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

Neutral Citation: 2014 ONFSCDRS 111

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BETWEEN:

JATHEES SELVARAJAH

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Alec Fadel

Heard: September 24, 25, 26, 2013, at the offices of the Financial Services Commission of Ontario in Toronto and written submissions received on November 5, 2013, November 25, 2013, December 4, 2013 and February 7, 2014.

Appearances: Arvin Gupta for Mr. Selvarajah Audrey Ramsay for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Jathees Selvarajah, was injured in a motor vehicle accident on December 3, 2009. He applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ A dispute arose concerning the applicant’s entitlement to an income replacement and housekeeping and home maintenance benefits. The parties were unable to resolve their disputes through mediation, and Mr. Selvarajah 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:

Is Mr. Selvarajah entitled to an income replacement benefit from February 4, 2010 to January 3, 2011?
Is Mr. Selvarajah entitled to a housekeeping and home maintenance benefit at the rate of $100.00 weekly from January 4, 2010 to January 3, 2011?
Is Mr. Selvarajah entitled to interest for overdue payments?
Is State Farm liable to pay a special award pursuant to s. 282(10) of the Insurance Act?
Is Mr. Selvarajah entitled to his expenses of this arbitration?
Is State Farm entitled to its expenses of this arbitration?

Result:

Mr. Selvarajah is not entitled to an income replacement benefit.
Mr. Selvarajah is not entitled to a housekeeping and home maintenance benefit.
State Farm is not liable to pay a special award.
The issue of expenses is left to the parties, if they are unable to come to an agreement, they may request an appointment before me in accordance with Rule 79 of the DRPC.

BACKGROUND:

The applicant was involved in a motor vehicle accident on December 3, 2009 while he was a passenger in the backseat of a vehicle. The vehicle he was traveling in was rear ended and the applicant testified that the impact was “not big.”

The applicant testified that prior to the accident he had a minor hairline fracture of his left wrist. He stated that his hand had been in a sling but by the time of the motor vehicle accident it was already healing and he was starting to use it. He stated that right before the accident he was holding the seats and he tensed-up when the accident occurred causing further injury to his left wrist. On his application for accident benefits he noted that he had pain in his back, neck, shoulder, aggravated fracture, pain in his elbow, pain in his knee, headaches and sleeping difficulty.

The applicant indicated that he was an employee of Goodlife Fitness since September 2008 and he returned to work immediately following the accident but shortly thereafter stopped working for the remainder of the month of December 2009. He testified that he returned to his job on January 2, 2010 to similar hours but that he was finding it hard to do because of his accident-related injuries.

By letter dated March 5, 2010, the applicant submitted an employer’s confirmation of income form (OCF-2) signed by him but not completed by the employer. He included the name and address of his general manager, Ms. Migliano. He also enclosed invoices for caregiving and housekeeping receipts for the period from December 4, 2009 to March 4, 2010. After the insurer requested an OCF-2 completed by his employer, the applicant advised that he was unable to obtain one and asked the insurer to contact the employer directly.

On a disability certificate (OCF-3) dated December 9, 2009, it was stated that the applicant re-aggravated a right wrist injury. The applicant is right-hand dominant. The insurer requested clarification with regard to the housekeeping claim, seeking information regarding what the applicant could complete prior to the accident given his pre-accident wrist injury.

Preliminary Issue

The applicant submitted that the insurer’s failure to request a competed OCF-2 directly from the employer and its failure to arrange an insurer examination contrary to s. 35(3) or (4) of the Schedule entitles him to the income replacement and housekeeping benefits sought.

I disagree for two reasons. Firstly, I find that the insurer was not in breach of its obligations under the Schedule, for the reasons below. Secondly, the law is clear that an insurer’s breach of an obligation under the Schedule does not automatically entitle an insured person to a disputed benefit.

Employer’s Confirmation of Income Form

The applicant submits that it was up to the insurer to communicate with the employer to have it complete the OCF-2, once he provided his signature on a blank OCF-2. He refers to Part 2 of the form where the applicant signs thus allowing the employer to complete the form and deliver directly to the insurer. The applicant states that once he signed the form which he claims authorizes the insurer to contact the employer directly, the insurer thereafter bears the responsibility to gather the employment information directly from the employer.

The insurer submits that it was not in breach of the legislation. It takes the position that despite receiving the blank OCF-2 signed by the applicant, it was incumbent on the applicant to provide the completed form and not for it to contact the employer directly.

I agree with the insurer, the form is meant to be signed by the applicant and delivered to the employer who then completes it and sends it to the insurer directly. No evidence was presented that showed the applicant took steps to deliver this form to his employer. In fact, the applicant’s testimony that he delivered the OCF-2 to the employer and that he followed up two or three times was directly contradicted by his employer in her testimony. In fact, Ms. Giovana Migliano, the general manager of Goodlife at the relevant time, testified that she does not recall ever receiving this document from the applicant.

The applicant gave no evidence of how he came to know that the OCF-2 that he allegedly delivered to the employer was in fact never completed. Had the applicant experienced difficulty getting the employer to complete the form, and he articulated this to the insurer, the situation may be different. In the present situation, I find that the insurer was in compliance with the Schedule by continuing to request the required completed OCF-2 and not contacting the employer directly.

Failure to request an Insurer’s Examination

The applicant submits that the insurer failed to request an insurer examination contrary to s. 35(3) or (4) of the Schedule and in doing so it was in breach of its mandatory obligation.

The insurer submits that it did not request a medical examination as it continued to request more information relating to both the income replacement and housekeeping claims pursuant to s. 33 of the Schedule.

I find that insurer’s request for information pursuant to s. 33 was reasonable. In fact, the information being sought was not forthcoming until much later and after the dispute resolution process had been initiated by the applicant.

Further, the Court of Appeal in Stranges vs. Allstate Insurance Company of Canada² makes clear that even in the face of an insurer’s inadequate refusal notice, it is still up to the applicant to prove entitlement to the claimed benefit based on the merits of the claim. Despite my finding that the insurer was not in breach with its obligations under the Schedule, given Stranges, even if I found that the insurer was in breach, this would not automatically entitle an applicant to the dispute benefit.

INCOME REPLACEMENT BENEFIT:

The applicant is seeking an income replacement benefit from the date of termination up to and including January 3, 2011. Given that this period is within the two year timeframe from the date of the accident, the applicant has to prove that he has suffered “a substantial inability to perform the essential tasks” of his pre-accident employment.³

For the reasons that follow, I do not find that the applicant has proven entitlement to the claimed income replacement benefits. I prefer the evidence of the employer over the applicant with regard to the actual job duties. The employer has nothing to gain by her testimony and her evidence was confirmed by examining the actual job description in the applicant’s employment file. The employer confirmed that the heavier aspects of the job which the applicant testified were a part of his job duties, in fact, were not. As discussed below, this was a crucial aspect to the applicant’s claim for income replacement benefits.

The applicant referred to a list of employment duties found in an occupational therapy in-home assessment report dated March 11, 2010 which are as follows:

Training
accepting/cancellation of membership
data entry
showing people machines and services
customer service

In addition, he testified that he did outreach, generated leads and cross-promoted as part of his employment duties. On cross-examination, the applicant added to his job duties, indicating that on a daily basis he shared the responsibilities for maintenance including ensuring things were clean, replacing weights and adjusting equipment.

The disability certificate dated December 9, 2009, completed by Dr. Jimmy Feng, chiropractor, indicates that the applicant would be off work for 9-12 weeks with the explanation “cannot lift equipment without pain. Pain writing.” The applicant did not return to work for the month of December.

Importantly, Ms. Migliano testified that the applicant’s job as a sales representative/manager trainee was not physically demanding, was sedentary in nature, requiring a lot of phone calls. She stated that the applicant’s essential job duties were sales, customer service and administration. She stated that the fitness manager and personal trainers, and not the sales representatives, were responsible for training clients, putting weights away, and general cleaning of the workout area. She indicated that at times the sales representatives may go out and clean but it was not an everyday occurrence and not part of their daily duties. With regard to the moving of equipment, Ms. Migliano testified that a team would come in to do that and this was not a part of the applicant’s job duties.

The applicant submits that I should conclude that he was substantially unable to do his employment by looking at his salary which reflects his sales numbers. He submits that since January 2010, his sales were significantly lower than a year prior, this is evidence that he could not complete his job. In fact, his employer testified that in the 12 month period before the accident, the applicant had failed to meet his targets for most months. She testified that his performance in general was slipping and she intended to take care of the matter at the end of November 2009 but he injured his wrist and then had the motor vehicle accident so she instead agreed to give him time off in December to get himself together. Therefore, I do not agree that the weak sales numbers in January 2010 reflect the applicant’s ability to do his job.

He stated that upon his return to work in January, he could not complete all of his job tasks, specifically that he could not show potential members how to do movements because he was restricted by back pain. He stated that he modified his own job and was exhausted at the end of the day but was not sleeping properly. He stated that he had a good relationship with his manager, Ms. Migliano, and to this date had no idea why he was fired.

Ms. Migliano testified that the applicant was in serious danger of losing his job by the end of November 2009, if his performance did not improve and this was documented in his file. She stated that he told her he needed time off in December but she wasn’t aware if it was because of a back injury or not. She only recalls him complaining about his wrist injury and not his back. She stated that upon his return in January 2010, as far as she could see he was able to complete his duties but his performance was still not there noting that he would come and go without permission and was pre-occupied. She ultimately terminated his employment without cause stating that she felt he was not what she wanted in her club. She stated that his behaviour had not changed since his earlier warning and rather than document in order to terminate his employment with cause, she chose to terminate at the time without cause.

In testimony, the applicant indicated that he applied for employment insurance in February 2010 and was ready and willing to work, however he was not looking for the same type of work but was looking in the same industry. He stated that he was trying to secure employment with Bally’s gym which was more a phone job. This is contrasted with the testimony of Ms. Migliano that the job the applicant was completing at Goodlife was sedentary in nature and mostly a job where one is required to make a lot of phone calls.

I find that the applicant has not proven that he was unable to do the tasks of his employment. Crucial aspects of his testimony were contradicted by his employer, who had nothing to gain by her testimony. The contradictions in the testimonies regarding the applicant’s job duties were as follows:

Moving machines
Putting weights away
Showing potential members how to do movements
Helping people with workouts (he didn’t specify if this was with clients, potential clients, or other employees)

Interestingly, all of the heavier aspects of the employment which the applicant claimed he could not do are exactly what the employer stated were not a part of his job. Also, none of these duties was set out in his actual job description contained in the employment file. In addition, when describing his job duties to Ms. Abraham, occupational therapist, he did not mention moving machines, putting weights away and reported to her that his job demanded a lot of “writing, sitting, walking around, etc.” I find that none of these heavier tasks was a part of the applicant’s employment duties before the accident. I accept that though not an official part of his duties, the applicant may have picked up dumbbells now and again but there is no evidence that this was a required part of his employment.

The disability certificate also referenced “pain writing,” however, I have difficulty with the applicant’s evidence surrounding his wrist injury. I agree with the insurer that there is overwhelming evidence that the applicant had injured his right wrist before the accident and not the left hand as he testified before me. On the OCF-1, he indicated that he aggravated a fracture to his palm/wrist, on the OCF-2 he hand wrote “… along with additional pain to my right hand and wrist”. The notes from the family doctor which were entered as an exhibit show that on the first visit after the accident a reference to a previous injury as “R little finger” and “Rt digit … deformity.” Also Ms. Abraham, the occupational therapist who completed an in-home assessment on behalf of the applicant, in her report references an injury to the right hand (though she also references left hand). Finally, his employer testified that she recalled him having issues with writing with his dominant hand after his hand injury (but before the motor vehicle accident) and recalled him making an effort to write with his left (non-dominant) hand. Also, while testifying, the applicant feigned surprise that the insurer questioned which hand he injured in the accident despite its specific reference to it in the OCF-9 of April 27, 2010, July 8, 2010 and in its response to the application for arbitration.

I find that the applicant has failed to prove that he meets the test of “substantial inability” to complete his pre-accident employment. His evidence regarding his employment insurance claim supports that in February 2010 the applicant was looking for the exact same type of job he had just been fired from at Goodlife. His evidence was that he was ready and able to complete this type of employment. I find that he has not proven that he was substantially unable to complete the tasks of his pre-accident employment as a result of accident related injuries.

HOUSEKEEPING AND HOME MAINTENANCE

The applicant lived in one of two apartments in the basement of his mother’s house. The applicant testified that prior to the accident he was responsible for laundry, shovelling snow, lawn work, cooking for himself, helping generally around the entire house including vacuuming. He stated that his brother and sister also lived in the family home but he completed the bulk of the housekeeping as he had more flexibility since he started his employment at 11 a.m. and could get things done in the morning. Prior to the accident, he stated he completed approximately 15 to 20 hours of housekeeping per week. This included tasks to help his mother.

The applicant testified that after the accident he could hardly do anything and relied on his brother and girlfriend for his laundry, vacuuming, meal preparation. He stated that his brother would help him with some attendant care and both were still assisting him when he returned to work in January 2010.

Ms. Yenusha Bendara, who was the applicant’s girlfriend at the time and now is his spouse, testified that she assisted the applicant with many of his housekeeping activities starting about one week after the accident on an ongoing basis. She stated that she took time off of work in order to assist once she realized the severity of his injuries.

I have some trouble with Ms. Bendara’s evidence. The invoices that were submitted for the period up to March 4, 2011, were completed by the applicant’s brother and none by Ms. Bendara. Also, the applicant testified that his mother was the main cook of the household and that he was responsible to assist with preparation before the accident whereas Ms. Bendara testified that the applicant’s mother rarely cooked before the accident.

In any event, I have issues with the applicant’s credibility given the discrepancies in his evidence concerning his job duties and his wrist injury. I am therefore hesitant to make a finding of entitlement to a housekeeping benefit on the evidence of a lay witness without medical evidence supporting same. Ms. Bendara testified that it was the left hand that was injured pre-accident. I do not understand why the applicant would state that his right hand injury was aggravated, on the disability certificate, if that was not the case, given the significance of that being his dominant hand.

The occupational therapy in-home assessment completed by Ms. Merin Billy Abraham on March 11, 2010 speaks to the applicant’s entitlement to housekeeping. After her assessment, she recommended 11 hours of assistance for an unspecified period of time.

I reject Ms. Abraham’s findings of entitlement to housekeeping. Firstly, she acknowledged the pre-existing wrist injury but there was no inquiry as to what he was unable to do before the accident and this is in the face of the applicant’s hand being in a sling, or just out of the sling, at the time of the assessment (as he testified in cross he used a sling until the spring). His function pre-accident is the relevant information that I need and, in fact, what the insurer was asking for repeatedly at the relevant time. Ms. Abraham testified that she took the applicant at his word that he was fully independent before the accident. Given my concerns with the applicant’s credibility, I give little weight to the report of Ms. Abraham.

I find that the applicant has not discharged his burden in proving that he was substantially unable to complete the housekeeping tasks he was able to do prior to the accident and he is therefore not entitled to a housekeeping benefit as claimed.

SPECIAL AWARD:

As no benefits were found owing, the insurer is not liable to pay a special award. Even if benefits were found owing, I would not conclude that the insurer acted unreasonably in this case.

EXPENSES:

If the parties are unable to reach an agreement on expenses, they may request an appointment before me in accordance with Rule 79 of the DRPC.

July 3, 2014

Alec Fadel Arbitrator

Date