Neutral Citation: 2014 ONFSCDRS 77

FSCO A11-003263

BETWEEN:

HERMIZ GIEEO HERMIZ Applicant

and

UNICA INSURANCE INC (formerly known as YORK FIRE & CASUALTY INSURANCE COMPANY) Insurer

REASONS FOR DECISION

Before: Rosemary Muzzi Heard: October 7, 8, 9 and 10, 2013, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Alexei Antonov for Mr. Hermiz Philip Tyborski for York Fire & Casualty Insurance Company

Issues:

Hermiz Gieeo Hermiz, injured in a motor vehicle accident on February 1, 2010, seeks statutory accident benefits from York Fire & Casualty Insurance Company (“York”), payable under the Schedule.¹ In particular, he seeks income replacement, attendant care, and housekeeping benefits, arguing that he was substantially unable to perform the functions he could prior to the accident. He also seeks medical benefits for treatment he claims is reasonable and necessary to treat the injuries he suffered as a result of the accident.

The parties were unable to resolve their disputes through mediation, and Mr. Hermiz 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. Hermiz entitled to income replacement benefits at the rate of $283.08 weekly for the two years post-accident, less any amounts already paid by York?
Is Mr. Hermiz entitled to attendant care benefits at the rate of 901.22 monthly from April 13, 2010 to the two-year mark post-accident?
Is Mr. Hermiz entitled to payments of $100 weekly for housekeeping and home maintenance services from April 14, 2010 to the two-year mark post-accident?
Is Mr. Hermiz entitled to a medical benefit for the treatment expenses incurred at Osler Rehabilitation Centre?
Is Mr. Hermiz entitled to interest for the overdue payment of benefits?
Are the parties entitled to their expenses in respect of the arbitration?

Result:

Mr. Hermiz is entitled to income replacement benefits at the rate of $283.08 weekly from the date York stopped the benefit to the two-year mark post-accident.
Mr. Hermiz is not entitled to further attendant care benefits.
Is Mr. Hermiz is not entitled to further payments for housekeeping and home maintenance services.
Mr. Hermiz is not entitled to a medical benefit for treatment expenses at Osler Rehabilitation Centre.
Mr. Hermiz is entitled to interest for the overdue payment of benefits.
The parties shall bear their own expenses in respect of the arbitration.

EVIDENCE AND ANALYSIS:

This case hinges on whether Mr. Hermiz can prove that he was in involved in the accident as he described it. York has refused to pay Mr. Hermiz further benefits asserting that he was not involved in an accident as he claims, and that he has been untruthful about the rest of his account as well.

It is not necessary that I find fraudulent activity to deny Mr. Hermiz’s claims. If he is unable to prove the elements of his claims on balance, then he has not made out his case. I find, upon consideration of all of the evidence, that Mr. Hermiz has proved that the accident occurred. While as a result he is entitled to income replacement benefits, there was insufficient evidence on the remainder of his claims to make them successful.

Was there an accident as the applicant described?

Mr. Hermiz asserted that he was a back-seat passenger in a car, driven by his friend’s wife, which was rear-ended by a second car at a railroad crossing.

The driver of the second car attended at the hearing and testified for York asserting that while there was a collision between his car and that of the same woman driver, Mr. Hermiz was not at the scene at all.

The evidence supporting Mr. Hermiz’s story outweighs the evidence that detracts from it.

To begin with, Mr. Hermiz has been consistent about his reports of the accident from the beginning. Mr. Hermiz reported the same details to medical practitioners, treatment providers, and assessors. While there are some discrepancies in the testimony he provided at his examination under oath compared to his testimony before me, these discrepancies are explained by the absence of an interpreter at the EUO and the fact that Mr. Hermiz was nervous and upset at the time. Moreover, the discrepancies are minor and insufficient to discredit the entirety of his evidence and call into question the occurrence.

In addition, Mr. Hermiz’s account was corroborated by two other witnesses at the hearing: Mr. Hermiz’s friend and the friend’s wife. He was another occupant of the car and she was driving the car. In order to disbelieve Mr. Hermiz, I would have to find that the three of them concocted this story and that the driver of the second car was telling the truth. However, in the circumstances, it is as likely that the second driver concocted his story. In my view, there is no logical reason to believe the testimony of the second driver over that of Mr. Hermiz and the other two witnesses because there did not exist any other circumstances that ensured the truthfulness of the second driver.

First, there was no reason for me to believe that the second driver’s recollection was more reliable than that of any other witness where his contemporaneous record of what happened in the accident, the self-reporting collision report, was different than what he testified. He reported only one occupant in the vehicle, but he testified that the female driver had a young child in the car with her. He testified that no one else was on the scene.

While the self-reporting collision report of the female driver is not exactly consistent with the oral testimony either, that is not a discrepancy that I can hold against Mr. Hermiz. There may be reasons for which the two drivers provided different and conflicting collision reports but Mr. Hermiz, as an occupant, did not participate in that exercise.

Finally, there was evidence before me that Mr. Hermiz and the second driver are opposing parties in a civil action pertaining to this accident, suggesting that the second driver is not an uninterested party and may have as much interest in advancing a certain account as might Mr. Hermiz and the others involved in the accident.

Did Mr. Hermiz prove the fact of his employment and wage?

I find that Mr. Hermiz proved the fact of his employment and the associated wage.

Mr. Hermiz testified that he worked for a friend doing delivery of various supplies including steel rolls, envelopes and other office supplies. The description of his job was consistent wherever he was required to provide it.

Furthermore, Mr. Hermiz produced an employer’s confirmation form confirming the details of his employment and upon which York based its initial approval of income replacement benefits (IRBs) payments. He also reported his income to Canada Revenue Agency for tax purposes and that information is consistent with the other income information.

The fact that the company for which Mr. Hermiz worked operated from a residential address and was owned by a person familiar to him are not facts that are so out of the ordinary that they call into question his employment given the other evidence before me that supports Mr. Hermiz’s assertions in this regard.

Did Mr. Hermiz prove his entitlement to IRBs by showing a substantial inability to perform the tasks of his pre-accident employment?

Mr. Hermiz testified that the physical nature of his work required that he load up his vehicle with the deliveries, drive for periods of time, and then have to unload the parcels, which at times were heavy. He testified that pain, and in particular back pain, prevented him from doing this work after the accident. Mrs. Hermiz supported his evidence that he worked before but was unable to work after the accident. She also confirmed that he suffered from back pain. They also both referenced an unsuccessful attempt to return to some kind of work after the accident.

Dr. Goldstein, Mr. Hermiz’s family doctor since 2008, also supported Mr. Hermiz’s claim to disability as a result of the accident.

Mr. Hermiz had no significant pre-accident conditions that prevented him from working or otherwise limited his function. Dr. Goldstein’s notes² show only minor pre-existing conditions that did not hinder Mr. Hermiz’s ability to work before the accident. Mr. Hermiz saw Dr. Goldstein two weeks after the accident and one month after the accident complaining of mild neck and low back pain that was getting worse, sleep disturbance and pain on bending. While Dr. Goldstein felt he was improving by June 2010, he saw Mr. Hermiz three times in 2011 and Mr. Hermiz was still taking pain medication. An MRI in December 2011 showed some degenerative disc disease and a disc herniation, which Dr. Goldstein testified could have been possible as a result of the accident given the chronicity of Mr. Hermiz’s complaints despite the fact that Dr. Goldstein had seen no sensory or motor deficits.

Dr. Goldstein recommended physical as well as psychiatric treatment and a psychiatrist prescribed anti-depressants. Further, Dr. Goldstein supported applications to both CPP and ODSP confirming that the accident caused Mr. Hermiz’s disability. In his disability forms, Dr. Goldstein listed his conditions as whiplash associated disorder (WAD II), lumbar strain and chronic pain³ and indicated the origin of the complaints as resulting from the accident.

Dr. Goldstein’s clinical notes and records also reference an attempt to return to work in November 2011 at a restaurant that lasted one month before Mr. Hermiz had to withdraw from that employment.

York’s chiropractic assessor, Dr. Fritz, and psychologist, Dr. Browne, found some limitations. Dr. Fritz recommended therapy. Dr. Browne opined that Mr. Hermiz’s psychological symptoms would abate, given that his psychological problems were not severe. In both cases, Mr. Hermiz deteriorated likely to the lack of reasonable treatment. The treatment facility that Mr. Hermiz attended, Osler Rehabilitation Centre, did not provide the treatment they recommended and did not recommend appropriate treatment subsequent to the first few months of disability.

I find that Mr. Hermiz is disabled from working and that the accident of February 2010 materially contributed to the disability. He is therefore entitled to income replacement benefits at the rate already determined from the date York terminated the benefit to the two-year mark post-accident.

York also argued that it was not required to pay an income replacement benefit for the period of time during which Mr. Hermiz failed to provide information that it requested in order to continue to adjust his claim. I am not satisfied on the evidence⁴ however that Mr. Hermiz failed to provide the information given that he delivered authorizations to York to facilitate its retrieval of the pertinent information. In all of the circumstances, I find that this technical argument does not preclude Mr. Hermiz’s receipt of a benefit to which he has otherwise proved his entitlement.

Did Mr. Hermiz demonstrate that he was disabled from performing his housekeeping and home maintenance tasks, and his personal care necessitating attendant care assistance?

In general, as his purported service provider for both housekeeping and attendant care, Mrs. Hermiz’s evidence about the services she provided was key. In general I find that Mrs. Hermiz expressed frustration about the fact that she is now overburdened with the responsibility of keeping house and doing things for her husband because he is home and not at work. She testified that she is “very tired” and they quarrel often because she has to do too much. However, I find that the preponderance of her evidence showed that Mr. Hermiz did very little housekeeping and home maintenance even prior to the accident and only required some minor personal assistance post-accident. His demands on her time post-accident appear more a convenience to him rather than a necessity.

Housekeeping and Home Maintenance

While in general Mrs. Hermiz testified that her husband performed some housekeeping tasks before the accident, on cross-examination from York it became clear to me that she did most, if not all, of the household chores prior to the car accident while Mr. Hermiz was working. With this being the case, Mr. Hermiz would not be entitled to payments for housekeeping and home maintenance services that might have been performed post-accident.

Further, the housekeeping invoices⁵ proffered at the hearing did not support the case that Mrs. Hermiz was doing housekeeping for Mr. Hermiz primarily because they were unreliable as documentary evidence. Upon first glance, each invoice appeared identical to the next. In fact, there was very little variation from week-to-week over the course of more than a year’s worth of invoices. Such uniformity is unbelievable given the nature of housework and the changing needs of individuals and their families from day to day. Moreover, the invoices were very specific compared to the very general nature of the oral evidence given by Mrs. Hermiz, another factor that led me to find them unreliable.

The result is that I am not satisfied that Mr. Hermiz has proved that he is entitled to any payments for housekeeping and home maintenance services.

Did Mr. Hermiz show that he was disabled from doing his own personal care such that he required attendant care services?

Mr. Hermiz was assessed as requiring over $901.22 per month of attendant care for the two years after the accident. I find that he has failed to make out this case given the major discrepancies between the oral evidence and the documents.

First, the Form 1 in evidence before me is exaggerated, as are the reports and notes of several of the assessors who opined on his abilities and limitations. The assessing kinesiology specialist⁶ and social worker⁷ described a man with severe limitations and needs that very few of the other assessors or practitioners saw. Mr. Hermiz’s family doctor and Dr. Fritz consulted with Mr. Hermiz numerous times over the course of many months, with Dr. Fritz assessing him in person on eight occasions, and neither of them saw a man in crisis or requiring personal care to any degree.

Second, the invoices submitted to support this claim are vague and unreliable. While the claim is for $901.22 monthly, the invoices⁸ in evidence show a decrease in the amount claimed from over $900 monthly to $457.31 monthly starting in July 2010 until November 2010 and then again from January 2011 until May 31, 2011. No explanation was offered for this reduction in expenses. Furthermore, the information contained in the invoices is vague with no detail about the periods of time worked and the exact activities in which the service provider engaged. Like the housekeeping invoices, they are almost all exactly the same.

Finally, the Form 1 and the attendant care invoices do not reflect the situation reported by Mr. Hermiz and testified to by Mrs. Hermiz. As early as April 2010, two months after the accident, Mr. Hermiz reported to the insurer’s assessors that he was independent with his personal care. Mrs. Hermiz testified that she helped her husband with some washing, dressing, pedicures and administration of his medication. York’s occupational therapist saw no need for housekeeping or attendant care services⁹ given Mr. Hermiz’s self-report about independence and her own observations at the assessment.

The preponderance of the credible evidence indicates that Mr. Hermiz required only very minimal assistance for not more than two months after the accident. Further, there is insufficient evidence to quantify reasonable and necessary expenses he incurred for any of the services he might have received during this time. Consequently, I am not satisfied that Mr. Hermiz has proved his entitlement to attendant care benefits.

Is the $25,000 worth of treatment incurred at Osler Rehabilitation Centre reasonable and necessary?

There is insufficient evidence to show that these treatment expenses were reasonable and necessary in the circumstances.

While there was a mass of documents tendered as the clinical notes and records of this facility, no representative from the centre appeared to explain the necessity and reasonableness of the treatment recommended and the expenses claimed.

Further, Mr. Hermiz’s own reports, as evidenced by Dr. Fritz, were that the treatment was scant, nowhere near the number of sessions claimed. Moreover, the treatment that York approved was not even undertaken.

Significantly, the treatment proposed over the course of several months did not change even though Mr. Hermiz’s condition lasted longer than would normally be expected and did not measurably improve. According to Dr. Mula, the chronic pain specialist, after six months the treatment should have changed to address the development of a chronic pain problem. A chronic pain program was never proposed.

In light of the testimony at the hearing, and given the dearth of any credible and reliable evidence from the practitioners and assessors from the treatment facility, I find that I am not satisfied that the treatment expenses incurred were reasonable and necessary.

EXPENSES:

With each of the parties having had some success at arbitration, I order that they shall bear their own expenses of the arbitration.

May 7, 2014

Rosemary Muzzi Arbitrator

Financial Services Commission of Ontario