Joseph Richard Ovila Godard v. York Fire & Casualty Insurance Company, 2010 ONFSCDRS 34

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2010 ONFSCDRS 34

Appeal P08-00026

OFFICE OF THE DIRECTOR OF ARBITRATIONS

JOSEPH RICHARD OVILA GODARD

Appellant

and

YORK FIRE & CASUALTY INSURANCE COMPANY

Respondent

BEFORE:

David Evans

REPRESENTATIVES:

Mr. Godard represented himself

Ms. Debbie Orth for York Fire & Casualty Insurance Company

HEARING DATE:

By written submissions

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal of the arbitrator’s order dated June 13, 2008 is dismissed.

2. If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

March 22, 2010

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Godard appeals the dismissal of his SABS–1996¹ non-earner benefit and income replacement benefit claims against York Fire & Casualty Insurance Company.

II. BACKGROUND

Mr. Godard was injured in a May 14, 1999 motor vehicle accident and claimed non-earner benefits (NEBs) and income replacement benefits (IRBs). He made a claim shortly after the accident, but the file was eventually closed due to inactivity. Back pain led Mr. Godard to re-apply for accident benefits in 2003.

The arbitrator found that Mr. Godard was not entitled to NEBs because the accident did not cause or materially contribute to his injuries.

The arbitrator found that Mr. Godard was not entitled to IRBs because he was not employed at the time of the accident but setting up a pawn shop that opened some months later.

With respect to this appeal, Mr. Godard sought to file additional materials and call additional witnesses. I denied this request, as with due diligence he could have presented that evidence at the hearing.

Pursuant to Rule 56.5(a) of the Dispute Resolution Practice Code, I ordered this appeal to be on the record because Mr. Godard failed to cooperate in setting up an oral hearing. I set a deadline for either him or his putative counsel to contact our office to make the arrangements. That deadline is long past.

III. ANALYSIS

A party may appeal the order of an arbitrator only “on a question of law”: Insurance Act, s. 283(1). Since Mr. Godard appeals on questions of fact, the appeal is denied.

The arbitrator noted that “Mr. Godard had extensive pre-accident medical conditions and complaints of a similar nature to his post-accident complaints.” She found that the medical evidence did not support the assertion that his current condition was caused by the motor vehicle accident. Although the arbitrator made this finding with respect to the NEB claim under s. 12 of the SABS, it is equally applicable to the IRB claim.

The arbitrator noted the similarities between Mr. Godard’s pre-accident medical problems and those post-accident as well as the lack of evidence relating the latter to the accident.

The arbitrator set out Mr. Godard’s pre-accident condition as follows:

• Mr. Godard was in two car accidents, one at age 17 rendering him comatose for 21 days, and another causing whiplash.
• In late 1992 he was diagnosed with myofascial pain syndrome.
• Medical reports from 1992, 1995, 1996 and 1998 provided examples of back pain.
• In 1996, after complaints of low back pain, his coccyx was removed.
• A CPP Impairment Evaluation Form filled out by his family doctor, Dr. Randlett, in March 1999 noted depression and coccyx pain.

She then set out the following regarding his post-accident condition and activities:

• X-rays were normal.
• Dr. Randlett did not increase his medication.
• She only saw him at most every six months for several years.
• Although Mr. Godard claimed he needed back surgery, a surgical consult from 2003 saw no significant need for spinal surgery.
• None of the post-accident examinations and assessments from August 2000, December 2001, January 2002, November 2002, January 2003 and January 2004 tied the 1999 accident to Mr. Godard’s impairments.
• The first causal link, set out in a November 24, 2004 treatment plan, was for the same pre-accident area of complaint in the lower back.
• No medical witnesses were called to give evidence linking his back pain or any other impairment to the accident.
• Mr. Godard was involved in setting up a pawn shop and then in its daily operation.
• No medical documentation or hospital reports supported his claim that these activities caused so much pain that he fainted.

All these findings were based on the exhibits and testimony.

With respect to the NEB claim in particular, s. 12(1)1 requires Mr. Godard to have suffered a “complete inability to carry on a normal life as a result of and within 104 weeks after the accident.” The arbitrator found Mr. Godard’s activities of daily living were not significantly altered by any impairment he may have suffered as a result of the accident. The arbitrator had evidence before her upon which to base her conclusions.

The arbitrator then set out why she gave little weight to Dr. Randlett’s Disability Certificates:

• There was no difference between the complaints set out in them and those Mr. Godard complained of pre-accident.
• Mr. Godard was more active after the accident than before it in setting up and running the pawn shop.
• Between October 1999 and December 2004 Dr. Randlett’s clinical notes and records contained no reference to the accident.
• Dr. Randlett gave no explanation for how she linked Mr. Godard’s pain to the accident.

The arbitrator therefore considered evidence and provided reasons for finding that Mr. Godard did not meet the test for NEBs.

The same lack of causation between the accident and Mr. Godard’s impairments would apply to the IRB claim. Furthermore, to be entitled to IRBs pursuant to s. 4 of the SABS, Mr. Godard had to have worked either at the time of the accident or 26 of the 52 weeks before it, or had an offer of employment starting after it. The arbitrator set out why he did not meet that test either:

• Pre-accident medical records and reports contained no reference to employment.
• Mr. Godard applied twice for accident benefits but did not claim IRBs the first time.
• Since May 1992, Mr. Godard had been receiving Ontario Disability Support Program (ODSP) and Canada Pension Plan (CPP) disability benefits.
• The only income declared for 1999 and 2000 was the CPP and ODSP benefits.
• Mr. Godard had no records to prove that before the accident he got money to prepare the pawn shop for opening by working at a flea market.
• The accountant who reviewed Mr. Godard’s records concluded the pawn shop was not open and operating at the time of the accident.
• Business records showed that Mr. Godard’s business started after the accident.
• Witnesses called by Mr. Godard testified that the shop opened around December 1999.

The arbitrator illustrated these points with reference to the exhibits. She also applied FSCO case law that an intention to be self-employed does not necessarily equate to an offer of employment.

The arbitrator made findings of fact based on the evidence and provided reasons for her conclusions. There is no reason to intervene.

The appeal is dismissed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

However, in light of my earlier ruling, any expense hearing will be on the record. The parties should contact our office within 30 days of this decision if they are seeking expenses. I will then set out a time line.

March 22, 2010

David Evans Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.