Neutral Citation: 2004 ONFSCDRS 162

FSCO A03-000446

BETWEEN:

YASSIR M. YOUSIF

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

June 15, 16 and 18, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ngozi A. Oti for Mr. Yousif

Jean-Claude Rioux for RBC General Insurance Company

The Applicant, Yassir M. Yousif, was injured in a motor vehicle accident on January 23, 2002. RBC General Insurance Company ("RBC") denied Mr. Yousif’s claims for various statutory accident benefits under the Schedule¹, and he 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:

What is Mr. Yousif’s entitlement to income replacement benefits under Part II of the Schedule?
What is Mr. Yousif’s entitlement to attendant care benefits under section 16 of the Schedule?
What is Mr. Yousif’s entitlement to housekeeping expenses under section 22 of the Schedule?
Is Mr. Yousif entitled to interest on any overdue benefits under subsection 46(2) of the Schedule?
Is Mr. Yousif or RBC entitled to expenses of the arbitration under subsection 282(11) of the Insurance Act?

Mr. Yousif is not entitled to income replacement benefits under Part II of the Schedule.
Mr. Yousif is not entitled to attendant care benefits under section 16 of the Schedule.
Mr. Yousif is not entitled to housekeeping expenses under section 22 of the Schedule.
Mr. Yousif is not entitled to any benefits and he is not entitled to interest under subsection 46(2) of the Schedule.
I defer the decision on the parties' expense claims until they have attempted to resolve this issue.

Mr. Yousif was a belted, front-seat passenger in his friend's car on January 23, 2002, when it spun out of control at approximately 100 kilometres an hour and struck a concrete guard wall. Mr. Yousif’s head hit the window on impact, and he was shocked and confused when he got out of the vehicle after police arrived to open his door. Taken by ambulance to hospital from the scene, Mr. Yousif was examined and released with advice to return for a head scan in two days.

The radiograph images did not detect an internal head injury, but the evidence is that Mr. Yousif’s right side of his head was swollen immediately after the accident. His complaints of sleep apnea/insomnia, periodic headaches and dizziness, poor concentration and memory are generally consistent with the expert opinions that he sustained a mild head injury along with moderate soft tissue neck and back pain.

Income Replacement Benefits:

Mr. Yousif claims his psychological symptoms from the head injury along with soft tissue back and neck pain have continued virtually unabated since the accident. He claims entitlement to an ongoing income replacement benefit because he suffers a substantial inability to perform his essential tasks² as an artist. RBC denied his initial claim.

Apart from his disability, Mr. Yousif must first establish that he was employed or self-employed at the time of the accident, employed or self-employed for more than half of the one year previous to the accident, or had a legitimate employment contract to begin work within a year after the accident.³ Mr. Yousif claims employment status under two of the above categories; he was going to start working as an artist at a gallery shortly after the accident under a contract of future employment and, alternatively, that he was self-employed in this trade during the year before the accident.

Mr. Yousif’s evidence is that he trained as an artist, sold some of his artwork on consignment and special events in Toronto before the accident, and was planning to focus his energy on sales at Toronto's summertime Caribana festival. He testified and submitted a letter made after the accident, indicating he had a written employment contract with a gallery to begin creating art for this festival commencing shortly after the accident.

Mr. Yousif’s claim that he had a written employment contract is not supported by the gallery owner's evidence.⁴ Mr. Maxwell Blackwood, owner of MBA & Sons Art Gallery & Gifts, testified that he wrote the letter for Mr. Yousif after the accident, but denied the portion of the letter stating they had entered into a written agreement.

Mr. Blackwood's best recall is that he paid Mr. Yousif between $350 to $750 for the net proceeds of 8 to 12 art pieces he sold for him during the year before the accident, explaining that during the fall of 2001 he discussed Mr. Yousif’s use of his gallery basement for a workshop beginning in the winter of 2001. There is no evidence they discussed Mr. Yousif’s hours of work, duties, production or supervision.

The lack of evidence that Mr. Blackwood and Mr. Yousif discussed the terms of employment is consistent with their evidence they did not have a written agreement before the accident dealing with the percentage distribution of the proceeds for the sale of his art work consigned to the gallery. Their business relationship was informal, and I find Mr. Blackwood's letter has little weight because it was not written in the ordinary course of their business relationship.⁵

The informality of their business relationship, Mr. Blackwood's false statement that they had a written agreement, and the lack of evidence about the essential terms of employment⁶undermines the credibility of Mr. Yousif’s claim he had a legitimate job offer at the time of the accident. Nor can I believe that Mr. Blackwood would agree to pay Mr. Yousif a regular salary when the sales of his art work through the gallery were admittedly small prior to the accident.

Mr. Yousif’s testimony that he earned $16,500 as a self-employed artist during the year before the accident is likewise not supported by the evidence. He showed photographs of his art work and stated he had a record book of his art transactions and bank accounts at his residence. Mr. Yousif did not produce any of these records at the hearing.

Mr. Yousif stated he bought wood and other materials from suppliers to make his art work before the accident, but could not estimate the amounts and admitted he has no documents to show his purchase of materials. He did not even take time to itemize his claimed self-employment sales and tally the income or associated expenses to provide a basis for calculating his benefit.

Mr. Yousif’s 2001 tax return shows he had T4 earnings of $1,374 through temporary employment. He did not identify the number of weeks this amount represents, and there is no evidence he had temporary work for 26 weeks in 2001. Apart from the unemployment insurance and social assistance payments Mr. Yousif reported that year, there is no evidence in the records to verify his claim that he reported $16,500 or any earnings from his art sales to social assistance or Revenue Canada.

Mr. Yousif’s tax report and social assistance records are consistent with his admission to an RBC kinesiologist after the accident - Ms. Carrie Stavness interviewed Mr. Yousif in June 2002 for a work-site analysis of his prospective employment duties at the art gallery. She testified Mr. Yousif told her he was unemployed from September to December 2001 while preparing sketches and art samples for his future employment, and was not engaged in selling his art work during that period. Her evidence is likewise consistent with a similar statement he made shortly thereafter to another kinesiologist who conducted a functional examination for RBC.

At the hearing, Mr. Yousif insisted he did not tell Ms. Stavness he was unemployed during this period, stating she misunderstood him without an Arabic translator present for the interview. I do not accept that Mr. Yousif’s recall is accurate because he could not remember how much Mr. Blackwood paid him, how much profit he made from selling his art work in 2001 and admittedly suffered from a poor memory. Mr. Yousif's excuse that he was told he could re-file his 2001 tax return later to declare his self-employment income does not comport with his obligation to make a full declaration based on the information he knew at the time he filed.

Mr. Yousif’s poor memory and the contradiction between his income claims and reported income leads me to conclude that his evidence is not reliable. I prefer Ms. Stavness' evidence because her specific recollection that he spoke comfortably in English to her about his employment status was refreshed by her written report, and it is consistent with her fellow kinesiologist and Mr. Yousif's tax return reporting no self-employment income in 2001.

Mr. Yousif produced no reliable documentary or oral evidence to contradict his 2001 tax return. The wide variations, inconsistencies and completely uncorroborated claims Mr. Yousif makes in this proceeding do not meet his burden to establish he earned self-employment income as an artist or permit me to accurately calculate his income replacement benefit based on those earnings and associated expenses.

I find that Mr. Yousif did not earn self-employment income during 26 of the 52 weeks preceding the accident⁷, did not have a legitimate contract of future employment at the time of the accident, and he is not eligible for income replacement benefits under Part II of the Schedule.

Attendant Care Benefits:

Mr. Yousif testified he could not go out of his house for the first 4 to 5 months after the accident, and relied on neighbourhood friends and his relatives to cook, clean, dress him and keep him company every day. He submitted a letter dated March 10, 2002 from Mr. Yussir Idris in support of his claim for the following personal care services between January 25 and February 9, 2002: shaving and hair care, trimming nails, dressing/undressing, bathing and keeping him company for eight hours a day at $10 per hour. The letter claims a total of $1,220 for attendant care benefits under section 16 of the Schedule.

RBC hired an occupational therapist to determine Mr. Yousif's attendant care and housekeeping needs in early April 2002. Ms. Robin Ellison met Mr. Yousif at the house he shared with two other men. She identified his chief physical problems as lifting, trunk rotation and balance. Her report confirms that Mr. Yousif said Mr. Idris helped him following the accident, and that he was able to take care of all his personal needs afterwards. Ms. Ellison recommended Mr. Yousif receive no attendant care in April 2002.

Mr. Yousif did not submit a recommendation for attendant care from a qualified health practitioner.⁸ Ms. Ellison does not comment or offer an opinion about Mr. Yousif’s attendant care needs for the immediate post-accident period in either her report or her evidence at the hearing. His psychiatrist, Dr. Mortimer Mamelak, first saw Mr. Yousif almost two years after the accident, also testified and had no opinion concerning Mr. Yousif's homemaking or personal care needs during the immediate post-accident period.

In his evidence, Mr. Yousif did not describe his specific attendant care needs, and Mr. Idris did not testify to identify the amount of time and frequency of his services. Since his purported written statement is not signed and also contains little specific information about each task, it is of no value. Mr. Yousif’s evidence is not reliable and, absent Mr. Idris' explanation of his attendant care services plus a recommendation from a qualified health care expert, I find that Mr. Yousif is not entitled to attendant care benefits on the basis of the March 10, 2002 letter.

Mr. Yousif’s second letter of claim from Mr. Idris has an unidentifiable signature and is undated. The letter claims $4,530 for 453 hours work between February 2002 and March 2003. The letter does not state what attendant care services Mr. Idris provided for Mr. Yousif, and there was no evidence to explain this deficiency during the hearing. As a result, Mr. Yousif's second letter of claim has no weight, and again I find that Mr. Yousif is not entitled to attendant care benefits on the basis of the second claim letter.

Housekeeping Benefits:

Shortly after the accident, Mr. Yousif signed a written statement for RBC that he was not able to perform the house cleaning, cooking, laundry and take out the garbage as a result of his accident injuries. Mr. Yousif’s complaints about dizziness and poor sleep are consistent and well-documented in clinical studies and are consistent with the bump he received when his head hit the car on impact. I accept the experts' consensus that Mr. Yousif sustained a mild head injury along with moderate soft tissue injuries of the back and neck.

The March 2002 disability certificate from his treating physiotherapist indicates Mr. Yousif was unable to carry or lift a 7-10 pound laundry basket, recommended he avoid vacuuming as a result of decreased physical strength, range of motion and reported dizziness/lack of concentration. The April 2002 home visit from Ms. Ellison is consistent with this initial health care report, as she concluded Mr. Yousif was able to do light to medium household tasks such as dusting, dish washing, changing his bed, but needed help with heavier tasks.

Several physicians that RBC engaged provide contradictory opinions based on his health records and examinations. However, I prefer Ms. Ellison's opinion about his functional abilities because she saw his activities at home, as opposed to a clinical analysis. I accept her recommendation that RBC pay two hours a week housekeeping.

The problem is that Mr. Idris' letters are the only evidence he engaged outside services for himself, and the two letters do not indicate any housekeeping activities. Mr. Idris did not testify to explain whether he did any household chores between the accident and May 2002, and I give Mr. Yousif’s testimony no weight because he is not reliable.

I am not prepared to award Mr. Yousif any housekeeping expenses without supporting evidence to confirm he engaged a housekeeper to conduct heavier household chores during the initial four month period after the accident. I find that Mr. Yousif is not entitled to housekeeping expenses under section 22 of the Schedule.

EXPENSES:

The parties should attempt to resolve their claims for the expenses of this arbitration process by first reviewing Rules 75 through 79 of the Dispute Resolution Practice Code (4th ed., Updated October 2003). Please contact the caseworker to set up an assessment hearing if you cannot settle on entitlement and amounts through your discussions.

November 5, 2004

Fred Sampliner Arbitrator

Date