Jaswant Tiwana v. State Farm Mutual Automobile Insurance Company, 2001 ONFSCDRS 67

Neutral Citation: 2001 ONFSCDRS 67

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FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JASWANT TIWANA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Nancy Makepeace

Heard:

March 26 and 27, 2001, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Pavan Kumar for Mr. Tiwana

Robert S. Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Jaswant Tiwana, was injured in a motor vehicle accident on June 10, 1999. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule.¹ State Farm refused to pay weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Tiwana 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:

1. Is Mr. Tiwana entitled to income replacement benefits between June 17, 1999 and January 8, 2000? If so, in what amount?

Result:

1. Mr. Tiwana is not entitled to income replacement benefits.

If the parties are unable to agree about arbitration expenses, an expenses hearing may be arranged pursuant to Rules 73 to 77 of the Dispute Resolution Practice Code-3rd ed.

EVIDENCE AND ANALYSIS:

Background:

On June 10, 1999, Mr. Tiwana was driving his Toyota Corolla when it was struck on the left rear quarter-panel. He was 43 years old. He is married, and lives with his wife, his two children and his parents. His employment status at the time of the accident was an issue at the hearing. Mr. Tiwana claims he worked full time as a long-haul truck driver for JDXpress ("JDX") at the time of the accident. He claims that he was unable to return to this work because of headaches and concentration and memory problems resulting from the accident. He has also operated a driving school in the past, and he claims that he tried to revive this business, also without success, when he found he could not continue to drive a truck after the accident. He claims income replacement benefits from June 17, 1999 (one week after the accident) to January 8, 2000, when State Farm refused benefits based on two Insurer Medical Examinations. Mr. Tiwana submits that he is entitled to benefits of $320 per week based on pre-accident income of $400 per week.

State Farm submits that Mr. Tiwana has failed to provide information reasonably required to determine the amount of his IRBs, and therefore no benefits are payable. Although some documentation has now been provided, State Farm claims it is not reliable. In any event, State Farm submits that the medical evidence does not support Mr. Tiwana's disability claim.

Findings and Conclusion:

Evidence of Disability:

The evidence in support of Mr. Tiwana's disability claim is sparse. Mr. Tiwana described the accident in an interview with Marnie Kirkwood, a State Farm adjuster, on July 28, 1999, in Mr. Kumar's office. Mr. Tiwana was in the front passenger seat of his car, which was being driven by a friend. The driver suddenly slammed on the brakes, causing the car to skid. Another car struck it from behind, on the left side. Mr. Tiwana claims that his body struck the door (presumably the right passenger door) and his knees hit the dashboard on impact.

State Farm introduced laser photocopies of three photographs of the vehicle. They show scratches to the paint on the left side of the car just in front of the left tail light. Although it is not clear from the photographs, I am prepared to accept that the body may be slightly dented. The light appears to be intact. Mr. Tiwana admitted he could offer no documentation in support of his claim that the car needed repairs costing $6,000. I find that the accident involved relatively minor forces.

Mr. Tiwana testified that accident-related headaches prevented him from working for more than a couple of hours a day during the claim period (between June 1999 and January 2000). A little later, he said he could only work five hours a day. As he did not spontaneously give any details about the nature and severity of his headaches, I invited him to give more details. He then testified he could work for three or four hours, but not eight hours. He described his headaches as "occasional" and admitted he did not have them all the time. On further questioning, he could only say that his headaches were inside his head, and prevented him from concentrating on what he was doing. Asked whether he used any drugs for his headaches, he first mentioned Reactine, an antihistamine, and on further probing, testified that he would take one Regular Tylenol when he had a headache, and then he would go to sleep. He also described pain in his low back and right knee, but admitted these problems were not disabling.