Neutral Citation: 2011 ONFSCDRS 53

FSCO A10-000901

BETWEEN:

TERRENCE BRODERICK

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Jeffrey Rogers, Arbitrator

Heard: March 28 and 29, 2011, at the offices of the Financial Services Commission of Ontario in Toronto

Appearances: Mr. Broderick, self-represented Mr. Jonathan B. Schrieder, solicitor for State Farm Mutual Automobile Insurance Company

Issues:

The issues in this hearing are:

Is Mr. Broderick entitled to receive a non-earner benefit (NEB) pursuant to section 12 of the Schedule?
Is State Farm liable to pay a special award, pursuant to subsection 282(10) of the Insurance Act?
Is Mr. Broderick entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
Is either party liable to pay the other’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?

(During the course of the hearing the parties were able to resolve additional disputes regarding Mr. Broderick’s entitlement to payment of $2,632.58 for psychological treatment by Dr. Pilowsky and his entitlement to payment of $713.72 for orthotic shoes.)

Result:

Mr. Broderick is not entitled to receive an NEB pursuant to section 12 of the Schedule.
State Farm is not liable to pay a special award, pursuant to subsection 282(10) of the Insurance Act.
Mr. Broderick is not entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.
If the parties are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Background

The Applicant, Terrence Broderick, was injured in a motor vehicle accident on September 5, 2007. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ Disputes arose regarding Mr. Broderick’s entitlement to the further benefits set out above. The parties were unable to resolve their disputes through mediation. On March 31, 2010, Mr. Broderick applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Broderick was represented by Grillo Barristers when the application for arbitration was filed. He informed the Commission by letter dated October 1, 2010 that he wished to have Grillo Barristers removed as his representative. The pre-hearing arbitrator granted his request on December 1, 2010. The pre-hearing arbitrator informed Mr. Broderick that he would be considered to be self-represented until he retained new counsel.

By letter dated February 16, 2011 Mr. Broderick informed the Commission that he had retained “Cecelia Lau of Practical Matters Wealth Management Services Inc.” to act on his behalf. The letter also informed the Commission that Mr. Broderick would prefer to be represented by a lawyer and that Ms. Lau was assisting him in finding one. By letter dated March 2, 2011, Mr. Broderick and Ms. Lau informed the Commission that Mr. Broderick had decided to be self‑represented.

Mr. Broderick did not represent himself at the hearing with the greatest skill. It was clear from the onset that he did not have a clear understanding of the legal test for entitlement to the NEB he claimed. As the hearing progressed it also became apparent that he was unable or reluctant to provide a detailed history of his pre-accident and post-accident activities. Those facts are critical to proving entitlement to the claimed NEB. I did not consider Mr. Broderick’s poor performance in the hearing to be significant enough to warrant an inquiry into whether there were grounds for rebutting the presumption that he had the mental capacity to participate in it.

Mr. Broderick was the only witness to give relevant oral testimony in the hearing. Mr. Mike Brooks, the Claims Representative for State Farm, also testified. However, his evidence related only to the issues that the parties subsequently settled.

Mr. Broderick tendered numerous documents in support of his claim. Some of the documents had been served on State Farm at least 30 days before the start of the hearing, in compliance with Rule 39.1 of the Dispute Resolution Practice Code. Others had not. Mr. Broderick advised that he believed that his previous representatives had provided copies of all of the documents to State Farm and therefore he did not know that he had to do anything further.

State Farm initially objected to admission of the documents that had not been properly served. I indicated to State Farm that I accepted Mr. Broderick’s explanation and that, in the circumstances, I would exercise my discretion to admit the documents, but give State Farm an opportunity to respond to any prejudice by adjourning the hearing. State Farm then reconsidered its position and consented to filing the documents. The only exception to this pattern was Mr. Broderick’s T-4 slip for 2007, the year of the accident.² Details of the circumstances in which I admitted the T-4 are set out later in this decision.

EVIDENCE AND ANALYSIS:

Did State Farm agree to pay NEBs?

Mr. Broderick argued that State Farm conceded his entitlement to NEBs and agreed pay them. State Farm disagreed. Mr. Broderick relied on a Report of Mediator³ to support his position. The Report refers to NEBs as an issue that is not in dispute. Mr. Broderick submitted that “not in dispute” means that State Farm agreed to pay. The Report goes on to state: “This issue was already mediated and appears on the Report of Mediator dated March 9, 2009.” The Report of March 9, 2009 was filed with the Application for Arbitration. That Report lists entitlement to NEBs as an issue that remains in dispute.

I find that the Report on which Mr. Broderick relies to prove an agreement states that NEBs are not in dispute, only because the issue had been mediated earlier. I find that State Farm did not agree to pay NEBs, as Mr. Broderick alleged.

Qualification for NEBs

To be entitled to a non-earner benefit (NEB) Mr. Broderick must first meet one of the eligibility criterion set out in section 12 of the Schedule. He must then satisfy the disability test set out in that section. Mr. Broderick makes his claim under section 12(1.1). The qualifications are therefore as follows:

He does not qualify for an income replacement benefit (IRB); and
He suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

Does Mr. Broderick qualify for an IRB?

Persons eligible for IRBs include those who were employed at the time of the accident and those who were not employed at the time of the accident but were employed for at least 26 weeks during the 52 weeks before the accident. When giving evidence on what his accident-related impairments prevented him from doing, Mr. Broderick tendered a T-4 slip for the year 2007⁴ (the year of the accident) to show that he was able to work before the accident.

State Farm objected to the admission of the T-4 on the grounds that it had not been served and was not relevant to entitlement to a claim for NEBs. State Farm also noted that, if admitted, the T-4 might show that Mr. Broderick qualified for an IRB and therefore did not qualify for an NEB. I ruled that the T-4 was relevant to an NEB claim because it provided information on pre-accident activities. I exercised discretion to admit the T-4 for two reasons. First, it might be critical to the question of whether Mr. Broderick qualified for an NEB. Second, if it showed that Mr. Broderick qualified for an IRB and not an NEB, it could raise questions about whether State Farm had met its obligation to inform him about the benefits to which he might be entitled. If Mr. Broderick qualified for an IRB and State Farm had not met that obligation, Mr. Broderick might still be able to pursue a claim for IRBs.

The T-4 shows that Mr. Broderick earned $647.68 at Fitzpatrick Electrical Contractor Inc. in 2007. After I ruled that it should be admitted, Mr. Broderick explained that he did not give State Farm the T-4 or tell them that he was working in the year before the accident because he understood that he did not qualify for an IRB. He was not employed at the time of the accident and he had worked less than 26 weeks in the 52 weeks before the accident. He therefore did not meet the eligibility criteria for IRBs set out in section 4 of the Schedule. Based on Mr. Broderick’s testimony, I was satisfied that he did not qualify for an IRB. The hearing proceeded as scheduled, without inquiry into State Farm’s investigation of Mr. Broderick’s potential entitlement to IRBs.

However, the documents that Mr. Broderick filed contain some information that is not entirely consistent with the evidence he gave about his pre-accident employment. After reading the documents I again considered the issue of Mr. Broderick’s entitlement to IRBs, based on the following information:

A Neurology Evaluation, dated August 2, 2008⁵ contains this statement: “Prior to the accident of September 5, 2007 he was employed as an electrical installer.”
An Orthopaedic Assessment by Dr. Joel Lobo, dated September 15, 2008⁶ states: “The claimant had just been employed for approximately 1 week with Fitzpatrick Electric…”
A Physiatry Assessment by Access Rehab, dated January 26, 2010⁷ states: “The examinee was working full-time prior to this automobile accident, as a communications technician.”
An Application for Approval of an Assessment or Examination, by Dr. J. Pilowsky, dated May 2, 2008⁸ states: “Mr. Broderick was employed as an electrician/installer at the time of the motor vehicle accident.”
An In-Home Assessment, dated July 21, 2008⁹ states: “Prior to the motor vehicle accident, the client was employed on a full-time basis as an electrical assistant.”

These documents either clearly state that Mr. Broderick was employed at the time of the accident or they do not mention his unemployment at the time of the accident.

The documents that Mr. Broderick filed also contain information that supports his testimony that he was not employed at the time of the accident.

A Rheumatology Assessment, dated May 11, 2009¹⁰ states: “Prior to the accident, he was working full-time as a communications technician…He was laid off 2 days prior to the accident…”
A Report by Dr. J Pilowsky, dated August 11, 2008¹¹ states: “With regards to employment, Mr. Broderick explained before the motor vehicle accident, he was on call for the Brotherhood of Electrical Workers’ Union. He also worked for Fitzpatrick Electrik [sic] as a computer technician. He reportedly worked there for one week, as this was a temporary job…[h]e was reportedly off work when the accident happened, and he was on his way to an employment agency to find another job when the subject accident occurred.”

Having considered the statements in the documents along with Mr. Broderick’s oral evidence, I again conclude that Mr. Broderick does not qualify for an IRB. I find that he was not employed at the time of the accident.

“Employed” is defined in section 2(5) of the Schedule as follows: “…a person is employed if, for salary, wages, other remuneration or profit, the person is engaged in employment…” I find the statements in the documents that corroborate Mr. Broderick’s oral evidence to be likely accurate. I give the greatest weight to the statement in the report of Dr. Pilowsky because it contains the most detail. That statement makes it clear that, on the day of the accident, Mr. Broderick considered his relationship with Fitzpatrick Electric to be at an end. He was looking for another job. Dr. Pilowsky had earlier noted in an Application for Approval of an Assessment or Examination, dated May 2, 2008¹² that: “Mr. Broderick was employed as an electrician/installer at the time of the motor vehicle accident.” The discrepancy between the statements in Dr. Pilowsky’s two reports provides a clue as to why others might have failed to note that Mr. Broderick was not employed on the day of the accident. It is likely that their focus at the time was on describing pre-accident function, not employment status. A change in employment status just before the accident would not have been important to their functional analysis.

I also find that Mr. Broderick worked for one week at Fitzpatrick Electric in the 52 weeks prior to the accident. The only employer mentioned in any of the documents is Fitzpatrick Electric. There is no evidence that Mr. Broderick worked anywhere else in the 52 weeks prior to the accident. There are several references in the documents to his hourly rate of pay. He consistently reported that he was paid around $17 per hour. At $17 per hour he would earn $680 in a 40 hour work week. His T-4 slip shows total income of $647.68.

Did Mr. Broderick suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident?

(a) The Test

“Complete inability to carry on a normal life” is defined in section 2(4) of the Schedule as follows:

…a person suffers a complete inability to carry on a normal life if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

Mr. Broderick argued that State Farm should be required to pay NEBs because it paid him housekeeping and home maintenance benefits. (for 55 weeks¹³) But the test for entitlement to NEBs is much stricter than the test for entitlement to housekeeping and home maintenance benefits. Mr. Broderick qualified for housekeeping and home maintenance benefits if accident-related impairments prevented him from engaging in any housekeeping and home maintenance services he normally performed before the accident. The NEB test encompasses all pre-accident activities and Mr. Broderick must show that impairments from the accident continuously prevented him from engaging in substantially all of them. The analysis requires a comparison between Mr. Broderick’s function before and after the accident in all areas of activity.

(b) Evidence regarding pre and post-accident activities

Mr. Broderick provided few details about his pre and post-accident activities in his testimony. He focussed on his inability to work and the fact that State Farm paid housekeeping and home maintenance benefits. He agreed that he is now independent with regard to self-care but he could not recall when he returned to independence.

Mr. Broderick told several medical professionals that he went to see his family doctor a few weeks after the accident.¹⁴ But he did not file the records from his family doctor, any other pre-accident records, or the records of anyone who treated him both before and after the accident.

The documents that Mr. Broderick filed do not provide much more information about his pre‑accident life. There are several notes in the records regarding Mr. Broderick’s inability to give a detailed history. Mr. Broderick was able to describe his brief period of work immediately before the accident. He did not report any other employment in the years immediately preceding the accident.

Dr. N. E. Norris, who conducted a Psychological Assessment on State Farm’s behalf on March 25, 2009 noted as follows: “Mr. Broderick informs that many years ago he managed a four-year apprenticeship in TV repairs and worked in that business and in elevators repair but was not able to provide more detailed work history.”¹⁵

In addition to this information, the records reveal that Mr. Broderick lived alone in a three-bedroom house that he owns. He has no children. He was responsible for all housekeeping and home maintenance and he drove his car, without restrictions. Lyudmyla Havrylechko, a Registered Nurse, conducted an In-Home Assessment at Mr. Broderick’s request on July 21, 2008. Mr. Broderick told her that he “maintained an active social life prior to his accident and enjoyed socializing with his family and friends without difficulty.”¹⁶

The documents provide some details on the post-accident restrictions of Mr. Broderick’s activities, in addition to his inability to work. They are listed below in chronological order.

On May 21, 2008, Lyudmyla Havrylechko, a Registered Nurse retained by Integris Healthcare, assessed Mr. Broderick at the request of his representative at that time. She prepared an Assessment of Attendant Care Needs (Form 1) dated May 21, 2008.¹⁷ She noted current complaints of middle and low back pain, neck swelling and pain, headaches, sleep difficulties and pain in the feet. She also noted that “Mr. Broderick reported that he is fully independent with his personal care tasks.” She recommended that an In‑Home assessment be conducted to identify Mr. Broderick’s need for housekeeping assistance.
Ms. Havrylechko conducted an In-Home Assessment on July 21, 2008.¹⁸ She concluded that Mr. Broderick was unable to fully participate in all housekeeping tasks due to reports of pain and observed limitations. She opined that Mr. Broderick required assistance with vacuuming, sweeping, mopping, laundry, kitchen and bathroom cleaning, groceries, dusting, meal preparation, garbage removal, bed changing and gardening. She recommended that a number of assistive devices be provided and that assistance for at least 10 hours per week be provided for a period of 4-6 weeks.
On August 1, 2008, Dr. Lance Majl conducted an independent Neurology Evaluation of Mr. Broderick.¹⁹ He recorded current complaints of headache, neck pain, back pain, right shoulder pain and toe pain. He states that Mr. Broderick was independent in personal care and housekeeping and home maintenance duties but that some chores caused an increase in pain.
On August 11, 2008, Dr. J. Pilowsky conducted a psychological assessment of Mr. Broderick.²⁰ She reported reduced appetite and significantly decreased libido. She noted that Mr. Broderick was more nervous while driving, but that it was not “that bad”. Dr. Pilowsky also noted that Mr. Broderick advised that he had decreased mobility, was no longer interested in socializing and had “stopped engaging in activities he once enjoyed such as walking, doing sports, going to the gym, and biking.” Dr. Pilowsky also noted that he vacuumed and swept, but that these activities were harder for him.
On September 15, 2008, Dr. Lobo conducted an independent orthopaedic assessment of Mr. Broderick.²¹ Dr. Lobo noted that Mr. Broderick was independent with regard to self-care. “His ambulatory tolerance is 20-30 minutes and he has no significant impairments with sitting for less than 1 hour.” He was receiving approximately 10 hours per week assistance with housekeeping, “but he was unable to specify…whether he had difficulty with shopping, dishwashing, floor care, meal preparation, laundry or garbage removal.” Dr. Lobo concluded that Mr. Broderick “suffers a substantial inability to carry on a normal life from the standpoint of both social and recreational/sporting activities as well as overhead activities of housekeeping and home maintenance.”
On March 11, 2009, Dr. N. E. Norris conducted a psychological assessment of Mr. Broderick at State Farm’s request.²² Dr. Norris noted that Mr. Broderick did not drive for a month and a half after the accident, due to dizziness. When he returned to driving, he was more nervous. He was unable to return to work, because “his work required standing on ladders, stability on his feet, and climbing and working in physically demanding positions.” ²³ Dr. Norris noted that Mr. Broderick was unable to socialize with friends and engage in sports as he did before the accident. He was also unable to maintain his home.
On March 3, 2009, Dr. Amarpreet Jaswal, a chiropractor, recommended that Mr. Broderick be enrolled in a chronic pain management program.²⁴ Dr. Jaswal noted that Mr. Broderick was prevented from “returning to all of his pre-accident housekeeping tasks, ADL’s and work fully and independently”. Dr. Jaswal also prepared a Disability Certificate on March 24, 2009²⁵. In the Disability Certificate, Dr. Jaswal gave the opinion that Mr. Broderick was substantially unable to engage in the essential tasks of his pre-accident employment and suffered a substantial inability to perform his pre-accident housekeeping and home maintenance activities. Dr. Jaswal also gave the opinion that Mr. Broderick qualify for NEBs because he did not suffer a complete inability to carry on a normal life.²⁶
On May 5, 2009 Dr. W. Pruzanski conducted an Independent Rheumatology Evaluation at St. Michael’s Hospital.²⁷ Dr. Pruzanski concluded that “activities in which there is lifting of weights, moving of weights from side to side, performing repetitive rotations of the upper and/or lower girdles are all contraindicated.”

(c) Findings and conclusions regarding pre and post-accident activities

In its decision in Heath v. Economical Mutual Insurance Co.,²⁸ The Court of Appeal set out the criteria for applying the definition of “complete inability to carry on a normal life”. The following is a summary of the criteria that apply to the circumstances of this case:

The analysis starts by comparing pre and post-accident activities and life circumstances;
Assessing pre-accident activities requires more than a snap-shot of the claimant’s life immediately preceding the accident. It involves an assessment of activities and circumstances over a reasonable period;
All pre-accident activities should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities identified as being important to pre-accident life;
The claimant must not only show changes. Rather, the claimant must show that those changes amounted to being continuously prevented from engaging in substantially all pre-accident activities.

Mr. Broderick was unemployed on the day of the accident. He had worked for one week at Fitzpatrick Electric in the 52 weeks prior to the accident. There is no evidence that Mr. Broderick had worked anywhere else for several years prior to the accident. I find that, on the date of the accident, Mr. Broderick had no recent history of employment, except at Fitzpatrick Electric. I find that accident-related impairments prevented Mr. Broderick from returning to a job like the one he had at Fitzpatrick Electric. His recent employment was undoubtedly important to Mr. Broderick but I give this aspect of his pre-accident life little weight because of the very limited role employment had played in Mr. Broderick’s life in the years prior to the accident.

The evidence suggests that Mr. Broderick engaged in social and recreational activities prior to the accident and that his accident-related impairments prevented or restricted his participation. However, the evidence contained no details of the extent to which Mr. Broderick engaged in these activities before the accident and no particulars of the restrictions on his post-accident function in these activities. As was the case in Heath, “the dearth of evidence²⁹” in this regard precludes giving any weight to this aspect of Mr. Broderick’s pre-accident life.

I find that the core activities in Mr. Broderick’s pre-accident life were self-care, doing necessary housekeeping and home maintenance and driving his car. Mr. Broderick returned to driving a month and a half after the accident. The assessment of attendant care needs that Ms. Havrylechko conducted on May 21, 2008³⁰, the In-Home Assessment she did on July 21, 2008³¹ and the Disability Certificate completed by Dr. Jaswal on March 24, 2009³², provide the best evidence and most persuasive opinions regarding Mr. Broderick’s function in his other core activities.

Ms. Havrylechko’s assessments, conducted about 8 months and 10 months after the accident were done on Mr. Broderick’s behalf and they directly focussed on what I have found to be Mr. Broderick’s core activities. They show that Mr. Broderick was independent with regard to self-care and needed some assistance with housekeeping and home maintenance. They do not show that he was completely unable to engage in housekeeping and home maintenance activities. Ms. Havrylechko’s assessment is consistent with the report by Dr. Majl on August 1, 2008 that

Mr. Broderick was independent in personal care and housekeeping and home maintenance duties but that some chores caused an increase in pain. It is also consistent with the report by Dr. Pilowsky on August 11, 2008 that Mr. Broderick vacuumed and swept, but that these activities were harder for him.

Dr. Lobo, in his report of September 15, 2008 stated that Mr. Broderick “suffers a substantial inability to carry on a normal life”, but he did not address the “complete inability” NEB test. Dr. Lobo’s note to the effect that Mr. Broderick was restricted with regard to “overhead activities of housekeeping and home maintenance” supports the conclusion that Mr. Broderick was not completely unable to engage in housekeeping and home maintenance.

The Disability Certificate that Dr. Jaswal completed on March 24, 2009 is the only opinion I received that directly addressed the NEB test. I accept Dr. Jaswal’s opinion that Mr. Broderick does not meet the test. I find that, although Mr. Broderick has proven that his accident related impairments restricted his engagement in some activities. He has not proven that the changes amounted to being continuously prevented from engaging in substantially all pre-accident activities. As a result, Mr. Broderick’s application for payment of a non-earner benefit and a special award must be denied.

EXPENSES:

The parties made no submissions with regard to expenses. If they are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

June 20, 2011

Jeffrey Rogers Date Arbitrator

Financial Services Commission of Ontario