Insurer’s Exhibit 41.
- Insurer’s Exhibit 3, Dr. Marchie report, page 215.
- Insurer’s Exhibit 41.
- Exhibit 39, Insurer’s evidence Oxford Medical Imaging.
- Applicant’s Exhibit 19, Dr. Dhaliwal CNR and report.
- Applicant’s case law, FSCO A13-002459, A13-002460, pages 5 to 7.
- Exhibit 9, Dr. Franco Tavazzani report (undated) and addendum dated May 15, 2017, page 8.
- Exhibit 8, Dr. Neeru Sharma report, dated March 27, 2017, page 10.
- Applicant’s Exhibit 19, Dr. Dhaliwal CNR and report.
- Applicant’s Exhibit 23.
- Applicant’s Exhibit 25.
- Applicant’s Exhibit 26.
- Applicant’s Exhibit 27.
- Applicant’s Exhibit 28.
- Applicant’s Exhibit 9, Dr. Tavazzani’s report, page 9.
- Applicant’s Exhibit 35.
- Exhibit 9, Dr. Tavazzani’s report, page 9.
- Insurer’s Statement of Law, Brief, page 6
- State Farm and Ansari, FSCO Appeal P16-00006, 2016-07-22 .
- Applicant’s Exhibit 36, Particulars of Special Award.
