Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 132

FSCO A11-003585

BETWEEN:

ROSHANTH BALASUNDERAM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Insurer

Before: James Robinson

Heard: February 3 & 4, 2014, at the offices of the Financial Services Commission of Ontario in Toronto. Written submissions were received on May 7, 2014

Appearances: Mark Fahmy for Mr. Balasunderam

Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Roshanth Balasunderam, was injured in a motor vehicle accident on January 2, 2010. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm terminated weekly income replacement benefits in early September 2011. State Farm terminated attendant care benefits in early April 2010. State Farm did not pay housekeeping and home maintenance benefits requested by the Insured. The parties were unable to resolve their disputes through mediation, and Mr. Balasunderam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Claim for Special Award Disallowed

At the commencement of the hearing respondent’s counsel moved that the applicant’s claim for a special award be disallowed on the basis that the applicant had failed to provide written particulars of the basis for his claim within 30 days of the date of the pre-hearing as ordered by Arbitrator Renahan. I agreed with the submission of the respondent and struck the applicant’s claim for a special award.

Claim to Add Issues Disallowed

At the conclusion of the hearing a question arose with respect to the following medical benefits which the applicant contended had been added to the arbitration:

(a) $970.68 for chiropractic services, pursuant to an OCF-18 prepared by Dr. James Fung dated April 26, 2011; and

(b) $960.57 for chiropractic services, pursuant to an OCF-18 prepared by Dr. Scott McRae dated August 3, 2011.

I requested written post-hearing submissions from the parties upon this matter. Upon a review of those submissions, I am satisfied that neither of these claims was the subject of a mediation. I agree with the submission of respondent’s counsel that, pursuant to Rule 25.1(a) of the Dispute Resolution Practice Code that in the absence of a prior mediation these issues could not be and were not added to the arbitration and that I lack jurisdiction to do so.

The issues in this hearing are:

Is Mr. Balasunderam entitled to receive a weekly income replacement benefit from September 3, 2010?
What is the amount of weekly income replacement benefit that Mr. Balasunderam is entitled to receive?
Is Mr. Balasunderam entitled to attendant care benefits in the amount of $361.95 per month from April 2, 2010?
Is Mr. Balasunderam entitled to payments for housekeeping and home maintenance services from January 2, 2010 to date and ongoing?
Is State Farm liable to pay Mr. Balasunderam’s expenses in respect of the arbitration?
Is Mr. Balasunderam liable to pay State Farm’s expenses in respect of the arbitration?
Is Mr. Balasunderam entitled to interest for the overdue payment of benefits?

Result:

Mr. Balasunderam is entitled to receive a weekly income replacement benefit from September 3, 2010 to January 1, 2012.
Mr. Balasunderam is entitled to receive weekly income replacement benefit in the total amount of $2,528.22 as set forth in Schedule “A” to these reasons.
Mr Balasunderam is entitled to attendant care benefits in the amount of $361.95 per month from April 2, 2010 to August 1, 2010.
Mr. Balasunderam is entitled to housekeeping and home maintenance payments for the period from January 2, 2010 to August 1, 2010.
State Farm is liable to pay Mr. Balasunderam’s expenses in respect of the arbitration.
Mr. Balasunderam is not liable to pay State Farm’s expenses in respect of the arbitration.
Mr. Balasunderam is entitled to interest for the overdue payment of benefits.

EVIDENCE AND ANALYSIS:

Background:

Mr. Balasunderam was born in Sri Lanka in 1985 and was 24 years old at the time of the accident.

The Applicant was driving his 2008 Honda Civic on McCowan Road at its intersection with Pitfield Road in the City of Toronto at approximately 3:30 P.M. on January 2, 2010 when his car was struck from the right in a T-bone fashion by another vehicle which had failed to stop at a red light. The Applicant’s recollection is that his head and shoulder came into contact with the car interior and his right knee hit the dashboard. The Applicant, who testified through a Tamil interpreter throughout the hearing, reported that he was “shocked” and “nervous” after the accident but that he felt no immediate pain. Some five days after the accident he visited his family doctor complaining of lower back pain as well as pain in his neck and right shoulder.

Credibility

The Applicant’s testimony lacked credibility. The following is a brief recapitulation of some of the more troubling aspects of his evidence.

On Friday March 12, 2010 at approximately 11:00 P.M. at night the Applicant was involved in a second car accident, subsequent to the accident which is the subject of the present arbitration. The Motor Vehicle Accident Report filed in evidence with respect to this second accident confirms that the Applicant was the driver and that the other occupants of the car were another man and two women. The Applicant’s testimony was that he had answered an “urgent” request to provide a ride for these individuals. He claimed that he could not provide a concrete answer to the identity of the passengers other than the first name of the male. He was unsatisfactorily vague about the supposed destination of these passengers. He was evasive and conspicuously vague in his answers under cross-examination. The Applicant denied that this was a social occasion involving two couples out late on a Friday night. Neither his testimony nor his manner of giving it was believable.

I do not accept the Applicant’s explanation. I am satisfied that it is it more consistent with the available evidence than not that the accident occurred while the Applicant was out on a social occasion with friends. This is completely inconsistent with the Applicant’s testimony that he had become socially withdrawn after the first accident and is also inconsistent with his reports of driver’s anxiety.

The Applicant’s testimony with respect to the supposed psychological consequences of his accident are also not well supported by the report of the Applicant’s psychiatrist, Dr. Pushpa Kanagaratnam, dated July 25, 2011. The difficulty is that the report was prepared some four months after the second accident to which reference has been made. There is no mention of this second accident in Dr. Kanagaratnam’s report and I am not satisfied that the Applicant told her anything about it. This is a glaring omission of material information, all the more troubling given that the Applicant communicated directly with Dr. Kanagaratnam, his own psychiatrist, in the Tamil language.

The problems with the Applicant’s case do not end there. In her report dated March 15, 2012 Dr. Veronica Kekosz, the Applicant’s physiatrist, reviews the employment background of the Applicant. As she describes the Applicant’s employment history, it is evident that she was completely unaware of his employment as a driver for Pickle Barrel restaurant from August 2010 through December 2011 or of his other employment in 2011. In cross-examination the Applicant could not explain how this could be.

In fact, throughout his cross-examination when pressed about inconsistencies or asked for clarification, his tendency was to reply that he did not remember or did not know. For instance, he could not explain why Dr. Steven Simone, a chiropractor, in his report of December 1, 2010, noted that the Applicant was “Currently off work.” He could not explain why the Initial Social Work Assessment dated March 22, 2011 prepared by Yulanda Julien states that “The client has not been able to resume employment…” He could not explain why his psychiatrist, Dr. Pushpa Kanagaratnam, stated in her report dated July 25, 2011 that the Applicant “…rated himself 100% disabled with regards to regular employment.” The Applicant was in fact employed on all these occasions.

The Applicant could not explain why Dr. Judith Pilowsky, a psychologist to whom he was referred for an Insurer’s Examination, would state in her report dated June 16, 2010 that the Applicant was “…too nervous, scared, and anxious to drive a motor vehicle.” This assessment was conducted some four months after the Applicant’s second motor vehicle accident.

The Applicant testified that he had been truthful in his statements to the professionals with whom he dealt. Even if allowances are made for any language barrier, the inconsistencies again give me every reason to doubt the veracity of his testimony. These inconsistencies and omissions are, as it were, consistent and give rise to a reasonable inference that the Applicant was tailoring his disclosure to these professionals to create an impression of disability substantially at odds with the real circumstances of his life.

This is particularly problematic as it may relate to the claimed psychological consequences of the accident. As Dr. Pilowsky observed in her report of June 16, 2010: “It is important to note that the contents of this report are based, to a large degree, on the patient’s presumed truthfulness. As such, any inconsistencies in self-report may influence my impression and conclusions.” In my view the value of the preponderance of the reports submitted is substantially undercut by the unreliability of the Applicant’s self-report.

In the circumstances the best way forward to an understanding of his physical injuries would be the reports of medical specialists to the extent that their findings are seen to have been derived from physical examination and from test results.

Is the Applicant entitled to receive a weekly Income Replacement Benefit?

The Applicant had worked full-time as an office cleaner for some four months prior to the accident. His duties included cleaning, sweeping, mopping, dusting, vacuuming, waxing and polishing floors as well as cleaning and steaming carpets in offices. He also performed window-washing which required the use of ladders. His evidence was that his pre-accident health was excellent and he testified that he was fully functioning in all aspects of his life prior to the accident. He lived alone and rented a room, as he does now.

The Insurer paid income replacement benefits to the Applicant after the accident but those benefits were terminated on September 1, 2011 and an OCF-9 Form was delivered to the Applicant explaining the reasons for the termination.

1. Did the Applicant suffer a substantial inability to perform the essential tasks of his employment as a result of and within 104 weeks of the accident?

The next matter for consideration is whether the Applicant is entitled to benefits for the period from September 3, 2010 as claimed in his Application for Arbitration and thereafter for the balance of the 104-week period after the accident.

The relevant legal test on that issue is set forth in subsection 5(1) of the Schedule which provides, in part, as follows:

5(1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident in the insured person satisfies one or both of the following conditions:

The insured person,

(i) was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment…

In the light of my earlier finding with respect to credibility, I am prepared to accept the testimony of the Applicant only to the extent that I am satisfied that it is corroborated by objective medical evidence derived from physical examination of the Applicant and from tests. In that regard two reports filed by the Applicant are, I find, of importance.

The first is the report of Dr. T. N. Siller, an orthopaedic surgeon, dated August 9, 2011 who states as follows:

On physical examination his neck has fifty percent range of motion. He has pain and tenderness along the spine, but not in the suprascapular notches. The back has about fifty percent range of motion. He is tender in the lumbosacral area and possibly in the right buttock and posterior thigh…

The second is the aforementioned report of Dr. Veronica Kekosz, physiatrist, dated March 15, 2012, who states as follows:

Lumbar spine alignment showed a decreased lordotic curve. There was some paralumbar muscle tenderness. Spinal mobility was mildly limited on forward flexion to just below the knees...

Dr. Kekosz concludes as follows:

Impression:

Rosahanth has suffered a right L5-S1 disc herniation as a result of his accident, and he is also suffering with mild chondromalacia with some irregularity of the patellofemoral joint on the left. This more than likely is related to his injury. He has been left with mild impairment of the lumbar spine, and he will be suffering with a partial disability, in terms of returning to any form of manual work.

The Applicant’s evidence was that carpet-cleaning was the primary element of his pre-accident employment and that he was no longer capable of loading and unloading a steam-cleaning machine or a commercial-grade floor polisher from a van at different service locations, as his duties required. I also accept that because of his shoulder and back pain he could no longer perform the repetitive motions involved in pushing a steam cleaner or a floor polisher or the ability to apply the necessary downward pressure for rug shampooing. I find that the same symptoms prevented him from washing windows at the top of a ladder.

I am satisfied that the medical evidence, including the clinical notes and records of Dr. D. Jegatheeswaran and the report of Dr. Kekosz, adequately corroborate this testimony. I accept the Applicant’s duly corroborated testimony and find on the balance of probabilities that he was unable to return to his duties as an office cleaner because he was physically unable to perform the duties of that employment. The medical evidence supports the relevant portions of the Applicant’s testimony and is not, in my judgment, materially contradicted by any of the other medical evidence filed.

I find on the basis of the available evidence that the Applicant’s employment as a driver for Pickle Barrel did not require him to do lifting or bending and that it represented a modified employment, the physical demands of which were consistent with his injuries.

I am satisfied that the accident which is the basis of this claim was the cause of the Applicant’s injuries. I am therefore satisfied that the Applicant has met his burden of proof with respect to subsection 5(1) of the Schedule. I accordingly find that during the 104 weeks following the accident the Applicant suffered a substantial inability to perform the essential tasks of his employment as a cleaner.

2. Did the Applicant suffer a complete inability to engage in any employment after the first 104 weeks of disability?

Whereas the Applicant testified that he commenced work for the Pickle Barrel Restaurant as a driver after his benefits were terminated, a Staff Overtime Status Report from the Pickle Barrel which was produced in evidence indicates that the Applicant commenced work on August 16, 2011, some two weeks prior to the termination of his income replacement benefits. The Applicant testified that this was an unpaid training period and that his paid employment post-dated the termination of benefits by the Insurer. Whether he was paid or unpaid for the period the Applicant was clearly working and admitted so.

The question for determination is whether the Applicant meets the test set forth in subsection 6(2) of the Schedule which provides as follows:

(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability; or

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

It was the uncontradicted evidence of the Applicant, supported by the records of the employer, that he worked as a driver for the Pickle Barrel Restaurant from August 16, 2010 through December 21, 2011. Thereafter he was placed in temporary jobs by an employment agency before finding his present employment with a printing company where he works full-time operating machinery to stuff envelopes.

The Applicant testified that he had completed high school in Sri Lanka before coming to Canada in 2008. He attended ESL classes upon his arrival in Canada and then commenced employment as an office cleaner in 2009. It was apparent at the hearing that his English-language skills are limited. He has not had an opportunity to advance his education since his arrival in Canada. He has been employed as a manual labourer, driver and machine operator since 2009 except for those periods when he has been off-work and receiving benefits.

I find that, by virtue of his education and English-language skills, the work in which the Applicant engaged in the period 104 weeks after the accident is employment to which he is “reasonably suited by education, training and experience.”

I am therefore satisfied on the basis of the available evidence that he does not meet the “complete inability” test set forth in subsection 6(2).

Amount of Weekly Income Replacement Benefit

The Applicant’s position with respect to the amount of weekly income replacement benefit was complicated by his return to employment as a driver for Pickle Barrel on August 16, 2010. The statement of earnings produced in evidence from the employer confirms that the Applicant was paid at the all-inclusive rate of $10.25 per hour depending upon the hours worked on any given day.

The Applicant was also employed as a temporary worker for Pertec Staffing Inc. on certain unspecified dates in 2011 with gross employment income of $574.08 for the year.

Moreover the Applicant was further employed by DST Output Canada Inc. on certain unspecified dates in 2011 with gross employment income of $16,152.26 for the year.

The Respondent’s submission was that upon a year-over-year basis the Applicant’s income in the year following the accident was actually higher than it had previously been. Respondent’s counsel suggested that this would disentitle the Applicant to income replacement benefits.

I am satisfied that the proper test to apply, should I determine that the Applicant’s case otherwise satisfies the requirements of the Schedule, is that the Respondent must “top up” any deficiency in the Applicant’s income on a weekly basis.

Unfortunately the Applicant has failed to meet his burden of proof in an important respect. His gross employment income in 2011 was $36,965.00 according to his Canada Revenue Agency Notice of Assessment, filed in evidence. If his only employer in that year had been Pickle Barrel, it would be possible to use the weekly statement of earnings filed in evidence to determine whether, in any given week in 2011, the amount earned by the Applicant should be “topped up” by the insurer.

In the absence of information with respect to the timing of the payments by DST Output Canada and Pertec Staffing Inc., the Applicant has failed to prove that in any week in 2011 he received less than the $331.47 in Income Replacement Benefit which he claims.

Therefore the Applicant has not proved that he should receive any Income Replacement Benefit for the taxation year 2011 and subsequently to January 2, 2012.

The situation is somewhat better for the taxation year 2010. In that case it does not appear from the available evidence, including the Applicant’s 2010 tax return, that he had any employment income other than that received from Pickle Barrel.

The Applicant’s claim for replacement income in the amount of $331.47 per week should accordingly be abated an appropriate amount to the extent of his earnings from his employment in any week in 2010 subsequent to the accident.

Insofar as the accident occurred prior to September 1, 2010 the income replacement calculations must be determined pursuant to subsection 6(1) of Ontario Regulation 403/96 at the amount of “80 per cent of the insured person’s net weekly income from employment…” Although the evidence adduced at the hearing disclosed only the Applicant’s gross employment income, Insurer’s counsel did not dispute the submission of Applicant’s counsel that a reduction of thirty (30) per cent applied to the Applicant’s gross income would serve to arrive at a net figure in any week. In the absence of any better evidence, I think it reasonable to proceed upon that basis and will accordingly do so.

Annexed as Schedule “A” to these Reasons is a spreadsheet setting forth the Applicant’s entitlement to income replacement benefits for the period from August 16, 2010 through December 31, 2010, calculated on the basis that in any calendar week throughout the period in which his net earnings were less than the amount of $331.47 claimed, the Applicant is entitled to have the shortfall made good by the Insurer. I accordingly find that the Applicant shall be paid the amounts set forth in the column entitled Deficiency upon Schedule “A” in the cumulative amount of $2,528.22 (exclusive of any interest due for late payment.)

Attendant Care

The Applicant testified that he was unable to attend to his own personal care after the accident. The evidence at the hearing was that the Applicant was paid attendant care at the rate of $361.95 per month from January 3, 2010 until the benefits were terminated effective April 1, 2010.

No attendant care provider testified at the hearing. Only the testimony of the Applicant was available, supplemented by the various medical reports produced in evidence. The same concerns about the Applicant’s credibility that were canvassed with regard to his claim for income replacement benefits must also apply with respect to his claim for attendant care benefits.

I have found that the Applicant’s evidence with respect to his injuries lacks credibility except to the extent corroborated by compelling medical evidence derived from a physical examination of the Applicant. I am satisfied that the physical impairments described in the report of Dr. Kekosz dated March 15, 2012 are sufficiently corroborative of the testimony of the Applicant to support a finding that attendant care was reasonable and necessary no later than August 1, 2010. I am satisfied on the balance of probabilities on the basis of the testimony of the Applicant corroborated by the documentary evidence that the attendant care expenses were actually incurred. The Applicant shall accordingly be awarded attendant care expenses from the date of termination of his benefits up to and including August 1, 2010 at the rate of $361.05 per month.

Housekeeping and Home Maintenance

Although he rented a room in someone else’s home, the Applicant testified that he was no longer able to help with household chores after the accident. He required help with housecleaning, laundry and grocery shopping. The cleaning included washroom and kitchen clean-up as well as the cleaning of the living room which comprised a common area for which he was apparently responsible. He testified that he was unable to bend, scrub, sweep or mop because the range of motion necessary for those tasks was painful for him.

The Applicant produced a series of OCF-6 forms in evidence, supported by written reports completed by Jeyarajah Jeyaseelan who did not appear at the hearing to testify. These confirm that housekeeping services were provided from February 15, 2010 through August 1, 2010.

On the balance of probabilities I find that the Applicant is owed some amount for housekeeping and home maintenance by the insurer. It is incumbent upon me to choose an appropriate termination date, consistent with the available evidence and with my previous findings regarding the credibility of the Applicant. I find that it is not unreasonable to suppose that the Applicant’s need for housekeeping and home maintenance expenses would not outlast his need for attendant care. I am satisfied that the Applicant’s claim for housekeeping and home maintenance benefits should be paid to and including August 1, 2010.

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 Dispute Resolution Practice Code.

August 14, 2014

James Robinson Arbitrator

Date