Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2014 ONFSCDRS 49
Appeal P13-00019
OFFICE OF THE DIRECTOR OF ARBITRATIONS
GIOVANNI BRUNO
Appellant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Respondent
BEFORE:
David Evans
REPRESENTATIVES:
Peter B. Cozzi for Mr. Giovanni Bruno
Robert S. Franklin for State Farm Mutual Automobile Insurance Company
HEARING DATE:
December 3, 2013
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The Arbitrator’s order of May 16, 2013 is confirmed and this appeal is dismissed.
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested pursuant to the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014), but as set out below and within sixty days of the date of this decision.
March 26, 2014
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Mr. Bruno appeals Arbitrator Muzzi’s order denying him the statutory accident benefits he claimed from State Farm Automobile Insurance Company under the SABS–1996.1
II. BACKGROUND
Giovanni Bruno, the Appellant, was injured in a motor vehicle accident on January 15, 2007 while driving a company vehicle.
The Arbitrator found that Mr. Bruno was not entitled to
- additional income replacement benefits (IRBs) beyond the 16 weeks paid by State Farm2
- payment for a physical rehabilitation treatment plan dated February 8, 2008 in the amount of $2,649.76
- payment of $1,642.50 for the cost of a dental assessment by Dr. Goldberg of the temporomandibular joint and $506.27 for the cost of an Activities of Daily Living assessment conducted by Therapeutic Rehabilitation and Assessments Inc.
The Arbitrator’s overall conclusion was that
Mr. Bruno is not entitled to any of the benefits he claims because in general he did not provide sufficient credible evidence to support his case. His oral evidence was inconsistent and in many cases contradictory and he also lacked sufficient consistent and reliable documentary evidence to found his claims.
III. ANALYSIS
Generally speaking, Mr. Bruno’s submissions seek to have me substitute my assessment for that of the Arbitrator, which is not my role. However, appeals are only on a question of law: Insurance Act, s. 283(1). As reiterated by the Divisional Court in Kanareitsev v. TTC Insurance Co., 2008 CanLII 26262, this means that my role is not to try the case de novo or substitute my own views of the facts. The reasons simply need refer to the principal evidence relied upon and provide a justification for the conclusions. The Arbitrator in this case conducted a detailed review of the evidence, and she had the evidence before her to reach the conclusions she did.
Mr. Bruno submits that the Arbitrator erred because she drew conclusions that were “opposed to the uncontradicted evidence before her,” that State Farm “tendered no surveillance or medical evidence to impeach the Appellant’s credibility or to rebut the Appellant’s claim to ongoing disability benefits,” and that the Arbitrator “did not compare, contrast and measure the plausibility of the claimant’s evidence with or as against the evidence from other sources as there were no other sources of evidence.”
Mr. Bruno provided no case law for the proposition that an adjudicator is required to accept uncontradicted evidence, or that an insurer is required to produce evidence rebutting that of the insured. Sometimes, the insured’s evidence fails all on its own. In any event, case law at the Commission has long stood against the proposition that uncontradicted evidence must be accepted. Rather, the evidentiary burden of proof generally rests with the party that is in the best position to lead evidence on the disputed fact. Thus, in the absence of documents, for instance, the oral evidence must be of sufficient reliability that it enables the arbitrator to estimate the insured person’s gross annual income on a balance of probabilities: Clipperton and Zurich Insurance Company, (FSCO P01-00008, August 24, 2001). See also Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627 (Div. Ct.). Furthermore, as noted by the Divisional Court in TTC Insurance Company Limited v. Watson, 2008 CanLII 49337, “The Arbitrator was entitled to believe all, some or none of what a witness said…”
Accordingly, the Arbitrator was within her rights to find that, based simply on Mr. Bruno’s own evidence, he neither proved that he was employed at the time of the accident nor what he earned if he was employed.
With respect to employment, the Arbitrator found that Mr. Bruno failed to prove that he
- was employed at the time of the accident because the evidence about his employment status and income was too inconsistent and unreliable
- sustained an impairment as a result of the accident that extended beyond the sixteen weeks paid by State Farm
- satisfied the test for entitlement to further IRBs
Regarding Mr. Bruno’s employment status, the Arbitrator found that:
Mr. Bruno failed to prove that he was employed at the time of the accident. The documentary evidence, his oral evidence at the hearing, and the other evidence he provided to State Farm under oath indicate an inexplicable confusion about his employment status and the income he earned, and reveal the existence of other employers.
Mr. Bruno testified at the arbitration hearing that at the time of the accident he was a passenger in a vehicle owned by his employer Millennium Tile, owned by his mother-in-law, Nancy Luciano. He testified that he was on his way to a job site with another employee, Enrico Russo.3 He also testified that he had a second, irregular job as a plumber paid in cash with another of his mother-in-law’s companies, and that he never reported this income to the Canada Revenue Agency. He only reported the 2006 Millennium Tile income in 2010 or 2011 (the Arbitrator noted the confusion about when the 2006 return was actually filed).
Mr. Bruno submits that the Arbitrator erred in finding that he was not employed at all because he could not answer the legal question of whether he was an employee or self-employed. I find that to be an unfair statement and not an accurate reflection of what the Arbitrator found.
Instead, over a good three pages of her decision, the Arbitrator set out the many confusions and contradictions in Mr. Bruno’s testimony regarding his alleged employment status. She noted that Mr. Bruno gave contradictory oral evidence about his employment with his mother-in-law’s companies that was not clarified by the documents before the Arbitrator. On top of that, she noted that “Mr. Bruno’s employment with his mother-in-law was even more difficult to believe given the dearth of documents to corroborate this relationship and his incredible explanations for the lack of such documentation.” These explanations included
- he did not know until very shortly before the arbitration hearing that he would require such evidence
- he ordered records from his bank to show the canceled cheques he received from his employment only three weeks before the hearing
- if he had known the importance of the records, he would have asked his mother-in-law for the work-related documents because she retained them all in a box in her office
- his failure to provide employment documents was on account of his estrangement from his mother-in-law
Furthermore, in an examination under oath, Mr. Bruno claimed that there was no office for his mother-in-law’s companies and that he did not know where the books and other business-related materials were kept. On the other hand, he claimed that he did have the records when he attended at his accountant’s office in 2011 with his mother-in-law – at a time when they had been estranged for a year, and “Moreover, his mother-in-law has apparently since disappeared and all of his attempts to locate her have been fruitless with no one knowing her exact whereabouts.”
I have gone into the evidence in some detail to show there was an evidentiary basis for the Arbitrator finding that “Mr. Bruno’s confusion of explanations for his inability to substantiate his employment relationship with his mother-in-law does not satisfy me on any basis.” Accordingly, I find no error in law in her conclusion that Mr. Bruno failed to prove he was employed before the accident.
This is really sufficient to dispose of the appeal regarding the IRBs, for as Mr. Bruno did not prove he was employed in the year before the accident, it does not matter what he earned or whether or not he was disabled from working as a result of the accident. Nonetheless, I will touch on these issues briefly.
To return to the employee versus self-employed issue, the Arbitrator was simply pointing out that the confusion about which status pertained to Mr. Bruno affected the calculation of any IRB, as the SABS specifies different formulas for the IRB calculation between employed persons and self-employed persons. She then set out over another page all the difficulties in determining what Mr. Bruno’s income was before the accident. I find no error in her conclusion that it was impossible to determine Mr. Bruno’s pre-accident income.4
As for disability, Mr. Bruno submits that he had medical evidence supporting his position that he was disabled from working due to low back pain. However, the Arbitrator was not required to accept those expert opinions, as she set out why she was not satisfied about the nature of Mr. Bruno’s disability and how much, if any, of it could be related to the accident. She noted medical evidence of similar pain and disability prior to the accident and evidence suggesting intervening factors as well. She noted that none of the medical examinations showed even a minor change in Mr. Bruno’s lower back until the summer of 2007, six months after the accident. She also noted other evidence suggesting that Mr. Bruno was working after the accident, “though, again, the evidence about where and for how long is inconsistent.” I find no error in her conclusion that Mr. Bruno failed to prove he was disabled from working as a result of the accident.
I will now turn to the other claims.
With respect to the physiotherapy treatment plan, the Arbitrator found that “there was no evidence before me from the treatment facility that recommended the treatment about the specific plan itself, how it would benefit Mr. Bruno’s condition, or why it would be reasonable and necessary to engage in such treatment one year after the accident.” In addition, the Arbitrator found there was also other evidence suggesting that Mr. Bruno was not interested in engaging in physiotherapy to treat his condition and that other medical practitioners who consulted with Mr. Bruno recommended other forms of therapy.
With respect to the dental assessment, the Arbitrator found “that there is very little medical evidence to support the need for such an evaluation given that it does not appear that Mr. Bruno suffered any dental or maxillofacial-related injuries as a result of the accident.” Similarly, she found no evidence before her that the Activities of Daily Living assessment “was reasonably required in connection with a benefit that is claimed or in connection with the preparation of a treatment plan for injuries suffered as a result of the accident.”
I find no error in the Arbitrator’s conclusions regarding the treatment plan and the assessments, as she had evidence before her to support those conclusions.
The appeal is therefore dismissed, and the arbitration decision confirmed.
IV. EXPENSES
If the parties are unable to agree on the legal expenses of this appeal, applying the procedure set out in Rule 79.2 of the Dispute Resolution Practice Code, an expense hearing shall be requested, within sixty days of the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as written submissions regarding entitlement to and/or the quantum of legal expenses, as are in dispute.
March 26, 2014
David Evans Director’s Delegate
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Mr. Bruno was assessed by State Farm as having a Grade II Whiplash, limiting the time he could receive IRBs.
- The Arbitrator stated in a footnote that “Mr. Bruno’s co-worker, Enrico Russo was involved in the same accident and also applied for arbitration but failed to attend the hearing.”
- For that reason, I do not consider relevant Mr. Bruno’s submissions about s. 64.1(2) of the SABS, the provision that allows for adjusting IRBs once an income tax return of unreported income is filed. The Arbitrator was also not required to accept the 2006 return at face value.