Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 53

FSCO A09-002171

BETWEEN:

ROSA SCHINELLA

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before: Sudabeh Mashkuri

Heard: April 7, 8, 2015, in Hamilton, Ontario

Appearances: Lauren Grimaldi and James Scarfone for Ms. Schinella Robert Franklin for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Rosa Schinella, was injured in a motor vehicle accident on July 17, 2005. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Schinella 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 Ms. Schinella entitled to receive a weekly income replacement benefit from July 17, 2005 and ongoing?
Is Ms. Schinella entitled to payments for housekeeping and home maintenance services from July 17, 2005 to July 17, 2007 in the amount of $100 per week?
Is Ms. Schinella entitled to rehabilitation benefits in the amount of $3,253.94 for physiotherapy, chiropractic and massage therapy?
Is Ms. Schinella entitled to interest for the overdue payment of benefits?
Is State Farm liable to pay Ms. Schinella’s expenses in respect of the arbitration?
Is Ms. Schinella liable to pay State Farm’s expenses in respect of the arbitration?

Result:

Ms. Schinella is not entitled to receive a weekly income replacement benefit.
Ms. Schinella is not entitled to payments for housekeeping and home maintenance.
Ms. Schinella is entitled to rehabilitation benefits in the amount of $3,104.89 for physiotherapy, chiropractic and massage therapy.
Ms. Schinella is entitled to interest for the overdue payment of rehabilitation benefits.

EVIDENCE AND ANALYSIS:

Background

Ms. Schinella was injured in a motor vehicle accident on July 17, 2005 in Hamilton. She did not apply for accident benefits until November 17, 2007. State Farm denied the Applicant’s claim because Ms. Schinella applied for benefits almost two and half years after the motor vehicle accident. The Applicant filed an Application for Arbitration on August 25, 2009 and had her first pre-hearing discussion on March 17, 2010. A preliminary issue hearing was held on August 30, and 31, 2010 to decide whether the Applicant was entitled to file for arbitration because it had been over two years since the date of loss. The arbitrator found that there had been a reasonable explanation for the delay in asking for accident benefits and allowed the application to proceed. The decision was upheld on appeal and at the Divisional Court. Because of the length of time this case has taken to be brought before an arbitrator, on the merits, the evidence presented at the hearing was evaluated taking into account the passage of time.

Ms. Schinella owned a gift shop in Hamilton from 1990 until March 2001 when she sold it. She then became her husband’s sole caregiver after he had an accident in December 2001. Because of his accident, he became controlling and abusive, and their marriage became difficult.

Prior to the July 17, 2005 accident, the Applicant had a long standing lower back pain and other health issues. She also had subsequent accidents, another motor vehicle accident in 2011 and a slip and fall accident in 2013.

Credibility

This case turns on credibility. After careful consideration of all of the evidence and representations, I find that there is insufficient credible and trustworthy evidence with regards to the claims for IRBs and housekeeping. The Applicant failed to provide receipts for the IRB and housekeeping claims to corroborate the viva voce evidence. The accident happened over 10 years ago and the Applicant and other lay witnesses are poor historians.

Although English is Ms. Schinella’s second language, she has been in Canada for 35 years, ran a business, and has had psychological therapy in English for many years. I was able to understand her oral testimony. I am not satisfied that the credibility issues were because of her language ability.

I disagree with the Applicant’s counsel’s submissions that since State Farm did not produce any of its own medical or rebutting evidence concerning Ms. Schinella’s claims, that the evidence is incontrovertible. The onus of proving the case and providing credible and trustworthy evidence is on the Applicant. The Insurer is not obligated to lead any medical evidence and it is the arbitrator’s role to decide whether the evidence presented by the Applicant should be accepted as credible and trustworthy. I find that on a balance of probabilities, the applicant has not provided credible evidence with regards to having been employed for two weeks prior to the motor vehicle accident of 2005 or that she employed a housekeeper from July 2005 until July 2007 as analyzed below.

Is the Applicant entitled to Income Replacement Benefits?

I find that the Applicant is not entitled to income replacement benefits based on lack of credible evidence. The Applicant claims that she worked for Mrs. Cabral of Cabral’s Gifts for 2 weeks prior to the July 17, 2005 motor vehicle accident. No employment file or paystubs were provided as corroborating evidence. The income tax assessment filed for 2005 did not indicate that the Applicant was employed in 2005.

The Applicant provided inconsistent, vague, confusing, contradictory, and at times hostile oral testimony with regard to her alleged two weeks of employment prior to the accident. I find that, on a balance of probabilities, the Applicant did not work at Cabral’s Gifts for two weeks prior to the 2005 accident. The objective documentary evidence is inconsistent with regards to the amount of payment, duration of work and whether she worked or not in 2005. I find that it is more likely that the Applicant may have given some advice to her friend, Mrs. Cabral, when she closed her own gift shop in 2001 on an occasional basis, but that she did not work for Mrs. Cabral during the two weeks prior to her accident in 2005.

The Applicant was unable to provide a reasonable explanation for the differences in dates she worked, and the amounts of money she allegedly earned in her two weeks of employment. According to the Canadian Pension Plan (CPP) application signed by the Applicant on June 4, 2009² she had not worked since 2001; and the application does not mention the 2005 accident as the cause of her disability. The CPP application is in direct contradiction to the Applicant’s evidence that she worked at Cabral Gift’s for two weeks prior to the 2005 accident and became disabled because of the 2005 accident. When asked to explain this discrepancy, the Applicant could not provide a reasonable explanation. I find that these inconsistencies diminish her credibility.

The Applicant attended her physician’s office on July 18, 2005 to report the motor vehicle accident. Dr. DiPaolo refers to the Applicant as a “housewife” in his notes.³ I assume that Dr. DiPaolo who had been her physician for over 25 years would know that she had begun to work outside of the home. However, the Applicant could not provide a reasonable explanation as to why her physician of over 25 years would not know that she had started working two weeks prior to the accident.

There are also inconsistencies in her psychotherapist’s notes⁴ that diminish her credibility. The Applicant’s therapist in 2005 stated that, Ms. Schinella was happily surprised by a visit from Italy by her sister in the summer of 2005. However, the Applicant’s oral testimony was that she had planned her sister’s trip to Canada so that she could have more free time to go to work. I find the therapist’s notes of the sessions in 2005 more persuasive then the Applicant’s contradictory oral evidence.

One of the few references in the Applicant’s therapist’s notes about employment is a mention of a friend of Ms. Schinella who owns a gift store but is unable to provide employment to the Applicant. I have reviewed the notes of her psychologists and there is no mention of the applicant working in 2005. I do not find the Applicant’s explanation reasonable that she did not tell her therapist about working in July 2005 because she was afraid her therapist would tell her husband. The medical notes demonstrate that Ms. Schinella was open about all aspects of her life with her therapist and that she knew her therapist kept their sessions confidential. Especially since her therapist had been encouraging her for many years to find a job outside of the home.

An OCF-1 dated February 28, 2008,⁵ states that the Applicant worked from July 5, 2005 until July 20, 2005 (for 11 days if the Applicant and Mrs. Cabral’s testimonies are believed that the Applicant only worked during the week and not the weekends) for 35 to 40 hours per week and was paid $960.00 for that period. That particular OCF-1 is inconsistent with the oral testimonies of the Applicant and Mrs. Cabral. The Applicant had no explanation why she had put $960.00 as the amount of income earned, when she indicated that she had been paid $1,250 at the hearing. Mrs. Cabral and the Applicant testified at the hearing that Ms. Schinella worked for two weeks (10 days, 5 days a week at an hourly rate of $15) and once the accident happened on July 17, 2005 (a Sunday) she did not go back to work the following Monday. Further, the amount of $960.00 for 35 to 40 hours per week is inconsistent with the amount noted in other documents⁶ specifically an OCF-2 dated September 8, 2014 which states that she was paid $600 for week one and $650 for the second week for a total of $1,250.00. This document does not explain how she was paid for July 18 and 19, 2005 when she did not go back to work after the accident and why the last day of work is noted as July 20, 2005.

The only documentary evidence presented to corroborate Ms. Schinella’s alleged employment at the gift store are three documents from Cabral’s Gifts.⁷ Since there were no pay slips, employment records, and Ms. Schinella was paid by Mrs. Cabral in cash, these letters and the T1 Adjustment Request⁸ are the only corroborative evidence provided by the Applicant with regards to her employment.

Mrs. Cabral, owner of Cabral’s Gifts, testified at the hearing and gave evidence that was confusing, inconsistent and therefore not credible. Mrs. Cabral was provided a Portuguese interpreter at the hearing; however, she was unable to answer questions coherently during the hearing. The letters provided by Cabral’s Gifts are also unreliable because they are inconsistent with Mrs. Cabral’s oral testimony and other evidence provided. In an undated letter⁹ (but with a stamp as being received on September 10, 2014), the wages of the Applicant are $15 per hour for 35 hours per week and the last day of work is Wednesday July 20, with the Applicant being unable to attend work on July 18 and 19because of the accident. Those hours do not add up to $960.00 or $1250.00. Further Mrs. Cabral testified at the hearing that she did not hire anyone else when the Applicant stopped working. In the letter, Mrs. Cabral states that she had to “seek” a new employee because she needed help on the sales floor.

Mrs. Cabral also could not explain credibly how she came to write the letters through her book keepers. Mrs. Cabral and the Applicant testified that Ms. Schinella began to work at the gift store to train Mrs. Cabral in making gift baskets and to introduce Mrs. Cabral to Ms. Schinella’s contacts in Toronto and Mississauga; however, Mrs. Cabral did not hire the Applicant until at least 4 or 5 years after the opening of her gift shop. The Applicant and her alleged employer could not provide a reasonable explanation why she would be hired 4 or 5 years after the opening of the store to “train” Mrs. Cabral in making gift baskets or to introduce her to her suppliers. It is not credible that Mrs. Cabral hired the Applicant as a trainer 4 or 5 years after opening her gift shop.

The letter dated July 23, 2010¹⁰ states that Ms. Schinella was in “training” for the two weeks she allegedly worked for Mrs. Cabral, which is in direct contradiction to what was testified to by Mrs. Cabral and Ms. Schinella — that is the Applicant was training Mrs. Cabral. Also, Mrs. Cabral testified that she saw Mr. Schinella drive his wife to work in direct contradiction to Ms. Schinella’s testimony that she hid from her husband that she was working. Ms. Schinella could not provide a coherent explanation of how she explained her 8 hours of absence on a daily basis to her husband for two weeks prior to the accident. Based on the untrustworthy evidence provided by the Applicant and Mrs. Cabral, I find that on a balance of probabilities the Applicant was not employed by Mrs. Cabral for two weeks prior to the accident.

Lastly, the original income tax assessment from 2005 does not include any employment income. I have considered the T-1 Income Tax Adjustment Request¹¹ submitted to Canada Revenue Agency on March 26, 2015. I find that pursuant to S. 64.1 of the Schedule, the Applicant’s income has not changed for the 2005 taxation year since she only very recently filed the adjustment request form for the purpose of the arbitration and there has not been a re‑assessment of her income by Canada Revenue Agency. I draw a negative inference from the late filing of the Income Adjustment Request, and adding of the alleged amount of income from Cabral’s Gifts as employment income almost 9 years from the date of the accident. I put little weight on the T-1 Adjustment Request as corroborating the Applicant’s assertions that she was employed for two weeks in 2005 or her claim for income replacement benefits.

Based on the lack of credibility of the evidence before me, I find that Ms. Schinella did not work two weeks prior to the accident and therefore is not entitled to income replacement benefits.

Is the Applicant entitled to Housekeeping and Home Maintenance Services from July 17, 2005 to July 17, 2007 in the amount of $100.00 per week?

The medical evidence before me demonstrates that the Applicant performed housekeeping and home maintenance services before the July 2005 accident and that the MVA did not result in a substantial inability for her to perform the housekeeping and home maintenance services.

The Applicant claims that Mrs. Campanella worked as a housekeeper for her for 2 years post‑accident, once a week, and that she paid her $100.00 per session. When it was pointed out to her in cross-examination that at the preliminary issues hearing she had testified that she paid her housekeeper $80 per week, the Applicant changed her testimony that she paid her between $80 to $100 per week and that the $20 was a “tip”. It was not explained why the Applicant would pay a tip if she was paying cash to her housekeeper. The Applicant provided no receipts or other documentary evidence to substantiate her claim. Further, the Applicant’s evidence was not credible with regards to the rate of pay, the day of week she worked at her house, and the duration of the housekeeping and home maintenance services.

Mrs. Campanella could not testify with any clarity about when she worked for Ms. Schinella. Mrs. Campanella testified that she worked for the Applicant about 10 years ago, for about a year and half or two years. She could also not testify with any clarity when she was asked by the Applicant to begin housekeeping duties. She could not remember the year, but believed it to be sometime in 2002 or 2003 because that was when she had gone to the Applicant’s gift store to buy supplies for her son’s baptism. However, the Applicant closed her store in March 2001, so these dates do not coincide. Furthermore, there was a contradiction between the Applicant’s and the housekeeper’s testimony with regards to when the housekeeper worked. The Applicant testified that Mrs. Campanella mostly cleaned her house on Wednesdays or sometimes on other days. However, Mrs. Campanella testified that she probably worked only on the weekends, and not on Wednesdays since she worked at her full time job during the week.

The Applicant’s psychotherapist’s notes do not mention any housekeeping help from July 2005 to July 2007. In fact there is much discussion about how she does most of the housework with the help of her son and sometimes her sister-in-law. The therapist’s notes from 2004 mention that the Applicant would like to get someone to help her with heavy housework, however, there is nothing else in the notes to indicate she hired someone to assist her.

The Applicant did not file an OCF-6 for housekeeping benefits until March 9, 2015 which was less than 30 days prior to the arbitration hearing and almost 10 years after the accident. I draw a negative inference from the late filing and serving of the OCF-6.

Therefore, based on the inconsistency in the evidence combined with my findings on the Applicant’s credibility, I find that Ms. Schinella is not entitled to housekeeping and home-maintenance benefits.

Is Ms. Schinella entitled to rehabilitation benefits in the amount of $3,253.94 for physiotherapy, chiropractic and massage therapy?

I find that Ms. Schinella is entitled to rehabilitation benefits in the amount of $3,104.89 for physiotherapy based on the medical evidence filed by the Applicant. Ms. Schinella submitted one treatment plan for physiotherapy, in the amount of $3,253.94 in November 2007.¹² The evidence¹³ indicates that Ms. Schinella took the treatment at the clinic and the outstanding amount is $3,104.89.

The test for payment of a treatment plan is whether the treatment plan is reasonable and necessary. Section 14 (2) of the Schedule states that an insurer shall pay for all reasonable and necessary medical and rehabilitation benefits needed by the insured person as a result of the accident including chiropractic, psychological, occupational therapy and physiotherapy services. The precise time frame of looking at whether the treatment plan is reasonable and necessary is between July 17, 2005 and November 2007.

The Applicant’s evidence with regard to the impairments caused by the July 2005 accident includes injury to Ms. Schinella’s neck, left shoulder, head and left leg. Dr. DiPaolo’s notes indicate that Ms. Schinella attended his clinic the day following the 2005 accident and complained of neck, shoulder, head, and left leg pain.¹⁴ The treatment plan sent to State Farm in November 2007, deals with impairments to the Ms. Schinella’s left shoulder, head, radiating pain to legs, and lumbar spine dysfunction.

The medical evidence points to the applicant’s medical issues prior to the July 17, 2005 accident and ongoing medical issues presently. I have reviewed the medical documents provided and find that Ms. Schinella’s previous lower back and spinal problems may have been aggravated by the 2005 accident over the years. The day after the 2005 accident, Ms. Schinella saw her treating physician, Dr. DiPaolo. Dr. DiPaolo notes that the July 17, 2005 accident did not affect her lumbar disk problems.¹⁵ However, subsequent medical notes show that by 2007, Ms. Schinella’s back problems and radiating pain to her legs were exacerbated.¹⁶ Ms. Schinella attended Dr. DiPaolo and a chiropractor between July 2005 and November 2007 for treatment. The human spine, as stated by Ms. Schinella, is connected from the neck to the lower back. Therefore, the 2005 MVA, on a balance of probabilities, may have contributed to pain radiating to her legs.

I will not deal with the subsequent accidents in 2011 and 2013 and their contribution to the on-going physical and psychological impairments of Ms. Schinella. The treatment plan in question was claimed in end of 2007 and whatever occurred in the two subsequent accidents in 2011 and 2013 are not relevant to specific treatment claimed between 2005 and 2007. Therefore, based on the medical evidence provided I find the treatment plan for physiotherapy in 2007 to be reasonable and necessary.

EXPENSES:

Taking into account that this matter has taken 7 years to finalize, I encourage the parties to resolve the issue of expenses. The issue of expenses shall be addressed at a separate proceeding in the event that the matter cannot be agreed upon by the parties, pursuant to Rules 73 and 77 of the Dispute Resolution Practice Code.

February 11, 2016

Sudabeh Mashkuri Arbitrator

Date