Neutral Citation: 2001 ONFSCDRS 133

FSCO A00-000777

BETWEEN:

VASKEN ATIKIAN

Applicant

and

CERTAS INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

K. Maine Palmer

Heard:

July 3 and 4, 2001, at the Financial Services Commission of Ontario in Toronto.

Appearances:

Mr. Atikian represented himself

Krista Springstead for Certas Insurance Company

Vasken Atikian was a pedestrian crossing the street when he was injured in a motor vehicle accident on July 29, 1998. He applied for statutory accident benefits from Certas Insurance Company ("Certas"), payable under the Schedule.¹ Certas did not pay Mr. Atikian any weekly income replacement benefits because it denied he met the eligibility criteria for those benefits. The parties were unable to resolve their disputes through mediation, and Mr. Atikian 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:

Does Mr. Atikian meet the eligibility criteria for income replacement benefits under the Schedule? Specifically, was he entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing, according to the provisions of subparagraph 4-3.i. of the Schedule?
If the answer to question one is "yes," is Mr. Atikian entitled to those benefits for any period after August 5, 1998 because he suffers a substantial inability to perform the essential tasks of the employment he was entitled to start under the contract?
If the answer to question one is "no," is Mr. Atikian entitled to non-earner benefits, according to the provisions of section 12 of the Schedule?
Who should pay the expenses of the arbitration? Each party claims expenses from the other.

Mr. Atikian also claims interest on any payments owing.

Mr. Atikian does not meet the eligibility criteria for income replacement benefits under the Schedule, since he was not entitled at the time of the accident to start work within one year under a legitimate contract of employment that was made before the accident and that is evidenced in writing.
Mr. Atikian is not entitled to non-earner benefits, according to the provisions of section 12 of the Schedule.
Mr. Atikian should pay Certas its expenses of the arbitration.

If you are not employed at the time of an accident, one way in which you may qualify for income replacement benefits ("IRBs") is to show that before the accident you had a contract of employment to start work within one year. This contract of employment must be "legitimate" and "evidenced in writing." As the case law has shown, the phrase "evidenced in writing" does not mean that a written contract must have been created before the accident. However, the oral contract or agreement must have existed before the accident.² Letters confirming offers of employment written after an accident, for the purpose of supporting a claim for income replacement benefits, and not in the normal course of business, may be given very little weight.³

As Mr. Atikian himself realized, this case turns entirely on the question of credibility, both with respect to the alleged contracts of employment made before the accident and the reported disability caused by his injuries. I will deal with the question of the contracts of employment first.

Two Pre-Accident Contracts of Employment:

Mr. Atikian claims that before the accident of July 29, 1998 he had secured two contracts of employment to begin full-time work. One contract was to work as a salesperson at a jewellery store, Marquess Jewellers, owned by his uncle. The other contract was to work as a salesperson at L'Oro Jewellers. Mr. Atikian's evidence about the formation of the contracts was extremely vague, illogical, contradictory and inconsistent, both in his evidence-in-chief and on cross-examination. The scenario as related by him is not plausible, even taking into account his allegations that he suffered a head injury in the accident of July 29, 1998.

No other party to these alleged contracts of employment testified at the arbitration. Although both Mr. Atikian's parents testified, only Mrs. Atikian testified about one job, the L'Oro Jewellers job, and then only that her son had applied there before the accident. Mr. Atikian did not call as a witness either his uncle or any representative of L'Oro Jewellers. I draw an adverse inference from the absence of these witnesses, to conclude that their evidence would not support Mr. Atikian's claim of the prior existence of the contracts.

Mr. Atikian's account of the circumstances leading up to the creation of the alleged written contracts of employment is not worthy of belief, for the following reasons:

Mr. Atikian did not mention either contract of employment in his telephone conversation of August 11, 1998 with Certas' representative, at least according to the notes of the adjuster, David Gill. (Mr. Atikian did not deny this. His explanation is outlined below.)
Mr. Atikian did not mention either contract of employment on his application for accident benefits.⁴ Under Part 5 of the application where he had to indicate his status as employed, unemployed, student or caregiver, Mr. Atikian noted he was unemployed. He may have also checked the box that he was receiving Employment Insurance benefits, although it is not clear whether the mark may be erroneous or extraneous.⁵ In Part 8 of the application, Mr. Atikian noted employment between December 1 and December 27, 1997 for two different telemarketing companies, for 25 hours per week and 30 hours per week, respectively.
Certas sent Mr. Atikian an Explanation of Benefits form dated September 24, 1998 stating that Certas had reviewed his application and had determined he was not eligible for income replacement benefits "as you were not employed at the time of the accident nor have you been employed in the last 26 out of 52 weeks of the year. As well, there was no future contract of employment." Mr. Atikian did not register any objection to this assessment.

In the same document Certas told Mr. Atikian that he might be eligible for non-earner benefits "however in order to be eligible, you must suffer a complete inability to carry on a normal life as a result of the accident. There is a 26-week waiting period for this benefit."

Eva Sobolewska, an accident benefit claims advisor with Certas, testified that her first contact with Mr. Atikian was on January 12, 1999 when she telephoned him. She testified that she went over the application for accident benefits with Mr. Atikian that he had submitted in the autumn. He had many questions. She testified that she explained the eligibility criteria for income replacement benefits. They also discussed his physiotherapy treatment. During that conversation Mr. Atikian first mentioned that he had a future contract of employment to start in September 1998. Ms. Sobolewska had no particulars of this job in her notes. Ms. Sobolewska arranged to meet Mr. Atikian at his home on January 22, 1999. I accept Ms. Sobolewska's account of this telephone conversation. In the context of the manner in which the case unfolded, I find it probable that Mr. Atikian invented the future contract of employment during the telephone conversation.
During their meeting on January 22, 1999 Ms. Sobolewska completed a statement form that Mr. Atikian signed. In that statement he disclosed that he had a future contract of employment with Marquess Jewellers as a salesperson, for eight hours a day, six days a week, beginning in August 1998 at $10 per hour, plus commission. Ms. Sobolewska testified that she requested Mr. Atikian provide a copy of the job offer. He did not provide this at their meeting. Neither did he mention any other company from which he had an offer of employment. I accept Ms. Sobolewska's account of this meeting.
On February 9, 1999 Ms. Sobolewska received a copy of an application for employment from Mr. Atikian. He admitted at the hearing that the entire form was completed in his handwriting, including the section to be completed by management only if the applicant has been hired. The date of the application and date of hire are noted to be July 27, 1998, one day before the accident. Ms. Sobolewska requested a statement be taken from the store owner. Two statements were taken from Jack Atikian on February 18 and 19, 1999. Mr. Jack Atikian runs a family business with no employees other than himself, his wife, and their daughter. He told the investigator that there was no formal résumé or application form received from Mr. Atikian. He stated, "There was nothing in writing because it was not necessary. It was assumed that Vasken could start working here anytime in August, 1998 or at the end of July, 1998."

In contrast to the statement of his uncle, Mr. Vasken Atikian testified at the hearing that he and his uncle filled in the application together on the day it is dated. Mr. Atikian also testified that only he kept a copy of the application, not his uncle. Mr. Atikian was vague about this job offer at the hearing; he testified he considered it a last resort, "if all else failed." He testified that his uncle later reminded him about this job offer, presumably after the accident.

In the context of the manner in which the case unfolded, I find it probable that Mr. Jack Atikian was attempting to be helpful to his nephew in his statement. Although I accept there may have been some discussion in the family about Vasken Atikian finding employment with his uncle at some time prior to the accident, I do not find, on a balance of probabilities, that the evidence supports that there was a definite, legitimate contract of employment.

On February 15, 1999 at his insurer's examination with Dr. David Goldstein, Mr. Atikian advised him of his contract of employment with Marquess Jewellers. This was the first mention in a doctor's record of his future contract of employment.
On February 24, 1999, Ms. Sobolewska informed Mr. Atikian that Certas would not accept that the alleged job at Marquess Jewellers qualified as a future contract of employment. On March 18, 1999 she called Mr. Atikian to inquire about his treatment and progress and learned that someone had called him recently to offer him a job, but he did not feel able to work. She also learned that Mr. Haigo Derian of L'Oro Jewellers had allegedly contracted with Mr. Atikian in July 1998 to employ him as of August 3, 1998 as a salesperson. On March 25, 1999 Ms. Sobolewska received by facsimile transmission a document dated July 13, 1998, signed by Mr. Atikian and Mr. Haigo Derian and entitled "Letter of Employment" on the letterhead of L'Oro Jewellery Ltd.

Certas investigated this alleged contract of employment and interviewed both Mr.Vahram Derian, the owner of L'Oro Jewellery Ltd. and Mr. Haigo Derian, his son, who had signed the document dated July 13, 1998. Their statements were filed as exhibits at the arbitration. Certas was not convinced that the alleged contract of employment was bona fide and denied it with reasons in a letter dated May 27, 1999.

I agree with Certas that it is entirely implausible that Mr. Atikian, having secured employment with L'Oro Jewellery Ltd. on July 13, 1998 at $12 per hour for a "guaranteed minimum" of 44 hours per week, to start August 3, 1998 would then approach Marquess Jewellers for employment on July 27, 1998 at $10 per hour. I do not accept Mr. Atikian's evidence that this employment was a fall-back or that he needed "options and doors." I do not accept Mr. Atikian's contention that he did not know he had a job with L'Oro Jewellery. This is an unlikely scenario and does not accord with either the written contract of employment, dated July 13, 1998 nor with Mr. Haigo Derian's statement. In addition, Mr. Derian claims he phoned Mr. Atikian's home when he did not appear for work.

No evidence was presented that showed Mr. Atikian told anyone connected to the insurer about the Marquess job until he learned he needed a contract of employment made before the accident. That application was dated July 27, 1998. When that alleged contract was not accepted, he came up with the L'Oro document, which pre-dated the Marquess job offer by two weeks. The combination of the contracts is inconsistent, illogical and too convenient. Both surfaced months after the accident and do not accord with the application for accident benefits provided in September 1998. While I accept that occasionally odd circumstances may arise, particularly when dealing with relations in family-run businesses, the testimony of a single interested party is not sufficient to deal with vagueness and significant inconsistencies on critical issues. Mr. Atikian has known for over two years the precise reasons for which Certas rejected his contention that he had obtained these future contracts of employment and has produced no further evidence in support of his position either directly to the Insurer or at the arbitration hearing.

Having found that Mr. Atikian is ineligible for IRBs, since he does not meet the criteria set out in section 4 of the Schedule, it is unnecessary to determine whether he might have been entitled to the benefits as a result of any inability to perform the essential tasks of that employment.

Non-Earner Benefits

Since I have found Mr. Atikian did not qualify for income replacement benefits, I need to consider whether he met the criteria of subsection 12(1)1. or 12(1)3.i. as suffering a complete inability to carry on a normal life. Although Mr. Atikian suffered some musculoskeletal injuries in the accident and may have suffered some head pain following the accident, he carried on with university in the fall session of 1998 and earned three credits towards his Bachelor of Commerce degree by the following spring. He has continued with university in 1999, 2000, and 2001. The medical evidence, including his own doctors' clinical notes and records, the records of two rehabilitation centres, and several reports from designated assessment centres (DACs) do not support the high degree of disability required to qualify for non-earner benefits.

A report of Dr. Michael S. Weinstock, dated February 6, 2001 notes that Mr. Atikian was knocked unconscious in the accident. Although this was Mr. Atikian's testimony and has been his report to other physicians, the emergency records of the North York General Hospital do not support this contention. No ambulance records were filed in this proceeding and no witness to the accident testified, although Mr. Atikian had indicated a friend who was present at the scene would be called. Dr. Weinstock's report also indicates that Mr. Atikian lost a year of university after the accident, which is not factual, according to his transcript as set out above. Although Dr. Weinstock's report supports the notion that Mr. Atikian could not work after the accident, the report is insufficient to establish the degree of disability required to be entitled to non-earner benefits. I do not find Mr. Atikian is entitled to non-earner benefits following this accident.

EXPENSES:

Mr. Atikian has not been successful in this proceeding. He arrived late for the hearing on the first day, without any explanation. He requested that the start of the hearing be delayed by 90 minutes the second day, then did not arrive until 30 minutes after the rescheduled start time, again without explanation for the delay. By this conduct Mr. Atikian tended to prolong or hinder the proceeding and showed disrespect both for the tribunal and the opposing party. More importantly, he fabricated evidence to support his position that he had not one, but two legitimate contracts of employment that predated the accident. While it is important to ensure access to this system by unrepresented insured persons like Mr. Atikian, it is also important to discourage undesirable behaviour. I do not award Mr. Atikian his expenses of the arbitration. Certas has asked for its expenses of this arbitration. This is the type of case where an insurer should recover its expenses from an insured person. I award Certas its expenses of the arbitration under the provisions of subsection 282(11) of the Act. Certas did not request that Mr. Atikian pays its assessment under subsection 282(11.2) of the Act and I do not award this.

September 12, 2001

K. Julaine Palmer Arbitrator

Date