Financial Services Commission of Ontario
Neutral Citation: 2018 ONFSCDRS 153 Appeal: P17-00083
Office of the Director of Arbitrations
Muhiadin Hussein, Appellant and State Farm Mutual Automobile Insurance Company, Respondent
Before: David Evans
Representatives: Essam Elbassiouni for Mr. Muhiadin Hussein Darrell March for State Farm Mutual Automobile Insurance Company
Hearing Date: June 26, 2018
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:
The appeal is dismissed, and the Arbitrator’s decision dated October 27, 2017 is affirmed.
A party may seek an order of legal appeal expenses, as set out below.
November 7, 2018
David Evans Director’s Delegate
Reasons for Decision
I. Nature of the Appeal
Mr. Hussein appeals the order of Arbitrator Gueller dated October 27, 2017, wherein she denied his claims for various medical benefits and costs of examinations.
However, the Arbitrator did not err in law when she excluded Mr. Hussein’s documentary evidence from the hearing, including the OCF-18s that formed the basis of his claims. In those circumstances, Mr. Hussein’s claims were properly denied.
II. Background
Mr. Muhiadin Hussein was injured in a motor vehicle accident on September 6, 2014, and sought accident benefits pursuant to the SABS–20101 from State Farm Mutual Automobile Insurance Company.
The accident happened in an underground garage when a garage door closed, hitting the windshield and roof of Mr. Hussein’s car.
Mr. Hussein testified that his body did not touch any part of the vehicle and that he was in shock. He also testified that before the accident he had lower back, neck and hip pain, arthritis, and Human Leukocyte Antigen (HLA-B27). However, with the impact of the MVA, the pain increased and the lower back and hip pain radiated to the legs.
On September 15, 2014, he visited his family doctor, Dr. Abdullahi Berih. Dr. Berih confirmed a history of chronic back pain and HLA-B27. The Arbitrator noted that Dr. Berih’s clinical notes and records mentioned the chronic condition since at least since 2009. However, she also noted that the first mention in the CNRs regarding the accident was on October 28, 2014.
Dr. Berih referred Mr. Hussein for physiotherapy. On September 22, 2014, he attended HealthMax Physiotherapy Clinic and saw Dr. Dahir Hashi, chiropractor and Director of Healthmax. Dr. Hashi had previously treated Mr. Hussein from March to July 2014 for back spasm but discharged him when he could not pay. The initial post-accident evaluation revealed neck pain, severe low back pain with radiation to the left leg and irritable mood. Dr. Hashi prepared various OCF-18s on Mr. Hussein’s behalf.
Mr. Hussein claimed entitlement to various medical benefits as well as payment for the costs of examinations for two psychological assessments, as set out in various OCF-18s. He also submitted that State Farm responded to the OCF-18s outside of the 10 business-day limitation period in s. 38 of the SABS. If an insurer fails to give a proper or timely notice under s. 38(8), s. 38(11) provides that the insurer cannot allege the impairment falls within the Minor Injury Guideline and must pay for costs under the Treatment Plan in question until a compliant notice is given: Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707. However, State Farm denied the treatment plans stating that the injuries fell under the Minor Injury Guideline and that the treatment plans were not reasonable and necessary.
At the arbitration hearing, State Farm moved to exclude all the documents upon which Mr. Hussein sought to rely on the basis they were served less than 30 days before the hearing. Mr. Hussein responded that he had produced the documents throughout the proceeding and this was consumer protection legislation. Notwithstanding, the Arbitrator excluded them because
it is fair for the opposing party to be able to properly prepare for the Hearing. In addition, the Applicant has not presented any exceptional circumstances as to why he did not comply with the law. Further, I find that the consumer protection legislation is applicable when there are understandable circumstances for an arbitrator to make an exception. However, in this particular case the Applicant cannot expect that consciously not complying with the law is an exceptional circumstance.
Thus, all the OCF-18s were excluded from the hearing.
Further, with respect to Dr. Hashi, the Arbitrator found that he was only permitted to testify as a lay witness and not an expert, so he could only provide testimony related to documents prepared by himself and from his observation when he directly treated Mr. Hussein.
The Arbitrator noted the extensive history of pre-accident problems. She analyzed this history with respect to causation. In that regard, she gave Dr. Hashi’s evidence little weight:
He treated the Applicant for the same symptoms two months before the MVA and he discharged the Applicant because he could not afford payment. I find that his conclusions are based on the investigation and treatments from his family doctor’s consultation, prescription medication, MRI of the neck and back, and neurological findings, conducted prior to the MVA.
The Arbitrator then set out those earlier consultations, including with Dr. Putris, Physiatrist. Dr. Putris noted Mr. Hussein’s easily aggravated low back pain, use of a single point cane, lower right leg numbness and radiating neck pain.
The Arbitrator noted the references in Dr. Berih’s CNRs over the months before the accident of similar complaints. On August 29, 2014, Dr. Berih wrote in support of an application to the Ontario Disability Support Program that for at least a year Mr. Hussein suffered insomnia because of emotional and psychological problems, and polyarthralgia pain in the joint, including the neck and shoulders. Further, one week before the accident Mr. Hussein had an MRI because he was presenting with sudden onset of left hip pain.
In conclusion, while the Arbitrator accepted Mr. Hussein had chronic pain before the accident, she found that “a pre-existing condition is not compelling evidence by itself to prove that a person’s impairments shall be treated outside the MIG.”
As for causation, the Arbitrator noted the many pre-existing conditions. She also noted that the OCF-18 treatment plans were not filed. Accordingly, she found that Mr. Hussein failed to prove that he had suffered an impairment or injury directly related to the accident, or that the accident exacerbated his pre-existing conditions. Therefore, he had no entitlement to the requested medical treatments.
Finally, regarding the cost of psychological assessments, the Arbitrator noted that those OCF-18s were not filed either, so she found that there was insufficient information and evidence to support an order for the two psychological assessments.
III. Analysis
Although the Arbitrator did not expressly refer to it, she based her ruling that excluded Mr. Hussein’s documents on Rule 39 of the Dispute Resolution Practice Code, entitled Evidence. Rule 39.1 provides a 30-day time limit before the first day of the hearing for a party to serve the other party with all documents and assessments they intend to rely on at the hearing. I note that Rule 4.1 specifically defines “serve” as meaning “the delivery of a document to a person as permitted by these Rules.” Rule 39.2 provides that a party may seek the arbitrator’s permission to serve documents less than 30 days before the hearing in extraordinary circumstances. Rule 39.3(c) then provides that the hearing arbitrator will not admit evidence that was not served on the opposing party in accordance with R. 39.1 “unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception.”
The pre-hearing letter sent to the parties set out the effect of Rule 39:
All documents, reports (including experts’ reports) and assessments to be introduced at a hearing by either party must be served on the other party at least thirty (30) days before the first day of the hearing. In extraordinary circumstances, a party may seek an arbitrator’s permission to serve a document, report or assessment on the other party for use at a hearing less than thirty (30) days before the first day of hearing. The hearing arbitrator will not admit evidence at a hearing that was not served on the opposing party in accordance with these requirements, unless the hearing arbitrator is satisfied that extraordinary circumstances exist to justify an exception. [Emphasis in the original.]
Rule 39 only provides arbitrators with a discretion to admit evidence served late if they first find extraordinary circumstances existed to justify the exception. The Arbitrator found that Mr. Hussein had not presented any exceptional circumstances for his noncompliance. This was a finding of fact and is not subject to appeal.
It is also not relevant that certain documents were already in State Farm’s files. For instance, in Pollard and State Farm Mutual Automobile Insurance Company, (FSCO A15-000363, August 18, 2016), the applicant’s representatives had simply forwarded an Arbitration Brief Index inside the time requirement, but served the actual documents themselves outside of it:
The Applicant’s representative argued that the index was as good as the original documents. After all, the Insurer should be able to figure out what the documents were. However, the DRPC is specific. It does not refer to indices or lists—it refers to the documents that will be introduced at a Hearing. It is clear that service of an index cannot make up for service of the documents themselves.
A similar conclusion was reached in Olivares and ING Insurance Company of Canada, (FSCO A04–001427, January 25, 2006). Further, as noted above, the word “serve” is specifically defined in the DRPC. As Arbitrator Rogers noted in Zoozan and Markel Insurance Company of Canada, (FSCO A08-000608, September 25, 2009), “the service requirement of Rule 39.1 is not met by the informal delivery of documents because such delivery does not put the other party on notice that the document will be introduced at the hearing, as Rule 39.1 requires.”
Mr. Hussein submits that State Farm breached its alleged agreement to prepare a joint brief of documents, as set out in the prehearing letter. Instead, shortly before the deadline, it served its own brief. Mr. Hussein submits that by the time his counsel went through it and realized some documents he intended to rely on were missing, it was too late to meet the deadline.
To the extent there was any agreement, its second step was for the parties to complete production exchange within 90 days of the pre-hearing. Mr. Hussein thus allegedly agreed to provide his own copies of the documents he intended to rely upon by January 9, 2017 for a hearing scheduled to begin on September 5, 2017. This he manifestly did not do, so he is in no position to complain that State Farm failed to follow this agreement. Further, State Farm was only required to exchange the documents it intended to rely upon. The fact its brief did not contain Mr. Hussein’s materials should have come as no surprise.
At best, Mr. Hussein’s position roughly parallels that of the insurer Markel in Zoozan, where it made similar arguments to his. Markel’s explanation for late service was that settlement discussions were ongoing and hearing preparation delayed in hopes of limiting cost. Markel further argued that there was no prejudice to Mr. Zoozan because he already had the documents in his possession. Arbitrator Rogers denied the request on the ground already noted and further ruled that “because it is not at all unusual that settlement discussions continue to the eve of the hearing, the reason given for delaying formal service did not constitute extraordinary circumstances.”
Since the Arbitrator excluded Mr. Hussein’s reports, documents, and assessments, his case was essentially over. Thus, while Mr. Hussein submits that the Arbitrator erred in not considering that State Farm failed to reply to the treatment plans as required by s.38 of the SABS, she had no reason to consider how State Farm reacted to them since those plans were not properly before her. Further, Mr. Hussein’s expert could not testify as an expert due to the exclusions: R. 42. Finally, of course, the treatment plans were not properly before the Arbitrator, so she could not order payment of them.
Mr. Hussein made a number of other submissions of alleged errors of law. Mostly they relate to how the arbitrator weighed the evidence and made findings, but the Arbitrator’s findings about causation, chronic pain and pre-existing conditions are not reviewable.
Accordingly, the appeal is dismissed, and the Arbitrator’s decision is affirmed.
IV. Expenses
If the parties are unable to agree about expenses of this appeal, any party seeking expenses should serve and file a Bill of Expenses within 45 days of the date of this decision, including any written submissions on entitlement and other particulars. The opposing party will then have 30 days to serve and file a response. The party seeking expenses will then have 15 days to serve and file a reply and any required documentation. The decisions will be on the record.
November 7, 2018
David Evans Director’s Delegate
Footnotes
- The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.