Tawab Habib Shah v. Personal Insurance Company of Canada, 2013 ONFSCDRS 162

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2013 ONFSCDRS 163

FSCO A11-002437 and A11-002549

BETWEEN:

TAWAB HABIB SHAH

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

Before: Richard Feldman

Heard: September 9, 10, 11 and 12, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Alexei Antonov for Mr. Shah Thomas Hughes for Personal Insurance Company of Canada

Overview:

The Applicant, Tawab Habib Shah, was involved in motor vehicle accidents on November 12, 2009 and on November 26, 2009. At the time of these accidents, the Applicant was 18 years old and was a full-time high school student. He had also been working part-time, stocking shelves at a grocery store. Both accidents apparently involved the Applicant driving a vehicle into the back of another vehicle. After these accidents, the Applicant returned to his studies but claims that he was unable to return to work and to some of his other pre-accident activities as a result of accident-related impairments.

Mr. Shah applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹ Disputes arose concerning the Applicant’s entitlement to certain benefits. The parties were unable to resolve these disputes through mediation, and Mr. Shah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issues:

The issues in this hearing are:

Is the Applicant entitled to receive payments for housekeeping and home maintenance services at the rate of $100.00 per week from February 17, 2010 to November 26, 2011 for the services provided by Malia Shah?
Is the Applicant entitled to attendant care benefits as follows for the services provided by Malia Shah:

a. $452.77 per month from November 12, 2009 to January 31, 2010?

b. $97.71 per month from February 1, 2010 to November 26, 2011?

Is the Applicant entitled to receive weekly income replacement benefits from November 12, 2009 to September 13, 2010, at the rate of $91.85 per week?
Is the Applicant entitled to the following expenses related to Excess Health:

a. $200.00 for the cost of an attendant care report and assessment of attendant care needs (Form 1) dated February 1, 2010?

b. $100.00 for the cost of a functional abilities evaluation (FAE) on April 6, 2010 and associated transportation?

c. $102.65 for the cost of a psychological assessment on May 21, 2010 and associated transportation?

Is the Applicant entitled to interest for the overdue payment of benefits?
Is the Insurer liable to pay a Special Award because it unreasonably withheld or delayed payment of attendant care benefits to the Applicant?
Is the Insurer liable to pay the expenses of the Applicant in respect of the arbitration?
Is the Applicant liable to pay the Insurer’s expenses in respect of the arbitration?

The Applicant also originally claimed $42.52 for the outstanding cost of treatment at Toronto Health Care and $506.08 for the cost of transportation by Allways but these claims were withdrawn by the Applicant at the commencement of the hearing.

Result:

The Applicant’s claims are dismissed.
The issue of expenses is deferred.

EVIDENCE AND ANALYSIS:

Credibility

In this case, credibility is key and it is primarily due to a lack of credible evidence that this application is dismissed. For the reasons that follow, I find that much of the Applicant’s testimony was not credible and it remained largely uncorroborated.

First, much of the Applicant's testimony was not credible because, by the Applicant’s own admission, he could not remember many important details. During his testimony, the Applicant stated over and over again that he could not remember, especially when confronted with inconsistencies in his story. Either the Applicant has a terrible memory or he was being deliberately evasive. Either way, his testimony is unreliable. Furthermore, the weight that I can give the Applicant’s testimony was further eroded by the fact that the Applicant’s legal representative tended to ask leading questions in direct examination (despite several objections by opposing counsel and warnings from me). Since the questions posed often suggested the answer, the evidence was not really coming from the Applicant at all.

Second, many of the Applicant’s assertions were uncorroborated. Later in this decision, I shall provide specific examples of situations in which the Applicant’s claims have been significantly weakened due to lack of corroboration.

Finally, even where some additional evidence was adduced on behalf of the Applicant in an attempt to bolster his testimony, I found such evidence also to be unreliable. A good example of this is the Functional Abilities Evaluation (“FAE”) performed by Dr. Tavares in May 2010.

Report of Dr. Tavares

At the time Dr. Tavares performed his assessment of the Applicant and prepared his report, he had no reports or other medical documentation available to him. Dr. Tavares relied entirely upon what he was told by the Applicant and upon his observations of the Applicant.

Dr. Tavares found that the Applicant had a normal range of motion for his back, neck, shoulders, forearms and wrists. When it came to tests of strength, however, the Applicant scored as low as 17% of what would be considered normal for a man of his age (19 at the time) and significantly lower than normal on virtually all of the strength tests (i.e., the Applicant demonstrated significant weakness throughout his body). Based upon these results, Dr. Tavares found that the Applicant had a moderately affected functional ability.

Dr. Tavares did not make any findings with respect to the cause of this general weakness nor did he make any conclusions as to what activities the Applicant could or could not do (since Dr. Tavares made no inquiries into the Applicant's pre- or post-accident activities of daily living). Dr. Tavares did not specifically comment on any of the accident benefits that are currently in dispute. Nevertheless, the Applicant relies heavily upon the test results and conclusions of Dr. Tavares in attempting to establish that, as of late May 2010, the Applicant still had significant functional limitations.

For the reasons that follow, I give little weight to the findings of Dr. Tavares.

First, the test results may not be reliable. The results are only meaningful if the Applicant made an honest effort. Dr. Tavares testified that he always assumes that the person he is testing is putting forth their best effort unless there are obvious signs of malingering. The tests he chose to administer did not include any objective validity measures, he did not measure the Applicant’s heart rate (which can be a measure of effort) and he did not perform any mathematical analysis to see if the variance in results (for repetitions of the same test) is more than what is normally expected (i.e., greater than standard deviation).

Second, these results were highly unusual. No rational explanation has been provided for the significant weakness noted by Dr. Tavares in late May 2010. In June 2010 Dr. Robert Fielden, an orthopaedic surgeon, examined the Applicant. When the Applicant was seen by Dr. Fielden in June 2010, Dr. Fielden tested for muscle strength and symmetry and did not note any marked abnormality in the Applicant’s strength. The Applicant did exhibit a significantly reduced cervical range of motion and he refused to perform many of the movements requested by Dr. Fielden. There is no explanation for the marked difference in the way in which the Applicant presented before Dr. Tavares and Dr. Fielden.

During his testimony before me, Dr. Fielden stated that the marked degree of weakness noted by Dr. Tavares throughout the Applicant’s body was not consistent with the way the Applicant presented before Dr. Fielden. Dr. Fielden went on to state that he does not believe that anyone is that weak, without having a serious disease or neurological or musculoskeletal disorder (and there is no evidence of such disease or disorder in this case). Finally, Dr. Fielden noted that, based upon the history of this case, such significant weakness throughout the Applicant's body in the summer of 2010 could not have been caused by the automobile accidents of November 2009.

Finally, this significant weakness only appears during the examination of Dr. Tavares in May 2010. It was not noted in December 2009 when the Applicant was examined by Dr. Kaufman and was not noted in June 2010 when he was examined by Dr. Fielden. Also, according to the Applicant's testimony, within months of convincing Dr. Tavares that he had significant muscle weakness throughout his body, the Applicant went on to work a job at McDonald’s (starting in September 2010) as well as jobs doing landscaping and moving furniture. Given the lack of documentation concerning the landscaping and moving jobs and the unreliability of the Applicant’s memory, it is possible that he was doing those jobs (or other equally physically demanding jobs) around the time he was seen by Dr. Tavares (or even earlier).

Given all of this evidence, I find it more likely that the Applicant was putting forth less than maximal effort when tested by Dr. Tavares than that his condition suddenly and dramatically worsened after seeing Dr. Kaufman and then dramatically improved shortly after seeing Dr. Tavares. Thus, I find the report of Dr. Tavares to be of little assistance in this case.

Housekeeping and Home Maintenance

Pursuant to section 22 of the SABS-1996, an insurer is obliged to pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.

The Applicant claims housekeeping and home maintenance services at the rate of $100.00 per week from February 17, 2010 to November 26, 2011 for the services provided by his sister, Malia Shah.²

At the time of the accidents in November 2009, the Applicant was an 18-year-old high school student. He was living in a three-bedroom house with his parents (both in their late 30s) and his 24-year-old sister, Malia. Malia was a full-time university student and had a couple of part-time jobs. The Applicant’s mother did not work outside the home and was the homemaker for the family. Nevertheless, the Applicant and his sister were expected to help with housekeeping tasks.

The Applicant stated that his pre-accident housekeeping and home maintenance tasks included: shovelling snow, cutting the grass, washing dishes, taking out the garbage, cooking for himself, cleaning the bathroom after each use and doing his own laundry. He stated that he, his mother and his sister would do a thorough cleaning of the house (the “big cleaning”) at the end of each week (Friday and Saturday) but he admitted that his mother and sister did the bulk of the cleaning. The Applicant tended to focus his efforts on cleaning the bathroom and his own room as well as the dining room. Typically, his role in the “big cleaning” took about 1.5 hours.

As a result of the accidents, the Applicant suffered soft-tissue injuries that resulted in pain to his back, neck and shoulders. He testified that he could not lift heavy objects for about a year. According to the Applicant, for about two or three months, he found it difficult to do some of his activities of daily living, including some of his housekeeping chores. As a result, his sister had to assist him and take over some of his housekeeping and home maintenance duties.

Eventually, the Applicant submitted expense forms (invoices) for the housekeeping assistance that had been provided by Malia. He claimed $100.00 per week for 12 weeks (from November 13, 2009 through February 16, 2010). All of the work listed in these invoices related to the “big cleaning” that was done on Fridays and Saturdays.

The Insurer paid the invoices that were submitted to it for the 12-week period from November 13, 2009 through February 16, 2010 ($1,200.00). No invoices were ever submitted to the Insurer for any housekeeping and home maintenance services provided after February 16, 2010.

The Applicant could not explain why no invoices were submitted for any period subsequent to February 16, 2010. When it was suggested during cross-examination that perhaps it was because he felt better and no longer needed assistance with housekeeping, he once again said that he could not remember. Malia Shah testified that she continued to help her brother with housekeeping chores after February 16, 2010 but could not recall how many hours per week were devoted to this or how many weeks this continued; she did not keep any records in this regard and did not complete any more invoices.

The Applicant admitted that by about February 2010 he was able to do more of the household chores and that by about March 2010, he was able to participate again in the weekly “big cleaning” (although he still had difficulty bending over to do scrubbing in the bathroom). This is consistent with the findings of Ms. Vuckovic, the occupational therapist who conducted an in-home assessment of the Applicant in March 2010 (and who testified at this proceeding).³

The only medical opinion after February 2010 that suggests that the Applicant continued to suffer a substantial inability to perform housekeeping tasks is contained in a Disability Certificate from Dr. Khajavi dated May 1, 2010. As far as I know, Dr. Khajavi did not conduct an in-home assessment of the Applicant. No report has been filed by Dr. Khajavi to further explain this conclusion and Dr. Khajavi did not testify at this proceeding. The bases for his conclusions remain unclear and untested. I therefore give little weight to this opinion.

The preponderance of the evidence suggests that, by about February 2010, the Applicant was able to resume most of his housekeeping and home maintenance duties. Beyond that time period, no invoices were submitted by the Applicant to the Insurer and there is no record (or other reliable evidence) of any reasonable and necessary additional expenses incurred by or on behalf of the Applicant for housekeeping and home maintenance services or details of any such services provided to the Applicant. I therefore find that the Applicant has failed to prove that he is entitled to any of the housekeeping and home maintenance benefits that he has claimed.

Did the Applicant’s Impairment come within the WAD II Guideline?

The Insurer submitted that the Applicant’s impairment is a Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline. For the reasons that follow, I agree with the Insurer’s position on this issue.

For accidents in November 2009, if an applicant’s impairment is a Grade II whiplash-associated disorder (“WAD II”)⁴ that comes within a Pre-approved Framework Guideline, then an insurer is not required to pay an income replacement benefit for any period longer than 16 weeks after the accident (pursuant to subsection 5(2)(e) of the SABS-1996) and no attendant care benefit is payable to the applicant (pursuant to subsection 16(1.1) of the SABS-1996).

With respect to the accident on November 12, 2009, the Applicant was in the process of helping friends move. He was driving a rental truck (a cube van). As a result of looking away from the road, he rear-ended another vehicle. According to the testimony of the Applicant, the next morning he felt some pain in his neck, shoulders and lower back. Within a few days, he sought medical attention but does not recall any further details. The Disability Certificate from Dr. Marcia Richards (November 14, 2009), a chiropractor at Toronto HealthCare Inc., lists the injuries as sprain/strain of the spine and shoulder muscles.

Two weeks later, on November 26, 2009, the Applicant was driving his parents’ Honda Civic on his way to a friend’s house. At this time, he cannot recall whether he rear-ended another vehicle or whether his vehicle was rear-ended. The documentation from around that time is similarly confused. This second accident allegedly exacerbated the symptoms from the earlier accident.

Within two days of the first accident (i.e., one day after symptoms appeared), Dr. Richards was apparently recommending and seeking approval for almost $3,500 worth of treatment. Within two days of the second accident, a different clinic (Accident Injury Rehab) was recommending and seeking approval for approximately $2,900 worth of treatment.

In principal, the Insurer approved of the type of treatment sought but was inquiring whether or not the Pre-approved Framework (“PAF”) was applicable. The Insurer requested that the Applicant submit a properly completed Application for Accident Benefits (Form OCF-1) and requested that the Applicant undergo an evaluation by Dr. Harry Kaufman with respect to the treatment proposed by Dr. Richards. This assessment took place on December 21, 2009 (i.e., within about three weeks of the second accident).

Dr. Kaufman examined the Applicant and considered the medical documentation that was available at that time. In his report of December 21, 2009, Dr. Kaufman states as follows:

On physical examination, there was no evidence of any substantial impairment of a musculoskeletal or neurological origin. He displayed reasonable strength, range of motion, and no obvious neurological deficit. His injuries appear to be soft tissue in nature. There is no evidence to suggest otherwise…

…treatment could have been reasonably performed within the PAF Guidelines…

…The claimant sustained a WAD II soft tissue injuries. There is no evidence to suggest otherwise.

Dr. Kaufman also testified at this hearing and further explained his conclusions. According to Dr. Kaufman, there were no complaints of headaches, radiculopathy or pain otherwise extending into his limbs. There was no indication that the Applicant required medication. The orthopaedic examination was unremarkable. The Applicant demonstrated normal reflexes, strength and range of motion in his upper and lower extremities (i.e., his arms and legs) and reasonable range of motion in his back and neck. There was no spasm or point tenderness in the thoracic and lumbar regions of his back. There was some point tenderness (in his upper back/neck) but this was to be expected so close in time to the accident. In short, there was nothing to suggest that the Applicant’s impairments did not come within the Pre-approved Framework for Grade I and II Whiplash Associated Disorders.

In response to Dr. Kaufman’s report, on March 4, 2010, Dr. Richards authored a rebuttal report. Dr. Richards asserts that the treatment provided under the Pre-approved Framework would not have been sufficient in this case but does not really explain how she came to this conclusion. She also does not explain why treatment could not have started under the Pre-approved Framework and then continued after conclusion of treatment under the PAF (based on any recommendations that may have been contained in the discharge report required under the PAF). Finally, Dr. Richards is silent on whether the Applicant’s impairment is a Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline. Dr. Richards did not testify at this hearing.

I do not find the report of Dr. Richards to be either helpful or persuasive. Dr. Richards states conclusions without explaining the basis for those conclusions. For example, she states:

Due to the nature, severity and the number of injuries sustained by Mr. Shah and when also considering the existing barriers to recovery, the goods and services recommended in Appendix B of the Pre-Approved Framework Guideline were not sufficient. Based on the information gathered during the disputed examination, considering the patient’s medical status, functional limitations, pre-existing conditions, existing barriers to recovery and mechanism of injury from the motor vehicle accident it is evident that the services outlined in the treatment plan dated November 19, 2009, were essential in the management of this case.

This raises more questions than it answers. What “barriers to recovery”? What “pre-existing conditions”?⁵ What was there about the “mechanism of injury” that made normal treatment under the PAF inappropriate? Dr. Richards explains none of this in her report of March 4, 2010. If there are any other reports from Dr. Richards, these were not put into evidence at this hearing.

In any event, the rebuttal report of Dr. Richards is focused on a dispute over treatment that had been recommended by Dr. Richards. That is not the issue I must decide. Rather, what I must decide is whether the Applicant’s impairment is a Grade II whiplash-associated disorder that comes within a Pre-approved Framework Guideline. Really, the only opinion directly on point comes from Dr. Kaufman.

The Applicant’s legal representative suggested that the fact that there were two accidents within two weeks ought to be determinative of this issue (i.e., takes the Applicant out of the WAD II Guideline). I disagree. It is only relevant if there is evidence of specific pre-existing and/or accident-related occupational, functional or medical circumstances that either preclude the insured person from being able to fully participate in the functional restoration model or require concurrent treatment in addition to the treatment that is provided within the WAD II Guideline (Guideline No. 02/09) and that constitute compelling reasons why other goods or services are preferable to those provided for within the WAD II Guideline. No such evidence (compelling or otherwise) was adduced in this case.

For the foregoing reasons, I find that the Applicant’s impairment is a Grade II whiplash-associated disorder (“WAD II”) that comes within a Pre-approved Framework Guideline. As a result, no attendant care benefit is payable to the Applicant and the Insurer is not required to pay an income replacement benefit for any period longer than 16 weeks after the accident.

Attendant Care

The Applicant claims attendant care benefits as follows for the services provided by his sister, Malia Shah:

a. $452.77 per month from November 12, 2009 to January 31, 2010; and

b. $97.71 per month from February 1, 2010 to November 26, 2011.

During closing arguments, the Applicant’s representative conceded, however, that there was really no basis for any attendant care claim beyond mid-September 2010.⁶

Based upon my finding that the Applicant's impairment is a Grade II whiplash-associated disorder (“WAD II”) that comes within a Pre-approved Framework Guideline, pursuant to subsection 16(1.1) of the SAB-1996, no attendant care benefits are payable to the Applicant.

Income Replacement Benefits (IRBs)

The Applicant claims weekly income replacement benefits from November 12, 2009 to September 13, 2010 (the date he started work at McDonald's), at the rate of $91.85 per week.

The Applicant failed, without reasonable explanation, to provide the employment information requested by the Insurer. The Applicant also failed to produce reliable evidence sufficient to verify the particulars of his pre- and post-accident earnings, making it is impossible to calculate any IRBs to which the Applicant might be entitled. For these reasons, I am dismissing the Applicant's claim for income replacement benefits.

Section 33 Defence

Pursuant to subsection 33(1) of the SABS-1996, a person applying for a benefit shall, within 10 business days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining the person’s entitlement to a benefit. Pursuant to subsection 33(2), the insurer is not liable to pay a benefit in respect of any period during which the insured person failed to comply with subsection (1). Pursuant to subsection 33(4), if an insured person who failed to comply with subsection (1) subsequently complies, the insurer shall pay all amounts that were withheld during the period of non-compliance, if the insured person provides a reasonable explanation for the delay in complying.

Around the time of the accidents, the Insurer provided to the Applicant a blank Form OCF-2, Employer’s Confirmation Form, and asked the Applicant to have it completed by his employer, Metro Ontario Inc. This form is used by insurers to verify details of an insured person’s pre-accident employment (dates of service, whether there is an income continuation plan or other collateral benefits available, job description, essential tasks of job, etc.) as well as verifying the insured person’s income from employment. A completed Employer’s Confirmation Form from Metro Ontario Inc. has never been provided to the Insurer.

There is no documentary evidence that the Applicant or his counsel (who has been involved since November 2009) ever attempted to get Metro Ontario Inc. to complete this form. The Applicant testified that he orally requested that his employer complete this form but, given his appalling lack of recall with respect to virtually all other aspects of this case, I find this testimony to be suspect and it is completely unsupported by any documentation (such as follow-up letters to Metro Ontario Inc. that one would expect to have been sent by his lawyers).

It appears to me that the Applicant and his legal representatives made little effort to document any alleged loss of income until the eve of this hearing, as evidenced by their failure to seek any records from Canada Revenue Service until June 2013. The Applicant was provided by his employer with pay stubs and T4s, which the Applicant testified he gave to the accountant he used to prepare his tax returns. Yet, the Applicant apparently never made an effort to gather the documents that were in the possession of his accountant relating to 2009 through 2011 and such documents have never been provided to the Insurer.

At some point, shortly before this hearing, the Applicant provided to the Insurer what purports to be a copy of the Applicant’s employment file from Metro Ontario Inc. Nevertheless, in my view, this does not constitute compliance under section 33.

Even if delivery of the Applicant's file from Metro Ontario Inc. in 2013 did constitute compliance, it does not revive the Insurer’s obligation to pay any amounts that were withheld during the period of non-compliance unless the Applicant provides a reasonable explanation for his delay in providing to the Insurer either the form it requested or other documentation originating from the employer from which the Insurer could gather the information that would normally have been contained within the Employer’s Confirmation Form.

Pursuant to section 33 of the SABS-1996, I find that there are no income replacement benefits owing to the Applicant for the period from November 12, 2009 to September 13, 2010.

Calculation of IRBs

Even if I had not concluded that section 33 of the SABS-1996 provides a complete defence to the Applicant’s claim for IRBs, his failure to adduce sufficient information concerning his pre- and post-accident income also preclude me from calculating the benefits to which he might be entitled. Without additional information from the employer and/or evidence from an accountant, I find that I am unable to calculate the IRB with any precision. To the extent that the onus is upon the Applicant to prove the quantum of any IRB to which he may be entitled, I find that the Applicant has failed to meet that onus.

The only details the Applicant provided concerning his earnings from Metro Ontario Inc. were contained in the documents the Applicant obtained from that company. By late 2009, the Applicant was earning a regular wage of $9.50 per hour and typically worked about 5 hours per week at the grocery store.

The Applicant elected to have his IRB calculated based upon his income in the four-week period prior to the first accident. According to the printout of amounts paid to the Applicant, the last four pay dates on or before November 12, 2009 (the date of the first accident) were October 22, October 29, November 5 and November 12, 2009. It appears from this record that the Applicant was paid a total of $229.63 for this four week period ($57.80 + $48.30 + $45.93 + $77.60). Assuming (without deciding) that these amounts represent net weekly pay, this would result in an IRB (if the Applicant qualifies for this type of benefit) of approximately $45.00 per week (80% of the net income he received in the four weeks prior to the accident). The Applicant's representative misread this printout by adding each dollar amount in the right-most column for the four weeks ending November 12, 2009. This was an error because some of the amounts in that column actually represent subtotals and including them results in double counting (which is probably why the Applicant's representative calculated the IRB at $91.85 per week, roughly double my estimate).

Although the employer’s printout of payments made to the Applicant provides some help, it does not show what amounts may have been deducted by the employer. There are also other documents contained in the employer’s file which suggests that the insurable earnings were different than what was paid. The Canada Revenue Agency Notices of Assessment that were put into evidence by the Applicant are not accompanied by the actual tax returns filed by the Applicant or any of the supporting documentation (such as T4s or pay stubs) which might assist in showing actual income earned, CPP and EI deductions and applicable income taxes.

It is also not clear which four-week period ought to be used to calculate IRBs; one could look to the pay received by the Applicant during the four weeks immediately prior to November 12, 2009 (the date of the first accident) or to the pay earned during that period (since there is a lag between when the pay is earned and when it is paid). The Applicant’s representative did not specifically address this issue in his submissions. This complexity is compounded by the fact that the records from the employer indicate that the Applicant’s last day of work was November 4, 2012 (the date upon which his employment was terminated⁷), even though he may have continued to receive some cheques after that date for past services, holiday pay, etc.

In addition, there are serious questions about the income that was earned by the Applicant after November 2009. The Insurer would be entitled to deduct from any IRBs 80% of net income received by the Applicant in respect of employment subsequent to the accident.

The Notice of Assessment for 2009 shows that the Applicant’s total earnings from employment (as shown on T4s) were $2,912.00. The Record of Employment from Metro Ontario Inc. for the 53 pay periods ending November 7, 2009 shows that the Applicant’s insurable earnings from his employment at Metro Ontario Inc. totalled $1,717.76. This suggests that the Applicant had employment income in 2009 from one or more sources other than Metro Ontario Inc. The Applicant has failed to provide particulars concerning this other employment income and he has failed to provide any documentation to show when in 2009 this additional income was earned (i.e., whether it was earned before or after November 2009).

The Notice of Assessment for 2010 shows that the Applicant’s total earnings from employment (as shown on T4s) were $2,805.00 but that he also had net business income of $6,770.00, for a total income in 2010 of $9,575.00. The Applicant admitted that he started to work at McDonald's on September 14, 2010 and is only claiming income replacement benefits up to that point.

During the Applicant's cross-examination, the Insurer pressed for details of the business income earned by the Applicant in 2010. In particular, the Insurer wanted to know what kind of work the Applicant was doing and when. The Applicant's response (once again) was that he could not remember. He could not recall how he had earned that money. However, he had previously stated that he was not doing any other work during the time that he worked at McDonald’s. If the business income was related to work done by the Applicant, this meant that it had to have been earned prior to September 2010.⁸ Due to the late hour, the cross-examination of the Applicant had to be interrupted.

When cross-examination of the Applicant continued the next morning, the Applicant indicated that, since he had some time to think, he now recalled that the business income in 2010 related to moving furniture and landscaping work that he had done. When asked about when that work had been done, the Applicant contradicted his earlier testimony and stated that all of the business income was related to work that had been done during the period of September to December 2010 (i.e., while he was also working at McDonald’s). In light of the Applicant's inability to recall so many other details, I found this change in his testimony to be highly suspicious and would like to have seen some documentation to corroborate his testimony. According to the Applicant, his accountant has all of his income tax records (including records relating to his business income in 2010). The Applicant was unable to explain why he had not bothered to produce at this proceeding any of these financial records. I draw a negative inference from the failure of the Applicant to adduce those records.

Conclusion — IRBs

For the foregoing reasons, I find that the Applicant is not entitled to any income replacement benefits.

Claims re Excess Health

The Applicant claims compensation for the following expenses related to Excess Health:

$200.00 for the cost of an attendant care report and assessment of attendant care needs (Form 1) dated February 1, 2010;
$100.00 for the cost of a functional abilities evaluation (FAE) on April 6, 2010 and associated transportation; and
$102.65 for the cost of a psychological assessment on May 21, 2010 and associated transportation.

No evidence was introduced during the hearing with respect to these claims to explain the basis of these claims, to explain how the amounts were calculated or why the assessments in question or associated charges were reasonable and necessary and payable under the Schedule. The Applicant's representative made no submissions with respect to these claims. In the absence of any evidence or arguments to support these claims, they are dismissed.

Special Award

No evidence was introduced during the hearing that supported a claim for a Special Award and the Applicant's representative made no submissions with respect to this claim. Furthermore, since the Applicant has failed to prove entitlement to any of the benefits claimed, a claim for a Special Award cannot be supported and must also be dismissed.

CONCLUSION:

For all of the foregoing reasons, the Applicant's claims are dismissed.

EXPENSES:

With respect to the issue of the expenses of this proceeding, if the parties are unable to resolve this issue on their own, either party may, within 30 days, make a written request for me to determine the matter in accordance with Rules 75 through 79 of the Dispute Resolution Practice Code.

December 12, 2013

Richard Feldman Arbitrator

Date