Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2015 ONFSCDRS 184

Appeal P15-00012

OFFICE OF THE DIRECTOR OF ARBITRATIONS

MIKHAIL GARMIDER Appellant

and

CO-OPERATORS GENERAL INSURANCE COMPANY Respondent

BEFORE: David Evans

REPRESENTATIVES: Mikhail Garmider acting for himself Bruce A. Keay for Co-operators General Insurance Company

HEARING DATE: Decision issued on the record; written submissions received by July 7, 2015

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 February 2, 2015 is confirmed and this appeal is dismissed.
If the parties cannot agree on the legal expenses of this appeal, they will provide written submissions within forty-five days of this decision, and responses to those submissions within 21 days after that.

September 3, 2015

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Mikhail Garmider appeals Arbitrator Fadel’s decision of February 2, 2015, dismissing his accident benefits claims against Co‑operators General Insurance Company under the SABS‑1996.¹

II. BACKGROUND

Mr. Garmider was injured in a motor vehicle accident on June 8, 2009. While Co-operators paid him some accident benefits, it denied his claims for non-earner and housekeeping benefits along with several treatment plans.

Mr. Garmider was also in a pedestrian motor vehicle accident on August 27, 2012, which the Arbitrator mentions on p. 6 of his decision in discussing Mr. Garmider’s medical evidence.

The Arbitrator first dealt with causation. He noted that Mr. Garmider claimed that “as a result of the 2009 accident he suffered lower back pain or an exacerbation of a previous injury concerning his lower back, radiating leg pain, left shoulder pain and neck pain that has had an ongoing debilitating effect on his day-to-day life.”

However, the Arbitrator noted that:

the ambulance call report suggested this was a low-speed accident
X-rays at the hospital showed normal moderate degenerative changes
Mr. Garmider did not complain of back pain at the hospital.

The Arbitrator also noted that Mr. Garmider had an extensive pre-accident history of injury. He was off eight months in 1996 for a back injury, and then in 1997 he was crushed between two transport trucks as he was unloading a trailer. He had a broken shoulder that became frozen and suffered a myofascial injury to the lumbar spine. He has not worked since 1997, continues to receive workers’ compensation benefits, and was assessed in 2004 with a 60% whole person impairment. As of 2005, he also started receiving a personal care allowance from the WSIB.

The Arbitrator examined the medical records presented by both sides, with much more being provided by the insurer. The Arbitrator found significant evidence of pre-accident physical and psychological impairment. Further, he found that Mr. Garmider was a poor historian who had difficulty distinguishing between the injuries sustained before the 2009 accident and those sustained in the 2009 accident. He found that the medical assessors also agreed that Mr. Garmider was a poor historian, evasive, forgetful or selective.

The Arbitrator concluded that the 2009 accident did not cause or contribute to Mr. Garmider’s ongoing back condition or ongoing psychiatric symptoms. Rather, he found that the “overwhelming evidence” showed that these problems pre-existed the accident, and that “Mr. Garmider gave no evidence on which I could find that the accident caused or exacerbated this already existing condition.” He also found no medical reports, where the assessors were aware of Mr. Garmider’s pre-accident condition, linked the accident to his current condition.

Although this finding on causation effectively concluded the case, the Arbitrator nevertheless went on to make findings about the benefits claimed.

With respect to the non-earner benefit claim, the Arbitrator noted that s. 12 of the SABS — 1996 requires the insured to have suffered a complete inability to carry on a normal life as a result of and within 104 weeks of the accident, and that this test requires an examination of the activities the insured normally engaged in before and after the accident. However, the Arbitrator found that Mr. Garmider provided no evidence on that point. Further, the Disability Certificate prepared in support of the claim showed no reflection of Mr. Garmider’s long pre-accident history. Finally, video surveillance of 2012 and 2013 showed him carrying out many day-to-day activities such as driving a car, running errands, pumping gas, going to medical appointments, grocery shopping, carrying his groceries and shopping for up to 2.5 hours. The Arbitrator rejected this claim.

With respect to the housekeeping claim, the Arbitrator found that the evidence “was rather sparse.” Mr. Garmider did not say what services the housekeeper performed, he never submitted receipts for her services, and he did not call her. Further, Mr. Garmider’s housekeeping abilities were already restricted before the accident. The Arbitrator found that Mr. Garmider had provided “no reliable evidence to show that he had a substantial inability to perform the housekeeping that he was normally performing before the accident or that such an expense was even incurred.” Accordingly, this claim was also denied.

Finally, with respect to the three treatment plans for various modalities and devices, none of the assessors testified, their plans did not indicate any knowledge of Mr. Garmider’s pre-existing condition, and the Arbitrator found that all these plans were effectively countered by the insurer’s reports. Therefore, all these plans were denied as well.

At the conclusion of his decision, the Arbitrator wrote:

I find, on all the evidence before me, that Mr. Garmider was suffering a severe and prolonged disability in the years prior to the relevant motor vehicle accident. I also find that his condition had not improved prior to the accident in any significant way. Mr. Garmider has failed to prove that he sustained injuries in the 2009 accident that would entitle him to any of the claimed benefits. I find that he sustained soft-tissue injuries in the 2009 accident that went on to heal without incident.

III. ANALYSIS

On a preliminary note, when I reviewed Mr. Garmider’s Notice of Appeal, I had concerns about whether it raised any issue of law. It also revealed settlement discussions at the pre-hearing, and included an appeal of an order in which he was successful (Arbitrator Murray’s decision of October 1, 2014, that his med/rehab claims could continue). The Notice also indicated that Mr. Garmider planned on filing considerable amounts of extra evidence, and it appeared that he wanted Co-operators to pay for the transcript when he had clearly indicated on the Notice that he was not ordering the transcript himself.

I wrote to him on March 2, 2015, as follows:

First, under Actions sought from the appeal, item 1 appears to divulge settlement negotiations and amounts offered. Settlement is a confidential process, and adjudicators like myself are not supposed to know what amounts were offered. For the moment, I will continue with this file, but Mr. Garmider should be aware that revealing amounts offered during settlement negotiations is completely inappropriate.

I am not clear as to the purpose of item 3, as there is no appeal from Arbitrator Murray’s decision because she allowed Mr. Garmider to proceed to a hearing on the issues he sought to have heard, as far as I can tell. In any event, Rule 74.3 provides that the party ordering the transcript has to pay for it, so if Mr. Garmider seeks the transcript, he has to order it and pay for it.

I do not understand items 4 and 6.

Mr. Garmider also seeks to file a great deal of additional fresh evidence, judging from the list on page 3 of the Notice. However, additional evidence is very rarely allowed on appeal. First of all, the evidence has to be relevant, and I see no relevance to the appeal of Arbitrator Fadel’s decision regarding the settlement discussions that may have been recorded with Arbitrator Murray.

In addition, my role is limited to determining if there has been an error of law, as set out in s. 283(1) of the Insurance Act: “A party to an arbitration under section 282 may appeal the order of the arbitrator to the Director on a question of law.” My role is therefore not to weigh the evidence, but simply to determine if there was any evidence upon which the arbitrator based a finding, for instance. If there was, there was no error of law.

The general criteria we use to determine whether or not fresh evidence should be allowed are: 1) the evidence could not with due diligence have been introduced at the hearing; 2) is reasonably capable of belief; 3) is relevant; 4) could affect the result. I do not see how the medical documents meet these criteria, as they could have been introduced at the hearing, or if they post-date the hearing, they are not relevant to an appeal. As already noted, the evidence about the earlier hearing before Arbitrator Murray is irrelevant. Nor do I see any reason to admit photos, as again, my role is not to weigh evidence.

In its Response to Appeal, the insurer asked that I reject the appeal as raising no issue of law. I wrote to the parties on March 31, 2015, saying that while I would not reject the appeal, I would conduct it on the record:

However, as Mr. Garmider is self-represented, I will allow him some latitude. He may file written submissions. These submissions should only deal with the appeal of Arbitrator Fadel’s decision and address any errors of law. To be clear, how the Arbitrator weighs the evidence cannot be an error of law.

Further:

There can be no appeal by Mr. Garmider of the earlier decisions that allowed him to proceed, since he was successful, so there shall be no submissions on those earlier decisions.
The submissions shall contain no discussion of settlement negotiations and amounts sought or offered.
The appeal shall be based on the record, which includes the arbitration exhibits.
No further evidence shall be allowed, as I see no basis for allowing any fresh evidence into the appeal.
There shall be no submissions on any further evidence, as Mr. Garmider had the opportunity to provide his evidence, and an appeal is not simply a further extension of a hearing.

Finally, Rule 56.5(a) provides that the Director or his Delegate may decide the appeal on the record, without the necessity of an oral or electronic hearing.

Since Mr. Garmider has so far provided little in the way of submissions pointing to an error of law by the Arbitrator, I find it more appropriate to proceed on the record.

Accordingly, the parties will serve and file their written submissions, and I will allow Mr. Garmider to file a reply. A decision will follow. There will be no oral hearing.

I note that R. 56.5(a) is derived from s. 283(4) of the Insurance Act, which provides “The Director [or his Delegate] may determine the appeal on the record or in such other manner as the Director may decide, with or without a hearing.”

In any event, Mr. Garmider then ignored my orders. In his submissions, he refers extensively to the mediation process and the decision of Arbitrator Murray, wherein he was successful. He also refers to the alleged settlement discussions. And, in his reply submissions, he provides additional medical evidence. I will ignore all such evidence, since aside from my having ordered there would be no further evidence, the insurer has had no chance to respond to it.

I will focus on Mr. Garmider’s initial submissions, since his reply submissions largely reiterate the same points.

Most of Mr. Garmider’s submissions are irrelevant to this appeal. He complains about the pre-arbitration process and the preliminary issue hearings, which are irrelevant to the appeal of the decision of Arbitrator Fadel. He also refers to a second application for arbitration, but this was withdrawn and none of the issues are relevant here. He also alleges that he did not receive Arbitrator Murray’s decision until months after it was issued. None of these issues are appealable.

Mr. Garmider submits that on p. 9 of his decision the Arbitrator mixed up two different accidents, that of June 8, 2009, and the pedestrian accident of August 27, 2012 I mentioned above. However, on that page the Arbitrator is discussing an insurer’s examination conducted by Dr. J. Clifford. I see no confusion on the Arbitrator’s part, nor is there anything to suggest in Dr. Clifford’s report that he assessed Mr. Garmider about the 2012 accident and not the 2009 accident. I find no error of law.

Mr. Garmider submits that the Arbitrator made an “illegal decision” by deciding an issue that had not been mediated. However, his decision deals exactly with the issues remaining in dispute in the mediator’s report of October 11, 2012. There is a typographical error under issues in dispute in the Report, as issue 3 is listed as Caregiver Benefits, when that issue had already been withdrawn on the previous page under issues not in dispute. However, the substance of the text under that heading refers specifically to the three treatment plans that were in dispute and about which the Arbitrator ruled. I find no error of law.

Mr. Garmider submits that the Insurer surprised him with documentation provided at the last minute before the hearing. Co-operators submits that all it did was put into briefs material it had sent to Mr. Garmider over the years, and provides copies of those letters. In any event, if Mr. Garmider felt he was surprised by this documentation, he should have objected to its introduction at the hearing.

Mr. Garmider submits that the Arbitrator unfairly prevented him from making his own recording of the hearing. However, a court reporter was present, and he could have chosen to order the transcript but did not. The Arbitrator had the right to control the proceedings. I find no error of law.

Mr. Garmider also refers to an alleged conversation between himself and the pre-hearing arbitrator, Arbitrator Murray, regarding settlement numbers. I warned Mr. Garmider twice that this was completely inappropriate. It is certainly no grounds for an appeal.

Accordingly, I find that Mr. Garmider has raised no error of law regarding Arbitrator Fadel’s decision. It is not my job to weigh the evidence, and the only question is whether or not there was evidence on which the Arbitrator could base his decision. There was, including, as the Arbitrator put it, a “four-volume WSIB brief relating to Mr. Garmider’s physical and psychological impairments resulting from two work-related incidents in 1996 and 1997” along with numerous insurer examinations.

The Arbitrator had evidence upon which to make his ruling, and so there was no error of law.

The Arbitrator’s order is therefore affirmed, and the appeal is dismissed.

IV. EXPENSES

The determination of appeal expenses in this case (the arbitration expenses have yet to be determined) will be made on the record, pursuant to s. 283(4) of the Insurance Act. If the parties are unable to agree about expenses of this appeal, they will provide written submissions within forty-five days of this decision, and responses to those submissions within 21 days after that. An expenses decision will follow without any notice of hearing.