Sumila v. Gore Mutual Insurance Company, 2016 ONFSCDRS 332

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 332

FSCO A13-008732

BETWEEN:

SLAVOMIR SUMILA

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Jeff Musson

Heard:

In person at ADR Chambers on March 2, 3 and 7, 2016 and by written submissions completed on October 3, 2016

Appearances:

Mr. Shahen Alexanian for Mr. Slavomir Sumila

Mr. Cecil Jaipaul for Gore Mutual Insurance Company

Issues:

The Applicant, Mr. Slavomir Sumila, was injured in an accident on June 24, 2010 and sought accident benefits from Gore Mutual Insurance Company (“Gore Mutual”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Sumila, through his representative, 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 Arbitration Hearing are:

Is Mr. Sumila entitled to income replacement benefits from October 22, 2012 and on-going?
Is Mr. Sumila entitled to medical benefits in the amount of $2,249.74 in an OCF-18, dated December 15, 2011, for physiotherapy?
Is Mr. Sumila entitled to a special award?
Is Mr. Sumila entitled to interest for the overdue payment of benefits?
Is either party liable to pay expenses in respect of the Arbitration Hearing?

Result:

Mr. Sumila is not entitled to income replacement benefits from October 22, 2012 and on-going.
Mr. Sumila is not entitled to medical benefits in the amount of $2,249.74 in an OCF-18, dated December 15, 2011, for physiotherapy.
Mr. Sumila is not entitled to a special award.
Mr. Sumila is not entitled to interest for the overdue payment of benefits
The parties made no submissions on expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (“the DRPC”).

PRIOR TO THE START OF THE HEARING

What was clear at the onset of the Hearing was that both the Applicant and the Insurer were not in compliance with some of the rules of the DRPC. Motions were put forward by both sides to disallow evidence and witnesses with this Hearing.

The Applicant put forward a Motion requesting that the Insurer’s amended response not be allowed to be entered into evidence at the Arbitration Hearing. The Insurer provided the Applicant with an amended version of the Insurer’s response to the Arbitration 48 hours prior to the Hearing. The amended information contained new reasons as to why the Insurer believes the Applicant’s claim for income replacement benefits should be dismissed.

With this last minute addition by the Insurer, the Applicant was placed in the undesirable position of not being able to provide a rebuttal response to the Insurer’s new defense. Therefore, I ruled in favour of the Applicant’s Motion and the amended Insurer’s response was not allowed to be entered into evidence at the Hearing. I provided a written decision on March 3, 2016 to the parties outlining my reasons.

The Insurer then put forward a Motion requesting that the Applicant’s witnesses not be called at this Hearing because the Applicant’s witness list was not sent to the Insurer within the timeline as established in the Schedule. The witness list, as per the Schedule, was due on February 2, 2016. The Applicant sent the witness list to the Insurer on February 19, 2016. The Insurer objected to any witnesses being called to testify that were not provided on a witness list 30 days prior to the commencement of the Hearing. After careful consideration, I ruled that unless a witness was on a list 30 days prior to the Hearing, they were not allowed to testify. The Insurer did not intend to call any witnesses and as a result, did not produce a witness list of its own. Therefore, the only witness called to testify at the Hearing was the Applicant himself.

In addition, the Insurer put forward a Motion objecting to any reports that were not filed at least 30 days prior to the Hearing being entered into evidence. I ruled that any report or document that was not served on the other party within 30 days of the Hearing would not be compliant with Rule 32 of the DRPC and I would not allow it to be entered into evidence, subject to the other side granting an exception.

The Applicant gave notice just prior to the start of the Hearing that they were withdrawing the psychological assessment in dispute in the amount of $1,840.15. The remaining issues in dispute included: income replacement benefits, medical benefits, special award, interest and costs. The Insurer did not object to the assessment being withdrawn.

EVIDENCE AND ANALYSIS:

BACKGROUND

The onus is on the Applicant to prove entitlement to benefits. This Hearing is being commenced in order to determine entitlement of income replacement benefits both pre- and post-104 weeks, and entitlement to a medical treatment plan for Mr. Sumila.

The Applicant worked at Atlantic Auto, an automotive parts supplier, for approximately 7 years prior to the accident, which occurred on June 24, 2010. After the accident, the Applicant only took a total of 5 days off of work because of this accident. What is important to note is that the Applicant continued to work for two years post-accident at his job. He is only claiming entitlement to income replacement benefits as of October 22, 2012 and on-going.

The Applicant was driving home from work when the accident occurred on June 24, 2010. The accident happened on Highway 7 and Pine Valley Road, whereby another vehicle made a left hand turn and collided with the Applicant’s car.

The Applicant attended Humber River Hospital after the accident and was discharged the same day.² He also had a follow up exam at Civic Hospital in Brampton.³ The Applicant testified that he subsequently had a friend fill out his OCF-1 and the Applicant signed it on July 13, 2010.⁴ The Applicant filed an Application for Arbitration on July 10, 2013.⁵

An additional fact to note in this case is that the Applicant applied for CPP Disability Benefits on February 3, 2014 and was approved.⁶ CPP entitlement doesn’t automatically bring entitlement to income replacement benefits; notwithstanding, any income replacement benefit paid will be subject to deductions from CPP.

THE APPLICANT - MR. SUMILA

The Applicant testified on his own behalf. He was born in 1975 in Slovakia and immigrated to Canada in 2001. He completed his high school diploma. When he arrived in Canada, he enrolled in an English as a second language course which lasted 5 months. He also received his forklift driver’s license at the same time. The Applicant currently resides in Brampton and at the time of the accident, he was employed as a driver and warehouse packager at an auto parts supplier. The Applicant testified that other than working for a short period in construction once he immigrated to Canada, the only other job that he had was working for an automotive parts supplier. He started at this automotive parts supplier in August 2002 and he ceased working there in February 2013.

He testified that his duties at the automotive parts supplier included the packaging and delivering of automotive parts. There was some lifting involved as one would expect from any general labour job, but the Applicant said that he also knew how to drive a forklift in order to load and unload heavier items. In his examination in chief, the Applicant stated that his job duties never changed the entire time he worked at the automotive parts supplier. The Applicant testified that he continued to work at his job despite his injuries. He only took 5 days off after the accident and promptly returned to work for the next 2 years before applying for income replacement benefits.

Prior to the accident, the Applicant testified that he didn’t have any health problems or pain in his body. He was very active and played sports in his spare time. He testified that he has experienced ongoing numbness and pain on the left side of his body as a result of the accident. His family doctor, Dr. Woo, referred him to specialists for acupuncture and physiotherapy to treat the pain in his neck and back on his left side following the accident. The Applicant testified that he attended 3 different clinics and since August of 2012, has been under the chiropractic care of Dr. Horowitz. The Applicant stated that he was paying for treatment out of his pocket in the total amount of $9,000.00 - $10,000.00 for physiotherapy and massage therapy, in addition to the cost of his MRI.

I found the Applicant’s testimony to lack credibility. There were numerous contradictions in terms of timelines especially related to the clinics that he attended and when. There were additional contradictions in terms of what treatment was given at what clinic and who the treatment providers were. His testimony made it difficult to determine which statements from the Applicant were true and which statements were not true.

INCOME REPLACEMENT BENEFITS

Just as in El-Saikali and Co-operators General Insurance Company,⁷ Mr. Sumila’s testimony and submissions do not demonstrate, on a balance of probabilities, his entitlement to income replacement benefits. The Applicant at the Hearing is claiming that he is disabled and unable to perform the essential duties of any occupations for which he is qualified by age, experience and education, and therefore should be entitled to income replacement benefits. The Applicant submitted an OCF-2 on July 13, 2010, but never submitted another OCF-2 when he applied again for income replacement benefits two years later. The Applicant confirmed that he never provided the Insurer with an updated disability certificate, updated employer’s confirmation form or letter indicating he was claiming income replacement benefits.

The Insurer is claiming that the Applicant is not in compliance with section 32 of the Schedule, namely that an Applicant must inform the Insurer within 7 days of the circumstances that give rise to a claim. I am in agreement with this. Only after compliance with section 32 can the Applicant proceed to demonstrate how they meet the test for entitlement to income replacement benefits that is set out in section 5 of the Schedule. ⁸

The Insurer made the determination that once the Applicant returned to work, there was no entitlement to the benefit. If circumstances change, then they must comply with the above sections. The Applicant even conceded as part of his testimony that on his OCF-1, he stated that his injuries did not prevent him from working as a result of the accident.

The Applicant testified that since he received CPP Disability Benefits, it proves he should be entitled to income replacement benefits. Unfortunately, we don’t know the details of the CPP disability claim so the correlation cannot be drawn to conclude that the Applicant is entitled to income replacement benefits.

The Applicant submitted a vocational assessment completed by Mr. Bowman,⁹ which had many inconsistencies; therefore, the conclusions in the report cannot be reasonably trusted. Without the author of the report testifying at the Hearing and with the evidence being untested, I put little weight in the findings of this report. I find this case similar to the case of D.F. and Wawanesa Mutual Insurance Company.¹⁰ Mr. Sumila must prove, on the balance of probabilities, that he suffered a substantial inability to perform the essential tasks of his pre-accident employment. The mere fact that he returned to work for a full two years after his accident makes it difficult for him to prove his entitlement. Further, without achieving a substantial inability to perform the essential tasks, the Applicant falls short of the threshold to meet the complete inability test. Based on the Applicant’s testimony and evidence submitted at the Hearing, I find the Applicant is not entitled to income replacement benefits.

MEDICAL BENEFITS

The Applicant only filed one OCF-3 for his entire claim that was signed on July 7, 2010.¹¹ The Applicant confirmed that he signed his OCF-3 stating that he anticipated that the duration of treatment would be 5-8 weeks.

The Applicant testified that his family doctor referred him to Prime Care for his physiotherapy treatment after the accident. He testified that he attended Prime Care for treatment for approximately six to eight months after the accident. This indicates he stopped going for treatment at some point between December 2010 and February 2011. The one treatment plan in dispute is an OCF-18, dated December 15, 2011, from Prime Care which was 10-12 months after he testified that he stopped attending the clinic.¹² This OCF-18 was denied based on an Insurer’s Examination by Dr. Czok, dated April 16, 2012.¹³

When the Applicant was asked at the Hearing by his own lawyer: “Why did you stop going to the clinic?” The Applicant replied: “I feel better and I still keep going to work, right?” The Applicant stated, through his own testimony, that he felt better and was still able to function at work. The Applicant only saw his family doctor, Dr. Woo, on two occasions in the 18 months following the accident.

The Applicant testified that after attending Prime Care, he then attended GTA Premier for a few months of treatment and then attended Physio Med for a couple of months. He was asked why he stopped attending these facilities and he replied that his accident benefits limits were exhausted by Gore Mutual. No information was submitted at this Hearing confirming this statement. The Applicant also testified that he drove to Buffalo to get an MRI of his neck. He was referred to a clinic in Buffalo by Dr. Horowitz.¹⁴ He also testified that Dr. Layla Safinia referred him for a prior MRI at William Osler Hospital only 2 months earlier on June 30, 2012.¹⁵ The Applicant testified that he saw one other specialist, a physiatrist named Dr. Bhangu.¹⁶

None of the medical evidence has been tested through cross-examination of either the report authors or any medical professionals that treated the Applicant. As a result, I put little weight on the medical reports submitted as part of this Hearing. By default, I am left only with the testimony of the Applicant as to the reasonableness of the denied treatment plan he is disputing. It should be noted that this issue of medical benefits was argued at the Hearing and was confirmed at the beginning of the Hearing. However, in the written submissions of the parties, this issue was not addressed by Applicant’s counsel, nor do I have confirmation that it was withdrawn as an issue in dispute.

INTEREST FOR THE OVERDUE PAYMENT OF BENEFITS

Since I have determined that no benefits are payable to the Applicant, no interest is payable.

SPECIAL AWARD

Since I have determined that no benefits are payable, there is no special award payable.

CONCLUSION

The Applicant failed to meet the onus of proof to show that he was entitled to the benefits in dispute. All of the evidence in the reports submitted on the Applicant’s behalf was never tested at this Hearing because there were no other witnesses that testified other than the Applicant himself.

The Applicant is not entitled to income replacement benefits because he is not in compliance with section 32 of the Schedule and further, has not produced evidence showing that he has either a substantial or a complete inability to perform the essential duties of any occupations for which he is qualified by age, experience and education.

The Applicant is not entitled to the medical benefit in dispute because based on the evidence presented at the Hearing, the treatment plan was neither reasonable nor necessary.

Therefore, all issues in dispute are denied.

EXPENSES:

The parties made no submissions on expenses. If they are unable to agree on the legal expense of this case, an Expense Hearing shall be requested within thirty (30) days of the date of this decision in accordance with Rule 79 of the DRPC.

December 12, 2016

Jeff Musson

Arbitrator

Date