Neutral Citation: 2000 ONFSCDRS 100
FSCO A99-000165
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
RADE DUKIC
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
David Leitch
Heard:
February 14, 16, and 17, April 28, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Miles Obradovich for Mr. Dukic
Jeremy R. Solomon for State Farm Mutual Automobile Insurance Company
Issue:
The Applicant, Rade Dukic, was injured in a motor vehicle accident on November 27, 1995. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.1 State Farm terminated weekly income replacement benefits on May 26, 1997. The parties were unable to resolve their disputes through mediation, and Mr. Dukic applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is:
- Is Mr. Dukic entitled to income replacement benefits from May 27, 1997?
Result:
- Mr. Dukic is not entitled to income replacement benefits from May 27, 1997.
Introduction
On November 27, 1995, at the age of 61, Mr. Dukic was struck by a motor vehicle while crossing a street as a pedestrian. In order maintain a claim for income replacement benefits as a result of this accident, Mr. Dukic had the burden of proving, among other things, that he was employed or self-employed at some point in the 156-week period prior to the accident, that is, at some point between November 27, 1992 and the day of the accident, three years later.
At the hearing, Mr. Dukic presented evidence and made argument to prove that he was self-employed in construction during the required period. On the assumption that he did so prove, the parties also presented evidence and made arguments with respect to the other medical and legal issues inherent in Mr. Dukic's claim. However, since I find that Mr. Dukic did not prove, on the balance of probabilities, that he was self-employed in construction during the 156-week period prior to the accident, the reasons which follow address only that issue.
The Evidence:
On January 4, 1996, just over a month after the accident, Mr. Dukic provided the Insurer with a signed statement which contained this sentence:
Prior to this accident, I was self-employed in construction but have only work [sic] one month (February 1993) in the last 3 years.2
In November 1996, the Insurer hired a consultant to interview three people Mr. Dukic identified as customers of his business.3 The first person, Ruth Appleton, informed the consultant that Mr. Dukic provided the following services at her home in Toronto between 1989 and 1992:
replaced sunroom roof
changed valves on radiator
installed drywall in the staircase, including plastering and painting of the staircase
installed baseboards in the staircase
cutting grass (lot 28 x 150 feet) in and around back of home
removal of snow in driveway
built four wooden steps for entrance into back of home
Ms. Appleton also informed the consultant that in 1993, Mr. Dukic performed the following services at her cottage in Wasaga Beach:
replaced and installed new supporting beams (2 feet x 6 feet) under current floor
installed new plywood sheets, three quarters of an inch thick, for new flooring
installed carpet and baseboards
general outside maintenance of the cottage property including grass cutting
cleaned eavestrough
repaired plumbing pipes in the washroom and kitchen4
The second person interviewed was identified by the consultant as "Ellen from Alex Shoe Repair at 213 Roncesvalles Avenue" (hereinafter referred to as "Ellen"). Ellen stated that during the period 1991 to 1992, Mr. Dukic had constructed a two-room addition to her home which included installing outside siding, drywall, flooring and building a roof, and that he had also performed various electrical work and plumbing jobs in her home. Ellen further informed the consultant that Mr. Dukic had "most recently...landscaped her property in 1994 and had also provided outside maintenance on an irregular basis which included grass cutting."5
The consultant interviewed a third person but was informed that Mr. Dukic had not worked for this person since 1985.6
At the hearing, Mr. Dukic presented three documents allegedly proving payments received from customers of his business. The first was a copy of a cheque dated February 14, 1994 made payable to "cash" in the amount of $1,200 with the words "payment for work done on 201 Geoffrey Street" written on the back.7 The person who signed the cheque is not identifiable from the signature and was not identified by other evidence. Mr. Dukic testified that this job, which involved renovating a second floor kitchen with steps down to the first floor, another room and a fireplace, was the job he was doing on February 2, 1994 when he was involved in another motor vehicle accident (not the accident which gives rise to this proceeding).
The second document is dated October 30, 19948 and appears to confirm payment by cheque of $6,000 for "flooring & carpeting living room" at 1831 Shore Lane in Wasaga Beach. The document is not signed and its purpose was not explained by other evidence. Mr. Dukic's name is at the top and he testified that it related to the work he did at the end of December 1994 for Ruth Appleton. However, he later testified that he did no work after the accident of February 2, 1994.
The third document appears to confirm payment to Mr. Dukic of $300 for work done in January, 1994 at 213 Roncesvalles Avenue.9 The person who signed the document is not identifiable from the signature and was not identified by other evidence.
Mr. Dukic's 1994 Income Tax Return10 reported business income of $7,500 and he testified that this figure was arrived at by totalling the amounts shown in the three documents presented at the hearing. However, these documents were not attached to the copy of the Income Tax Return admitted into evidence.
None of the persons identified in the interviews by the consultant and none of the makers of the documents presented at the entered appeared as a witness at the hearing.
For its part, the Insurer entered the records of what was then the Workers' Compensation Board (WCB) and Workers' Compensation Appeals Tribunal (WCAT) in connection with Mr. Dukic's claims for workers' compensation benefits following his workplace accidents of December 30, 1968 and August 4, 1980.
These records indicate that by letter dated October 18, 1989, Mr. Dukic informed the WCB that "in view of my present physical and emotional problems, I consider myself totally disabled for any kind of work." They also indicate that in 1992, Mr. Dukic appealed the level of his two permanent disability pensions of 40% and 20%, claiming that he was more than 60% disabled as a result of his workplace accidents. A WCAT hearing was conducted in March 10, 1992 to consider Mr. Dukic's appeal and the decision issued indicates that Mr. Dukic gave the following testimony at that hearing:
The worker testified as to the effects of his condition on his day-to-day existence. He owns his own house, part of which he rents to a boarder who assists with heavier aspects of home maintenance. The worker is able, however, to do some work around the house, such as cooking, cleaning the dishes and gardening. He enjoys taking the dog for a walk and visiting friends at a local doughnut shop.
He stated that he has stopped looking for work. He first indicated that if he had some English upgrading he might be able to work but then stated that he did not think he could do anything.11
When his appeal was denied on May 22, 1992, Mr. Dukic filed for reconsideration, arguing that "the doctors who said he was able to return to work were wrong."12
The Insurer noted further a WCB form signed by Mr. Dukic on June 15, 1994 in which he indicated that he was not currently working, that he had not worked at all since he began receiving a pension supplement and that his work injury prevented him from working.13 Separate documents confirm, as had the WCAT decision, that Mr. Dukic began receiving the pension supplement, called an older worker's supplement, in early 1987.14 When cross-examined on this form at the hearing, Mr. Dukic testified that he meant only to tell the WCB that he was not able to do heavy work. He denied that ripping out and replacing floor beams and plywood at the Wasaga Beach cottage constituted heavy work.
Finally, I note the following from other records entered into evidence. Mr. Dukic obtained a note from his family physician on January 13, 1993 stating that "due to health problems Rade Dukic is unable to shovel snow."15 He attended for x-rays of his hip, lumbar, sacral spine and coccyx on February 2, 1993, he saw his family doctor on February 5 and 15, 1993 for osteoarthritis and he received physiotherapy treatment for osteoarthritis on February 15, 16, 17, 18, 19, 22, 24, 25 and 26.16 He attended more medical appointments in February 1993 than any other month that year.
ANALYSIS AND CONCLUSION
My focus must be on evidence of self-employment which meets the previous-156-week test. There is a much greater than even chance that work stated to have been done in 1992, without specifying the date, was done prior to November 27, 1992. However, evidence of work done in 1993 and 1994 clearly falls within the 156-week period.
As regards the evidence of floor work done at the Wasaga Beach cottage, Ms. Appleton told the consultant that this work was done in 1993. Mr. Dukic contradicted himself at the hearing about when this work was done but his statement to the Insurer indicated that he had worked for a month in February 1993. Whether this work was done in February 1993 or sometime later that year, I find it unlikely that Mr. Dukic would receive payment on October 30, 1994 as indicated in the document he adduced as proof of payment for this work.
As regards Ellen's statement to the consultant that in 1994, Mr. Dukic had done landscaping, outside maintenance and grass-cutting at 213 Roncesvalles, I observe that the document Mr. Dukic adduced as proof of payment for this work is dated January 1994. I find it unlikely that Mr. Dukic would be hired to do landscaping and grass-cutting work in January or that, in the absence of specific evidence to this effect, he would be paid in advance for work to be done later in the year.
As regards the February 1994 cheque to "cash" for work done at 201 Geoffrey, there is no evidence beyond Mr. Dukic's own testimony that this was in respect of construction work performed by him. Again, I find it unlikely that this payment was in respect of work done in February 1993, as alleged in his statement to the Insurer.
As regards his statement to the Insurer, I seriously doubt that Mr. Dukic did any construction work in February 1993 given his apparent inability to shovel snow in January 1993 and the sheer number of medical appointments he kept in February 1993, quite apart from the health problems he was experiencing which necessitated these appointments.
I recognize that recordkeeping and date-recalling may not have been Mr. Dukic's strongest talents and that he did declare business income in 1994 in the same amount as the total of the figures on the documents he entered into evidence. I might, therefore, have been able to resolve the doubts mentioned above in Mr. Dukic's favour had he called supporting witnesses or impressed me as a credible witness. He did neither.
In my view, the workers' compensation records destroy Mr. Dukic's credibility as a witness. They confirm that both prior to and during the 156-week period, Mr. Dukic presented himself to the WCB and WCAT as a person who was totally disabled, unable to do "any kind of work" or "anything," and who, for that reason, was not working and had stopped looking for work. This self-portrait left no room for the kind of distinction Mr. Dukic attempted to draw on cross-examination between heavy work and the work he claimed to have done in this proceeding or, as his counsel argued, between competitive and non-competitive employment. Nor does it leave me with any alternative but to conclude that Mr. Dukic misrepresented his ability to work, either to the WCB and WCAT or to me, and that he is, therefore, an unreliable witness.
Given that Mr. Dukic was the only witness who testified that he did, in fact, work during the relevant period, and in light of the inconsistencies in the supporting documentary evidence, I find that he has not discharged the burden of proving, on the balance of probabilities, that he was self-employed in construction at some point in the 156-week period prior to the accident. His claim is, therefore, denied.
EXPENSES:
I retain jurisdiction if the parties are unable to agree on expenses.
June 8, 2000
David Leitch
Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 100
FSCO A99-000165
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
RADE DUKIC
Applicant
and
STATE FARM MUTUAL AUTOMOBILE 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. Dukic is not entitled to income replacement benefits from May 27, 1997.
June 8, 2000
David Leitch
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.
- Exhibit 4(a), Tab 1.
- Exhibit 6, Tab 20.
- Exhibit 6, Tab 20.
- Exhibit 6, Tab 20.
- Exhibit 6, Tab 20.
- Exhibits 1(a) and 1(b).
- Exhibit 1(c).
- Exhibit 4(a), Tab 2 and Exhibit 2.
- Exhibit 4(a), Tab 2 and Exhibit 2.
- Exhibit 3(a), Tab 1.
- Exhibit 3(a), Tab 1.
- Exhibit 3(d), p. 19.
- Exhibit 3(d), p. 2.
- Exhibit 5, Tab 1, p. 7.
- Prior 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.