Neutral Citation: 1995 ONICDRG 167

File No.: A-013992

ONTARIO INSURANCE COMMISSION

BETWEEN:

ED J. OPATOWSKI

Applicant

and

GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Ed J. Opatowski, was injured in a motor vehicle accident on August 30, 1993. He applied for and received statutory accident benefits from the Insurer ("General Accident"), payable under Ontario Regulation 672.¹ Weekly benefits were terminated by the Insurer on February 7, 1994. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is Mr. Opatowski entitled to weekly benefits pursuant to section 12 or section 13 of the Schedule, from February 7, 1994 onwards?

2. Is Mr. Opatowski precluded from receipt of benefits under section 12 or section 13 by virtue of section 17(1)(f) of the Schedule, in that he knew or reasonably ought to have known that he was operating the automobile without the owner's consent?

3. If the answer to question 2 is "yes", is General Accident entitled to the repayment of weekly benefits paid from September 6, 1993 to February 7, 1994 pursuant to section 27 of the Schedule?

4. Is Mr. Opatowski entitled to supplementary medical and rehabilitation benefits pursuant to section 6 of the Schedule?

5. Is Mr. Opatowski entitled to care benefits pursuant to section 7 of the Schedule?

Mr. Opatowski also claims interest on any amounts owing, and his expenses incurred in the hearing.

Result:

1. Mr. Opatowski is not entitled to weekly benefits pursuant to section 12 or section 13 of the Schedule, from February 7, 1994 onwards.

2. Mr. Opatowski is not precluded from receiving weekly benefits under section 17(1)(f) of the Schedule.

3. General Accident is not entitled to a repayment.

4. At the commencement of the hearing, Mr. Opatowski withdrew his claim for supplementary and medical benefits.

5. Mr. Opatowski is not entitled to care benefits pursuant to section 7 of the Schedule.

6. Mr. Opatowski is entitled to his expenses.

Hearing:

The hearing was held in Toronto, Ontario, on October 16, 17 and 18, 1995, before me, Joyce Miller, arbitrator.

Present at the Hearing:

Applicant:

Ed J. Opatowski

Insurer's

Guy Farrell

Representative:

Barrister and Solicitor

Insurer's

Bob Haddow

Officer:

Witnesses:

Ed Opatowski

Maxine Edwards

William Colwell

Dr. Michael Weinstock

Doug Richardson

Court Reporter:

Raymond MacDonald of the firm Rosenberger,

Weir, MacDonald

Exhibits:

Nine exhibits were filed.

PRELIMINARY ISSUE

On October 11, 1995, Mr. Opatowski requested an adjournment of his arbitration hearing scheduled to start on October 16, 1995. He stated that he had recently discovered that his counsel had no experience before the Ontario Insurance Commission and requested an adjournment to retain more experienced counsel.

He was advised by letter that day that his adjournment request would be dealt with by the hearing arbitrator.

At the hearing I informed Mr. Opatowski that I was willing to grant him an adjournment. Mr. Opatowski, however, stated that he had changed his mind and that he wished to proceed without counsel.

I pointed out to Mr. Opatowski that it was to his benefit to have legal counsel represent him in this case. As well, I noted that since he had not complied with an order made by the pre-hearing arbitrator to disclose particulars of his section 6 claim² for medical and rehabilitation benefits, he would not be able to proceed on this issue.

Mr. Opatowski was very insistent that the hearing not be adjourned. He stated that he wished to have the case dealt with as soon as possible and waived his rights to medical and rehabilitation benefits under section 6 of the Schedule.

I recessed the hearing to allow the pre-hearing arbitrator to speak with the parties.

After discussion with the pre-hearing arbitrator, Mr. Opatowski stated that he still wished to proceed without counsel.

Evidence and Findings:

1. The Accident

On August 30, 1993, Mr. Opatowski was stopped at a red light when the vehicle he was driving, a 1984 Nissan, was hit in the rear. With him in the car was his common-law wife, Maxine Edwards, and her daughter, Natasha. Mr. Opatowski testified that he left the scene of the accident because he was driving without a driver's licence, and also because Natasha was very upset. The driver of the car who had struck him had gone to call the police. Mr. Opatowski testified he was not sure whether she was coming back. Later on he called the police from the hospital where he and his family had gone after the accident.

After being examined at the hospital, Mr. Opatowski was released. On September 3, 1993, he went to see his family doctor, Dr. Weinstock.

At the time of the accident, Mr. Opatowski was not working and was still recovering from a previous car accident that had taken place in August 1990. Dr. Weinstock, who was summoned to testify on behalf of General Accident, testified that the second accident exacerbated Mr. Opatowski's neck, back and shoulder injuries from his first accident.

2. Is Mr. Opatowski entitled to section 12 or section 13 benefits?

(a) Section 12

In order to receive weekly income benefits under section 12(1) of the Schedule, Mr. Opatowski must establish, on a balance of probabilities, that he suffered a substantial inability to perform the essential tasks of his occupation, as a result of the August 30, 1993 motor vehicle accident.

The relevant sections are as follows:

12.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident a weekly income benefit during the period in which the insured person suffers substantial inability to perform the essential tasks of his or her occupation or employment if the insured person meets the qualifications set out in subsection (2) or (3).

(2) The following qualifications apply to an insured person who claims a weekly benefit under subsection (1):

1. He or she must have been at the time of the accident,

i. employed or self-employed,

ii. on a temporary lay-off, or

iii. entitled to start work within one year under a legitimate offer of employment made before the accident and evidenced in writing.

2. He or she as a result of and within two years of the accident must have suffered a substantial inability to perform the essential tasks of his or her occupation or employment.

Mr. Opatowski testified that at the time of the August 30, 1993 accident he was involved in his own small business, Gilmour Copier Service. He stated that he started up this business some time in January 1993 and worked at it "off and on". At the same time, he was collecting social assistance since he made very little money from the business.

Mr. Opatowski testified that his main duties for Gilmour Copier were to meet with people, distribute his business card and try to get work. Unfortunately he got very little work.

Dr. Weinstock's clinical notes and records³ indicate that in April 1993, Mr. Opatowski was not working. In his testimony, Dr. Weinstock confirmed this and also confirmed that in June 1993,⁴ as well as in November 1993,⁵ he discussed with Mr. Opatowski the idea that he should consider starting to work.

The onus is on Mr. Opatowski to show that he was working at the time of the accident through objective and reliable evidence. Mr. Opatowski's mere statement that he was working is not sufficient. He must present some objective evidence to support his assertion. This objective evidence should include, for example, the details of the names and addresses of some of his customers, the type of work he did for his customers, his weekly income, his expenses, his business records, his bank records, as well as his tax returns.

Except for a business card,⁶ Mr. Opatowski did not present any evidence to support his claim that he was engaged in a small business.

Mr. Opatowski has failed to prove, on a balance of probabilities, that he was working and earning income. I conclude that Mr. Opatowski was not working at the time of the August 1993 accident. Therefore, he is not eligible for benefits under section 12(1) of the Schedule.

(b) Section 13

Section 13(1) states:

13.-(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, a weekly benefit during the period in which the insured person suffers substantial inability to perform the essential tasks in which he or she would normally engage if he or she meets the qualifications set out in subsection (2).

In order to be eligible for weekly benefits under section 13(1) of the Schedule, an insured person must suffer an injury in an accident which causes a "'substantial inability to perform the essential tasks in which he or she would normally engage". The test is not some inability to perform essential tasks, but a substantial or sizeable inability to perform these tasks.⁷

The applicant's substantial inability is considered in relation to those activities that are determined to be the essential tasks in which the applicant would normally engage, rather than the complete range of activities, pastimes and pleasures pursued by the applicant prior to the accident.⁸

The Schedule is not intended to replace general damages under the tort law system and does not compensate individuals for loss of enjoyment of life or a reduction in the general quality of life.⁹ The experience of pain itself is not compensated under the Schedule, except in a case where pain impairs function to such a degree that the person is substantially unable to perform his or her essential tasks.¹⁰

The onus is on Mr. Opatowski to present objective and reliable evidence as to what his essential tasks were before the August 30, 1993 accident and what he was able or unable to do after the accident. In order to be successful in this case, Mr. Opatowski must convince me, on a balance of probabilities, that he suffers a substantial inability to perform his essential tasks.

Unfortunately, I heard very little evidence from Mr. Opatowski about his tasks and activities, or what his lifestyle was like before or after the accident of August 1993.

Mr. Opatowski testified that before the August 30, 1993 accident he was beginning to get back into physical shape after his August 1990 accident. He had joined the Fitpro Health Club in May 1993 and he was swimming several times a week.¹¹

Since Mr. Opatowski gave very little evidence about his essential tasks before the accident, I rely on Arbitrator Mackintosh's interpretation of "essential tasks" in the Lui case.¹² There she states that for the purposes of subsection 13(1) "essential tasks" "...refer to those activities connected to the ongoing business of living". These, she states, would "include the routine tasks a person performs to maintain themselves, their dependants and their home."

The evidence is that at the time of the August 30, 1993 accident, Mr. Opatowski was unemployed, and was still recovering from his August 1990 accident. He was living with his common-law wife, Maxine Edwards. Ms. Edwards testified that Mr. Opatowski had moved into her apartment on August 1, 1993, and for the month before the accident, lived with her as a paying tenant.

According to Ms. Edwards, Mr. Opatowski's activities during that time were to take care of himself, clean up after himself, work out and swim several times a week.

Mr. Farrell, counsel for General Accident, referred to a transcript of an Examination for Discovery on October 18, 1993 regarding Mr. Opatowski's first accident of August 1990. Mr. Farrell noted that the evidence from the transcript showed that as of October 18, 1993, Mr. Opatowski could do dishes, sweep, make the bed, do stretching exercises, as well as swim two to three times a week, and lift light weights twice a week.

When presented with this testimony, Mr. Opatowski said that he was drugged at the time of the Examination for Discovery and that what he said in the Discovery was not true. In any case, he said, if he was able to do these things at that time, it was because Dr. Weinstock had prescribed steroids for him.

Dr. Weinstock, however, testified that he had not prescribed any steroids for Mr. Opatowski at that time. I accept Dr. Weinstock's testimony and find that Mr. Opatowski was trying to cover up the fact that he had admitted to being able to do these activities by saying he was drugged.

This leads me to conclude that by October 1993, Mr. Opatowski was able to look after his basic and essential needs. I therefore infer that for the purposes of section 13(1) of the Schedule, on a balance of probabilities, by October 1993, Mr. Opatowski was able to perform the essential tasks in which he normally engaged.

Dr. Weinstock testified that in his opinion, by January 1994, Mr. Opatowski was no longer substantially disabled as a result of the August 1993 accident. He did note, however, that a fall on January 28, 1994 caused injuries to Mr. Opatowski's back and shoulder and that these injuries were disabling to Mr. Opatowski.

General Accident terminated benefits on February 7, 1994. Although I have no doubt that Mr. Opatowski suffered pain from his first accident which was exacerbated by the second accident, I, nevertheless, find that by January 1994, Mr. Opatowski was able to carry out the essential tasks of an unemployed person who was looking after himself.

Accordingly, I find that Mr. Opatowski is not eligible for further section 13(1) benefits.

3. Is Mr. Opatowski entitled to section 7 care benefits?

Mr. Opatowski claims care benefits pursuant to section 7(1) of the Schedule.

Section 7(1) states:

The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident, for the care, if any, required by the insured person,

(a) the reasonable cost of a professional caregiver or the amount of gross income reasonably lost by a person other than the insured person as a result of the accident in caring for the insured person; and

(b) all reasonable expenses resulting from the accident in caring for the insured person after the accident.

Mr. Opatowski stated that his common-law wife, Maxine Edwards, and his mother, Lorraine Opatowski, have both been looking after him since the accident. He claims that care benefits, in the sum of $80.00 a week, should be paid from August 30, 1993 to the present for their services.

The evidence, however, reveals that Maxine Edwards, who was supposed to have been taking care of Mr. Opatowski after the accident, was claiming accident benefits on the basis that she was substantially disabled as a result of the same accident. Moreover, even if Ms. Edwards had been in a position to provide care, Mr. Opatowski did not present any evidence to substantiate his claim.

In order to be successful in his claim, Mr. Opatowski would have to present some evidence to show the medical necessity of the care he allegedly received, what kind of care he received, how much time was spent in giving him this care, some proof that the caregivers were paid, how he arrived at the amount of $80.00 a week and whether this was a reasonable expense.

Mr. Opatowski merely asserted that he is owed this money by General Accident. Accordingly, I, find that Mr. Opatowski is not entitled to section 7(1) care benefits.

4. Is Mr. Opatowski excluded from receipt of section13 benefits by virtue of section 17(1)(f)?

Mr. Farrell submitted that General Accident is requesting a repayment of weekly benefits paid from September 6, 1993 to February 7, 1994 on the basis that Mr. Opatowski is precluded from weekly benefits pursuant to section 17(1)(f) of the Schedule. Section 17(1)(f) states:

The insurer is not required to pay benefits under subsection 12(1) or 13(1) in respect of a driver of an automobile at the time of the accident,

(f) if the driver knew or ought reasonably to have known that he or she was operating the automobile without the owner's consent.

In order for Mr. Opatowski to be precluded from weekly benefits, I have to be persuaded that the owner of the 1984 Nissan would not have permitted Mr. Opatowski to drive the car, and that Mr. Opatowski knew or reasonably ought to have known this.

In his submissions, Mr. Farrell stated that the onus is on Mr. Opatowski to prove that he was driving the 1984 Nissan with the owner's consent. I disagree.

If General Accident wishes to rely on the exclusion clause of 17(1)(f), then it must first prove who the owner of the 1984 Nissan was, and secondly, that Mr. Opatowski knew or ought reasonably to have known that he was driving the car without the owner's consent.

The ownership history of the 1984 Nissan which Mr. Opatowski was driving when the August 1993 accident occurred, is a muddled one.

Ms. Edwards, Mr. Opatowski's common-law spouse, testified that her driver's license had been suspended in April 1992. She bought the 1984 Nissan, a standard gear shift car, in October 1992. At that time she did not know how to drive a standard gear shift car, and her license was suspended. She claimed she never insured the car and it remained in her garage. On July 30, 1993, the day before Mr. Opatowski moved in with her, Ms. Edwards transferred the ownership of the car to Heather Nembhard, who was also a friend of Mr. Opatowski.

Ms. Edwards stated that she transferred the car to Ms. Nembhard because she was unable to get a license plate for the car because of outstanding parking tickets. Ms. Edwards stated that Ms. Nembhard was to insure the car under her (Ms. Nembhard's) insurance policy. However, after the accident, Ms. Edwards discovered that Ms. Nembhard had not insured the car at all.¹³

General Accident submitted an affidavit of Ms. Maxine Edwards dated January 20, 1994,¹⁴ which was made for the purpose of claiming accident benefits arising out of the August 30, 1993 accident. In this affidavit, Ms. Edwards states that she does not own a vehicle and that she "was a passenger in the vehicle owned and driven by Heather Nembhard".

Ms. Edwards testified that she does not remember signing this affidavit. She stated that if she signed it, her lawyer made her sign it. As far as she was concerned, she was the owner of the 1984 Nissan and Ms. Nembhard was only the paper owner for insurance purposes.

Mr. Opatowski, who had been driving the 1984 Nissan, testified that Ms. Nembhard would not have consented to his driving the car. However, he testified he was under the impression that Ms. Edwards was the owner of the vehicle, and he did not know about the paper transfer.

Ms. Nembhard did not testify. General Accident had attempted to call her as a witness, but was unsuccessful in serving her with a summons.¹⁵

No evidence was presented to show that Ms. Nembhard had ever had physical possession of the car or had ever insured it. Moreover, I received no evidence that Maxine Edwards ever drove the car. Ms. Edwards' evidence was that she did not know how to drive a gear shift car.

From the evidence presented, I am persuaded, on a balance of probabilities, that while Ms. Nembhard may have been the paper owner of the car at the time of the motor vehicle accident, Mr. Opatowski was the person who, at all material times, had control and possession of the car. Therefore, in my view, Mr. Opatowski did not need the consent of Ms. Nembhard to drive the car. Even if he did need her consent, General Accident failed to show that Mr. Opatowski knew or ought reasonably to have known that he was operating the car without Ms. Nembhard's consent.

I am reinforced in my decision by the striking similarity between the events surrounding the August 1993 accident and that of the August 1990 accident that Mr. Opatowski was involved in.

The evidence revealed that when Mr. Opatowski had his first accident in 1990, he was also living with a woman who was the registered owner of a standard gear shift car. She was also unable to drive this car, the car was uninsured, and Mr. Opatowski, who did not have a driver's license, drove the car.

Succinctly, in both instances, Mr. Opatowski who was unable to get a driver's license, lived with women who owned cars that they could not drive and did not insure, and at all material times, Mr. Opatowski had the control and possession of the cars.

While the parallels may only be a coincidence, they nevertheless reinforce my view that in the present case, it was Mr. Opatowski who had control and possession of the 1984 Nissan.

Accordingly, I find that General Accident has not established, on a balance of probabilities, that Mr. Opatowski is excluded from receiving benefits under section 17(1)(f) of the Schedule. Accordingly, it is not entitled to a repayment of weekly benefits paid to Mr. Opatowski.

Mr. Farrell submitted that in the alternative I should consider the operation section 17(3)(a)¹⁶ in that a material misrepresentation was made to Economical Mutual Insurance Company ("Economical"), the insurer of a car owned and driven by Ms. Nembhard.

In my view, this section is not applicable in this case.

Section 17(3)(a) states that an insurer is not required to pay weekly benefits if a person has made a material misrepresentation to enter into a contract of automobile insurance.

General Accident is the insurer of the car that struck Mr. Opatowski's vehicle. Mr. Opatowski's car was not insured and he looked to General Accident for accident benefits. There is no evidence to show that Mr. Opatowski had entered into a contract of automobile insurance with General Accident. Accordingly, I find that General Accident cannot rely on the exclusion in section 17(3)(a).

Expenses

Mr. Farrell asked that I exercise my discretion not to allow expenses in this case.

One of the purposes of the arbitration process is to allow unrepresented applicants access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. To this end, the legislation allows for an applicant's expenses to be paid.

An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.

Senior Arbitrator Susan Naylor in the McCormick¹⁷ case made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

Mr. Opatowski did not present any probative evidence to support his claim for accident benefits. He chose to be unrepresented and his testimony mainly consisted of assertions that he believed accident benefits were owed to him.

I have no doubt that Mr. Opatowski has been a very difficult client for General Accident to deal with. The evidence revealed that Mr. Opatowski has misunderstood the responsibility of General Accident and shifted blame for all of his problems to General Accident.

Although there was no objective evidence to support Mr. Opatowski's claim, and evidence was presented to show that Mr. Opatowski's lifestyle and his previous August 1990 accident significantly contributed to his physical and psychological suffering, I was, nevertheless, convinced that Mr. Opatowski believes that the pain he suffers results from the August 1993 accident.

For this reason, I am persuaded that Mr. Opatowski had a genuine need to have his day in court. He truly believed that his problems would be resolved in this arbitration hearing.

Accordingly, I exercise my discretion to award Mr. Opatowski his expenses. Because Mr. Opatowski was unrepresented, his expenses are minimal and should be limited to his filing fee.

Order:

1. Mr. Opatowski is not entitled to weekly benefits pursuant to section 12 or section 13 benefits of the Schedule, from February 7, 1994 onwards.

2. Mr. Opatowski is not precluded from receiving the weekly benefits paid from September 6, 1993 to February 7, 1994, pursuant to section 13(1) of the Schedule and accordingly, General Insurance is not entitled to a repayment.

3. Mr. Opatowski is not entitled to supplementary medical and rehabilitation benefits pursuant to section 6 of the Schedule.

4. Mr. Opatowski is not entitled to care benefits pursuant to section 7 of the Schedule.

5. Mr. Opatowski is entitled to his expenses incurred in respect to the arbitration.

November 20, 1995

Joyce Miller

Arbitrator

Date

(a) in respect of any person who has made, or who knows of, a material misrepresentation which induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in the risk material to the contract;

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term "Schedule' will be used to refer to Regulation 672.
2. 2Pre-hearing letter dated June 1, 1995, item C at page 2
3. 3Exhibit 4, Item 13, clinical note for April 5, 1993
4. 4Exhibit 4, Item 13, clinical notations for June 9, 1993 and November 1, 1993
5. 5Exhibit 8, Clinical note for November 1, 1993.
6. 6Exhibit 4, Item 10
7. 7Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024
8. 8Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894
9. 9Edgar Cowie and The Non-Marine Underwriters - Members of Lloyd's, March 9, 1993, OIC File No. A-001159 (under appeal)
10. 10Norman Downs and Allstate Insurance Company of Canada, July 18, 1991, OIC File No. A-000064
11. 11Exhibit 4, Items 9(a) and 9(b). Mr. Doug Richardson in his testimony confirmed that Mr. Opatowski began to work out at Fitpro Health Club in spring of 1993. He testified that Mr. Opatowski's physical condition at that time was that of a sedentary person.
12. 12Supra note #8
13. 13General Accident, the insurer of the automobile which struck the uninsured vehicle Mr. Opatowski was driving, became the insurer Mr. Opatowski sought accident benefits from.
14. 14Exhibit 2, Tab 2
15. 15Mr. William Colwell, a legal process server, testified that he attempted to serve Ms. Nembhard on October 10, 1995 at 9 p.m., October 12, 1995 at 5:30 and 6:30 p.m., and on October 16, 1995 between 8:10 a.m. and 9:15 a.m.
16. 1617(3)The insurer is not required to pay benefits under subsection 12(1) or 13(1),
17. 17Ralph McCormick and Economical Mutual Insurance Company, October 2, 1991, OIC File No. A-000139